Delhi District Court
State vs . Rajesh @ Brij Kishore on 20 January, 2014
1
FIR No. 369/12
PS - Bawana
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 154/13
Unique ID No. : 02404R0029642013
State Vs. Rajesh @ Brij Kishore
S/o Sh. Ram Shiya
R/o Gurdayal Nagar, Bhind,
Madhya Pradesh.
FIR No. : 369/12
Police Station : Bawana
Under Sections : 365/366/376/342/506 IPC
Date of committal to session Court : 04/02/2013
Date on which judgment reserved : 13/01/2014
Date on which judgment announced : 20/01/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 47 2 FIR No. 369/12 PS - Bawana That on 28/10/2012, complainant Harcharan Singh S/o Sh. Prabhu Singh R/o 154/509, SBI Bank wali gali, Pooth Khurd, Delhi (Permanent address Village Bhaander, PS Bhaander, Distt. Datia, Madhya Pradesh) came to the Police Station and stated that his daughter/prosecutrix (name withheld being a case u/s 376 IPC) is missing since midnight of 27/10/2012. In this regard, he made the statement which is to the effect that, he lives with his family at the above address and does the labour work. His second number daughter/prosecutrix (named withheld) age about 16 years, height 5'3"
colour wheatish, round face strong body, who is wearing bangani colour salwar, multicolour suit green dupatta and is having hawai chappal in her feet, is missing from the house from yesterday night of 27/10/2012. There is also an injury scar on her nose. He suspects that his daughter has been enticed away by Rajesh living in his neighbourhood. Till by this time he was searching her of his own and now he has come to PS for lodging the report. His daughter/prosecutrix be searched and appropriate action be taken. Statement has been heard and is correct. On the basis of the statement and from the circumstances on the finding that offence u/s 363 IPC appeared to have been committed, the case was
2 of 47 3 FIR No. 369/12 PS - Bawana got registered and the investigating was proceeded with. Efforts were made for the search of the prosecutrix. The photograph of the prosecutrix was not available with the complainant and moreover complainant had denied for publishing the photograph in media and other place. SI Neeraj Kumar telecasted all India wireless message and uploaded the details on ZIPNET and made local inquiries. From the local inquiries conducted, it was revealed that the prosecutrix used to talk on mobile but with whom it was not clear. In the meantime, the complainant disappeared from his residence without any information. No contact number of the complainant was available and Smt. Pala Devi did not give any satisfactory answer regarding the whereabouts of the complainant Haricharan. Thereafter, a team consisting of HC Dharampal and Constable Balraj was constituted and sent to the native village of complainant. On 03/11/2012 HC Dharampal came to PS alongwith complainant Haricharan, prosecutrix, her Bua Sadhna and alongwith alleged Rajesh @ Brij Kishore S/o Ram Shiya R/o Gurdayal Nagar, Bhind, Madhya Pradesh. HC Dharampal briefed the facts to SI Neeraj Kumar. SI Neeraj Kumar interrogated prosecutrix who stated that alleged Rajesh had forcibly taken her to his home and forcibly made 3 of 47 4 FIR No. 369/12 PS - Bawana sexual relations with her. She had not disclosed the fact to her family members. Prosecutrix was handed over to SI Ritu Virodhiya for medical examination and further interrogation. Alleged Rajesh was interrogated by SI Neeraj Kumar. On interrogation, alleged Rajesh Kumar stated that he was in love with prosecutrix and wanted to marry her. On the night of 27/11/2012, he saw prosecutrix (name withheld) outside his house. He took her forcibly with him to his home in native village and made sexual relations with her against her will. At his home he had stated that he wanted to marry the girl. But prosecutrix asked him to drop at her native village. When he went to native place of prosecutrix at Village Bhaander to hand over the prosecutrix, Haricharan and his family members caught hold and they stated that they would marry them. After sufficient evidence, alleged Rajesh was arrested by SI Neeraj Kumar. Thereafter, being the first link lady officer to PS Bawana, the investigation of the case was marked to SI Satyawati and SI Satyawati went to M. V. Hospital where prosecutrix was being medically examined at M. V. Hospital vide MLC No. 4181/12 and accused Rajesh Kumar was being medically examined vide MLC No. 4182/12. The exhibits of accused Rajesh were seized by SI Neeraj Kumar and the exhibits in respect of prosecutrix 4 of 47 5 FIR No. 369/12 PS - Bawana were seized and taken into Police possession by SI Satyawati. During the course of investigation, the statement of the prosecutrix was got recorded u/s 164 Cr.P.C. Prosecutrix was produced before the CWC who ordered for the bone age test of the prosecutrix. Bone age test of the prosecutrix was got conducted from BSA Hospital, Rohini, Delhi and as per the report the age of the prosecutrix is between 18 to 20 years. As the age of the prosecutrix is 18 years, therefore Section 363 IPC was removed and Section 365 IPC was added in the case alongwith the sections 366/342/506 IPC. Site Plan was prepared at the instance of the prosecutrix. Statement of the witnesses u/s 161 Cr.P.C. were recorded. The sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation, challan for the offences u/s 365/366/376/342/506 IPC was prepared against accused Rajesh @ Brij Kishore and was sent to the Court for trial.
2. Since the offences u/s 376/366 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of 5 of 47 6 FIR No. 369/12 PS - Bawana Section 207 Cr.P.C., the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 363/365/366/506/342/376 IPC was made out against accused Rajesh @ Brij Kishore. 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 16 witnesses. PW1 - Dr. Jitender Singh, HOD, Department of Orthopaedics, Dr. BSA Hospital, Rohini, Delhi, PW2 - Dr. Priyanka, SR Gynae, M. V. Hospital, Pooth Khurd, Delhi, PW3 - HC Maha Singh, PW4 - Prosecutrix, PW5 - Constable Amit, PW6 - HC Balraj Singh, PW7 - HC Dhrampal Singh, PW8 - Ms. L. Babyto Devi, Senior Scientific Officer, FSL, Rohini, Delhi, PW9 - Lady Constable Chitra, PW10 - Dr. Amit Shokeen, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, PW11 - Ms. Shefali Barnala Tondon, Learned Metropolitan Magistrate, Rohini, Delhi, PW12 - Sh. Harcharan 6 of 47 7 FIR No. 369/12 PS - Bawana Singh, father of the prosecutrix, PW13 Smt. Sadhna, PW14 - SI Neeraj Kumar, PW15 - SI Rekha and PW16 - SI Satyawati.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Dr. Jitender Singh, HOD, Department of Orthopaedics, Dr. BSA Hospital, Rohini, Delhi who deposed that he was one of the member of the Board constituted for the bone age estimation of patient/prosecutrix (name withheld) D/o Sh. Harcharan. The other members of Board were Dr. Malvika Mrinal, Radiologist; Dr. Vijay Dhankar, HOD, Forensic Medicines and Dr. Kunwar Sanjay Kumar, Dental Surgeon. The said patient was examined on 09/11/2012 by clinically, dental examination and radiologically. After examination they opined that age of the patient was approximately 18 to 20 years on the date of examination. Their report is Ex. PW1/A bearing his signature at point 'A', signature of Dr. Malvika Mrinal at point 'B', signature of Dr. Vijay Dhankar at point 'C' and signature of Dr. Kunwar Sanjay Kumar at point 'D'.
7 of 47 8 FIR No. 369/12 PS - Bawana PW2 - Dr. Priyanka, SR Gynae, M. V. Hospital, Pooth Khurd, Delhi who deposed that on 03/11/2012, one prosecutrix (name withheld) D/o Sh. Harcharan aged 16 years, female was brought to hospital for medical examination with the alleged history of sexual assault on 01/11/2012 (two days back) as told by the patient. The patient was initially examined by the Medical Officer on duty and thereafter, she was referred to SR Gynae thereupon she (PW2) examined the patient. The general condition of the patient was fair, her vitals were stable. On per abdomen examination, soft non tender. Patient has taken bath and washed clothes. All relevant samples were taken. On examination, perinium and vulva healthy. Her PW2) examination on the MLC is Ex. PW2/A bearing her signature at point 'A'. She also prepared the sexual assault evidence collection kit and she has mentioned the details of examination conducted by her in that kit. She has brought Sexual Assault Evidence Collection Kit (SAECK) and after the gynaecological examination of the patient/prosecutrix (name withheld), the same was filled in her (PW2) handwriting and the SAECK as maintained in the Hospital and brought by her is Ex. PW2/B, bearing her signature at point 8 of 47 9 FIR No. 369/12 PS - Bawana 'A'.
PW3 - HC Maha Singh who deposed that on 28/10/2012 he was posted as Duty Officer in PS Bawana and was on duty from 9:00 a.m. to 5:00 p.m. On that day SI Neeraj Kumar had handed over to him a rukka, on the basis of which and on his instruction present FIR No. 369/12, u/s 363 IPC was registered. After registration of FIR, he handed over the copy of FIR and original rukka to SI Neeraj Kumar for further investigation. He has brought the original FIR Register. The copy of FIR is Ex. PW3/A, bearing his signature at point 'A' (OSR). He made endorsement on the rukka and same is Ex. PW3/B. PW4 - Prosecutrix is the victim who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW4/A, signed by her at points 'A' on each page and deposed regarding the investigational aspects which she joined.
PW5 - Constable Amit who deposed that on 28/10/2012, he was posted as Constable in PS Bawana. On that day, Duty Officer 9 of 47 10 FIR No. 369/12 PS - Bawana handed over to him a copy of FIR and original rukka, which he (PW5) handed over to IO SI Neeraj Kumar at Village Pooth Khurd. Complainant Harcharan Singh was also present there. Thereafter, they searched prosecutrix (name withheld), but she was not found.
PW6 - HC Balraj Singh who deposed that on 03/11/2012, he was posted as Constable in PS Bawana. On that day, he remained in the investigation of this case with SI Neeraj. HC Dharampal and Constable Mukesh handed over prosecutrix (name withheld) and accused Rajesh to SI Neeraj. Complainant Harcharan and Sadhna, Bua of prosecutrix (name withheld) was also present at that time. SI Neeraj made inquiries from prosecutrix (name withheld) and she told that Rajesh has committed rape upon her. SI Neeraj handed over the prosecutrix (name withheld) to SI Ritu. SI Neeraj made inquiries from Rajesh and thereafter, accused Rajesh, present in the Court (correctly identified) was arrested, vide arrest memo Ex. PW6/A, and his personal search was conducted vide memo Ex. PW6/B and he disclosure statement Ex. PW6/C. All the said memos bearing his (PW6) signatures at points 'A'. Thereafter, he alongwith SI Neeraj took the accused Rajesh in M. V. 10 of 47 11 FIR No. 369/12 PS - Bawana Hospital, where he was medically examined and after his medical examination, the Doctor handed over him (PW6) the sealed pullinda containing exhibits and the same were seized by the IO SI Neeraj, vide memo Ex. PW6/D, bearing his (PW6) signatures at point 'A'. Accused was produced in the Court and was sent to JC. On 09/11/2012, he alongwith SI Satyawati, HC Raj Kishore and accused Rajesh @ Brij Kishore, who was in Police custody and reached at Bhind, Madhya Pradesh, but nothing was recovered. On 22/11/2012, he alongwith IO SI Satyawati went to Village Bhander, MP, and from there, prosecutrix (name withheld) and her father was taken with them and on 23/11/2012, they reached Bhind, MP, at the house of accused Rajesh and IO prepared the site plan at the instance of prosecutrix (name withheld). On 27/11/2012, on the instructions of IO, he took the sealed pullinda from the MHCM vide RC No. 286/21/12 for depositing in the FSL, Rohini. He deposited the same in FSL, Rohini, and thereafter deposited the acknowledgment with the MHC(M). The sealed pullinda remained intact during his custody. Accused Rajesh @ Brij Kishore is present in the Court.
11 of 47 12 FIR No. 369/12 PS - Bawana PW7 - HC Dhrampal Singh who deposed that on 01/11/2012, he was posted as HC in PS Bawana. On that day, on the instructions of SI Neeraj, he alongwith Constable Mukesh left the PS for village Bhander, MP, and on 02/11/2012, they reached Village Bhander at the house of complainant Harcharan Singh, where they found prosecutrix and accused Rajesh. Harcharan told them that accused Rajesh wanted to marry with his daughter/prosecutrix (name withheld) and he had kept Rajesh there on some pretext. Thereafter, he (PW7) alongwith complainant Harcharan Singh, prosecutrix (name withheld), Smt. Sadhna, Bua of prosecutrix (name withheld) and accused Rajesh came back to Delhi on 03/11/2012 and they were handed over to SI Neeraj. On 03/11/2012, he was posted as MHC (M) at PS Bawana and on that day, SI Satyawati had deposited seven sealed pullindas and two sample seals in the Malkhana and he made entry at Serial No. 773 of the Register No.
19. On 27/11/2012, three sealed parcels alongwith two sample seals were handed over to Constable Balraj for depositing in FSL Rohini vide RC No. 286/21/12. After depositing the same in FSL, Constable Balraj had deposited the acknowledgment receipt. Sealed pullindas remained intact during his custody. He has brought the Register No. 19 and 21. The 12 of 47 13 FIR No. 369/12 PS - Bawana copy of the relevant entries of the Register No. 19 is Ex. PW7/A. Copy of the relevant entries of the Register No. 21 is Ex. PW7/B and the copy of the acknowledgment receipt is Ex. PW7/C (OSR). IO had recorded his statement. Accused Rajesh is present in the Court.
PW8 - Ms. L. Babyto Devi, Senior Scientific Officer, FSL, Rohini, Delhi who deposed that she is M.Sc. (Forensic Science) and having more than six years experience of examining the exhibits in DNA and Biology devision. On 27/11/2012 three sealed parcels were received in their office in connection with the present case for DNA Examination. The same were marked to her for DNA Examination. She examined the exhibits and gave her report which is Ex. PW8/A, bearing her signature at point 'A'.
PW9 - Lady Constable Chitra who deposed that on 03/11/2012, she was posted as Constable in PS Bawana. On that day, she alongwith SI Ritu, Smt. Sadhna and complainant Archana took prosecutrix (name withheld) in M.V. Hospital, Pooth Khurd. SI Satyawati also reached there and SI Ritu left the Hospital. Thereafter, 13 of 47 14 FIR No. 369/12 PS - Bawana prosecutrix (name withheld) was medically examined and after medical examination, Doctor handed over the sealed pullinda containing the exhibits which was seized by the IO vide memo Ex. PW9/A, bearing her signature at point 'A'. IO made inquiries from prosecutrix (name withheld) and she told that Rajesh has committed rape upon her. Prosecutrix (name withheld) was sent to Kasturba Gandhi National Memorial Trust.
PW10 - Dr. Amit Shokeen, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi who deposed that on 03/11/2012 one patient/prosecutrix (name withheld) D/o Harcharan Age 16 years female was brought to Hospital for medical examination with alleged history of sexual assault. After initial examination, the patient was referred to S.R. Gynae. He prepared the MLC and the same is Ex. PW10/A, bearing his signature at point 'A'. On 03/11/2012 one patient Rajesh @ Brij Kishore S/o Ram Siya, Age 20 years male was also brought to hospital for medical examination with alleged history of sexual offence. After examination, he opined that there is nothing to suggest that patient is incapable of performing sexual intercourse. He 14 of 47 15 FIR No. 369/12 PS - Bawana prepared the MLC and the same is Ex. PW10/B, bearing his signature at point 'A'.
PW11 - Ms. Shefali Barnala Tondon, Learned Metropolitan Magistrate, Rohini, Delhi who deposed that on 05/11/2012, she was posted as Metropolitan Magistrate in Rohini Courts. On that day, an application for recording of statement of prosecutrix (name withheld) D/o Harcharan Age about 16 years was moved before her by IO SI Stayawati, PS Bawana, being the first Link of the concerned Court. IO SI Satyawati produced prosecutrix (name withheld) before her and was identified by her. She recorded statement of IO SI Satyawati in this regard. Thereafter, IO was asked to leave the Chamber. She put certain preliminary questions to the prosecutrix to know whether the prosecutrix making the statement voluntarily. From the answers given by the prosecutrix, she (PW11) was satisfied that she (prosecutrix) was able to understand the questions and to gave the rational answers and she was in fit state of mind. She also understand the sanctity of the oath. Her (PW11) proceedings in this regard is Ex. PW11/A, bearing her signature at point 'A'. She recorded statement of prosecutrix Meenu which is 15 of 47 16 FIR No. 369/12 PS - Bawana already exhibited as Ex. PW4/A, bearing her signature at point 'B'. After recording her statement, she gave the certificate regarding the correctness of the proceedings and the same is Ex. PW11/B, bearing her signature at point 'A'. After recording her statement, she allow the application of the IO to obtain the copy of the statement vide her order Ex. PW11/C, bearing her signature at point 'A'. Ahlmad was directed to send the proceedings to the concerned MM in the sealed cover and the same is Ex. PW11/D, bearing her signature at point 'A'.
PW12 - Sh. Harcharan Singh, father of the prosecutrix who deposed that he is residing at Plot No. 154/509, SBI Bank wali gali, Pooth Khurd in Delhi alongwith his family and working as a labourer in a factory. His younger daughter/prosecutrix (name withheld) was aged about 16 years and she was having stout built and her height was about 5 foot 3 inch. About one year back, date he does not remember, she left his house for factory for work but she did not returned back. He enquired her whereabouts from the neighbourers. At that time he was having suspicion that one person namely Rajesh who was residing in their neighbourhood might have kidnapped his daughter. On the next day, he 16 of 47 17 FIR No. 369/12 PS - Bawana went to PS Bawana and made a complaint Ex. PW12/A which bears his signature at point 'A'. On the basis of which, the present FIR was registered. His daughter was illiterate and she never went to the School. He was not having any date of birth certificate as she born in their house. Thereafter, he went to his native village Bhander, (MP) in search of his daughter. Accused Rajesh was also resident of village Bhind in MP. When heI was present in his native village alongwith his sister Sadhna, accused Rajesh and his daughter came in their house in village. The Police official from the Delhi from PS Bawana, namely SI Neeraj alongwith his staff also reached in their village and from there his daughter/prosecutrix (name withheld) and accused were brought to Delhi by the Police. He alongwith his sister Sadhna had also accompanied the Police. From the Police Station his daughter was taken to Hospital where she was medically examined. Police enquired from him. During his crossexamination by the Learned Addl. PP for the State he admitted that his daughter/prosecutrix (name withheld) was missing on 27/10/2012 and he got registered the case on 28/10/2012.
PW13 Smt. Sadhna who deposed that she is house wife.
17 of 47 18 FIR No. 369/12 PS - Bawana Accused Rajesh who is present in the Court came to her village alongwith her niece/prosecutrix (name withheld). Her brother Harcharan Singh also reached their house from Delhi in search of prosecutrix (name withheld). The Police officials from Delhi also reached their house. From their house her niece/prosecutrix (name withheld), accused Rajesh came to PS Bawana, Delhi alongwith her brother and herself. In the village she came to know from her brother that he had lodged a missing report of her niece/prosecutrix (name withheld) at PS Bawana. From Police Station her niece was taken to Hospital for her medical examination where she was medically examined. Her niece was produced before the Court from where she accompanied them to the house of her brother at Pooth Khurd, Delhi.
PW14 - SI Neeraj Kumar who deposed that on 28/10/2012 he was posted as Sub Inspector in PS Bawana. On that day complainant Harcharan Singh came in the Police Station and gave his statement Ex. PW14/A and he (PW14) attested his signature at point 'A', bearing his signature at point 'B'. He prepared Rukka Ex. PW14/A, bearing his signature at point 'A' and handed over to Duty Officer for 18 of 47 19 FIR No. 369/12 PS - Bawana registration of FIR. Thereafter, he alongwith complainant reached at the house of the complainant i.e. near SBI Bank, Pooth Khurd, Delhi. He made local inquiries and searched for accused and prosecutrix but none found. Constable Amit reached there and handed over to him the copy of FIR and original rukka. Supplementary statement of the complainant was recorded and he was relieved. Again they searched for accused and prosecutrix but not found and they came back to Police Station. Complainant Harcharan Singh was also got missing and there was no contact number. On 31/10/2012, HC Dharam Pal alongwith Constable Mukesh were sent at the native village of the complainant. On 03/11/2012, HC Dharam Pal and Constable Mukesh came back in the Police Station alongwith complainant Harcharan, prosecutrix (name withheld), accused Rajesh and Sadhna, Bua of the prosecutrix and they were produced before him. He made inquiries from prosecutrix (name withheld) and told that accused Rajesh had committed rape upon her and her custody was handed over to SI Ritu Virodhiya. He made inquiries from the accused Rajesh and thereafter, he was arrested vide arrest memo Ex. PW6/A and his personal search was conducted vide memo Ex. PW6/B and he made disclosure statement Ex. PW6/C, bearing his 19 of 47 20 FIR No. 369/12 PS - Bawana signature at point 'B'. Thereafter, he took the accused Rajesh to M. V. Hospital where he was medically examined and after medical examination, Doctor handed over sealed pullinda containing exhibits and same were seized vide memo Ex. PW6/D, bearing his signature at point 'B'. Prosecutrix (name withheld) was also taken to M. V. Hospital in the custody of SI Ritu. SI Satyawati also reached at the Hospital and the custody of prosecutrix (name withheld) was handed over to SI Satyawati who got conducted her medical examination and further investigation was handed over to SI Satyawati. Accused Rajesh was produced in the Court and was sent to JC. Thereafter, he alongwith SI Satywati took the prosecutrix (name withheld) to Kasturba Gandhi Memorial Trust Stay Home and she was kept there as per the verbal order of CWC. Accused Rajesh is present in the Court.
PW15 - SI Rekha who deposed that on 28/01/2013, she was posted as Sub Inspector in PS Bawana. On that day, investigation of the case was handed over to her. She perused the file and found that accused Rajesh was running in JC and prosecutrix had already been recovered. Exhibits had already been sent to FSL. After completion of the 20 of 47 21 FIR No. 369/12 PS - Bawana necessary further investigation, she prepared the Charge sheet and filed in the Court. Later on FSL Result was collected and filed in the Court which is already Ex. PW8/A. Accused Rajesh @ Brij Kishore present in the Court.
PW16 - SI Satyawati, who deposed that on 03/11/2012, she was posted as Sub Inspector in PS Vijay Vihar. On that day after receiving the information regarding the rape, she reached at M. V. Hospital, Pooth Khurd where SI Ritu Virodhiya was getting conducted the medical examination of the prosecutrix (name withheld) and SI Neeraj was getting conducted the medical examination of accused Rajesh @ Brij Kishore. SI Neeraj briefed her about the facts of the case. SI Ritu Virodhiya was relieved. W/Constable Chitra who was with W/SI Ritu Virodhiya, had handed over to her (PW16) the exhibits and the same were seized vide memo Ex. PW9/A, bearing her signature at point 'B'. SI Neeraj took the accused Rajesh @ Brij Kishore in the Court. She interrogated prosecutrix (name withheld) and recorded her statement u/s 161 Cr.P.C. Thereafter, after taking the oral instructions from the CWC, prosecutrix (name withheld) was sent to Kasturba Gandhi Memorial 21 of 47 22 FIR No. 369/12 PS - Bawana Trust, Bakhtawar Pur, Delhi and thereafter they came back to Police Station. She recorded the statement of Sh. Harcharan Singh, Smt. Sadhna, W/Constable Chitra and Constable Balraj. The case property was also deposited in the Malkhana. On 05/11/2012, prosecutrix (name withheld) was taken from the Kasturba Gandhi Memorial Trust and brought her to the Rohini Courts. She moved and application Ex. PW16/A, bearing her signature at point 'A' for recording the statement of the prosecutrix u/s 164 Cr.P.C. Her statement was got recorded and thereafter, she obtained the copy of the statement vide application Ex. PW16/B, bearing her signature at point 'A'. Prosecutrix (name withheld) was produced before the CWC and was sent to Kasturba Gandhi Memorial Trust. On 08/11/2012, accused Rajesh @ Brij Kishore was produced in the Court on Production Warrant and his three days PC Remand was taken. He was medically examined and brought to Police Station. On 09/11/2012, she alongwith HC Raj Kishore and Constable Balraj took the accused Rajesh @ Brij Kishore at Bhind, Madhya Pradesh but nothing could be recovered and thereafter, they came back to Delhi on 10/11/2012. The age estimation test of prosecutrix (name withheld) was also got conducted. On 11/11/2012, accused Rajesh @ 22 of 47 23 FIR No. 369/12 PS - Bawana Brij Kishore was produced in the Court and was sent to JC. She collected the Age Estimation Report of prosecutrix (name withheld). On 22/11/2012, she alongwith Constable Balraj reached at Bhander where prosecutrix (name withheld) alongwith her father were also joined in the investigation and reached at Bhind, M.P. and prepared the site plan Ex. PW16/C, bearing her signature at point 'A'. She recorded the statement of witnesses and thereafter, they came back to Delhi. On 27/11/2012, the exhibits were sent to FSL through Constable Balraj and thereafter, she recorded the statement of MHC(M) and Constable Balraj. On 27/12/2011 she was transfered from PS and the case file was handed over to MHC(R). Accused Rajesh @ Brij Kishore is present in the Court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Rajesh @ Brij Kishore was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and did not opt to lead any defence evidence.
23 of 47 24 FIR No. 369/12 PS - Bawana
7. Learned Counsel for the accused submitted that the prosecutrix has not supported the prosecution and the prosecution has failed to prove its case beyond reasonable doubt against the accused.
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 Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. Raj Vijay Singh, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 363/365/366/506/342/376 IPC against the accused Rajesh @ Brij Kishore is that on 27/10/2012 in the night, at Plot No. 154/509, SBI wali gali, Pooth Khurd, Delhi he kidnapped the prosecutrix (name withheld), D/o 24 of 47 25 FIR No. 369/12 PS - Bawana Harcharan Singh, aged around 16 years from the lawful guardianship of her father Harcharan Singh after extending threat to kill her, with intent that she may be wrongly and secretly confined and with intent to seduce her for illicit intercourse and that on the above mentioned date, time and place after kidnapping the prosecutrix (name withheld), D/o Harcharan Singh age around 16 years, he forcibly took her at his house, slapped her and forcibly committed rape upon her, forcibly kept/wrongfully confined her there for four/five days and thereafter took her at his house in Bhind and there also he committed rape upon her forcibly and from there he left her at her Village Bhander, District Datiya.
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. PW12 - Sh. Harcharan Singh, father of the prosecutrix in 25 of 47 26 FIR No. 369/12 PS - Bawana his examinationinchief has deposed that his daughter/prosecutrix was illiterate and she never went to the School. He was not having any date of birth certificate as she was born in his house.
PW4 - Prosecutrix on 23/05/2013 when her statement was recorded in the Court, while giving her particulars has stated her age as 18 years.
In the circumstances, neither any date of birth certificate from the School nor any birth certificate given by a Corporation or a Municipal Authority or a Panchayat has been proved on the record.
In case 'Jarnail Singh Vs. State of Haryana', 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since there is absence of the matriculation or equivalent certificate; the date of birth certificate from the school (other than a play school) first attended; the birth certificate given by a corporation or a municipal authority or a panchayat of PW1 - prosecutrix as provided under Rule 12 (3)(a) (i) (ii) and (iii) therefore the 26 of 47 27 FIR No. 369/12 PS - Bawana medical opinion with respect to PW1 - prosecutrix can be taken into consideration under clause (b) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
Now let the testimony of PW1 Dr. Jitender Singh, who proved the bone age estimation of PW4 - prosecutrix be perused and analysed.
PW1 - Dr. Jitender Singh, HOD, Department of Orthopaedics, Dr. BSA Hospital, Rohini, Delhi who deposed that he was one of the member of the Board constituted for the bone age estimation of patient/prosecutrix (name withheld) D/o Sh. Harcharan. The other members of Board were Dr. Malvika Mrinal, Radiologist; Dr. Vijay Dhankar, HOD, Forensic Medicines and Dr. Kunwar Sanjay Kumar, Dental Surgeon. The said patient was examined on 09/11/2012 by clinically, dental examination and radiologically. After examination they opined that age of the patient was approximately 18 to 20 years on the date of examination. Their report is Ex. PW1/A bearing his signature at point 'A', signature of Dr. Malvika Mrinal at point 'B', signature of Dr. Vijay Dhankar at point 'C' and signature of Dr. Kunwar Sanjay Kumar at 27 of 47 28 FIR No. 369/12 PS - Bawana point 'D'.
Despite grant of opportunity, PW1 - Dr. Jitender Singh was not crossexamined on behalf of the accused. Nor any evidence to the contrary has been produced or proved on record on behalf of the accused In the circumstances, it stands proved that the estimated age of prosecutrix was between 1820 years as on the date of bone age estimation on 09/11/2012.
As the date of alleged incident is 27/10/2012 and the estimated age of the prosecutrix is between 1820 years as on the date of bone age estimation on 09/11/2012, on simple arithmetical calculation, the age of prosecutrix comes to between 1820 years as on the date of incident on 27/10/2012.
In view of above and in the circumstances, it stands established on record that PW4 prosecutrix was aged between 1820 years as on the date of alleged incident on 27/10/2012.
It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only 28 of 47 29 FIR No. 369/12 PS - Bawana needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the 29 of 47 30 FIR No. 369/12 PS - Bawana case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for 30 of 47 31 FIR No. 369/12 PS - Bawana passing appropriate order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other 31 of 47 32 FIR No. 369/12 PS - Bawana material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion." MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW10 - Dr. Amit Shokeen, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi who deposed that on 03/11/2012 one patient/prosecutrix (name withheld) D/o Harcharan Age 16 years female was brought to Hospital for medical examination with alleged history of sexual assault. After initial examination, the patient was referred to S.R. Gynae. He prepared the MLC and the same is Ex. PW10/A, bearing his signature at point 'A'.
PW2 - Dr. Priyanka, SR Gynae, M. V. Hospital, Pooth Khurd, Delhi who deposed that on 03/11/2012, one prosecutrix (name withheld) D/o Sh. Harcharan aged 16 years, female was brought to hospital for medical examination with the alleged history of sexual assault on 01/11/2012 (two days back) as told by the patient. The patient was initially examined by the Medical Officer on duty and thereafter, she 32 of 47 33 FIR No. 369/12 PS - Bawana was referred to SR Gynae thereupon she (PW2) examined the patient. The general condition of the patient was fair, her vitals were stable. On per abdomen examination, soft non tender. Patient has taken bath and washed clothes. All relevant samples were taken. On examination, perinium and vulva healthy. Her PW2) examination on the MLC is Ex. PW2/A bearing her signature at point 'A'. She also prepared the sexual assault evidence collection kit and she has mentioned the details of examination conducted by her in that kit. On she has brought Sexual Assault Evidence Collection Kit (SAECK) and after the gynaecological examination of the patient/prosecutrix (name withheld), the same was filled in her (PW2) handwriting and the SAECK as maintained in the Hospital and brought by her is Ex. PW2/B, bearing her signature at point 'A'.
Despite grant of opportunity neither PW10 - Dr. Amit Shokeen nor PW2 - Dr. Priyanka were crossexamined on behalf of accused.
In view of above and in the circumstances, the medical and the gynaecological examination of PW4 - prosecutrix vide MLC Ex. PW10/A and Ex. PW2/A respectively stands proved on the 33 of 47 34 FIR No. 369/12 PS - Bawana record.
VIRILITY OF THE ACCUSED
14. PW10 - Dr. Amit Shokeen, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi who deposed that on 03/11/2012 one patient Rajesh @ Brij Kishore S/o Ram Siya, Age 20 years male was brought to hospital for medical examination with alleged history of sexual offence. After examination, he opined that there is nothing to suggest that patient is incapable of performing sexual intercourse. He prepared the MLC and the same is Ex. PW10/B, bearing his signature at point 'A'.
Despite grant of opportunity neither PW10 - Dr. Amit Shokeen was crossexamined on behalf of accused.
In view of above and in the circumstances, it stands proved on the record that accused Rajesh @ Brij Kishore was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE 34 of 47 35 FIR No. 369/12 PS - Bawana
15. PW8 - Ms. L. Babyto Devi, Senior Scientific Officer, FSL, Rohini, Delhi who deposed that she is M.Sc. (Forensic Science) and having more than six years experience of examining the exhibits in DNA and Biology devision. On 27/11/2012 three sealed parcels were received in their office in connection with the present case for DNA Examination. The same were marked to her for DNA Examination. She examined the exhibits and gave her report which is Ex. PW8/A, bearing her signature at point 'A'.
As per the FSL report Ex. PW8/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 envelope sealed with the seal of "MSMB HOSPITAL, POOTH KHURD" containing exhibits '1a' and '1b' of prosecutrix (name withheld).
Exhibit '1a' : One lady shirt. Exhibit '1b' : One lady salwar. Parcel '2' : One sealed envelope sealed with the seal
of "MSMB HOSPITAL, POOTH KHURD" containing exhibit '2a', '2b', '2c', '2d' & '2e' of prosecutrix (name withheld). Exhibit '2a' : Two cotton wool swab kept in a small vial 35 of 47 36 FIR No. 369/12 PS - Bawana alongwith one vial having dirty liquid labelled as vaginal swab, anterior fornix, posterior fornix.
Exhibit '2b' : Three vials said to contain blood sample of prosecutrix (name withheld) return in original. Exhibit '2c' : Pubic hair and scalp hair kept in a small glass vial.
Exhibit '2d' : Cotton wool swab sticks from breaast swab kept in a small glass vial.
Exhibit '2e' : Cotton wool swab sticks from breaast swab kept in a small glass vial.
Parcel '4' : One sealed cloth parcel sealed with the seal of "MSMB HOSPITAL POOTH KHURD" returned in original.
RESULT OF ANALYSIS
1. Semen could not be detected on exhibits '1a', '1b', '2a', '2c', '2d' & '2e'. Therefore, DNA analysis of the exhibits '1a', '1b', '2a', '2b', '2c', '2d' & '2e' & '4' could not be done.
NOTE : Remnants of the exhibits have been sealed with the seal of 'BD FSL DELHI'.
36 of 47 37 FIR No. 369/12 PS - Bawana As per the FSL Report Ex. PW8/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 and 2 belong to the prosecutrix which was seized vide seizure memo Ex. PW9/A dated 03/11/2012 and the parcel no. 4 belongs to accused Rajesh @ Brij Kishore which was seized vide seizure memo Ex. PW6/D dated 03/11/2012.
On careful perusal and analysis of the FSL evidence on record, it clearly shows that the semen could not be detected on exhibit '1a' (lady shirt of the prosecutrix), exhibit '1b' (lady salwar of the prosecutrix), '2a' (vaginal swab, anterior fornix, posterior fornix of the prosecutrix), exhibit '2c' (pubic hair and scalp hair of the prosecutrix), '2d' (breast swab of the prosecutrix) and exhibit '2e' (breast swab of the prosecutrix). Parcel No. 4 was returned in original. Therefore, no DNA analysis of the exhibits '1a', '1b', '2a', '2c', '2d', '2e' and Parcel 4 could be done.
16. Now let the testimony of PW4 Prosecutrix be perused and analysed.
PW4 Prosecutrix, in her examinationinchief has deposed 37 of 47 38 FIR No. 369/12 PS - Bawana which is reproduced and reads as under : "Nothing had happened with me. I had gone to my village without telling my parents alongwith Rajesh. Accused Rajesh is also a resident of village nearby my village. Thereafter, my parents had made a complaint to the Police thinking that Rajesh had taken me away after kidnapping me. I had gone with Rajesh as he was going to his village. Exact date, month and year I do not recollect but it pertains to about 4/5 months ago. No galat kaam was committed with me by Rajesh."
"My statement was recorded before the Learned MM u/s 164 Cr.P.C.
At this stage one sealed envelope sealed with the seal of 'SBT' is produced and opened. From which the statement u/s 164 Cr.P.C. and the proceedings are taken out. The statement u/s 164 Cr.P.C. shown to the witness who identifies the same of having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW4/A, signed by me at points 'A' on each page. I was medically examined in the Hospital."
She identified the accused Rajesh present in the Court. PW4 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement. The crossexamination as conducted by the Learned Addl. PP for the State reads as under : "It is correct that when my statement u/s 164 Cr.P.C. was recorded, Learned MM had put the questions and I replied the same 38 of 47 39 FIR No. 369/12 PS - Bawana voluntarily. I have stated to the Learned MM whatever had happened with me.
I was knowing accused Rajesh for the last about 1/2 months and he was residing in our neighbourhood. He was Driver by profession. Accused Rajesh used to talk with me even on the telephone. It is correct that on 27/10/2012 in the night I woke up for going to bathroom and as soon as I was reaching near the Bathroom, accused Rajesh met me there. It is wrong to suggest that accused Rajesh caught hold my hand and threatened me to kill and due to which I got feared and he dragged me and took me at his house and gave 2/3 slaps and forcibly removed my salwar and thereafter forcibly established physical relation with me in spite my refusal (confronted with portion 'A' to 'A' of statement Ex. PW4/A where it is so recorded).
It is wrong to suggest that I got feared so I did not raise alarm and he kept me at his house for about 4/5 days and his house is at a distance from Delhi (confronted with portion 'B' to 'B' of statement Ex. PW4/A where it is so recorded). It is correct that in the night of Saturday, accused Rajesh took me at his village Bhind. Vol. Accused Rajesh is resident of our village. It is wrong to suggest that accused Rajesh had took me at his house at Bhind and forcibly established physical relation with me (confronted with portion 'C' to 'C' of statement Ex. PW4/A where it is so recorded). It is correct that we reached at our house in village Bhander. Vol. The village of accused Rajesh is Bhind which is near to our village Bhander. It is correct that accused Rajesh was apprehended in the village by my Father and Police had brought me and Rajesh at Delhi. Accused Rajesh had promised me to marry. Vol. I also wants to marry with him. It is wrong to suggest that accused Rajesh had forcibly took me at his village and committed 39 of 47 40 FIR No. 369/12 PS - Bawana rape upon me many times without my consent and against my Will. It is wrong to suggest that I am deposing falsely to save the accused as he had promised me to marry."
During her crossexamination as was conducted by the Learned Counsel for the accused, PW4 - prosecutrix deposed that : "No Galat Kaam was committed with me by accused Rajesh in Bhind, M.P. when he had taken me there."
From the aforesaid narration of PW4 - prosecutrix, it is clearly indicated that she has specifically deposed that she had gone with Rajesh as he was going to his village and no galat kaam was committed with her by Rajesh. She did not support the prosecution on the statement made by her u/s 164 Cr.P.C. and negated the suggestions as were put to her by the Learned Addl. PP for the State that accused Rajesh had forcibly took her at his village and committed rape upon her many times without her consent and against her will or that she is deposing falsely to save the accused as he had promised her to marry. During the cross examination by the Learned Counsel for the accused she specifically deposed that no galat kaam was done with her by accused Rajesh in Bhind, M.P. when he had taken her there.
40 of 47 41 FIR No. 369/12 PS - Bawana As discussed hereinabove PW4 - prosecutrix was found to be aged between 18 to 20 years as on the date of incident on 27/10/2012, from the testimony of PW4 - prosecutrix nothing is being indicated that she was taken or enticed from the lawful guardianship of her father Harcharan Singh after extending threat to kill her, with intent that she may be wrongly and secretly confined and with intent to seduce her for illicit intercourse or that after kidnapping the prosecutrix (name withheld), D/o Harcharan Singh, he forcibly took her at his house, slapped her and forcibly committed rape upon her, forcibly kept/wrongfully confined her there for four/five days and thereafter took her at his house in Bhind and there also he committed rape upon her forcibly and from there he left her at her Village Bhander, District Datiya.
Even the FSL Report Ex. PW8/A as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
Now, let the testimonies of PW12 - Harcharan Singh, father of the prosecutrix and PW13 - Sadhna, Bua of the prosecutrix be perused and analysed.
41 of 47 42 FIR No. 369/12 PS - Bawana PW12 - Sh. Harcharan Singh, father of the prosecutrix in his examinationinchief has deposed that : "I am residing at the above said address (Plot No. 154/509, SBI Bank wali gali, Pooth Khurd) in Delhi alongwith my family and working as a labourer in a factory. My younger daughter/prosecutrix (name withheld) was aged about 16 years and she was having stout built and her height was about 5 foot 3 inch. About one year back, date I do not remember, she left my house for factory for work but she did not returned back. I enquired her whereabouts from the neighbourers. At that time I was having suspicion that one person namely Rajesh who was residing in our neighbourhood might have kidnapped my daughter.
On the next day, I went to PS Bawana and made a complaint Ex. PW12/A which bears my signature at point 'A'. On the basis of which, the present FIR was registered.
My daughter was illiterate and she never went to the School. I was not having any date of birth certificate as she born in our house. Thereafter, I went to my native village Bhander, (MP) in search of my daughter. Accused Rajesh was also resident of village Bhind in MP. When I was present in my native village alongwith my sister Sadhna, accused Rajesh and my daughter came in our house in village. The Police official from the Delhi from PS Bawana, namely SI Neeraj alongwith his staff also reached in their village and from there my daughter/prosecutrix (name withheld) and accused were brought to Delhi by the Police. I alongwith my sister Sadhna had also accompanied the Police. From the Police Station my daughter was taken to Hospital where she was medically examined. Police enquired from me."
42 of 47 43 FIR No. 369/12 PS - Bawana PW12 - Sh. Harcharan Singh was also crossexamined by the Learned Addl. PP for the State which is reproduced and reads as under : "Q. Is it correct that your daughter/prosecutrix (name withheld) was missing on 27/10/2012 and you got registered the case on 28/10/2012?
Ans. It is correct."
During his crossexamination, by the Learned Counsel for the accused PW12 - Sh. Harcharan Singh has deposed that : "Prosecutrix (name withheld) had gone without informing me and for this reason I had lodged the report with the Police. My daughter/prosecutrix (name withheld) had not told me about committal of any 'Galat Kaam' or about making of any 'Galat Sambandh' with her by Rajesh. Vol. When the girl (my daughter) had gone away, I was not with her."
PW13 - Ms. Sadhna, Bua of the prosecutrix in her examinationinchief has deposed that : "I am a house wife. Accused Rajesh who is present in the Court came to my village alongwith my niece/prosecutrix (name withheld). My brother Harcharan Singh also reached our house from 43 of 47 44 FIR No. 369/12 PS - Bawana Delhi in search of prosecutrix (name withheld). The Police officials from Delhi also reached our house. From our house my niece/prosecutrix (name withheld), accused Rajesh came to PS Bawana, Delhi alongwith my brother and myself. In the village I came to know from my brother that he had lodged a missing report of my niece/prosecutrix (name withheld) at PS Bawana. From Police Station my niece was taken to Hospital for her medical examination where she was medically examined. My niece was produced before the Court from where she accompanied us to the house of my brother at Pooth Khurd, Delhi."
Despite grant of opportunity, PW13 - Ms. Sadhna was not crossexamined on behalf of the accused.
On careful perusal and analysis of the testimonies of PW12
- Harcharan Singh and PW13 - Smt. Sadhna, it is indicated that nothing material has come out in their testimonies so as to advance the case of the prosecution on the core spectrum of the crime.
Further, on a conjoint reading of the testimonies of PW12 - Harcharan Singh and PW13 - Smt. Sadhna in conjunction with the testimony of PW4 - prosecutrix, on careful perusal and analysis it is found that due to the hostility of PW4 - prosecutrix as well as PW12 - Harcharan Singh and as to what PW12 - Harcharan Singh has deposed in 44 of 47 45 FIR No. 369/12 PS - Bawana his crossexamination as was conducted by the Learned Counsel for the accused that "prosecutrix (name withheld) had gone without informing me and for this reason I had lodged the report with the Police. My daughter/prosecutrix (name withheld) had not told me about committal of any 'Galat Kaam' or about making of any 'Galat Sambandh' with her by Rajesh. Vol. When the girl (my daughter) had gone away, I was not with her", the case of the prosecutrix could not be rescued.
17. 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 Rajesh @ Brij Kishore. The hostility of PW4 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that on 27/10/2012 in the night, at Plot No. 154/509, SBI wali gali, Pooth Khurd, Delhi accused Rajesh @ Brij Kishore kidnapped PW4 - prosecutrix, age around 18 years (to be exact between 1820 years) from the lawful guardianship of her father Harcharan Singh after extending threat to kill her, with intent that she may be wrongly and secretly confined and with 45 of 47 46 FIR No. 369/12 PS - Bawana intent to seduce her for illicit intercourse or that after kidnapping the prosecutrix (name withheld), D/o Harcharan Singh, he forcibly took her at his house, slapped her and forcibly committed rape upon her, forcibly kept/wrongfully confined her there for four/five days and thereafter took her at his house in Bhind and there also he committed rape upon her forcibly and from there he left her at her Village Bhander, District Datiya.
I, accordingly, acquit accused Rajesh @ Brij Kishore for the offences punishable u/s 363/365/366/506/342/376 IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Rajesh @ Brij Kishore in the commission of the offences u/s 363/365/366/506/342/376 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 Rajesh @ Brij Kishore beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Rajesh @ Brij Kishore. I, 46 of 47 47 FIR No. 369/12 PS - Bawana therefore acquit accused Rajesh @ Brij Kishore for the offences punishable u/s 363/365/366/506/342/376 IPC after giving him the benefit of doubt. Accused Rajesh @ Brij Kishore is in JC. He be released forthwith, if not wanted in any other case. However, on his release accused Rajesh @ Brij Kishore shall appear in the Court and shall execute a bail bond in the sum of Rs. 20,000/ under section 437A Cr.P.C.
Announced in the open Court (MAHESH CHANDER GUPTA) on 20th Day of January, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 47 of 47