Delhi District Court
State vs . 1. Jitender Kumar on 3 May, 2013
1
FIR No. 163/11
PS - Begum Pur
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 171/13
Unique ID No. : 02404R0364312011
State Vs. 1. Jitender Kumar
S/o Pritam Singh
R/o C1/28, Rama Vihar,
Delhi.
2. Babita
W/o Jitender Kumar
R/o C1/28, Rama Vihar,
Delhi.
FIR No. : 163/11
Police Station : Begum Pur
Under Sections : 376/342/109/34 IPC
Date of committal to session Court : 02/12/2011
Date on which judgment reserved : 17/04/2013
Date of which judgment announced : 03/05/2013
1 of 25
2
FIR No. 163/11
PS - Begum Pur
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 :
That on 11.7.2011 SI Varun Dalal with Ct. Chand Ram and Ct. Pawan Kumar at about 6.30 pm reached at CBlock , Rama Vihar opposite House NO. C1/28, Rama Vihar where the prosecutrix (name withheld being a case U/s 376 IPC) met who disclosed about the committal of rape upon her on which Lady Ct. Manju was called from the Police Station and in her presence interrogation was made from the prosecutrix, who made the statement which is to the effect that, she is the resident of Village Chhabuni, PS Noldhari, Post Haridas Pur, District Birbhum (West Bengal) and she has studied upto 8th class. About eight months back, elder brother of her father had sent her to Delhi with Sheela who is the resident of the village and works in Delhi. Three other girls had also come with Sheela to work in Delhi whose names were told by Sheela as Pooja, Rakhi and Roopa. She (Prosecutrix) was placed for doing the domestic work in House No. 408, SD Block, Pitam Pura, Delhi and it was agreed to pay to her Rs. 3500/ per month but the money was
2 of 25 3 FIR No. 163/11 PS - Begum Pur never paid to her. After doing work there for four to five months, she was under tension (Kafi pareshan rehne lagi) as they (members of the house) were not giving her food properly. She came in contact with Babita who was working in some other house in the same colony. When she (Prosecutrix) told her, her difficulty She (Babita) took her (Prosecutrix) to her house at C1/28, Rama Vihar, Delhi on 10.6.2011 where Babita was living with her husband Jitender and two sons Roshan, age 12 years and Rithik, age 10 years. She (Prosecutrix) did not tell about this to the occupants of the house 408, SD Block, Pitam Pura, Delhi where she was working and started living with the family of Babita and helping her in her domestic chores. After about 5/6 days, in the night at about 11.00 pm she (Prosecutrix) was sleeping in the room. Jitender, husband of Babita came in the room and started molesting her (Cher Char) and when she (Prosecutrix) awoke from her sleep, she got up and ran and told Babita sitting outside the room, "Bahen save my honour" (Bahen meri Ijjat bachao) on which Babita said, "nothing will happen, it does not matter, go inside the room and submit yourself to him" (Kuch nahi hota, koi bat nahi, undar kamre main jao aur dedo). She (Prosecutrix) protested for this but Babita did not provide any help 3 of 25 4 FIR No. 163/11 PS - Begum Pur to her and Jitender after catching her (Prosecutrix) took inside in the room and after removing her salwar suit forcibly established physical relationship with her without her consent and Jitender also assured for performing marriage with her and Babita told to her, " do not tell anything to anyone, if she told anything to any one, she (Babita) will throw her from here ( Yaha se bhaga dungi) and will hand over to the police". She (Prosecutrix) got frightened very much from this threat and did not disclose to anyone regarding the excesses committed upon her. She (Prosecutrix) kept on living with them. Babita always used to keep her (Prosecutrix) snubbed (Hamesha dat ke rakhti thi) and for the last 2/3 days they are keeping her (Prosecutrix) in the closed room. Babita also told her husband in snubbing tone that she (Prosecutrix) will be thrown from here (Ise yaha se bhaga denge). But she (Prosecutrix) was helpless as she was not knowing the way to her village nor she knew how to go there. Jitender in collusion and with the assistance of her wife Babita had forcibly established illicit relations with her (Prosecutrix). Legal action be taken against them. Her medical examination be got conducted. The statement has been heard and is correct. Prosecutrix was got medically examined vide MLC No. 1073 4 of 25 5 FIR No. 163/11 PS - Begum Pur dated 11.7.2011 from SGM Hospital, Mangolpuri, Delhi and the sealed exhibits handed over by the doctor after her medical examination were taken into police possession. After her medical examination, doctor had confirmed the taking place of the sexual assault and had endorsed hymen torn and margin irregular on the MLC. On finding that offences U/s 376/342/34 IPC appeared to have been committed, the case was got registered and investigation was carried out by SI Varun Dalal. Section 109 r/w Section 376 IPC was added in the case. On the pointing out of the presecutrix, site plan was prepared. On the identification of the prosecutrix accused Jitender and Babita were arrested. Medical examination of Jitender was got conducted vide MLC No. 10714/11 from SGM Hospital and the sealed exhibits after his medical examination handed over by the doctor were taken into police possession and were deposited in the Malkhana. Statement of prosecutrix U/s 164 Cr. PC was got recorded and thereafter prosecutrix was sent to Nari Niketan by the order of the court. Statements of witnesses were recorded. Sealed exhibits were sent to the FSL.
Upon completion of the necessary investigation, challan U/s 376/342/34 IPC against accused Jitender and U/s 109 r/w Section 5 of 25 6 FIR No. 163/11 PS - Begum Pur 376 /342/34 IPC against accused Babita was prepared 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, 376 r/w section 109 IPC, 342/34 IPC was made out against the accused persons. The charge was framed accordingly, which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 11 witnesses. PW1 - HC Pramod Kumar, PW2 - Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi, PW3 - Dr. Shanker Gupta, CMO, SGM Hospital, Mangol Puri, Delhi, PW4 - HC - Kashi Ram, PW5 - Lady Constable Manju, PW6 - Dr. Heena Kausar, Senior 6 of 25 7 FIR No. 163/11 PS - Begum Pur Resident, SGM Hospital, Delhi, PW7 - Constable Pawan Kumar, PW8 - Ms. Seema Nain, Senior Scientific Officer (Biology), FSL, Rohini, Delhi, PW9 - Sh. Dharmender Singh, Ld. Metropolitan Magistrate, Rohini Court Complex, Delhi, PW10 - Constable Chand Ram and PW11
- SI Varun Dalal.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Pramod Kumar is the MHC(M) who proved the relevant entries of the register no. 19 Ex. PW1/A (colly.), copy of the RC No. 65/21/11 Ex. PW1/B and the copy of the acknowledgment receipt of FSL Ex. PW1/C. PW2 - Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi, who on 12/07/2011 medically examined the patient/accused Jitender Kumar and after the examination he was of the opinion that there is nothing to suggest that patient cannot perform sexual act and proved the MLC No. 107/14 Ex. PW2/A signed by him at point 'A'. He further deposed that on 11/07/2011, prosecutrix (name withheld) was 7 of 25 8 FIR No. 163/11 PS - Begum Pur initially examined by him and thereafter, was referred to SR, Gynae for further examination and management vide MLC No. 170/13 Ex. PW2/B signed by him at point 'A' except the entries made by SR, Gynae and Dr. Shanker. He further deposed that on 12/07/2011, patient/accused Babita was examined under the supervision of Dr. Anil Sharma vide MLC Ex. PW2/C which is in the handwriting of Dr. Anil Sharma and signed by Dr. Anil Sharma at point 'A'.
PW3 - Dr. Shankar Gupta, CMO, SGM Hospital, Mangol Puri, Delhi who deposed that on 12/07/2011 at 12:10 p.m., IO SI Varun Dalal had requested him to comment whether the hymen of the prosecutrix was torn or not and further that if there was any history of sexual assault. He had referred the patient to Gynae Department for giving such opinion and had also made his endorsement to this effect encircled red from portion 'X' to 'X1' bearing his signatures at point 'B' on the MLC Ex. PW2/B. PW4 - HC Kashi Ram is the Duty Officer who deposed that on 11/07/2011, he was working as Duty Officer at PS - Begum Pur from 8 of 25 9 FIR No. 163/11 PS - Begum Pur 4:00 p.m. to 12:00 mid night and proved the copy of the FIR Ex. PW4/A and further deposed that he also made Kayami DD No. 50 A dated 11/07/2011 and also proved his endorsement to this effect on the rukka in the red encircled portion Ex. PW4/B signed by him at point 'A'.
PW - 5 Lady Constable Manju who deposed that on 11/07/2011 she joined investigation with IO ASI Varun Dalal and deposed on the investigational aspects and further deposed that prosecutrix was interrogated and her statement was recorded by the IO in her presence and thereafter she was got medically examined at SGM Hospital and proved the seizure memo of the sealed exhibits handed over by the Doctor after the medical examination Ex. PW5/A signed by her at point 'A' and further deposed that both the accused Jitender Kumar and Babita were arrested at the instance of the prosecutrix and proved the personal search memo of accused Babita Ex. PW5/B signed by her at point 'A'.
PW6 - Dr. Heena Kausar, Sr. Resident, SGM Hospital, Delhi, who on 11/07/2011, at about 8:45 p.m. gynaecologically examined 9 of 25 10 FIR No. 163/11 PS - Begum Pur the prosecutrix and proved the gynaecological examination from portion 'X' to 'X1' on the MLC Ex. PW2/B signed by her at point 'C' and further deposed that she also preserved and took 12 samples the details of which are mentioned from portion 'Y' to 'Y1' on the MLC Ex. PW2/B. She sealed the samples and handed over the same to the Police. She further proved the gynaecological examination of the prosecutrix as was conducted by Dr. Pooja on 12/07/2011, on perineal examination the patient's hymen was torn (margin irregular), no active bleeding, on the encircled portion 'Z' on MLC Ex. PW2/B signed by Dr. Pooja at point 'E'.
PW7 - Constable Pawan Kumar who deposed that on 26/08/2011, at the direction of the IO, after obtaining the sealed pullindas from the concerned MHC(M), deposited the same in the FSL, Rohini vide RC No. 65/21/11 and after deposition of the same in FSL, Rohini, handed over the acknowledgment receipt and the copy of the RC to the MHC(M).
PW8 - Ms. Seema Nain, Senior Scientific Officer 10 of 25 11 FIR No. 163/11 PS - Begum Pur (Biology), FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW8/A and Ex. PW8/B respectively signed by her at point 'A'.
PW9 - Sh. Dharmender Singh, Ld. Metropolitan Magistrate, Rohini Court Complex, Delhi, who recorded the statement of the prosecutrix u/s 164 Cr.P.C. and proved the application for recording the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PW9/A bearing his endorsement at point 'A', the preliminary questions put to the prosecutrix for testing her competency to make the statement Ex. PW9/B signed by the prosecutrix at point 'A' and by him at point 'B', his satisfaction regarding the competency of the prosecutrix Ex. PW9/C, statement u/s 164 Cr.P.C. Ex. Ex. 9/D signed by the prosecutrix at point 'A' and by him at point 'B', certificate regarding the true and correctness of the proceedings Ex. PW9/E signed by him at point 'A', his signatures at points 'B' on the proceedings and his endorsement at point 'A' vide which the copy of the statement was supplied to the IO on the application Ex. PW9/F. 11 of 25 12 FIR No. 163/11 PS - Begum Pur PW10 - Constable Chand Ram, who on 11/07/2011 joined investigation with IO SI Varun Dalal and deposed on the investigational aspect and deposed that IO recorded the statement of the prosecutrix and handed over the rukka to him and he got the case registered and after registration of the case, handed over the copy of the FIR and original rukka to IO and proved the arrest memo of accused Jitender Ex.PW10/A and his personal search memo as Ex. PW10/B signed by him at point 'A' respectively.
PW11 - SI Varun Dalal is the Investigating Officer (IO) of the case who deposed on the investigational aspects and deposed that he recorded the statement of the prosecutrix Ex. PW11/A and attested her statement at point 'A' bearing his signature at point 'B' and besides proving the seizure memo of the sealed exhibits of the prosecutrix Ex. PW5/A, arrest memo of accused Jitender Ex. PW10/A, personal search memo of accused Jitender Ex. PW10/B and that of accused Babita Ex. PW5/B, the application for recording the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PW9/A, the application for obtaining the copy of statement of the prosecutrix u/s 164 Cr. P. C. Ex. PW9/F also proved the 12 of 25 13 FIR No. 163/11 PS - Begum Pur rukka Ex. PW11/B, site plan Ex. PW11/C, arrest memo of accused Babita Ex. PW11/D and the seizure memo of the sealed exhibits handed over by the Doctor after the medical examination of accused Jitender Ex.PW11/E and further deposed that he collected the FSL Result and filed it in the Court which is already Ex. PW8/A and Ex.PW8/B The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statements of both the accused Jitender Kumar and Babita were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication and did not opt to lead any defence evidence.
7. I have heard Sh. S. C. Sroai, the Ld. Addl. PP for the State and Sh. Ashok Gupta, Ld. Counsel for the accused and have also carefully perused the entire record.
8. The charge for the offences punishable u/s 376, section 376 r/w section 109 IPC and 342/34 IPC against both the accused persons 13 of 25 14 FIR No. 163/11 PS - Begum Pur namely Jitender Kumar and Babita is that on 10/06/2011, accused Babita had brought prosecutrix (name withheld) to her house i.e. House No. C1/28, Rama Vihar, Delhi from the House No. 408, SD Block, Pitam Pura, Delhi where prosecutrix was working as maid servant and 56 days later at her said house from 10/06/2011 in the night at her said house her husband accused Jitender Kumar forcibly committed rape on the person of prosecutrix (name withheld) without her consent and against her will and secondly, on the aforesaid date, time and place while accused Jitender Kumar was committing rape upon the prosecutrix (name withheld), accused Babita intentionally aided her husband in the committal of the rape upon prosecutrix (name withheld) and thirdly, on the aforesaid date, time and place both the accused persons in furtherance of their common intention wrongfully confined the prosecutrix (name withheld) in their above said house in a room, after the prosecutrix (name withheld) raped by accused Jitender.
9. 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 14 of 25 15 FIR No. 163/11 PS - Begum Pur some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
10. PW9 - Sh. Dharmender Singh, Ld. MM has deposed that he recorded the statement of prosecutrix u/s 164 Cr.P.C. Ex. PW9/D signed by the prosecutrix at point 'A' and by him at point 'B' and had also put the preliminary questions to the prosecutrix for testing her competency to make the statement Ex. PW9/D signed by the prosecutrix at point 'A' and by him at point 'B'. The perusal of the preliminary questions interalia indicates that in reply to the question regarding her age, the prosecutrix has stated her age as 18 years.
The said fact regarding the age of the prosecutrix being 18 years is not been disputed by the accused. Nor the accused have led or proved any evidence contrary to this.
In view of above and in the circumstances, it stands established on record that prosecutrix was aged 18 years on the date of alleged incident on 10/06/2011.
15 of 25 16 FIR No. 163/11 PS - Begum Pur MEDICAL EVIDENCE
11. PW3 - Dr. Shankar Gupta, CMO, SGM Hospital, Mangol Puri, Delhi who deposed that on 12/07/2011 at 12:10 p.m., IO SI Varun Dalal had requested him to comment whether the hymen of the prosecutrix was torn or not and further that if there was any history of sexual assault. He had referred the patient to Gynae Department for giving such opinion and had also made his endorsement to this effect encircled red from portion 'X' to 'X1' bearing his signatures at point 'B' on the MLC Ex. PW2/B. PW6 - Dr. Heena Kausar, Sr. Resident, SGM Hospital, Delhi, who on 11/07/2011, at about 8:45 p.m. gynaecologically examined the prosecutrix and proved the gynaecological examination from portion 'X' to 'X1' on the MLC Ex. PW2/B signed by her at point 'C' and further deposed that she also preserved and took 12 samples the details of which are mentioned from portion 'Y' to 'Y1' on the MLC Ex. PW2/B. She sealed the samples and handed over the same to the Police. She further proved the gynaecological examination of the prosecutrix as was conducted by Dr. Pooja on 12/07/2011, on perineal examination the patient's hymen was torn (margin irregular), no active bleeding, on the 16 of 25 17 FIR No. 163/11 PS - Begum Pur encircled portion 'Z' on MLC Ex. PW2/B signed by Dr. Pooja at point 'E'.
There is nothing in the crossexamination of PW3 - Dr. Shankar Gupta and PW6 - Dr. Heena Kausar so as to impeach their creditworthiness.
In view of above and in the circumstances, the medical and gynaecological examination of the prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED JITENDER
12. PW2 - Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi, who on 12/07/2011 medically examined the patient/accused Jitender Kumar and after the examination he was of the opinion that there is nothing to suggest that patient cannot perform sexual act and proved the MLC No. 107/14 Ex. PW2/A signed by him at point 'A'.
Despite grant of opportunity PW2 - Dr. Mahipal Singh was not crossexamined on behalf of accused.
In view of above and in the circumstances, it stands established on the record that accused Jitender was capable to perform 17 of 25 18 FIR No. 163/11 PS - Begum Pur the sexual act.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
13. PW8 - Ms. Seema Nain, Senior Scientific Officer (Biology), FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW8/A and Ex. PW8/B respectively signed by her at point 'A'.
As per biological report Ex. 8/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed paper envelope sealed with the seal of "SGMH GNCT DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k' each kept in separate paper envelopes stated to be of prosecutrix.
Exhibit '1a' : One cotton wool swab on a stick, kept in a tube described as 'Vulval swab'.
Exhibit '1b' : One cotton wool swab on a stick, kept in a tube described as 'Vulval swab'.
Exhibit '1c' : One cotton wool swab on a stick, kept in a tube described as 'Anterior Vaginal swab'.
Exhibit '1d' : One cotton wool swab on a stick, kept in a tube described as 'Posterior Vaginal swab'.
18 of 25 19 FIR No. 163/11 PS - Begum Pur Exhibit '1e' : One cotton wool swab on a stick, kept in a tube described as 'Right lateral vaginal swab'. Exhibit '1f' : One cotton wool swab on a stick, kept in a tube described as 'Left lateral vaginal swab'.
Exhibit '1g' : A small bunch of black strands of hair kept in a paper described as 'Pubic hair'.
Exhibit '1h' : One cotton wool swab on a stick, kept in a tube described as 'Right hand nail scrapping'.
Exhibit '1i' : One cotton wool swab on a stick, kept in a tube described as 'Left hand nail scrapping'.
Exhibit '1j' : Dark brown foul smelling liquid, kept in a tube described as 'Blood sample of victim'.
Exhibit '1k' : Forwarded to Chemistry Division. Parcel 'B1' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibits 'B1', kept in a tube, stated to be of accused.
Exhibit 'B1': Dark brown foul smelling liquid, described as 'Blood sample'.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1j' and 'B1'.
2. Blood could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h' and '1i',
3. Human semen was detected on exhibits '1a', '1b', '1c', '1d', '1e' and '1f'.
4. Semen could not be detected on exhibits '1g1'.
19 of 25 20 FIR No. 163/11 PS - Begum Pur
5. Report of serological analysis in original is attached herewith. NOTE :
1. Report regarding query No. 4 from Chemistry Division will be furnished separately.
2. Remnants of the exhibits have been sealed with the seal of 'S.Nn FSL DELHI'.
The serological report Ex. 8/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood stains: '1j' Blood sample Sample putrefied, hence no opinion 'B1' Blood sample Sample putrefied, hence no opinion Semen stains: '1a' Cotton wool swab No reaction '1b' Cotton wool swab No reaction '1c' Cotton wool swab No reaction '1d' Cotton wool swab No reaction '1e' Cotton wool swab No reaction '1f' Cotton wool swab No reaction On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibit '1j' (Blood 20 of 25 21 FIR No. 163/11 PS - Begum Pur sample of victim) and exhibit 'B1' (Blood sample of accused Jitender). Human semen was detected on exhibits '1a' (vulval swab) exhibit '1b' (vulval swab), '1c' (Anterior vaginal swab), '1d' (Posterior vaginal swab), 'ie' (Right lateral vaginal swab) and '1f' (Left lateral vaginal swab) of the victim.
On a conjoint reading of the medical evidence, the gynaecological examination from portion 'X' to 'X1' on the MLC Ex. PW2/B of the prosecutrix together with the MLC of accused Jitender Ex. PW2/A in the light of the biological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands established on the record that sexual intercourse activity has taken place in the instant case.
14. Now let the testimonies of the prosecution witnesses be perused and analysed.
PW11 - SI Varun Dalal in his examinationinchief has interalia deposed which is reproduced and reads as under : "On 11/07/2011, I was posted as SI in PS - Begum Pur. On that day, I alongwith Constable Chand Ram and Constable Pawan were on patrolling duty. At about 6:30 p.m., we reached at house no. C1/28, 21 of 25 22 FIR No. 163/11 PS - Begum Pur Rama Vihar, Delhi where we met prosecutrix (name withheld) D/o Motib Mian. On inquiry she told that rape has been committed upon her. I called lady Constable Manju from Police Station. I made detailed interrogation from the prosecutrix (name withheld) and I recorded her statement Ex. PW11/A, and attested her signature at point 'A', bearing my signature at point 'B'. Accused Jitender and Babita were present in the Court and Constable Pawan was left at the spot for taking care of accused Jitender and Babita. Thereafter, we took prosecutrix (name withheld) to SGM Hospital for medical examination. She was medically examined and doctor had confirmed sexual assault with prosecutrix (name withheld) in the MLC. After medical examination, doctor handed over the sealed pullinda containing the exhibits which was seized vide memo Ex. PW5/A, bearing my signature at point 'B'. I prepared rukka Ex. PW11/B, bearing my signature at point 'A' and rukka was handed over to Constable Chand for registration of FIR. Thereafter, we reached at the spot alongwith the complainant."
From the aforesaid narration of PW11 - SI Varun Dalal it is clearly indicated that statement of prosecutrix Ex. PW11/A was recorded by him and attested her signatures at point 'A' and signed by him at point 'B'. Her statement was also got recorded u/s 164 Cr.P.C. (Ex. PW9/D).
PW9 - Sh. Dharmender Singh, Ld. MM has deposed that he recorded the statement of prosecutrix u/s 164 Cr.P.C. Ex. PW9/D signed by prosecutrix at point 'A' and by him at point 'B'.
22 of 25 23 FIR No. 163/11 PS - Begum Pur Although, the statement of the prosecutrix recorded by PW11 - SI Varun Dalal Ex. PW11/A and her statement recorded u/s 164 Cr.P.C. Ex. PW9/D are on the record but due to the nonprosecution and nonexamination of the prosecutrix in the Court, her said statements Ex. PW11/A and Ex. PW9/D remained unproved and uncorroborated on the record. Nonproduction and nonexamination of the prosecutrix has proved to be fatal and has knocked out the bottom of the case of the prosecution.
Although, while discussing and analysing biological and serological evidence, hereinbefore, it has been established on the record that sexual intercourse activity has taken place in the instant case but due to the nonprosecution and nonexamination of the prosecutrix, this very piece of evidence also does not come to the rescue of the prosecution case as it could not be proved on record that it was the accused Jitender who committed sexual intercourse with her without her consent and against her will and that accused Babita aided and abetted her husband, the accused Jitender in the commission of such offence upon the prosecutrix.
23 of 25 24 FIR No. 163/11 PS - Begum Pur
15. On careful perusal and analysis of the evidence on record I find that the prosecution has failed to prove its case beyond reasonable doubt. Non production and nonexamination of prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that on 10/06/2011, accused Babita had brought prosecutrix to her house i.e. House No. C1/28, Rama Vihar, Delhi from House No. 408, SD Block, Pitam Pura, Delhi where prosecutrix was working as maid servant and 56 days later at her said house from 10/06/2011 in the night at her said house her husband accused Jitender Kumar forcibly committed rape on the person of prosecutrix without her consent and against her will while accused Jitender Kumar was committing rape upon the prosecutrix, accused Babita intentionally aided her husband in the committal of the rape upon prosecutrix and both the accused persons in furtherance of their common intention wrongfully confined the prosecutrix in their above said house in a room, after the prosecutrix was raped by accused Jitender.
16. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Jitender & Babita in the 24 of 25 25 FIR No. 163/11 PS - Begum Pur commission of the offences u/s 376 IPC, 376 r/w section 109 IPC, 342/34 IPC is concerned, the same has not been sufficiently established by the cogent and reliable evidence and in the ultimate analysis the prosecution has failed to bring the guilt home to the accused Jitender and Babita beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Jitender and Babita. I, therefore acquit accused Jitender and Babita for the offences punishable u/s 376 IPC, 376 r/w section 109 IPC, 342/34 IPC after giving them the benefit of doubt. Accused Babita is on bail. However, u/s 437A Cr.P.C. the bail bond of the said accused shall remain in force for six months and she to appear before the Hon'ble Higher Court as and when such Court issues notice in respect of any petition filed against this judgment. Accused Jitender is in JC. He be released forthwith if not wanted in any other case. However, on his release accused Jitender shall appear in the Court and shall execute a bail bond in the sum of Rs. 25,000/ under section 437A Cr.P.C.
Announced in the open Court (MAHESH CHANDER GUPTA) on 03rd Day of May, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 25 of 25