Delhi District Court
State vs . Tarun Kumar on 29 August, 2014
1
FIR No. 635/12
PS - Narela
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 237/13
Unique ID No. : 02404R00122702013
State Vs. Tarun Kumar
S/o Late Sh. Ram Niwas
R/o Khasra No. 11/12/02,
Gali No. 11B,
Swatanter Nagar, Narela,
Delhi
FIR No. : 635/12
Police Station : Narela
Under Sections : 376/420 IPC
Date of committal to session Court : 10/05/2013
Date on which judgment reserved : 23/08/2014
Date on which judgment announced : 29/08/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 36 2 FIR No. 635/12 PS - Narela report under section 173 Cr.P.C. is as under : That on 22/11/2012, PSI Seema was handed over DD No. 26A dated 22/11/2012 who alongwith HC Santro, Constable Jasvinder and the prosecutrix (name withheld) reached at SRHC Hospital, for the medical examination of the prosecutrix and SI Suman also reached there to whom PSI Seema produced the DD No. 26A as well as the prosecutrix and after going through the DD No. 26A SI Suman got conducted the medical examination of the prosecutrix vide MLC No. 333/4/12 in which the Doctor had endorsed, 'Alleged history of sexual assault by a person (Tarun) and hymen torn'. Thereafter, the prosecutrix (name withheld being a case u/s 376 IPC) D/o Damodar Prashad, R/o Gali No. 11B, Swatantra Nagar, Narela, Delhi 110040, Aged 20 Years made the statement which is to the effect that, she lives with her family at the above address and is the student of B.Com IInd year. In her neighbourhood one boy Tarun Dahiya lived with his family. They know each other and Tarun used to say to her that he loves her very much and wants to marry with her (Hum Dono Ek Dusre Ko Jante Hain Aur Tarun Mujhse Kehta Hai Ki Weh Mujh Se Bahut Pyar Karta Hai Aur Shadi Karna Chahata Hai). On the said saying, Tarun for the last three years 2 of 36 3 FIR No. 635/12 PS - Narela despite her refusal had repeatedly forcibly made physical relations with her and whenever she talked of performing the marriage then Tarun used to make one or the other pretext (Isi Baat Ko Kehkar Pichle Teen Saal Se Tarun Ne Mere Mana Karne Kai Bawajood Bhi Mere Se Zabardasti Sharirik Sambandh Bar Bar Banae Hain Aur Jab Mai Shadi Ki Baat Karti Tabhi Tarun Koi Bhi Bahana Bana Diya Karta). On 19/11/2012 in the evening at about 6:00 p.m. he took her away by calling her from her house that 'tomorrow on 20/11/2012 he will perform Court marriage with her and took her in a Hotel at Paharganj, whose address she does not know (Dinank 19/11/2012 Lo Sham Karib 6:00 Baje Mujhe Mere Ghar Se Bulakar Le Gaya Ki Kal Dinank 20/11/2012 Ko Mai Tere Sath Court Mai Shadi Karoga Aur Paharganj Ek Hotel Mei Le Gaya Jiska Pata Mai Nahi Janti). On 20/11/2012, in the day time at about 11:00 a.m. after bringing her from Paharganj and leaving her in a market near Tis Hazari Courts went away saying that in a short time he will bring his bike after getting it turn from ahead (Dinak 20/11/2012 Ko Din Mai Karib 11:00 Baje Paharganj Se Lakar Mujhe Tis Hazari Court Ke Paas Ek Market Mai Chodkar Chala Gaya Usne Mujhse Kaha Ki Weh Thodi Der Mei Aage Se Bike Ko Ghuma Kar Layega). After waiting for a long time 3 of 36 4 FIR No. 635/12 PS - Narela there when Tarun did not return then she in the afternoon had gone at Azadpur Railway Station and went away in the train going to Sonipat and in the train some ladies made her too much understand on which she returned to her house at Narela (Waha Kafi Samay Intazaar Karne Ke Baad Bhi Jab Tarun Vapas Nahi Aaya To Mai Dopehar Ke Baad Mai Azadpur Railway Station Par Chali Gai Aur Sonipat Jane Wali Gadi Me Chali Gai Aur Rail Mei Kai Aurton Ne Mujhe Kafi Samjhaya To Mai Vapis Apne Ghar Narela Aa Gai). She had waited Tarun till this time but he did not come nor he performed marriage with her and he on the false pretext of marriage had forcibly established physical relations with her and he always did the use of condom (Maine Ab Tak Tarun Ka Intazaar Kiya Parantu Weh Nahi Aaya Aur Na Hi Mere Sath Shadi Ki Usne Shadi Ka Jhansa Dekar Mere Sath Zabardasti Sharirik Sambandh Banae Aur Hamesha Condom Ka Paryog Karta Tha). Legal action be taken against Tarun. Statement has been heard and is correct. On the basis of the statement, from the inspection of the MLC and the DD No. 26A, on finding that offence u/s 376 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Suman. During the course of investigation statements of the witnesses 4 of 36 5 FIR No. 635/12 PS - Narela were recorded. The sealed exhibits handed over by the Doctor after the medical examination of the prosecutrix were deposited in the malkhana. On finding sufficient evidence against accused Tarun Kumar he was arrested and his medical examination was got conducted and the sealed exhibits handed over by the doctor were deposited in the malkhana. Accused Tarun Kumar was released on anticipatory bail. The prosecutrix and accused have performed the marriage. The sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offences u/s 376/420 IPC was prepared against accused Tarun 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 Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after 5 of 36 6 FIR No. 635/12 PS - Narela hearing on charge prima facie a case u/s 376/420 IPC was made out against accused Tarun Kumar. 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 13 witnesses. PW1 Constable Narain Singh, PW2 ASI Naresh Kumar, PW3 HC Chetan Kumar, PW4 Constable Jasvinder, PW5 W/HC Santosh, PW6 Dr. Awdesh Kumar, Medical Officer, SRHC Hospital, Narela, Delhi, PW7 Dr. Nipun, SR (Obs. & Gynae), SRHC Hospital, Narela, Delhi, PW8 HC Rajesh, PW9 - Prosecutrix, PW10 - SI Seema, PW11 - SI Suman, PW12 - Sh. V. Shakarnarayanan, SSO, FSL, Delhi and PW13 - Constable Ajay Kumar.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Constable Narain Singh, who deposed that on 10/12/2012, he was posted as Constable in PS Narela. On that day, on the instructions of IO, he took the sealed pullindas containing the 6 of 36 7 FIR No. 635/12 PS - Narela exhibits from the MHC(M) for depositing it in FSL Rohini vide RC No. 242/12/21. Accordingly, he deposited the same in FSL and thereafter deposited the acknowledgment receipt with MHC(M). The sealed pullinda remained intact during his custody.
PW2 ASI Naresh Kumar, who deposed that on 23/11/2012, he was posted as Duty Officer in PS Narela and was on duty from 12:00 midnight to 8:00 a.m. On that day, at about 12:50 a.m., he received a rukka from Constable Jaswinder which was sent by SI Suman on the basis of which and on his instructions, present FIR No. 635/12 u/s 376 IPC was registered. After registration of FIR, he handed over the copy of FIR and original rukka to Constable Jaswinder for handing over the same to SI Suman. He has brought the original FIR Register. Copy of FIR is Ex. PW2/A, bearing his signature at point 'A' (OSR). He made the endorsement on the rukka and the same is Ex. PW2/B. PW3 HC Chetan Kumar, who deposed that on 27/12/2012, he was posted as Head Constable in PS Narela. On that day, accused Tarun Kumar, present in the Court was formally arrested as he was on 7 of 36 8 FIR No. 635/12 PS - Narela Anticipatory Bail vide arrest memo Ex. PW3/A and his personal search was conducted vide memo Ex. PW3/B, bearing his signature at point 'A'. Accused made disclosure statement Ex. PW3/C, bearing his signature at point 'A'. He took the accused Tarun in SRHC Hospital where he was medically examined. After medical examination, Doctor handed over the sealed pullinda containing exhibits which he handed over to the IO and same were seized vide memo Ex. PW3/D, bearing his signature at point 'A'.
PW4 Constable Jasvinder, who deposed that on 23/11/2012, he was posted as Constable at PS Narela. On that day, he alongwith SI Suman remained in the investigation of the present case. IO SI Suman handed over to him a rukka for getting the FIR registered. He got the FIR registered in the PS and thereafter he reached at H. No. 267, Gali No. 11B, Swatantra Nagar, Narela and handed over to IO the copy of the FIR and rukka. IO recorded his statement.
PW5 W/HC Santosh, who deposed that on 23/11/2012, she was posted as Constable at PS Narela. On that day, he alongwith PSI 8 of 36 9 FIR No. 635/12 PS - Narela Seema, complainant Krishna reached at SRHC Hospital where SI Suman also reached there. Complainant was medically examined and after medical examination Doctor handed over the sealed pullinda containing exhibits and same were seized vide memo Ex. PW5/A bearing his signature at point 'A'.
PW6 Dr. Awdesh Kumar, Medical Officer, SRHC Hospital, Narela, Delhi, who deposed that on 27/12/2012, one patient Tarun Kumar S/o Sri Ram Niwas, Age 21 years male was brought to Hospital for medical examination. He examined the patient and after examination, he opined that there is nothing to suggest that patient is incapable of performing sexual intercourse. He prepared the MLC Ex. PW6/A, bearing his signature at point 'A'. Samples were taken, sealed and handed over to concerned Police official.
PW7 Dr. Nipun, SR (Obs. & Gynae), SRHC Hospital, Narela, Delhi, who deposed that on 22/11/2012, one patient Krishna D/o Damodar, age 20 years was brought to Hospital for medical examination. According to patient she has history of sexual assault by a person name 9 of 36 10 FIR No. 635/12 PS - Narela Tarun to whom she was staying willingly since four years. On examination : hymen tear present and it seems to be habitual, no sign of injury was present. All vaginal and local smears and samples collected and sent for pathological examination. Patient has refused P/V examination and urine pregnancy test was negative. He prepared the MLC and the same is Ex. PW7/A, bearing his signature at point 'A'. He also prepared the Sexual Assault Evidence Collection Kit (SAECK) and the same is Ex. PW7/B, bearing his signature at point 'A'.
PW8 HC Rajesh, who deposed that on 23/11/2012, he was posted as MHC(M) in PS Narela. On that day, SI Suman deposited two sealed pullindas alongwith sample seal in the Malkhana. He made entry at Serial No. 675 in Register No. 19. On 27/12/2012, SI Suman deposited one sealed pulinda alongwith sample seal in the Malkhana. He made entry at Serial No. 739 in Register No. 19. On 10/12/2012, on the instructions of IO, two sealed pullindas alongwith sample seal were handed over to Constable Narain for depositing the same in the FSL, Rohini vide RC No. 242/21/12. After depositing the same in FSL, he deposited the acknowledgment receipt of the pullinda with him. On 10 of 36 11 FIR No. 635/12 PS - Narela 08/01/2013, on the instructions of IO, one sealed pullinda alongwith sample seal were handed over to Constable Ajay for depositing the same in the FSL, Rohini vide RC No. 04/21/13. After depositing the same in FSL, he deposited the acknowledgment receipt of the pullinda with him. He has brought the Register No. 19 and 21. The copy of the relevant entries of Register No. 19 are collectively Ex. PW8/A. The copy of relevant entries of Register No. 21 are collectively Ex. PW8/B. Copy of the acknowledgment receipts are collectively Ex. PW8/C (OSR). Sealed pullindas remained intact during his custody.
PW9 - Prosecutrix is the victim who deposed some facts regarding the incident but did not support the prosecution and was also crossexamined by the Learned Addl. PP for State.
PW10 - SI Seema, who deposed that on 22/11/2012, she was present in the PS Narela. Duty Officer of the PS had handed over her copy of DD No. 26A alongwith victim/prosecutrix (name withheld) D/o Damodar Prasad. As per instructions of the SHO victim/prosecutrix (name withheld) was taken to SRHC Hospital for her medical 11 of 36 12 FIR No. 635/12 PS - Narela examination. SI Suman also reached at SRHC Hospital and she had handed over the victim to her and also given her copy of DD No. 26A for investigation. Her statement was recorded in the Police Station.
PW11 - SI Suman, who deposed that on 22/11/2012, she was posted at PS South Rohini. As per the instructions of Senior Officer she reached SRHC Hospital to attend DD No. 26A dated 22/11/2012, 9:35 p.m., PS Narela. As per instructions, she reached SRHC Hospital and there she met with PSI Seema, who was already present there and was attending the aforesaid call. She had handed over her copy of DD No. 26A for investigation. The attested copy of DD No. 26A is already on judicial record and is now Ex. PW11/A. At that time in the SRHC Hospital victim of the case Krishna and HC Santro were also present there. She moved the application and got the medical examination of the victim through HC Santro. She recorded statement of victim/prosecutrix (name withheld) and same is already Ex. PW9/A bearing signatures of victim at Point 'A' and her signatures at Point 'B'. She made her endorsement beneath the statement of the complainant and prepared rukka. Rukka is now Ex. PW11/B bearing her signatures at 12 of 36 13 FIR No. 635/12 PS - Narela Point 'A'. Constable Jasvinder was also called from the PS to whom rukka was given and was sent to PS Narela for the registration of the FIR. Thereafter, she alongwith victim and HC Santro and PSI Seema reached at the house of victim i.e H. No. 267, Gali No. 11B, Swatantra Nagar, Narela. At the instance of victim site plan was prepared. Same is now Ex. PW11/C bearing her signatures at Point 'A' signatures of victim at Point 'B'. Constable Jasvinder also reached at the place of incident and handed over him copy of FIR and rukka. Copy of FIR is already Ex. PW2/A. They made efforts for the search of the accused Tarun Kumar but he could not be apprehended. Supplementary statement of victim was recorded. Thereafter, she left the spot with the Police staff and reached at the PS. In the PS HC Santro had handed over her two sealed pullindas alongwith sample seal of SRHC Hospital, Narela and she had seized the same vide memo already Ex. PW5/A bearing her signature at Point 'B'. She deposited the case property pullindas in the malkhana. she also recorded the statements of the witnesses. On 10/12/2012, Constable Narain was sent to FSL to deposit the exhibits of the present case, who deposited the same at FSL Rohini vide RC No. 242/12/21. She recorded statement of MHC(M). She made 13 of 36 14 FIR No. 635/12 PS - Narela efforts to apprehend the accused Tarun Kumar but he could not be apprehended. On 17/12/2012 accused Tarun Kumar was released on anticipatory bail by the order of the Court and he was formally arrested in the present case on 27/12/2012 vide arrest memo already Ex. PW3/A bearing her signature at Point 'B' and signature of accused at Point 'C'. Accused Tarun Kumar is present in the Court (correctly identified). At the time of arrest of accused Tarun Kumar complainant of the case prosecutrix (name withheld) was called at the PS and she has identified the accused Tarun Kumar. Signature of Krishna are at Point 'D' on arrest memo already Ex. PW3/A. Personal search memo of accused was also prepared and is already Ex. PW3/B bearing his signature at Point 'B' and signature of accused Tarun Kumar at Point 'C'. Disclosure statement of accused Tarun Kumar was recorded after his arrest and the same is already Ex. PW3/C bearing her signature at Point 'B' and signature of accused Tarun Kumar at Point 'C'. Accused Tarun Kumar was sent with HC Chetan Kumar for the medical examination to SRHC Hospital. After the medical of accused Tarun Kumar, HC Chetan Kumar had handed over him one sealed pullinda alongwith one sample seal received by him from the Hospital after the medical examination of 14 of 36 15 FIR No. 635/12 PS - Narela accused. She had seized those pullindas vide seizure memo already Ex. PW3/D bearing her signature at Point 'B'. She made interrogation from the accused Tarun Kumar and thereafter, he was allowed to go from the PS as he was released on furnishing the bail bond. Bail bond is now Ex. PW11/D. She recorded statement of HC Chetan. She deposited the sealed pullindas in the malkhana and also recorded statement of MHC(M). On 08/01/2013 exhibits of the present case was sent to FSL through Constable Ajay, who deposited the same at FSL Rohini vide RC No. 4/21/12. She recorded statement of MHC(M) and Constable Ajay. After completion of investigation chargesheet was submitted for trial.
PW12 - Sh. V. Shakarnarayanan, SSO, FSL, Delhi, who deposed that he is M.Sc. BGL, certificate in Forensic Science and having more than 22 years of experience in this field and have examined about more than 4500 cases. On 10/12/2012, two sealed parcels were received in the Office of FSL, Rohini, Delhi which were sealed with the seal of 'SRHCH NARELA GYNAE & OBS'. In connection with the present case and further on 08/01/2013, one sealed parcel bearing the seal of 'SRHC HOSPITAL NARELA, DELHI' was received in the Office of 15 of 36 16 FIR No. 635/12 PS - Narela FSL for examination. He opened the abovesaid parcels and examined the exhibits biologically and DNA examination. He examined the exhibits and thereafter, gave his detailed report which is running into three pages is exhibited as Ex. PW12/A, bearing his signature at point 'A'. The remnants of the abovesaid exhibits after his examination were resealed with the seal of 'VSN FSL DELHI'.
PW13 - Constable Ajay Kumar, who deposed that on 08/01/2013, he was posted at PS - Narela as Constable. ON that day, he collected the sealed exhibits alongwith FSL Form from MHC(M) and took the same to FSL vide RC No. 4/21/13. He deposited the exhibits at FSL and thereafter, came back to PS and handed over the copy of receipt to MHC(M). During the period the exhibits remained in his custody same were not tampered with. His statement was recorded by the IO.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Tarun Kumar was recorded u/s 313 16 of 36 17 FIR No. 635/12 PS - Narela Cr.P.C. wherein he pleaded innocence and false implication. He did not opt to lead any defence evidence.
7. Learned Counsel for accused submitted that the prosecutrix has not supported the case of the prosecution and the prosecution has failed to prove its case beyond reasonable doubt and prayed for the acquittal of the accused on all the charges leveled 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 doubt.
9. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Tarun Gehlot, Learned Counsel for the accused and have also carefully perused the entire record.
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10. The charge for the offences u/s 376/420 IPC against accused Tarun Kumar is that from the last three years prior to 20/11/2012 at House No. 267, Gali No. 11B, Swtantra Nagar, Narela, Delhi, within the jurisdiction of PS Narela he continuously established sexual relations forcibly with prosecutrix (name withheld) D/o Damodar Prashad, aged around 20 years on the pretext of marrying with her and committed rape upon her.
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 interest of justice.
AGE OF THE PROSECUTRIX
12. PW9 - prosecutrix in her statement recorded in the Court on 04/04/2014 while giving her particulars has stated her age as 21 years.
18 of 36 19 FIR No. 635/12 PS - Narela Since PW9 - prosecutrix has stated her age as 21 years on 04/04/2014 at the time of recording her evidence/statement and the date of alleged incident is 20/11/2012, on simple arithmetical calculation, the age of the prosecutrix comes to 19 years, 07 months and 16 days as on the date of alleged incident on 20/11/2012.
Moreover, the said factum of age of PW9 - prosecutrix has also not been disputed by accused Tarun Kumar. 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 PW9 - prosecutrix was aged 19 years, 07 months and 16 days as on the date of incident on 20/11/2012.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW7 Dr. Nipun, SR (Obs. & Gynae), SRHC Hospital, Narela, Delhi has deposed that on 22/11/2012, one patient Krishna D/o Damodar, age 20 years was brought to Hospital for medical examination.
19 of 36 20 FIR No. 635/12 PS - Narela According to patient she has history of sexual assault by a person name Tarun to whom she was staying willingly since four years. On examination : hymen tear present and it seems to be habitual, no sign of injury was present. All vaginal and local smears and samples collected and sent for pathological examination. Patient has refused P/V examination and urine pregnancy test was negative. He prepared the MLC and the same is Ex. PW7/A, bearing his signature at point 'A'. He also prepared the Sexual Assault Evidence Collection Kit (SAECK) and the same is Ex. PW7/B, bearing his signature at point 'A'.
Despite grant of opportunity, PW7 Dr. Nipun was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical and the gynaecological examination vide MLC Ex. PW7/A and Sexual Assault Evidence Collection Kit (SAECK) Ex. PW7/B of PW9 - prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED
14. PW6 Dr. Awdesh Kumar, Medical Officer, SRHC 20 of 36 21 FIR No. 635/12 PS - Narela Hospital, Narela, Delhi has deposed that on 27/12/2012, one patient Tarun Kumar S/o Sri Ram Niwas, Age 21 years male was brought to Hospital for medical examination. He examined the patient and after examination, he opined that there is nothing to suggest that patient is incapable of performing sexual intercourse. He prepared the MLC Ex. PW6/A, bearing his signature at point 'A'. Samples were taken, sealed and handed over to concerned Police official.
Despite grant of opportunity, PW6 Dr. Awdesh Kumar was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Tarun Kumar was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW12 - Sh. V. Shakarnarayanan, SSO, FSL, Delhi has proved the biological report and DNA examination Ex. PW12/A, bearing his signature at point 'A'.
21 of 36 22 FIR No. 635/12 PS - Narela As per biological report Ex. PW12/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of 'SRHCH NARELA GYNAE & OBS' containing Exhibits '1a', '1b', '1c', '1d', '1e', '1f(i)', '1f(ii)', '1f(iii)', '1g', '1h', '1i', '1j(i)', '1j(ii)', '1j(iii)', '1k', '1l', '1m', '1n(i)', '1n(ii)', '1o', '1p' & '1q'.
Exhibit '1a' : Sample not found.
Exhibit '1b' : Sample not found.
Exhibit '1c' : Sample not found.
Exhibit '1d' : Sample not found.
Exhibit '1e' : Few nail clippings.
Exhibit '1f(i)' : Two microslides having faint whitish smear.
& '1f(ii)'
Exhibit '1f(iii)' : Cotton wool swab on a stick.
Exhibit '1g' : Few strands of hair.
Exhibit '1h' : Bunch of hair.
Exhibit '1i' : Sample not found.
Exhibit '1j(i)' : Two microslides having faint whitish smear.
& '1j(ii)'
Exhibit '1j(iii)' : Cotton wool swab on a stick.
Exhibit '1k' : Cotton wool swab on a stick.
Exhibit '1l' : Kept unexamined.
Exhibit '1m' : Liquid material kept in a syringe.
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Exhibit '1n(i)' : Two microslides having faint whitish smear.
& '1n(ii)'
Exhibit '1o' : Cotton wool swab on a stick.
Exhibit '1p' : Kept unexamined.
Exhibit '1q' : Kept unexamined.
Parcel '2' : One sealed cardboard box sealed with the
seal of 'SRHCH NARELA GYNAE & OBS' containing Exhibits '2a', '2b', '2c' & '2d'.
Exhibit '2a' : One lady's shirt. Exhibit '2b' : One brassier. Exhibit '2c' : One pyjama. Exhibit '2d' : One dirty underwear.
DESCRIPTION OF ARTICLES RECEIVED VIDE FSL NO.
2013/DNA217 Parcel '3' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '3'. Exhibit '3' : Dark brown liquid kept in a tube described as 'blood sample (of accused Tarun Kumar).
RESULT OF ANALYSIS
1. Blood was detected on Exhibit '3'.
2. Blood could not be detected on Exhibits '1e', '1f(iii)', '1g', '1h(iii)' 23 of 36 24 FIR No. 635/12 PS - Narela (be read as '1h'), '1j(iii)' & '1o'.
3. Human semen was detected on exhibit '1j(iii)' & '2d'.
4. Semen could not be detected on exhibits '1f(i)', '1f(iii)', '1g', '1h', '1j(i)', '1k', '1m', '1n(i)', '1o', '2a', '2b' & '2c'.
DNA EXAMINATION Exhibit '3' i.e. blood sample (of accused Tarun Kumar) and Exhibit '2d' i.e. underwear (of victim) were subjected to DNA isolation. DNA was isolated from Exhibit '3' i.e. blood sample (of accused Tarun Kumar) and Exhibit '2d' i.e. underwear (of victim), using AmpFl STR Identifiler Plus kits and the data were analyzed by using GeneMapper IDx Software.
RESULTS Alleles from the source of Exhibit '3' i.e. blood sample (of accused Tarun Kumar) are accounted in the allelic data of the source of Exhibit '2d' i.e. underwear (of victim).
CONCLUSION The DNA (STR analysis) profiling performed on the source of Exhibit '3' i.e. blood sample (of accused Tarun Kumar) and Exhibit '2d' i.e. underwear (of victim) is sufficient to conclude that the source of Exhibit '3' i.e. blood sample (of accused Tarun Kumar) is similar to that of allelic data from the source of and Exhibit '2d' i.e. underwear (of victim).
Encl: Allelic Data (Annexure 1) NOTE : Remnants of the exhibits have been sealed with the seal of 24 of 36 25 FIR No. 635/12 PS - Narela 'VSN FSL DELHI'.
GENOTYPE ANALYSIS FOR ESTABLISHING IDENTITY OF ACCUSED USING MICRO SATELLITES The alleles of Loci D8S1179, D21S11, D7S820, CSF1PO, D3S1358, THO1, D13S317, D16S539, D2S1338, D19S433, vWA, TPOX, D18S51, D5S818, FGA and AMELOGENIN for identity of accused.
Allelic Data
LOCI Victim Accused
Ex. '2d' Ex. '3'
1 2
D8S1179 13 14 13 14
D21S11 29 31 29 31
D7S820 8 10 8 10
CSF1PO 10 13 10 13
D3S1358 15 16 15 16
THO1 6 9 6 9
D13S317 11 11 11 11
D16S539 10 12 10 12
D2S1338 20 23 20 23
D19S433 15 16 15 16
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vWA 16 18 16 18
TPOX 8 11 8 11
D18S51 13 15 13 15
D5S818 11 11 11 11
FGA 21 26 21 26
AMELOGENIN X Y X Y
Alleles from the source of Exhibit '3', i.e. blood sample (of accused Tarun Kumar) are accounted in the allelic data of the source of Exhibit '2d' i.e. underwear (of victim).
As per the biological report Ex. PW12/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1 & 2 belong to the prosecutrix which were seized vide seizure memo Ex. PW5/A dated 23/11/2012 and Parcel No. 3 belongs to the accused Tarun Kumar which was seized vide seizure memo Ex. PW3/D dated 27/12/2012.
On careful perusal and analysis of the biological evidence 26 of 36 27 FIR No. 635/12 PS - Narela on record, it clearly shows that blood was detected on exhibit '3' (Blood sample of accused Tarun Kumar); blood could not be detected on exhibit '1e' (Few nail clippings of the prosecutrix), exhibit '1f(iii)' (cotton wool swab on a stick of the prosecutrix), exhibit '1g' (Few strands of hair of the prosecutrix), exhibit '1h(iii)' (be read as '1h') (Bunch of hair of the prosecutrix), exhibit '1j(iii)' (Cotton wool swab on a stick of the prosecutrix) & exhibit '1o' (Cotton wool swab on a stick of the prosecutrix); Human semen was detected on exhibit '1j(iii)' (Cotton wool swab on a stick of the prosecutrix) & exhibit '2d' (One dirty underwear of the prosecutrix) and semen could not be detected on exhibit '1f(i)' (Microslide having faint whitish smear of the prosecutrix), exhibit '1f(iii)' (Cotton wool swab on a stick of the prosecutrix), exhibit '1g' (Few strands of hair of the prosecutrix), exhibit '1h' (Bunch of hair of the prosecutrix), exhibit '1j(i)' (Microslide having faint whitish smear of the prosecutrix), exhibit '1k' (Cotton wool swab on a stick of the prosecutrix), exhibit '1m' (Liquid material kept in a syringe of the prosecutrix), exhibit '1n(i)' (Microslide having faint whitish smear of the prosecutrix), exhibit '1o' (Cotton wool swab on a stick of the prosecutrix), exhibit '2a' (One lady's shirt of the prosecutrix), exhibit 27 of 36 28 FIR No. 635/12 PS - Narela '2b' (One brassier of the prosecutrix) & exhibit '2c' (One pyjama of the prosecutrix).
On careful perusal and analysis of the DNA Finger Printing evidence on record, it clearly shows that the DNA (STR analysis) profiling performed on the source of Exhibit '3' (blood sample of accused Tarun Kumar) and Exhibit '2d' (underwear of the prosecutrix/victim) is sufficient to conclude that the source of Exhibit '3' (blood sample of accused Tarun Kumar) is similar to the allelic data from the source of Exhibit '2d' (underwear of the prosecutrix/victim) and that alleles from the source of Exhibit '3', (blood sample of accused Tarun Kumar) are accounted in the allelic data of the source of Exhibit '2d' (underwear of the prosecutrix/victim).
On a conjoint reading of the medical and gynaecological examination vide MLC Ex. PW7/A and Sexual Assault Evidence Collection Kit (SAECK) Ex. PW7/B of PW9 - prosecutrix, together with the MLC of accused Tarun Kumar Ex. PW6/A, in the light of biological and DNA Examination Ex. PW12/A as discussed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the 28 of 36 29 FIR No. 635/12 PS - Narela record, that sexual intercourse activity has taken place in the instant case.
16. Now let the testimony of PW9 Prosecutrix be perused and analysed.
PW9 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "Accused Tarun Dahiya is known to me as he was residing in my neighbourhood. I and he used to like each other and wanted to marry. The love affairs were existing between us for the last about 2 - ½ to 3 years from the date of the incident. He took me to Tis Hazari Courts telling me that 'they will perform marriage there'. At Tis Hazari Courts one counsel advised him (Tarun Dahiya) that till he attained the age of 21 years he cannot marry. My papa wanted to perform my marriage somewhere else (meri shadi karna chathe thai). I after leaving my house, had told Tarun Dahiya to perform the marriage with me, thereupon he took me to Tis Hazari Courts but the Advocate there again refused to perform the marriage and advised that if the court marriage performed then a letter is being sent to the houses of the parties, for which we were not ready. Tarun Dahiya got too much perplexed and he after leaving me at Tis Hazari Courts went away. I do not know where he had gone. Such misunderstanding had taken place. Since my parents had already got written from me on a stamp paper regarding my 29 of 36 30 FIR No. 635/12 PS - Narela disowning by them, therefore, from Tis Hazari Courts I straight away went to PS Narela and at the time I was too much perplexed. At the PS I told everything to the police as I stated above. Since my parents were not keeping me, the whereabouts of Tarun Dahiya were not known at the PS it was also told to me that I was to be sent to Nari Niketan, I remained for three days at the Police Station and in this process the case was registered and my signatures were obtained on some papers by the police and I was not allowed to read those documents. Thereafter, my marriage took placed (place) on 15/12/2012 with Tarun Dahiya. Presently we are living as husband and wife and is also having one child. We wanted to marry and now our marriage has been performed. No any forcible physical relations were made by Tarun Dahiya with me."
PW9 - 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 : "It is correct that Ex. PW9/A bears my signature at Point 'A'. Vol. I was not allowed to read the same nor the same were read over to me before I signed the same. It is correct that I was studying in B.Com IInd Year on 23/11/2012. It is incorrect to suggest that I put my signature on the papers after going through the documents. It is wrong to suggest that accused Tarun Dahiya forcibly made the physical relations with me on the pretext of marriage or that he forcibly made the physical relations with me but did not perform the marriage with me. It is wrong to suggest that accused Tarun Dahiya had once taken me to the hotel and had also made physical relations with me without my consent. It is 30 of 36 31 FIR No. 635/12 PS - Narela wrong to suggest that I am deposing falsely in order to save the accused or that since I have performed the marriage with accused Tarun Dahiya for this reason I am deposing falsely in order to save him. It is wrong to suggest that I had pointed out the place of occurrence to the police. It is wrong to suggest that I had lodged DD No. 26A dated 22/11/2012, PS Narela making allegations against accused Tarun Dahiya. It is wrong to suggest that I am deposing falsely in order to save the accused now being my husband. It is wrong to suggest that I am deposing falsely."
Despite grant of opportunity, PW9 - prosecutrix was not crossexamined on behalf of the accused.
From the aforesaid narration of PW9 - prosecutrix, it is clear that accused Tarun Dahiya is known to her as he was residing in her neighbourhood. She and he used to like each other and wanted to marry. The love affairs were existing between them for the last about 2½ to 3 years from the date of the incident. Her marriage took place on 15/12/2012 with Tarun Dahiya. Presently they are living as husband and wife and is also having one child. They wanted to marry and now their marriage has been performed. No any forcible physical relations were made by Tarun Dahiya with her.
At the cost of repetition, PW9 - prosecutrix during her 31 of 36 32 FIR No. 635/12 PS - Narela crossexamination by the Learned Addl. PP for the State has specifically deposed that : "It is wrong to suggest that accused Tarun Dahiya forcibly made the physical relations with me on the pretext of marriage or that he forcibly made the physical relations with me but did not perform the marriage with me. It is wrong to suggest that accused Tarun Dahiya had once taken me to the hotel and had also made physical relations with me without my consent. It is wrong to suggest that I am deposing falsely in order to save the accused or that since I have performed the marriage with accused Tarun Dahiya for this reason I am deposing falsely in order to save him."
"It is wrong to suggest that I am deposing falsely in order to save the accused now being my husband. It is wrong to suggest that I am deposing falsely."
As discussed hereinabove PW9 - prosecutrix was found to be aged around 20 years as on the date of incident on 20/11/2012, from the testimony of PW9 - prosecutrix nothing is being indicated that from the last three years prior to 20/11/2012 at House No. 267, Gali No. 11B, Swtantra Nagar, Narela, Delhi, accused Tarun Kumar continuously established sexual relations forcibly with prosecutrix (name withheld) on the pretext of marrying with her and committed rape upon her.
32 of 36 33 FIR No. 635/12 PS - Narela
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 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 33 of 36 34 FIR No. 635/12 PS - Narela 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."
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 PW9 - Prosecutrix in the light of medical and gynaecological examination vide MLC Ex. PW7/A and Sexual Assault Evidence Collection Kit (SAECK) Ex. PW7/B of PW9 - prosecutrix, biological and DNA Examination Ex. PW12/A together with the MLC of accused Tarun Kumar Ex. PW6/A, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
34 of 36 35 FIR No. 635/12 PS - Narela In the circumstances, it stands established on the record, of the performance of the act of sexual intercourse by accused Tarun Kumar with PW9 - Prosecutrix with her consent.
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 Tarun Kumar. The hostility of PW9 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that from the last three years prior to 20/11/2012 at House No. 267, Gali No. 11B, Swtantra Nagar, Narela, Delhi, accused Tarun Kumar continuously established sexual relations forcibly with PW9 - prosecutrix, aged around 20 years (to be exact 19 years 07 months and 16 days) on the pretext of marrying with her and committed rape upon her.
I, accordingly, acquit accused Tarun Kumar for the offences punishable u/s 376/420 IPC.
19. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Tarun Kumar in the commission 35 of 36 36 FIR No. 635/12 PS - Narela 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 Tarun Kumar beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Tarun Kumar. I, therefore acquit accused Tarun Kumar for the offences punishable u/s 376/420 IPC after giving him the benefit of doubt. Accused Tarun Kumar is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Tarun Kumar 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 29th Day of August, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 36 of 36