Delhi District Court
State vs . Ashok Kumar on 24 September, 2014
1
FIR No. 322/11
PS - Mangol Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 09/13
Unique ID No. : 02404R0140312012
State Vs. Ashok Kumar
S/o Late Sh. Sher Chand Manchanda
R/o D17, Pushpanjali Enclave,
Pitam Pura, Delhi.
FIR No. : 322/11
Police Station : Mangol Puri
Under Sections : 376/506 IPC
Date of committal to session Court : 04/07/2012
Date on which judgment reserved : 01/09/2014
Date on which judgment announced : 24/09/2014
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 189 2 FIR No. 322/11 PS - Mangol Puri That on 03/08/2011, on receipt of copy of DD No. 89B, SI Kuldeep Singh alongwith Constable Praveen No. 2212/OD reached at D17, Pushpanjali Enclave, Pitam Pura, Delhi where prosecutrix (name withheld being a case u/s 376 IPC) D/o Mohinder R/o Village Goli Baher Nachu Toli, Tehsil Badgaon, Distt. Sundergarh, Orrisa, aged 20 years met who got recorded her statement, which is to the effect that, she is the permanent resident of the above address and is working as maid for the last four months at D17, Pushpanjali Enclave, Pitam Pura, Delhi. Today (03/08/2011), at about 8:45 p.m., in the night, the house owner/Malkin Soniya had gone to drop her son Prince for tuition and her younger son Sumit had already gone for tuition and her husband Ashok Kumar S/o Late Sh. Sher Chand Manchanda was present at house and she (prosecutrix) was also present at the house because she does the work by staying day and night at the house and at that time, she was doing work in the kitchen when Ashok Kumar came to her and after forcibly catching hold her hand took her to the bedroom and forcibly removed her clothes despite her objection and when she screamed Ashok Kumar closed her mouth by his hand and made her fell (gira diya) on the double bed lying in the bed room and committed galat kaam with her. After 2 of 189 3 FIR No. 322/11 PS - Mangol Puri sometime, her makaan malkin Soniya came at the house and to her, she (prosecutrix) told about the incident on which her makaan malkin telephoned the Police and the Police reached at the spot and recorded her (prosecutrix) statement. Ashok Kumar has committed galat kaam with her against her consent. Legal action be taken against him. Her medical examination be got conducted. Statement has been heard and is correct (Mai Pata Uprokat Ki Sthai Niwasi Hoon Aur D17, Pushpanjali Enclave, Pitam Pura, Delhi Mein Pichel 4 Mahine Se Maid Ka Kaam Karti Hoon. Aaj Waqt Qareeb 8:45 Baje Raat Meri Makaan Maalkin Soniya Apne Bete Prince Ko Tuition Par Chorne Ke Liye Gai Hui Thi Va Unka Chhota Beta Sumit Tuition Par Pehle Hi Ja Chuka Tha Aur Sonia Ka Pati Ashok Kumar S/o Late Sher Chand Manchanda Ghar Par Haazir Tha Aur Mai Bhi Ghar Par Hi Thi Kyonki Mai RaatDin Ghar Par Hi Reh Kar Kaam Karti Hoon Jo Mai Us Samay Kitchen Mei Kaam Kar Rahi Thi Aur Ashok Mere Paas Aaya Aur Mera Jabardasti Haath Pakad Kar Apne Bed Room Mei Le Gaya Aur Jabardasti Mere Kapde Utaar Diye Jo Mai Mana Karti Rahi Aur Mai Chillai To Ashok Ne Haath Se Mera Muh Band Kar Diya Aur Bed Room Mei Biche Double Bed Par Mujhe Gira Diya Aur Mere Saath Galat Kaam Kar Diya. Thodi Der 3 of 189 4 FIR No. 322/11 PS - Mangol Puri Baad Meri Makaan Malkin Soniya Ghar Par Aa Gai Aur Maine Unko Saari Baat Batlai To Meri Makaan Malkin Ne Police Ko Phone Kar Diya Aap Mauka Par Aae Aapne Mera Bayan Likha. Ashok Kumar Ne Mere Saath Bina Meri Marzi Ke Mere Saath Galat Kaam Kiya Hai, Iske Khilaaf Kanooni Karyawahi Ki Jaye Va Mera Daaktari Mulahja Karaya Jave. Bayan Sun Liya Thik Hai). Lady Constable Meenu was called at the spot. After filling up of the naksha majroobi of the above address/place of incident, prosecutrix was sent for medical examination with lady Constable Meenu and Constable Parveen at SGM Hospital and her medical examination was got conducted vide MLC No. 10741 on which Doctor has endorsed ''Alleged H/o sexual assault and hymen ruptured''. From the statement of the prosecutrix, on inspection of the MLC and from the contents of the DD finding that an offence u/s 376 IPC appeared to have been committed, the case was got registered. The sealed exhibits handed over by the Doctor after the medical examination of the prosecutrix was taken into Police possession. Site plan was prepared at the instance of prosecutrix. Accused Ashok Kumar was arrested and his personal search was conducted and his disclosure statement was recorded. His medical examination vide MLC No. 19433 4 of 189 5 FIR No. 322/11 PS - Mangol Puri was got conducted from SGM Hospital and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession. The sealed exhibits were sent to FSL, Rohini vide RC No. 118/21/11 on 09/09/2011. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. On the MLC No. 10741/11 of the prosecutrix, Doctor has opined the nature of injury as ''simple''. Statements of the witnesses were recorded.
Upon completion of the necessary further investigation, challan for the offences u/s 376/506 IPC was prepared against accused Ashok 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 and after hearing on charge, prima facie a case under section 376 IPC was made out against the accused. The charge was framed accordingly, which was 5 of 189 6 FIR No. 322/11 PS - Mangol Puri 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 24 witnesses. PW1 - HC Dharambir, PW2 - Constable Jas Ram Meena, PW3 - HC Suresh Kumar, PW4 - Dr. P. C. Prabhakar, Senior Medical Officer, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi, PW5 - L/Constable Meenu, PW6 - Constable Praveen, PW7
- Dr. Manoj Dhingra, Incharge, Mortuary and MRD Department, Sanjay Gandhi Memorial Hospital, New Delhi, PW8 - Smt. Sonia Manchanda, PW9 - prosecutrix, PW10 - Ms. Nazma Khatoon, PW11 - Dr. Parvinder Kaur, SR (Obs. & Gynae), Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi, PW12 - Ms. Sunita Suman, Sr. Scientific Officer, Biology, FSL, Rohini, Delhi, PW13 - SI Kuldeep, PW14 - Dr. Indermeet Singh, CMO, SGM Hospital, PW15 - Dr. M. Das, CMO, SGM Hospital, PW16 - Sh. A. K. Srivastava, Dy. Director, DNA Finger Printing Unit, FSL Rohini, Delhi, PW17 - Constable Ashok Kumar, PW18 - Constable Hari Kumar, PW19 - SI Jaspal, PW20 - Sh. Deepak Wason, MM - 03, SouthEast, Saket Courts, New Delhi, PW21 - Dr. 6 of 189 7 FIR No. 322/11 PS - Mangol Puri Manoj Dhingra, MO, Sanjay Gandhi Memorial Hospital, Mangol Puri, New Delhi, PW22 - Constable Rakesh Kumar, PW23 - Dr. Bina, CMO, SGMH, Mangol Puri, Delhi and PW24 - HC Vijender.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 - HC Dharambir who tendered his examinationin chief by way of affidavit Ex. PW1/1 bearing his signature at points 'A' and 'B' and deposed that on 04/08/2011, SI Kuldeep (IO) of PS - Mangol Puri handed over four pullindas related to case FIR No. 322/11 and two sample seals and the same were kept in Malkhana vide Mad No. 5166 of Register No. 19. On 09/09/2011, he (PW1) handed over the above pullindas alongwith two sample seals to SI Kuldeep vide RC No. 118/21/11 dated 09/09/2011 which were submitted to FSL, Rohini by SI Kuldeep and he handed the receipt of FSL to him (PW1) and proved entry in Register No. 19 vide Serial No. 5166 copy of which is Ex. PW1/A (running into two pages), entry in Register No. 21 vide RC No. 118/21/11 copy of which is Ex. PW1/B bearing his signature at point 'A' and receipt/acknowledgment issued by FSL copy of which is Ex. PW1/C 7 of 189 8 FIR No. 322/11 PS - Mangol Puri (original entries and original receipt seen and returned).
PW2 - Constable Jas Ram Meena who tendered his examinationinchief by way of affidavit Ex. PW2/1 bearing his signature at points 'A' and 'B' and deposed that on 03/08/2011, he was DD Writer in PS - Mangol Puri from 5:00 p.m. to 1:00 a.m. and he has written DD No. 89B and 95B dated 03/08/2011 copies of which are Ex. PW2/A bearing his signature at point 'A' and Ex. PW2/B respectively (original DD entries seen and returned).
PW3 - HC Suresh Kumar who deposed that on 04/08/2011, he was posted at Police Station Mangol Puri and was working as Duty Officer. On that day, on receipt of tehrir sent by SI Kuldeep through Constable Parveen Kumar, he registered the present case i.e. FIR No. 322/11, u/s 376 IPC and the said FIR was typed by computer operator Constable Ashwini Kumar. Thereafter, he handed over the original tehrir and copy of FIR to Constable Parveen Kumar for handing over the same to SI Kuldeep. Copy of the said FIR is Ex. PW3/A bearing his signature at point 'A'. He also made endorsement on the rukka which is 8 of 189 9 FIR No. 322/11 PS - Mangol Puri Ex. PW3/B bearing his signature at point 'A' (original FIR seen and returned).
PW4 - Dr. P. C. Prabhakar, Senior Medical Officer, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi who deposed that in the intervening night of 0304/08/2011, he was on duty in the Hospital. On that day, patient/prosecutrix (name withheld), D/o Mohender, aged 20 years was brought to the Hospital by L/Constable Meenu with the alleged history of sexual assault. After her local examination by her, she referred her to SR Gynae. The MLC of prosecutrix (name withheld) is Ex. PW4/A bearing his signatures at point 'A'. As per the local examination, he observed bruises and scratches around neck and front of chest, small abrasions over lower lip. On the same intervening night in the morning at 4:15 a.m. on 04/08/2011, the patient namely Ashok Kumar S/o Sher Chand, aged 49 years, male was brought by Constable Parveen and he (PW4) conducted his medical examination already Ex. PX5 bearing his observations at point bracketed 'X' to 'X1'.
PW5 - L/Constable Meenu who deposed that on 03/08/2011, 9 of 189 10 FIR No. 322/11 PS - Mangol Puri she was posted at Police Station Bawana. On that day, she was on duty at District lines from 8:00 p.m. to 9:00 a.m. At about 12 (midnight) after receipt of the call she was called form District Lines and she was asked to go to D17, Pushpanjali Enclave, Pitampura. She alongwith SI Kuldeep reached D17, Pushpanjali Enclave, Pitampura where they met a land lady and her husband and Constable Parveen who was already present there. One girl/prosecutrix (name withheld) was also present in the house. IO handed over prosecutrix (name withheld) to her (PW5) and asked her to take her to SGM Hospital for getting her medical conducted. She alongwith Constable Parveen took prosecutrix (name withheld) to SGM Hospital where she got conducted the medical examination of prosecutrix (name withheld). After her medical examination doctor handed over to her samples, exact number she does not recollect. Thereafter, they came back to the Police Station where she handed over all the sealed samples duly sealed with the seal of the Hospital to the IO. The IO thereafter prepared the memo of the same which she (PW5) signed which seizure memo is Ex. PW5/A bearing her signature at point 'A'. the girl/prosecutrix was also kept in the Police Station. SI Kuldeep thereafter recorded the statement of the prosecutrix.
10 of 189 11 FIR No. 322/11 PS - Mangol Puri Thereafter, the prosecutrix was relieved from the Police Station. She wants to add that before she left for the Hospital one bed sheet was also taken into possession by the IO from the house D17, Pushpanjali Enclave, Pitampura. On the leading questions put by the Learned Addl. PP for the State, deposed that it is correct that after she reached the spot alongwith Constable Parveen, the IO handed over to her the request to the CMO for medical examination of the prosecutrix. It is correct that nine samples/exhibits including pullindas and sample seal were handed over to her by the Doctors at SGM Hospital which she then handed over to the IO. It is correct that she had first come to the spot after the medical examination of the prosecutrix was got conducted but it is wrong to suggest that she handed over the pullinda to the IO at the spot. Vol. she handed over the pullinda to the IO in the Police Station thereafter. It is wrong to suggest that the statement of prosecutrix (name withheld) was recorded at the spot. Vol. It was recorded in the Police Station. It is correct that after the registration of the FIR, site plan was prepared by the IO and also the bed sheet was seized. Her statement was recorded on the same day by the IO.
11 of 189 12 FIR No. 322/11 PS - Mangol Puri PW6 - Constable Parveen, who deposed that on 03/08/2011, he was posted at Police Station Mangol Puri. On that day, he was on emergency duty alongwith SI Kuldeep Rana from 8:00 p.m. to 8:00 a.m. At about 10:00 p.m. they were in the area of Police Station Mangol Puri for the investigation of other case and they received a telephone call from the Duty Officer that DD No. 89B was marked to SI Kuldeep Rana for further proceedings in respect of rape committed with the maid by the husband of the informer at D17, Pushpanjali Enclave, Pitampura, Delhi. He alongwith SI Kuldeep Rana immediately reached at D17, Pushpanjali Enclave, Pitampura, Delhi. They met prosecutrix (name withheld) and her land owner lady and accused Ashok there. SI Kuldeep Rana interrogated prosecutrix (name withheld) and recorded her statement wherein she alleged that accused Ashok committed rape with her. One lady Constable Meenu was called at the spot and thereafter he alongwith prosecutrix (name withheld) and lady Constable Meenu went to SGM Hospital on the directions of SI Kuldeep Rana for medical examination of prosecutrix where her medical examination was conducted. Thereafter, they returned back at the spot. Lady/Constable Meenu handed over MLC of prosecutrix to the IO and also handed over rape 12 of 189 13 FIR No. 322/11 PS - Mangol Puri exhibits, nine pullindas in sealed condition duly sealed with the seal of the SGM Hospital in an envelope to the IO alongwith the sample seal and IO seized the same vide seizure memo already Ex. PW5/A bearing his signatures at point 'A' and SI Kuldeep Rana put his signatures at point 'B'. SI Kuldeep Rana prepared the rukka and handed over the same to him for registration of the FIR and FIR No. 322/11 was got registered on the basis of above said statement of prosecutrix and rukka. He returned back at the spot and handed over the copy of the FIR and original rukka to SI Kuldeep Rana for further investigations. Thereafter, SI Kuldeep Rana arrested accused Ashok Kumar vide Ex PW6/A bearing his signatures at point 'A' and prosecutrix (name withheld) put her signatures at point 'B', accused Ashok Kumar put his signatures at point 'C' and IO SI Kuldeep Rana put his signatures at point 'D'. Personal search of the accused was taken vide memo Ex. PW6/B bearing his signatures at point 'A' and prosecutrix (name withheld) put her signatures at point 'B', accused Ashok Kumar put his signatures at point 'C' and IO SI Kuldeep Rana put his signatures at point 'D'. Thereafter, on the directions of SI Kuldeep Rana, he took accused Ashok Kumar to SGM Hospital for his medical examination. His medical examination was conducted and 13 of 189 14 FIR No. 322/11 PS - Mangol Puri thereafter he returned back at the spot alongwith accused Ashok Kumar and he handed over the copy of MLC to the IO and he also handed over two pullindas containing underwear and the blood sample of accused Ashok Kumar in sealed condition with the seal of SGM Hospital alongwith the sample seal to the IO, which were received by him at the Hospital. IO seized these pullindas and sample seal vide seizure memo Ex. PW6/C bearing his signatures at point 'A', accused Ashok put his signatures at point 'B' and IO put his signatures at point 'C'. Thereafter, they returned back to the Police Station and the seized articles were deposited in the Malkhana. His statement was recorded by the IO. He correctly identified the accused Ashok Kumar present in the Court.
PW7 - Dr. Manoj Dhingra, Incharge, Mortuary and MRD Department, Sanjay Gandhi Memorial Hospital, New Delhi (He has also been examined as PW21), who deposed that on 13/10/2011 he was posted at the above said Hospital and on that day he examined the medical documents of prosecutrix (name withheld) D/o Mahendra, female 20 years old, who was medically examined in the casualty vide MLC Ex. PW4/A on 03/08/2011 and also in the Gynae Department. He 14 of 189 15 FIR No. 322/11 PS - Mangol Puri opined that the nature of injuries were simple. His observations are encircled portion at point 'X' on Ex. PW4/A which bears his signatures at point 'B'.
PW8 Smt. Sonia Manchanda is the landlady (Makan Malkin) and also the wife of the accused, who deposed that she was running a beauty parlour. On 03/08/2011, at about 08:30 p.m., she went to drop her son namely Prince for tuition and her another son namely Sumit had already gone for his tuition. Prosecutrix (name withheld) was her full time maid and was residing at her house. She (prosecutrix) was employed at her house since four months prior to the incident. Her husband Ashok i.e. the accused present in the Court (correctly identified) and the maid /prosecutrix (name withheld) were at home. At about 9:50 p.m., she returned back to her house and found that maid/prosecutrix was sitting outside the house and crying. When she inquired about the reason she (prosecutrix) told her (PW8) that her (PW8) husband Ashok Kumar had done galat kaam with her (prosecutrix) i.e. raped her (prosecutrix) when she (PW8) had gone to leave her son for tuition. She immediately called the Police on 100 number. On Court Question to explain the 15 of 189 16 FIR No. 322/11 PS - Mangol Puri physical condition of the prosecutrix (name withheld) and her husband Ashok, the witness has replied that : The clothes of prosecutrix (name withheld) of prosecutrix (name withheld) were torn and cut mark on her lips and scratch marks and bruises on her neck and chest portion whereas her husband was inside the house on the ground floor in an underwear and banyan. Police reached at their house and interrogated prosecutrix (name withheld) and recorded her statement. After some time, one Lady Constable Meenu also reached at their house and thereafter prosecutrix (name withheld) was taken to the SGM Hospital for her medical examination. After her medical examination, they returned at their house. Police inquired about the place of incident from prosecutrix (name withheld) and she had shown the place of incident to the Police and Police prepared the site plan. At the instance of prosecutrix (name withheld) one bed sheet was recovered from the double bed of the ground floor of the house and the same was kept in a plastic polythene and sealed the same with the seal of 'KR'. Police seized the same vide seizure memo Ex. PW8/A which bears her signatures at point 'A' and prosecutrix (name withheld) also put her signatures at point 'B' in her presence. Thereafter, Police arrested her husband Ashok 16 of 189 17 FIR No. 322/11 PS - Mangol Puri Kumar and took him away from the house. The arrest memo already Ex. PW6/A bears her signatures at point 'E' after the information of arrest of her husband i.e. accused Ashok was given to her. She identified the bed sheet Ex. P1, underwear Ex. P2 and plastic polythene Ex. P3.
PW9 Prosecutrix is the victim, who deposed regarding the incident and proved the statement made to the Police Ex. PW9/A bearing her signature at point 'A', site plan of the place of incident Ex. PW9/B bearing her signature at point 'A', seizure memo of the bed sheet of the double bed on which rape was committed Ex. PW8/A bearing her signature at point 'B', arrest memo of accused Ashok Kumar Ex. PW6/A, his personal search memo Ex. PW6/B both memos bearing her signature at point 'B', her statement recorded u/s 164 Cr.P.C. Ex. PW9/C bearing her signature at point 'A' and identified and proved the bed sheet of the double bed recovered from the place of incident Ex. P1, the plastic polythene (in which bed sheet was wrapped, and an underwear of accused Ashok Kumar was also found wrapped) Ex. P3 and also identified and proved her clothes, ladies shirt Ex. P4, salwar Ex. P5, shamiz Ex. P6 and underwear Ex. P7.
17 of 189 18 FIR No. 322/11 PS - Mangol Puri PW10 Ms. Nazma Khatoon, Counselor, NGO Nav Shristi, who deposed that on 04/08/2011, she was called at PS - Mangol Puri where prosecutrix (name withheld, Sonia and Police officials SI Kuldeep and SHO were present. She found the prosecutrix (name withheld) weeping at that time and she (PW10) counselled her. Prosecutrix (name withheld) told her that on 03/08/2011 at about 08:45 p.m., accused Ashok committed rape upon her at his house while wife of accused Ashok, Sonia had gone alongwith her son for tuition and accused Ashok committed rape upon her in his bed room after dragging her from kitchen and removed her clothes and when she cried Accused closed her mouth with his hands and when her land lady Sonia returned back then she told all the facts to her. She (PW10) counselled her. Police recorded her statement. On the leading questions put by the Learned Addl. PP, PW10 - Ms. Nazma Khatoon deposed that, she reached at the Police station on 04/08/2011 at about 7:45 a.m. It is correct that FIR has already been registered at that time and Police had already been recorded the statement of prosecutrix on the basis of which FIR has been registered. Prosecutrix (name withheld) was alone and she (prosecutrix) 18 of 189 19 FIR No. 322/11 PS - Mangol Puri was scared and she (prosecutrix) was counselled by her.
PW11 - Dr. Parvinder Kaur, SR (Obs. & Gynae), Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi, who deposed that she has been deputed in place of Dr. Asha who is not working in their Hospital at present and her whereabouts are not known to them. She (PW11) is conversant with her handwriting and signature as she had worked with her (PW11) and have seen her while writing and signing. On 03/08/2011, at about 11:50 p.m., prosecutrix (name withheld) D/o Mohindra, female, aged 20 years was medically examined at the casualty of the Hospital and thereafter she was referred to Gynae Department for further examination, preservation of the sample and management and opinion. In the Gynae Department Dr. Asha medically examined the prosecutrix at 12:40 a.m. on 04/08/2011 with alleged H/o sexual assault by her (prosecutrix) owner as the patient/prosecutrix was maid to his house. After medical examination, Dr. Asha gave her observation encircled portion 'X' to 'X1' on Ex. PW4/A which bears signatures of Dr. Asha at point 'C'. According to the observation of Dr. Asha there was scratch marks present over the both breast and small bruise present over 19 of 189 20 FIR No. 322/11 PS - Mangol Puri left cheek and small abrasion present over the lower lip and in the local examination hymen was found ruptured. According to the observation of Dr. Asha, she took nine samples in respect of the allegations of sexual assault and sealed the same with the seal of the Hospital and handed over the same to the police with sample seal.
PW12 - Ms. Sunita Suman, Sr. Scientific Officer, Biology, FSL, Rohini, Delhi who proved the biological and serological reports Ex. PX6 (colly.) respectively signed by her at points 'A'.
PW13 SI Kuldeep, is the investigating officer (I.O.) who deposed that on 03/08/2011, he was posted at PS - Mangol Puri. On that day, at about 10:15 p.m. when he was at Paththar Market, Mangol Puri he received telephonic information from Duty Officer that at the house No. D17, Pushpanjali, Mangol Puri, a rape was committed on the maid by the husband of the informant. Thereafter, he alongwith, Constable Praveen reached at D17, Pushpanjali Enclave, Pitam Pura, Delhi. Victim/prosecutrix (name withheld), land lady Smt. Sonia and land lord accused Ashok Kumar met them there. Smt. Sonia informed them that 20 of 189 21 FIR No. 322/11 PS - Mangol Puri she made call to the Police and informed them that accused Ashok Kumar committed rape with her maid (name withheld). He (PW13) made call to the Duty Officer to send a lady Police Official at the spot. He made inquiries from the victim/prosecutrix (name withheld) and she made allegations of rape against her land lord Ashok Kumar. He recorded her statement in detail Ex. PW9/A and prosecutrix (name withheld) put her signature at point 'A' and he also attested the same with his signature at point 'B'. Meanwhile lady Constable Meenu reached at the spot and thereafter, on his direction Lady Constable Meenu took the prosecutrix (name withheld) to SGM Hospital, Mangol Puri. Constable Parveen and Smt. Sonia has also accompanied them. After medical examination, they returned and Lady Constable Meenu handed over MLC of the prosecutrix (name withheld) to him. Lady Constable Meenu also handed over one parcel containing exhibits in respect of the prosecutrix in sealed condition with the seal of Hospital with sample seal to him and he seized the same vide seizure memo already exhibited as Ex. PW5/A bearing his signature at point 'C'. He prepared the rukka Ex. PW13/A bearing his signature at point 'A' and he sent Constable Parveen with rukka for registration of the FIR. Prosecutrix (name withheld) 21 of 189 22 FIR No. 322/11 PS - Mangol Puri shown the place of incident to him and he prepared the site plan at her instance, which is already exhibited as Ex. PW9/B bearing his signature at point 'B'. He also seized one bed sheet from the bed at the place of incident and sealed the same in a plastic polythene with the seal of 'KR' and seized the same vide seizure memo already exhibited as Ex. PW8/A bearing his signature at point 'C'. Meanwhile, Constable Parveen returned back at the spot and handed over the copy of FIR and original rukka to him. He interrogated accused Ashok Kumar and thereafter he was arrested vide arrest memo already exhibited as Ex. PW6/A bearing his signature at point 'D' and his personal search was taken vide already exhibited as Ex. PW6/B bearing his signature at point 'D'. Thereafter, accused Ashok Kumar was sent to SGM Hospital for medical examination with Constable Parveen. He made inquiries from Smt. Sonia and recorded her statement. He also recorded supplementary statement of prosecutrix (name withheld). Meanwhile, Constable Parveen came at the spot with accused Ashok Kumar after medical examination and he handed over MLC of accused Ashok Kumar to him. Constable Parveen also produced two pullindas containing the underwear and blood sample of accused Ashok Kumar in sealed condition with seal 22 of 189 23 FIR No. 322/11 PS - Mangol Puri of Hospital with sample seal to him and he seized the same vide seizure memo already exhibited as Ex. PW6/C bearing his signature at point 'C'. thereafter, he returned back to the PS alongwith Constable Parveen, accused Ashok Kumar, lady Constable Meenu and prosecutrix. He called the NGO official Nazma Khan at the PS and he deposited the seized articles in the Malkhana. He recorded the statement of Constable Parveen. Meanwhile, Nazma Khan came at the PS and she made counselling with prosecutrix (name withheld). He also recorded the statement of Nazma Khan and Lady Constable Meenu. On 04/08/2011, he produced the accused Ashok Kumar before the Court and he was sent to JC. He also made application for recording of statement under Section 164 Cr.P.C. of the prosecutrix (name withheld) vide already exhibited as Ex. PX2 bearing his signature at point 'A'. After recording of her statement under Section 164 Cr.P.C., he made request for the copy of her statement vide his application already exhibited as Ex. PX4 bearing his signature at point 'A; and he received the copy of the statement. Thereafter, on the directions of the Court, prosecutrix (name withheld) was sent with the land lady Smt. Sonia. He handed over prosecutrix (name withheld) to Smt. Sonia vide Ex. PW13/B bearing his 23 of 189 24 FIR No. 322/11 PS - Mangol Puri signature at point 'A' and lady Constable Manju put her signature at point 'B' and prosecutrix (name withheld) put her signature at point 'C' and Smt. Sonia put her signature at point 'D'. During his investigation, he deposited the exhibits of this case to the FSL, Rohini, Delhi vide (RC No. 118/21/11) already exhibited as Ex. PW1/B bearing his signature at point 'B' and handed over receipt to MHC(M), which is already exhibited as Ex. PW1/C bearing his signature at point 'A' and the case property was not tampered. He collected the biological and serological report from the FSL, Rohini and same are already exhibited as PX6 collectively. He recorded the statement of MHC(M). After completion of investigation, he submitted chargesheet against accused Ashok Kumar, who is present in the Court and correctly identified him. He also took the prosecutrix (name withheld) for her age determination and obtained the report. He also took the accused Ashok Kumar to the SGM Hospital and his blood sample was taken and the Doctor handed over two pullindas containing the blood sample of the accused Ashok Kumar in a sealed condition with sample seal to him and he seized the same. He deposited the same in the Malkhana. He again sent the exhibits of this case to FSL, Rohini, Delhi for DNA profiling through Constable Ashok. Thereafter, further 24 of 189 25 FIR No. 322/11 PS - Mangol Puri investigation was conducted by SI Jaspal. Accused Ashok Kumar is present in the Court and correctly identified him and deposed that he can identify the seized articles if shown to him. At this stage, Learned Addl. PP had requested that he reserves his right to get the case property/chadar identified from the witness after its return from FSL, Rohini where it has been sent for examination. He submitted that subject to this, the crossexamination of the witness may be permitted. During his (PW13) further examinationinchief recorded on 21/01/2013, recalled in terms of order dated 17/10/2012, PW13 - SI Kuldeep deposed that on 18/10/2012, an order dated 17/10/2012 passed by Dr. Kamini Lau, Learned ASJ, Rohini Courts, Delhi was received in the PS and as per the order, the ossification test of prosecutrix (name withheld) and DNA examination in the present case was required to be got conducted. On 19/10/2012, prosecutrix (name withheld) was called at PS. He alongwith Lady Constable Manju took her at SGM Hospital for her ossification test. Her ossification test was got conducted. On 21/10/2012, accused Ashok Manchanda, present in the Court (correctly identified) was called and he was taken at SGM Hospital for taking his blood sample for DNA examination. His blood sample was taken in Sanjay Gandhi Hospital by 25 of 189 26 FIR No. 322/11 PS - Mangol Puri the Doctor and the sealed pullinda of his blood sample as was handed over by the concerned Doctor alongwith the sample seal was taken into Police possession vide seizure memo Ex. PW13/C, bearing his signature at point 'A' and the same was deposited in the Malkhana. On 26/10/2012, sample seal of the Court of Dr. Kamini Lau, Learned ASJ was taken vide memo Ex. PW13/D, bearing his signature at point 'A'. On 30/10/2012, the exhibits were sent to FSL through Constable Ashok. Later on supplementary charge sheet regarding the investigation carried out in pursuant to the said order dated 17/10/2012 was filed by SI Jaspal.
PW14 Dr. Indermeet Singh, CMO, SGM Hospital, who deposed that on 19/10/2012, a Medical Board was constituted consisting of himself, Dr. Vandana Dhingra (Physician), Dr. Amitabh Bhasin (Radiologist) and Dr. Divpreet Sahni (Dental Expert) for age estimation of prosecutrix (name withheld) D/o Mahender. He was the Chairman of the Board. The patient was examined and on physical dental XRay examination, the age of the prosecutrix (name withheld) was estimated as 1718 years. Their report is Ex. PW14/A bearing his signature at point 'A'.
26 of 189 27 FIR No. 322/11 PS - Mangol Puri PW15 Dr. M. Dass, CMO, SGM Hospital, who deposed that on 19/10/2012, he was posted as CMO in SGM Hospital. On that day, prosecutrix (name withheld) D/o Mahender was brought to Hospital by the Police for medical examination for age determination as per the direction of the Court of Dr. Kamini Lau, ASJ, Rohini, New Delhi. On examination, patient was conscious oriented, ambulatory with normal vitals without any injury. The patient was referred to medical board for age determination. He prepared the MLC, same is Ex. PW15/A bearing his signature at point 'A'.
PW16 Sh. A. K. Srivastva, Dy. Director, DNA Finger Printing Unit, FSL, Rohini, who proved the detailed DNA report Ex. PW16/A and the genotype tables Ex. PW16/B, both bearing his signatures at points 'A'.
PW17 Constable Ashok Kumar, who deposed that on 30/10/2012, he was posted as Constable in PS - Mangol Puri. On that day, on the instructions of IO he took two sealed pullindas along with 27 of 189 28 FIR No. 322/11 PS - Mangol Puri two sample seals from the MHC(M) for depositing in FSL Rohini vide RC No. 115/21/12. He deposited the same in the FSL and thereafter deposited the acknowledgment receipt with the MHC(M). The sealed pullinda remained intact during his possession.
PW18 Constable Hari Kumar, who deposed that on 10/12/2012, he was posted as Constable in PS - Mangol Puri. On that day, on the instruction of IO he took one sealed pullinda from the MHC(M) for depositing in FSL, Rohini vide RC No. 125/21/12. He deposited the same in the FSL and thereafter deposited the acknowledgment receipt with the MHC(M). The sealed pullinda remained intact during his possession.
PW19 SI Jaspal, who deposed that in November, 2012, he was posted as SI in PS - Mangol Puri and case file was handed over to him for further investigation. On 10/12/2012 one sealed pullinda was sent to FSL through Constable Hari Kumar for depositing in the FSL and he deposited the pullinda in the FSL. Later on the supplementary chargesheet was filed and thereafter he also filed the FSL results in the 28 of 189 29 FIR No. 322/11 PS - Mangol Puri Court.
PW20 Sh. Deepak Wason, MM03, South East, Saket Courts, New Delhi who deposed that on 04/08/2011, he was posted as MM in Rohini Courts. IO SI Kuldeep Singh moved an application already Ex. PX2 for recording statement u/s 164 Cr.P.C. of girl/prosecutrix (name withheld) before the concerned MM and same was marked to him (PW20) being Link MM. He recorded the statement of the prosecutrix (name withheld) vide proceedings running into three pages marked as already Ex. PX3 bearing his signatures at points 'X', 'Y' & 'Z' in respective pages. The signatures of prosecutrix were obtained by him on her statement which are at point 'A'. He appended his certificate with respect to the conduct of the proceedings which is Ex. PW20/A. IO identified the prosecutrix and the signatures of IO are at point 'C'. IO thereafter, moved an application for obtaining a copy of the above mentioned proceedings which was allowed by him vide endorsement Ex. PW20/B bearing his signatures at point 'A'.
PW21 Dr. Manoj Dhingra, MO, SGM Hospital, Delhi (He 29 of 189 30 FIR No. 322/11 PS - Mangol Puri has also been examined as PW7), who deposed that he has been deputed in this case by the MS of Hospital to depose before the Court. He has seen MLC No. 19433 of Ashok Kumar, S/o Sher Chand, aged 49 year, male who was brought to the Hospital for medical examination. The patient was examined by Dr. Arvind under the supervision of Dr. P .C. Prabhakar, CMO. After examination, it was opined that there is no evidence to suggest that the patient is incapable of performing sexual intercourse. At present, Dr. Arvind is not working at their Hospital and his present whereabouts are not known. He is acquainted with handwriting and signature of Dr. Arvind as he has seen him while writing or signing during the course of his duties. The MLC is in the handwriting of Dr. Arvind. The MLC is already Ex. PX5 bearing signature of Dr. Arvind at point 'A'.
PW22 - Constable Rakesh Kumar, who deposed that on 21/10/2012, he was posted as Constable at PP SGMH, PS Mangol Puri. On that day, he along with SI Kuldeep Rana took accused Ashok Manchanda in SGM Hospital, where his blood sample was taken by the Doctor. The sealed pullinda of blood sample was handed over by the 30 of 189 31 FIR No. 322/11 PS - Mangol Puri Doctor alongwith sample seal and the same was taken into possession vide memo Ex. PW13/C which bears his signature at point 'B'.
PW23 Dr. Bina, CMO, SGMH, Delhi who deposed that on 21/10/2012 one Ashok Manchanda S/o Sher Chand Manchanda, age 50 years was brought to Hospital by Constable Rakesh Kumar for collection of blood samples as ordered by the Court vide order dated 17/10/2012. The blood samples were collected, sealed and handed over to the IO. She prepared the MLC which is Ex. PW23/A, bearing her signature at point 'A'.
PW24 HC Vijender who deposed that on 21/10/2012, he was posted as MHC(M) at PS Mangol Puri. On that day, SI Kuldeep Rana had deposited two sealed pullindas in the Malkhana and he (PW24) made entry at Serial No. 6357 of Register No. 19. On 30/10/2012, on the instruction of IO, sealed pullindas along with sample seal were handed over to Constable Ashok for depositing it in FSL, Rohini. After depositing the same in the FSL, he (Constable Ashok) had deposited the acknowledgment receipt of the sealed pullinda in the FSL with him 31 of 189 32 FIR No. 322/11 PS - Mangol Puri (PW24). He has brought the Register No. 19 and 21. Copy of relevant entry at Register No. 19 is Ex. PW24/A and at Register No. 21 is Ex. PW24/B and the copy of acknowledgment receipt is Ex. PW24/C (OSR). On 10/12/2012, one sealed pullinda was handed over to Constable Hari Kumar for depositing in FSL, Rohini vide RC No. 125/21/12 and he deposited the same in FSL, Rohini and thereafter, deposited the receipt with him (PW24). The copy of the relevant entry of Register No. 21 along with receipt is Ex. PW24/D (OSR). Sealed pullinda remained intact during his custody.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Ashok Kumar was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and opted to lead defence evidence. In his defence, accused examined three defence witnesses namely DW1 Sh. Ashwani Kumar Yadav S/o Sh. Mahender Singh, Age - 26 years R/o C13, 1st Floor, Vijay Vihar, Sector - 4, Rohini, Delhi, DW2 Sh. Arun Kumar, Asst. Ahlmad in the Court of Sh.
32 of 189 33 FIR No. 322/11 PS - Mangol Puri Vipin Kharb, Learned MM, Rohini, Delhi and DW3 Sh. Naveen Arora S/o Ashok Arora, Age - 36 years R/o Pocket - 6, Flat No. 209, Sector - 2, Rohini.
DW1 Sh. Ashwani Kumar Yadav, who deposed that he is a music teacher by profession. Master Prince is his student. Master Prince is the son of Ashok Kumar Manchanda, the accused present in the Court (correctly identified). On 04/08/2011, Police officials from PS - Mangol Puri came in his institute at E 21, 200201, Sector 3, Rohini and they inquired from him about his student Master Prince whether he attended the class on 03/08/2011. He told them that his student Master Prince did not attend the class on 03/08/2011. The Police officials told him about the present case against the father of Master Prince.
DW2 Sh. Arun Kumar, who deposed that he has brought the summoned record of the case titled State Vs. Sonia Manchanda, FIR No. 551/10, u/s 323/341/34 IPC, PS - Mangol Puri. Ashok Kumar Manchanda S/o Sh. S. C. Manchanda R/o D 17, Pushpanjali Enclave, Pitam Pura, Delhi is the complainant in this case. The copy of FIR is Ex. DW2/A (Record seen and returned). The said case is pending trial 33 of 189 34 FIR No. 322/11 PS - Mangol Puri before the Court of Sh. Vipin Kharb, Learned MM, Rohini Courts, Delhi.
DW3 Sh. Naveen Arora, who deposed that accused Ashok Manchanda is his brotherinlaw (wife's brother) and Sonia Manchanda is wife of accused. The relation between two are strained and litigations are pending in the Court. The marriage anniversary of Ashok Manchanda was falls on 03rd of August. On 03/08/2011, he alongwith his wife and two children had gone to the house of the accused at D17, Pushpanjali, Pitam Pura to wish them on their wedding anniversary at about 7:00 p.m. on the aforesaid date. Accused Ashok Manchanda, his wife, maid and two children of accused namely Prince & Sumit were found present at the house. They wished both of them and after some time Sonia alongwith her maid went out saying that she was going to the parlour and would soon be back after closing the same. At about 8:00/8:15 p.m. (Sonia) came back alongwith maid servant and told her husband accused Ashok Manchanda that property matter with her should be settled on the same or she will call the Police. Immediately thereafter she called the PCR. In about 15 minutes time, PCR came to the house of the accused with two Police officers. They made inquiries from Sonia 34 of 189 35 FIR No. 322/11 PS - Mangol Puri and the accused. They also inquired from him (DW3) that an incident of rape had taken place there? He (DW3) replied in negative. The Police officials also made inquiries from the maid servant of the Sonia. The Police also made inquiries from 2/3 persons present outside the house. After making the inquiries the PCR officials told Sonia not to make false complaints. He (DW3) had seen the maid servant who has no injury on her person. Thereafter, PCR officials went from there. Then he (DW3) asked Sonia to decide the matter of property among themselves, however, Sonia immediately telephoned at Police Station at around 10:00 p.m. The Police from PS - Mangol Puri came to the house of the accused. The Police after making some inquiries took the maid on the motorcycle to the Police Station. Ashok Manchanda was also taken to the Police Station and Sonia in her car reached at the Police Station. He (DW3) while dropping his children on the way at his house also reached at the Police Station. There at the Police Station, he requested the Police the matter is not such as has been projected but is a matter among the family members (Waha Maine Police Se Request Ki Ke Mamla Aisa Nahi Hai, Yeh Family Members Ka Aapsi Mamla Hai). Police did not pay any heed to their saying and sent them back. He returned at his home and on the 35 of 189 36 FIR No. 322/11 PS - Mangol Puri next day, he alongwith some other relatives made request to the DCP but was told that now it is a Court case and the case has been registered and it is to be fight out there.
The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. It is to be mentioned that on 03/08/2012, accused Ashok Kumar made a statement before the Learned Predecessor Court, wherein, accused Ashok Kumar admitted the proceedings u/s 164 Cr.P.C. conducted by Sh. Deepak Wason, Learned MM. The envelope, duly sealed with the seal of 'DW', was opened and the proceeding were taken out. The envelope is Ex. PX1, the request of IO for conducting the proceedings is Ex. PX2, the proceedings u/s 164 Cr.P.C. is collectively Ex. PX3 (running into three pages) and the request of IO for obtaining the copy is Ex. PX4. Accused Ashok Kumar had admitted his medical examination vide MLC Ex. PX5. He also admitted the FSL Report Ex. P6 (collectively, running into three pages). Accused Ashok Kumar had stated that he has 'no objection' if Learned MM, the Doctor who had 36 of 189 37 FIR No. 322/11 PS - Mangol Puri prepared the MLC and the witnesses from the FSL are not examined in the Court.
8. It is also to be mentioned that accused Ashok Kumar challenged the order dated 03/08/2012 regarding the admission of the documents by a CRL. REV.P.629/2012 and Crl. MA 18714/2012 before the Hon'ble Delhi High Court and vide order dated 08/01/2013, the Hon'ble Delhi High Court set aside the order dated 03/08/2012, directing therein, that the documents shall be again put to the petitioner/accused for admission/denial in the presence of his Counsel and previous admission shall be of no consequence.
9. In compliance of the order dated 08/01/2013, passed by the Hon'ble Delhi High Court in CRL. REV.P.629/2012 and Crl. MA 18714/2012, the evidence was led by the prosecution on the documents regarding which the admission was made by accused Ashok Kumar on 03/08/2012.
10. Learned Counsel for the accused submitted that the 37 of 189 38 FIR No. 322/11 PS - Mangol Puri prosecutrix was medically examined on 03/08/2011 at 11:50 p.m. and her MLC shows that she had bruises and scratches around her neck, chest and breast and some small abrasion on the lower limb. There is no injury on the female genetalia and vagina which is found healthy. Hymen is ruptured. There is no indication if the hymen had an old or recent rupture and it is not reflected in the MLC also. On 03/08/2011 at 11:50 p.m., when the prosecutrix is examined in the hospital there are bruises, abrasions and scratches and injury over her left lip and cheek observed by the Doctor PW4 Dr. P. C. Prabhakar. PW13 SI Kuldeep, IO does not find any injury over the person of the prosecutrix when he reaches the spot and records her statement. He does not refer to such injuries which are found on the face of the prosecutrix even in the proforma made which is forwarded to the doctor for examination of the prosecutrix. There is no reference to these injuries in the endorsement of the Rukka as he admits that he had not observed any injury on the person of the prosecutrix. PW8 Smt. Sonia claims that the clothes of prosecutrix (name withheld) were torn which she found her waiting outside the house. This fact is not reflected in her statement. SI Kuldeep states in his crossexamination that he had not mentioned in the 38 of 189 39 FIR No. 322/11 PS - Mangol Puri endorsement of Rukka that the clothes of the prosecutrix were torn or that she had injuries over her person. He had not mentioned in any of the proceedings that the clothes of the prosecutrix were in torn condition when he met the prosecutrix at the spot and recorded her statement. The FSL report also does not show that the clothes of the prosecutrix were in torn condition, nor does this fact appear in the evidence of the prosecutrix. This leads to the obvious conclusion that the injuries found by the Doctor upon the person of the prosecutrix were self suffered/inflicted when the prosecutrix remained in the company of Sonia in her car from the spot to the hospital or any time in between. Admittedly, there are no injuries on the private part of the prosecutrix despite the fact that her claim is that the accused had ferociously ravished her. Learned Counsel further submitted that the FSL report indicates that semen was detected on the two underwears sent to it for examination. One underwear is B1 and the other is Ex. C1b. The case of the prosecution is that the accused was wearing an underwear B1 which was seized during investigation. However, during the course of proceedings another underwear C1b rolled out of the bed sheet at the time of recording of the evidence of PW8 before the Court. There is no 39 of 189 40 FIR No. 322/11 PS - Mangol Puri seizure memo of this underwear and this underwear is also not shown to the prosecutrix during her evidence in court since it had come as a surprise to the prosecution. Both the underwears showing semen alongwith the bed sheet in the FSL report clearly indicate and establish the case of the defence that Sonia has manipulated the evidence on the case property after having sexual intercourse with the accused and planted it according to a well conceived plan. The seizure of the second underwear showing semen stains foils the play of Smt. Sonia who had planned to foist this evidence against the accused and it was the brain of a woman involved in serious/long drawn litigation with her husband/the accused over the property and money dispute. Learned Counsel further submitted that semen was also not detected upon the shirt, salwar, shemeez or the underwear of the prosecutrix. Even the strands of the pubic hair of the prosecutrix do not show the presence of semen in the FSL report. This fact clearly proves that the two micro slides of vaginal smear were the result of foisting/planting of evidence by Smt. Sonia on the person of the prosecutrix in a well planned manner to implicate her husband. Learned Counsel further submitted that a PCR call was made by PW8 which reached the spot at the first instance, much before the 40 of 189 41 FIR No. 322/11 PS - Mangol Puri police of PS - Mangol Puri came there and made inquiries upon the report/call made. The PCR officials examined prosecutrix (name withheld) and Sonia which fact appears in the testimony of Sonia and the prosecutrix. Even otherwise it is admitted case of the prosecution that the PCR was called at the spot by Smt. Sonia. However, SI Kuldeep claims ignorance of the PCR van having reached at the spot or making inquiries in the matter. No PCR official has been examined by the investigating agency. The inquiry made by the PCR officials, the conclusion drawn by them or the fate of the call made to them has been deliberately withheld by the prosecution. The defence witness DW3 was also examined on this account and his unshaken testimony proves that the PCR officials had reached the spot, made inquires and had closed the report/call being false. Learned Counsel further submitted that there was no injury on the private parts of the prosecutrix negating the fact of the alleged brutal rape. Hymen was found to be ruptured but there was no observation if it was an old or a recent rupture. Dr. Asha the gynecologist who had internally examined the prosecutrix has not been produced in the witness box by the prosecution and the witness produced, PW11 Dr. Parvinder Kaur could not say if the hymen rupture 41 of 189 42 FIR No. 322/11 PS - Mangol Puri was old or fresh. Therefore the defence has been seriously prejudiced by non production of the most important witness of the prosecution which could have clearly negated the story of rape more particularly in view of the fact that there is no mention of any injury on the private parts of the prosecutrix/labia majora which is first attacked when a sexual assault is committed upon a female. Even the nail clippings of the prosecutrix 'A1j' and 'A1k' did not indicate the presence of blood, semen etc. ruling out any resistance as alleged by the prosecutrix in her deposition, to the assault committed. Learned Counsel further submitted that the accused was also examined immediately after the occurrence at 4:15 a.m. on 04/08/2011 and no injury of any kind was seen or found on his person at the time of examination which again is a circumstance suggesting false implication of the accused. Learned Counsel further submitted that the suspicious circumstances of the case requires corroboration from independent sources/public witnesses to the alleged sexual assault upon the prosecutrix. It is an admitted case that the house of the accused is situated in a congested residential locality. No hue and cry is raised by the prosecutrix to invite the attention of the neighbourers. No neighbour collects at the spot and the prosecutrix does not call for any help from 42 of 189 43 FIR No. 322/11 PS - Mangol Puri any one. The most important witness to the incident could have been the two sons of the accused and Sonia namely Prince and Sumit who were both present in the house. They have not been produced as witnesses in the case. IO claims that they were not present in the house. However Sonia asserts that both her sons were present in the house and inquiries were made from them by the Police. The prosecution has therefore withheld important evidence from the Court which favoured the accused and went against the prosecution. It should not be the aim of the prosecution to see that the prosecution of the accused ends with success but it has to see that the trial should result in delivering justice to the accused. The accused has also led the evidence of DW1, the tutor of the son of the accused and Smt. Sonia. This witness has categorically stated that Prince had not gone for tuition on 03/08/2011. The evidence of this witness remains firm, specific and undeterred during cross examination. He has also filed the admission/joining form of the Prince with his institution, which was called by the Addl. PP during the cross examination. This form bears the signatures of the son of the accused and Sonia on the said admission form. It is admitted case of the prosecution that prince used to take tuition from DW1 who pulls the 43 of 189 44 FIR No. 322/11 PS - Mangol Puri grassroots out of the testimony of Sonia by saying that Prince did not take class on 03/08/2011 and this fact was conveyed by DW1 to the police when he was joined in the investigation on the next day of the alleged occurrence. The evidence of this witness demolishes the case of Sonia that she had gone to fetch her son after his class with the DW1 and the incident took place when she had left the house for that purpose. Therefore, the conduct of the prosecutrix in not raising any alarm at the time of the incident or even thereafter, not showing any resistance at the time of alleged rape, no injury having been found on her private parts, no marks of resistance on the body of the accused or on his private parts to show force having been used by the accused, absence of semen on the cloth of the prosecutrix, the inquiry made by the PCR officials which has been withheld and no corroboration being sought to the version of the prosecutrix are enough to discard the testimony of the prosecutrix made against the accused. Learned Counsel further submitted that the prosecution heavy relies upon the DNA Test Ex. PW16/A which compared the alleles from the micro slides, underwear and bed sheet which were compared with the blood of the accused. This piece of evidence, is the result of plantation by wife of the accused namely Sonia 44 of 189 45 FIR No. 322/11 PS - Mangol Puri in collusion with the prosecutrix. DW3 has stated Sonia went alone with her maid/prosecutrix to the parlour at about 8:00/8:15 p.m. and she made a call to the police immediately after she came back with her to her residence. The story of PW Sonia that she had gone alone for dropping her son with the tutor is belied by the tutor himself who has appeared as DW1 before the Court. The evidence of an independent public witness DW1 and DW3 who is the relation of the accused and Sonia has remained unscathed in crossexamination and has proved the case of defence beyond all doubts. This part of evidence has to be seen in the light of the fact that both the sons of Sonia and accused were not examined by the investigating agency who could have unfolded and negated the story put forth by PW8 Sonia. Even the PCR officials who firstly reached the spot and examined the prosecutrix would have enlightened the Court on the facts of the matter but these witnesses have deliberately been withheld by the Investigating Agency and an adverse inference has to be raised against them. One would not loose sight of the fact that even the pubic hair of the prosecutrix did not show the presence of semen upon them, apart from the clothes she was wearing which again is suggestive of planting of the evidence. Learned Counsel further 45 of 189 46 FIR No. 322/11 PS - Mangol Puri submitted that the occurrence is alleged to have taken place on 03/08/2011 and the DNA examination was conducted on 30/12/2012 and PW16 admits in his crossexamination that the samples would degrade/break down when they age or become old and the condition for degrading could be the cold, heat or the moisture etc. Admittedly the samples remained with the MHC(M) from 27/11/2011 to 30/12/2012 and the conditions in the Malkhana are not conducive for storing of the samples, it being exposed to extreme heat, cold and moisture for more then a year and thus the results were prone to error. The DNA examination after an inordinate delay of about an year is of no assistance to the prosecution and has to be discarded from consideration. There is no subjective satisfaction of the analysis. The settled proposition in this regard is that the subjective satisfaction is necessary for analysis of the sample and the mechanised result is always open to suspicion. Learned Counsel further submitted that the prosecutrix (name withheld) gave her age as 20 years in the FIR. Even before the MM while recording her statement u/s 164 Cr.P.C., she describes her age as 20 years. The Ossification Test was carried out under orders of the Court and the report submitted in the court gives her age as between 1718 years. The 46 of 189 47 FIR No. 322/11 PS - Mangol Puri settled proposition of law is that a margin of 2 years on either side has to be given in the case of Ossification Test and judicial notice can be taken of the aforesaid fact. With that yard stick applied, the age of the prosecutrix would fall in the range of about 20 years. No effort is made by the Investigating Agency to take her School Certificate despite the fact that she had studied upto the VIIth Class. In the absence of any other evidence, except the Ossification Test, the age of the prosecutrix has to be determined as somewhere around 20 years and even her genital examination suggests that she is a fully grown up girl capable of understanding the nature of act and showing resistance to the assault committed upon her. However, she is a tool in the hands of Smt. Sonia who used her against the accused in a planned manner to achieve her illegal motive. Learned Counsel further submitted that the collusion of the police specially SI Kuldeep Kumar with the witness Sonia is writ large over the facts of the case. He bluntly denies that a PCR van had reached the spot and made inquiries. He does not examine or cite the PCR officials as witnesses in the case. The injuries are self suffered on the person of Prosecutrix (name withheld) after she came into the custody of the Police and he allows Sonia to create false evidence as she 47 of 189 48 FIR No. 322/11 PS - Mangol Puri accompanies to the hospital in her own car. Therefore, she had time and opportunity to create false evidence. The IO admits that he did not seek corroboration of the version of the prosecutrix from the neighbours. The IO does not join the two sons of Sonia and accused namely Sumit and Prince in the investigation and does not record their statement who are admittedly present in the house. He allows Sonia to create false evidence and recovery of two underwears both with alleged semen stains is the result of the attempt made by the investigating agency to procure evidence against the accused. The entire proceedings were conducted in the police station itself where they got sufficient time to plant and create a web against the accused. PW5 - Constable Meenu is categorical in saying that statement of prosecutrix (name withheld) was recorded in Police Station which the IO says, was recorded at the spot. PW5 even denies the suggestion of Addl. PP that it was recorded at spot. There are glaring contradictions in the testimony of Constable Praveen PW6 and the L/Constable Meenu. PW6 says that the statement of the prosecutrix was recorded after returning from the Hospital which again belies the case of the prosecution. She is contradicting the IO on the parcels made. PW8 Sonia has made material improvements in her case with which 48 of 189 49 FIR No. 322/11 PS - Mangol Puri she was confronted. There are glaring inconsistencies in the statement of PW's suggesting false implication of the accused. Learned Counsel further submitted that prosecution has failed to prove it case beyond reasonable doubt and prayed for the acquittal of the accused on all the charges leveled against him. Learned Counsel referred to the cases and are reported as 'Manmohan Lal Sachdeva Vs. State' 79 (1999) DLT 734; 'Abhilasha Vs. State of Rajasthan' (2000) 10 SCC 237; 'Dantha Trinadha Rao Vs. Special Judge - cum Addl. District & Sessions Judge 2014 CRI.L.J. 1422 (Andhra Pradesh High Court); 'Lalhmingchhuanga Vs. State of Mizoram' 2010(3) Crimes 850 (Gau); 'Kailash Laxman Vs. State of Maharashtra' 2010 CRI LJ 3255; 'Anrej Singh Vs. State of Punjab' 2007 (1) CC Cases (HC) 475; 'Ramadhin Vs. State of M.P.' 2010 (2) Crimes 666 (Chhatt); 'Hari Chand Vs. State (Delhi)' 1999 (3) CC Cases HC 248; 'Banarsi Das Vs. Teeku Dutta & Anr.' IV 2005 SLT 136 (SC); 'Premjibhai Bachubhai Khasiya Vs. State of Gujarat' 2009 CRI.L.J. 2888 and 'Saroti Devi & Ors. Vs. State of H.P.' 2000 (2) CC Cases HC 182.
11. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent 49 of 189 50 FIR No. 322/11 PS - Mangol Puri 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.
12. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Sunil Ahuja, Learned Counsel for the accused and have also carefully perused the entire record.
13. The charge for the offence punishable u/s 376 IPC against accused Ashok Kumar is that on 03/08/2011, at about 8:45 p.m. at House No. D17, Pushpanjali Enclave, Pitam Pura, Delhi, within the jurisdiction of PS - Mangol Puri, he committed rape upon the prosecutrix (name withheld) D/o Sh. Mohinder without her consent and also criminally intimidated her.
14. 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 50 of 189 51 FIR No. 322/11 PS - Mangol Puri some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
15. PW9 - prosecutrix in her statement recorded in the Court on 17/10/2012, while giving her particulars has stated her age as 20 years.
PW10 - Ms. Nazma Khatoon, Counselor, NGO Nav Shrishti during her crossexamination by Learned Counsel for the accused has deposed that "It is correct that the prosecutrix appeared to be minor but claimed she was around 20 years of age".
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 of PW9 - prosecutrix 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 51 of 189 52 FIR No. 322/11 PS - Mangol Puri 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 PW9 - prosecutrix as provided under Rule 12 (3)(a) (i) (ii) and (iii) and that the medical opinion from the Medical Board of PW9 - prosecutrix as provided under Rule 12 (3)(b) is available, therefore, the same is adopted as the highest rated first available basis in terms of the scheme of options under clause (b) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
PW15 Dr. M. Dass, CMO, SGM Hospital has deposed that on 19/10/2012, he was posted as CMO in SGM Hospital. On that day, prosecutrix (name withheld) D/o Mahender was brought to Hospital by the Police for medical examination for age determination as per the direction of the Court of Dr. Kamini Lau, ASJ, Rohini, New Delhi. On examination, patient was conscious oriented, ambulatory with normal 52 of 189 53 FIR No. 322/11 PS - Mangol Puri vitals without any injury. The patient was referred to medical board for age determination. He prepared the MLC, same is Ex. PW15/A bearing his signature at point 'A'.
Despite grant of opportunity, PW15 Dr. M. Dass was not crossexamined on behalf of the accused.
Now let the testimony of PW14 - Dr. Indermeet Singh, CMO, SGM Hospital, who proved the bone age estimation of PW9 - prosecutrix be perused and analysed.
PW14 Dr. Indermeet Singh, CMO, SGM Hospital has deposed that on 19/10/2012, a Medical Board was constituted consisting of himself, Dr. Vandana Dhingra (Physician), Dr. Amitabh Bhasin (Radiologist) and Dr. Divpreet Sahni (Dental Expert) for age estimation of prosecutrix (name withheld) D/o Mahender. He was the Chairman of the Board. The patient was examined and on physical dental XRay examination, the age of the prosecutrix (name withheld) was estimated as 1718 years. Their report is Ex. PW14/A bearing his signature at point 'A'.
53 of 189 54 FIR No. 322/11 PS - Mangol Puri There is nothing in the crossexamination of PW14 Dr. Indermeet Singh so as to impeach his creditworthiness. 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 1718 years as on the date of bone age estimation on 19/10/2012.
As the date of alleged incident is 03/08/2011 and the estimated age of the prosecutrix is between 1718 years as on the date of bone age estimation on 19/10/2012, on simple arithmetical calculation, the age of prosecutrix comes to between 1617 years as on the date of incident on 03/08/2011.
In view of above and in the circumstances, it stands established on record that PW9 prosecutrix was aged between 1617 years as on the date of alleged incident on 03/08/2011.
54 of 189 55 FIR No. 322/11 PS - Mangol Puri 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 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;
55 of 189 56 FIR No. 322/11 PS - Mangol Puri
(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 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 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 56 of 189 57 FIR No. 322/11 PS - Mangol Puri 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 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 57 of 189 58 FIR No. 322/11 PS - Mangol Puri 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 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."
16. Learned Counsel for the accused submitted that the prosecutrix (name withheld) gave her age as 20 years in the FIR. Even before the MM while recording her statement u/s 164 Cr.P.C., she describes her age as 20 years. The Ossification Test was carried out under orders of the Court and the report submitted in the court gives her age as between 1718 years. The settled proposition of law is that a margin of 2 years on either side has to be given in the case of Ossification Test and judicial notice can be taken of the aforesaid fact. With that yard stick applied, the age of the prosecutrix would fall in the range of about 20 years. No effort is made by the Investigating Agency to take her School Certificate despite the fact that she had studied upto 58 of 189 59 FIR No. 322/11 PS - Mangol Puri the VIIth Class. In the absence of any other evidence, except the Ossification Test, the age of the prosecutrix has to be determined as somewhere around 20 years.
I have carefully perused and analysed the evidence on record.
The evidence with regard to the age of PW9 prosecutrix has been reproduced, discussed and analysed hereinabove under the heading, "Age of the Prosecutrix", and at the cost of repetition, it stands established on the record that PW9 - prosecutrix was aged between 1617 years as on the date of alleged incident on 03/08/2011.
PW9 - prosecutrix during her crossexamination has deposed that : "I am 7th standard passed."
So far as the plea raised by the Learned Counsel for the accused that, "no effort is made by the Investigating Agency to take her School Certificate despite the fact that she had studied upto the VIIth"
Class, is concerned, it is evident from the record that during the cross
59 of 189 60 FIR No. 322/11 PS - Mangol Puri examination of PW13 - SI Kuldeep IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
17. PW4 - Dr. P. C. Prabhakar, Senior Medical Officer, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that in the intervening night of 0304/08/2011, he was on duty in the Hospital. On that day, patient/prosecutrix (name withheld), D/o Mohender, aged 20 60 of 189 61 FIR No. 322/11 PS - Mangol Puri years was brought to the Hospital by L/Constable Meenu with the alleged history of sexual assault. After her local examination by her, she referred her to SR Gynae. The MLC of prosecutrix (name withheld) is Ex. PW4/A bearing his signatures at point 'A'. As per the local examination, he observed bruises and scratches around neck and front of chest, small abrasions over lower lip.
PW7 - Dr. Manoj Dhingra, Incharge, Mortuary and MRD Department, Sanjay Gandhi Memorial Hospital, New Delhi has deposed that on 13/10/2011 he was posted at the above said Hospital and on that day he examined the medical documents of prosecutrix (name withheld) D/o Mahendra, female 20 years old, who was medically examined in the casualty vide MLC Ex. PW4/A on 03/08/2011 and also in the Gynae Department. He opined that the nature of injuries were simple. His observations are encircled portion at point 'X' on Ex. PW4/A which bears his signatures at point 'B'.
PW11 - Dr. Parvinder Kaur, SR (Obs. & Gynae), Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that she has 61 of 189 62 FIR No. 322/11 PS - Mangol Puri been deputed in place of Dr. Asha who is not working in their Hospital at present and her whereabouts are not known to them. She (PW11) is conversant with her handwriting and signature as she had worked with her (PW11) and have seen her while writing and signing. On 03/08/2011, at about 11:50 p.m., prosecutrix (name withheld) D/o Mohindra, female, aged 20 years was medically examined at the casualty of the Hospital and thereafter she was referred to Gynae Department for further examination, preservation of the sample and management and opinion. In the Gynae Department Dr. Asha medically examined the prosecutrix at 12:40 a.m. on 04/08/2011 with alleged H/o sexual assault by her (prosecutrix) owner as the patient/prosecutrix was maid to his house. After medical examination, Dr. Asha gave her observation encircled portion 'X' to 'X1' on Ex. PW4/A which bears signatures of Dr. Asha at point 'C'. According to the observation of Dr. Asha there was scratch marks present over the both breast and small bruise present over left cheek and small abrasion present over the lower lip and in the local examination hymen was found ruptured. According to the observation of Dr. Asha, she took nine samples in respect of the allegations of sexual assault and sealed the same with the seal of the Hospital and handed over the same 62 of 189 63 FIR No. 322/11 PS - Mangol Puri to the police with sample seal.
Despite grant of opportunity, PW7 - Dr. Manoj Dhingra was not crossexamined on behalf of accused.
There is nothing in the crossexamination of PW4 - Dr. P. C. Prabhakar and PW11 - Dr. Parvinder Kaur so as to impeach their creditworthiness.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW4/A, encircled portion at point 'X' on MLC Ex. PW4/A and gynaecological examination in the encircled portion 'X' to 'X1' on MLC Ex. PW4/A of PW9 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED ASHOK KUMAR
18. PW4 - Dr. P. C. Prabhakar, Senior Medical Officer, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that on the intervening night in the morning at 4:15 a.m. on 04/08/2011, the patient namely Ashok Kumar S/o Sher Chand, aged 49 years, male was brought by Constable Parveen and he (PW4) conducted his medical examination 63 of 189 64 FIR No. 322/11 PS - Mangol Puri already Ex. PX5 bearing his observations at point bracketed 'X' to 'X1'.
PW21 Dr. Manoj Dhingra, MO, SGM Hospital, Delhi has deposed that he has been deputed in this case by the MS of Hospital to depose before the Court. He has seen MLC No. 19433 of Ashok Kumar, S/o Sher Chand, aged 49 year, male who was brought to the Hospital for medical examination. The patient was examined by Dr. Arvind under the supervision of Dr. P. C. Prabhakar, CMO. After examination, it was opined that there is no evidence to suggest that the patient is incapable of performing sexual intercourse. At present, Dr. Arvind is not working at their Hospital and present whereabouts are not known. He is acquainted with handwriting and signature of Dr. Arvind as he has seen him while writing or signing during the course of his duties. The MLC is in the handwriting of Dr. Arvind. The MLC is already Ex. PX5 bearing signature of Dr. Arvind at point 'A'.
There is nothing in the crossexamination of PW4 - Dr. P. C. Prabhakar and PW21 Dr. Manoj Dhingra so as to impeach their creditworthiness.
In view of above and in the circumstances, it stands 64 of 189 65 FIR No. 322/11 PS - Mangol Puri proved on the record that accused Ashok Kumar was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
19. PW12 - Ms. Sunita Suman, Sr. Scientific Officer, Biology, FSL, Rohini, Delhi has proved the biological and serological reports Ex. PX6 (colly.) bearing her signatures at point 'A'.
As per biological report Ex. PX6 (colly.) the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel 'A1' : One sealed envelope sealed with the seal of "SGMH GNCT DELHI" containing exhibits 'A1a', 'A1b', 'A1c', 'A1d', 'A1e', 'A1f', 'A1g', 'A1h', 'A1i1', 'A1i2', 'A1j', 'A1k', 'A1l', 'A1m', 'A1n1', 'A1n2', 'A1n3', 'A1n4' and 'A1o'. Exhibit 'A1a' : One cotton wool swab on a stick kept in a test tube described as 'Rt. Vulval swab'.
Exhibit 'A1b' : One cotton wool swab on a stick kept in a test tube described as 'Lt. Vulval swab'.
Exhibit 'A1c' : One cotton wool swab on a stick kept in a test tube described as 'Rt. Lateral Vaginal wall'. Exhibit 'A1d' : One cotton wool swab on a stick kept in a test tube described as 'Lt. Lateral Vaginal wall'.
65 of 189 66 FIR No. 322/11 PS - Mangol Puri Exhibit 'A1e' : One cotton wool swab on a stick kept in a test tube described as 'Ant. Vaginal wall swab'.
Exhibit 'A1f' : One cotton wool swab on a stick kept in a test tube described as 'Post. Vaginal wall swab'.
Exhibit 'A1g' : One cotton wool swab on a stick kept in a test tube described as 'Rt. Nail scrapping'.
Exhibit 'A1h' : One cotton wool swab on a stick kept in a test tube described as 'Lt. Nail scrapping'.
Exhibit 'A1i1' & 'A1i2' : Two microslides having faint whitish smear marked as 'A1i1' and 'A1i2' described as 'Vaginal smear'.
Exhibit 'A1j' : Few nail clippings described as 'Rt. Hand nail cutting'.
Exhibit 'A1k' : Few nail clippings described as 'Lt. Hand nail cutting'.
Exhibit 'A1l' : One dark brown foul smelling liquid kept in a test tube described as 'blood sample EDTA'.
Exhibit 'A1m' : One dark brown foul smelling liquid kept in a test tube described as 'blood sample'.
Exhibit 'A1n1' : One ladies shirt. Exhibit 'A1n2' : One salwar. Exhibit 'A1n3' : One dirty shameez. Exhibit 'A1n4' : One underwear. Exhibit 'A1o' : Few strands of hair described as 'pubic hair'. Parcel 'B1' : One sealed adhesive tape parcel sealed with the
seal of "SGMH MANGOPPURI DELHI" containing exhibit 'B1'.
66 of 189 67 FIR No. 322/11 PS - Mangol Puri Exhibit 'B1' : One underwear of accused.
Parcel 'B2' : One sealed adhesive tape parcel sealed with the seal of "SGMH MANGOPPURI DELHI" containing exhibit 'B2'. Exhibit 'B2' : One dark brown foul smelling liquid kept in a test tube described as 'blood sample of accused'. Parcel 'C1' : One sealed polythene sealed with the seal of "KR" containing exhibits 'C1a' and 'C1b'.
Exhibit 'C1a' : One bedsheet.
Exhibit 'C1b' : One underwear.
RESULT OF ANALYSIS
1. Blood was detected on exhibits 'A1l', 'A1m', 'A1n4' and 'B2'.
2. Blood could not be detected on exhibits 'A1a', 'A1b', 'A1c', 'A1d', 'A1e', 'A1f', 'A1g', 'A1h', 'A1j', 'A1k', 'A1n1', 'A1n2', 'A1n3', 'A1o', 'B1', 'C1a' and 'C1b'.
3. Human semen was detected on exhibits 'A1c', 'A1d', 'A1i1', 'A1i2', 'B1', 'C1a' and 'C1b'.
4. Semen could not be detected on exhibits 'A1a', 'A1b', 'A1e', 'A1f', 'A1g', 'A1h', 'A1j', 'A1k', 'A1n1', 'A1n2', 'A1n3', 'A1n4' and 'A1o'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'S.S FSL DELHI'.
67 of 189 68 FIR No. 322/11 PS - Mangol Puri The serological report Ex. PX6 (colly.) reads as under: Exhibits Species of ABO Grouping/Remarks origin Blood stains: 'A1l' Blood sample Blood was putrefied hence no opinion 'A1m' Blood sample Blood was putrefied hence no opinion 'A1n4' Underwear Human No reaction 'B2' Blood sample Blood was putrefied hence no opinion Semen stains: 'A1c' Cotton wool swab No reaction 'A1d' Cotton wool swab No reaction 'B1' Underwear 'B' Group 'C1a' Bedsheet 'B' Group 'C1b' Underwear No reaction As per the Biological report Ex. PX6 (Colly.) with regard to, the description of the articles contained in the parcels, it is noticed that Parcel A1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW5/A dated 04/08/2011, Parcel B1 and Parcel B2 belong to the accused Ashok Kumar Manchanda which were 68 of 189 69 FIR No. 322/11 PS - Mangol Puri seized vide seizure memo Ex. PW6/C dated 04/08/2011 and Parcel C1 was seized from the place of occurrence vide seizure memo Ex. PW8/A dated 04/08/2011.
On careful perusal and analysis of the Biological and Serological evidence on record, it clearly shows that blood was detected on exhibit 'A1l' (Blood sample of the prosecutrix), exhibit 'A1m' (Blood sample of the prosecutrix), exhibit 'A1n4' (Underwear of the prosecutrix) and exhibit 'B2' (Blood sample of the accused); blood could not be detected on exhibit 'A1a' (Rt. Vulval swab of the prosecutrix), exhibit 'A1b' (Lt. Vulval swab of the prosecutrix), exhibit 'A1c' (Rt. Lateral Vaginal wall of the prosecutrix), exhibit 'A1d' (Lt. Lateral Vaginal wall of the prosecutrix), exhibit 'A1e' (Ant. Vaginal wall swab of the prosecutrix), exhibit 'A1f' (Post. Vaginal wall swab of the prosecutrix), exhibit 'A1g' (Rt. Nail scrapping of the prosecutrix), exhibit 'A1h' (Lt. Nail scrapping of the prosecutrix), exhibit 'A1j' (Rt. Hand nail cutting of the prosecutrix), exhibit 'A1k' (Lt. Hand nail cutting of the prosecutrix), exhibit 'A1n1' (One ladies shirt of the prosecutrix), exhibit 'A1n2' (One salwar of the prosecutrix), exhibit 69 of 189 70 FIR No. 322/11 PS - Mangol Puri 'A1n3' (One dirty shameez of the prosecutrix), exhibit 'A1o' (pubic hair of the prosecutrix), exhibit 'B1' (Underwear of the accused), exhibit 'C1a' (Bedsheet seized from the place of occurrence) and exhibit 'C1b' (Underwear seized from the place of occurrence); Human semen was detected on exhibit 'A1c' (Rt. Lateral Vaginal wall of the prosecutrix), exhibit 'A1d' (Lt. Lateral Vaginal wall of the prosecutrix), exhibit 'A1i1' (Vaginal smear of the prosecutrix), exhibit 'A1i2' (Vaginal smear of the prosecutrix), exhibit 'B1' (Underwear of the accused), exhibit 'C1a' (Bedsheet seized from the place of occurrence) and exhibit 'C1b' (Underwear seized from the place of occurrence found wrapped alongwith the bedsheet exhibit 'C1a') and semen could not be detected on exhibit 'A1a' (Rt. Vulval swab of the prosecutrix), exhibit 'A1b' (Lt. Vulval swab of the prosecutrix), exhibit 'A1e' (Ant. Vaginal wall swab of the prosecutrix), exhibit 'A1f' (Post. Vaginal wall swab of the prosecutrix), exhibit 'A1g' (Rt. Nail scrapping of the prosecutrix), exhibit 'A1h' (Lt. Nail scrapping of the prosecutrix), exhibit 'A1j' (Rt. Hand nail cutting of the prosecutrix), exhibit 'A1k' (Lt. Hand nail cutting of the prosecutrix), exhibit 'A1n1' (Ladies shirt of the prosecutrix), exhibit 'A1n2' (Salwar 70 of 189 71 FIR No. 322/11 PS - Mangol Puri of the prosecutrix), exhibit 'A1n3' (Dirty Shameez of the prosecutrix), exhibit 'A1n4' (Underwear of the prosecutrix) and exhibit 'A1o' (pubic hair of the prosecutrix). As per the Serological Report Ex. PX6 (colly.), samples were putrefied hence 'no opinion' could be given on the exhibit 'A1l' (Blood Sample of the prosecutrix), exhibit 'A1m' (Blood Sample of the prosecutrix) and exhibit 'B2' (Blood Sample of the accused). Species of origin of blood was human but it gave 'No Reaction' for ABO Grouping. Exhibit 'A1c' (Rt. Lateral Vaginal wall of the prosecutrix), exhibit 'A1d' (Lt. Lateral Vaginal wall of the prosecutrix) and exhibit 'C1b' (Underwear seized from the place of occurrence) gave 'No Reaction' for ABO Grouping. Exhibit 'B1' (Underwear of the accused) and exhibit 'C1a' (Bedsheet seized from the place of occurrence) gave 'BGroup' for Semen Stains.
On a conjoint reading of the medical examination vide MLC Ex. PW4/A, encircled portion at point 'X' on MLC Ex. PW4/A and gynaecological examination in the encircled portion 'X' to 'X1' on MLC Ex. PW4/A of PW9 - prosecutrix, together with the MLC of accused Ex. PX5 in the light of Biological and Serological evidence detailed and 71 of 189 72 FIR No. 322/11 PS - Mangol Puri analysed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PX6 (colly.), prosecution has discharged its initial burden of proving the presence of Human semen on exhibit 'A1c' (Rt. Lateral Vaginal wall of the prosecutrix seized vide seizure memo Ex. PW5/A dated 04/08/2011), exhibit 'A1d' (Lt. Lateral Vaginal wall of the prosecutrix seized vide seizure memo Ex. PW5/A dated 04/08/2011), exhibit 'A1i1' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW5/A dated 04/08/2011), exhibit 'A1i2' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW5/A dated 04/08/2011), exhibit 'B1' (Underwear of the accused seized vide seizure memo Ex. PW6/C dated 04/08/2011), exhibit 'C1a' (Bedsheet seized from the place of occurrence seized vide seizure memo Ex. PW8/A dated 04/08/2011) 72 of 189 73 FIR No. 322/11 PS - Mangol Puri and exhibit 'C1b' (Underwear seized from the place of occurrence found wrapped alongwith the bedsheet exhibit 'C1a', which (bed sheet exhibit 'C1a') was seized vide seizure memo Ex. PW8/A dated 04/08/2011). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits 'A1c', 'A1d', 'A1i1', 'A1i2', 'B1', 'C1a' and 'C1b' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Ashok Kumar and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case. DNA FINGER PRINTING EVIDENCE
20. PW16 Sh. A. K. Srivastva, Dy. Director, DNA Finger Printing Unit, FSL, Rohini has deposed that on 30/12/2012, two sealed parcels out of which one was sealed with the seal of SGMH, Mangol Puri, Delhi and other was sealed with the seal of Court of Ms. Kamini Lau, Learned ASJ, Rohini, Delhi vide No. FSL 2012/DNA7801 in DNA Unit. On 10/12/2012 one parcel sealed with the seal of the Court of Ms. Kamini Lau, Learned ASJ, Rohini, Delhi vide FSL 2012/DNA8569 in 73 of 189 74 FIR No. 322/11 PS - Mangol Puri DNA Unit. He (PW16) conducted the DNA examination. He opined that the DNA profiling (STR analysis) performed on the exhibits provided was sufficient to conclude that the alleles from the source of exhibits '2i1' (Microslide), exhibit '2i2' (Microslide), exhibit 'Y1' (underwear) and exhibit 'Y2' (Bed sheet) are similar with the alleles of the source of exhibit '1' (Blood in gauze pieceaccused). After examination the remnants of the exhibits were resealed with the seal of AKS, FSL Delhi. He prepared his detailed report which is Ex. PW16/A, bearing his signature at point 'A'. The Genotype tables is Ex. PW16/B, bearing his signature at point 'A'.
There is nothing in the crossexamination of PW16 - Sh. A. K. Srivastava, so as to impeach his creditworthiness. His testimony on careful perusal and analysis is found to be clear, cogent, convincing and inspiring confidence.
As per DNA Report Ex. PW16/A, the description of the articles contained in Parcels, DNA Examination, Results of Examination and Conclusion reads as under : 74 of 189 75 FIR No. 322/11 PS - Mangol Puri DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcels received vide FSL 2012/DNA7801 on 30/10/2012 Parcel 1 : One cloth parcel marked as parcel 'X' sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '1'. Exhibit 1 : A piece of Gauze cloth having dark brown stains described as "Blood in Gauze piece" described to be from source of accused. Parcel 2 : On paper envelope marked as parcel 'A1' sealed with the seal of "Hon'ble Court of Ms. Kamini Lau, ASJ, Rohini Courts"
containing exhibits 'A1a', A1b', 'A1c', A1d', A1e', A1f', 'A1g', 'A1h', 'A1i1', 'A1i2', 'A1j', 'A1k', 'A1l', 'A1m', 'A1n' & 'A1o' Described from source of prosecutrix (name withheld).
Note : Only exhibits A1i1 & A1i2 were taken for examination and marked in this laboratory as '2i1' and '2i2' and rest of exhibits have been returned unexamined.
Exhibit 2i1 & 212 : Two stained microslides.
Parcels received vide FSL 2012/DNA8569 on 10/12/2012 Parcel Y : One paper envelope marked as parcel 'Y' sealed with the seal of "Hon'ble Court of Ms. Kamini Lau, ASJ Rohini Courts"
containing exhibit 'Y1' and 'Y2'.
Exhibit Y1 : One underwear. Note : Six cuttings have been taken by earlier Reporting Officer.
Exhibit Y2 : One Bedsheet. Note : Ten cuttings have been taken by 75 of 189 76 FIR No. 322/11 PS - Mangol Puri earlier Reporting Officer.
DNA EXAMINATION The source of exhibit '1', '2i1', '2i2', 'Y1' & 'Y2' were subjected to DNA isolation. DNA was isolated from the source of exhibits '1', '2i1', '2i2', 'Y1' & 'Y2' and DNA profile was generated for the exhibit '1', '2i1', '2i2', 'Y1' & 'Y2' by using AmpFL STR Powerplex 21 system kit. STR analysis was used for each of the sample. Data was analyzed by using Gene Mapper IDX software.
RESULTS OF EXAMINATION The alleles of the source of exhibit '1' (Blood in Gauze piece - accused) are accounted in the alleles of the source of exhibit '2i1' (Microslide), exhibit '2i2' (Microslide), 'exhibit Y1' (underwear) and exhibit 'Y2' (Bedsheet).
CONCLUSION The DNA profile (STR analysis) performed on the exhibits provided is sufficient to conclude that the alleles from the source of exhibit '2i1' (Microslide), exhibit '2i2' (Microslide), 'exhibit Y1' (underwear) and exhibit 'Y2' (Bedsheet) are similar with the alleles of the source of exhibit '1' (Blood in Gauze piece accused).
Encl : Annexure - 1 - Genotype data of exhibits '1', '2i1', '2i2', 'Y1' & 'Y2'.
76 of 189 77 FIR No. 322/11 PS - Mangol Puri Note : 1. The remnants of the exhibit have been sealed with the seal of "A.K.S FSL DELHI".
The Genotype data of exhibits '1', '2i1', '212', 'Y1' and 'Y2' as per Annexure - I, Ex. PW16/B reads as under : GENOTYPE ANALYSIS FOR ESTABLISHING IDENTITY OF STAINS & ACCUSED USING MICROSATELLITES Loci Exhibit 1 Exhibit '2i1' & '2i2' Exhibit 'Y1' Exhibit 'Y2' Allele data Allele data Allele data Allele data Blood in Gauze of Microslide Underwear Bedsheet Accused D3S1358 16 16 16 16 16 16 16 16 D1S1656 11 16 11 16 11 16 11 16 D6S1043 11 12 11 12 11 12 11 12 D13S317 11 12 11 12 11 12 11 12 Penta E 11 15 11 15 11 15 11 15 D16S539 12 12 12 12 12 12 12 12 D18S51 11 14 11 14 11 14 11 14 D2S1338 18 19 18 19 18 19 18 19 CSF1PO 10 13 10 13 10 13 10 13 Penta D 9 14 9 14 9 14 9 14 THO1 9 9.3 9 9.3 9 9.3 9 9.3 vWA 14 18 14 18 14 18 14 18 D21S11 29.3 32.2 29.3 32.2 29.3 32.2 29.3 32.2 D7S820 8 11 8 11 8 11 8 11 D5S818 11 12 11 12 11 12 11 12 TPOX 8 8 8 8 8 8 8 8 77 of 189 78 FIR No. 322/11 PS - Mangol Puri D8S1179 12 17 12 17 12 17 12 17 D12S391 19 22 19 22 19 22 19 22 D19S433 14 14 14 14 14 14 14 14 FGA 25 25 25 25 25 25 25 25 AMELOGE X Y X Y X Y X Y NIN As per the DNA Report Ex. PW16/A with regard to the description of the exhibits contained in the Parcels, it is noticed that Parcel No. 1 belongs to the accused Ashok Kumar which was seized vide seizure memo Ex. PW13/C dated 21/10/2012, Parcel No. 2 belongs to PW9 - prosecutrix which was seized vide seizure memo Ex. PW5/A dated 04/08/2011 (the details of the exhibits contained in Parcel No. 2 are mentioned in the Biological and Serological evidence, discussed herein before) and Parcel Y containing exhibit Y1 (underwear of accused Ashok Kumar which was seized vide seizure memo Ex. PW6/C dated 04/08/2011) and exhibit Y2 (Bedsheet which was seized vide seizure memo Ex. PW8/A dated 04/08/2011.
On careful perusal and analysis of the DNA Finger Printing Evidence, Ex. PW16/A and Ex. PW16/B, it clearly shows 78 of 189 79 FIR No. 322/11 PS - Mangol Puri that the alleles of the source of exhibit '1' (Blood in Gauze piece of accused Ashok Kumar) are accounted in the alleles of the source of exhibit '2i1' (Microslide described as Vaginal Smear of the prosecutrix), exhibit '2i2' (Microslide described as Vaginal Smear of the prosecutrix), exhibit 'Y1' (Underwear of the accused Ashok Kumar) and exhibit 'Y2' (Bedsheet seized from the place of occurrence). The DNA profiling performed on the said exhibits is sufficient to conclude that the alleles from the source of '2i1' (Microslide described as Vaginal Smear of the prosecutrix), exhibit '2i2' (Microslide described as Vaginal Smear of the prosecutrix), exhibit 'Y1' (Underwear of the accused Ashok Kumar) and exhibit 'Y2' (Bedsheet seized from the place of occurrence) are similar with the alleles of the source of exhibit '1' (Blood in Gauze piece of accused Ashok Kumar).
On a conjoint reading of the medical examination vide MLC Ex. PW4/A, encircled portion at point 'X' on the MLC Ex. PW4/A and gynaecological examination in encircled portion 'X' to 'X1' on the MLC 79 of 189 80 FIR No. 322/11 PS - Mangol Puri Ex. PW4/A of the prosecutrix together with the MLC of accused Ashok Kumar Ex. PX5, in the light of DNA Finger Printing Evidence Ex. PW16/A and Ex. PW16/B detailed and analysed hereinabove, it clearly indicates the performance of sexual intercourse activity by accused Ashok Kumar with the prosecutrix by penetration of penis with emission of semen.
In the circumstances, it stands clearly established on the record that accused Ashok Kumar committed the act of sexual intercourse upon PW9 - prosecutrix.
21. Now let the testimonies of PW9 Prosecutrix and PW8 - Sonia Manchanda be perused and analysed.
PW9 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I have been working in the house No. D17, Pushpanjali Enclave, Pitampura, Delhi since 34 months prior to the date of the incident. The house was owned by Ashok Manchanda and Sonia Manchanda.
80 of 189 81 FIR No. 322/11 PS - Mangol Puri On 03/08/2011 at about 8:45 p.m. Sonia Manchanda had gone alongwith her son Prince for tuitions and her younger son Sumeet had already gone for tuition. Ashok Manchanda and myself were alone in the house. At about 8:45 p.m. I was working in the kitchen of the house. Accused Ashok Manchanda came in the kitchen and caught hold of me by my hand and dragged me to his bed room and he took off / removed my clothes. I protested and raised alarm and he put his hand on my mouth. Thereafter, the accused Ashok Manchanda committed rape upon me on the double bed in his bed room. Accused Ashok Manchanda caused injuries to me on my lips and also caused scratches on my neck portion and also at my chest portion. I was scared due to this incident and when accused Ashok inside the washroom I put my clothes and immediately come outside of the house and conceal myself behind a tree in front of the house. After half to one hour Sonia Manchanda returned back to the house. I told all the facts to her and thereafter she made a call to the Police. Police came at the house. Police made inquiries from me and I told all the facts to the Police and Police recorded my statement vide Ex. PW9/A bearing my signatures at point 'A'. Thereafter, Police took me to SGM Hospital and I was medically examined there. Doctor took my clothes and thereafter we returned back at the above said spot. I had shown the place of incident to the Police and Police prepared the site plan of the place of incident vide Ex. PW9/B bearing my signatures at point 'A'. Police also took possession of the bed sheet of the double bed on which rape was committed and the same was kept in a plastic polythene and sealed by the Police and seized the same vide seizure memo already Ex. PW8/A bearing my signatures at point 'B'. Police arrested accused Ashok Kumar vide arrest memo already Ex. PW6/A bearing my signatures at point 'B' and took his personal search vide already Ex. PW6/B bearing my signatures at point 'B'.
81 of 189 82 FIR No. 322/11 PS - Mangol Puri On 04/08/2011, I was taken to Rohini Courts before the Learned MM who also made inquiries from me and recorded my statement vide Ex PW9/C bearing my signatures at point 'A'. Accused Ashok Kumar Manchanda is present in the Court today (correctly identified by the witness). I can identify the case property if shown to me.
At this stage, MHC(M) has produced one parcel in open condition which has been opened during the testimony of earlier witness and one bed sheet, one underwear and one plastic polythene and taken out and same are shown to the witness and witness correctly identified the bedsheet which is already Ex. P1 and the plastic polythene which is already Ex. P3.
At this stage, MHC(M) has produced another parcel 'A1' in sealed condition duly sealed with the seal of 'SS FSL DELHI' and one ladies shirt, one salwar, one dirty shamiz and one underwear are taken out and shown to the witness who correctly identified the same as belonging to her and seized by the Doctor. Ladies shirt is Ex. P4, Salwar is Ex. P5, Shamiz is Ex. P6 and underwear is Ex. P7."
From the aforesaid narration of PW9 - prosecutrix, it is clear that she has been working in the house No. D17, Pushpanjali Enclave, Pitampura, Delhi since 34 months prior to the date of the incident. The house was owned by Ashok Manchanda and Sonia Manchanda. On 03/08/2011 at about 8:45 p.m. Sonia Manchanda had gone alongwith her son Prince for tuitions and her younger son Sumeet 82 of 189 83 FIR No. 322/11 PS - Mangol Puri had already gone for tuition. Ashok Manchanda and she (prosecutrix) were alone in the house. At about 8:45 p.m. she was working in the kitchen of the house. Accused Ashok Manchanda came in the kitchen and caught hold of her by her hand and dragged her to his bed room and he took off / removed her clothes. She protested and raised alarm and he put his hand on her mouth. Thereafter, the accused Ashok Manchanda committed rape upon her on the double bed in his bed room. Accused Ashok Manchanda caused injuries to her on her lips and also caused scratches on her neck portion and also at her chest portion. She was scared due to this incident and when accused Ashok was inside the washroom she put her clothes and immediately came outside of the house and concealed herself behind a tree in front of the house. After half to one hour Sonia Manchanda returned back to the house. She (prosecutrix) told all the facts to her (PW8) and thereafter she (PW8) made a call to the Police. Police came at the house. Police made inquiries from her and she told all the facts to the Police and Police recorded her statement vide Ex. PW9/A bearing her signatures at point 'A'. Thereafter, Police took her to SGM Hospital and she was medically examined there. Doctor took her clothes and thereafter they returned 83 of 189 84 FIR No. 322/11 PS - Mangol Puri back at the above said spot. She had shown the place of incident to the Police and Police prepared the site plan of the place of incident vide Ex. PW9/B bearing her signatures at point 'A'. Police also took possession of the bed sheet of the double bed on which rape was committed and the same was kept in a plastic polythene and sealed by the Police and seized the same vide seizure memo already Ex. PW8/A bearing her signatures at point 'B'. Police arrested accused Ashok Kumar vide arrest memo already Ex. PW6/A bearing her signatures at point 'B' and took his personal search vide already Ex. PW6/B bearing her signatures at point 'B'. On 04/08/2011, she was taken to Rohini Courts before the Learned MM who also made inquiries from her and recorded her statement vide Ex PW9/C bearing her signatures at point 'A'. Accused Ashok Kumar Manchanda is present in the Court (correctly identified by the witness). She also identified the bedsheet which is already Ex. P1 and the plastic polythene which is already Ex. P3. She also identified her clothes which were seized by the Doctor, the ladies shirt Ex. P4, Salwar Ex. P5, Shamiz Ex. P6 and underwear Ex. P7.
PW9 - Prosecutrix during her crossexamination has 84 of 189 85 FIR No. 322/11 PS - Mangol Puri negated the suggestions that Police came at the spot alongwith Sonia when she returned back or that she was taken to the Police Station from the Hospital or that she has filed the abovesaid petition (Petition for cancellation of bail of accused Ashok Kumar before the Hon'ble High Court of Delhi) at the instance of Sonia or that accused Ashok did not commit any rape upon her or that she implicated the accused at the instance of Sonia or that no site plan was prepared at her instance or that nothing was recovered at her instance or that accused Ashok did not torn her clothes or that he did not caused any injuries upon her or that she herself torn her clothes and she also inflicted injuries upon her body herself at the instance of Sonia to falsely implicate the accused Ashok in this case or that she is deposing falsely.
Inspite of incisive crossexamination of PW9 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW9 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The 85 of 189 86 FIR No. 322/11 PS - Mangol Puri version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW9 - Prosecutrix is also found to be corroborated by the medical evidence, biological and serological evidence as well as DNA Finger Printing Evidence as discussed herein before.
The testimony of PW9 - Prosecutrix is also found to be in consonance with her statement Ex. PW9/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW9/C. The testimony of PW9 - Prosecutrix is also found to be corroborated by PW8 - Ms. Sonia Manchanda, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
86 of 189 87 FIR No. 322/11 PS - Mangol Puri PW8 - Ms. Sonia Manchanda in her examinationinchief has deposed that : "I am running a beauty parlour. On 03/08/2011, at about 08:30 p.m., I went to drop my son namely Prince for tuition and my another son namely Sumit had already gone for his tuition. Prosecutrix (name withheld) was my full time maid and was residing at my house. She (prosecutrix) was employed at my house since four months prior to the incident. My husband Ashok i.e. the accused present in the Court (correctly identified) and the maid /prosecutrix (name withheld) were at home. At about 9:50 p.m., I returned back to my house and found that maid/prosecutrix was sitting outside the house and crying. When I inquired about the reason she (prosecutrix) told me that my husband Ashok Kumar had done galat kaam with her (prosecutrix) i.e. raped her (prosecutrix) when I had gone to leave my son for tuition. I immediately called the Police on 100 number.
On Court Question to explain the physical condition of the prosecutrix (name withheld) and her husband Ashok, the witness has replied that : The clothes of prosecutrix (name withheld) of prosecutrix (name withheld) were torn and cut mark on her lips and scratch marks and bruises on her neck and chest portion whereas her husband was inside the house on the ground floor in an underwear and banyan.
Police reached at our house and interrogated prosecutrix (name withheld) and record her statement. After some time, one Lady Constable Meenu also reached at our house and thereafter prosecutrix (name withheld) was taken to the SGM Hospital for her medical examination. After her medical examination, we returned at our house. Police inquired about the place of incident from prosecutrix (name 87 of 189 88 FIR No. 322/11 PS - Mangol Puri withheld) and she had shown the place of incident to the Police and Police prepared the site plan. At the instance of prosecutrix (name withheld) one bed sheet was recovered from the double bed of the ground floor of the house and the same was kept in a plastic polythene and sealed the same with the seal of 'KR'. Police seized the same vide seizure memo Ex. PW8/A which bears my signatures at point 'A' and prosecutrix (name withheld) also put her signatures at point 'B' in my presence. Thereafter, Police arrested my husband Ashok Kumar and took him away from the house. The arrest memo already Ex. PW6/A bears my signatures at point 'E' after the information of arrest of my husband i.e. accused Ashok was given to me.
I can identify the bedsheet seized by the IO from my house, it was of white coloured base having flowers of orange colour.
At this stage, MHC(M) produced one pullinda sealed with the seal of 'SS, FSL DELHI' and same is opened after breaking the seal and one bedsheet and one underwear of size 95 cms. Make VIP and one plastic polythene are taken out and the same are shown to the witness and witness correctly identified the bedsheet and the same is Ex. P1. Witness further states that the above said underwear belongs to her husband and must have been wrapped alongwith the bedsheet lying on the same and when the bedsheet was hurriedly lifted and seized by the IO. The underwear is Ex. P2 and the plastic polythene is Ex. P3."
From the aforesaid narration of PW8 - Ms. Sonia Manchanda, it is clear that the she was running a beauty parlour. On 03/08/2011, at about 08:30 p.m., she went to drop her son namely Prince 88 of 189 89 FIR No. 322/11 PS - Mangol Puri for tuition and her another son namely Sumit had already gone for his tuition. Prosecutrix (name withheld) was her full time maid and was residing at her house. She (prosecutrix) was employed at her house since four months prior to the incident. Her husband Ashok i.e. the accused present in the Court (correctly identified) and the maid /prosecutrix (name withheld) were at home. At about 9:50 p.m., she returned back to her house and found that maid/prosecutrix was sitting outside the house and crying. When she inquired about the reason she (prosecutrix) told her (PW8) that her (PW8) husband Ashok Kumar had done galat kaam with her (prosecutrix) i.e. raped her (prosecutrix) when she (PW8) had gone to leave her son for tuition. She immediately called the Police on 100 number. The clothes of prosecutrix (name withheld) of prosecutrix (name withheld) were torn and cut mark on her lips and scratch marks and bruises on her neck and chest portion whereas her husband was inside the house on the ground floor in an underwear and banyan. Police reached at their house and interrogated prosecutrix (name withheld) and recorded her statement. After some time, one Lady Constable Meenu also reached at their house and thereafter prosecutrix (name withheld) was taken to the SGM Hospital for her medical examination. After her 89 of 189 90 FIR No. 322/11 PS - Mangol Puri medical examination, they returned at their house. Police inquired about the place of incident from prosecutrix (name withheld) and she had shown the place of incident to the Police and Police prepared the site plan. At the instance of prosecutrix (name withheld) one bed sheet was recovered from the double bed of the ground floor of the house and the same was kept in a plastic polythene and sealed the same with the seal of 'KR'. Police seized the same vide seizure memo Ex. PW8/A which bears her signatures at point 'A' and prosecutrix (name withheld) also put her signatures at point 'B' in her presence. Thereafter, Police arrested her husband Ashok Kumar and took him away from the house. The arrest memo already Ex. PW6/A bears her signatures at point 'E' after the information of arrest of her husband i.e. accused Ashok was given to her. She identified the bed sheet Ex. P1, underwear Ex. P2 and plastic polythene Ex. P3.
During her crossexamination PW8 - Ms. Sonia Manchanda has negated the suggestions that a flat in Savera Apartment was purchased by Ashok for her and in her name. Vol. The said flat belongs to her and she had purchased the same out of her earning, support of her 90 of 189 91 FIR No. 322/11 PS - Mangol Puri mother and husband or that the income of the parlour is used by her for herself exclusively and not for the purpose of house or that the Gym used to close by 9:00 p.m. or that prosecutrix (name withheld) is doing the job with her at her parlour or that Police officials from PS - Mangol Puri came alongwith her at the place of incident or that in that written apology (given by accused Ashok Kumar), there was a settlement of their property also or that she had demanded properties to be transferred in her name from the accused, when he was in jail or that she gave written permission to the Doctor for internal examination of the prosecutrix (name withheld) in the Hospital, when prosecutrix (name withheld) refused for her internal examination or that the property in Savera Apartments, Rohini, Delhi was purchased by the money of the accused Ashok Kumar or that she alongwith her husband/accused Ashok Kumar were present in the room only before the incident or that they had physical relations before she left with her son for tuition or that Puja Kalra has no relations with accused Ashok Kumar or that she (PW8) used to visit the Police Station for pursuing her complaint or that she is deposing falsely and she has used her maid to falsely implicate the accused Ashok Kumar in this case on false allegations.
91 of 189 92 FIR No. 322/11 PS - Mangol Puri Inspite of incisive crossexamination of PW8 - Ms. Sonia Manchanda, nothing material has been brought out so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] the testimony of PW8 - Ms. Sonia Manchanda is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused Ashok Kumar Manchanda to falsely implicate him in the case.
The testimony of PW9 - prosecutrix is also found to be corroborated by PW10 - Ms. Nazma Khatoon, to whom prosecutrix also disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW10 Ms. Nazma Khatoon, Counselor, NGO Nav Shristi, 92 of 189 93 FIR No. 322/11 PS - Mangol Puri who deposed that on 04/08/2011, she was called at PS - Mangol Puri where prosecutrix (name withheld, Sonia and Police officials SI Kuldeep and SHO were present. She found the prosecutrix (name withheld) weeping at that time and she (PW10) counselled her. Prosecutrix (name withheld) told her that on 03/08/2011 at about 08:45 p.m., accused Ashok committed rape upon her at his house while wife of accused Ashok, Sonia had gone alongwith her son for tuition and accused Ashok committed rape upon her in his bed room after dragging her from kitchen and removed her clothes and when she cried Accused closed her mouth with his hands and when her land lady Sonia returned back then she told all the facts to her. She (PW10) counselled her. Police recorded her statement. On the leading questions put by the Learned Addl. PP, PW10 - Ms. Nazma Khatoon deposed that, she reached at the Police station on 04/08/2011 at about 7:45 a.m. It is correct that FIR has already been registered at that time and Police had already been recorded the statement of prosecutrix on the basis of which FIR has been registered. Prosecutrix (name withheld) was alone and she (prosecutrix) was scared and she (prosecutrix) was counselled by her.
93 of 189 94 FIR No. 322/11 PS - Mangol Puri There is nothing in the crossexamination of PW10 - Nazma Khatoon so as to impeach her creditworthiness. On careful perusal and analysis, her testimony is found to be natural, clear, cogent, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
22. While analysing the testimonies of PW9 Prosecutrix and PW8 - Ms. Sonia Manchanda, her owner (Malkin), as discussed herein above, inspite of incisive crossexamination of PW9 Prosecutrix and PW8 - Ms. Sonia Manchanda nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by the defence to PW9 Prosecutrix that Police came at the spot alongwith Sonia when she returned back or that she was taken to the Police Station from the Hospital or that she has filed the abovesaid petition (Petition for cancellation of bail of accused Ashok Kumar before the Hon'ble High Court of Delhi) at the instance of Sonia or that accused Ashok did not commit any rape upon her or that she implicated the accused at the 94 of 189 95 FIR No. 322/11 PS - Mangol Puri instance of Sonia or that no site plan was prepared at her instance or that nothing was recovered at her instance or that accused Ashok did not torn her clothes or that he did not caused any injuries upon her or that she herself torn her clothes and she also inflicted injuries upon her body herself at the instance of Sonia to falsely implicate the accused Ashok in this case or that she is deposing falsely, and the suggestions to PW8 - Ms. Sonia Manchanda that a flat in Savera Apartment was purchased by Ashok for her and in her name. Vol. The said flat belongs to her and she had purchased the same out of her earning, support of her mother and husband or that the income of the parlour is used by her for herself exclusively and not for the purpose of house or that the Gym used to close by 9:00 p.m. or that prosecutrix (name withheld) is doing the job with her at her parlour or that Police officials from PS - Mangol Puri came alongwith her at the place of incident or that in that written apology (given by accused Ashok Kumar), there was a settlement of their property also or that she had demanded properties to be transferred in her name from the accused, when he was in jail or that she gave written permission to the Doctor for internal examination of the prosecutrix (name withheld) in the Hospital, when prosecutrix (name withheld) 95 of 189 96 FIR No. 322/11 PS - Mangol Puri refused for her internal examination or that the property in Savera Apartments, Rohini, Delhi was purchased by the money of the accused Ashok Kumar or that she alongwith her husband/accused Ashok Kumar were present in the room only before the incident or that they had physical relations before she left with her son for tuition or that Puja Kalra has no relations with accused Ashok Kumar or that she (PW8) used to visit the Police Station for pursuing her complaint or that she is deposing falsely and she has used her maid to falsely implicate the accused Ashok Kumar in this case on false allegations, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
However, a futile attempt has been made by the accused Ashok Kumar Manchanda to save his skin from the clutches of law by way of examination of three defence witnesses namely DW1 Sh. Ashwani Kumar Yadav S/o Sh. Mahender Singh, Age - 26 years R/o C13, 1st Floor, Vijay Vihar, Sector - 4, Rohini, Delhi, DW2 Sh. Arun 96 of 189 97 FIR No. 322/11 PS - Mangol Puri Kumar, Asst. Ahlmad in the Court of Sh. Vipin Kharb, Learned MM, Rohini, Delhi and DW3 Sh. Naveen Arora (Jija of accused) S/o Ashok Arora, Age - 36 years R/o Pocket - 6, Flat No. 209, Sector - 2, Rohini.
DW2 Sh. Arun Kumar, Asst. Ahlmad in the Court of Sh. Vipin Kharb, Learned MM, Rohini, Delhi in his examinationinchief has deposed that : "I have brought the summoned record of the case titled State Vs. Sonia Manchanda, FIR No. 551/10, u/s 323/341/34 IPC, PS - Mangol Puri. Ashok Kumar Manchanda S/o Sh. S. C. Manchanda R/o D17, Pushpanjali Enclave, Pitam Pura, Delhi is the complainant in this case. The copy of FIR is Ex. DW2/A (Record seen and returned). The said case is pending trial before the Court of Sh. Vipin Kharb, Learned MM, Rohini Courts, Delhi."
During his crossexamination, DW2 Sh. Arun Kumar has deposed that : "I have brought the summoned record. It is correct the documents i.e. Mediation Referral Order, Settlement/Agreement dated 05/09/2013, the statement of Ashok Manchanda dated 05/09/2013, the order sheet dated 16/09/2013 also forms part of the said record, the copies thereof are Ex. DW1/PA , Ex. DW1/PB, Ex. DW1/PC & Ex. DW1/PD respectively (OSR)."
97 of 189 98 FIR No. 322/11 PS - Mangol Puri On careful perusal and analysis of the testimony of DW2 - Sh. Arun Kumar, it is clearly indicated that the case titled State Vs. Sonia Manchanda, FIR No. 551/10, u/s 323/341/34 IPC, PS - Mangol Puri, the copy of which is Ex. PW2/A had been settled in the Mediation Cell on 05/09/2013 on the statement of accused Ashok Manchanda and the copies of the documents i.e. Mediation Referral Order is Ex. DW1/PA, Settlement/Agreement dated 05/09/2013 is Ex. DW1/PB, Statement of Ashok Manchanda dated 05/09/2013 is Ex. DW1/PC and the ordersheet dated 16/09/2013 is Ex. DW1/PD.
DW1 - Sh. Ashwani Kumar Yadav is the music teacher who in his examinationinchief has deposed that : "I am a music teacher by profession. Master Prince is my student. Master Prince is the son of Ashok Kumar Manchanda, the accused present in the Court today (correctly identified).
On 04/08/2011 Police officials from PS - Mangol Puri came in my institute at E21, 200201, Sector 3, Rohini and they inquired from me about my student Master Prince whether he attended the class on 03/08/2011. I told them that my student Master Prince did not attend the class on 03/08/2011. The Police officials told me about the present case against the father of Master Prince."
98 of 189 99 FIR No. 322/11 PS - Mangol Puri During his crossexamination recorded on 22/10/2013, DW1
- Sh. Ashwani Kumar Yadav has deposed that : "I did not maintain any attendance record of the students who attended my institute."
During his further crossexamination recorded on 29/11/2013, DW1 - Sh. Ashwani Kumar Yadav has deposed that : "I do not remember for how many months student Master Prince had attended my Institute. I cannot tell when Master Prince had attended the class and on which day he had not attended the class. Vol. It is not easy to remember the details of the students when there are so many students in my institute."
From the aforesaid parts of the crossexamination of DW1 - Sh. Ashwini Kumar Yadav, it is clearly indicated that no attendance register/sheet of 03/08/2011 to indicate that Master Prince (son of accused Ashok Kumar Manchanda) did not attend the music class on 03/08/2011 has been produced or proved on record. In the circumstances, DW1 - Sh. Ashwini Kumar Yadav is a procured witness and his testimony besides being vague also does not inspire 99 of 189 100 FIR No. 322/11 PS - Mangol Puri confidence.
DW3 Sh. Naveen Arora in his examinationinchief has deposed that : "Accused Ashok Manchanda is my brotherinlaw (wife's brother) and Sonia Manchanda is wife of accused. The relation between two are strained and litigations are pending in the Court. The marriage anniversary of Ashok Manchanda was falls on 03rd of August. On 03/08/2011, I alongwith my wife and two children had gone to the house of the accused at D17, Pushpanjali, Pitam Pura to wish them on their wedding anniversary at about 7:00 p.m. on the aforesaid date. Accused Ashok Manchanda, his wife, maid and two children of accused namely Prince & Sumit were found present at the house. We wished both of them and after some time Sonia alongwith her maid went out saying that she was going to the parlour and would soon be back after closing the same. At about 8:00/8:15 p.m. (Sonia) came back alongwith maid servant and told her husband accused Ashok Manchanda that property matter with her should be settled on the same or she will call the Police. Immediately thereafter she called the PCR. In about 15 minutes time, PCR came to the house of the accused with two Police officers. They made inquiries from Sonia and the accused. They also inquired from me that an incident of rape had taken place there? I replied in negative. The police officials also made inquiries from the maid servant of the Sonia. The police also made inquiries from 2/3 persons present outside the house. After making the inquiries the PCR officials told Sonia not to make false complaints. I had seen the maid servant who has no injury on her person. Thereafter, PCR officials went from there. Then I asked 100 of 189 101 FIR No. 322/11 PS - Mangol Puri Sonia to decide the matter of property among themselves, however, Sonia immediately telephoned at Police Station at around 10.00 pm. The Police from PS - Mangol Puri came to the house of the accused. The police after making some inquiries took the maid on the motorcycle to the Police Station. Ashok Manchanda was also taken to the Police Station and Sonia in her car reached at the Police Station. I while dropping my children on the way at my house also reached at the Police Station. There at the Police Station I requested the police the matter is not such as has been projected but is a matter among the family members (Waha Maine Police Se Request Ki Ke Mamla Aisa Nahi Hai, Yeh Family Members Ka Aapsi Mamla Hai). Police did not pay any heed to our saying and sent us back. I returned at my home and on the next day I alongwith some other relatives made request to the DCP but was told that now it is a court case and the case has been registered and it is to be fight out there."
On careful perusal and analysis of the testimony of DW3 - Naveen Arora, brotherinlaw (Jija) of accused Ashok Kumar, it is found that DW3 Sh. Naveen Arora during his examinationinchief has propounded a theory that, "On 03/08/2011, I alongwith my wife and two children had gone to the house of the accused at D17, Pushpanjali, Pitam Pura to wish them on their wedding anniversary at about 7:00 p.m. on the aforesaid date. Accused Ashok Manchanda, his wife, maid and two children of accused namely 101 of 189 102 FIR No. 322/11 PS - Mangol Puri Prince & Sumit were found present at the house. We wished both of them and after some time Sonia alongwith her maid went out saying that she was going to the parlour and would soon be back after closing the same. At about 8:00/8:15 p.m. (Sonia) came back alongwith maid servant and told her husband accused Ashok Manchanda that property matter with her should be settled on the same or she will call the Police. Immediately thereafter she called the PCR. In about 15 minutes time, PCR came to the house of the accused with two Police officers. They made inquiries from Sonia and the accused. They also inquired from me that an incident of rape had taken place there? I replied in negative. The police officials also made inquiries from the maid servant of the Sonia. The police also made inquiries from 2/3 persons present outside the house. After making the inquiries the PCR officials told Sonia not to make false complaints" but the said theory so propounded has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded by DW3 - Sh. Naveen Arora was put either to PW8 - Smt. Sonia Manchanda or to PW9 102 of 189 103 FIR No. 322/11 PS - Mangol Puri
- prosecutrix during their incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded by DW3 - Sh. Naveen Arora was uttered by accused Ashok Kumar Manchanda in his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory so propounded by DW3 - Sh. Naveen Arora is merely an afterthought and falls flat on the ground.
DW3 - Naveen Arora during his examinationinchief has deposed that : "I while dropping my children on the way at my house also reached at the Police Station. There at the Police Station I requested the police the matter is not such as has been projected but is a matter among the family members (Waha Maine Police Se Request Ki Ke Mamla Aisa Nahi Hai, Yeh Family Members Ka Aapsi Mamla Hai). Police did not pay any heed to our saying and sent us back. I returned at my home and on the next day I alongwith some other relatives made request to the DCP but was told that now it is a court case and the case has been registered and it is to be fight out there."
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the said part of examination inchief of DW3 - Naveen Arora. If in the estimation of DW3 - Naveen 103 of 189 104 FIR No. 322/11 PS - Mangol Puri Arora, his brotherinlaw (Sala)/Accused Ashok Kumar Manchanda was falsely implicated and arrested in the case and Police was not paying any heed to his (DW3) saying, why DW3 - Naveen Arora did not make any complaint against the alleged false implication of accused Ashok Kumar Manchanda to the Police/Senior Police officer or to any Court, the reasons for the same must be known to him.
Moreover, DW3 - Naveen Arora during his cross examination by Learned Addl. PP for the State has specifically deposed that : "On 04/08/2011 I alongwith Raj Kumar Manchanda, brother of accused Ashok Manchanda, Sh. Din Dayal Soni, husband of sister Asha of accused Ashok Manchanda had met DCP. No any written complaint was made either to the DCP or to any other Senior Police official by us. I did not make any call to the Police at No. 100 on 03/08/2011."
It is clearly indicated that, Had accused Ashok Kumar been falsely implicated in the case, DW3 - Naveen Arora, his brotherinlaw (Jija) must have made the complaint to Police/Senior Police Officer or to any Court against his false implication.
104 of 189 105 FIR No. 322/11 PS - Mangol Puri In the circumstances, the testimony of DW3 - Sh. Naveen Arora does not inspire confidence and he is a procured witness.
23. 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.
105 of 189 106 FIR No. 322/11 PS - Mangol Puri Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
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 the medical evidence vide MLC Ex. PW4/A, encircled portion at point 'X' on the MLC Ex. PW4/A, gynaecological examination in the encircled portion 'X' to 'X1' on MLC Ex. PW4/A of the prosecutrix, biological and serological evidence Ex. PX6 (colly.), DNA Finger Printing Evidence Ex. PW16/A, Genotype Data Ex. PW16/B, together 106 of 189 107 FIR No. 322/11 PS - Mangol Puri with the MLC of accused Ashok Kumar Manchanda Ex. PX5, 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.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Ashok Kumar Manchanda with PW9 Prosecutrix without her consent.
24. Learned Counsel for the accused submitted that the prosecutrix was medically examined on 03/08/2011 at 11:50 p.m. and her MLC shows that she had bruises and scratches around her neck, chest and breast and some small abrasion on the lower limb. There is no injury on the female genetalia and vagina which is found healthy. Hymen is ruptured. There is no indication if the hymen had an old or recent rupture and it is not reflected in the MLC also. On 03/08/2011 at 11:50 p.m., when the prosecutrix is examined in the hospital there are 107 of 189 108 FIR No. 322/11 PS - Mangol Puri bruises, abrasions and scratches and injury over her left lip and cheek observed by the Doctor PW4 Dr. P. C. Prabhakar. PW13 SI Kuldeep, IO does not find any injury over the person of the prosecutrix when he reaches the spot and records her statement. He does not refer to such injuries which are found on the face of the prosecutrix even in the proforma made which is forwarded to the doctor for examination of the prosecutrix. There is no reference to these injuries in the endorsement of the Rukka as he admits that he had not observed any injury on the person of the prosecutrix. PW8 Smt. Sonia claims that the clothes of prosecutrix (name withheld) were torn which she found her waiting outside the house. This fact is not reflected in her statement. SI Kuldeep states in his crossexamination that he had not mentioned in the endorsement of Rukka that the clothes of the prosecutrix were torn or that she had injuries over her person. He had not mentioned in any of the proceedings that the clothes of the prosecutrix were in torn condition when he met the prosecutrix at the spot and recorded her statement. The FSL report also does not show that the clothes of the prosecutrix were in torn condition, nor does this fact appear in the evidence of the prosecutrix. This leads to the obvious conclusion that the injuries found 108 of 189 109 FIR No. 322/11 PS - Mangol Puri by the Doctor upon the person of the prosecutrix were self suffered/inflicted when the prosecutrix remained in the company of Sonia in her car from the spot to the hospital or any time in between. Admittedly, there are no injuries on the private part of the prosecutrix despite the fact that her claim is that the accused had ferociously ravished her.
I have carefully perused and analysed the evidence on record.
The medical and gynaecological evidence of PW9 - prosecutrix has been discussed and analysed hereinbefore.
At the cost of repetition, PW4 - Dr. P. C. Prabhakar has deposed that in the intervening night of 0304/08/2011, he was on duty in the Hospital. On that day, patient/prosecutrix (name withheld), D/o Mohender, aged 20 years was brought to the Hospital by L/Constable Meenu with the alleged history of sexual assault. After her local examination by her, she referred her to SR Gynae. The MLC of prosecutrix (name withheld) is Ex. PW4/A bearing his signatures at 109 of 189 110 FIR No. 322/11 PS - Mangol Puri point 'A'. As per the local examination, he observed bruises and scratches around neck and front of chest, small abrasions over lower lip.
There is nothing in the crossexamination of PW4 - Dr. P. C. Prabhakar so as to impeach her creditworthiness. Nor in the entire incisive crossexamination of PW4 - Dr. P. C. Prabhakar it was suggested to him that the injuries e.g. Bruises, scratches around neck and front of chest, small abrasions over lower lip of the patient/PW9 - prosecutrix vide MLC Ex. PW4/A observed by him could be self inflicted. For such failure, accused is to blame himself and none else.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
At the cost of repetition, PW7 - Dr. Manoj Dhingra, In charge, Mortuary and MRD Department, Sanjay Gandhi Memorial Hospital, New Delhi has deposed that on 13/10/2011 he was posted at the 110 of 189 111 FIR No. 322/11 PS - Mangol Puri above said Hospital and on that day he examined the medical documents of prosecutrix (name withheld) D/o Mahendra, female 20 years old, who was medically examined in the casualty vide MLC Ex. PW4/A on 03/08/2011 and also in the Gynae Department. He opined that the nature of injuries were simple. His observations are encircled portion at point 'X' on Ex. PW4/A which bears his signatures at point 'B'.
Despite grant of opportunity, PW7 - Dr. Manoj Dhingra was not crossexamined on behalf of accused.
At the cost of repetition, PW11 - Dr. Parvinder Kaur, SR (Obs. & Gynae), Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that she has been deputed in place of Dr. Asha who is not working in their Hospital at present and her whereabouts are not known to them. She (PW11) is conversant with her handwriting and signature as she had worked with her (PW11) and have seen her while writing and signing. On 03/08/2011, at about 11:50 p.m., prosecutrix (name withheld) D/o Mohindra, female, aged 20 years was medically examined at the casualty of the Hospital and thereafter she was referred to Gynae Department for further examination, preservation of the sample and 111 of 189 112 FIR No. 322/11 PS - Mangol Puri management and opinion. In the Gynae Department Dr. Asha medically examined the prosecutrix at 12:40 a.m. on 04/08/2011 with alleged H/o sexual assault by her (prosecutrix) owner as the patient/prosecutrix was maid to his house. After medical examination, Dr. Asha gave her observation encircled portion 'X' to 'X1' on Ex. PW4/A which bears signatures of Dr. Asha at point 'C'. According to the observation of Dr. Asha there was scratch marks present over the both breast and small bruise present over left cheek and small abrasion present over the lower lip and in the local examination hymen was found ruptured. According to the observation of Dr. Asha, she took nine samples in respect of the allegations of sexual assault and sealed the same with the seal of the Hospital and handed over the same to the police with sample seal.
There is nothing in the crossexamination of PW11 - Dr. Parvinder Kaur so as to impeach her creditworthiness.
It is also to be noticed that during the entire incisive and lengthy crossexamination of PW8 - Smt. Sonia Manchanda, it was not suggested to her that, "the injuries found by the Doctor upon the 112 of 189 113 FIR No. 322/11 PS - Mangol Puri person of the prosecutrix were self suffered/inflicted when the prosecutrix remained in the company of Sonia in her car from the spot to the hospital or any time in between" regarding which the plea has been raised.
In the circumstances, the theory propounded by the Learned Counsel for the accused that, "the injuries found by the Doctor upon the person of the prosecutrix were self suffered/inflicted when the prosecutrix remained in the company of Sonia in her car from the spot to the hospital or any time in between" is merely an afterthought and falls flat on the ground.
As regards nonfinding of any injuries on the private parts of PW9 - prosecutrix is concerned, the absence of any injury on such parts does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of 113 of 189 114 FIR No. 322/11 PS - Mangol Puri rape. Complete penetration or partial penetration of 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. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & 7Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 114 of 189 115 FIR No. 322/11 PS - Mangol Puri 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
As regards the plea raised by Learned Counsel for the accused that, "PW8 Smt. Sonia claims that the clothes of prosecutrix (name withheld) were torn which she found her waiting outside the house. This fact is not reflected in her statement" is concerned, with due respect, it appears that Learned Counsel for the accused has either misread or not read the evidence on record. As is reflected from the record, during the recording of the examinationinchief of PW8 - Smt. Sonia Manchanda, in response to the Court question put by the Learned Predecessor Court, to explain the physical condition of the prosecutrix and her husband Ashok, she replied and explained the same. In the circumstances, she (PW8 - Smt. Sonia Manchanda) has deposed the said facts in response to the question put to her. Nonreflection of such facts in her statement does not falsify her testimony.
115 of 189 116 FIR No. 322/11 PS - Mangol Puri It is pertinent to reproduce the relevant part of examination inchief of PW8 Smt. Sonia Manchanda, which reads as under : "On Court Question to explain the physical condition of the prosecutrix (name withheld) and her husband Ashok, the witness has replied that : The clothes of prosecutrix (name withheld) of prosecutrix (name withheld) were torn and cut mark on her lips and scratch marks and bruises on her neck and chest portion whereas her husband was inside the house on the ground floor in an underwear and banyan."
As regards the plea raised by the Learned Counsel for the accused that PW13 - SI Kuldeep IO has not mentioned the injuries over the person of the prosecutrix and about the torn condition of clothes of the prosecutrix in the investigational proceedings, is concerned, it is pertinent to reproduce the relevant part of crossexamination of PW13 - SI Kuldeep IO which reads as under : "I had not mentioned that I had found injuries over the person of the prosecutrix even in the proforma made which is forwarded to the Doctor for examination of the prosecutrix. It is correct that the factum of the injuries over the prosecutrix was not written by me in the endorsement of the rukka. I had not observed any external injuries on the person of the prosecutrix and therefore I had not mentioned about the same in the proforma application or in the endorsement of the rukka that I had found the clothes of the prosecutrix torn, when I reached the spot.
116 of 189 117 FIR No. 322/11 PS - Mangol Puri I have not mention in any of the proceedings recorded by me that I had found the clothes of the prosecutrix in torn condition."
From the aforesaid narration of PW13 - SI Kuldeep, it is clearly indicated that he has candidly deposed and explained the reasons for nonmentioning of the injuries over the body of the prosecutrix in the proforma application forwarded to the Doctor for the medical examination of the prosecutrix and in the endorsement of the rukka and for nonmentioning of torn condition of the clothes of the prosecutrix in the proceedings recorded by him. On careful perusal and analysis of the testimony of PW13 - SI Kuldeep, it is found to be clear, cogent and inspiring confidence. He has candidly deposed regarding the facts which he observed, perceived and experienced and of the steps he took during the course of investigation. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case.
Moreover, nonmentioning of the injuries over the body of the prosecutrix in the proforma application forwarded to the Doctor for the medical examination of the prosecutrix and in the endorsement of the 117 of 189 118 FIR No. 322/11 PS - Mangol Puri rukka and for nonmentioning of torn condition of the clothes of the prosecutrix in the proceedings recorded by IO PW13 - SI Kuldeep does not reflect upon the substantive evidence and the probative value of the statement made by PW9 - prosecutrix on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor does it dislodge the substratum of the prosecution case and despite its existence, the clear, cogent and convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. The version of the prosecutrix on the core spectrum of the crime has remained intact.
As regards the plea raised by the Learned Counsel for the accused that FSL Report does not show that the clothes of the prosecutrix were in torn condition, is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. Moreover, the said plea is found to have no substance in view of the facts that the FSL is only to carry out the forensic analysis of the exhibits sent to it. Further, whatever is the 118 of 189 119 FIR No. 322/11 PS - Mangol Puri requisite description of the exhibits sent to FSL is detailed in the Biological Report Ex. PX6 (Colly.) as reproduced, discussed and analysed hereinbefore.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused submitted that the FSL report indicates that semen was detected on the two underwears sent to it for examination. One underwear is Ex. B1 and the other is Ex. C1b. The case of the prosecution is that the accused was wearing an underwear B1 which was seized during investigation. However, during the course of proceedings another underwear C1b rolled out of the bed sheet at the time of recording of the evidence of PW8 before the Court. There is no seizure memo of this underwear and this underwear is also not shown to the prosecutrix during her evidence in court since it had come as a surprise to the prosecution. Both the underwears showing semen alongwith the bed sheet in the FSL report clearly indicate and establish the case of the defence that Sonia has manipulated the evidence 119 of 189 120 FIR No. 322/11 PS - Mangol Puri on the case property after having sexual intercourse with the accused and planted it according to a well conceived plan. The seizure of the second underwear showing semen stains foils the play of Smt. Sonia who had planned to foist this evidence against the accused and it was the brain of a woman involved in serious/long drawn litigation with her husband/the accused over the property and money dispute. Learned Counsel further submitted that semen was also not detected upon the shirt, salwar, shemeez or the underwear of the prosecutrix. Even the strands of the pubic hair of the prosecutrix do not show the presence of semen in the FSL report. This fact clearly proves that the two micro slides of vaginal smear were the result of foisting/planting of evidence by Smt. Sonia on the person of the prosecutrix in a well planned manner to implicate her husband.
I have carefully perused and analysed the evidence on record.
The Biological and Serological evidence Ex. PX6 (Colly.) as well as the DNA Finger Printing Evidence Ex. PW16/A, Genotype Data Ex. PW16/B have been reproduced, discussed and analysed 120 of 189 121 FIR No. 322/11 PS - Mangol Puri hereinbefore.
As regards the theory propounded by the Learned Counsel for the accused that, "The two microslides (exhibit A1i1 and exhibit A1i2) of vaginal smear were the result of foisting/planting of evidence by Smt. Sonia on the person of the prosecutrix in a well planned manner to implicate her husband", is concerned, the same has not at all been made probable much established by any cogent evidence. Moreover, no suggestion regarding the said theory so propounded by the Learned Counsel for the accused was put to PW8 - Smt. Sonia Manchanda during her incisive and lengthy cross examination. Nor a single word regarding the said theory so propounded by the Learned Counsel for the accused was uttered by the accused during his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory so propounded is merely an afterthought and falls flat on the ground. Such baseless theory appears to have been propounded by accused in order to save his skin from the clutches of law.
121 of 189 122 FIR No. 322/11 PS - Mangol Puri So far as the theory floated by the Learned Counsel for the accused that, "Sonia has manipulated the evidence on the case property after having sexual intercourse with the accused and planted it according to a well conceived plan", is concerned, the same has not at all been made probable much established by any cogent evidence therefore, falls flat on the ground.
The testimony of PW8 - Smt. Sonia Manchanda has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW8 - Smt. Sonia Manchanda has been found to be clear, natural, cogent, convincing, inspiring confidence and having a ring of truth.
At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW8 - Smt. Sonia Manchanda, which reads as under : "At the instance of prosecutrix (name withheld) one bed sheet was recovered from the double bed of the ground floor of the house and the same was kept in a plastic polythene and sealed the same with the seal of 'KR'. Police seized the same vide seizure memo Ex. PW8/A 122 of 189 123 FIR No. 322/11 PS - Mangol Puri which bears my signatures at point 'A' and prosecutrix (name withheld) also put her signatures at point 'B' in my presence."
"I can identify the bedsheet seized by the IO from my house, it was of white coloured base having flowers of orange colour.
At this stage, MHC(M) produced one pullinda sealed with the seal of 'SS, FSL DELHI' and same is opened after breaking the seal and one bedsheet and one underwear of size 95 cms. Make VIP and one plastic polythene are taken out and the same are shown to the witness and witness correctly identified the bedsheet and the same is Ex. P1. Witness further states that the above said underwear belongs to her husband and must have been wrapped alongwith the bedsheet lying on the same and when the bedsheet was hurriedly lifted and seized by the IO. The underwear is Ex. P2 and the plastic polythene is Ex. P3."
During her crossexamination, PW8 - Smt. Sonia Manchanda has specifically deposed which is reproduced and reads as under : "It is also wrong to suggest that we had physical relations before I left with my son for tuition. I had not noticed any stain on the underwear belonging to my husband accused Ashok Kumar on the day of incident, which was taken out with bed sheet before the Court. I do not know whether my husband used one or two underwear on the day of incident."
(Underlined by me) 123 of 189 124 FIR No. 322/11 PS - Mangol Puri From the aforesaid narration of PW8 - Smt. Sonia Manchanda, the seizure memo of bedsheet Ex. PW8/A from the place of incident at the instance of prosecutrix, facts leading to recovery of underwear of accused wrapped alongwith the bedsheet and identification of bedsheet as Ex. P1, underwear of accused as Ex. P2 stands established on the record as well as the negation of suggestion by her that they had physical relations before she left with her son for tuition.
So far as the plea raised by the Learned Counsel for the accused that, "During the course of proceedings another underwear C1b rolled out of the bed sheet at the time of recording of the evidence of PW8 before the Court. There is no seizure memo of this underwear", is concerned, since the underwear Ex. P2 [exhibit C1b in Biological Report Ex. PX6 (Colly.)] was found wrapped alongwith the bed sheet Ex. P1 and the bedsheet Ex. P1 as such, alongwith underwear Ex. P2 was seized vide seizure memo Ex. PW8/A and undisputably it has rolled out of the bedsheet at the time of recording of the evidence of PW8 - Smt. Sonia Manchanda, as 124 of 189 125 FIR No. 322/11 PS - Mangol Puri reproduced hereinabove, before the Court, in the circumstances, there could not have been any occasion for the Investigating Agency to seize the underwear Ex. P2 by any separate seizure memo.
As regards the plea raised by the Learned Counsel for the accused that underwear Ex. P2 [exhibit C1b in Biological Report Ex. PX6 (Colly.)] was not shown to the prosecutrix during her evidence, is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. Does he intend to convey that the accused before committal of sexual assault upon the prosecutrix had told her about the colour, size and brand of the underwears which he was in possession of.
So far as the existing of underwear Ex. P2 [exhibit C1b in Biological Report Ex. PX6 (Colly.)] on the bedsheet (which was wrapped alongwith bedsheet Ex. P1) is concerned, it must be within the especial knowledge of the accused as to how it (underwear Ex. P2) came to be present/exist there on the bedsheet (Ex. P1). The burden for the same was upon the accused to discharge. Section 106 of the Indian 125 of 189 126 FIR No. 322/11 PS - Mangol Puri Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
As regards the seizure of underwear Ex. B1 (as per Biological Report Ex. PX6 (Colly.) of accused vide seizure memo Ex. PW5/A, dated 04/08/2011 is concerned, it is pertinent to reproduce the relevant part of examinationinchief of PW6 - Constable Parveen which reads as under : "Thereafter, on the directions of SI Kuldeep Rana, I took accused Ashok Kumar to SGM Hospital for his medical examination. His medical examination was conducted and thereafter I returned back at the spot alongwith accused Ashok Kumar and I handed over the copy of MLC to the IO and I also handed over two pullindas containing underwear and the blood sample of accused Ashok Kumar in sealed condition with the seal of SGM Hospital alongwith the sample seal to the IO, which were received by me at the Hospital. IO seized these pullindas and sample seal vide seizure memo Ex. PW6/C bearing my signatures at point 'A', accused Ashok put his signatures at point 'B' and IO put his signatures at point 'C'."
126 of 189 127 FIR No. 322/11 PS - Mangol Puri There is nothing in the crossexamination of PW6 - Constable Parveen so as to impeach his creditworthiness.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that a PCR call was made by PW8 which reached the spot at the first instance, much before the police of PS - Mangol Puri came there and made inquiries upon the report/call made. The PCR officials examined prosecutrix (name withheld) and Sonia which fact appears in the testimony of Sonia and the prosecutrix. Even otherwise it is admitted case of the prosecution that the PCR was called at the spot by Smt. Sonia. However, SI Kuldeep claims ignorance of the PCR van having reached at the spot or making inquiries in the matter. No PCR official has been examined by the investigating agency. The inquiry made by the PCR officials, the conclusion drawn by them or the fate of the call made to them has been deliberately withheld by the prosecution. The defence witness DW3 was 127 of 189 128 FIR No. 322/11 PS - Mangol Puri also examined on this account and his unshaken testimony proves that the PCR officials had reached the spot, made inquires and had closed the report/call being false.
I have carefully perused and analysed the evidence on record.
PW8 - Smt. Sonia Manchanda during her crossexamination recorded on 17/10/2012 has deposed that : "I had called the Police by 100 Number. I cannot say whether any official of PCR came to the spot or not. However, Police official came there. Vol. Some Police official came in Gypsey (Gypsy) and some officials came on motorcycle. The Gypsey (Gypsy) came first at the place of occurrence. The Police officials who came in Gypsey (Gypsy) interrogated me and I explained the incident to them and also said that I have made a call. Thereafter, the officials who came in Gypsey (Gypsy) interrogated the prosecutrix (name withheld). I cannot exactly recollect as to how much time was consumed in interrogation of myself and interrogated of prosecutrix (name withheld). Again said, it took about half an hour. The Police officials on motorcycle came at the place of occurrence in the presence of officials who came in the Gypsey (Gypsy). I do not recollect the time during which the Police officials came on Gypsey (Gypsy) remained at the spot in presence of Police officials came on motorcycle. When I called the Police, accused Ashok was present in the house. Vol. He was aware that I have been making the call to Police. Police Gypsey (Gypsy) came at the spot after my calling 128 of 189 129 FIR No. 322/11 PS - Mangol Puri to 100 number."
During her entire crossexamination, PW9 - prosecutrix has not uttered a single word regarding the arrival of the PCR at the spot and as to what she has deposed regarding the reaching of the Police at the spot is reproduced and reads as under : "1015 Police officials reached at the spot within 30 minutes of reaching of Soniya at the house. Police recorded my statement and read the same to me and thereafter I put my signature on the same. Thereafter, I was taken to the Hospital with lady Constable Meenu and Sonia and one or two Police officials in the vehicle of Sonia."
PW13 - SI Kuldeep Rana, IO during his crossexamination has specifically deposed that : "I had not met the PCR Officials when I reached the spot. It is correct that a PCR call was made relating to this incident. I do not know if any PCR Van (Gypsy) had reached at the spot in response to the call made. I also do not know if any inquiry with regard to the incident was made from the prosecutrix or Smt. Sonia before I reached the spot."
From the aforesaid narration of the witnesses, it is clearly indicated that the call at number 100 was made by PW8 - Smt. Sonia 129 of 189 130 FIR No. 322/11 PS - Mangol Puri Manchanda and pursuant to that, Police Gypsy had come at the spot and after making some inquiry, left the spot. PW13 - SI Kuldeep Rana has categorically stated that he did not meet the PCR Officials when he reached at the spot nor he knows if any inquiry with regard to the incident was made from the prosecutrix or Smt. Sonia before he reached at the spot. Had the PCR Officials recorded the statement of the prosecutrix or PW8 - Smt. Sonia Manchanda regarding the incident, then they would have certainly handed over the same to the local Police. In the circumstances, responding of the PCR to the call made at number 100 by PW8 - Smt. Sonia Manchanda and of their reaching there at the spot does not ipso facto make them the witnesses to the incident.
In the circumstances, nonexamination and nonciting as witnesses of the PCR Officials does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. 130 of 189 131 FIR No. 322/11 PS - Mangol Puri State of U.P.', (1979) 4 SCC 345, 'State of U.P. Vs. Anil Singh', AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar', 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
It is well settled in law that nonexamination of the material witness is not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be (Ref. State of H.P. Vs. Gian Chand, (2001) 6 SCC 71).
In case Takhaji Hiraji Vs Thakore Kubersing Chamansing, 2001 IV AD (S.C.) 393, the Hon'ble Supreme Court has held that : ".....If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of 131 of 189 132 FIR No. 322/11 PS - Mangol Puri other witnesses."
So far as the plea raised by the Learned Counsel for the accused that, "The defence witness DW3 was also examined on this account and his unshaken testimony proves that the PCR officials had reached the spot, made inquires and had closed the report/call being false", is concerned, the testimony of DW3 - Naveen Arora has been reproduced, discussed and analysed hereinbefore.
At the cost of repetition, on careful perusal and analysis of the testimony of DW3 - Naveen Arora, brotherinlaw (Jija) of accused Ashok Kumar, it is found that DW3 Sh. Naveen Arora during his examinationinchief has propounded a theory that, "On 03/08/2011, I alongwith my wife and two children had gone to the house of the accused at D17, Pushpanjali, Pitam Pura to wish them on their wedding anniversary at about 7:00 p.m. on the aforesaid date. Accused Ashok Manchanda, his wife, maid and two children of accused namely Prince & Sumit were found present at the house. We wished both of them and after some time Sonia alongwith her 132 of 189 133 FIR No. 322/11 PS - Mangol Puri maid went out saying that she was going to the parlour and would soon be back after closing the same. At about 8:00/8:15 p.m. (Sonia) came back alongwith maid servant and told her husband accused Ashok Manchanda that property matter with her should be settled on the same or she will call the Police. Immediately thereafter she called the PCR. In about 15 minutes time, PCR came to the house of the accused with two Police officers. They made inquiries from Sonia and the accused. They also inquired from me that an incident of rape had taken place there? I replied in negative. The police officials also made inquiries from the maid servant of the Sonia. The police also made inquiries from 2/3 persons present outside the house. After making the inquiries the PCR officials told Sonia not to make false complaints" but the said theory so propounded has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded by DW3 - Sh. Naveen Arora was put either to PW8 - Smt. Sonia Manchanda or to PW9 - prosecutrix during their incisive and lengthy crossexamination. Nor even a single word regarding the said theory so 133 of 189 134 FIR No. 322/11 PS - Mangol Puri propounded by DW3 - Sh. Naveen Arora was uttered by accused Ashok Kumar Manchanda in his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory so propounded by DW3 - Sh. Naveen Arora is merely an afterthought and falls flat on the ground.
DW3 - Naveen Arora during his examinationinchief has deposed that : "I while dropping my children on the way at my house also reached at the Police Station. There at the Police Station I requested the police the matter is not such as has been projected but is a matter among the family members (Waha Maine Police Se Request Ki Ke Mamla Aisa Nahi Hai, Yeh Family Members Ka Aapsi Mamla Hai). Police did not pay any heed to our saying and sent us back. I returned at my home and on the next day I alongwith some other relatives made request to the DCP but was told that now it is a court case and the case has been registered and it is to be fight out there."
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the said part of examination inchief of DW3 - Naveen Arora. If in the estimation of DW3 - Naveen Arora, his brotherinlaw (Sala)/Accused Ashok Kumar Manchanda was falsely implicated and arrested in the case and Police was not paying any heed to his (DW3) saying, why DW3 - Naveen Arora did not make any 134 of 189 135 FIR No. 322/11 PS - Mangol Puri complaint against the alleged false implication of accused Ashok Kumar Manchanda to the Police/Senior Police officer or to any Court, the reasons for the same must be known to him.
Moreover, DW3 - Naveen Arora during his cross examination by Learned Addl. PP for the State has specifically deposed that : "On 04/08/2011 I alongwith Raj Kumar Manchanda, brother of accused Ashok Manchanda, Sh. Din Dayal Soni, husband of sister Asha of accused Ashok Manchanda had met DCP. No any written complaint was made either to the DCP or to any other Senior Police official by us. I did not make any call to the Police at No. 100 on 03/08/2011."
It is clearly indicated that, Had accused Ashok Kumar been falsely implicated in the case, DW3 - Naveen Arora, his brotherinlaw (Jija) must have made the complaint to Police/Senior Police Officer or to any Court against his false implication.
In the circumstances, the testimony of DW3 - Sh. Naveen Arora does not inspire confidence and he is a procured witness.
135 of 189 136 FIR No. 322/11 PS - Mangol Puri In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused submitted that there was no injury on the private parts of the prosecutrix negating the fact of the alleged brutal rape. Hymen was found to be ruptured but there was no observation if it was an old or a recent rupture. Dr. Asha the gynecologist who had internally examined the prosecutrix has not been produced in the witness box by the prosecution and the witness produced, PW11 Dr. Parvinder Kaur could not say if the hymen rupture was old or fresh. Therefore the defence has been seriously prejudiced by non production of the most important witness of the prosecution which could have clearly negated the story of rape more particularly in view of the fact that there is no mention of any injury on the private parts of the prosecutrix/labia majora which is first attacked when a sexual assault is committed upon a female. Even the nail clippings of the prosecutrix A1J and A1K did not indicate the presence of blood, semen etc. ruling out any resistance as alleged by the prosecutrix in her deposition, to the 136 of 189 137 FIR No. 322/11 PS - Mangol Puri assault committed.
I have carefully perused and analysed the evidence on record.
Although, the related plea raised by the Learned Counsel for the accused has been analysed and discussed herein before, yet in the interest of justice, I shall deal with the plea so raised by the Learned Counsel for the accused.
Section 47 of Indian Evidence Act, 1872 provides for opinion as to handwriting, when relevant. It reads as under : "47. Opinion as to handwriting, when relevant. When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation. A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually 137 of 189 138 FIR No. 322/11 PS - Mangol Puri submitted to him."
From above, it is clearly indicated that the opinion of any person acquainted with the handwriting of the person by whom any documents was written or signed, is a relevant fact. As per the explanation, a person is said to be acquainted with the handwriting of another person when he has seen that person write.
PW11 - Dr. Parvinder Kaur, SR (Obs. & Gynae), Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi in her examinationin chief has specifically deposed which is reproduced and reads as under : "I have been deputed in place of Dr. Asha who is not working in our Hospital at present and her whereabouts are not known to us. I am conversant with her handwriting and signature as she had worked with me and I have seen her while writing and signing."
From the aforesaid narration of PW11 - Dr. Parvinder Kaur, it is clearly indicated that she had worked with Dr. Asha and is conversant with the handwriting and signatures of Dr. Asha as she has seen her writing and signing.
138 of 189 139 FIR No. 322/11 PS - Mangol Puri In the circumstances, PW11 - Dr. Parvinder Kaur, being acquainted with the handwriting and signatures of Dr. Asha as she had seen her writing and signing has proved the gynaecological examination, encircled from portion 'X' to 'X1' on the MLC Ex. PW4/A made by Dr. Asha which bear signature of Dr. Asha at point 'C'.
In view of above and in the circumstances, there is no substance in the plea raised by the Learned Counsel for the accused that the defence of the accused has been seriously prejudiced by non production of Dr. Asha, the most important witness and consequently, the theory propounded by the Learned Counsel for the accused that, "Had Dr. Asha been examined by the prosecution, then she could have clearly negated the theory of rape, more particularly in view of the fact that there is no mention of any injury on the private parts of the prosecutrix/labia majora which is first attacked when a sexual assault is committed upon a female", falls flat on the ground.
139 of 189 140 FIR No. 322/11 PS - Mangol Puri At the cost of repetition, 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."
(underlined by me) 140 of 189 141 FIR No. 322/11 PS - Mangol Puri At the cost of repetition, as regards the plea raised by the Learned Counsel for the accused for nonfinding of any injury on the private parts of the prosecutrix, is concerned, the absence of any injury does not falsify the case of prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
At the cost of repetition, emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of 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. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly 141 of 189 142 FIR No. 322/11 PS - Mangol Puri provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
At the cost of repetition, in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
At the cost of repetition, in case, 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
As regards the plea that, "Even the nail clippings of the prosecutrix 'A1j' and 'A1k' did not indicate the presence of blood, semen etc. ruling out any resistance as alleged by the prosecutrix in her deposition, to the assault committed" is concerned, in view of the 142 of 189 143 FIR No. 322/11 PS - Mangol Puri Biological and Serological Evidence, Ex. PX6 (Colly.), as reproduced, discussed and analysed hereinbefore, nondetection of blood and human semen on exhibit 'A1j' (Rt. Hand nail cutting of the prosecutrix) and exhibit 'A1k' (Lt. Hand nail cutting of the prosecutrix) does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference. At the cost of repetition, as per the biological report Ex. PX6 (colly.), prosecution has discharged its initial burden of proving the presence of Human semen on exhibit 'A1c' (Rt. Lateral Vaginal wall of the prosecutrix seized vide seizure memo Ex. PW5/A dated 04/08/2011), exhibit 'A1d' (Lt. Lateral Vaginal wall of the prosecutrix seized vide seizure memo Ex. PW5/A dated 04/08/2011), exhibit 'A1i1' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW5/A dated 04/08/2011), exhibit 'A1i2' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW5/A dated 04/08/2011), exhibit 143 of 189 144 FIR No. 322/11 PS - Mangol Puri 'B1' (Underwear of the accused seized vide seizure memo Ex. PW6/C, dated 04/08/2011), exhibit 'C1a' (Bedsheet seized from the place of occurrence seized vide seizure memo Ex. PW8/A dated 04/08/2011) and exhibit 'C1b' (Underwear seized from the place of occurrence found wrapped alongwith the bedsheet exhibit 'C1a' which (bed sheet exhibit 'C1a') was seized vide seizure memo Ex. PW8/A dated 04/08/2011). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits 'A1c', 'A1d', 'A1i1', 'A1i2', 'B1', 'C1a' and 'C1b' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Ashok Kumar and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for accused submitted that the accused was 144 of 189 145 FIR No. 322/11 PS - Mangol Puri also examined immediately after the occurrence at 4:15 a.m. on 04/08/2011 and no injury of any kind was seen or found on his person at the time of examination which again is a circumstance suggesting false implication of the accused.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea.
The testimony of PW9 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW9 - prosecutrix has been found to be clear, natural, cogent, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. The version of PW9 - prosecutrix on the core spectrum of the crime has remained intact.
145 of 189 146 FIR No. 322/11 PS - Mangol Puri As regards findings of no injury on the body of the accused is concerned, the absence of any injury on the body of the accused does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
The medical and the virility evidence of the accused has been discussed and analysed hereinbefore. PW4 - Dr. P. C. Prabhakar has proved the MLC of the accused Ex. PX5 bearing his observations at points bracketed 'X' to 'X1'. PW21 - Dr. Manoj Dhingra has proved the opinion of Dr. Arvind that there is no evidence to suggest that the patient/accused Ashok Kumar is incapable of performing sexual intercourse.
At the cost of repetition, PW4 - Dr. P. C. Prabhakar, Senior Medical Officer, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that in the intervening night of 0304/08/2011, he was on duty in the Hospital. On the same intervening night in the morning at 4:15 a.m. on 04/08/2011, the patient namely Ashok Kumar S/o Sher Chand, aged 49 years, male was brought by Constable Parveen and he 146 of 189 147 FIR No. 322/11 PS - Mangol Puri (PW4) conducted his medical examination already Ex. PX5 bearing his observations at point bracketed 'X' to 'X1'.
At the cost of repetition, PW21 Dr. Manoj Dhingra, MO, SGM Hospital, Delhi has deposed that he has been deputed in this case by the MS of Hospital to depose before the Court. He has seen MLC No. 19433 of Ashok Kumar, S/o Sher Chand, aged 49 year, male who was brought to the Hospital for medical examination. The patient was examined by Dr. Arvind under the supervision of Dr. P .C. Prabhakar, CMO. After examination, it was opined that there is no evidence to suggest that the patient is incapable of performing sexual intercourse. At present, Dr. Arvind is not working at their Hospital and present whereabouts are not known. He is acquainted with handwriting and signature of Dr. Arvind as he has seen him while writing or signing during the course of his duties. The MLC is in the handwriting of Dr. Arvind. The MLC is already Ex. PX5 bearing signature of Dr. Arvind at point 'A'.
There is nothing in the crossexamination of PW4 - Dr. P. C. Prabhakar and PW21 Dr. Manoj Dhingra so as to impeach their 147 of 189 148 FIR No. 322/11 PS - Mangol Puri creditworthiness.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for accused submitted that the suspicious circumstances of the case requires corroboration from independent sources/public witnesses to the alleged sexual assault upon the prosecutrix. It is an admitted case that the house of the accused is situated in a congested residential locality. No hue and cry is raised by the prosecutrix to invite the attention of the neighbourers. No neighbour collects at the spot and the prosecutrix does not call for any help from any one. The most important witness to the incident could have been the two sons of the accused and Sonia namely Prince and Sumit who were both present in the house. They have not been produced as witnesses in the case. IO claims that they were not present in the house. However Sonia asserts that both her sons were present in the house and inquiries were made from them by the Police. The prosecution has therefore withheld important evidence from the Court which favoured the accused 148 of 189 149 FIR No. 322/11 PS - Mangol Puri and went against the prosecution. It should not be the aim of the prosecution to see that the prosecution of the accused ends with success but it has to see that the trial should result in delivering justice to the accused. The accused has also led the evidence of DW1, the tutor of the son of the accused and Smt. Sonia. This witness has categorically stated that Prince had not gone for tuition on 03/08/2011. The evidence of this witness remains firm, specific and undeterred during cross examination. He has also filed the admission/joining form of the Prince with his institution, which was called by the Addl. PP during the cross examination. This form bears the signatures of the son of the accused and Sonia on the said admission form. It is admitted case of the prosecution that prince used to take tuition from DW1 who pulls the grassroots out of the testimony of Sonia by saying that Prince did not take class on 03/08/2011 and this fact was conveyed by DW1 to the police when he was joined in the investigation on the next day of the alleged occurrence. The evidence of this witness demolishes the case of Sonia that she had gone to fetch her son after his class with the DW1 and the incident took place when she had left the house for that purpose. Therefore, the conduct of the prosecutrix in not raising any alarm at the 149 of 189 150 FIR No. 322/11 PS - Mangol Puri time of the incident or even thereafter, not showing any resistance at the time of alleged rape, no injury having been found on her private parts, no marks of resistance on the body of the accused or on his private parts to show force having been used by the accused, absence of semen on the cloth of the prosecutrix, the inquiry made by the PCR officials which has been withheld and no corroboration being sought to the version of the prosecutrix are enough to discard the testimony of the prosecutrix made against the accused.
I have carefully perused and analysed the evidence on record.
Although, the related pleas raised by the Learned Counsel for the accused have been analysed and discussed herein before, yet in the interest of justice, I shall deal with the plea so raised by the Learned Counsel for the accused.
Prosecution can be expected to examine only those who have witnesses the events and not those who have not seen it, though, the neighbourhood may be replete with other residents.
150 of 189 151 FIR No. 322/11 PS - Mangol Puri In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
It is a matter of common experience that public persons do not come forward to assist the Police in the investigation.
Nonjoining of the public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent 151 of 189 152 FIR No. 322/11 PS - Mangol Puri and convincing evidence.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).
The testimony of PW9 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW9 - prosecutrix has been found to be clear, natural, cogent, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
152 of 189 153 FIR No. 322/11 PS - Mangol Puri So far as the plea raised by the Learned Counsel for the accused that the prosecutrix did not raise any alarm and had not shown any resistance is concerned, with due respect, it appears that either the Learned Counsel for the accused has misread or not read the testimony of PW9 - prosecutrix.
PW9 - prosecutrix in her examinationinchief has specifically deposed that she protested and raised alarm and he put his hand on her mouth. Thereafter, the accused Ashok Manchanda committed rape upon her on the double bed in his bedroom and also caused injuries to her on her lips and also caused scratches on her neck portion and also on her chest portion.
At the cost of repetition, the relevant part of the examinationinchief of PW9 - prosecutrix is reproduced and reads as under : "On 03/08/2011 at about 8:45 p.m. Sonia Manchanda had gone alongwith her son Prince for tuitions and her younger son Sumeet had already gone for tuition. Ashok Manchanda and myself were alone in the house. At about 8:45 p.m. I was working in the kitchen of the 153 of 189 154 FIR No. 322/11 PS - Mangol Puri house. Accused Ashok Manchanda came in the kitchen and caught hold of me by my hand and dragged me to his bed room and he took off / removed my clothes. I protested and raised alarm and he put his hand on my mouth. Thereafter, the accused Ashok Manchanda committed rape upon me on the double bed in his bed room. Accused Ashok Manchanda caused injuries to me on my lips and also caused scratches on my neck portion and also at my chest portion. I was scared due to this incident and when accused Ashok inside the washroom I put my clothes and immediately come outside of the house and conceal myself behind a tree in front of the house. After half to one hour Sonia Manchanda returned back to the house. I told all the facts to her and thereafter she made a call to the Police. Police came at the house. Police made inquiries from me and I told all the facts to the Police and Police recorded my statement vide Ex. PW9/A bearing my signatures at point 'A'. Thereafter, Police took me to SGM Hospital and I was medically examined there. Doctor took my clothes and thereafter we returned back at the above said spot. I had shown the place of incident to the Police and Police prepared the site plan of the place of incident vide Ex. PW9/B bearing my signatures at point 'A'....."
(underlined by me) On analysing the entire testimony of PW9 - prosecutrix, it transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of sexual assault upon her despite her protest and raising of alarm. The accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her 154 of 189 155 FIR No. 322/11 PS - Mangol Puri searching crossexamination. The version of PW9 - prosecutrix on the core spectrum of the crime has remained intact.
As regards the plea raised by the Learned Counsel for the accused for the nonexamination of two sons of the accused and PW8 - Smt. Sonia namely Prince and Sumit, is concerned, PW8 - Smt. Sonia Manchanda during her examinationinchief has specifically deposed which is reproduced and reads as under : "On 03/08/2011, at about 08:30 p.m., I went to drop my son namely Prince for tuition and my another son namely Sumit had already gone for his tuition."
(Underlined by me) Inspite of incisive crossexamination of PW8 - Smt. Sonia, nothing material has been brought out on the record on the aspect that both her sons Sumit and Prince were present at the house at the time of the alleged incident.
PW8 - Smt. Sonia Manchanda during her crossexamination has specifically deposed : 155 of 189 156 FIR No. 322/11 PS - Mangol Puri "Both (her sons Sumit and Prince) were present in the house, when the Police reached at our house".
So far as the plea raised by the Learned Counsel for the accused regarding the evidence of DW1 - Sh. Ashwani Kumar Yadav is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the plea so raised regarding the evidence of DW1 - Sh. Ashwani Kumar Yadav. As discussed herein before that a futile attempt has been made by the accused to save his skin by way of examination of DW1 - Sh. Ashwani Kumar Yadav, the Music Teacher of his son Prince.
At the cost of repetition, DW1 - Sh. Ashwani Kumar Yadav is the music teacher who in his examinationinchief has deposed that : "I am a music teacher by profession. Master Prince is my student. Master Prince is the son of Ashok Kumar Manchanda, the accused present in the Court today (correctly identified).
On 04/08/2011 Police officials from PS - Mangol Puri came in my institute at E21, 200201, Sector 3, Rohini and they inquired from me about my student Master Prince whether he attended the class on 03/08/2011. I told them that my student Master Prince did not attend the class on 03/08/2011. The Police officials told me about the present 156 of 189 157 FIR No. 322/11 PS - Mangol Puri case against the father of Master Prince."
During his crossexamination recorded on 22/10/2013, DW1
- Sh. Ashwani Kumar Yadav has deposed that : "I did not maintain any attendance record of the students who attended my institute."
(Underlined by me) During his further crossexamination recorded on 29/11/2013, DW1 - Sh. Ashwani Kumar Yadav has deposed that : "I do not remember for how many months student Master Prince had attended my Institute. I cannot tell when Master Prince had Vol. It attended the class and on which day he had not attended the class.
is not easy to remember the details of the students when there are so many students in my institute."
(Underlined by me) From the aforesaid parts of the crossexamination of DW1 - Sh. Ashwini Kumar Yadav, it is clearly indicated that no attendance register/sheet of 03/08/2011 to indicate that Master Prince (son of accused Ashok Kumar Manchanda) did not attend the music class on 157 of 189 158 FIR No. 322/11 PS - Mangol Puri 03/08/2011 has been produced or proved on record. Moreover, the aforesaid parts of the crossexamination of DW1 - Sh. Ashwani Kumar Yadav have knocked out the bottom of the defence of the accused.
The theory propounded by DW1 - Sh. Ashwani Kumar Yadav during his examinationinchief that, "I told them (Police) that my student Master Prince did not attend the class on 03/08/2011" has not at all been made probable much established by any cogent evidence. Nor even a single word regarding the said theory so propounded by DW1
- Sh. Ashwani Kumar Yadav was uttered by accused Ashok Kumar in his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory so propounded by DW1 - Sh. Ashwani Kumar Yadav is merely an afterthought and falls flat on the ground.
In the circumstances, DW1 - Sh. Ashwini Kumar Yadav is a procured witness and his testimony besides being vague also does not inspire confidence.
In the circumstances, there is no substance in the plea so 158 of 189 159 FIR No. 322/11 PS - Mangol Puri raised by the Learned Counsel for the accused.
30. Learned Counsel for the accused submitted that at the time of the recording of the statement of PW9 - prosecutrix u/s 164 Cr.P.C. by PW20 - Sh. Deepak Wason, Learned MM, her landlady, PW8 - Ms. Sonia was also present in the Chamber and such statement was made by PW9 - prosecutrix on the tutoring of her landlady PW8 - Ms. Sonia.
I have carefully perused and analysed the evidence on record.
PW20 - Sh. Deepak Wason, Learned MM has recorded the statement of PW9 - prosecutrix u/s 164 Cr.P.C. Ex. PX3 bearing his signatures at points 'X', 'Y' & 'Z' and signed by the prosecutrix at point 'A' (also Ex. PW9/C during the evidence of PW9 - prosecutrix).
The testimony of PW20 - Sh. Deepak Wason, Learned MM has been detailed hereinbefore. At the cost of repetition, PW20 - Sh. Deepak Wason, Learned MM has deposed that on 04/08/2011, he was 159 of 189 160 FIR No. 322/11 PS - Mangol Puri posted as MM in Rohini Courts. IO SI Kuldeep Singh moved an application already Ex. PX2 for recording statement u/s 164 Cr.P.C. of girl/prosecutrix (name withheld) before the concerned MM and same was marked to him (PW20) being Link MM. He recorded the statement of the prosecutrix (name withheld) vide proceedings running into three pages marked as already Ex. PX3 bearing his signatures at points 'X', 'Y' & 'Z' in respective pages. The signatures of prosecutrix were obtained by him on her statement which are at point 'A'. He appended his certificate with respect to the conduct of the proceedings which is Ex. PW20/A. IO identified the prosecutrix and the signatures of IO are at point 'C'. IO thereafter, moved an application for obtaining a copy of the above mentioned proceedings which was allowed by him vide endorsement Ex. PW20/B bearing his signatures at point 'A'.
Despite grant of opportunity, PW20 - Sh. Deepak Wason, Learned MM was not crossexamined on behalf of the accused.
The perusal of the proceedings dated 04/08/2011 u/s 164 Cr.P.C. Ex. PX3 (Colly.), leading to the recording of the statement u/s 160 of 189 161 FIR No. 322/11 PS - Mangol Puri 164 Cr.P.C. is reproduced and reads as under : "PROCEEDINGS U/S 164 Cr.P.C.
04/08/2011 This application for recording statement of prosecutrix (name withheld) u/s 164 Cr.P.C. has been filed before the Court of undersigned, which application is marked to me being 2nd Link MM of that Court. Hence, I proceed to record the statement of the prosecutrix u/s 164 Cr.P.C.
Present : IO/SI Kuldeep with file.
Prosecutrix (name withheld) is present alongwith Lady Constable Manju and her landlord Ms. Sonia.
IO has identified the prosecutrix (name withheld). Now, SI Kuldeep has been directed to leave the Chamber. I have asked some preliminary questions to the prosecutrix about her age, education, family, social status etc. to ascertain the voluntariness of her statement and I am satisfied that the victim is making her statement voluntarily. Therefore, let her statement be recorded.
(Deepak Wason) 2nd Link MM : Rohini : Delhi 04/08/2011"
Although, the aforesaid proceedings, shows that specifically it is not recorded therein that the landlord Ms. Sonia (PW8) has been 161 of 189 162 FIR No. 322/11 PS - Mangol Puri directed to leave the Chamber by PW20 - Sh. Deepak Wason, Learned MM, yet, on careful perusal of the testimony of PW20 - Sh. Deepak Wason, Learned MM, the statement of prosecutrix recorded by him Ex. PW9/C, the certificate of correctness of proceedings Ex. PW20/A, appended by him nowhere suggests the presence of landlady Ms. Sonia (PW8) in the Chamber at the time of recording of the statement of the prosecutrix or that the statement of the prosecutrix was recorded on the tutoring of landlady Ms. Sonia (PW8). It is a matter of common experience, that statements of the prosecutrix are recorded by the Magisterial Courts in the Chamber without there being present anyone else except the prosecutrix, who is to make the statement. It is also evident from the record that PW20 - Sh. Deepak Wason, Learned MM, was not crossexamined on behalf of the accused despite grant of opportunity. He was the only competent witness who would have been fully capable of explaining correctly the factual situation.
It is also evident from the record that during the cross examination of PW9 - prosecutrix, the accused did not voice his concern or raised any apprehension on the aspect regarding the presence of her 162 of 189 163 FIR No. 322/11 PS - Mangol Puri landlady, PW8 Sonia in the Chamber at the time of her (prosecutrix) statement and that such statement was made by her (prosecutrix) on the tutoring of her landlady, PW8 - Sonia. She was the only competent witness who would have been fully capable of explaining the factual situation correctly. For such failure, accused is blame himself and none else.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
Even during the crossexamination of PW8 - Ms. Sonia, it was not suggested to her by the Learned Counsel for the accused that she was present in the Chamber of the Learned MM at the time of the recording of the statement of PW9 - prosecutrix u/s 164 Cr.P.C. and that such statement was made by the prosecutrix on her tutoring.
It appears that such plea has been raised by the Learned 163 of 189 164 FIR No. 322/11 PS - Mangol Puri Counsel for the accused to reap the benefit, on the accidental slip which had crept in while recording the proceedings u/s 164 Cr.P.C. by PW20 - Sh. Deepak Wason, Learned MM.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for the accused submitted that the occurrence is alleged to have taken place on 03/08/2011 and the DNA examination was conducted on 30/12/2012 and PW16 admits in his cross examination that the samples would degrade/break down when they age or become old and the condition for degrading could be the cold, heat or the moisture etc. Admittedly the samples remained with the MHC(M) from 27/11/2011 to 30/12/2012 and the conditions in the Malkhana are not conducive for storing of the samples, it being exposed to extreme heat, cold and moisture for more then a year and thus the results were prone to error. The DNA examination after an inordinate delay of about an year is of no assistance to the prosecution and has to be discarded from consideration. There is no subjective satisfaction of the analysis.
164 of 189 165 FIR No. 322/11 PS - Mangol Puri The settled proposition in this regard is that the subjective satisfaction is necessary for analysis of the sample and the mechanised result is always open to suspicion.
I have carefully perused and analysed the evidence on record.
With due respect, it appears that Learned Counsel for the accused has either misread or not read the evidence on record.
The Biological and Serological evidence Ex. PX6 (Colly.) as well as the DNA Finger Printing Evidence Ex. PW16/A, Genotype Data Ex. PW16/B have been reproduced, discussed and analysed hereinbefore.
The testimony of PW16 Sh. A. K. Srivastva has been detailed, discussed and analysed hereinbefore.
As per Biological and Serological Report Ex. PX6 (Colly.), four parcels were received in FSL, Rohini on 09/09/2011 while as per DNA Finger Printing Report Ex. PW16/A, three forensic parcels were received in FSL, Rohini, DNA Unit on 165 of 189 166 FIR No. 322/11 PS - Mangol Puri 30/10/2012 and 10/12/2012.
The relevant part of Biological and Serological Report Ex. PX6 (Colly.) is reproduced and reads as under : "To, The SHO, P.S. : Mangolpuri Delhi.
Your letter No. 3748/SHOM.Puri Dated 05.09.11 regarding 04 (Four) parcels in connection with the case FIR No. 322/11 Dated 04.08.11 u/s : 376 IPC P.S. Mangolpuri duly received in this office on 09.09.11."
The relevant part of DNA Finger Printing Report Ex. PW16/A is reproduced and reads as under : "To, The SHO P.S. Mangolpuri Delhi Please refer to your letter No. 4745/SHO/Mangolpuri, Delhi, dated 30.10.2012 and letter No. 5408/SHO/mangolpuri dated 10.12.2012 regarding DNA Fingerprinting test of three forensic parcels in case FIR No. 322/2011 dated 04/08/2011 U/s 376/506 IPC, P.S. Mangolpuri, Delhi received in DNA unit on 30.10.2012 and 10.12.2012."
166 of 189 167 FIR No. 322/11 PS - Mangol Puri PW1 - HC Dharambir in his examinationinchief has deposed that on 04/08/2011, SI Kuldeep (IO) of PS - Mangol Puri handed over four pullindas related to case FIR No. 322/11 and two sample seals and the same were kept in Malkhana vide Mad No. 5166 of Register No. 19. On 09/09/2011, he (PW1) handed over the above pullindas alongwith two sample seals to SI Kuldeep vide RC No. 118/21/11 dated 09/09/2011 which were submitted to FSL, Rohini by SI Kuldeep and he handed the receipt of FSL to him (PW1) and proved entry in Register No. 19 vide Serial No. 5166 copy of which is Ex. PW1/A (running into two pages), entry in Register No. 21 vide RC No. 118/21/11 copy of which is Ex. PW1/B bearing his signature at point 'A' and receipt/acknowledgment issued by FSL copy of which is Ex. PW1/C (original entries and original receipt seen and returned).
PW13 - SI Kuldeep, IO in his examinationinchief has interalia deposed that during his investigation, he deposited the exhibits of this case to the FSL, Rohini, Delhi vide (RC No. 118/21/11) already exhibited as Ex. PW1/B bearing his signature at point 'B' and handed over receipt to MHC(M), which is already exhibited as Ex. PW1/C 167 of 189 168 FIR No. 322/11 PS - Mangol Puri bearing his signature at point 'A' and the case property was not tampered. He collected the biological and serological report from the FSL, Rohini and same are already exhibited as PX6 collectively. He recorded the statement of MHC(M). After completion of investigation, he submitted chargesheet against accused Ashok Kumar, who is present in the Court and correctly identified him. He also took the prosecutrix (name withheld) for her age determination and obtained the report. He also took the accused Ashok Kumar to the SGM Hospital and his blood sample was taken and the Doctor handed over two pullindas containing the blood sample of the accused Ashok Kumar in a sealed condition with sample seal to him and he seized the same. He deposited the same in the Malkhana. He again sent the exhibits of this case to FSL, Rohini, Delhi for DNA profiling through Constable Ashok. During his further examinationinchief recorded on 21/01/2013, recalled in terms of order dated 17/10/2012, PW13 - SI Kuldeep deposed that on 18/10/2012, an order dated 17/10/2012 passed by Dr. Kamini Lau, Learned ASJ, Rohini Courts, Delhi was received in the PS and as per the order, the ossification test of prosecutrix (name withheld) and DNA examination in the present case was required to be got conducted. On 19/10/2012, 168 of 189 169 FIR No. 322/11 PS - Mangol Puri prosecutrix (name withheld) was called at PS. He alongwith Lady Constable Manju took her at SGM Hospital for her ossification test. Her ossification test was got conducted. On 21/10/2012, accused Ashok Manchanda, present in the Court (correctly identified) was called and he was taken at SGM Hospital for taking his blood sample for DNA examination. His blood sample was taken in Sanjay Gandhi Hospital by the Doctor and the sealed pullinda of his blood sample as was handed over by the concerned Doctor alongwith the sample seal was taken into Police possession vide seizure memo Ex. PW13/C, bearing his signature at point 'A' and the same was deposited in the Malkhana. On 26/10/2012, sample seal of the Court of Dr. Kamini Lau, Learned ASJ was taken vide memo Ex. PW13/D, bearing his signature at point 'A'. On 30/10/2012, the exhibits were sent to FSL through Constable Ashok.
PW24 HC Vijender, in his examinationinchief has deposed that on 21/10/2012, he was posted as MHC(M) at PS Mangol Puri. On that day, SI Kuldeep Rana had deposited two sealed pullindas in the Malkhana and he (PW24) made entry at Serial No. 6357 of Register No. 19. On 30/10/2012, on the instruction of IO, sealed 169 of 189 170 FIR No. 322/11 PS - Mangol Puri pullindas along with sample seal were handed over to Constable Ashok for depositing it in FSL, Rohini. After depositing the same in the FSL, he (Constable Ashok) had deposited the acknowledgment receipt of the sealed pullinda in the FSL with him (PW24). He has brought the Register No. 19 and 21. Copy of relevant entry at Register No. 19 is Ex. PW24/A and at Register No. 21 is Ex. PW24/B and the copy of acknowledgment receipt is Ex. PW24/C (OSR). On 10/12/2012, one sealed pullinda was handed over to Constable Hari Kumar for depositing in FSL, Rohini vide RC No. 125/21/12 and he deposited the same in FSL, Rohini and thereafter, deposited the receipt with him (PW24). The copy of the relevant entry of Register No. 21 along with receipt is Ex. PW24/D (OSR). Sealed pullinda remained intact during his custody.
PW17 Constable Ashok Kumar, in his examinationin chief has deposed that on 30/10/2012, he was posted as Constable in PS
- Mangol Puri. On that day, on the instructions of IO he took two sealed pullindas along with two sample seals from the MHC(M) for depositing in FSL Rohini vide RC No. 115/21/12. He deposited the 170 of 189 171 FIR No. 322/11 PS - Mangol Puri same in the FSL and thereafter deposited the acknowledgment receipt with the MHC(M). The sealed pullinda remained intact during his possession.
PW18 Constable Hari Kumar, in his examinationinchief has deposed that on 10/12/2012, he was posted as Constable in PS - Mangol Puri. On that day, on the instruction of IO he took one sealed pullinda from the MHC(M) for depositing in FSL, Rohini vide RC No. 125/21/12. He deposited the same in the FSL and thereafter deposited the acknowledgment receipt with the MHC(M). The sealed pullinda remained intact during his possession.
PW19 SI Jaspal, in his examinationinchief has deposed that in November, 2012, he was posted as SI in PS - Mangol Puri and case file was handed over to him for further investigation. On 10/12/2012 one sealed pullinda was sent to FSL through Constable Hari Kumar for depositing in the FSL and he deposited the pullinda in the FSL. Later on the supplementary chargesheet was filed and 171 of 189 172 FIR No. 322/11 PS - Mangol Puri thereafter he also filed the FSL results in the Court.
PW22 - Constable Rakesh Kumar, in his examinationin chief has deposed that on 21/10/2012, he was posted as Constable at PP SGMH, PS Mangol Puri. On that day, he along with SI Kuldeep Rana took accused Ashok Manchanda in SGM Hospital, where his blood sample was taken by the Doctor. The sealed pullinda of blood sample was handed over by the Doctor alongwith sample seal and the same was taken into possession vide memo Ex. PW13/C which bears his signature at point 'B'.
PW23 Dr. Bina, CMO, SGMH, Delhi, in her examination inchief has deposed that on 21/10/2012 one Ashok Manchanda S/o Sher Chand Manchanda, age 50 years was brought to Hospital by Constable Rakesh Kumar for collection of blood samples as ordered by the Court vide order dated 17/10/2012. The blood samples were collected, sealed and handed over to the IO. She prepared the MLC which is Ex. PW23/A, bearing her signature at point 'A'.
172 of 189 173 FIR No. 322/11 PS - Mangol Puri There is nothing in the crossexamination of said PWs so as to impeach their creditworthiness.
From the aforesaid narration of the said PWs, it is clearly indicated that the sealed exhibits/samples have been deposited in FSL, Rohini without any delay.
In view of above and in the circumstances, there is no substance in the plea raised by the Learned Counsel for the accused that there is an inordinate delay of about an year in the DNA examination of the samples.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
32. Learned Counsel for the accused submitted that the entire proceedings were conducted in the police station itself where they got sufficient time to plant and create a web against the accused. PW5 -
173 of 189 174 FIR No. 322/11 PS - Mangol Puri Constable Meenu is categorical in saying that statement of prosecutrix (name withheld) was recorded in Police Station which the IO says, was recorded at the spot. PW5 even denies the suggestion of Addl. PP that it was recorded at spot. There are glaring contradictions in the testimony of Constable Praveen PW6 and the L/Constable Meenu. PW6 says that the statement of the prosecutrix was recorded after returning from the Hospital which again belies the case of the prosecution. She is contradicting the IO on the parcels made.
I have carefully perused and analysed the evidence on record.
The testimony of PW9 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW9 - prosecutrix has been found to be clear, natural, cogent, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. The version of PW9 - prosecutrix on the core spectrum of the crime has remained intact.
174 of 189 175 FIR No. 322/11 PS - Mangol Puri The testimonies of PW5 - L/Constable Meenu, PW6 - Constable Praveen and PW13 - SI Kuldeep, IO have been detailed and discussed hereinbefore.
At the cost of repetition, PW5 - L/Constable Meenu in her examinationinchief has deposed that on 03/08/2011, she was posted at Police Station Bawana. On that day, she was on duty at District lines from 8:00 p.m. to 9:00 a.m. At about 12 (midnight) after receipt of the call she was called form District Lines and she was asked to go to D17, Pushpanjali Enclave, Pitampura. She alongwith SI Kuldeep reached D17, Pushpanjali Enclave, Pitampura where they met a land lady and her husband and Constable Parveen who was already present there. One girl/prosecutrix (name withheld) was also present in the house. IO handed over prosecutrix (name withheld) to her (PW5) and asked her to take her to SGM Hospital for getting her medical conducted. She alongwith Constable Parveen took prosecutrix (name withheld) to SGM Hospital where she got conducted the medical examination of prosecutrix (name withheld). After her medical examination doctor 175 of 189 176 FIR No. 322/11 PS - Mangol Puri handed over to her samples, exact number she does not recollect. Thereafter, they came back to the Police Station where she handed over all the sealed samples duly sealed with the seal of the Hospital to the IO. The IO thereafter prepared the memo of the same which she (PW5) signed which seizure memo is Ex. PW5/A bearing her signature at point 'A'. the girl/prosecutrix was also kept in the Police Station. SI Kuldeep thereafter recorded the statement of the prosecutrix. Thereafter, the prosecutrix was relieved from the Police Station. She wants to add that before she left for the Hospital one bed sheet was also taken into possession by the IO from the house D17, Pushpanjali Enclave, Pitampura. On the leading questions put by the Learned Addl. PP for the State, deposed that it is correct that after she reached the spot alongwith Constable Parveen, the IO handed over to her the request to the CMO for medical examination of the prosecutrix. It is correct that nine samples/exhibits including pullindas and sample seal were handed over to her by the Doctors at SGM Hospital which she then handed over to the IO. It is correct that she had first come to the spot after the medical examination of the prosecutrix was got conducted but it is wrong to suggest that she handed over the pullinda to the IO at the spot. Vol. she 176 of 189 177 FIR No. 322/11 PS - Mangol Puri handed over the pullinda to the IO in the Police Station thereafter. It is wrong to suggest that the statement of prosecutrix (name withheld) was recorded at the spot. Vol. It was recorded in the Police Station. It is correct that after the registration of the FIR, site plan was prepared by the IO and also the bed sheet was seized. Her statement was recorded on the same day by the IO.
At the cost of repetition, PW6 - Constable Praveen, in his examinationinchief has deposed that on 03/08/2011, he was posted at Police Station Mangol Puri. On that day, he was on emergency duty alongwith SI Kuldeep Rana from 8:00 p.m. to 8:00 a.m. At about 10:00 p.m. they were in the area of Police Station Mangol Puri for the investigation of other case and they received a telephone call from the Duty Officer that DD No. 89B was marked to SI Kuldeep Rana for further proceedings in respect of rape committed with the maid by the husband of the informer at D17, Pushpanjali Enclave, Pitampura, Delhi. He alongwith SI Kuldeep Rana immediately reached at D17, Pushpanjali Enclave, Pitampura, Delhi. They met prosecutrix (name withheld) and her land owner lady and accused Ashok there. SI Kuldeep Rana 177 of 189 178 FIR No. 322/11 PS - Mangol Puri interrogated prosecutrix (name withheld) and recorded her statement wherein she alleged that accused Ashok committed rape with her. One lady Constable Meenu was called at the spot and thereafter he alongwith prosecutrix (name withheld) and lady Constable Meenu went to SGM Hospital on the directions of SI Kuldeep Rana for medical examination of prosecutrix where her medical examination was conducted. Thereafter, they returned back at the spot. Lady/Constable Meenu handed over MLC of prosecutrix to the IO and also handed over rape exhibits, nine pullindas in sealed condition duly sealed with the seal of the SGM Hospital in an envelope to the IO alongwith the sample seal and IO seized the same vide seizure memo already Ex. PW5/A bearing his signatures at point 'A' and SI Kuldeep Rana put his signatures at point 'B'. SI Kuldeep Rana prepared the rukka and handed over the same to him for registration of the FIR and FIR No. 322/11 was got registered on the basis of above said statement of prosecutrix and rukka. He returned back at the spot and handed over the copy of the FIR and original rukka to SI Kuldeep Rana for further investigations. Thereafter, SI Kuldeep Rana arrested accused Ashok Kumar vide Ex PW6/A bearing his signatures at point 'A' and prosecutrix (name withheld) put her signatures 178 of 189 179 FIR No. 322/11 PS - Mangol Puri at point 'B', accused Ashok Kumar put his signatures at point 'C' and IO SI Kuldeep Rana put his signatures at point 'D'. Personal search of the accused was taken vide memo Ex. PW6/B bearing his signatures at point 'A' and prosecutrix (name withheld) put her signatures at point 'B', accused Ashok Kumar put his signatures at point 'C' and IO SI Kuldeep Rana put his signatures at point 'D'. Thereafter, on the directions of SI Kuldeep Rana, he took accused Ashok Kumar to SGM Hospital for his medical examination. His medical examination was conducted and thereafter he returned back at the spot alongwith accused Ashok Kumar and he handed over the copy of MLC to the IO and he also handed over two pullindas containing underwear and the blood sample of accused Ashok Kumar in sealed condition with the seal of SGM Hospital alongwith the sample seal to the IO, which were received by him at the Hospital. IO seized these pullindas and sample seal vide seizure memo Ex. PW6/C bearing his signatures at point 'A', accused Ashok put his signatures at point 'B' and IO put his signatures at point 'C'. Thereafter, they returned back to the Police Station and the seized articles were deposited in the Malkhana. His statement was recorded by the IO. He correctly identified the accused Ashok Kumar present in the Court.
179 of 189 180 FIR No. 322/11 PS - Mangol Puri At the cost of repetition, PW13 - SI Kuldeep IO in his examinationinchief has deposed that on 03/08/2011, he was posted at PS - Mangol Puri. On that day, at about 10:15 p.m. when he was at Paththar Market, Mangol Puri he received telephonic information from Duty Officer that at the house No. D17, Pushpanjali, Mangol Puri, a rape was committed on the maid by the husband of the informant. Thereafter, he alongwith, Constable Praveen reached at D17, Pushpanjali Enclave, Pitam Pura, Delhi. Victim/prosecutrix (name withheld), land lady Smt. Sonia and land lord accused Ashok Kumar met them there. Smt. Sonia informed them that she made call to the Police and informed them that accused Ashok Kumar committed rape with her maid (name withheld). He (PW13) made call to the Duty Officer to send a lady Police Official at the spot. He made inquiries from the victim/prosecutrix (name withheld) and she made allegations of rape against her land lord Ashok Kumar. He recorded her statement in detail Ex. PW9/A and prosecutrix (name withheld) put her signature at point 'A' and he also attested the same with his signature at point 'B'. Meanwhile lady Constable Meenu reached at the spot and thereafter, on 180 of 189 181 FIR No. 322/11 PS - Mangol Puri his direction Lady Constable Meenu took the prosecutrix (name withheld) to SGM Hospital, Mangol Puri. Constable Parveen and Smt. Sonia has also accompanied them. After medical examination, they returned and Lady Constable Meenu handed over MLC of the prosecutrix (name withheld) to him. Lady Constable Meenu also handed over one parcel containing exhibits in respect of the prosecutrix in sealed condition with the seal of Hospital with sample seal to him and he seized the same vide seizure memo already exhibited as Ex. PW5/A bearing his signature at point 'C'. He prepared the rukka Ex. PW13/A bearing his signature at point 'A' and he sent Constable Parveen with rukka for registration of the FIR.
On careful perusal and analysis the testimonies of PW5 - L/Constable Meenu, PW6 - Constable Praveen and PW13 - SI Kuldeep, IO are found to be clear, cogent, convincing and of the description of the facets of the investigation which PW5 - L/Constable Meenu, PW6 - Constable Praveen joined and of the steps taken by PW13 - SI Kuldeep, IO, during the course of investigation. Inspite of their incisive crossexamination, nothing 181 of 189 182 FIR No. 322/11 PS - Mangol Puri material has been brought out on the record so as to impeach their creditworthiness. The said PWs have deposed regarding the facts as to what they acted, perceived and observed. There is nothing in their statements to suggest that they had any animus against the accused Ashok Kumar to falsely implicate him in the case.
Moreover, the said discrepancies regarding which the plea has been raised reflect on the investigation but do not reflect upon the substantive evidence and the probative value of the statement made by PW9 - prosecutrix on material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor do they dislodge the substratum of the prosecution case and despite their existence, the clear, cogent and convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. The version of the prosecutrix on the core spectrum of the crime has remained intact.
Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as 182 of 189 183 FIR No. 322/11 PS - Mangol Puri if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, retention and reproduction differs with individuals.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, 183 of 189 184 FIR No. 322/11 PS - Mangol Puri retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a 184 of 189 185 FIR No. 322/11 PS - Mangol Puri witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details;
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to 185 of 189 186 FIR No. 322/11 PS - Mangol Puri primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
33. Learned Counsel referred to the cases and are reported as 'Manmohan Lal Sachdeva Vs. State' 79 (1999) DLT 734; 'Abhilasha Vs. 186 of 189 187 FIR No. 322/11 PS - Mangol Puri State of Rajasthan' (2000) 10 SCC 237; 'Dantha Trinadha Rao Vs. Special Judge - cum Addl. District & Sessions Judge 2014 CRI.L.J. 1422 (Andhra Pradesh High Court); 'Lalhmingchhuanga Vs. State of Mizoram' 2010(3) Crimes 850 (Gau); 'Kailash Laxman Vs. State of Maharashtra' 2010 CRI LJ 3255; 'Anrej Singh Vs. State of Punjab' 2007 (1) CC Cases (HC) 475; 'Ramadhin Vs. State of M.P.' 2010 (2) Crimes 666 (Chhatt); 'Hari Chand Vs. State (Delhi)' 1999 (3) CC Cases HC 248; 'Banarsi Das Vs. Teeku Dutta & Anr.' IV 2005 SLT 136 (SC); 'Premjibhai Bachubhai Khasiya Vs. State of Gujarat' 2009 CRI.L.J. 2888 and 'Saroti Devi & Ors. Vs. State of H.P.' 2000 (2) CC Cases HC 182.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal 187 of 189 188 FIR No. 322/11 PS - Mangol Puri voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
34. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 03/08/2011, at about 8:45 p.m. at House No. D17, Pushpanjali Enclave, Pitam Pura, Delhi, accused Ashok Kumar committed rape upon PW9 prosecutrix (name withheld), aged around 17 years, without her consent and also caused injuries on her lips, scratches on her neck portion and also at her chest portion.
I accordingly hold accused Ashok Kumar guilty for the offence punishable u/s 376 IPC and convict him thereunder.
35. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Ashok Kumar in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home 188 of 189 189 FIR No. 322/11 PS - Mangol Puri to the accused Ashok Kumar beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Ashok Kumar guilty for the offence punishable u/s 376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 24th Day of September, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 189 of 189