Delhi District Court
State vs Jitender Kumar on 20 May, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0410762013
SC No.10/14 Date of institution : 09.01.2014
FIR No.608/13 Date on which final
PS. Karawal Nagar arguments were
U/S. 366/376/506/323 IPC heard : 17.05.2014
Date of judgment : 20.05.2014
State versus Jitender Kumar
S/o Sh. Mahabir Singh
R/o H. No. C-38, Gali No.3,
Mukund Vihar, Karawal Nagar,
Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 10.10.2013, SI Santosh Sharma on receipt of telephonic information from SI Sandeep Kumar regarding a rape case, reached GTB Hospital, where she obtained MLC No. G-113/13 of the prosecutrix. She recorded the statement of the prosecutrix wherein the SC No.10/14 State vs. Jitender Kumar Page 1 of 14 prosecutrix made following allegations:
(i) She (prosecutrix) is a student of B.A. final year and knew the accused Jitender for the last 1 ½ years who was residing at Karawal Nagar. Accused used to make telephone calls to her and wanted to make friendship with her. Prosecutrix refused his friendship but the accused pressurised her saying that if she will not make friendship with him, he will kill her parents and brother.
(ii) On 10.10.2013 at about 11.00 am when she was brooming outside her house, accused came on his motorcycle and forcibly took her to his house where he beat her and by force raped her without her consent and will. Accused also threatened the prosecutrix that if she will disclose about the incident to any person, he would kill her father and brother. Thereafter accused left her and ran away from there. Prosecutrix came to her house and disclosed about the incident to her mother and father.
Father of the prosecutrix called the police at 100 number.
2. In pursuance of complaint of the prosecutrix, a case u/s 366/323/376/506 IPC was got registered against accused. The prosecutrix was got medically examined at GTB Hospital on 10.10.2013 at 4.30 pm. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded by learned M.M. on 11.10.2013. Accused was arrested on 10.10.2013 SC No.10/14 State vs. Jitender Kumar Page 2 of 14 and was got medically examined. The sealed exhibits received from the hospital were seized by the police and sent to FSL, Rohini for analysis on 11.11.2013. After completion of investigation, charge sheet u/s 366/323/376/506 IPC was filed against the accused.
3. Since the major offences in the present case are triable by the court of Session, vide order dated 03.01.2014, learned C.M.M. committed this case to the court of Sessions and on allocation, this case was assigned to this court.
4. Vide order dated 27.01.2014, my learned predecessor framed the charge u/s 366/376/506/323 IPC against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined ten witnesses i.e. PW1-prosecutrix, PW2-HC Har Swaroop, PW3- Dr. Vivek, PW4-Ct. Amit Kumar, PW5-Ct. Rakesh, PW6-Sh. Sunil Gupta (learned Metropolitan Magistrate), PW7-Ct. Karamveer, PW8-Sh.V. Sankaranarayanan from FSL Rohini, PW9-Dr. Geetanjali Sharma, PW10-W/SI Santosh.
6. Out of these witnesses, PW1 prosecutrix is the SC No.10/14 State vs. Jitender Kumar Page 3 of 14 material witness of this case whose testimony shall be discussed at a later stage.
7. PW2-HC Har Swaroop deposed that on 10.10.2013, he recorded the FIR Ex. PW2/A of the present case on the basis of rukka brought by Ct. Amit Kumar (PW4). He made his endorsement on rukka as Ex. PW2/B.
8. PW4-Ct. Amit Kumar deposed that on 10.10.2013 he alongwith W/ ASI Santosh reached at GTB Hospital and from where he was sent to police station alongwith rukka for registration of FIR. Thereafter the accused was arrested vide arrest memo Ex.PW4/A and his personal search was conducted vide memo Ex. PW4/B. The disclosure statement Ex. PW4/C was recorded.
9. PW5-Ct. Rakesh deposed that on 11.10.2013 that he took the accused at GTB Hospital for his medical examination. After medical examination, sealed parcels received from the hospital were seized by the IO vide seizure memo Ex. PW5/A which bears his signature at point A.
10. PW9-Dr. Geetanjali Sharma, Senior Resident Gyane department, GTB Hospital deposed that on SC No.10/14 State vs. Jitender Kumar Page 4 of 14 10.10.2013, the prosecutrix was medically examined by Dr. Neha Aggarwal, SR who has left the services of the hospital and her present whereabouts are not known. This witness has also deposed that as per MLC, the patient was having multiple contusion over hands and legs, 2x2 cm contusion over head and right knee, abrasion 3x4 cm over left epigastrium. On per speculum examination, mild vaginitis was present. She has proved the MLC of the prosecutrix as Ex. PW9/A.
11. PW3-Dr. Vivek deposed that he medically examined Jitender Kumar and proved his MLC as Ex.PW3/A.
12. PW7-Ct. Karamveer deposed that on 11.11.2013 he took the sealed parcels from MHC (M) for depositing the same at FSL Rohini vide RC No. 133/21 and deposited the sealed parcel at FSL, Rohini. He handed over the copy of RC to MHC (M).
13. PW8-Sh. V. Sankaranarayanan, Senior Scientific Officer( Biology) Forensic Laboratory, Rohini deposed that on 11.11.2013 he examined the three sealed parcels of the present case and stated that parcel no.1 was pertaining to the victim and parcel no.2 and 3 were pertaining to the accused. He proved the detailed report of SC No.10/14 State vs. Jitender Kumar Page 5 of 14 examination/parcels as Ex.PW8/A and Ex.PW8/B. This witness deposed that as per examination, semen was detected on exhibits 1j(i), 1j(ii) and 1j(iii). Thus, exhibit 1g(i) i.e. micro slide of victim was taken for DNA analysis. Exhibit 2 i.e. gauze cloth piece of accused was also taken for DNA analysis. He deposed that on DNA analysis only female DNA profile was developed on exhibit 1g (i) i.e. micro slide of victim. Hence, it could not be compared with the male DNA profile generated from exhibit 2 i.e. gauze clothe piece of accused. Thus they cannot conclude the origin of the source of semen. He further deposed that he cannot conclude or say that the semen detected on exhibits 1j(i), 1j(ii) and 1j(iii) was that of the accused or not.
14. PW6-Sh. Sunil Gupta, learned Metropolitan Magistrate has deposed that on 11.10.2013, he recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW1/B.
15. PW10 W/SI Santosh deposed that on receipt of information from SI Sandeep Kumar regarding rape, she reached at GTB Hospital where MLC of the prosecutrix was obtained along with her sealed exhibits which were seized vide seizure memo Ex.PW10/A. She recorded the statement of the prosecutrix Ex.PW1/A on which she made her SC No.10/14 State vs. Jitender Kumar Page 6 of 14 endorsement Ex. PW10/B and got the case registered. She also prepared site plan Ex. PW10/C. Accused was arrested and he was also got medically examined. Statement of the prosecutrix u/s 164 Cr. P.C. Ex.PW1/B was got recorded by the learned MM. She (IO) recorded the statements of the witnesses u/s 161 Cr.P.C and after completion of investigation, she filed the chargesheet.
16. After closing of prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded wherein he stated that he is innocent and has been falsely implicated in this case. Accused stated that he does not want to lead any defence evidence.
17. I have heard arguments addressed by Ms. Madhu Arora, learned Addl. PP for the State and Sh. Pradeep Teotia, Advocate for accused and perused the record.
18. Prosecutrix ( PW1) is the only witness who has personal knowledge about the incident. This witness has not supported the case of prosecution and has deposed that the accused did not commit rape on her. The prosecutrix was aged about 22 years at the time of incident. In her statement, she deposed that she was SC No.10/14 State vs. Jitender Kumar Page 7 of 14 studying in B.A. final year. Accused used to call her on telephone and harass her. On 10.10.2013 at about 11.00 am when she was cleaning her house and no family member was present in the house, at that time accused came to her house and called her in the gali. She went in the gali where accused gave slap blows on her face. Public gathered there and they informed the police and reported the matter to the police. She further deposed that no other incident had taken place with her.
19. As this witness did not support the case of the prosecution, she was cross examined by the learned Addl. PP for the State with the permission of the court. During her cross examination, she admitted that her complaint Ex.PW1/A made to the police bears her signature. She also admitted that accused wanted to make friendship with her and he pressurised her for friendship. She denied that the accused threatened her that if she will not accept his proposal of friendship, he will kill her parents and brother. She denied that on 10.10.2013 accused took her to his house on bike where he beat her and by force committed rape on her. She also denied that the accused threatened to kill her parents and brother if she will disclose the incident to any one. She further deposed that she made her statement before learned MM u/s 164 Cr. P.C. at the SC No.10/14 State vs. Jitender Kumar Page 8 of 14 instance of the police. This witness identified her signatures on her MLC Ex.PW1/C, continuation sheet Ex.PW1/D, site plan Ex.PW1/E and arrest memo Ex.PW1/F. She also identified her clothes produced in the court as Ex.P1.
20. She was cross examined by learned counsel for the accused wherein she maintained that accused slapped her.
21. From the statement of the prosecutrix, it is clear that she has denied that accused abducted her and took her to his house on his bike where he committed rape on her. She also denied that the accused ever threatened to kill her or her family members if she will not make friendship with him or will disclose the incident to any person. In these circumstances, it must be held that there is no direct evidence to connect the accused for the offence punishable u/s 366/376/506 IPC.
22. On the day of incident i.e.10.10.2013 the prosecutrix was got medically examined at GTB Hospital by Dr. Neha Aggarwal as is apparent from the statement of PW9 Dr. Geetanjali Sharma. The MLC of the prosecutrix is Ex. PW1/C (also exhibited as Ex.PW9/A). PW9 has deposed SC No.10/14 State vs. Jitender Kumar Page 9 of 14 that Dr. Neha Aggarwal has left the services of the hospital and her whereabouts are not known. She deposed that as per the MLC, the required samples of the prosecutrix were taken and sealed and handed over to the police official. PW10 W/SI Santosh deposed that on 11.11.2013 sealed exhibits were sent to FSL, Rohini.
23. The report of Forensic Science Laboratory dated 09.04.2014 at Rohini is also on record. The FSL report records human semen was detected on exhibits '1j (i)', '1j
(ii)' and '1j (iii)'.
24. Exhibits '1j (i)' and '1j (ii)' are two micro slides having faint whitish smear of prosecutrix. Exhibit '1j (iii)' is cotton wool swab on a stick of the prosecutrix.
25. The relevant portion of the FSL report reads as follow:
"Exhibit 1g(i)' i.e. micro-slide (of prosecutrix), exhibit '1l(i)' i.e. blood sample (of prosecutrix) and exhibit '2' i.e. gauze cloth piece (of accused Jitender) were subjected to DNA isolation. DNA was isolated from exhibit '1g(i)' i.e. micro-slide (of prosecutrix), exhibit '1l(i)' i.e. blood sample SC No.10/14 State vs. Jitender Kumar Page 10 of 14 (of prosecutrix) and exhibit '2' i.e. gauze cloth piece ( of accused Jitender) using AmpFl STR Identifiler Plus kits and the data were analyzed using GeneMapper IDx software.
RESULTS
Since there was no male DNA profile
generated from the exhibit '1g(i)' i.e. micro-
slide (of prosecutrix), it could not be compared with that of exhibit '2' i.e. gauze cloth piece (of accused Jitender)."
26. PW8-Sh. V. Sankaranarayanan, Sr. Scientific Officer Biology Forensic Science Laboratory, Rohini deposed that as per his examination reports Ex.PW8/A and Ex. PW8/B, semen was detected on exhibits exhibits '1j (i)', '1j (ii)' and '1j (iii)' [Exhibits '1j (i)' and '1j (ii)' are two micro slides having faint whitish smear of prosecutrix and exhibit '1j (iii)' is cotton wool swab on a stick of the prosecutrix]. He further deposed that exhibits 1g (i) i.e. micro slide (of victim) was taken for DNA analysis. Exhibit '2' i.e. gauze cloth piece (of accused) was also taken for DNA analysis. On DNA analysis only female DNA profile was developed on exhibit 1g(i) i.e. micro slide (of victim) but it could not be compared with the male DNA profile generated from exhibit '2' i.e. gauze cloth piece (of accused). This witness SC No.10/14 State vs. Jitender Kumar Page 11 of 14 further deposed that the origin of the source of semen cannot be concluded. He further deposed that he cannot conclude that the semen detected on exhibits '1j (i)', '1j
(ii)' and '1j (iii)' was that of the accused or not.
27. In view of above evidence on record, it is not established that semen was detected on exhibits '1j (i)', '1j
(ii)' and '1j (iii)' was that of accused. Thus, there is no circumstantial evidence of sexual contact between the accused and the prosecutrix.
28. In view of above, it must be held that there is neither oral evidence nor circumstantial evidence to connect the accused with the alleged offence punishable u/s 366/376/506 IPC and he is liable to be acquitted of these offences.
29. As far as offence u/s 323 IPC is concerned, during her examination in chief, the prosecutrix deposed that on the day of incident when she was cleaning her house, accused came and called her in the gali where he gave slap blows on her face. She further deposed that the pubic persons gathered there and the matter was reported to the police.
SC No.10/14 State vs. Jitender Kumar Page 12 of 1430. No doubt, the MLC of the prosecutrix Ex. PW1/C (also exhibited as Ex.PW9/A) records that the patient was having multiple contusion over hands and legs, 2x2 cm contusion over head and right knee, abrasion 3x4 cm over left epigastrium, on per speculum examination, mild vaginitis was present as is also apparent from the statement of Dr. Geetanjali. However, her testimony is not corroborated with the contents of earlier statement Ex.PW1/A (on the basis of which this case was registered) and the her statement recorded u/s 164 Cr.P.C. Ex.PW1/D wherein she stated that accused gave her beatings at his residence. In her deposition, she nowhere has stated that the accused took her to his home where he beat her. Since the witness has made different statements on various material aspects, her statement cannot be made the sole basis for conviction of the accused. In these circumstances, I am of the opinion that the prosecution has not been able to show beyond reasonable doubt that injuries sustained by the prosecutrix as mentioned in her MLC Ex.PW1/C (also exhibited as Ex.PW9/A) were caused by the accused. Thus, accused is also liable to be acquitted for the offence punishable u/s 323 IPC.
31. In view of above discussion, it is held that the prosecution has not been able to prove its case against the SC No.10/14 State vs. Jitender Kumar Page 13 of 14 accused for the offences punishable u/s 366/376/506/323 IPC. Thus, accused is acquitted for these offences.
32. File be consigned to record room after necessary compliance.
Announced in the open court on 20.05.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi.
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