Delhi District Court
State vs . Pintu Kumar on 16 December, 2014
1
FIR No. 29/13
PS - Rani Bagh
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 294/13
Unique ID No. : 02404R0096832013
State Vs. Pintu Kumar
S/o Shri Krishna Prashad
R/o Village - Baidrabad,
PS/District - Arwal,
Bihar.
FIR No. : 29/13
Police Station : Rani Bagh
Under Sections : 376/420 IPC
Date of committal to session Court : 26/04/2013
Date on which judgment reserved : 05/12/2014
Date on which judgment announced : 16/12/2014
J U D G M E N T
1 of 41 2 FIR No. 29/13 PS - Rani Bagh
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 23/01/2013, at 9:10 p.m. an information was received at PS - Rani Bagh, from Duty ASI Ashok Kumar at Guru Gobind Singh Hospital that the prosecutrix (name withheld being a case u/s 376 IPC) D/o Sh. Satri Hasta, Village - Rarodi, PS - Kotti, Jharkhand that, who used to work as maid in Rani Bagh through Gopal Placement Agency, Nihal Vihar and used to live with Pintu has given birth to a Female girl child, Pintu is now refusing to live with her. The said information was recorded vide DD No. 33A and the copy of the same was given to Constable Ashwani, who left for the spot. W/SI Sujata was informed, who reached at Guru Gobind Singh Hospital, where NGO Renu met and the prosecutrix was found admitted vide CR No. 10113000900 and was inquired into who made the statement which is to the effect that, she is the resident of the above address and is having her mother, two brothers and two sisters in her family and her father has already died. They are very poor and for this reason, she had come to Delhi about 1½ years ago for work at Gopal Placement Agency, R/Z - G
- 80/21, Nihal Vihar. Gopal had put her on work to take care of an old 2 of 41 3 FIR No. 29/13 PS - Rani Bagh man at House No. A - 34, First Floor, Rishi Nagar and while doing work in the said house, she came to know one person by the name Pintu, aged about 2025 years who used to work in Britania Biscuit Factory and also hailed from the side of her native place. Pintu started coming to meet her oftenly due to which, they came to know each other (Bayan Kiya Ki Mai Pata Uprokat Ki Rehne Wali Hoon Mere Parivaar Mei Meri Maa Va Do Bhai Aur Do Behanein Hain Mere Pita Ji Ka Dehaant Ho Chuka Hai Hum Bahut Gareeb Hain Isliye Mai Kaam Karne Delhi Qareeb 1½ Saal Pehle Gopal Placement Agency R/ZG80/21, Nihal Vihar Aai Thi Gopal Ne Mujhe Makaan No. A34, 1st Floor, Rishi Nagar Ek Budhe Vyakti Ki Dekh Bhal Kaam Par Rakhva Diya Isi Makaan Mei Kaam Karte Karte Meri Pehchan Ek Pintu Naam Ke Aadmi Se Hui Jiski Umar Lagbhag 2025 Saal Hai Weh Britania Biscuit Factory Mei Kaam Karta Hai Pintu Bhi Hamari Taraf Ka Rehne Wala Hai Pintu Aksar Mujhse Milne Aane Laga Jis Se Hamari Acchi Jaan Pehchan Ho Gai). One day, the date she does not recollect, Pintu committed galat kaam with her without her consent and against her will and when she prevented him, on which Pintu made a promise for marriage with her and in this way Pintu kept on committing galat kaam with her. Whenever she used to say to Pintu for 3 of 41 4 FIR No. 29/13 PS - Rani Bagh marriage, Pintu, on one pretext or the other, kept on deferring and kept on forcibly committing galat kaam. During this, she was having 67 months child in her stomach and she became pregnant and started feeling difficulty in doing the household chores and she came back to Gopal Agency and told all about to Gopal and Gopal had gone to his village on the new year. Yesterday, on 22/01/2013, she suddenly felt too much pain in her stomach and she was got admitted in the Hospital by Anita, living in the Gopal Placement Agency, where she gave birth to a female child. Pintu, who works in Britania Biscuit Factory, on the false pretext of marriage had continuously committed galat kaam with her without her consent and against her will. Legal Action be taken against him (Ek Din Jo Taarikh Mujhe Yaad Nahi Pintu Ne Bina Meri Marzi Ke Mere Saath Galat Kaam Kiya Maine Mana Kiya To Pintu Ne Mujhse Shaadi Karne Ka Wada Kiya Issi Tarah Pintu Mujhse Lagataar Galat Kaam Karta Raha. Mai Jab Bhi Shaadi Ke Liye Kehti To Pintu Koi Na Koi Bahana Kar Ke Taalta Raha Aur Zabardasti Galat Kaam Karta Raha. Issi Beech Mere Pait Mei 67 Mahina Ka Bachcha Ho Gya. Mai Garbhwati Ho Gai Mujhe Ghar Ka Kaam Kaaj Karne Mei Pareshani Hone Lagi Mai Gopal Agency Mei Vapas Aa Gai Tatha Gopal Ko Maine Apni Saari Baatein 4 of 41 5 FIR No. 29/13 PS - Rani Bagh Batai Jo Gopal Naye Saal Par Apne Gaon Chala Gaya Aur Kal Dinank 22/01/2013 Ko Achanak Mere Pait Mei Tez Dard Hua Wahi Gopal Ki Placement Agency Mei Rehne Wali Anita Naam Ki Ladki Ne Mujhe Ek Aspataal Mei Bharti Karva Diya Jahan Par Maine Ek Bachchi Ko Janam Diya. Pintu Jo Britania Biscuit Factory Mei Kaam Karta Hai Ne Mere Saath Bina Meri Marzi Ke Zabardasti Mere Saath Shaadi Ka Jhansa De Kar Lagataar Galat Kaam Kiya Hai Jiske Khilaaf Kanooni Karyavahi Ki Jaye). Her statement has been read over to her, understood by her and is correct. On the basis of the statement and from the circumstances finding that offences u/s 376/420 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Sujata. Prosecutrix and her daughter were discharged from the Hospital on 24/01/2013 vide CR No. 1011300091712 and prosecutrix was discharged from the Hospital on 24/01/2013 vide CR No. 10113000900040. Prosecutrix and her daughter were sent to Nirmal Chhaya by the order of the Court. Site plan was prepared at the instance of the prosecutrix. On 25/01/2013, accused Pintu Kumar was arrested and his medical examination was got conducted from Bhagwan Mahavir Hospital vide MLC No. 310/13, CR No. 34650 dated 25/01/2013 and the 5 of 41 6 FIR No. 29/13 PS - Rani Bagh sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession and were sent to the FSL. On 28/01/2013, an application for TIP of the accused Pintu was moved which was fixed for 29/01/2013 and on 29/01/2013, accused Pintu refused for his TIP. On 04/002/2013, IO moved an application to the Director, FSL, Rohini for the DNA Test of the prosecutrix and her newly born child and the same was fixed for 25/02/2013 and after obtaining the order from the Court, prosecutrix and her newly born child after taking out from the Nirmal Chhaya, their DNA Examination was got done. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. Statements of the witnesses were recorded.
Upon completion of the necessary further investigation challan for the offences u/s 376/420 IPC was prepared against accused Pintu Kumar and was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of 6 of 41 7 FIR No. 29/13 PS - Rani Bagh Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376/420 IPC was made out against the accused Pintu Kumar. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 11 witnesses. PW1 - Constable Nitu Kumar, PW2 - ASI Rajender Singh, PW3 - HC Ram Kumar, PW4 - Dr. Sourabh Mukharjee, Sr. Resident, Bhagwan Mahavir Hospital, Pitam Pura, Delhi, PW5 - Dr. Mrinalini Mani, Specialist OBG, Guru Gobind Singh Government Hospital, Raghubir Nagar, New Delhi, PW6 - Constable Ashwani, PW7
- Constable Shish Ram, PW8 - Sh. A. K. Srivastava, Deputy Director, DNA Unit, FSL, Rohini, Delhi, PW9 - Sh. Dharmender Singh, Learned MM, Rohini Courts, Delhi, PW10 - Prosecutrix (name withheld) and PW11 - Dr. Anil Ranjan, CMO, Bhagwan Mahavir Hospital, Delhi.
7 of 41 8 FIR No. 29/13 PS - Rani Bagh
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Constable Nitu Kumar, who deposed that on 28/01/2013, she was posted as Constable at PS Rani Bagh. On that day, on the instructions of IO, she took one sealed pullinda alongwith two sample seals from the MHC(M) for depositing in FSL Rohini vide RC No. 03/21/13. Accordingly, she deposited the same at FSL Rohini and thereafter deposited the acknowledgment receipt with the MHC(M). Till the period, the sealed pullinda remained in her custody, nobody tampered with it.
PW2 - ASI Rajender Singh, who deposed that on 24/01/2013, he was posted as Duty Officer in PS Rani Bagh and was on duty from 12:00 midnight to 8:00 a.m. On that day, at about 01:15 a.m. (midnight), Constable Ashwani handed over to him a Tehrir which was sent by SI Sujata and on the basis of which and on his instructions, the present FIR No. 29/13 was registered u/s 376/420 IPC and after registration of FIR, he handed over the copy of FIR and original rukka to 8 of 41 9 FIR No. 29/13 PS - Rani Bagh Constable Ashwani for handing over the same to SI Sujata for further investigation. He has brought the original FIR register. Copy of the same is Ex. PW2/A, bearing his signature at point 'A'. He made endorsement on the rukka and the same is Ex. PW2/B, bearing his signature at point 'A'.
PW3 - HC Ram Kumar, who deposed that on 25/01/2013, he was posted as MHC(M) at PS Rani Bagh. On that day, W/SI Sujata deposited one sealed pullinda sealed with the seal of BMH Hospital, Govt. of NCT, Pitam Pura, Delhi, alongwith one sample seal in the Malkhana. He made entry at Serial No. 496 of Register No. 19. On 04/02/2013, on the instructions of IO, abovesaid sealed pullianda alongwith sample seal were handed over to Constable Rakesh for depositing the same at FSL Rohini vide RC No. 03/21/13. After depositing the same in the FSL, Constable Rakesh deposited the acknowledgment receipt with him. He has brought the Register Nos. 19 & 21. The copy of relevant entry of Register No. 19 is Ex. PW3/A (Original seen and returned) and the copy of RC of Register No. 21 is Ex. PW3/B (Original seen and returned) and the copy of acknowledgment 9 of 41 10 FIR No. 29/13 PS - Rani Bagh receipt of FSL is Ex. PW3/C (Original seen and returned). Till the period, the sealed pullinda remained in his custody, nobody tampered with it.
PW4 - Dr. Sourabh Mukharjee, Sr. Resident, Bhagwan Mahavir Hospital, Pitam Pura, Delhi, who deposed that on 25/01/2013, one patient Pintu Kumar s/o Krishna Prasad, age 22 years male, was brought to Hospital for medical examination. The patient was initially examined by CMO on duty and thereafter he was referred to SR Surgery, whereupon he examined the patient and after examination, he opined that there is nothing to suggest that patient is incapable of performing sexual intercourse. His opinion is Ex. PW4/A, bearing his signature at point 'A'.
PW5 - Dr. Mrinalini Mani, Specialist OBG, Guru Gobind Singh Government Hospital, Raghubir Nagar, New Delhi, who deposed that on 22/01/2013, she was working as Incharge, Obs. & Gynae Department in G.G.S. Government Hospital. She has seen discharge profile of prosecutrix (name withheld), aged 19 years female, CR No. 10 of 41 11 FIR No. 29/13 PS - Rani Bagh 1011300090040, Admission No. 2013000896. As per discharge profile, the patient/prosecutrix (name withheld) was admitted in the Hospital on 22/01/2013, as a case of nine months pregnancy with labour pains, she was in advance labour and delivered vaginally a female baby at 3:25 p.m. on 22/01/2013. Her postdelivery period was uneventful and she was discharged on 24/01/2013 at 3:02 p.m. with the advise to followup in postnatal clinic, after four weeks, or SOS. The final discharge profile was cleared by Dr. Papri Nath Dass (Medical Officer), which is Ex. PW5/A, bearing her signature at point 'A'. She (PW5) can identify her signature as she has worked with her and have seen her writing and signing during her official course of duties. As per the record - Neonatal Discharge/Transfer Summary. The baby of prosecutrix (name withheld) was also discharged from their Hospital on 24/01/2013 alongwith the mother. The stay of baby was also uneventful, as per record. The Neonatal Discharge/Transfer Summary of the baby of prosecutrix (name withheld) is Ex. PW5/B. PW6 - Constable Ashwani, who deposed that on 23/01/2013, he was posted as Constable in PS Rani Bagh. On that day, 11 of 41 12 FIR No. 29/13 PS - Rani Bagh Duty Officer handed over to him copy of DD No. 33A and thereafter, he reached at Guru Gobind Singh Hospital where he met IO SI Sujata along with prosecutrix (name withheld), NGO Renu Shera and one Anita. He handed over to IO copy of DD No. 33A. IO recorded statement of prosecutrix (name withheld), prepared rukka and handed over to him for getting the FIR registered. He got the FIR registered in the PS and thereafter, he reached in Hospital and handed over to IO the copy of FIR and original rukka. IO got discharged baby of prosecutrix (name withheld) and thereafter, he along with IO, prosecutrix (name withheld), her baby and Anita reached Rohini Court and IO moved an application for sending prosecutrix (name withheld) and her daughter to Nirmal Chhaya. Thereafter, while going to Nari Niketan, prosecutrix (name withheld) had pointed out the house No. A34, I Floor, Rishi Nagar, Rani Bagh and IO prepared the site plan. Thereafter, prosecutrix (name withheld) and her daughter were sent to Nirmal Chhaya. IO recorded his statement.
PW7 - Constable Shish Ram, who deposed that on 25/01/2013, he was posted as Constable in PS Rani Bagh. On that day, 12 of 41 13 FIR No. 29/13 PS - Rani Bagh he along with IO SI Sujata remained in the investigation of the present case. IO received the secret information that accused Pintu is coming in Funny Biscuit Factory and at about 4:50 p.m. accused Pintu was seen while intro (entering) the factory. Thereafter, they entered into the factory and accused Pintu present in the Court was apprehended. He was interrogated and arrested vide arrest memo Ex. PW7/A, his personal search was conducted vide memo Ex. PW7/B and he made disclosure statement Ex. PW7/C all bearing his signature at point 'A'. Thereafter, accused pointed out the place of occurrence A34, Rishi Nagar vide pointing out memo Ex. PW7/D bearing his signature at point 'A'. Accused Pintu was taken to Bhagwan Mahavir Hospital where he was medically examined and after medical examination Doctor handed over sealed pullinda containing exhibits and the same was seized vide memo Ex. PW7/E bearing his signature at point 'A'. Accused Pintu is present in the Court. IO recorded his statement.
PW8 - Sh. A. K. Srivastava, Deputy Director, DNA Unit, FSL, Rohini, Delhi, who deposed that he is M.SC. (Botany) with Special Paper as a cytogenetics having profession training and experience in 13 of 41 14 FIR No. 29/13 PS - Rani Bagh forensic biology, serology DNA Fingerprinting from the last 36 years including 13 years experience of DNA Fingerprinting and more than approximately 2000 cases were reported in DNA fingerprinting. On 28/01/2013 one sealed parcel was received in the FSL vide FSL No. 2013/DNA0633. Parcel No. 1 was sealed with the seal of 'BMH Govt. of NCT of Delhi, Pitam Pura Delhi', containing exhibits '1A' and '1B' said to be of accused. Exhibit '1A' was one cloth parcel sealed with the seal of 'BMH Govt. of NCT of Delhi, Pitam Pura Delhi', containing '1A1', '1A2' and '1A3'. Exhibit '1A1' was damp foul smelling gauze cloth piece having reddish brown stains kept in a test tube. Exhibit '1A2' one test tube returned on examine was not leveled and described. Exhibit '1A3' one test tube returned on examine was not leveled and described. Exhibit '1B' one underwear returned unexamined. Blood samples collected in case FSL 2013/DNA1433 on 25/02/2013. Blood sample of prosecutrix (name withheld) marked as Exhibit '2', blood sample of female baby of prosecutrix (name withheld) marked as Exhibit '3'. Blood sample collected in case FSL 2013/DNA1433 (FM) on 06/01/2014. Blood sample of prosecutrix (name withheld) marked as Exhibit '4'. Blood sample of female baby of prosecutrix (name 14 of 41 15 FIR No. 29/13 PS - Rani Bagh withheld) marked as Exhibit '5' and blood sample of Mr. Pintu marked as Exhibit '6'. All the exhibits were examined by him and submitted his conclusion as "The DNA profiling (STR analysis) performed on the exhibits provided is sufficient concluded. The DNA profile from the source of exhibit '6' (blood sample of accused Pintu) and DNA profile from the source of the exhibit '4' (blood sample of prosecutrix) are biological father and mother of exhibit '5' (blood sample of female baby of prosecutrix). Genotype data of exhibits '4', '5' & '6' is enclosed as Annexure 1. The identification form of female baby girl of prosecutrix (name withheld) in FSL case No. 2013/DNA1433 is Ex. PW8/A. The identification form of prosecutrix (name withheld) in FSL case No. 2013/DNA1433 is Ex. PW8/B. The identification form of female baby girl of prosecutrix (name withheld) in FSL case no. 2013/DNA0633 is Ex. PW8/C. The identification form of prosecutrix (name withheld) in FSL case No. 2013/DNA0633 is Ex. PW8/D. The identification form of Mr. Pintu in FSL case No. 2013/DNA0633 is Ex. PW8/E. The detailed DNA Reports Nos. 2013/DNA0633 & 2013/DNA1433 is Ex. PW8/F bearing his signature at Point 'A'. The Genotype data of exhibits '4', '5' & '6' enclosed as Annexure 1 is Ex. PW8/G bearing his signature 15 of 41 16 FIR No. 29/13 PS - Rani Bagh at Point 'A'.
PW9 - Sh. Dharmender Singh, Learned MM, Rohini Courts, Delhi, who deposed that on 25/02/2013, he was posted as MM in Rohini Court. On that day, an application for recording statement u/s 164 Cr.P.C. of victim/prosecutrix (name withheld) D/o Satri, Aged about 19 Years, R/o Village Rarondi, PS Koti, Ranchi, Jharkhand was marked to him. IO W/SI Sujata produced victim/prosecutrix (name withheld) and identified her and he recorded her statement in this regard. IO was asked to leave the Chamber. He had put certain preliminary questions to the victim and after satisfying himself that she is making the statement voluntarily, he proceeded to record her statement. Her proceedings in this regard is Ex. PW9/A bearing his signature at Point 'A'. Statement of victim/prosecutrix (name withheld) recorded by him is Ex. PW9/B bearing his signature at Point 'A' and the right thumb impression of victim/prosecutrix (name withheld) at Point 'B'. After recording the statement he issued the certificate regarding its correctness and the same is Ex. PW9/C bearing his signature at Point 'A'. Ahlmad was directed to give the copy of the same on proper receipt and directed to send the 16 of 41 17 FIR No. 29/13 PS - Rani Bagh proceedings to the concerned MM in sealed cover vide his order Ex. PW9/D bearing his signature at Point 'A'.
PW10 - Prosecutrix is the victim who deposed some facts regarding the incident and identified her thumb impression at point 'X' on the statement u/s 164 Cr.P.C. Ex. PW9/B but did not support the prosecution and was also crossexamined by the Learned Addl. PP for State.
PW11 - Dr. Anil Ranjan, CMO, Bhagwan Mahavir Hospital, Delhi, who deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. N. K. Kaushal (who is under suspension). He is acquainted with the handwriting and signatures of Dr. N. K. Kaushal as he (PW11) has seen him signing and writing during the official course of the duties. As per the MLC dated 25/01/2013 of the patient Pintu Kumar already Ex. PW4/A, Pintu Kumar was examined by Dr. N. K. Kaushal and no injury was observed on the body of Pintu Kumar at the time of his examination. The notice (notes) in the encircled portion 'X' to 'X1' is in the handwriting of Dr. N. K. Kaushal and bears 17 of 41 18 FIR No. 29/13 PS - Rani Bagh his signature at point 'B'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Pintu Kumar was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that the prosecutrix has not supported the prosecution and the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused on all the charges levelled against him.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable 18 of 41 19 FIR No. 29/13 PS - Rani Bagh doubt.
9. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Ms. Sadhna Bhatia, Learned Amicus Curiae for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/420 IPC against the accused Pintu Kumar is that on 9/10 months prior to 23/01/2013 at A34, 1st Floor, Rishi Nagar, Rani Bagh, Delhi, within the jurisdiction of PS - Rani Bagh, he committed rape upon the prosecutrix (name withheld) D/o Sh. Satri Hasra, aged about 19 years without her consent and against her will and thereafter continued to commit rape upon her on the false pretext to marry with her, in consequence of which she became pregnant and delivered a baby girl.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the 19 of 41 20 FIR No. 29/13 PS - Rani Bagh interest of justice.
AGE OF THE PROSECUTRIX
12. PW10 - prosecutrix in her statement recorded in the Court on 05/09/2014 while giving her particulars has stated her age as 20 years.
Since PW10 - prosecutrix has stated her age as 20 years on 05/09/2014 at the time of recording her evidence/statement in the Court and the alleged incident is of about 9/10 month prior to 23/01/2013, on simple arithmetical calculation, the age of the prosecutrix comes to around 18 years as on the date of the alleged incident about 9/10 month prior to 23/01/2013.
Moreover, the said factum of age of PW10 - prosecutrix has also not been disputed by accused. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW10 - prosecutrix was aged around 18 years as on the date of the alleged incident about 9/10 month prior to 23/01/2013.
20 of 41 21 FIR No. 29/13 PS - Rani Bagh MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW5 - Dr. Mrinalini Mani, Specialist OBG, Guru Gobind Singh Government Hospital, Raghubir Nagar, New Delhi, has deposed that on 22/01/2013, she was working as Incharge, Obs. & Gynae Department in G.G.S. Government Hospital. She has seen discharge profile of prosecutrix (name withheld), aged 19 years female, CR No. 1011300090040, Admission No. 2013000896. As per discharge profile, the patient/prosecutrix (name withheld) was admitted in the Hospital on 22/01/2013, as a case of nine months pregnancy with labour pains, she was in advance labour and delivered vaginally a female baby at 3:25 p.m. on 22/01/2013. Her postdelivery period was uneventful and she was discharged on 24/01/2013 at 3:02 p.m. with the advise to followup in postnatal clinic, after four weeks, or SOS. The final discharge profile was cleared by Dr. Papri Nath Dass (Medical Officer), which is Ex. PW5/A, bearing her signature at point 'A'. She (PW5) can identify her signature as she has worked with her and have seen her writing and signing during her official course of duties. As per the record - Neonatal Discharge/Transfer Summary. The baby of prosecutrix (name withheld) was also discharged from their Hospital on 24/01/2013 21 of 41 22 FIR No. 29/13 PS - Rani Bagh alongwith the mother. The stay of baby was also uneventful, as per record. The Neonatal Discharge/Transfer Summary of the baby of prosecutrix (name withheld) is Ex. PW5/B. Despite grant of opportunity, PW5 - Dr. Mrinalini Mani was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the final discharge profile vide Ex. PW5/A of the prosecutrix from GGS Government Hospital and the Neonatal Discharge/Transfer Summary of the baby of the prosecutrix from GGS Government Hospital stands proved on the record.
VIRILITY OF THE ACCUSED PINTU KUMAR
14. PW11 - Dr. Anil Ranjan, CMO, Bhagwan Mahavir Hospital, Delhi, has deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. N. K. Kaushal (who is under suspension). He is acquainted with the handwriting and signatures of Dr. N. K. Kaushal as he (PW11) has seen him signing and writing during the official course of the duties. As per the MLC dated 25/01/2013 of the 22 of 41 23 FIR No. 29/13 PS - Rani Bagh patient Pintu Kumar already Ex. PW4/A, Pintu Kumar was examined by Dr. N. K. Kaushal and no injury was observed on the body of Pintu Kumar at the time of his examination. The notice (notes) in the encircled portion 'X' to 'X1' is in the handwriting of Dr. N. K. Kaushal and bears his signature at point 'B'.
PW4 - Dr. Sourabh Mukharjee, Sr. Resident, Bhagwan Mahavir Hospital, Pitam Pura, Delhi, who deposed that on 25/01/2013, one patient Pintu Kumar s/o Krishna Prasad, age 22 years male, was brought to Hospital for medical examination. The patient was initially examined by CMO on duty and thereafter he was referred to SR Surgery, whereupon he examined the patient and after examination, he opined that there is nothing to suggest that patient is incapable of performing sexual intercourse. His opinion is Ex. PW4/A, bearing his signature at point 'A'.
Despite grant of opportunity, PW11 - Dr. Anil Ranjan and PW4 - Dr. Sourabh Mukharjee were not crossexamined on behalf of the accused.
23 of 41 24 FIR No. 29/13 PS - Rani Bagh In view of above and in the circumstances, it stands proved on the record that accused Pintu Kumar was capable of performing sexual intercourse.
DNA FINGER PRINTING EVIDENCE
15. PW8 - Sh. A. K. Srivastava, Deputy Director, DNA Unit, FSL, Rohini, Delhi has proved the identification form of female baby girl of prosecutrix (name withheld) in FSL case No. 2013/DNA1433 as Ex. PW8/A. The identification form of prosecutrix (name withheld) in FSL case No. 2013/DNA1433 as Ex. PW8/B. The identification form of female baby girl of prosecutrix (name withheld) in FSL case no. 2013/DNA0633 as Ex. PW8/C. The identification form of prosecutrix (name withheld) in FSL case No. 2013/DNA0633 as Ex. PW8/D. The identification form of Mr. Pintu in FSL case No. 2013/DNA0633 as Ex. PW8/E. The detailed DNA Reports Nos. 2013/DNA0633 & 2013/DNA1433 as Ex. PW8/F bearing his signature at Point 'A'. The Genotype data of exhibits '4', '5' & '6' enclosed as Annexure 1 as Ex. PW8/G bearing his signature at Point 'A'.
24 of 41 25 FIR No. 29/13 PS - Rani Bagh As per DNA Finger Printing Report Ex. PW8/F the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Forensic parcels received in Case FSL 2013/DNA - 0633 on 28/01/2013 Parcel 1 : One cloth parcel sealed with the seal of "BMH GOVT OF NCT OF DELHI PITAMPURA DELHI" containing exhibits '1A' & '1B', said to be of accused.
Exhibit 1A : One cloth parcel in turn sealed with the seal of "BMH GOVT OF NCT OF DELHI PITAMPURA DELHI" containing exhibits 1A1, 1A2 & 1A3.
Exhibit 1A1: Damp foul smelling gauze cloth piece having reddish brown stains, kept in a test tube.
Exhibit 1A2: One test tube returned unexamined was not labeled and described.
Exhibit 1A3: One test tube returned unexamined was not labeled and described.
Exhibit 1B : One underwear returned unexamined. Blood samples collected in case FSL 2013/DNA1433 on 25/02/2013.
25 of 41 26 FIR No. 29/13 PS - Rani Bagh Name of source Collected on Sample No. Exhibit Blood sample of prosecutrix (name withheld) 25/02/2013 1 2 Identification Form No. 1 Blood sample of Female Baby of prosecutrix (name withheld) 25/02/2013 2 3 Identification Form No. 2 Blood samples collected in case FSL 2013/DNA1433(FM) on 06/01/2014.
Name of source Collected on Sample No. Exhibit Blood sample of prosecutrix (name withheld) 06/01/2014 3 4 Identification Form No. 3 Blood sample of Female Baby of prosecutrix (name withheld) 06/01/2014 4 5 Identification Form No. 4 Blood sample of Mr. Pintu Identification Form No. 5 06/01/2014 5 6 DNA EXAMINATION The source of exhibit '1A1', '2', '3', '4', '5' & '6' were subjected to DNA isolation. DNA was isolated from the source of exhibits '4', '5' & '6'. However, DNA could not be isolated from the 26 of 41 27 FIR No. 29/13 PS - Rani Bagh source of exhibit '1A1', '2' & '3'. DNA Profile of the exhibits '4', '5' & '6' were prepared by using Amp Fl STR Identifiler PCR Amplification Kit. STR analysis was used for the sample. Data was analyzed by using GeneMapper IDX Software.
RESULTS OF EXAMINATION One set of alleles from the source of exhibit '4' (Blood sample of prosecutrix (name withheld)) and one set of alleles from the source of exhibit '6' (Blood sample of accused Pintu) are accounted in alleles from the source of exhibit '5' (Blood sample of female baby of prosecutrix (name withheld)).
CONCLUSION The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA Profile from the source of exhibit '6' (Blood sample of accused Pintu) and DNA profile from the source of exhibit '4' (Blood sample of prosecutrix (name withheld)) are biological father and mother of source of exhibit '5' (Blood sample of female baby of prosecutrix (name withheld)). ENCLOSURE : Annexure 1 Genotype data of exhibit '4', '5' & '6'. Note : The remnants of the exhibit have been sealed with seal of "AKS FSL DELHI".
27 of 41 28 FIR No. 29/13 PS - Rani Bagh Genotype analysis for establishing identity of accused using MICROSATELLITES Ex. PW8/G reads as under :
i) D8S1179 ii) D21S11 iii) D7S820 iv) CSF1P0 v) D3S1358 vi) TH01
vii) D13S317 viii) D16S539 ix) D2S1338 x) D19S433 xi) vWA xii) TP0X xiii) D18S51 xiv) D5S818 xv) FGA AND AMELOGENIN Loci Blood sample of Blood sample of Blood sample of accused Pintu Female baby of prosecutrix (name Exhibit 6 prosecutrix (name withheld) Allele Data withheld) Exhibit 4 Exhibit 5 Allele Data Allele Data D8S1179 12 1 10 14 10 10 D21S11 28 33.2 30 33.2 30 31.2 D7S820 8 11 8 11 8 12 CSF1P0 9 9 9 10 10 12 D3S1358 15 16 15 17 15 17 TH01 6 9.3 6 9.3 6 7 D13S317 10 11 8 10 8 13 D16S539 11 11 11 12 9 12 D2S1338 20 22 22 25 19 25 D19S433 13 13 13 14 14 15 28 of 41 29 FIR No. 29/13 PS - Rani Bagh vWA 14 18 14 18 17 18 TP0X 10 11 10 10 10 11 D18S51 12 15 12 15 15 15 D5S818 11 12 11 11 11 13 FGA 24 26 23 26 23 25 AMELOGENIN X Y X X X X The allelic date of the source of the exhibit 4 are ACCOUNTED in the allele date of the source of exhibit 1a & 1b On careful perusal and analysis of DNA Finger Printing Evidence on record, it clearly shows that one set of alleles from the source of exhibit '4' (Blood sample of prosecutrix (name withheld)) and one set of alleles from the source of exhibit '6' (Blood sample of accused Pintu) are accounted in alleles from the source of exhibit '5' (Blood sample of female baby of prosecutrix (name withheld)) and that the DNA profiling (STR analysis) performed on the exhibits is sufficient to conclude that the DNA Profile from the source of exhibit '6' (Blood sample of accused Pintu) and DNA profile from the source of exhibit '4' (Blood sample of prosecutrix (name withheld)) are biological father 29 of 41 30 FIR No. 29/13 PS - Rani Bagh and mother of source of exhibit '5' (Blood sample of female baby of prosecutrix (name withheld)).
On a conjoint reading of the final discharge profile vide Ex. PW5/A of the prosecutrix from GGS Government Hospital, the Neonatal Discharge/Transfer Summary of the baby of the prosecutrix from GGS Government Hospital together with the MLC of the accused Pintu Ex. PW4/A, in the light of the DNA Report Ex. PW8/F and the Genotype Data Ex. PW8/G, it clearly indicates that after the committal of the sexual intercourse upon the prosecutrix by accused Pintu Kumar, she became pregnant and delivered a female baby whereby the genes were inherited by the new born baby from accused Pintu Kumar during the process of fertilization of ovum of the prosecutrix by the sperm released by accused Pintu Kumar.
In the circumstances, it stands clearly established on the record that accused Pintu Kumar committed sexual intercourse upon the prosecutrix by complete penetration of penis with the emission of semen resulting in the fertilization of the ovum of the 30 of 41 31 FIR No. 29/13 PS - Rani Bagh prosecutrix with the sperm of accused Pintu Kumar resulting in her pregnancy and delivery of the female baby and of the inheritance of the genes from accused Pintu Kumar thereby he (accused Pintu Kumar) is the biological father of the female baby born to the prosecutrix.
As per the DNA Report Ex. PW8/F, prosecution has discharged its initial burden of proving the accused as the biological father of the female baby born to the prosecutrix.
16. Now let the testimony of PW10 Prosecutrix be perused and analysed.
PW10 prosecutrix, in her examinationinchief recorded on 05/09/2014 has deposed which is reproduced and reads as under : "Two/three years back I was brought to Delhi by Anita from Jharkhand and I was working as maid servant at Rani Bagh, Delhi. I know accused Pintu, who was also working as a servant in another house in Rani Bagh and I met him during the course of my working as maid servant in Rani Bagh, Delhi. I can identify accused Pintu, if shown to me.
At this stage, the wooden partition has been removed.
31 of 41 32 FIR No. 29/13 PS - Rani Bagh Accused Pintu is present in the court (correctly identified).
The wooden partition now has been restored to its original position.
Accused Pintu developed the friendship with me and also promised to marry with me and later on he married with me in a small Temple situated in the surrounding of Rani Bagh, Delhi. After marriage accused Pintu started living with me in the same house in which I was working as a maid servant. Physical relations were established by accused Pintu with me after my marriage with him. The name of the girl child which I am carrying in my lap is Princee. Princee is the daughter of accused Pintu. I did not give any statement to the Police.
My statement was also recorded U/s 164 Cr.P.C by the Learned MM already Ex. PW9/B bearing my thumb impression at Point 'X'."
PW10 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "I am illiterate. The statement Mark PW10/PX is bearing my thumb impression at Point 'A'. The statement Mark PW10/PX was not read over to me before obtaining my thumb impression on it. I had put my thumb impression at Point 'A' on statement Mark PW10/PX at the instance of the Police. I came in Gopal Placement Agency, Delhi from Jharkhand. It is correct that Gopal Placement Agency had put me for 32 of 41 33 FIR No. 29/13 PS - Rani Bagh taking care of an old person in a house in Rani Bagh, Delhi. It is correct that accused Pintu was working in Britania Biscuit Factory, Delhi, at that time. It is correct that accused Pintu used to come to meet me at the place where I am working and he used to talk with me to marry with me. Accused Pintu did not commit any galat kaam with me prior to my marriage with him. It is wrong to suggest that I had stated to Police in my statement that accused Pintu committed rape upon me against my wishes on the pretext of marriage. It is wrong to suggest that I had stated to the Police in my statement that accused Pintu committed rape several times upon me. It is wrong to suggest that whenever I resisted for the same and asked him to marry then he always tried to avoid the same.
At this stage, Portion 'A1 to A2' of the statement Mark PW10/PX is read over to the witness, who denies of having made such statement to the Police.
It is wrong to suggest that due to the committal of the rape upon me by accused Pintu I became pregnant and thereafter, I went to the Gopal Placement Agency and informed about the misdeed of accused Pintu. It is wrong to suggest that accused Pintu never performed marriage with me in any Temple. Photographs of my marriage with accused Pintu were also taken. Vol. the photographs may be available in the office of Gopal Placement Agency. I have not brought photographs of my marriage today. It is wrong to suggest that I have not brought the photographs of my marriage as no my marriage ever took place with accused Pintu or that no photographs of my marriage are available at the office of Gopal Placement Agency. I have not stated to the Police for taking action against accused Pintu. It is wrong to suggest that I gave statement Mark PW10/PX to Police or that it was read over to me by the Police or that I put my thumb impression on the same at Point 'A' after finding it to be correct or that I have not put my thumb impression at 33 of 41 34 FIR No. 29/13 PS - Rani Bagh Point 'A' on the statement Mark PW10/PX at the instance of the Police. I have not stated to the Police that accused Pintu has committed 'galat kaam' with me. Vol. I have married with accused Pintu and accused Pintu is the father of my daughter Princee and I want to live with accused Pintu. I have not stated in my statement u/s 164 Cr.P.C. Ex. PW9/B that accused Pintu had promised to marry with me and on the pretext of marriage he established physical relations with me but did not marry with me. (Confronted from Portion 'X to X1' of the statement Ex. PW9/B, where it is so recorded). I had stated in my statement u/s 164 Cr.P.C. that accused Pintu has performed the marriage with me (Confronted with the statement u/s 164 Cr.P.C. Ex. PW9/B, where it is not so recorded). It is wrong to suggest that accused Pintu has never performed marriage with me and for this reason I did not state this fact in my statement u/s 164 Cr.P.C. It is wrong to suggest that I am intentionally concealing the true facts and giving a statement favourable to the accused."
PW10 - Prosecutrix during her crossexamination by the Learned Counsel for the accused has deposed that : "Accused Pintu has not committed any 'galat kaam' with me as alleged. It is correct that the physical relations were established between me and accused Pintu after our marriage. It is correct that I have married with accused Pintu and accused Pintu is the father of my daughter Princee and I want to live with accused Pintu."
34 of 41 35 FIR No. 29/13 PS - Rani Bagh On analysing the entire testimony of PW10 - prosecutrix, it is clearly indicated that two/three years back she was brought to Delhi by Anita from Jharkhand and she was working as maid servant at Rani Bagh, Delhi. She knows accused Pintu, who was also working as a servant in another house in Rani Bagh and she met him during the course of her working as maid servant in Rani Bagh, Delhi. She correctly identified the accused Pintu present in the Court. Accused Pintu developed the friendship with her and also promised to marry with her and later on he married with her in a small Temple situated in the surrounding of Rani Bagh, Delhi. After marriage accused Pintu started living with her in the same house in which she was working as a maid servant. Physical relations were established by accused Pintu with her after her marriage with him. The name of the girl child which she was carrying in her lap is Princee. Princee is the daughter of accused Pintu. She did not give any statement to the Police. Her statement u/s 164 Cr.P.C. Ex. PW9/B also does not support the case of the prosecution.
During her crossexamination by the Learned Addl. PP for the State, she admitted it to be correct that accused Pintu was working in 35 of 41 36 FIR No. 29/13 PS - Rani Bagh Britania Biscuit Factory, Delhi, at that time and that accused Pintu used to come to meet her at the place where she was working and he used to talk with her to marry with her. She specifically deposed that accused Pintu did not commit any galat kaam with her prior to her marriage with him. She negated the suggestions that she had stated to Police in her statement that accused Pintu committed rape upon her against her wishes on the pretext of marriage or that she had stated to the Police in her statement that accused Pintu committed rape several times upon her or that whenever she resisted for the same and asked him to marry then he always tried to avoid the same or that due to the committal of the rape upon her by accused Pintu she became pregnant and thereafter, she went to the Gopal Placement Agency and informed about the misdeed of accused Pintu or that accused Pintu never performed marriage with her in any Temple.
During her crossexamination by the Learned Counsel for the accused PW10 - prosecutrix has categorically deposed that accused Pintu has not committed any 'galat kaam' with her as alleged. It is correct that the physical relations were established between her and 36 of 41 37 FIR No. 29/13 PS - Rani Bagh accused Pintu after their marriage. It is correct that she has married with accused Pintu and accused Pintu is the father of her daughter Princee and she wants to live with accused Pintu.
As discussed hereinbefore PW10 - prosecutrix was found to be aged around 18 years as on the date of the alleged incident about 9/10 month prior to 23/01/2013, from the testimony of PW10 - prosecutrix nothing is being indicated that about 9/10 months prior to 23/01/2013 at A34, 1st Floor, Rishi Nagar, Rani Bagh, Delhi, accused Pintu Kumar committed rape upon her without her consent and against her will or that thereafter continued to commit rape upon her on the false pretext to marry with her or that in consequence of which she became pregnant and delivered a baby girl.
17. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in 37 of 41 38 FIR No. 29/13 PS - Rani Bagh Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
38 of 41 39 FIR No. 29/13 PS - Rani Bagh In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW10 - Prosecutrix in the light of the final discharge profile vide Ex. PW5/A of the prosecutrix from GGS Government Hospital, Neonatal Discharge/Transfer Summary of the baby of the prosecutrix from GGS Government Hospital, DNA Fingerprinting Evidence Ex. PW8/F and Genotype Data Ex. PW8/G together with the MLC of accused Pintu Kumar Ex. PW4/A, as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda stands proved consequent upon which pregnancy occurred resulting in the delivery of a baby.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by 39 of 41 40 FIR No. 29/13 PS - Rani Bagh accused Pintu Kumar with PW10 - Prosecutrix with her consent, whereupon PW10 - Prosecutrix became pregnant and delivered a baby whose DNA profiling matched with accused Pintu Kumar as a Biological Father.
18. On careful perusal and analysis of the entire evidence on record, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Pintu Kumar. The hostility of PW10 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that about 9/10 month prior to 23/01/2013, at A34, 1st Floor, Rishi Nagar, Rani Bagh, Delhi, accused Pintu Kumar committed rape upon PW10 - prosecutrix, aged around 18 years without her consent and against her will or that thereafter continued to commit rape upon her on the false pretext to marry with her or that in consequence of which she became pregnant and delivered a baby girl.
I, accordingly, acquit accused Pintu Kumar for the offences punishable u/s 376/420 IPC.
40 of 41 41 FIR No. 29/13 PS - Rani Bagh
19. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Pintu Kumar in the commission of the offences u/s 376/420 IPC is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis the prosecution has failed to bring the guilt home to the accused Pintu Kumar beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Pintu Kumar. I, therefore acquit accused Pintu Kumar for the offences punishable u/s 376/420 IPC after giving him the benefit of doubt. Accused Pintu Kumar is in JC. He be released forthwith, if not wanted in any other case. However, on his release, accused Pintu Kumar shall appear in the Court and shall execute a Bail Bond in the sum of Rs. 20,000/ u/s 437A Cr.P.C. which shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment. Announced in the open Court (MAHESH CHANDER GUPTA) on 16th Day of December, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 41 of 41