Delhi District Court
State vs . Subodh Mandal; on 27 September, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE / SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No : 58694/16
State
Versus
Subodh Mandal
S/o Sh. Chanu Mandal
R/o Village Saidpur, PS Mansi,
District Khagraiya, Bihar
FIR No. : 1195/15
Police Station : Shahbad Dairy
Under Sections : 376/365/392 IPC
Date of Committal to Sessions Court : 27.11.2015
Date on which Judgment reserved : 13.09.2019
Date on which Judgment announced : 27.09.2019
JUDGMENT
1. The accused has been forwarded to face abduction, rape and robbery trial.
2. Victim is 8th class pass and a homely lady having three children. Her daughter was moron. Her husband used to sell garments in Palika Bazaar, Connaught Place but on the relevant date, he was in jail and she was suffering from AIDS. She was to go ancestral home in Bihar State vs. Subodh Mandal;
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 1 of 12. and hence, she came to Old Delhi Railway Station on 11.10.2015 at about 7 pm to board a train where a person told her that she can find train to Bihar only from Anand Vihar Railway Station. She was not aware of that station and hence, she boarded his rickshaw on the assurance that he would drop her on that station. He kept on riding the rickshaw and she was sitting on the rear portion. When it became dark, she asked the accused about the distance of railway station from that place. After driving a long distance, he took her to a forest and was thrown there and was raped. She started weeping and when she boarded his rickshaw forcibly, he called some persons on phone who were unknown to her. They were addressing him by the name of Subodh. She was forcibly thrown near a dairy which was slightly away from the place of rape and from there, the accused ran away. She started weeping and told some motorcycle borne persons about the incident who gave information to the police.
3. Charge under Section 365/376 IPC was framed against the accused on 23.07.2016 to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined three witnesses.
5. Prosecutrix deposed as PW1 that she was not aware of date, month and year, however, it was one year ago when she alongwith her daughter had gone to Old Delhi Railway Station to take a train to her village in Bihar. Rest of the deposition is the repetition of her complaint EX.PW1/A upon which FIR was registered. Additionally, she deposed State vs. Subodh Mandal;
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 2 of 12. that after committing rape, the accused snatched her luggage and threatened that if she raised alarm, he would kill her and her daughter. He again made them to sit in his rickshaw and took to the house of his relative near Shahbad Dairy where 200400 persons assembled and they started abusing her. She told them that she was HIV positive and that the accused had done wrong act with her. Police came there on the information of some passersby and recorded her statement Ex.PW1/A and then she was medically examined. Her statement U/s 164 Cr.P.C. was recorded on the next day. She next deposed that rough site plan was prepared at her instance and the accused was also arrested at her instance vide arrest memo Ex.PW1/C. She identified her underwear as Ex.P1.
6. PW2 HC Rajbir was working as MHC(M) on 12.10.2015 when SI Darshana handed him over sexual assault kit with the sample seal of Casualty Dr. BSAH 010712 Govt. of Delhi for which he made entry no. 2555 Ex.PW2/A in register no. 19. SI Darshana gave him three sealed parcels and one sample seal on 13.10.2015 for which he made entry no. 2508 Ex.PW2/B in register no. 19. All exhibits and both sample seals were given by him to Ct. Nagraj on 16.10.2015, vide R.C. No. 227/21/15 Ex.PW2/C. Ct. Nagraj, after depositing the exhibits in FSL, handed him over acknowledgement receipt Ex.PW2/D. PW3 SI Darshana deposed that ASI Rajbir informed her on 12.10.2015 vide DD No. 18B Ex.PX5 regarding rape with a lady in Sharma Colony and hence, she alongwith W/Ct. Rajesh reached there and found prosecutrix there and took her to BSA Hospital where she was State vs. Subodh Mandal;
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 3 of 12. medically examined. After medical examination, the doctor handed her over her MLC and sealed sexual assault evidence collection kit and sample seal which she seized vide seizure memo Ex.PW3/A. She next deposed that after recording statement Ex.PW1/A of the prosecutrix, she prepared rukka Ex.PW3/B and handed over to W/Ct. Rajesh who got the case FIR registered and handed her over original rukka and copy of FIR at the spot. Rough site plan Ex.PW3/C was prepared at the instance of prosecutrix. She next deposed that the accused was arrested on 13.10.2015 vide arrest and personal search memo Ex.PW1/C and Ex.PW3/D respectively and his disclosure statement Ex.PW3/E was recorded. He pointed out the place of rape consequent to which pointing out memo Ex.PW3/F was prepared. She next deposed that loading rickshaw of the accused was taken into possession vide seizure memo Ex.PW3/G. Statement of the prosecutrix was got recorded U/s 164 Cr.P.C. through ASI Rajender and medical examination of the accused was got conducted in M.V. Hospital through Ct. Kuldeep. After medical examination, Ct. Kuldeep handed her over exhibits of the accused which she seized vide seizure memo Ex.PW3/H. She concluded the evidence by deposing that exhibits were sent to FSL, Rohini on 16.10.2015 through Ct. Nagraj.
7. On 26.03.2019, the accused admitted following statements/ documents U/s 294 Cr.P.C.: State vs. Subodh Mandal;
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 4 of 12.
S. Name of the documents Admitted Denied Exhibited No. State vs. Subodh Mandal;
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 5 of 12.
1. MLC No. 201/15 in respect Yes - Ex.PX1 of the prosecutrix prepared by Dr. Deepika Gaur, BSA Hospital
2. MLC No. 4376/15 in respect Yes Ex.PX2 of accused Subodh Mandal prepared by Dr. Rupa Arora, M.V. Hospital
3. Proceedings u/s 164 Cr.P.C. Yes - Ex.PX3 conducted by Ms. Richa Manchanda, Ld. MM, Rohini Courts, Delhi
4. Duty Officer HC Neeraj, Yes - Ex.PX4 who registered the present case FIR
5. W/Ct. Krishna, who lodged Yes - Ex.PX5 DD No. 18B dated 12.10.2015
6. W/Ct. Rajesh, who Yes Ex.PX6 conducted the medical examination of the prosecutrix
7. Ct. Vijender in his presence, Yes - Ex.PX7 accused was arrested
8. Ct. Kuldeep, who got Yes Ex.PX8 conducted the medical examination of the accused
9. Ct. Nagraj, who deposited Yes Ex PX9 the exhibits in FSL, Rohini
10. Ct. Aakash, who attended Yes - Ex.PX10 the PCR Call and filled the PCR Form
11. MHC(M) HC Rajbir, who Yes Ex.PX11 deposited the exhibits in the State vs. Subodh Mandal;
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 6 of 12.
Malkhana
12. ASI Ranjit Singh, who also Yes Ex.PX12 attended the PCR Call
8. Under section 313 Cr.P.C., the accused took the plea of false implication.
9. The accused did not examine even a single witness in defence.
10. Ld. legal aid counsel argued that further cross examination of the prosecutrix was deferred on 25.02.2017 but she did not appear thereafter, and hence, her cross examination could not be completed. Due to incomplete cross examination, it can be said that the examination in chief and half cross examination, is no evidence in the eyes of law and cannot be taken into account. She next submitted that the FSL report proves that there was sexual intercourse between the accused and victim but such intercourse was full consent of the prosecutrix. The accused would have proved prosecutrix as consenting party had she been available for cross examination.
She next argued that as per prosecutrix, she used to reside in Delhi with three children but on the date of incident, only one child was with her. She failed to tell where she had left the remaining two children.
Next argument is that the prosecutrix was driven all the way to Rohini from Old Delhi Railway Station in a loading rickshaw, which is quite unbelievable because the distance between both places is not less than 25 kms. She next submitted that the accused as well as the State vs. Subodh Mandal;
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 7 of 12. prosecutrix did not have any injury on their bodies and it suggests that sexual intercourse was with the consent of the prosecutrix. Due to consensual intercourse, the clothes of the victim were not torn and hence, the same were not taken into possession by the doctor or police.
On the other hand, Ld. additional PP argued that DNA extracted from the blood of the accused, was found matching with DNA extracted from cervical mucus, vaginal secretion and vaginal wash of the prosecutrix. It means that the accused had sex with the victim. She was not a consenting party and hence, the rape charge is well proved.
11. Further cross examination of the prosecutrix was deferred on 25.02.2017 and thereafter, she did not appear for evidence. When she could not be served, the court recorded statement of SI Darshana as PS1 to the effect that Ct. Karambir had gone to the native village of the prosecutrix on 02.07.2018 in Bihar where he met the Sarpanch and other villagers who told that the prosecutrix did not use to reside in that village. He recorded their statements Ex.PS1/A and Ex.PS1/B. SI Next deposed that she visited Delhi address of the victim on 16.01.2019, but she was untraceable and hence, prepared report Ex.PS1/F to the effect that she was unable to find the victim. She concluded the statement saying that the victim could not be traced at any of her address despite best efforts of the police.
In above background, the cross examination of the prosecutrix could not be completed.
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 8 of 12.
12. Following was held by Hon'ble Delhi High Court in Ripen Kumar vs. Department of Customs, decided on 12 th October 2000: 2001 Cri.L.J. 1288: "9. By the impugned order the learned Additional Sessions Judge surprisingly came to the conclusion that even the said incomplete statement of PW1 should have been read in evidence. It ought to have been looked into as a supporting evidence to the statement recorded under Section 108 of the Customs Act. This observation of the learned ASJ is contrary to the well understood expression of the word "evidence". The words "all statements" include the examinationin chief as well as the cross examination and subject to the permission reexamination also. It is only when the witness is permitted to be crossexamined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been crossexamined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be crossexamined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part crossexamination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examinationin chief and crossexamination. That statement alone will form evidence. In the present case petitioner had been deprived to crossexamine PW1 thereby dislodge his testimony. Hence incomplete statement of PW1 in the absence of crossexamination could not be treated as evidence nor the same could be relied upon.
Therefore, the observation of learned ASJ that incomplete statement could have been the basis of deciding the question of charge is contrary to law.
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 9 of 12.
Part statement of PW1 did not attain the status of evidence, nor on the basis of the same it could be said that statement of the accused recorded under section 108 of the Customs Act stood proved.".
In Zafar Umar Khan @ Jafar Umar vs. State (Govt. of NCT of Delhi), Criminal Appeal No. 1143/2011, 2013 SCC Online Del 1032:
(2013) 2 DLT (Cri) 559, Hon'ble Delhi High Court held as under: "4. To prove and establish the action which led to the alleged seizure and arrest of the appellant, as noticed above, the prosecution relies upon statements of Head Constable Hiral Lal (PW6), SI Umesh Sharma (PW9), ASI Ishwar Singh (PW12) and Inspector Kulbhushan Sharma (PW32). Another member of the raiding party, SI Surinder Prakash was examined as PW13 but his crossexamination remained incomplete and therefore, his statement cannot be referred to ...."
13. In view of above facts, circumstances and citations, this Court is reluctant to take into account the complete examination in chief and incomplete cross examination of the victim.
14. A suggestion was given by legal aid counsel to IO that the accused had established physical relations with prosecutrix with her consent. So, consensual sex is the defence of the accused.
Cervical mucus collection, vaginal secretion and washing from vagina were collected by the doctor when the prosecutrix was medically examined and the same were handed over to IO in sealed condition. When the accused was arrested and medically examined, his blood sample was handed over to the IO in sealed condition by the doctor.
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 10 of 12. All these exhibits were sent to FSL and as per Annexure1 to the FSL report, the DNA collected from the exhibits of the victim is exactly matching with the allele data collected from the blood of the accused. The report proves to the hilt that there was definitely sexual intercourse between accused and the victim. In order to prove the rape charge, not only it is necessary that the sexual intercourse be proved, it is also necessary to prove that such intercourse was without the consent of the victim. To prove that there was no consent of the victim, the prosecution case is falling short because the prosecutrix could not be cross examined fully.
Moreover, as per prosecutrix, she was taken by the accused at 7 pm on 11.10.2015 from Old Delhi Railway Station in his rickshaw. But as per PCR form Ex.PX10, the intimation of rape was given on 12.10.2015 at 8:57:27. In this way, there is a delay of about 12 hours in reporting the matter to the police.
It is mentioned in the ordersheet dated 07.09.2016 that summons sent to the prosecutrix was received back with the report that she was in jail in case FIR No. 276/16, U/s 368/365/366A/ 370A/373/376/341 IPC of PS Jafrabad. To the same effect are ordersheets dated 03.12.2016 and 13.01.2017. These ordersheets show that the prosecutrix was also complicit in crime against woman. Possibility may be that she was with the accused throughout the whole night intervening 11 & 12 October 2015 and when there was dispute between them over payment of money for sex, she reported the matter to the police. Such State vs. Subodh Mandal;
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 11 of 12. circumstance, definitely suggests the prosecutrix as a consenting party.
15. The prosecutrix was medically examined on 12.10.2015 at 10.35 am vide MLC Ex.PX1 in which it is mentioned that she did not have any external mark of injury. Had she been raped by the accused, she would have definitely resisted the misdeeds of accused which would have resulted into injuries not only to her but accused also. As per MLC Ex.PX2 prepared on the next date i.e. 13.10.2015 at 11.05 am, the accused also did not have any external injury. Moreover, at the time of examination, the pulse rate of the prosecutrix was 82, BP was 110/28 and respiratory rate was 20. These vitals show that the prosecutrix was completely normal at the time of medical examination. Had she been raped at or about time of giving information to the police at 8:57 am, her vitals would not have been normal. Normal vitals also suggest that the prosecutrix was a consenting party.
After medical examination, the doctor sealed the underwear of the prosecutrix. But it is nobody's case that the clothes of the victim were also sealed and seized. Nonseizure of the clothes of the prosecutrix by the police shows that no damage was caused to those clothes. As per MLC Ex.PX1, her clothes were not in torn condition and rather, they were fresh. Had she been ravished, her clothes might also have been torn. Fresh clothes also suggest that the prosecutrix was a consenting party.
16. In view of above discussion, it is held that the prosecution has fallen short to prove the rape charge against the accused.
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 12 of 12.
17. Accordingly, accused is acquitted of the offences, he was charged with.
18. The personal and surety bonds of the accused are hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
19. However, in terms of Section 437(A) Cr.P.C., accused has furnished the fresh personal bond in the sum of Rs. 10,000/ with one surety of the like amount, which are accepted with the directions to appear before Higher Court, in the event, he receives any notice of appeal or petition against the judgment.
File be consigned to record room.
UMED Digitally signed
by UMED SINGH
SINGH GREWAL
Date: 2019.09.27
GREWAL 16:51:36 +0530
Announced in the open Court (Umed Singh Grewal)
On this 27th September 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State vs. Subodh Mandal;
SC No. 58694/16; FIR No. 1195/15; PS: Shahbad Dairy Page No. 13 of 12.