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Delhi District Court

State vs . Harish @ Chirag on 14 February, 2013

   IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
      JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Sessions Case No. 25/2012
Unique Case ID: 02404R0062192012

State                        Vs.            Harish @ Chirag
                                            S/o Kewal Krishan Panwar
                                            R/o R­300, Mangolpuri, Delhi. 
                                            (Convicted)

FIR No.                      :              530/2011
Police Station               :              Sultanpuri
Under Section                :             328/506/376/306 Indian Penal Code

Date of committal to Sessions Court  : 30.03.2012
Date on which orders were reserved  : 16.01.2013
Date on which judgment pronounced : 05.02.2013

JUDGMENT

(1) As per the allegations on 22.10.2011 in front of Shyama Prasad Mukherjee College the accused Harish @ Chirag administered some stupefying or intoxicating thing in a cold drink to the prosecutrix 'S' (name of the girl is withheld case being under Section 376 IPC) and thereafter he took her to a room in House No. I­5/95, near G3S Mall, Sector ­16 where he committed rape upon her and also took her obscene photographs and prepared a video clipping of the same. It is further alleged that on 14.11.2011 the accused Harish @ Chirag again abducted the prosecutrix 'S' from Udyog State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 1 Nagar Metro Station and after serving some intoxicating cold drink he took her to Room No. I­5/95, near G3S Mall, Sector ­16 where he committed rape upon her and continued to made relations with her between 22.10.2011 to 19.11.2011 at A­4/324, Sultan Puri and other places by criminally intimidating and threatening the prosecutrix 'S' and putting her to fear to publish and circulate her nude video film by putting the same on Internet. Further, as the per the allegations being fed up with the exploitation by the accused, the prosecutrix in order to end her life consumed insecticide on 19.11.2011 but was saved on account of timely medical assistance after which the present case was registered.

Case of prosecution in brief:

(2) The case of the prosecution in brief is that on 19.11.2011 on receipt of information from Duty Constable posted at Sanjay Gandhi Memorial Hospital, DD No. 11B was lodged in Police Station Sultanpuri which DD was marked to SI Bharat Bhushan who reached the hospital and found the prosecutrix 'S' admitted there. SI Bharat Bhushan recorded the statement of the prosecutrix 'S' who informed him that she was 21 years of age a student of Final Year BA (Pass) at SPM college, Delhi University. She told the police that last month she went to a shop at Sultanpuri for getting her mobile phone repaired and told the shopkeeper that after repair, he should State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 2 deliver the phone to her at her college. The complainant told the police that on 16.10.11, Harish @ Chirag came to her college with her mobile phone to deliver the same to her and he also introduced himself to her and also offered her a cold drink which she took. She further told the police that thereafter on 22.10.11 Harish came to her college and he offered her a cold drink and after consuming the same she started feeling nauseated and thereafter on the pretext of taking her to the doctor he took her on his bike. First he took out some money from the ATM at the V3S Mall at Rohini and thereafter he took her to a very big house at Rohini itself which was under

construction where he forcibly committed rape with her and also made video clipping and threatened her that if she informed about this to anybody, he will show the said clipping to everybody and also put the same in the Internet. Feeling scared she did not disclose about this incident to anybody. The complainant further told the police that on 14.11.11 the accused again called at Udyog Nagar Metro Station and thereafter he took her to the same house at Rohini where he again committed rape on her. The complainant has also told the police that again on 16.11.11 the accused called her to B­ block, Mangolpuri and compelled her to consume some drink and after she consumed the said drink she was not in her senses after which she does not recollect what had happened with her. She has further told the police that on the intervening night of 18.11.11 the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 3 accused made a telephone call to her on which she informed him about her problem and also that after the previous incident she was having pain and insisted that he should marry her on which cut the phone. According to the prosecutrix thereafter she made a call to Harish and tried to talk him but he told her that he will not marry her and she could do whatever she wants to do. Thereafter being fed up with the accused she decided to end her life and consumed insecticide after which she felt dizzy and started vomiting. Her family members immediately rushed her to Sanjay Gandhi Hospital where she informed her mother and elder sister about what had happened with her after which the police was informed. On the basis of the above statement made by the prosecutrix, a rukka was prepared, FIR was registered and the accused Harish Chirag was arrested and after completing the investigations, the charge sheet was filed in the court.

CHARGE:

(3) Charge under Section 328/366/376/506 Indian Penal Code was settled against the accused Harish @ Chirag to which he pleaded not guilty and claim claimed trail.

EVIDENCE:

(4) In order to discharge the onus upon it, the prosecution has examined as many as twenty witnesses:

State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 4

Public Witnesses:

(5) PW7 Reshma has deposed that she is resident of H.No.L­411, Mangolpuri, Delhi and on 20.11.11, her sister 'S' had been admitted in the Sanjay Gandhi Hospital as she had consumed some poisonous substance and tried to commit suicide and on the next day, when she regained consciousness and was stable, she came to know that her elder sister had taken this extreme steps as she was being harassed by Chirag whose actual name they came to know was Harish. According to the witness, her sister 'S' informed her elder sister that this Harish @ Chirag (correctly identified) had committed galat kaam with her on 22.10.11 and also on 14.11.11 and made a film of her. Witness has further deposed that she also informed her sister Sapna that on the first occasion, the accused Harish @ Chirag had mixed something in the cold drink and gave the same to her as a result of which she felt nauseated and on the pretext of taking her to the hospital, he instead took her to some room where he committed rape on her. On the second occasion i.e. on 14.11.11 he committed rape on her after blackmailing her and told her that he would show her film to everybody. Witness has further deposed that after the information was given to the police with the assistance of her elder sister Sapna, the accused was called to the hospital where he was apprehended. According to her, it is her elder sister Sapna who spoke to the accused on telephone on the number given by her sister 'S' and State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 5 asked him to come to the hospital pretending to be a friend of 'S' and told him that she was hospitalized. When the accused came to the hospital, he was apprehended by the police and duly arrested vide memo Ex.PX­5. Witness has further deposed that thereafter, his personal search was conducted vide memo Ex.PX­6 and interrogated and thereafter taken to the Police Station and her statement was recorded by the police.

(6) In her cross examination by Ld. Defence counsel, witness has deposed that she was not present at home at the time when her sister consumed poison and has voluntarily explained that she was at her matrimonial house and her father had given her a call. Witness has admitted that her sister 'S' did not tell her anything directly and has voluntarily explained that she had disclosed everything to her elder sister Sapna who in turn disclosed the same to them. Witness has denied the suggestion that her sister Sapna created the entire story of her own at the instance of her parents who were averse to the relationship between her sister 'S' and the accused. Witness has denied the suggestion that that her sister 'S' had not consumed poison on account of the accused. Witness has denied the suggestion that she had tried to commit suicide on account of the harassment caused by her family and parents to her on account of her relationship with the accused or that in order to save themselves, they have shifted the blame on the accused. Witness has denied the suggestion that she State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 6 was deposing falsely.

(7) PW8 Alok Singhal has deposed that he has one son and one daughter. According to him he is the owner of house No. I­5/95, Sector 16, Rohini, Delhi and was running a shop on the ground floor of this house but in the year 2005­2006 during the sealing by the MCD he closed his shop. According to him, thereafter he had constructed three rooms on the lower ground floor and three room on the upper ground floor and numbered the said room as 101 to 106 and thereafter gave the same on rent to the general public for family functions etc. Witness has further deposed that Parmod Sahai was employed by him to look after the management of the above said rooms while he used to go out of station for his work. According to him in the month of December, 2011 when he returned back Parmod Sahai informed him that two police officials came from the police station Sultanpuri along with one boy and he further informed him that, that the boy had taken the room No. 105 for one day on one occasion but left the room after some time. He further informed him that the said boy came with a girl in the room and remained there for some time and thereafter left the room and thereafter the said boy again came on the second occasion with the same girl and remained in the room for some time and thereafter left the room. According to him, Parmod Sahai further informed him that the said boy disclosed his name to him as Kapil but he later came to know name of that boy State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 7 later on as Harish from the police officials. Witness has further deposed that after this incident, he closed the above said rooms and thereafter he never gave the rooms for rent.

(8) In leading questions put by Ld. APP for the state, witness has admitted that Parmod Sahai disclosed the dates of incident to him as 22.10.2011 and 14.11.2011 and Parmod Sahai also informed to him that Harish disclosed his name as Kapil to him wrongly.

(9) In his cross examination by Ld. Defence counsel, witness has deposed that he has not taken any license to give the above said rooms for rent and Parmod Sahai used to prepare the register about hiring the above said rooms but the same had been destroyed during the period when they white washed the rooms. According to him Parmod Sahai did not inform him that the girl who came in the room along with Harish, made any complaint to Parmod Sahai and he has no knowledge that the girl had accompanied Harish made any complaint to any one.

(10) PW12 Nazma Khan is the Counseller of NGO Nav Shrishti. She has deposed that on 20.11.2011 she was called by SI Bharat Bhushan to Sanjay Gandhi Hospital on when she went to Sanjay Gandhi Hospital where she came to know from SI Bharat Bhushan and SHO Insp. Satya Prakash that the victim 'S' had consumed poison and was admitted in the hospital. According to the witness she met the victim in the hospital and made inquiries from State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 8 her and counselled her.

(11) In her cross examination, the witness has admitted that when she interacted with the prosecutrix, her family members were with her and has voluntarily explained that the mother of prosecutrix was outside and one sister was with her. She has denied that the prosecutrix made her statement to the police on their tutoring and not independently or that the investigations were conducted by the IO on her dictation.

(12) PW13 is the prosecutrix 'S'. She has deposed that she is doing her graduation BA (Pass) from SPM college, Delhi University and she is student of final year. According to the witness, her phone had become defective on which she had gone to the shop of one Deepak Communication near her house from Sultanpuri for rectification of the same and she had told to the shopkeeper that she needed the mobile phone early because she had to go to the college on Saturday. According to her, the shopkeeper Deepak told her that after rectification, he would send the mobile phone at her house and she explained him that she will be going to the college and Deepak agreed to send her the phone to her house after rectification. Witness has further deposed that the accused Chirag, whose name she later on came to know when she was admitted in the hospital was Harish and the accused Harish was sent by Deepak to SPM college alongwith her mobile. Witness has further deposed that on 16.10.11, Harish @ State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 9 Chirag came to her college with the mobile phone and gave her the calls on her number and asked her to come out of the college and take the phone. Thereafter when she came out, he gave her mobile to her and also started talking to her and offered her a cold drink which she took. Witness has further deposed that on 22.10.11, there was an annual day function in their college and she was in the college, the accused Chirag (correctly identified) called her up on her mobile and asked her if she could meet him since he was just passing from in front of her college. According to her, she came out from the college to meet him and she started speaking to him and he offered her a cold drink and while she was still consuming the cold drink, she started feeling nauseated (chakkar aane lag gaye) on which the accused Harish told her that he would take her to a doctor. Witness has further deposed that she was initially reluctant and refused but he insisted him upon the same and he took her on his bike and first he took out some money from the ATM at the V3S Mall at Rohini and therefore told her that the clinic of the doctor was not open.

According to her, he (accused) told her that they should wait for sometime and he thereafter took her to a very big house at Rohini itself which was under construction where some furnishing work was going on and he asked her to sit down there and told her that he would go and check out on the doctor and come back after sometime. According to her after sometime, he again came back and in the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 10 room where he forcibly did galat kaam with her.

(13) On court question as to what is meant by galat kaam. The witness has explained that he committed rape on her. Witness has further deposed that after the accused did galat kaat (rape) on her, he went to the adjoining washroom and when he came out, the accused showed her the video clipping which he had made of her and threatened her that if she informed about this to anybody, he would show this clipping to everybody and also put the same in the Internet. According to her, therefore, feeling scared, she did not disclose about this incident to anybody and accused after the incident left her to the B­Block, Mangolpuri. Witness has further deposed that in the meantime, accused continued to make telephonic calls to her and threatened her that she should meet him and communicate with him on telephone. According to her, meanwhile, she got a job at Pizza Hut, Paschim Vihar and started working there.

(14) Witness has further deposed that on 14.11.11, it was Monday, she had gone to deposit her fees at Nangloi and was coming back, when accused again called her and asked her where she was on which she told him that she was going for her job but he asked her to come at Udyog Nagar Metro Station and compelled her to take a leave. According to her, he thereafter took her to the same house at Rohini and he again did galat kaam (rape) on her and on that day, she had excessive bleeding and in the evening, accused left her at B­ State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 11 Block, Mangolpuri.

(15) Witness has further deposed that on 16.11.11 in the evening, it was Wednesday, the accused gave her telephonic calls and asked her to come at B­block, Mangolpuri where she went and found him present there along with his two other friends. Thereafter, he made her sit in a vehicle and he also compelled her to consume the same drink which they were taking. According to her, after, she consumed the said drink, she was not in her senses and she does not recollect what had happened with her and she was semi­conscious till the next day. It is her mother who told her that she was found lying near her house. Witness has further deposed that her mother also inquired from her about what had happened but she did not tell her anything. She has further deposed that her elder sisters also compelled and asked her what had happened but she also did not disclose anything to them.

(16) Witness has further deposed that on the intervening night of 18.11.11, at about 2:30 am, she called up the accused and told him that he should stop harassing her or else she will kill herself. ("agar tumne phone karna ya yeh sab karna band nai kiya toh mein mar jaungi") on which accused told her that she could do whatever, she wanted and it will not make any difference to him. According to her, she, therefore took poison. On court question as to what poison the prosecutrix has explained that her mother sprinkles some State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 12 insecticides on the trees in the park and she consumed that substance. On further court question as to why she did this, the prosecutrix has explained that he (accused) used to harass her frequently (baar baar pareshan karta tha). Witness has further deposed that after she consumed the insecticide, she felt dizzy and started vomiting on which she went to the toilet where she fell down and when she gained consciousness, she found herself at Sanjay Gandhi Hospital where she informed her mother, her elder sister / didi Sapna that what had happened. According to her, thereafter, she also informed the police official SI Bharat Bhushan and her statement was recorded by the police in the hospital and Nazma (from the NGO) and Barkha (from Delhi Women Commission) had also visited there. Witness has further deposed that she made her statement to the Investigating Officer and before Barkha had come to the hospital, Investigating officer hurriedly recorded her statement and put her signatures on the same having come to know that Barkha Mam was coming to the hospital and he did not even permit her read the same. The said statement is Ex.PW­13/A bearing her signatures at point A. (17) Witness has further deposed that on 20.11.11, while she was admitted in the hospital, the accused had been called to the hospital by her family / mother and she had pointed out the accused to the police officers and he was arrested on her pointing out vide memo Ex.PX­5 and thereafter, his personal search was carried out State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 13 vide memo Ex.PX­6. According to her, Investigating officer also prepared the site plan Ex.PW13/B which he had prepared after arrest of the accused on his pointing out and confirmed the same from her and after seeing the said site plan, she confirmed that the same was correct and signed the same at point A. Witness has further deposed that Investigating officer also prepared the site plan of her house Ex.PW13/C and she had not seen any film so recorded by the accused but her sister had seen the same and informed her in the hospital that she had seen the film of the accused with her and she also told her that his phone was technical complicated. According to the prosecutrix, her clothes were seized in the hospital by the doctor which were the clothes which she had not washed and had kept the same in the house which she could identify. Witness has further deposed that in the month of January, she had come to the Rohini Courts and made her statement to the Ld.M.M. and the said statement is Ex.PW13/D. She has correctly identified the accused Harish @ Chirag and his mobile phones in the court.

(18) In her cross examination by Ld. Defence Counsel, witness has denied the suggestion that accused was friendly with her even prior to 16.10.11 and has voluntarily explained that he used to sit in the shop of the Mobile repair and that is why she became acquainted to him and spoke to him when she used to go to the shop. Witness has admitted that she was interacting with the accused on the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 14 facebook and had become friendly to him. Witness has admitted that even on 14.10.11, she had interacted with the accused on the facebook and has voluntarily explained that she had made other friends also on his Facebook profile. Witness has admitted that Ex.PW­13/DX­1 (running into 17 pages) which is the G­mail and facebook account of Harish @ Chirag contains her messages to the accused. Witness has admitted that she had gone to get her mobile repaired. Witness has further deposed that Deepak had told her that he would sent the same back to Harish @ Chirag since Harish was known to her and she used to leave her house for her college at about 9:00 am and return by 2:00 pm­3:00 pm. According to her, on 16.10.11, when the accused had come to her college and she had cold drink with him and she returned back to her college after about 15­20 minutes. Witness has admitted that between 16.10.11 to 22.10.11, she had been interacting with the accused. According to her, the cold drink which Harish @ Chirag had offered to her on 22.10.11 was in his bag and she had told the Investigating officer that Harish @ Chirag had taken out the cold drink which he offered her from his bag. Witness has further deposed that when the accused was taking her to a doctor, she had told him that her health was deteriorating and therefore, he took her to the nearby doctor and voluntarily explained that he has gone to the ATM to get the money. Witness has admitted that when she was in the said house at Sector­16, Rohini, she did not State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 15 consume any cold drink and she also did not raise any alarm when the accused committed rape on her on 22.10.11 and has voluntarily explained that she was not in her proper senses at that time. According to her they were in the said house from 10:00 am to 10:30 AM in the morning and has voluntarily added that they remained till 4:00­4:30 PM in the evening and thereafter the accused had left her in the B­Block, Mangolpuri at 4:50 pm. Witness has further deposed that during the time they were in the said house / room, there was some person who had knocked the door and the accused spoke to him but she did not know who it was and she also did not raise any alarm when she heard the knock and has voluntarily explained that as soon there was a knock, the accused himself went to the door and went out. Witness has denied the suggestion that the accused did not make any film of herself in the said room and has voluntarily explained that she had seen the film clippings. Witness has denied the suggestion that she did not stop the accused when he was doing galat kaam with her and voluntarily explained that she tried to stop him but could not. According to her, she had herself worn her clothes after the incident and when she came out of the room, there were workers and nobody else and she did not make any complaint to anybody and voluntarily explained that she was scared because the accused had shown her a video which he had made of her.

State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 16 (19) Witness has admitted that she did not made any complaint regarding the incident either to her parents or to her sisters or to her friends or to her lecturers or to any of the employee of the pizza hut or owner thereof. Witness has further admitted that at no point of time, when the alleged incident took place on 22.10.11 and 14.11.11 that she raised an alarm either at the time of incident or thereafter or informed any person of the same. Witness has admitted that she had been interacting with the accused regularly between 16.10.11 to 22.10.11 and also between 22.10.11 till 14.11.11 in a friendly way. Witness has denied the suggestion that she had accompanied the accused to the house at Sector 16, on 14.11.11 and voluntarily explained that on compelled by the accused on account of threats given by him. Witness has denied the suggestion that there were no threats by the accused and she accompanied him on account of friendly relations. Witness has further deposed that on 16.11.11, when the accused had called her to B­Block, Mangol Puri and was accompanied by two friends, she did not go anywhere and voluntarily explained that they were there on the spot itself at B­ Block, Mangolpuri. According to her, she did not lodged any complaint to the police regarding the incident dated 16.11.11 and voluntarily explained that her mother kept on asking her but she did not disclose to her what had happened. Witness has further deposed that she does not recollect the time when she started talking to the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 17 accused on 18.11.11 and voluntarily explained that she made large number of calls to him on the said date at night. Witness has further deposed that she had made a large number of calls and voluntarily explained that he picked the few calls but was not receiving the most of her calls. Witness has denied the suggestion that she was on friendly relations with the accused and had friendly consensual relationship with him. Witness has denied the suggestion that accused has been falsely implicated by her only to pressurize him. (20) PW18 Parmod has deposed that he is residing at VPO Smartha, Police Station Vibhuti Pur district Samastipur, Bihar for the last ten years and he is a private sweeper by profession and working at Alok Singhal who is resident of I­5/95 Sector 16 Rohini Delhi. According to him the shop of Alok Singhal was sealed and therefore he renovated the same and made six rooms for the purpose of giving the rooms on rent on marriage occasion etc and the rooms were given numbers 101 to 106 and the rooms used to be given on rent on marriages/ Kirtans. According to him on 11.11.2011 and on 14.11.2011 one person who introduced himself as Kapil and took the room on rent and he gave the rooms on the said date to Kapil and he could identify the said boy Kapil. Witness then pointed out the accused Harish @ Chirag and stated that Harish @ Chirag (who is in Judicial Custody) was the same person who introduced himself as Kapil (correctly identified). Witness has further deposed that on State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 18 14.11.2011 when accused came to take room he told him that he is not well and he want to take rest and on the both dates that is on 11.11.2011 and 14.11.2011 there was a girl with accused. According to him he gave the room No.105 to the accused for the consideration of Rs. 1400/­ as rent for one day on the said dates. Witness has further deposed that on 20.11.11 the police officials came to said premises along with accused Harish @ Chirag @ Kapil and police seized the mattress and one bed sheet and the police converted the mattress and bed sheet into pullanda and the investigating officer put his seal on the pullandas. According to him the seizure memo of gadda Ex.PW11/C and seizure memo of bed sheet Ex.PW11/D bears his signatures at point B respectively and the pointing out memo Ex.PW11/E also bears his signatures at point B. (21) Witness has further deposed that on 27.11.11 police brought the said girl to the aforementioned premises and the said girl pointed out the room No.105 after which they left. Later the police also reached at the spot on 3­4 occasions and police also prepared the site plan of the spot. According to him the persons who used to stay at the rooms used to bring eatables/food from the hotels and during stay of the accused at the said room the accused asked him to bring cold drink and he brought the same and gave it to accused. Witness has further deposed that on 14.11.11 after giving room to the accused he went to nearby I­5/95 as some construction work was going on State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 19 and when he came back after 2­3 hours he did not find accused and said girl at the room. According to him on the said day when police brought the accused to the aforesaid premises he identify the accused and told to investigating officer and he could identify the mattress and the bed sheet. Witness has also correctly identified the case property i.e. one mattress and which was seized by the Investigating officer and same is Ex.P­6. Witness has also correctly identified one bed sheet which was seized by the investigating officer and same is Ex.P­7.

(22) In his cross examination by Ld. Defence Counsel, witness has deposed that they were not having any license to run the rooms for the purpose of renting out to individual or for marriage party. Witness has further deposed that on 11.11.11 and 14.11.11 accused and that girl came at around 10 AM but he does not know time of their leaving. According to him, he brought a cold drink when the accused along with that girl hired the room and on 11.11.11 and 14.11.11 he left for his room at around 7 PM. Witness has admitted that on the above mentioned both the dates he met the accused in the said premises room. Witness has further deposed that that girl who accompanied the accused did not make any complaint to him or his employer on the said dates that accused did anything wrong with her. According to him, later on the said girl did not again visit at I­54/95 and voluntarily explained that girl visited the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 20 said premises with police on 27.11.11 and at that time two police officials were with that girl. He has testified that his statement was recorded by police on the same day at room and the mattress and bed sheet were seized by the investigating officer on 20.11.11. Witness has further deposed that on 27.11.11 police visited the place of incident in the evening but exact time he does not remember. He has explained that the police came there in Gypsy and remained there for about 15 minutes and he was not called by police at the Police Station. He has further deposed that when the accused and the girl came there on 11.11.11 and 14.11.11 he was alone and no other person was present there. According to him, prior to the said days of the incident he did not see the accused Harish alongwith said girl near the premises and prior to two days he did not meet accused and voluntarily explained that he met the accused on 11.11.11, 14.11.11 and 20.11.11 only.

Medical Evidence:

(23) PW6 Dr. Indermeet Singh has deposed on behalf of Dr. Vijay and has identified his handwriting and signature having worked with him and seen him while writing and signing. According to him, MLC No.16696 Ex.PW6/A of prosecutrix 'S', female 21 years, was prepared by Dr. Vijay on 20.11.2011 at about 11:40 AM who was brought by Reshma with alleged history of sexual assault on State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 21 22.10.2011 and on 14.11.2011 and physical assault on 16.11.2011 by person namely Chirag Bugga @ Harish. Witness has further deposed that according to the MLC in the local examination there was a old healing abrasion on left cheek with swelling of left lower lid and after examining the above said patient 'S' she was referred to gyane department for further management and examination.

(24) In his cross examination by Ld. Defence counsel, witness has deposed that the above said MLC was not prepared in his presence by Dr. Vijay. Witness has admitted that the above said patient 'S' was not medically examined in his presence. Witness has denied the suggestion that he was not identifying the signature of Dr. Vijay at point A at Ex.PW6/A or that he has seen his signatures for the first time.

(25) PW10 Dr. Dheeraj has deposed that on 19.11.2011 the prosecutrix 'S' female, 21 years was brought at hospital by one Mamta (sister) with alleged history of Ingestion of unknown substance at about 4:30 AM and in the casualty Dr. Ashok medically examined the above said 'S' and prepared her MLC. Witness has further deposed that Dr. Ashok prepared the MLC No. 19136 after examination of above said 'S' vide Ex.PW10/A showing that on local examination he did not find any external injuries and he referred the above said 'S' to medicine department for further examination and management.

State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 22 (26) Witness has further deposed that in the medicine department, he medically examined the above said 'S' with alleged history of Ingestion of unknown substance and thereafter he directed to obtain the blood sample and gastric lavage of the patient and the same was taken and handed over to police in sealed condition along with sample seal and has pored his observations on the MLC Ex.PW11/A from point X to X1.

(27) In his cross­examination the witness has deposed that the MLC Ex.PW10/A was prepared by the doctor in the casualty in his presence while he was attending the patient 'S'. Witness has denied the suggestion that he has not examined the above said 'S' in the medicine department. Witness has denied the suggestion that Dr. Ashok did not prepare the MLC in his presence or that he did not put his signatures at point A on Ex.PW10/A. (28) PW14 Dr. Megha Purohit has deposed on behalf of Dr. Alka and has identified her handwriting and signature having worked with her and having seen her while signing and writing during he course of duties. According to the witness the prosecutrix 'S' was brought at the hospital by her sister Reshma on 20.11.2011 at about 11.40 AM at the casualty and Dr. Vijay medically examination her vide MLC Ex.PW6/A and thereafter she was referred to Gynae Department for further examination and management where Dr. Alka State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 23 medically examined the patient with alleged history of cases of multiple sexual assault by a phone friend namely Chirage (Harish). The witness has deposed that Dr. Alka after examining the prosecutrix gave her observations in the bracketed from portion X to X­1 and bears signatures of Dr. Alka at point B. Witness has further deposed that according to the observations of Dr. Alka par vagina examination hymen (old tear) present at 7'O clock position, pink in colour and according to the MLC exhibits kit in respect of the prosecutrix and clothes of the prosecutrix 'S' were taken and handed over to the police in sealed condition along with sample seal. (29) In her cross examination by Ld. Defence Counsel, the witness has admitted that Dr. Alka did not medically examine the above said 'S' in her presence or that Dr. Alka did not prepare the above said observations in her presence. Witness has admitted that there is no external injury on the body of the prosecutrix. Witness has denied the suggestion that Dr. Alka had not worked with her or that she cannot identify her handwriting and signatures. (30) PW19 Dr. Rajesh Dalal has has seen MLC No.19136 pertaining to the prosecutrix prepared by Dr. Ashok with alleged history of ingestion of unknown substance. Witness has further deposed that the endorsement of Dr. Ashok shows that on examination the vitals of patient were stable and patient was drowsy. According to him, the patient was referred to Medicine SR State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 24 on duty for further examination opinion and treatment and the MLC is Ex.PW10/A which bears signatures of Dr. Ashok at point A. (31) In his cross examination by Ld. Defence Counsel, the witness has deposed that the patient came to casualty at about 4.30 AM as per the endorsement over the MLC and he did not examine the patient 'S' .

Forensic Experts:

(32) PW15 Dr. N. P. Waghmare has deposed that on 13.02.2012 one Nokia mobile phone model P63 bearing IMEI No. 359319025764748 with battery (marked Ex.MP­1), one Nokia mobile phone model 1280 bearing IMEI No. 358252/04/206424/1 with battery (marked Ex.MP­2), one Vodaphone SIM Card bearing No. EH182001556877 (marked Ex.SC­1), one Aircel SIM Card Bearing No.89918000409 173769118 (marked Ex.SC­2.) and one Micro S.D. Kingston Memory Card of 4GB (marked Ex.MC1) were received at FSL Office for examination. According to him, on analysis the aforesaid items, he gave his report Ex.PW15/A showing that, the 4GB Kingston memory card marked MC1 was forensically imaged is in validated. Encase software. On analysis of imaged storage data by authorized software and hardware tools as per the Cardinala Rule of Computer Forensics, the relevant retrieved limited pornography pictures and video files are given in the hard State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 25 copies vide Annexure A. The witness has deposed that the complete retrieved related porn pictures and other data is also given in CD­R. According to him the mobile phones made of Nokia marked Ex.MP1 and MP2 could not be anlyzed due to non availability of analysis facilities in the laboratory. He has further deposed that the SIM cards marked Ex.SC1 and Ex. SC­2 are not able to attached to Universal Forensic Extraction Device (UFED) and hence no data could be retrieved from them. He has not been cross examined on behalf the accused and his statement has gone uncontroverted. (33) PW16 Jitender Kumar deposed that on 13.02.2012 two cloth parcels were received in the FSL Rohini and the content of which were subjected to chemical microscopic TLC and GC­HS Examination. According to him after examining the contents it was observed that no metallic poisons, ethyl alcohol methyl alcohol cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in Exhibits 1 and 2 and his detailed report in this regard is Ex. PW16/A bearing his signatures at various points at Mark A. He has not been cross examined on behalf the accused and his statement has gone uncontroverted. (34) PW17 Naresh Kumar has deposed that on 13.02.2012 six sealed parcels were received in the Biology department of FSL Rohini which were subjected to biological and serological examination by him and his detailed report of biological examination State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 26 is Ex. PW17/A bearing his signatures at point A. According to him the report of serological examination is Ex.PW17/B bearing his signatures at point A which he identify. Witness has further deposed that he may mention that a human semen was detected in Ex.5 (one underwear) and Ex.7 (mattress having brown stains). Police Witnesses:

(35) PW1 HC Lalit Kumar has tendered his examination in chief by way of affidavit which is Ex.PW1/1 and has relied upon documents i.e. FIR copy of which is Ex.PW1/A and endorsement on rukka which is Ex.PW1/B. According to the witness on 20.11.2011 he was working as duty officer from 8 AM to 4 PM and on receipt of rukka through Ct. Dhara Singh at 3 PM endorsed by SI Bharat Bhushan, he got the FIR registered through computer operator and handed over the copy of FIR and original tehrir to Ct. Dhara Singh for handing over the same to the investigating officer SI Bharat Bhushan. This witness has not been cross examined on behalf of accused and the entire testimony has gone uncontroverted. (36) PW2 Ct. Vishal has tendered his examination­in­chief by way of affidavit which is Ex.PW2/1 and has relied upon documents i.e. DD No. 11B dated 19.11.11 copy of which is Ex.PW2/A. According to the witness on 19.11.2011 he was working State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 27 as DD writer from 12 midnight to 8 AM and an information was received through telephonically from duty constable Dalbir posted Sanjay Gandhi Memorial Hospital, Mangolpuri regarding MLC No. 19136 dated 19.11.2011 and he reduced the said information in writing vide DD No.11B dated 19.11.2011 which was handed over to SI Bharat Bhushan for necessary action. This witness has not been cross examined on behalf of accused and the entire testimony has gone uncontroverted.

(37) PW3 Ct Dinesh has tendered his examination­in­chief by way of affidavit which is Ex.PW3/1 and has relied upon documents i.e. FIR copy of which is Ex.PW1/A. According to him on 20.11.2011 he was working as computer operator in CIPA Section at Police Station Sultanpuri from 8 to 8 PM and on receipt of tehrir (rukka) through HC Lalit Kumar endorsed by SI Bharat Bhushan, he recorded the present FIR on the computer. This witness has not been cross examined on behalf of accused and the entire testimony has gone uncontroverted.

(38) PW4 HC Gobind Singh has tendered his examination­ in­chief by way of affidavit which is Ex.PW4/1 and has relied upon documents i.e. entry in register no. 19 bearing No. 13204 copy of which is Ex.PW4/A (three pages) and 13206 copy of which is Ex.PW4/B (two pages), entry in register no. 21 vide RC No. State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 28 27/21/12 dated 13.02.2012 copy of which is Ex.PW4/C, RC No. 28/21/12 dated 13.02.2012 copy of which is Ex.PW4/D and RC No. 29/21/12 dated 13.02.2012 copy of which is Ex.PW4/E. According to him, he also rely upon acknowledgment receipts issued by FSL vide FSL2012/B­1021 copy of which is Ex.PW4/F, FSL2012/C­998 copy of which is Ex.PW4/G, FSL2012/CFU­1008 copy of which is Ex.PW4/H. This witness has not been cross examined on behalf of accused and the entire testimony has gone uncontroverted. (39) PW5 Ct. Ram Kumar has tendered his examination­in­ chief by way of affidavit which is Ex.PW5/1. According to him on 13.02.2012 he was posted in Police Station Sultanpuri and on that day he received the case property nine pullanda and 2 sample seal vide R/C No. 27/21/12, 285/21/12 and 29/21/12 dated 13.02.2012 from HC Govind Singh for depositing the same to FSL Rohini Delhi.

He has deposed that he deposited the said pullandas in FSL Rohini and handed over the receipt to HC Govind Singh. This witness has not been cross examined on behalf of accused and the entire testimony has gone uncontroverted.

(40) PW9 L/Ct. Kalawati has deposed that on 20.11.2011 she was present at the Police Station and at about 9:00 AM she along with Investigating officer SI Bharat Bhushan and Ct. Dara Singh went to Sanjay Gandhi Hospital where they found that the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 29 prosecutrix 'S' admitted since 19.11.11 with the history of having consumed poison. According to her, on 20.11.11 when they went to the hospital, the prosecutrix 'S' was interrogated by him and she disclosed that one Harish @ Chirag had committed rape on her first on 22.10.11 and thereafter on 14.11.11. Witness has further deposed that the prosecutrix disclosed that initially she came to know the accused since there was a defect in her mobile phone and she had gone to the shop of the accused at Sultanpuri for rectification of the said defect and left her mobile phone there and the accused on the pretext of returning her phone, thereafter came to her house and then they came on talking terms. According to the witness, she further disclosed that on 22.10.11 the accused met her at Rohini Sector­16 and took her to a room and offered her a cold drink and after drinking the same she became nauseated and semi­conscious. Witness has further deposed that under the said influence, he committed rape on her and also made video film of her. According to her, the prosecutrix further disclosed that in the evening, she came back home and did not tell about the incident to anybody. The witness has deposed that the prosecutrix further disclosed that thereafter she again tried to contact her but he blackmailed her and again committed galat kaam on her on 14.11.11. Witness has further deposed that the prosecutrix further disclosed that on 16.11.11, she was again called by the accused and when she felt that she had been State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 30 cornered by the accused, she told him to marry her but the accused refused, despite which, she pleaded with him but the accused threatened her (dhamkaya). According to the witness she continued to call up the accused in order to persuade him but he did not agree and therefore being fed up and not understanding what to do, she attempted suicide by consuming insecticides on 18.11.11. Witness has further deposed that on coming to know whatever had been told to her by the prosecutrix, she informed the Investigating officer SI Bharat Bhushan who informed the SHO of the same. According to the witness, on the directions of the SHO, the NGO of Ms.Nazma Khan was informed who came to the hospital for counseling of the prosecutrix and thereafter the prosecutrix was interrogated in detail and her medical examination was also got conducted which confirmed the allegations. Witness has further deposed that the doctors also handed over two sealed pullandas duly sealed with the seal of the hospital and one sample seal which were seized by Investigating officer vide Ex.PW9/A. Witness has further deposed that a detail statement of the prosecutrix 'S' was recorded on the basis of which the Investigating Officer SI Bharat Bhushan got registered the FIR through Ct. Dara Singh. The witness has deposed that SI Bharat Bhushan was informed by the prosecutrix that the accused would come to meet her in the hospital and hence on the directions of the Investigating Officer, they took positions in the hospital and as State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 31 soon as the accused Harish @ Chirag came to the hospital and on the pointing of the prosecutrix 'S', he was apprehended by Ct. Dara Singh. Witness has further deposed that the prosecutrix has also disclosed that accused had taken certain photographs of her and made films of her in his mobile and from the personal search of accused, two mobile phones were recovered, both make Nokia (one Nokia E­63 and the other Nokia 1280) and both the said mobiles were taken into possession vide memo Ex.PW9/B. According to the witness, on checking the said mobiles, one of the mobile phone was found to contain the photographs of the prosecutrix and a film of the accused with some other lady. Witness has correctly identified the accused Harish @ Chirag in the court. Witness has also correctly identified the case property i.e. two mobiles i.e one mobile phone make E­63 with one SIM card and one memory card as the mobile phone as Ex.P­1 and sim card (Aircel) is Ex.P­2 and the memory card is Ex.P­3. Witness has also correctly identified another mobile phone make NOKIA 1280 alongwith one SIM card as the mobile phone NOKIA 1280 is Ex.P­4 and the SIM card is Ex.P­5. (41) In leading questions put by Ld. APP for the State, witness has admitted that during the interrogation, the accused had disclosed the room where the galat kaam has been done with the prosecutrix which room is situated at I­5/95, Sector­16, Rohini. State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 32 (42) In her cross examination by Ld. Defence counsel, witness has deposed that during her interrogation by the Investigating officer and also when she interacted with her, 'S' did not disclose that she had made any complaint to the police or to any other person or authority and the prosecutrix had told her that she did not inform about the incidents or that the accused had refused to marry her to any family member or to anybody else. Witness has admitted that the film in the mobile of the accused was not of the prosecutrix with the accused but of some other girl. Witness has denied the suggestion that no incident had taken place on 22.10.11 or on 14.11.11 or that the prosecutrix and the accused only had friendly relations due to which reason, he had come to see her in the hospital. Witness has denied the suggestion that no recovery of mobile phones or the Jamatalashi articles were made in her presence.

(43) PW11 Ct. Dhara Singh has deposed that on 20.11.2011 he along with SI Bharat Bhushan and L/Ct. Kalawati reached at the SGM hospital, Delhi because a DD No. 11B dated 19.11.2011 was already pending with SI Bharat Bhushan where in the emergency ward and they found prosecutrix 'S' admitted who was declared fit for statement by the doctors. Witness has further deposed that doctor handed over the two pullandas in sealed condition with the seal of SGMH Mangolpuri, Delhi with a sample seal and the same were seized by the Investigating officer vide Ex.PW11/A. According to State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 33 him, the prosecutrix 'S' was interrogated by L/Ct. Kalawati and prosecutrix alleged that one Harish @ Chirag had committed rape on her first on 22.10.11 and thereafter on 14.11.11. Witness has further deposed that the prosecutrix alleged that initially she came to know the accused since there was a defect in her mobile phone and had gone to the shop of the accused at Sultanpuri for rectification of the said defect and left her mobile phone there and the accused on the pretext of returning her phone, thereafter came to her house and then they came on talking terms. Witness has further deposed that she further alleged that on 22.10.11, the accused met her at Rohini Sector­16 and took her to a room and offered her a cold drink and after drinking the same, she became nauseated and semi­conscious. According to him, prosecutrix further alleged that under the said influence, he committed rape on her and also made video film of her and the prosecutrix further alleged that in the evening, she came back to home and further alleged that she did not tell about the incident to anybody. Witness has further deposed that Prosecutrix further alleged that thereafter he again tried to contact her but he blackmailed her and again committed galat kaam on her on 14.11.11 and the prosecutrix further alleged that on 16.11.11, she was again called by the accused and when the prosecutrix felt that she had been cornered by the accused, she told him to marry her but the accused refused, despite which, she pleaded with him but the accused State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 34 threatened her (dhamkaya). Witness has further deposed that she further alleged that she continued to call up the accused in order to persuade him but he did not agree and therefore being fed up and not understanding what to do, she attempted suicide by consuming insecticides on 18.11.11. Witness has further deposed that L/Ct. Kalatwari also informed these facts to the Investigating officer whatever told by prosecutrix to her, thereafter Investigating officer informed the SHO of the same.

(44) According to the witness on the directions of the SHO, Ms. Nazma Khan from the NGO was called who counselled the prosecutrix after which statement of the prosecutrix was recorded and her medical examination was also got conducted which confirmed the allegations. Witness has further deposed that doctors handed over the exhibits of the prosecutrix which was seized by the Investigating officer. The witness has deposed that the Investigating Officer SI Bharat Bhushan prepared the rukka and got the FIR registered. The witness has deposed that SI Bharat Bhushan was informed by the prosecutrix that the accused would come to meet her in the hospital and hence on the directions of the Investigating officer they took positions in the hospital and as soon as the accused Harish @ Chirag came to the hospital and on the pointing of the prosecutrix 'S', he was apprehended by him and was arrested thereafter. (45) Witness has further deposed that the prosecutrix has also State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 35 disclosed that accused had taken certain photographs of her and made films of her in his mobile and from the personal search of accused, two mobile phones were recovered, both make Nokia (one Nokia E­63 and other was Nokia 1280) which were seized by the IO vide Ex.PW­9/B. According to the witness, the accused Harish pointed out the place where he has committed the rape with the prosecutrix and he took them to the room at I­5/95, Sector 16, Rohini, Delhi. Witness has further deposed that one Parmod who was the care taker of the rooms found there and thereafter at the instance of the accused Harish they reached in a room and at the instance of the accused one Mattress (gada) and one bed sheet (blood stained) was seized from the room. According to him investigating officer sealed the mattress in a cloth pullanda and sealed the same with the seal of BB and seized the same vide memo Ex.PW11/C. Witness has further deposed that Investigating officer also sealed the bed sheet in a cloth pullanda with the seal of BB and seized the same vide seizure memo Ex.PW11/D and Investigating officer prepared the site plan at the instance of accused Harish. According to him Investigating officer also prepared the pointed out memo at the instance of the accused vide memo Ex.PW11/E and thereafter accused Harish was taken to SGM hospital and his medical examination was conducted there and after his medical examination doctor handed over three pullandas in sealed condition duly sealed with the seal of SGMH Mangolpuri, State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 36 Delhi along with sample seal and Investigating officer seized the same vide seizure memo Ex.PW11/F. Witness has correctly identified the accused Harish @ Chirag and the case property Ex.P­1 to Ex.P­7.

(46) In his cross­examination by Ld. Defence Counsel, the witness has deposed that on 20.11.2011 he reached at SGM hospital at about 9:30 AM and they reached in the emergency ward directly and they found prosecutrix 'S' was admitted in the hospital. According to him, the investigating officer recorded the statement of 'S' in his presence and the pullandas were sealed in his presence. Witness has admitted that Investigating officer did not try to obtain the statement nearby the room. He has stated that on 20.11.2011 the accused was arrested in his presence by the Investigating officer. Witness has admitted that two mobiles were recovered in his presence from the personal search of accused. According to him Site plan was prepared in his presence and they remained at the spot from 7­8PM and after that they went to SGM hospital at about 8:30 PM and lastly they went to the police station at about 9:45 PM and the accused was put in the lock up.

(47) PW20 SI Bharat Bhushan has deposed that in the intervening night of 18/19.11.11 he was posted in the Police Station Sultan Puri and on 19.11.11 at about 7.45 a.m. he received DD No. 11­B Ex.PW2/A mentioning that one girl was admitted in Sanjay State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 37 Gandhi Hospital by consuming unknown poison on which he went to the Sanjay Gandhi Hospital were a girl 'S' was found admitted and Doctor has handed over the MLC No. 19136 Ex.PW10/A to him showing that the girl was admitted as she has administered unknown poison and she is not in a position to tell anything. Witness has further deposed that on 20.11.11 the family members of 'S" came to the SHO and then he along with Lady Constable Kalawati and Const. Dhara Singh went to the Sanjay Gandhi Hospital with respect of this DD entry and doctor declared the patient fit for statement vide MLC Ex.PW7/A and the prosecutrix disclosed the facts regarding the rape to Lady Constable Kalawati and thereafter, SHO called the representative of NGO Ms. Najma Khatoon who counselled the prosecutrix and made her statement regarding committal of rape after which prosecutrix was medically examined vide MLC No. 16696 Ex.PW6/A and the doctors also handed over one pullanda duly sealed to Lady Constable Kalawati and doctor also handed over to him other pullanda containing blood samples and gastric lavage of the prosecutrix. According to him, he thereafter recorded the statement of prosecutrix vide Ex.PW13/A in the presence of Ms. Najma Khatoon and prepared the tehrir Ex.PW20/A and got the FIR registered through Ct. Dhara Singh. Witness has further deposed that in the meantime the sister of the prosecutrix State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 38 informed him that the accused is likely to be appearing in the hospital to meet the prosecutrix and at about 5.30 p.m. accused came to hospital and prosecutrix pointed out towards the accused Harish @ Chirag that he is the person who has committed rape upon her. Witness has further deposed that accused Harish @ Chirag was arrested by him vide memo which is Ex.PX­5 and he was interrogated and he recorded disclosure statement is Ex.PW11/B. (48) Witness has further deposed that the prosecutrix told him that the accused Harish @ Chirag had made her film in the mobile phone and two mobile phones were recovered from the possession of accused and the same were seized vide seizure memo Ex.PW9/B. According to him during the interrogation accused Harish told that he had taken the girl with him to Sector­16 Rohini and he made physical relations with the prosecutrix 'S' on 22.10.2011 and 14.11.11. Witness has further deposed that they left the Lady Constable Kalawati in the Police station and he along with constable Dhara Singh and the accused Harish went to Shiva Associates I­5/95, Sector 16 Rohini in the Govt. Vehicle and the accused pointed out the room where the accused had committed rape upon her and he made pointing out memo Ex.PW11/E after that he prepared the site plan Ex.PW20/B of the spot and on the pointing out of the accused they seized the mattress and bed sheet from the room and the bed sheet State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 39 was already washed and the same were seized vide seizure memo Ex.PW11/D and seizure memo of mattress Ex.PW11/C. Witness has further deposed that he got conducted the medical examination of the accused Harish vide MLC No.18902 Ex.PX­7 and collected the pullandas containing pubic hair undergarment, blood samples of the accused along with the sample seal which he seized vide Ex.PW11/F. Witness has further deposed that on 27.11.11 he took the prosecutrix to Shiva Associates I­5/95 Sector­16 Rohini and recorded her statement and prepared site plan Ex.PW13/B. He has deposed that during investigation on 22.12.11 he met with Alok owner of Shiva Associates I­5/95, Sector 16 Rohini who handed over him property documents to prove his ownership and after interrogation he recorded his statement. Witness has further deposed that on 27.01.12 he produced the prosecutrix before the court of Ld. Link MM for recording her statement u/s 164 CrPC vide application Ex.PX2 and statement of prosecutrix Ex.PW13/D and his request to Ld. MM to provide copy of the statement Ex.PX4. Witness has further deposed that on 13.02.12 Constable Ram Kumar took the pullandas in three units (Chemistry, Biology and CFU Unit) from Mal Khana and deposited the same in FSL Rohini and on the same he recorded the statement of MHC (M) HC Govind and Constable Ram Kumar and after that he prepared the challan and sent for scrutiny. State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 40 According to him during the challan checking Section 306 IPC was deleted and Section 366 IPC was added and after completing the investigation he filed the challan in the court.

(49) Witness has further deposed that on 29.07.12 he collected the result from FSL and on another day he also collected the result from FSL but date he does not remember which are Ex.PW17/A, Ex.PW17/B and Ex.PW16/A and thereafter, he deposited the results in the Mal Khana. According to him the MHC(M) had handed over three FSL reports and he prepared supplementary charge sheet and submitted in the court on 07.09.12. Witness has correctly identified the accused Harish @ Chirag and also the case property Ex.P1 to P8. (50) In his cross examination by Ld. Defence Counsel, the witness has deposed that when the information received to him in the Police Station other police official were also present in the Police station including Duty Officer and he along with Constable Pradeep went to the Sanjay Gandhi Hospital on his own motor cycle. According to him they reached in the hospital at about 8 a.m. and firstly they met with the doctor. Witness has further deposed that on 20.11.11 when he was already present at Sanjay Gandhi Hospital and the sister of the prosecutrix namely Reshma told him that the accused was likely to come and at about 5.15 p.m. accused came in the hospital. Witness has admitted that he did not ask any public person State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 41 to join the proceedings prior to arrest of accused. Witness has further deposed that the mobiles Nokia E­63 and Nokia 1280 were recovered from the right pocket of the pant of the accused and he seized both the mobiles he did not operate any mobile phone to see the picture and video film after recovering the same he seized the same and sealed the same vide BB. Witness has further deposed that after that they reached at Shiva Associate at about 7.15 p.m. via bus route 901 of DTC, via Rajiv Gandhi Cancer Hospital Via Rithala Metro Station, Vial Rohini Authority and thereafter at Sector­16 and he cannot tell the distance between the Police station to Shiva Associates Rohini Sector­16. Witness has further deposed that Pramod identified the accused Chirag and disclosed his name as Kapil and he recorded the statement of Pramod at the spot. Witness has further deposed that after medical examination of accused Harish in Sanjay Gandhi Hospital he alongwith constable Dhara Singh returned to police station at about 9.40 p.m. and he had informed about the arrest of accused to the brother of the accused namely Vicky in the Sanjay Gandhi Hospital and the mobile number of Vicky he does not remember. Witness has further deposed that the prosecutrix 'S' stated that she met with accused Chirag only on 14.11.11 and 22.11.11 and the prosecutrix told him that she has given her mobile for repair on the shop and the shopkeeper send accused Chirag in her college for the purpose for giving the mobile phone State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 42 after repairing. Witness has further deposed that he had give the notice u/s 160 CrPC to the mobile repair shopkeeper and he asked why you send accused Chirag for handing over the mobile to the prosecutrix in the college but he could not disclose any satisfactory reply regarding this and he did not record the statement of mobile shopkeeper. According to him he attached with the challan the handwritten statement which was given by the mobile shopkeeper and the statement of prosecutrix sister Reshma was recorded on 20.11.11 in the Sanjay Gandhi Hospital and he arrested the accused Chirag in the presence of Reshma. Witness has denied the suggestion that the accused did not point out any room or that pointing out memo was prepared by him of on his own in connivance with the prosecutrix and her family.

STATEMENT OF ACCUSED & DEFENCE EVIDENCE:

(51) After completion of prosecution evidence the statement of the accused was recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to him which the accused has denied. According to him he is innocent and has been falsely implicated with ulterior motives and malafide intentions to pressurize him for marriage. He has stated that he was into a pious and friendly relationship with complainant and was never aware of the ill intention of the complainant / prosecutrix and the proposal of State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 43 marriage from the side of prosecutrix was not accepted by him and due to revenge intention, she has falsely implicated him in this case.

However, he has not examined any witness in defence despite opportunity in this regard.

FINDINGS:

(52) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:

Identity of the accused:

(53) In so far as the identity of the accused is concerned, there is no dispute as he does not dispute the same. He has been specifically named in the complaint on the basis of which FIR was registered. Even otherwise he has been correctly identified in the court by the prosecutrix and other witnesses. In fact Pramod (PW18) has also identified him as the boy who had come to the premises i.e. House No. I­5/95, Sector­16, Rohini along with a girl on two occasions and given his name as Kapil. I hereby hold that the identity of the accused stands established.

State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 44

Age of the prosecutrix:

(54) In so far as the age of the prosecutrix is concerned, there is no dispute. As per her own claims at the time of incident she was a major around 20 to 21 years of age and a student of Shyama Prashad Mukherjee College doing her graduation and there is no dispute on the above aspect.

Medical Evidence:

(55) Case of the prosecution is that the prosecutrix on account of the intimidation, harassment and sexual exploitation by the accused, had attempted to commit suicide by consuming insecticide / pesticide after which she was rushed to the hospital by her family in a drowsy condition with a history of ingestion of unknown substance and was not fit to make a statement till next day morning. It is in the hospital that she disclosed to her sisters and to the doctors the cause of her attempted suicide i.e. on account of the harassment caused by the accused Chirag @ Harish who first won her confidence, then allured her and drugged her and then sexually assaulted her and prepared her video clippings which he threatened to show to her friends and also put on the Internet / Facebook and under this threat her repeated sexual exploitation and also refusal to marry. It is on the basis of this information given by the prosecutrix in the hospital that the present FIR was registered (allegedly after the intervention of State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 45 the Delhi Women Commission and some NGOs).

(56) The accused Harish @ Chirag has not disputed his MLC (Ex.PX7) which establishes that there is nothing to suggest that he is incapable of performing sexual activity. The medical record of the prosecutrix has been duly proved by Dr. Indermeet Singh (PW6), Dr. Dheeraj (PW10) and Dr. Megha Purohit (PW14). (57) Dr. Indermeet Singh has proved the MLC of prosecutrix vide Ex.PW6/A which is in the handwriting of Dr. Vijay. She has proved that the prosecutrix was brought by one Reshma (sister of the prosecutrix) with alleged history of sexual assault on 22.10.2011 and on 14.11.2011 and physical assault on 16.11.2011 by Chirag Bugga @ Harish. According to the witness as per the MLC on local examination there was old healing abrasion on left cheek with swelling of left lower lid and after examining the above said patient 'S' she was referred to gyane department for further management and examination.

(58) Dr. Dheeraj (PW10) has proved that on 19.11.2011 the prosecutrix 'S' examined by him who was brought with alleged history of ingestion of unknown substance and thereafter he directed to obtain the blood sample and gastric lavage of the patient and the same was taken and handed over to police in sealed condition along with sample seal.

(59) Dr. Megha Purohit (PW14) is the gynecologist who has State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 46 proved that the prosecutrix had given the history of multiple sexual assault by phone friend Chirag. She also proved the observations made by Dr. Alka that on per vagina examination, hymen was found torn (old tear) present at 7'O clock position. (60) The perusal of the MLC establishes that on 19.11.2011 at about 4:30 AM the prosecutrix was brought to the hospital by her family members and the history given was of ingestion of unknown substance. She was drowsy at that time and was not in a position to tell anything. Even at 7:15 PM she was opined to be unfit for statement but on 20.11.2011 she was declared fit for statement at about 10:30 AM. It was only after she regained her senses that she disclosed to the doctors and her family as to why she had taken this extreme step. The history as mentioned by the Doctor given by the patient in the MLC Ex.PW6/A is reproduced as under:

"....Alleged history of sexual assault by a phone friend namely Chirag @ Harish. The first sexual assault was done on 22.10.2011 somewhere at Rohini Sector­11 when the accused offered her some intoxicating agent mixed in cold drink and took her to some lonely room at Rohini. The patient was semi­ conscious at that time. The accused had done State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 47 multiple sexual intercourse with her (at that time the accused was wearing condom as told by the patient).

The accused had made a video of this act from his mobile. After that he was repeatedly giving threatening calls to the patient about showing her video to her friend and transferring it to Facebook.

Again he called the victim on 14.11.2011 to have sex with him and again offered her cold drink and took her to Rohini Sector - 11 and had sex with her.

Patient had also given a history of physical assault on 16.11.2011 and history of unconsciousness on 16.11.2011. On 19.11.2011 the patient was very much depressed and had taken some unknown substance (some insecticide) in the morning and brought to the SGM casualty at 4:30 AM. Revealed all the events today....."

(61) It is writ large from the above Firstly that when the prosecutrix was rushed to the hospital at 4:30 AM on 19.11.2011 by her sister Reshma she was drowsy and a history of ingestion of unknown substance had been given. Secondly it is evident from the MLC that till about 7:15 PM i.e. 19.11.2011 she was not fit to make a State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 48 statement. Thirdly that she was fit to make a statement only on 20.11.2011 at about 10:30 AM when she informed the doctors in the hospital and her sister the cause why she chose to end her life on which she was referred to Gynae Department where the history given by her has been noted by the doctor on duty. Lastly the MLC of the prosecutrix confirms the allegations made by the prosecutrix / victim. It confirms the ingestion of unknown substance by prosecutrix (who was drowsy when she was brought to the hospital and remained unfit for statement for more than 24 hours) and of sexual abuse (hymen being torn - old tear). The prosecutrix having explained the incidents in detail, I hereby hold that the medical evidence is compatible with the above history given by the prosecutrix and corroborates her version.

Forensic Evidence:

(62) The FSL report Ex.PW16/A has been duly proved by Jitender Kumar (PW16) which shows that the gastric lavage which was collected by the doctor does not establishes the presence of any metallic poisons, ethyl alcohol, methyl, methyl alcohol cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides. This, of course, would be on account of a number of reasons i.e. the victim / patient having thrown up (vomited) even before the lavage could be effectively collected; delay in collection of lavage; improper State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 49 collection and preservation techniques; the consumed substance being in a diluted form (i.e. normal insecticides / pesticides used at home are kept in diluted form) or the poison in question not being common and not easily detectable.

(63) Further, the biological report Ex.PW17/A and serological report which is Ex.PW17/B establish the presence of semen in Ex.5 (i.e. underwear of accused) which of course would not make much difference and Ex.7 (i.e mattresses /gadda which was seized from the room where the incident took place on 14.11.2011 about four days prior to the hospitalization of the prosecutrix). The witness Pramod Kumar (PW18) the employee / servant was the one who had identified the mattress kept in the room No. 105 as the same which was also in use on 14.11.2011 which testimony has gone uncontroverted and the presence of the semen stains confirm the version given by the prosecutrix (64) Dr. N P Waghmare (PW15) has duly proved his report Ex.PW15/A showing that the data retrieved from the mobile phone of the accused was analyzed by the authorized software but he could retrieve the limited pornography pictures and video files which are given in the hard copies vide Annexure A and the complete retrieved related porn pictures and other data is also given in CD­R. State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 50 (65) When the above material (i.e. pornographic video clipping showing him with a girl) was put to the accused, he claimed that it was fabricated in order to implicate him falsely. However, I am not convinced by the explanation given by him as the FSL examination report confirms that the said data was retrieved from his mobile as it clearly reflects his presence. It was for the accused to have explained how his presence is reflected. However, during the course of arguments when a query was put to the Ld. Counsel it is argued that the girl in the photographs and clipping was the ex­ girlfriend of the accused.

(66) The above report is compatible to the testimony of the prosecutrix that the accused had filmed her and was blackmailing and sexually assaulting her pursuant to the same. The presence of the pornographic material from the mobile phone of the accused is strong pointer to the guilt of the accused (The possibility of the accused indulging into a similar blackmail with other women cannot be ruled out or else there is no reason why he would have prepared and retained this video film in his mobile.

Disclosure of the accused leading to identification of the property bearing No. I­5/95, Sector 16, Rohini where the incident had taken place in room no. 105:

(67) The case of the prosecution is that on 22.10.2011 the accused Harish @ Chirag had taken the prosecutrix 'S' on the pretext State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 51 of taking her to a Doctor, to a room near G3S Mall, Rohini where he committed rape upon her and also made obscene video clippings of the prosecutrix after which he criminally intimidated her to expose her by putting the said video clippings on Internet and showing it to her friends. He thereafter sexually assaulted (Raped) the prosecutrix 'S' and again on 14.11.2011 he took her to the said room near G3S Mall, Rohini and made relations with her. The prosecutrix 'S' was unable to give the address of the building and was not even certain of the area (she gave the area as Sector 11 though it was later established that the area was Sector 16). However consequent upon the apprehension and arrest of the accused Harish @ Chirag he disclosed that he could lead the police party to the premises where he had committed rape upon the prosecutrix. In pursuance thereof, he led the police party to a premises at Sector 16, Rohini which was bearing No.I­5/95, Sector 16, Rohini, Delhi and there he pointed out the room where he had taken the prosecutrix on both the occasions and raped her. On local inquiry from the caretaker of the premises namely Pramod it was confirmed that accused had taken room on two occasions. According to the caretaker Pramod the bed sheet which was present on the mattress on 14.11.2011 had been washed but the mattress was the same. The police thereafter seized this mattress (on 20.11.2011 itself) in the presence of public witness Pramod who has proved the seizure memo Ex.PW11/C which bears State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 52 his signatures (independent public witness). When this mattress (seized after about four days of the last incident of rape) was sent for examination to FSL Rohini for examination it confirmed the presence of semen stains on the same.

(68) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.

(69) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:

a)Anything, state of things, or relation of things, or capable of being perceived by the senses,

b)Any mental condition of which any person is conscious. (70) It further provides five illustrations as to what would State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 53 constitute a fact which are as under:

1. That there are certain objects arranged in a certain order in a certain place, is a fact

2. That a man heard or saw something, is a fact.

3. That a man said certain words, is a fact.

4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

5. That a man has a certain reputation, is a fact.

(71) A co­joint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".

(72) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 54 statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King­Emperor reported in 74 Ind App 65:

AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under:­ "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"

".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not"

which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 55 statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."

"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"

State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 56

(73) After considering the settled principles the Hon'ble Apex Court observed as under:

"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 57 history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.

State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 58 (74) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:

"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.

The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.

(75) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 59 the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"

(76) Applying the settled principles of law to the facts of the present case, I may observe that the place where the incident of rape had taken place was not within the knowledge of the police since even the prosecutrix did not know the address of the building where she had been taken by the accused. This building bearing No. I­5/95, Sector­16, Rohini, Delhi was pointed out to them by the accused Harish @ Chirag. Had it not been for the accused that this fact would not have come to light. What turns on the fact that accused State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 60 Harish @ Chirag pointed out the building where he had committed rape upon the prosecutrix 'S' which was not in the knowledge of the police and thereafter and led them to the room (room no. 105) where he on two occasions had committed rape upon the prosecutrix from where the mattress was recovered (which mattress confirmed the presence of semen stains).

(77) The disclosure statement of the accused Harish @ Chirag leading to the discovery of the place of incident finds independent corroboration from the testimony of Alok Singhal (PW8) and his servant / employee Pramod (PW18). Alok who is the owner of the said building has proved that he was previously running a shop on the ground floor of the premises in question but on account of the sealing drive he constructed many rooms in the same which rooms he used to give on rent for marriage and other functions. According to him, his servant Pramod had told him that one boy by the name of Kapil had taken the room No. 105 on rent on two occasions i.e. 22.10.2011 and 14.11.2011. This testimony of Alok Singhal (PW8) finds due corroboration from the testimony of his employee Pramod Kumar (PW18). This Pramod Kumar has offered independent corroboration not only to the disclosure made by the accused but also to the testimony of the prosecutrix. He has specifically identified the accused Harish @ Chirag in the Court as the boy who had given his name of Kapil to him and had taken the room No. 105 on rent on two State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 61 occasions. He has proved that on both the occasions this boy (accused who introduced himself as Kapil) had brought one girl (same girl) to the room. He has also corroborated the testimony of the prosecutrix to the extent that on the first occasion he had even gone to the room once for purposes of service (the prosecutrix also in her cross­examination has confirmed that somebody had come to the room once and knocked the door when the accused attended to him). (78) Both Alok Singhal (PW8) and Pramod Kumar (PW18) are independent witnesses and in no way related either to the accused or to the prosecutrix. Neither the police nor the prosecutrix was aware of the address of the room where the accused had taken the prosecutrix and it was pursuant to the disclosure of the accused that the accused had led the police to the same. Hence, the disclosure statement of the accused to that extent is admissible in evidence more so because Alok Singhal (PW8) and Pramod Kumar (PW18) have independently corroborated the factum of the accused taking room No. 105 in premises No. I­5/95, Sector 16, Rohini, Delhi on rent on two occasions. The fact that the accused Harish @ Chirag pointed out the building bearing No. I­5/95, Sector 16, Rohini where he had taken the prosecutrix and the room where he had committed rape upon the prosecutrix (from where the mattress was lifted), is a strong pointer towards the guilt of accused Harish @ Chirag. State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 62 Allegations against the accused:

(79) The case of the prosecution is that the accused and the prosecutrix were known to each other having met at a shop of mobile repair after which they interacted with each other on Facebook and also maintained contact with each other on mobile phone. Initially on couple of occasions the accused had met the prosecutrix and as per the allegations on one occasion i.e. on 22.10.2011 he came to her college and offered cold drink to her after which she started feeling unwell and on the pretext of taking her to the doctor, he took her to a house near G3S Mall where he removed her clothes and committed rape upon her and also made a video clip of her in the said condition and thereafter intimidated / threatened her to put the said video clip on Internet (Facebook) and continued to make physical relations with her after compelling her to meet him at various places under such threat. The prosecutrix has explained that being extremely fed up of the harassment caused to her by the accused and her repeated exploitation and his refusal to marry her, she attempted suicide by consuming insecticide / pesticide present in her house. (80) In this regard, the prosecution has placed it reliance upon the complaint of the prosecutrix, her statement under Section 164 Cr.PC and also her deposition before the court. Ld. Defence Counsel has vehemently argued that the testimonies of the prosecutrix cannot be relied upon and she is not a trustworthy witness. He has submitted State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 63 that the accused had a very pious and friendly relationship with the prosecutrix and on account of the refusal by the accused to marry her she got the present case registered to compel him to fall in line and take revenge.

(81) I have considered the rival contentions and also the evidence which has come on record. Coming first to the statement of prosecutrix under Section 164 Cr.PC relevant portion of which is reproduced as under:

"Mein pata uprokat par apne parivar ke sath rehti hu. Main SPM College mein BA(Pass) course mein final year ki student hu. October, 2011 mein mera mobile phone kharab hone par maine Deepak communication, Sultanpuri ko mobile repair shop par thik hone diya tha. Dukan ke malik Deepak ne kaha ki phone correct karne ke liye shop par aane ki jarurat nahi paregi kyonki shop khulne­band hone ka koi regular time nahi hai. Denak 15.10.2011, Saturday ko ek Chiraj naam ka ladka mujhe college mein phone dene aya. Kuch der usse batcheet hui to usne mujhe apne bag mein rakhi cold drink offer ke. Mein mana kiya to usne kaha ghabrane wali baat nahi main bhi pi leta hu. Pehle usne cold drink pi uske baad bharosa hone par maine bhi pi li.

Uske karib ek hafte baad denak 22.10.2011 ko main college ka Annual Function attend karne gai hui thi. Us din Chiran @ Harish mujhse college ke bahar fir milne aya. Maine pucha ki kyon milne aya hai to usne kaha ki kuch der baat State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 64 karke chala jayge. Chirag ne mujhe cold drink di jise pete hi mujhe becheni hone lagi aur hath peir kapne lage. Harish @ Chirag ne mujhse kaha ki wah mujhe doctor ke pass le jayega. Weh mujhe apni motorcycle par betha kar G3S Mall ke pass le gaya aur ek ATM se kuch paise nikale. Chirag ne phir mujhse kaha ki jis doctor ke pass jana hai wah abhi clinic par aya nahi hai isley ek najdik ke ghar mein ja kar bethte hai..

G3S Mall ke kuch door par ek ghar mein bane bade hall ke andar se ek galiyare se gujrate hue ek kamre mein le gaya. Mujhe chakar aa rahe thai aur sharir mein bechaeni aur kapkapahat ho rahi thi. Chirag ne jabardasti mere kabre utar diye aur apne kapre utarkar mere sath balatsang (rape) kiya. Chirag ne meri bina kapro ke film banai aur photo kichi. Mera nagan awastha mein khicha video mujhe dikhaya aur dhamki di ki agar kisi to rape ke bare mein bataya to weh mujhe badnam kar dega aur mere photo aur video Internet par dar dega. Chirag jabardasti mujse mobile phone par baat karta tha aur mujse bhi apne ko phone karne ke liye kehta tha jis wajah se mujhe chirag ko phone karne parte thai. Phone na karne par galiya deta tha aur mujhe badname karne ke dhamkiya deta tha. Maine kuch dino ke liye Pizza Hut, Paschim Vihar mein job ki thi. Mein jab Pizza Hut se sham 5­6PM par duty khatam karke nikalti thi tho jabardasti mujse phone karne ke liye kehta tha aur raste mein bhi mil jata tha.

Dinak 14.11.2011 ko Chirag ne mujhe phone karke Udhyog Nagar Metro station bula liya aur mujhe motorcycle par betha kar usi kamre mein State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 65 le gaya jaha 22.10.2011 ko lekar gaya tha. Waha Chirag ne jabardasti, badnami ki dhamki de kar mere sath phir se balatsang (rape) kiya. Rape karte wakat Chirag ne mujhe kafi mara pita bhi tha. Mujhe peshab karne wali jagah se khun bhi nikla tha.

Denak 16.11.2011 ko Chirag ne mujse Mangolpuri bulaya aur ek black color ke car mein betha liya. Us car mein uske ek­do dost bhi thai jinse mein anjan thi.

Chirag @ Harish nein mujhe jabardasti cold drink pilayi jise pete hi mujhe bahaut nasha char gaya. Muje nahi pata ki us din Chirag ya uske dosto ne mujhse jismani cherkhani ki bhi thi aya nahi. Lekin uske agle din tak bhi mujhe neend aati rahi. Mere parivar walo ne poocha ki kya baat hai toh dar ki wajah se mein nahi bata pai.

Chiraj ki galat harkate mere har roj ki pareshani ban gayi thi. Pareshan hokar denak 18.11.2011 ko raat ko maine Chirag ko phone karke kaha ki agar wah mujhe pareshan karna band nahi karega to main atamhatya (suicide) karne par majboor ho jaungi. Chirag @ Harish ke kaha ki kuch kar lo weh mere pheecha nahi chorega.

Akhirkar pareshan hokar maine 18.11.2011 ki raat ko atamhatya karne ke liye ghar mein rakha kitnashak pi liya. Mere tabiyan kharab hone par mere pariwar wale mujhe SGM hospital le kar gaye. "

(82) It is writ large from the above that the prosecutrix at the first instance had told the Ld. MM all the details. (83) Coming now to the testimony of the prosecutrix before State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 66 this court, I may observe that the prosecutrix has supported the earlier version given by her to the Ld. MM. The relevant portion of the same is reproduced as under:

"I am doing my graduation BA (Pass) from SPM college, Delhi University and I am student of final year. My phone had become defective and I had gone to the shop of one Deepak Communication near my house from Sultanpuri for rectification of the same. I had told the shopkeeper that I needed the mobile phone early because I had to go to the college on Saturday. The shopkeeper Deepak told me that after rectification, he would send the mobile phone at my house. I told him that I will be going to the college and Deepak agreed to send me the phone to my house after rectification. The accused Chirag, whose name I later on came to know when I was admitted in the hospital was Harish. Accused Harish was sent by Deepak to my SPM college alongwith my mobile.

On 16.10.11, Harish @ Chirag came to my college with the mobile phone and gave me the calls on my number and asked me to come out of the college and take the phone. When I came out, he gave my mobile to me and also started talking to me and offered me a cold drink which I took.

On 22.10.11, there was an annual day function in our college and I was in the college, the accused Chirag (present in the court today and correctly identified) called me up on my mobile and asked me if he I could meet him since he was just passing from the front of my college. I came out from the college to meet him. He started State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 67 speaking to me and he offered me a cold drink.

While I was still consuming the cold drink, I started feeling nauseated (chakkar aane lag gaye) on which the accused Harish told me that he would take me to a doctor. I was initially reluctant and refused but he insisted me upon the same. He took me on his bike and first he took out some money from the ATM at the V3S Mall at Rohini and therefore told me that the clinic of the doctor was not open. He told me that we should wait for sometime. He thereafter took me to a very big house at Rohini itself which was under

construction where some furnishing work was going on. He asked me to sit down there and told me that he will go and check out on the doctor and come back after sometime. After sometime, he again came back and in the room where he forcibly did galat kaam with me.

On court question :­ As to what is meant by galatkaam. He committed rape on me. After the accused did galat kaat (rape) on me, I went to the adjoining washroom and when I came out, accused had showed me the video clipping which he had made of me and threatened me that if I informed about this to anybody, he will show this clipping to everybody and also put the same in the internet. Therefore, feeling scared, I did not disclose about this incident to anybody. Accused after the incident left me to the B­Block, Mangolpuri. In the meantime, accused continued to make telephonic calls to me and threatened me that I should meet him and communicate with him on telephone. Meanwhile, I State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 68 got a job at Pizza hut, Paschim Vihar and started working there.

On 14.11.11, it was Monday, I had gone to deposit my fees at Nangloi and was coming back, when accused again called me and asked me where I was. I told him that I was going for my job but he asked me to come at Udyog Nagar Metro Station and compelled me to take a leave. He thereafter, took me to the same house at Rohini and he again did galat kaam (rape) on me. On that day, I had excessive bleeding and in the evening, accused left me at B­Block, Mangolpuri.

On 16.11.11 in the evening, it was Wednesday, the accused gave me telephonic calls and asked me to come at B­block, Mangolpuri where I went and even when he was present there alongwith his two other friends and thereafter, he made me sit in a vehicle and he also compelled me to consume the same drink which they were taking. After, I consumed the said drink, I was not in my senses and I do not recollect what had happened with me. I was semi­conscious till the next day and it is my mother who told me that I was found lying near my house. My mother also inquired from me about what had happened but I did not told her anything. My elder sisters also compelled and asked me what had happened but I also did not disclose anything to them.

On the intervening night of 18.11.11, at about 2:30 am, I called up the accused and told him that he should stop harassing me or else I will kill myself. ("agar tumne phone karna ya yeh sab State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 69 karna band nai kiya toh mein mar jaungi"). On which accused told me that I could do whatever, I want and it will not make any difference to him. I, therefore took poison. On court question ­ As to what poison. My mother sprinkles some insecticides on the trees in the park and I consumed that substance.

On court question ­ Why did you do this?

Ans. baar baar pareshan karta tha.

After I consumed the insecticide, I felt dizzy and vomitting and went to the toilet where I fell down. When I gained consciousness, I found myself at Sanjay Gandhi Hospital where I informed my mother, my elder sister/didi Sapna that what had happened. Thereafter, I also informed the police official SI Bharat Bhushan. My statement was recorded by the police in the hospital. Nazma Mam (Court observation ­ from the NGO) and Barkha Mam (Court observation from Delhi Women Commission) had also visited there. I made my statement to the IO. Before Barkha Mam had come to the hospital, IO hurriedly recorded my statement and put my signatures on the same having come to know that Barkha Mam was coming to the hospital and he did not even permit me read the same. The said statement is Ex.PW­13/A bearing my signatures at point A. On 20.11.11, while I was admitted in the hospital, the accused had been called to the hospital by my family/mother and I had pointed out towards the accused to the police officers and State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 70 he was arrested on my pointing out vide memo already Ex.PX­5 bearing my signatures at point D and thereafter, his personal search was carried out vide memo already Ex.PX­6 bearing my signatures at point D. IO also prepared the site plan Ex.PW­13/B which he had prepared after arrest of the accused on his pointing out and confirmed the same from me. After seeing the said site plan, I confirmed that the same was correct and signed the same at point A. IO also prepared the site plan of my house Ex.PW­13/C bearing my signatures at point A and I had not seen any film so recorded from the accused but my sister had seen the same and informed me in the hospital that she had seen the film of the accused with me and she also told me that his phone was technical complicated. My clothes were seized in the hospital by the doctor which were the clothes which I had not washed and had kept the same in the house which I can identify. In the month of January, I had come to the Rohini Courts and made my statement to the Ld.M.M. and the said statement is Ex.PW­13/D bearing my signatures at various points Mark A. Accused Harish is present in the court today (witness correctly identified the accused Harish @ Chirag). I can identifying the mobile phones of accused Harish if shown to me.

At this stage, officials of the FSL Rohini Delhi produced one envelop in open condition, which has been opened during the testimony of earlier witness and same is opened and one mobile phone make Nokia E­63 and State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 71 another mobile phone make Nokia 1280 are taken out and same are shown to the witness and witness correctly identified both mobile phones belonging to the accused Harish and witness further states that the accused took his films by the mobile phones make Nokia E­63. The mobile phone make Nokia E­63 is already Ex.P­1 and the mobile phone make Nokia 1280 is already Ex.P­4."

(84) The prosecutrix has been exhaustively cross examined in the court and it is writ large that she has supported the case of the prosecution. Before coming to the merits of the allegations made by the prosecutrix, I may observe that conviction can be based upon the sole testimony of the prosecutrix if found credible and truthful. In this regard the Hon'ble Supreme Court has in the case of State of Rajasthan Vs. Biram Lal reported in 2005 AIR (SC) 2327 held that:

"........It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the court is satisfied that the evidence of prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent sources or from the circumstances of the case before recording an order of conviction. In the instant case the allegations were that the accused during night entered the prosecutrix room and committed rape State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 72 on her, the evidence of the prosecution was found worthy of credit and implicitly reliable....."

(85) In the year 2006 the Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC 381 had observed that:

"...... The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of a victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault and to convict an accused where her testimony inspires confidence and is found to be reliable. It is settled law that corroboration is a condition for Judicial Reliance on the testimony of the prosecutrix and is not a requirement of law but a guidance of Prudence under the given circumstances. Even minor contradiction or insignificant discrepancies in the statement of the prosecutrix cannot be a ground for throwing out, an otherwise reliable prosecution case.

(86) It was further observed by the Hon'ble Court that:

"..... No girl of self respect and dignity who is conscious of her chastity having expectations of married life and livelihood would accuse falsely against any other person of rape, much less against her father, sacrificing thereby her chastity and also expose the entire family to shame and at State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 73 the risk of condemnation and ostracization by the society. It is unthinkable to suggest that the mother would go to the extent of inventing a story of sexual assault of her own daughter and tutor her to narrate a story of sexual assault against a person who is no other than her husband and father of girl, at the risk of bringing down their social status and spoil their reputation in the society as well as family circle to which they belong to....."

(87) Further, in the case of Vishnu Vs. State of Maharastra reported in 2006 AIR (SC) 508 it was observed by the Hon'ble Apex Court that:

"..... In the traditional non­permissive bounds of society of India, no girl or woman of self­respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle. From the statement of the prosecutrix, it was revealed that the accused induced her to a hotel by creating an impression that his wife was admitted in the hospital and that he would see her first and then drop the prosecutrix at her residence whereas, in fact, she was not admitted in the hospital. On the pretext of going to Hospital, he took her to a hotel, took her State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 74 inside a room, closed the door of the room, threatened her to finish her if she shouted and then forcibly ravished her sexually. A clear case of rape, as defined under Section 375 Clause third of IPC was found established against the accused...."

(88) Also in the case of Bharwada Boginbhai Hirji Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) it was observed by the Hon'ble Supreme Court that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complaints of rape or sexual molestation be viewed with doubt, disbelief or suspicion? To do so is to justify charge of male chauvinism in a male dominated society.

(89) Applying the above settled principles of law to the facts of present case, it is writ large that the accused was previously known to the prosecutrix. Both the accused and the prosecutrix are young persons and the prosecutrix in her testimony agreed that she had been voluntarily going out with the accused but has explained that she was being pressurized by the accused who had made some pornographic video film pertaining to her and threatened her to put the same on Internet / Facebook and also to show the same to her friends. This established that the said consent was induced / State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 75 compelled. This testimony of the prosecutrix finds due corroboration from two sources First from the testimonies of Alok Singhal (PW8) and Pramod Kumar (PW18) who have confirmed that rooms in premises No. I­5/95, Sector 16, Rohini, Delhi were being given on rent for various purposes and that the accused had taken one room on rent on two occasions i.e. 22.10.2011 & 14.11.2011 when he had brought a girl there (same girl on both occasions). Second from the material retrieved from the mobile phone recovered from the possession of the accused showing the presence of the accused with another girl (not the prosecutrix). The prosecutrix has in her cross­ examination stated that she had seen this video clipping and has clarified that the accused had shown the same to her after the first incident. She also states that even her sister had seen it in the hospital. Here, I may observe that it is possible at the time of first incident while the prosecutrix was under the influence of a drug, either she had actually seen her own video clipping (which she insists that she did) or that she was shown a video clipping by the accused of himself and another lady (which the accused had retained in his mobile) claiming that it was of the prosecutrix and hence being shocked at the turn of events she believed the accused that the clipping belonged to her and so also was the case with her sister (i.e. Sapna who has incidentally not been examined in the Court) when she saw the same in the hospital (after arrest of the accused). The State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 76 other possibility is that the same had been deleted by the accused or may be, could not be retrieved from the phone memory (as conceded by the Forensic Expert, the facility not being available for the same). (90) It stands confirmed that apart from the prosecutrix the accused also made the pornographic video films of some other lady which he had retained on his mobile phone. During the course of arguments this Court was informed that it belonged to his previous girl friend. Assuming that it was of his previous girl friend, what business he has to make obscene video clippings of himself with the girl (appears to have been without knowledge of the girl) and retain the same in his mobile. This confirms that the accused was in fact a Casanova who first allured and enticed the young girls into a relationship, took them on dates, drugged them, made sexual relations with them, filmed such acts and then continued to sexually exploit them by intimidating them and threatening to put their pictures on Internet.

(91) The possibility of the accused having deleted the incriminating material from the mobile phone after coming to know about hospitalization of the prosecutrix and registration of the present FIR, cannot be ruled out. Also, there is no reason to disbelieve the prosecutrix who is a young college girl of marriageable age belonging to a middle class conventional family. Under no circumstances she would put her reputation on stake in this regard. State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 77 The accused in his statement under Section 313 Cr.PC has stated that the prosecutrix had done so only for the purpose of revenge as she was compelling him to marry her which he refused. This shows that the accused in fact admits his relationship with the prosecutrix. There is no reason to disbelieve that the prosecutrix who had been sexually exploited by the accused when she states that being fed up with his repeated harassment caused to her and also on his refusal to marry her, she attempted to end her life. I may observe that it is normal under these circumstances for a woman sexually exploited by a man to expect such person who had been exploiting her to marry her, perhaps feeling that she is left with little or no choice (for fear of social ostracization and also fear of exposure). The pornographic pictures retrieved from the mobile phone of the accused speak the volumes of the conduct and behaviour of the accused or else there is no reason to retaining the pornographic film on the mobile phone relating to some other girl and corroborates the version given by the prosecutrix.

Date Rape Drugs:

(92) The case of the prosecution is that the prosecutrix had been drugged on two or perhaps three occasions i.e. First on 20.10.2011 when the accused had given her a cold drink which he was carrying in his bag and after consuming the same she started State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 78 feeling giddy / nauseated and was not in proper senses after which the accused, on the pretext of taking her to the Doctor rather took her to a room in premises No. I­5/95, Sector 16, Rohini where he not only committed rape upon her but also prepared the video clippings of his sexual exploits with the prosecutrix and after the incident showed the same to the prosecutrix and threatened her to put the same on Internet if she disclosed about the incident to anybody.

Second when she was again taken by the convict to the same premises on 14.11.2011 and was given a cold drink after which she was again sexually assaulted and Thirdly on 16.11.2011 when according to the prosecutrix she was called by the accused at B­ Block Mangol Puri where the accused was present in a black coloured car with two of his friends. There she was made to sit inside the car and consume some drink after which she lost her consciousness and could not recollect what happened to her. She has very categorically deposed that after consuming the said drink she had totally lost her senses and is unaware if anything had happened to her or if anybody had exploited her. However, according to the prosecutrix her mother had told her that she was found lying near her house and according to her she was semi conscious till the next day and kept on sleeping.

(93) The Ld. Defence Counsel has vehemently argued that whatever has been stated by the prosecutrix is unbelievable. It is not State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 79 possible for a young educated girl aged about 20­21 years would be so naive to be led by the accused. He submits that the accused and the prosecutrix were into a pious friendly relation but soon thereafter the prosecutrix started pressurizing the accused to marry her and on his refusal, has falsely implicated him in the criminal case. (94) I have considered the rival contentions. Before coming to the credibility and truthfulness of the allegations made by prosecutrix in this regard, it has become necessary for me to examine the correctness of the allegations made by the prosecutrix of being drugged, raped, blackmailed and sexually exploited by the accused. In so far as the medical and forensic evidence which has come on record is concerned, I may note that the MLC of the prosecutrix confirms that she was rushed to the hospital in a drowsy condition with a history of ingestion of unknown substance and was not fit for statement till the next day morning. However, in so far as the forensic evidence is concerned it is writ large that no test for such drug which could have been given to the prosecutrix previously has been conducted. In fact as a matter of routine the gastric lavage was collected and sent to the FSL and as per report even the common poisons (as reflected in the report) could not be detected in the same. (95) Coming now to the aspect as to whether it was even possible to test for the presence of drugs administered to the prosecutrix sometime back, I may observe that it is a matter of State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 80 common knowledge that a large number of drugs are freely available in the market (Date Rape Drugs) which are used to assist in execution of Drug Facilitated Sexual Assault (DFSA) and the symptoms caused by these drugs are something which the prosecutrix has in her testimony narrated.

(96) These Date Rape Drugs or Predator Drug are used to assist in the execution of Drug Facilitated Sexual Assault (DFSA) and because of the effects of these drugs, victims may be physically helpless, unable to refuse sex, and unable to remember what happened. These drugs often have no color, odor or taste and are easily added to flavored drinks without the victim's knowledge. GHB (gamma hydroxybutyric acid), Ketamine and Benzodiazepines (Flunitrazepam, Rohypnol or Roofies, Rope and Roaches) are the most common date­rape drugs.

(97) The most common types of DFSA are those in which a victim ingested drugs willingly for recreational purposes, or had them administered surreptitiously: it is the latter type of assault that the term "date rape drug" most often refers to. Date rape drugs often have sedative, hypnotic, dissociative, and/or amnesiac effects, and can be added to a food or drink without the victim's knowledge. (98) Sexual assault of people under the influence of alcohol or drugs is not new, and sexual assaults of people who have voluntarily State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 81 consumed alcohol or drugs is common. It is also not new to slip something into somebody's drink to incapacitate them. However, it wasn't until the mid­1990s that law enforcement agents began to see a pattern of women being surreptitiously drugged for the purpose of rape, particularly through use of odorless, tasteless incapacitating drugs that produce anterograde amnesia. (Reference: Internet material on the Date Rape Drugs).

(99) It is a known fact that detection of these drugs (Date Rape Drugs) is a difficult issue and unless a victim of DFSA seeks medical care within 72 hours of the assault, it is less likely that the tests would successfully detect the presence of these drugs, since most of them become metabolized and eliminated from the body, resulting into a negative report.

(100) Whenever a victim makes allegations of sexual assault after being drugged the samples are required to be collected for detection and it is necessary for the Law Enforcement Agencies to inquire from the victim the effects of the drug felt by her after its administration which is required to be done for making it possible for the laboratories not only to conduct a broad drug screen but also a specific drug screening (knowing the drug's effects and which drug to test for) which unfortunately had not been done in the present case.

(101) It is also obligated upon the Law Enforcement Agencies State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 82 in case of allegation by victims of sexual assault of being surreptitiously administered some drug to get the drug testing done as part of the Rape Kit (collection of blood, urine, sputum and hair samples). In the present case despite the prosecutrix having made specific allegations of being drugged and sexually assaulted (the last assault being about two­three days ago), unfortunately no samples as aforesaid were collected for detection perhaps the Investigating Officers not being suitably sensitized in this regard. To make the matters worse there is no sensitization of the Hospital Authorities as well to make this (collection of blood, urine, sputum and hair samples) as a compulsory part of the Rape Kit while collecting exhibits.

(102) It is further evident that the victim / prosecutrix 'S' has done her best to describe the effects of the drug when she informed the Investigating Officer that on the first occasion she was unable to resist and on the last occasion she had become unconscious having lost her senses. This being the background it was possible for the laboratories not only to conduct a broad drug screen but also a specific drug screening knowing the drug's effects and which drug to test for, which again has not been done.

(103) The matter does not end here. In cases relating to drugging of women there are also a large number of legal issues which are involved. For victims it can be extremely hard for them to State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 83 know if they consented or not or were drugged deliberately or voluntarily. For prosecutors there is difficulty in proving intent or lack of consent where the rape or assault happened without witnesses (particularly in a private home) and where both parties were consuming drugs or alcohol since neither was able to legally give consent. Independent proof of forced consumption of drugs or forced sexual activity is seldom available and the entire concept of date rape is fraught with legal problems.

(104) Coming now to the facts of the present case and the evidence available on record, I may observe that the testimony of the prosecutrix 'S' is most categorical. On as many as three occasions she had suspected that some drug had been administered to her and she has explained the symptoms and the effects which were caused on her. She has further explained that when sexual assault took place at the first instance on 22.10.2011 she was unable to resist. Her presence in room No. 105 in premises No. I­5/95, Sector 16, Rohini on 22.10.2011 stands independently confirmed from the testimony of Pramod Kumar (PW18) an employee present in the premises, who has also identified the accused Harish @ Chirag as the person who had come to the room along with the girl and stayed there for the whole day by introducing himself as Kapil. This Pramod Kumar has again confirmed the presence of the accused Harish @ Chirag on State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 84 14.11.2011 in the above premises along with the same girl when he took a room on rent by again introducing himself as Kapil. (105) Further, the claim of the prosecutrix that the accused had prepared a video clipping of her with him during the sexual assault which he threatened to put on the Internet and which he was using to blackmail and intimidate her into submitting to his desires, also stands confirmed from the fact that at the time of the arrest two mobile phones were recovered from the possession of the accused which were sent to the Forensic Lab for retrieval and examination of the data and out of them the data retrieved from the memory card used on the phones confirmed the presence of a pornographic material which has been made a part of the charge sheet (the presence of the accused along with another girl in the said pornographic video stands established and it is difficult to believe the explanation of the accused that it is fabricated). The FSL Laboratory has confirmed that the material from the memory of mobile phones could not be retrieved due to non availability of facility. During the course of final arguments in the Court the accused had explained that the lady in the video was his ex­girlfriend. It does not matter to the Court who the other lady present with the accused was and what was his relations with her. The fact of the matter is that the accused was confirmed to be carrying pornographic material in his mobile phone showing his sexual exploits with some woman which lends credence State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 85 to the version of the prosecutrix that he had prepared her video clipping or at least made her believe so and was threatening to use the same. The possibility of the accused having similarly exploited other women as well cannot be ruled out or else there was no reason why he would at the first instance video­graph such an exploit and thereafter retain the same in his mobile which he carried with him all the time. Further, as already observed the possibility of the accused having deleted or destroyed the incriminating material (video clippings relating to the prosecutrix) when he came to know about her attempted suicide and hospitalization, also cannot be ruled out. It is this conduct of the accused of video graphing, retaining and carrying the pornographic material relating to his own sexual exploits which is relevant and incriminating and lends independent support to the version of the prosecutrix that perhaps he had repeated the same conduct (sexual assault) with her after drugging her and of making video clipping of the same. (Reference is made to the provisions of Section 8 of the Indian Evidence Act providing that the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, good­faith etc.). (106) It is impossible to believe that a young girl who is doing her Graduation belonging to a conventional middle class family, State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 86 would knowingly and willingly permit herself to be video­graphed or exploited thereafter (unless being drugged into it). The very fact that the prosecutrix tried to end her life by consuming the pesticide kept in her house being fed up with the harassment caused by the accused as explained by her, indicates that she had been subjected to intimidation and pressurized into submitting to the will of the accused who repeatedly exploited her sexually (which stands confirmed from the FSL Report showing the presence of semen stains on the mattress recovered from the room where the accused had made physical relations with the prosecutrix on 14.11.2011 just four days prior to her taking the extreme step of suicide on 19.11.2011).

(107) Hence, there being sufficient independent circumstantial and forensic corroboration forthcoming to the version given by the prosecutrix, I hold the same to be credible, truthful and probable and there is no reason to disbelieve the same.

FINAL CONCLUSION:

(108) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 87 guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(109) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. On the basis of testimonies of the various witnesses examined by the prosecution, the following facts stand established: State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 88

➢ That at the time of incident the prosecutrix was aged about 20­21 years and was doing her graduation BA (Pass) from SPM college, Delhi University being a student of final year. ➢ That the mobile phone of the prosecutrix become defective on which she had gone to the shop of one Deepak Communication near her house from Sultanpuri for repair and the shopkeeper Deepak told her that after rectification, he would send the mobile phone at her house.

➢ That on 16.10.2011 the accused Harish @ Chirag was sent by Deepak to SPM college alongwith the mobile of the prosecutrix and made calls to the prosecutrix on her number. ➢ That when the prosecutrix came out, Accused Harish @ Chirag gave mobile to the prosecutrix and and offered her a cold drink which she took.

➢ That on 22.10.2011 the accused Harish @ Chirag made call on the mobile of the prosecutrix asking her to meet him and when the prosecutrix came outside, he offered her a cold drink and while she was still consuming the cold drink, she started feeling nauseated.

➢ That the accused Harish, on the pretext of taking her to a doctor, took her to a room in premises No.I­5/95, Sector­16, Rohini and asked her to sit down there and told her that he State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 89 would go and check out on the doctor and come back after sometime.

➢ That after sometime the accused again came back in the room where he committed rape upon her and the prosecutrix was not able to resist him (on account of her physical condition being drugged).

➢ That the accused prepared a video clipping of the acts done by him and showed the same to the prosecutrix 'S' and threatened her that if she informed about the incident to anybody, he would show this clipping to her friends and also put the same on Facebook / Internet.

➢ That feeling scared and intimidated the prosecutrix did not disclose about this incident to anybody and accused continued to make telephonic calls to her and threatened her that she should meet him and communicate with him on telephone. ➢ That meanwhile the prosecutrix got a job at Pizza Hut, Paschim Vihar and started working there.

➢ That on 14.11.11 it was a Monday when accused Harish @ Chirag again made a call to the prosecutrix and asked her to come at Udyog Nagar Metro Station and compelled her to take a leave from her job.

➢ That thereafter the accused took her to the same house at Rohini and again committed rape upon her after which the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 90 prosecutrix had excessive bleeding and in the evening, accused left her at B­Block, Mangolpuri.

➢ That on 16.11.11 in the evening the accused gave telephonic calls to the prosecutrix and asked her to come at B­block, Mangolpuri where she went and found him present there along with his two other friends.

➢ That the accused made the prosecutrix to sit in a vehicle and also compelled her to consume the same drink which they (accused and his friends) were taking and after consuming the said drink, the prosecutrix lost her senses and did not recollect what had happened with her.

➢ That the prosecutrix remained semi­conscious till the next day and it was her mother who told her that she was found lying near her house.

➢ That the mother and elder sisters of the prosecutrix inquired from her about what had happened but she did not disclose anything to her.

➢ That being fed up with the harassment caused by the accused, on the intervening night of 18­19.11.11 at about 2:30 AM, the prosecutrix called up the accused and told him that he should stop harassing her or else she would kill herself (agar tumne phone karna ya yeh sab karna band nai kiya toh mein mar jaungi) on which accused told her that she could do whatever, State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 91 she wanted and it would not make any difference to him. ➢ That soon thereafter since the accused used to harass her frequently (baar baar pareshan karta tha) she consumed the poison i.e. insecticide which her mother used to sprinkle on trees in the park.

➢ That after she consumed the insecticide, she felt dizzy and started vomiting on which she went to the toilet where she fell down.

➢ That immediately the prosecutrix was brought to Sanjay Gandhi Hospital on 19.11.2011 at 4:30 AM with the alleged history of ingestion of unknown substance.

➢ That the prosecutrix remained unfit for statement till 7:15 PM and it was only on the next day morning i.e. on 20.11.2011 at about 10:30 AM she was declared fit for statement by the doctors when she disclosed to the doctors and her sister the cause why she chose to end her life on which she was referred to Gynae Department where the history given by her has been noted by the doctor on duty.

➢ That in the mean time the representatives from the NGO and Delhi Commission for Women reached the hospital. ➢ That the local police came into action and the statement of the prosecutrix was recorded pursuant to which the present FIR State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 92 was registered.

➢ That while the prosecutrix was still admitted in the hospital, her elder sister Sapna made a call to the accused Harish @ Chirag and introduced herself as a friend of prosecutrix 'S' and asked him to come to the hospital since the prosecutrix 'S' was hospitalized.

➢ That at about 5:30 PM the accused Harish @ Chirag came to the hospital on which he has apprehended by the police and during his personal search two mobile phones were recovered from his possession which were also seized.

➢ That the accused made a disclosure statement to the the police pursuant to which he led them to the premises No. I­5/59, Sector 16, Rohini where the accused pointed out the room where he had committed rape upon the prosecutrix. ➢ That caretaker of the building namely Pramod was present there who identified the accused Harish @ Chirag as the boy who had come to the premises and introduced himself as Kapil and took room no. 105 on rent on two occasions and had brought one girl (same girl) to the room on both occasions. ➢ That the mattress lying in the room was also seized in the presence of Pramod.

➢ That on 27.1.2012 the prosecutrix 'P' was produced before the Ld. MM where her statement was recorded under Section 164 State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 93 Cr.P.C.

(110) The medical evidence on record is compatible with the history given by the prosecutrix and confirms the allegations made by the prosecutrix / victim of ingestion of unknown substance and of sexual abuse (hymen being torn-old tear). Further, the forensic evidence on record establishes the presence of semen stains on the mattress got recovered from the room of premises No. I­5/95, Sector­16, Rohini which room was pointed out to the police by the accused himself. The forensic evidence is also compatible to the testimony of the prosecutrix that the accused might have filmed her and was blackmailing and sexually assaulting her pursuant to the same. The presence of the pornographic material from the mobile phone of the accused is strong pointer to the guilt of the accused (The possibility of the accused indulging into a similar blackmail with other women cannot be ruled out or else there is no reason why he would have prepared and retained this video film in his mobile). (111) The fact that the accused Harish @ Chirag pointed out the building bearing No. I­5/95, Sector 16, Rohini where he had taken the prosecutrix and the room where he had committed rape upon the prosecutrix (from where the mattress was lifted), also incriminates the accused. There is no reason to disbelieve that the prosecutrix who had been sexually exploited by the accused by drugging her and out of frustration attempted to end her life. The State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 94 pornographic pictures retrieved from the mobile phone of the accused speak the volumes of the conduct and behaviour of the accused or else there is no reason to retaining the pornographic film on the mobile phone relating to some other girl and confirms the version given by the prosecutrix.

(112) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.

(113) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLCs, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 95 circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.

(114) This being the background, I hold that accused Harish @ Chirag guilty of having surreptitiously administering drug the prosecutrix 'S' on as many as two to three occasions and of having abducted her and taken her to a room in premises No. I­5/95, Sector­16, Rohini where he confined her and raped her (Section 366, 376 r/w Section 328 Indian Penal Code). He is also held guilty of having criminally intimidated and threatened the prosecutrix 'S' to expose her obscene video clipping prepared by him (at the time of first incident) to her friends and to put the same on Internet (Section 506 Indian Penal Code) after which he continued to sexually exploit her as a result of which and being fed up the prosecutrix 'S' even attempted suicide, for which the accused is held guilty and convicted for the offence under Section 366, 376 read with 328 & 506 Indian Penal Code.

(115) Be listed for arguments on sentence on 8.2.2013.

Announced in the open Court                                  (Dr. KAMINI LAU)
Dated: 05.02.2013                                          ASJ (NW)­II: ROHINI




State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri               Page No.  96 
    IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
     JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Sessions Case No. 25/2012
Unique Case ID: 02404R0062192012

State                        Vs.            Harish @ Chirag
                                            S/o Kewal Krishan Panwar
                                            R/o R­300, Mangolpuri, Delhi. 
                                            (Convicted)

FIR No.                      :              530/2011
Police Station:                             Sultanpuri
Under Section:                              328/506/376/366 Indian Penal Code


Date of conviction:                         05.02.2013

Arguments concluded on:                     8.2.2013/ 12.2.2013

Date of sentence:                           14.2.2013



APPEARANCE:

Present:      Sh. Sanjay Kumar, Addl. Public Prosecutor for the State.

Convict Harish @ Chirag in judicial custody with Sh. Deepankar Dutt Sharma Advocate.

ORDER ON SENTENCE:

The present case is a saga of enticement, seduction, drugging, sexual abuse, treachery and betrayal. The pattern is the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 97 same as is being recently noticed in many cases i.e. first entice a young woman into a friendly relationship, won her confidence, take the unsuspecting women on a date, then surreptitiously administered her the drug, rape her, film her / made her video clippings, intimidate and blackmail her into submitting to his designs for the fear of social shame and ostracization.

The prosecutrix 'S' a young girl aged about 20­21 years doing her graduation from a leading college of Delhi University. She allegedly came into contact of the accused Harish @ Chirag a young boy when her mobile required some repairs and he first contacted her in her college on the pretext of handing over to her the mobile phone which she had given for repair. He thereafter maintained contacts with her and also interacted with her not only on the mobile phone but also on the Facebook / Internet. Lured by his sweet talks, when the accused contacted the young prosecutrix in her college on 22.10.2011 on the pretext of seeing her and offered her a cold drink, the unsuspecting prosecutrix consumed the same but soon thereafter she started feeling sick. On the insistence of the accused to see a doctor she accompanied him but instead the accused betrayed the trust the prosecutrix had reposed in him and took her to a house i.e. premises No. I­5/95, Sector­16, Rohini where he made sexual relations with the prosecutrix who was not in a position to resist him (allegedly being under the influence of a substance which had been State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 98 administered to her surreptitiously in her cold drink). After the incident of sexual assault the accused then showed to the prosecutrix a pornographic video clipping which he claimed he had prepared of her in a nude condition while he was committed the series of sexual acts with her. He also threatened the prosecutrix not to disclose about this incident to anybody or else he would show / transfer this clipping to her friends and put the same on Facebook / Internet and expose her. This was the start of all troubles and harassment which the prosecutrix faced in the hands of the accused thereafter for the next almost one month (precisely three weeks). The accused made repeated contacts on mobile and Facebook with the prosecutrix and also compelled her to maintain such contacts with him under the threat of exposing her and transferring her pornographic video to his friends and by putting the same on Facebook. This was not the end for there were multiple instances of sexual assault by the accused thereafter on the prosecutrix under the same threat. On 14.11.2011 again the accused took the prosecutrix to the same house (where he had earlier taken her and allegedly made her video film). There again he committed rape upon her after giving her some drink. Two days later i.e. on 16.11.2011 he called up the prosecutrix and compelled her to meet him at B­Block, Mangolpuri and when the prosecutrix reached there she found the accused sitting in a black coloured car along with his friends. There the accused again made State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 99 the prosecutrix to consume some drink after which the prosecutrix lost her consciousness and is therefore unable to tell what transpired thereafter (whether she was sexually assaulted or not) and according to the prosecutrix she was told by her mother that she was lying unconscious outside the house and was carried inside. The prosecutrix remained in a drowsy / semi conscious state and according to her she kept on sleeping till the next day. On the intervening night of 18­19.11.2011 the prosecutrix being extremely depressed at the repeated sexual harassment by the accused she called up the accused and asked him to marry her. Perhaps feeling that after what had happened she was left which little choice when she asked the accused to stop calling her and harassing her and threatened to end her life (agar tumne phone karna ya yeh sab karna band nai kiya toh mein mar jaungi) to which the accused was least relenting perhaps not realizing the extent of mental trauma which the prosecutrix was facing and what she could do. The prosecutrix made multiple calls to the accused some of which were received by him.

The accused not only refused to marry her but also told her that she could do whatever she want and it would not make any difference to him.

The prosecutrix then being totally distorted at the harassment caused to her, decided to end her life and consumed the pesticide which was kept in the house (which her mother used to State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 100 sprinkle on the plants) after which she started vomiting and her condition started deteriorating and she fell in the bathroom. Luckily her family noticed her condition and she informed them that she had consumed some poisonous substance on which she was immediately rushed to Sanjay Gandhi Memorial Hospital at 4:30 AM by her family (sister) where she was provided timely medical assistance. After being admitted to hospital on 19.11.2011 at 4:30 AM she was unfit for statement till the next day i.e. 20.11.2011 and it was only 10:30 AM that she was declared fit for statement when she disclosed to the doctor about the intimidation, threats, blackmail and harassment which the accused had been inflicting upon her. Sister of the prosecutrix after taking the police into confidence called the accused on his telephone number so given by the prosecutrix. By pretending to be the friend of the prosecutrix she informed him about the condition of the prosecutrix and called him to the hospital (this was done under a strategy to corner the accused because nobody else knew him). Perhaps feeling apprehensive of being exposed and also apprehending some problem the accused rushed to the hospital where the prosecutrix was admitted and on the pointing out of the prosecutrix he was apprehended and arrested by the police. Two mobile phone were recovered from his personal search one of which was found to contain some pornographic material. I may also mention that during this period the local NGO working in the area State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 101 and the Delhi Commission for Women were informed of this incident and on account of the intervention of these social groups swift police action was initiated. After his arrest the accused disclosed to the police the house where he had taken the prosecutrix from where the police recovered the mattress which was placed in room on the date of last incident. After completion of investigations charge­sheet was filed against the accused.

The prosecutrix 'S' has appeared in the Court and made specific allegations against the accused and has stood by her version. On the basis of the testimonies of the various prosecution witnesses particularly the prosecutrix 'S', her sister Reshma; the owner of the house namely Alok Kumar and his employee Pramod and also on the basis of the circumstantial, medical and forensic evidence on record this court vide Judgment dated 5.2.2013 held that it stood established that at the time of incident the prosecutrix was aged about 20­21 years and was doing her graduation BA (Pass) from SPM college, Delhi University being a student of final year; that the mobile phone of the prosecutrix become defective on which she had gone to the shop of one Deepak Communication near her house from Sultanpuri for repair and the shopkeeper Deepak told her that after rectification, he would send the mobile phone at her house; that on 16.10.2011 the accused Harish @ Chirag was sent by Deepak to SPM college alongwith the mobile of the prosecutrix and made calls to the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 102 prosecutrix on her number; that when the prosecutrix came out, Accused Harish @ Chirag gave mobile to the prosecutrix and and offered her a cold drink which she took; that on 22.10.2011 the accused Harish @ Chirag made call on the mobile of the prosecutrix asking her to meet him and when the prosecutrix came outside, he offered her a cold drink and while she was still consuming the cold drink, she started feeling nauseated; that the accused Harish, on the pretext of taking her to a doctor, took her to a room in premises No.I­5/95, Sector­16, Rohini and asked her to sit down there and told her that he would go and check out on the doctor and come back after sometime; that after sometime the accused again came back in the room where he committed rape upon her and the prosecutrix was not able to resist him (on account of her physical condition being drugged); that the accused prepared a video clipping of the acts done by him and showed the same to the prosecutrix 'S' and threatened her that if she informed about the incident to anybody, he would show this clipping to her friends and also put the same on Facebook / Internet; that feeling scared and intimidated the prosecutrix did not disclose about this incident to anybody and accused continued to make telephonic calls to her and threatened her that she should meet him and communicate with him on telephone.

It has also been established that in the meanwhile the prosecutrix got a job at Pizza Hut, Paschim Vihar and started State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 103 working there; that on 14.11.11 it was a Monday when accused Harish @ Chirag again made a call to the prosecutrix and asked her to come at Udyog Nagar Metro Station and compelled her to take a leave from her job; that thereafter the accused took her to the same house at Rohini and again committed rape upon her after which the prosecutrix had excessive bleeding and in the evening, accused left her at B­Block, Mangolpuri; that on 16.11.11 in the evening the accused gave telephonic calls to the prosecutrix and asked her to come at B­block, Mangolpuri where she went and found him present there along with his two other friends; that the accused made the prosecutrix to sit in a vehicle and also compelled her to consume the same drink which they (accused and his friends) were taking and after consuming the said drink, the prosecutrix lost her senses and did not recollect what had happened with her; that the prosecutrix remained semi­conscious till the next day and it was her mother who told her that she was found lying near her house; that the mother and elder sisters of the prosecutrix inquired from her about what had happened but she did not disclose anything to her.

This court also observed that it stands established that being fed up with the harassment caused by the accused, on the intervening night of 18­19.11.11 at about 2:30 AM, the prosecutrix called up the accused and told him that he should stop harassing her or else she would kill herself (agar tumne phone karna ya yeh sab State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 104 karna band nai kiya toh mein mar jaungi) on which accused told her that she could do whatever, she wanted and it would not make any difference to him; that soon thereafter she was fed up with the frequent harassment by the accused (baar baar pareshan karta tha) the prosecutrix consumed the poison i.e. insecticide which her mother used to sprinkle on trees in the park; that after she consumed the insecticide / pesticide, she felt dizzy and started vomiting on which she went to the toilet where she fell down; that family of the prosecutrix noticed her condition and immediately rushed her to Sanjay Gandhi Hospital on 19.11.2011 at 4:30 AM where she was admitted with the alleged history of ingestion of unknown substance; that the prosecutrix remained unfit for statement till 7:15 PM and it was only on the next day morning i.e. on 20.11.2011 at about 10:30 AM she was declared fit for statement by the doctors when she disclosed to the doctors and her sister the cause why she chose to end her life on which she was referred to Gynae Department where the history given by her has been noted by the doctor on duty; that in the mean time the representatives from the NGO and Delhi Commission for Women also reached the hospital; that the local police came into action and the statement of the prosecutrix was recorded pursuant to which the present FIR was registered; that while the prosecutrix was still admitted in the hospital, her elder sister Sapna made a call to the accused Harish @ Chirag by pretending herself to be a friend of State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 105 prosecutrix 'S' asked him to come to the hospital since the prosecutrix 'S' was hospitalized; that at about 5:30 PM the accused Harish @ Chirag came to the hospital on which he has apprehended by the police and during his personal search two mobile phones were recovered from his possession which were also seized; that the accused made a disclosure statement to the the police pursuant to which he led them to the premises No. I­5/59, Sector 16, Rohini where the accused pointed out the room where he had committed rape upon the prosecutrix; that caretaker of the building namely Pramod was present there who identified the accused Harish @ Chirag as the boy who had come to the premises and introduced himself as Kapil and took room no. 105 on rent on two occasions when he had brought one girl (same girl) to the room on both occasions; that the mattress lying in the room was also seized in the presence of Pramod; that on 27.1.2012 the prosecutrix 'P' was produced before the Ld. MM where her statement was recorded under Section 164 Cr.P.C.

This Court has further observed that the medical evidence on record was compatible with the history given by the prosecutrix and confirms the allegations made by the prosecutrix / victim of ingestion of unknown substance and of sexual abuse (hymen being torn­old tear). Further, the forensic evidence on record established the presence of semen stains on the mattress got recovered from the State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 106 room of premises No. I­5/95, Sector­16, Rohini which room was pointed out to the police by the accused himself. The forensic evidence was also compatible to the case of the prosecutrix that there was a possibility that the accused might have filmed her and was blackmailing and sexually assaulting her pursuant to the same. The presence of the pornographic material from the mobile phone of the accused is strong pointer to the guilt of the accused (The possibility of the accused indulging into a similar blackmail with other women cannot be ruled out or else there is no reason why he would have prepared and retained this video film in his mobile).

In this background the accused Harish @ Chirag had been held guilty of the offence under Section 366, 376 read with 328 & 506 Indian Penal Code for which he has been accordingly convicted.

Heard arguments on the point of sentence. The convict Harish @ Chirag is stated to be a young boy of 26 years having a family comprising of aged grandparents, father, mother, one elder brother and one sister. Ld. Counsel for the convict has argued that the elder brother of the accused is residing separately and the sister has already been married. It is submitted that the grandparents of the convict are suffering from old age ailments and the father of the convict is a heart patient having undergone surgery in the year 2009. He has also pointed out that the mother of the convict is also under State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 107 treatment. He has argued that the convict has done Air ticketing Course and is the only helping hand of his family members. It is submitted that the convict has already remained in judicial custody for about 16 months and any harsh view would be detrimental to the young convict. He prays that a lenient view be taken against the convict.

On the other hand the Ld. Addl. Public Prosecutor has prayed for a stern view against the convict keeping in view the allegations involved and also in view of the fact that the convict had exploited the young prosecutrix over a period of time under the influence of drugs.

I have considered the submissions made before me. Though I want to impose the maximum punishment upon the convict (Life) for what he had done. Administration of drugs to unsuspecting victims has proved fatal to many and anything could have happened. However, keeping in view the young age and observing that perhaps there are chances of his reformation, I award the following sentences to the convict Harish @ Chirag:

1. For the offence under Section 366 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three (3) years and fine for a sum of Rs.5,000/­. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One month.

State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 108

2. For the offence under Section 376 read with Section 328 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine for a sum of Rs.10,000/­. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.

3. For the offence under Section 506 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Two Years.

All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him as per rules.

The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

One copy of the judgment and order on sentence be given to the convict free of costs and one copy of order on sentence be attached with his jail warrant.

State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 109

Before I end, I deem it necessary to place on record the fact that while dealing with the case in hand this Court has observed that recently there has been an increase in number of cases where women have been surreptitiously administered drugs and sexually exploited thereafter. Interestingly the pattern of crime in all such cases has been observed to be almost similar. Sexual assault of people under the influence of alcohol or drugs is not new, and sexual assaults of people who have voluntarily consumed alcohol or drugs is common. It is also not new to slip something into somebody's drink to incapacitate them. Law enforcement agents are seeing a pattern of women being surreptitiously drugged for the purpose of rape, particularly through use of odorless, tasteless incapacitating drugs that produce anterograde amnesia.

It is a matter of common knowledge that a large number of drugs are freely available in the market which are used to assist in execution of Drug Facilitated Sexual Assault (DFSA). These are called Date Rape Drugs or also Predator Drug, which is a drug that can be used to assist in the execution of Drug Facilitated Sexual Assault (DFSA) because of the effects of these drugs, victims may be physically helpless, unable to refuse sex, and unable to remember what happened. These drugs often have no color, odor or taste and are easily added to flavored drinks without the victim's knowledge. GHB (gamma hydroxybutyric acid), Ketamine and State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 110 Benzodiazepines (Flunitrazepam, Rohypnol or Roofies, Rope and Roaches) are the most common date­rape drugs.

This issue relating to free availability and sale of these Date Rape Drugs is a matter of national concern being an important subject connected with women health and safety. It is a known fact that detection of these drugs (Date Rape Drugs) is a difficult issue and unless a victim of DFSA seeks medical care within 72 hours of the assault, it is less likely that the tests would successfully detect the presence of these drugs, since most of them become metabolized and eliminated from the body, resulting into a negative report.

Whenever a victim makes allegations of sexual assault after being drugged the samples are required to be collected for detection and it is necessary for the Law Enforcement Agencies to inquire from the victim the effects of the drug felt by her after its administration which is required to be done for making it possible for the laboratories not only to conduct a broad drug screen but also a specific drug screening (knowing the drug's effects and which drug to test for) which unfortunately is not being done. It is also obligated upon the Law Enforcement Agencies in case of allegation by victims of sexual assault of being surreptitiously administered some drug to get the drug testing done as part of the Rape Kit (collection of blood, urine, sputum and hair samples) which again is not being done. State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 111

Unfortunately, we in our Criminal Justice System are not as updated as we should be with all that is happening in the market and I regret to observe that there is an urgent requirement of sensitizing the Investigating Officers and the Prosecutors on the aspects relating to Date Rape Drugs. There is also no awareness / sensitization of the Hospital Staff to make the testing of the Date Rape Drugs a compulsory part of the Rape Kit while collecting exhibits (in case of such allegations by the victim) and to make the matters worse even our Forensic Laboratories are yet to be suitably equipped with techniques and personnel's possessing the expertise for conducting specific tests for establishing the presence of the Date Rape Drugs (in cases relating to sexual assault).

I may further add that the issue does not end here and the entire concept of Date Rape Drugs is fraught with legal problems. For victims it can be extremely hard for them to know if they consented or not or were drugged deliberately or voluntarily. For prosecutors there is a difficulty in proving the intent or lack of consent where the rape or assault happened without witnesses (particularly in a private home) and where both parties were consuming drugs or alcohol since neither was able to legally give consent. Independent proof of forced consumption of drugs or forced sexual activity is seldom available. It is thus equally necessary for those dealing with the issues on the judicial side to be informed, State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri Page No. 112 updated and sensitized with the issues involved and it is this which makes me feel that perhaps we still have a long way to go.

Needless to say, an information / awareness campaign on a large scale is the need of the hour. An informed debate with regard to the sensitization of general public about the Date Rape Drugs and so also the Law Enforcement, Prosecution, Hospital and the Forensic Agencies is necessitated. This I may observe is required to be done so that the guilty does not go scott free and justice is done to the victim.

At this stage, there is a request on behalf of Advocate for Delhi Commission for Women Ms. Vandana Chauhan for supply of a copy of this order. She submits that the Delhi Commission for Women would take up this issue with the competent authorities including the Commissioner of Police and GNCT of Delhi. In the interest of Justice, I direct that a copy of this order be given to Ms. Vandana Chauhan Advocate as requested.

File be consigned to Record Room.

Announced in the open Court                                (Dr. KAMINI LAU)
Dated: 14.02.2013                                          ASJ (NW)­II: ROHINI




State Vs. Harish @ Chirag, FIR No. 530/11, PS Sultanpuri              Page No.  113