Delhi District Court
State vs . 1. Sandeep on 8 February, 2016
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FIR No. 141/13
PS - Bhalaswa Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 278/13
Unique ID No. : 02404R0249632017
State Vs. 1. Sandeep
S/o Sh. Balbir
R/o Village Hasan Alipur,
PS - Nagina,
District - Bijnor, U.P.
2. Gaurav
S/o Sh. Dheeraj
R/o Village - Nangli,
PS - Dhampur,
District - Bijnor, U.P.
FIR No. : 141/13
Police Station : Bhalaswa Dairy
Under Sections : 313/323/342/366/376/506/120B IPC
Date of committal to session Court : 02/09/2013
Date on which judgment reserved : 06/02/2016
Date on which judgment announced : 08/02/2016
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FIR No. 141/13
PS - Bhalaswa Dairy
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 21/05/2013, PSI Sangeeta was present in PS Bhalswa Dairy, and Prosecutrix (name withheld being a case u/s 376 IPC) D/o Shulender Singh R/o Village Saleem Pur, PS Nahtor, Tehsil Dhampur, District Bijnor, U.P. came to the Police Station and made the statement which is to the effect that, she is the permanent resident of the above address and stays at the house itself. She knows Sandeep S/o Balbir, R/o Village Hasan Pur, PS Nagina, District Bijnor (U.P.) for the last two years and is in talk with Sandeep for the last one year. About one year ago Sandeep asked her to perform the marriage and by falsely inducing her on the pretext of performing marriage Sandeep brought her to Mukundpur, Delhi and Sandeep kept her at Mukundpur by taking a room on rent and he kept on committing 'galat kaam' (balatkar) every day on the false pretext of marriage due to which she became pregnant, when she told about her pregnancy to Sandeep and asked him to perform the marriage on which Sandeep refused (Aana 2 of 47 3 FIR No. 141/13 PS - Bhalaswa Dairy Kani Karne Laga) and Sandeep asked her to get abortion done but she refused to get done her abortion. Thereafter, Sandeep by inducing her left her at her home and said that he will take her after some days. She kept on waiting and thereafter, she came to Mukundpur to talk about marriage with Sandeep, where Sandeep and his brotherinlaw (jija) Gaurav gave beatings to her after closing her in a room. Gaurav caught hold of her hand and Sandeep gave her beatings with legs and fists, when she started crying on which Sandeep and Gaurav threatened her, if she told anyone about all this incident then they will kill her and Sandeep by falsely inducing her got done her abortion from Balaji Hospital and Sandeep after threatening and intimidating her, left her at her house. Sandeep has committed 'galat kaam' (rape) with her on the false pretext of marriage and he alongwith his brotherinlaw (jija) Gaurav had beaten her up and got done her abortion and have also threatened to kill. (Mai Pata Uprokat Ki Sathai Niwasi Hoon. Wa Ghar Par Hi Rehti Hoon. Mai Sandeep S/o Balveer R/o Gaon - Hasan Pur, Thana Nagina, Zilla Bijnor (U.P.) Ko Pichle Do Saal Se Janati Hoon Va Pichle Ek Saal Se Sandeep Ke Saath Meri Baatcheet Hai. Sandeep Ne Qarib Ek Saal Pehle Mujhe Shadi Karne Ko Kaha Aur Mere Saath Shadi Karne Ko 3 of 47 4 FIR No. 141/13 PS - Bhalaswa Dairy Kehkar Sandeep Mujhe BehlaFuslakar Mukund Pur, Delhi, Le Aaya Aur Mukund Pur Mei Kiraye Par Kamra Lekar Sandeep Ne Mujhe Rakha Wa Mere Saath (Shadi Ka Jhansa Dekar) Pratidin Galat Kaam (Balatkar) Karta Raha. Jo Mai Pregnant Ho Gayi. Jab Maine Ye Baat Sandeep Ko Batai Aur Shadi Karne Ko Kaha To Sandeep Aana Kani Karne Laga Aur Sandeep Ne Mujhe Mera Abortion Karne Babat Kaha. Maine Apna Abortion Karane Se Mana Kar Diya. Sandeep Mujhe Behlafuslakar Mere Ghar Par Chor Aaya Aur Kaha Ki Kuch Din Baad Aa Kar Tujhe Le Jauga. Jo Intezaar Karne Ke Baad Mai Sandeep Se Shaadi Ki Baat Karne Mukund Pur Aayi To Sandeep Wa Uske Jija Gaurav Ne Mujhe Kamre Mei Band Karke Meri Maar Pitai Ki. Gaurav Ne Mere Hath Pakad Liye Wa Sandeep Ne Mujhe Laat Ghuson Se Peeta. Jab Mai Chillane Lagi To Sandeep Wa Gaurav Ne Mujhe Dhamki Di Ki Yadi Tune Is Bare Mei Kisi Ko Batalaya Tumhe Jaan Se Maar Denge Aur Sandeep Mujhe BehlaFuslakar Mera Abortion Balaji Hospital Se Karwa Diya. Wa Dara Dhamka Kar Sandeep Mujhe Mere Ghar Chor Aaya. Jo Sandeep Ne Mujhe Shadi Ka Jhansa Dekar Mere Saath Galat Kaam (Rape) Kiya Hai Wa Apne Jija Gaurav Ke Saath Milkar Meri Maar Pitai Wa Mera Abortion Karvaya Hai. Wa Mujhe Jaan Se 4 of 47 5 FIR No. 141/13 PS - Bhalaswa Dairy Maarne Ki Dhamki Di Hai). Legal action be taken against Sandeep and Gaurav. She has heard her statement and is correct. Medical examination of the Prosecutrix was got conducted from the BJRM Hospital. Counseling of the Prosecutrix was also got done from the NGO. During medical examination Prosecutrix refused for her internal examination. On the basis of the statement, from the inspection of the MLC, finding that offences u/s 313/323/342/366/376//506/120B IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by PSI Sangeeta. During the course of investigation site plan was prepared at the instance of the Prosecutrix. Statement of the Prosecutrix u/s 164 Cr.P.C was got recorded. Accused Gaurav and Sandeep were arrested and their medical examinations were got conducted. The documents related to the abortion from Balaji Charitable Hospital, Mukund Pur, Delhi, were obtained. Specimen signature of accused Sandeep were obtained before the Court on 31/07/2013 and were sent to the FSL to verify the signature of accused Sandeep in the documents related to termination of the pregnancy of the Prosecutrix in which accused Sandeep has signed as a husband.
5 of 47 6 FIR No. 141/13 PS - Bhalaswa Dairy Upon completion of the necessary further investigation challan for the offences u/s 313/323/342/366/376/506/120B IPC was prepared against accused Sandeep and Gaurav and was sent to the court for trial.
2. Since the offences under sections 313/366/376 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 376/313/342/323/34 IPC and u/s 506/34 IPC against accused Sandeep and a case u/s 342/323/34 IPC and u/s 506/34 IPC against accused Gaurav were made out. Charges were framed accordingly, which were read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has produced and 6 of 47 7 FIR No. 141/13 PS - Bhalaswa Dairy examined 16 witnesses. PW1 - Prosecutrix (name withheld), PW2 - ASI Narender Kumar, PW3 - HC Sandeep Kumar, PW4 - Dr. Mohit Tiwari, PW5 - Constable Manoj Kumar, PW6 - W/ASI Sarla, PW7 - Dr. R.S. Mishra, CMO, BJRM Hospital, Delhi, PW8 - Dr. R. Kappu, Medical Officer, BJRM Hospital, Delhi, PW9 - Constable Mohit, PW10
- Constable Gurdeep Singh, PW11 - Smt. Bala Devi, PW12 - Dr. Jiju P.V. Senior Scientific Officer (Documents), FSL Rohini, Delhi, PW13 - Sh. Manish Khurana, JSCC/ASCJ/GJ, North Rohini, Delhi, PW14 - Sh. Devender Kumar Kaushik, PW15 - Constable Narender and PW16 - W/SI Sangeeta.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Prosecutrix is the victim who deposed some facts regarding the incident and marked her complaint made to the police Mark PW1/PX and proved her statement recorded u/s 164 Cr.P.C. Ex. PW1/A. She resiled from her previous statement and was also cross examined by the Learned Addl. PP for the State.
7 of 47 8 FIR No. 141/13 PS - Bhalaswa Dairy PW2 - ASI Narender Kumar is the Duty Officer, who deposed that on 21/05/2013, he was posted as Duty Officer in PS Bhalswa Dairy and was on duty from 4:00 p.m. to 12:00 Midnight. On that day, at about 4:00 p.m., W/SI Sangeeta handed over a Tehrir to him on the basis of which he got recorded FIR No. 141/13, u/s 313/323/342/366/ 376/506/120B IPC through the Computer Operator on the computer installed in PS. He obtained a print out of the FIR. This print out has been obtained on the basis of information which is used in the routine manner for the purpose of feeding the similar category. The said computer was under his lawful control. Nothing adverse took place during the period as to cause any error regarding the information feeded in the computer. The copy of FIR is Ex. PW2/A bearing his signature at Point 'A' (OSR). He handed over the copy of FIR to Constable Ajay for handing over the same to IO W/SI Sangeeta. He also issued a Certificate u/s 65B of The Evidence Act which is Ex. PW2/B bearing his signature at Point 'A'. He made endorsement on the rukka and the same is Ex. PW2/C, bearing his signature at point 'A'.
PW3 - HC Sandeep Kumar is the MHC(M), who deposed 8 of 47 9 FIR No. 141/13 PS - Bhalaswa Dairy that on 07/08/2013, he was posted as MHC(M) in PS Bhalswa Dairy. On that day, W/SI Sangeeta handed over the original documents reflecting the signature of accused Sandeep Kumar alongwith his specimen signatures which were handed over by him to Constable Manoj for depositing the same in FSL Rohini vide RC No. 96/21/13. After depositing the documents, Constable Manoj gave the acknowledgment to him. He has brought Register No. 21. The copy of RC No. 96/21/13 is Ex. PW3/A and copy of acknowledgment is Ex. PW3/B (OSR).
PW4 - Dr. Mohit Tiwari, who deposed that on 21/05/2013, he was posted as CMO at BJRM Hospital. On that day, Prosecutrix (name withheld) D/o Sh. Shulendra Singh, Aged 21 Years, Female was brought to the Hospital by Police for her medical examination with the alleged history of sexual assault. She was initially examined by Dr. Rahul Arya, JR under his supervision and then Prosecutrix (name withheld) was referred to SR Gynae for further examination. Dr. Rahul Arya, JR prepared the MLC from Point 'X' to 'X1' under his supervision which is Ex. PW4/A bearing the signature of Dr. Rahul Arya at Point 'A' and bearing his (PW4) signature as CMO at Point 'B'. On 11/06/2014, 9 of 47 10 FIR No. 141/13 PS - Bhalaswa Dairy one person Sandeep S/o Balveer Singh, Aged 22 Years, Male, was brought to the Hospital by Police for his medical examination. He was initially examined by Dr. Amit Chaudhary, JR under his supervision and then Sandeep was referred to SR (Surgery) for the potency test. Dr. Amit Chaudhary, JR prepared the MLC from Point 'X' to 'X1' under his supervision which is Ex. PW4/B bearing the signature of Dr. Amit Chaudhary at Point 'A' and bearing his (PW4) signature as CMO at Point 'B'.
PW5 - Constable Manoj Kumar, who deposed that on 07.08.2013 he was posted as Constable at PS Bhalswa Dairy. On that day on the instructions of IO SI Sangeeta, he obtained original documents pertaining to specimen signatures of Sandeep and questioned documents and FSL form from MHC(M) and took the same to FSL Rohini. He deposited the above documents in FSL vide RC No. 96/21/13 and obtained the receipt from FSL. Then he returned the same to PS and handed over the copy of acknowledgment receipt to MHC(M).
PW6 - W/ASI Sarla, who deposed that on 21.05.2013 she 10 of 47 11 FIR No. 141/13 PS - Bhalaswa Dairy was posted as HC at PS Sbhalswa (Bhalswa) Dairy. On that day she joined the investigation of this case with IO SI Sangeeta. She alongwith IO took Prosecutrix (name withheld) to BJRM Hospital for conducting her medical examination. After the preliminary medical examination in casualty, Prosecutrix was taken to gynae department. However, Prosecutrix refused for her gyanaecological examination, so her internal examination could not be conducted. Thereafter she alongwith IO and Prosecutrix returned to PS. PW7 - Dr. R.S. Mishra, CMO, BJRM Hospital, Delhi, who deposed that he has been deputed by the MS of the hospital to depose on behalf of Dr. Vaibhav Gulati, Dr. Divya Kansal and Dr. Sabbir, SR, Surgery who has since left the services of Hospital and their present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Vaibhav Gulati and Dr. Divya Kansal as he has seen them signing and writing during the official course of the duties. As per the MLC No. 59800, on 22.05.2013 patient Gaurav S/o Dheeraj Singh, Age 22 Years, Male was produced in the hospital by police whose preliminary examination was conducted by Dr. Divya Kansal, JR under 11 of 47 12 FIR No. 141/13 PS - Bhalaswa Dairy the supervision of Dr. Vaibhav Gulati vide MLC Ex. PW7/A bearing the signature of Dr. Divya Kansal at PointA and the signature of Dr. Vaibhav Gulati at PointB. Thereafter, Dr. Divya Kansal referred the patient to SR (Surgery) for further management. Dr. Sabbir, SR, Surgery medically examined the patient Gaurav and opined that there is nothing to suggest that he is not able to perform the sexual activity. The examination of the patient Gaurav by Dr. Sabbir in the encircled portion 'X' to 'X1' on the MLC Ex.PW7/A bearing the signatures of Dr. Sabbir at point 'C'.
PW8 - Dr. R. Kappu, Medical Officer, BJRM Hospital, Delhi, who deposed that she has been deputed by the MS of the hospital to depose on behalf of Dr. Kanika Sachdeva, SR (Gynae) who has since left the services of Hospital and her present whereabouts are not known. She is acquainted with the handwriting and signatures of Dr. Kanika Sachdeva, as she has seen her signing and writing during the official course of the duties. As per the MLC No. 59904, on 21.05.2013 patient/ Prosecutrix (name withheld) D/o Sh. Shulendra Singh, Age 21 Years, Female was produced in the hospital by police whose gynecological 12 of 47 13 FIR No. 141/13 PS - Bhalaswa Dairy examination was conducted by Dr. Kanika Sachdeva, and the said examination is from Portion 'Y to Y1' on the MLC is already Ex. PW 4/A, bearing the signature of Dr. Kanika Sachdeva, at point C. The samples were not collected by Dr. Kanika Sachdeva as the alleged last intercourse was four months back.
PW9 - Constable Mohit, who deposed that on 21.05.2013 he was posted as Constable at PS Bhalswa Dairy. On that day he alongwith IO W/SI Sangita, W/HC Sarla and with Prosecutrix Jyoti went to BJRM Hospital where the medical examination of the Prosecutrix was got conducted. IO recorded the statement of Prosecutrix (name withheld) and prepared rukka. On the instructions of IO he took the rukka to PS Bhalswa Dairy and got registered the FIR. Then he went to the spot i.e H.No. 228/2, Gali No. 18, PartII, Mukundpur, Delhi, where IO met him. He handed over the copy of FIR and original rukka to IO. His statement was recorded by the IO.
PW10 - Constable Gurdeep Singh, who deposed that on 21.05.2013, he was posted at (as) Constable at PS Bhalswa Dairy. On that 13 of 47 14 FIR No. 141/13 PS - Bhalaswa Dairy day he joined the investigation of this case with SI Sangeeta. On the instructions of IO, he reached khasra no.228/2, Gali No.18, PartII, Mukundpur, where IO SI Sangeeta and complainant (name withheld) met him. IO SI Sangeeta made inquiry from complainant (name withheld) about to the house of accused Sandeep and Gaurav, on which Prosecutrix pointed towards one house. On the instructions of IO, she knocked the door of that house. One person opened the door and that person was identified by Prosecutrix Poonam as Gaurav. IO interrogated accused Gaurav and arrested him in this case by arrest memo already Ex. PW1/C bearing his signatures at point B. His pesonal (personal) search was conducted vide memo EX. PW1/D bearing his signatures at point B. Accused Gaurav made disclosure statement which was recorded by IO same is Ex. PW10/A bearing his signatures at point A. Thereafter, accused Gaurav was taken to BJRM hospital by him and Constable Arun (Constable Arun was called by IO). After the medical examination of accused Gaurav he was brought to PS Jahangirpuri. Accused Gaurav is presnet (present) in the court and correctly identified.
PW11 - Smt. Bala Devi is the mother of the Prosecutrix, 14 of 47 15 FIR No. 141/13 PS - Bhalaswa Dairy who deposed some facts regarding the case. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW12 - Dr. Jiju P.V. Senior Scientific Officer (Documents), FSL Rohini, Delhi, who deposed that on 07.08.2013 three sheets and one volume were received in FSL alongwith memo no. 2763/SHO/Bhalswa Dairy, Delhi in connection with case FIR No. 141/13, u/s 313/323/342/366/376/506/120B IPC, PS Bhalswa Dairy in open condition. The questioned writings/signatures were marked Q1 & Q2 and the specimen signatures of Mr. Sandeep Kumar were marked S1 to S3. On thorough examination with various scientific instruments and different magnifying glasses etc. under different lighting conditions he has reached the opinion that similarities were observed in formation of sum of the characters and strokes such as 'd', 'p', 'S' and 'K'. However, all the features as occurring in the questioned writings/signatures could not be similarly accounted for from the available specimen writings/ signatures. As such it has not been possible to express a definite opinion on the red enclosed writing/signatures stamped and marked Q1 & Q2 in 15 of 47 16 FIR No. 141/13 PS - Bhalaswa Dairy comparison with writing/signatures similarly stamped and marked S1 to S3 in the absence of admitted genuine writings/signatures. His detailed report running in two pages is Ex. PW12/A bearing his signature on each page. The questioned documents are Ex. PW12/B (colly) (running into eight pages) and the specimen sheets are Ex. PW12/C (colly) (running into three pages).
PW13 - Sh. Manish Khurana, JSCC/ASCJ/GJ, North Rohini, Delhi, who deposed that on 22.05.2013 he was posted as MM in Rohini Court. On that day an application for recording statement u/s 164 Cr.P.C of victim (name withheld) D/o Shulendera Singh, Age21 Years, R/o Village Saleem Pur, PS Nahtor, Tehsil Dhampur, Bijnaur, U.P. was marked to him. IO W/SI Sangeeta has produced victim (name withheld) and identified her and he recorded her statement in this regard. IO was asked to leave the chamber. He put certain preliminary questions to the victim and after satisfying himself that she is making the statement voluntarily he proceeded to record her statement. His proceedings in this regard is Ex. PW13/A bearing his signature at PointA. Statement of victim (name withheld) recorded by him is already Ex. PW1/A bearing 16 of 47 17 FIR No. 141/13 PS - Bhalaswa Dairy his signature at PointB and of prosecutrix (name withheld) at PointA on each page. After recording the statement he issued the certificate regarding its correctness and the same is Ex. PW13/B bearing his signature at PointA. He allowed request of the IO for providing copy of the statement u/s 164 Cr.P.C vide his endorsement Ex. PW13/C. Ahlmad was directed to give the copy of the same on proper receipt and directed to send the proceedings to the concerned MM in sealed cover vide Ex. PW13/D bearing his stamp & seal.
PW14 - Sh. Devender Kumar Kaushik, who deposed that he is a registered owner of H.No.18/87, Madhav Kunj, Part II, Mukundpur, Delhi and he is residing with his family on the ground floor. He had given the first floor to accused Sandeep and Prosecutrix (name withheld). Accused Sandeep alongwith Prosecutrix (name withheld) came from the side of Mujaffar Nagar, U.P and accused Sandeep and Prosecutrix (name withheld) had stayed in his house for about 2025 days. Accused told him that he had taken the Prosecutrix (name withheld) as he was married with Prosecutrix (name withheld). Police came to his home and mother of the Prosecutrix (name withheld) also 17 of 47 18 FIR No. 141/13 PS - Bhalaswa Dairy came there and thereafter, accused had vacated his house. His statement was recorded by the police.
PW15 - Constable Narender, who deposed that on 11.06.2013, he was posted at PS Bhalswa Dairy. On that day, he had joined the investigation with WSI Sangeeta and secret informer and they reached at Azadpur, Bus Terminal in search of accused Sandeep. At the instance of secret informer accused Sandeep present in the court was arrested vide arrest memo Ex.PW15/A bearing his signature at point A and personal search of the accused was taken vide memo Ex.PW15/B bearing his signature at point A and accused made a disclosure which is Ex.PW15/C bearing his signature at point A. Accused had pointed out the Khasra No. 228/2, Gali No.18, Mukundpur. IO prepared the site plan Ex.PW15/D bearing his signature at point A and thereafter, they took the accused to BJRM Hospital for his medical examination. After medical examination, they came back to PS Bhalwa (Bhalswa) Dairy. His statement was recorded by IO. Accused present in the court (correctly identified).
18 of 47 19 FIR No. 141/13 PS - Bhalaswa Dairy PW16 - W/SI Sangeeta is the Investigating Officer (IO) of the case, who deposed that on 21.05.13 she was posted at P.S Bhalswa Dairy. On that day she was present at P.S, then complainant (name withheld), d/o Shailender came at P.S and stated that she was sexually assaulted by one boy namely Sandeep on the pretext of marriage. She alongwith HC Sarla and Constable Mohit took the Prosecutrix to BJRM hospital for her medical examination, where she got conducted the medical examination of the Prosecutrix, but Prosecutrix refused to her internal examination. She obtained the MLC of Prosecutrix. Thereafter, they came back to P.S Bhalswa Dairy and she recorded the statement of Prosecutrix, which is Ex. PW16/A, bearing her signature at point A and she made her endorsement which is Ex. PW16/B bearing her signature at point A and same was handed over the DO for getting FIR register. She alongwith the complainant reached at the spot i.e Khasra no. 288/02, gali No. 18, PartII, Mukundpur, Delhi, where at the instance of the complainant she prepared site plan which is Ex. PW16/C, bearing her signature at point A. Meanwhile Constable Mohit came at the spot alongwith original Rukka and computerized copy of FIR and same was handed over to her. She called Constable Gurdeep at the spot. They 19 of 47 20 FIR No. 141/13 PS - Bhalaswa Dairy reached there. Constable Gurdeep had also joined the investigation. Accused Gaurav present in the Court (correctly identified) was arrested from his house vide arrest memo Ex. PW1/C, bearing her signature at point C. Personal search of the accused Gaurav was taken vide memo Ex. PW1/D, bearing her signature at point C. Accused made disclosure statement which is Ex. PW10/A, bearing her signature at point B. Accused also pointed out the place of the incident. She prepared the pointing out memo which is Ex. PW16/D, bearing her signature at point A. She recorded the supplementary statement of the Prosecutrix. On her instructions Constable Gurdeep took the accused Gaurav to BJRM hospital for his medical examination. After medical examination of the accused Constable Gurdeep went to P.S Jahangir Puri alongwith accused and accused was put inside the lockup. Thereafter, he came back to P.S Bhalaswa Dairy. She recorded statement of Constable Gurdeep. On 22.05.13 Constable Gurdeep had joined the investigation with her and accused Gaurav was taken out from the Lockup and they took accused Gaurav to BJRM hospital where they got conducted potency test of accused Gaurav. Thereafter accused was produced before the concerned Court and he was sent to custody. On 22.05.2013 she 20 of 47 21 FIR No. 141/13 PS - Bhalaswa Dairy moved an application for getting recorded the statement u/s 164 Cr.P.C of Prosecutrix, which is Ex. PW16/E, bearing her signature at point A. She identified the Prosecutrix before Learned MM and she got recorded the statement of Prosecutrix, which is Ex. PW1/A. She obtained the copy of statement vide Ex. PW13/C, bearing her signature at point A. Thereafter, they came back to P.S Bhalaswa Dairy. On 11.06.13 she received a secret information that accused Sandeep, who was involved in this case was residing near Azadpur Bus Terminal. Constable Narender had also joined the investigation with her and she alongwith secret informer and Constable Narender reached near Azadpur Bus Terminal where secret informer pointed towards H.No. H34, Bazarwali Gali, Azadpur, in which accused Sandeep used to reside. Accused Sandeep is present in the Court (correctly identified) was arrested vide arrest memo Ex. PW15/A, bearing her signature at point A. Personal search of the accused was taken vide memo Ex. PW15/B, bearing her signature at point A. Accused made a disclosure statement which is Ex. PW15/C, bearing her signature at point B. Thereafter, accused Sandeep led them to Khasra No. 228/2, Gali No. 18, PartII, Mukundpur, Delhi and pointed out the place of incident. She prepared pointing out memo which 21 of 47 22 FIR No. 141/13 PS - Bhalaswa Dairy Ex.PW15/D, bearing her signature at point B and signature of the accused at point C. Thereafter, they took the accused the BJRM hospital and got conducted his medical examination as well as his potency test. After medical examination they reached to P.S Jahangir Puri and accused Sandeep was put inside the lockup and they came back to P.S Bhalswa Dairy and she recorded statement of Constable Narender. On 12.06.13 she alongwith staff reached at P.S Jahangir Puri and accused Sandeep was taken out from the lockup and he was produced before the concerned Court and he was sent to judicial custody. On 27.06.13 she went to Balaji hospital, Mukundpur, Delhi and she obtained the documents regarding abortion of the Prosecutrix, which is Ex. PW12/B and same were taken into possession vide seizure memo Ex. PW16/F, bearing her signature at point A. She obtained the specimen signatures of accused Sandeep after taking the permission from the Court and same was sent to FSL with the documents of abortion through Constable Manoj. She recorded the statement of witnesses and supplementary statement of Prosecutrix. After completion of the investigation charge sheet was filed in the Court.
22 of 47 23 FIR No. 141/13 PS - Bhalaswa Dairy The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statements of accused Sandeep and Gaurav were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that Prosecutrix has not supported the prosecution and the prosecution has failed to prove its case beyond reasonable doubts and prayed for the acquittal of the accused on the charge levelled against him.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
23 of 47 24 FIR No. 141/13 PS - Bhalaswa Dairy
9. I have heard Sh. Ashok Kumar, Learned Addl. PP for the State and Sh. S.S. Dahiya, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/313/342/323/34 and section 506/34 IPC against the accused Sandeep is that during the period one year prior to 21/05/2013 in a rented one room at Mukand Pur, Delhi, within the jurisdiction of PS - Bhalaswa Dairy, he forcibly committed rape on every day upon Prosecutrix (name withheld) D/o Sh. Shulender Singh, Aged about 21 years, on the false pretext of marriage due to which she became pregnant and that during the month of February, 2013, he caused miscarriage of the Prosecutrix (name withheld) at Shri Balaji Charitable Hospital, Mukand Pur, Delhi without the consent of Prosecutrix and that at unknown date and time in one room at Mukand Pur, Delhi, he alongwith coaccused Gaurav in furtherance of their common intention wrongfully confined the Prosecutrix (name withheld) in the rented room at Mukund Pur, Delhi and voluntarily caused simple blunt hurt to the Prosecutrix (name withheld) and that at unknown date and time in a rented room at Mukand 24 of 47 25 FIR No. 141/13 PS - Bhalaswa Dairy Pur, Delhi, he alongwith coaccused Gaurav in furtherance of their common intention criminally intimidated the Prosecutrix by giving threats to kill her in case she disclosed about the incidents to anyone.
The charge for the offences punishable u/s 342/323/34, and section 506/34 IPC against the accused Gaurav is that at unknown date and time in the rented room at Mukund Pur, Delhi, he alongwith his co accused Sandeep in furtherance of their common intention wrongfully confined Prosecutrix (name withheld) in the rented room at Mukand Pur, Delhi and voluntarily caused simple blunt hurt to the Prosecutrix (name withheld) and that at unknown date and time in the rented room at Mukand Pur, Delhi, he alongwith coaccused Sandeep in furtherance of their common intention criminally intimidated the prosecutrix by giving threats to kill her in case she disclosed about the incidents to anyone.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the 25 of 47 26 FIR No. 141/13 PS - Bhalaswa Dairy interest of justice.
AGE OF THE PROSECUTRIX
12. PW1 - Prosecutrix in her statement recorded in the Court on 04.12.2014 while giving her particulars has stated her age as 21 years.
Since PW1 - Prosecutrix has stated her age as 21 years on 04.12.2014 at the time of recording her statement in the Court and the date of alleged incident is 21.05.2012 one year prior to 21/05/2013, on simple arithmetical calculation, the age of the prosecutrix comes to 18 years, 05 months and 07 days as on the date of alleged incident on 21.05.2012 one year prior to 21/05/2013.
Moreover, the said factum of age of PW1 - Prosecutrix has also not been disputed by accused Sandeep and Gaurav. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW1 - Prosecutrix was aged 18 years, 05 months and 07 days as on the date of alleged incident on 21.05.2012 one year prior to 26 of 47 27 FIR No. 141/13 PS - Bhalaswa Dairy 21/05/2013.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW4 - Dr. Mohit Tiwari has deposed that on 21/05/2013, he was posted as CMO at BJRM Hospital. On that day, prosecutrix (name withheld) D/o Sh. Shulendra Singh, Aged 21 Years, Female was brought to the Hospital by Police for her medical examination with the alleged history of sexual assault. She was initially examined by Dr. Rahul Arya, JR under his supervision and then prosecutrix (name withheld) was referred to SR Gynae for further examination. Dr. Rahul Arya, JR prepared the MLC from Point 'X' to 'X1' under his supervision which is Ex. PW4/A bearing the signature of Dr. Rahul Arya at Point 'A' and bearing his (PW4) signature as CMO at Point 'B'.
PW8 - Dr. R. Kappu, Medical Officer, BJRM Hospital, Delhi, has deposed that she has been deputed by the MS of the hospital to depose on behalf of Dr. Kanika Sachdeva, SR (Gynae) who has since left the services of Hospital and her present whereabouts are not known.
27 of 47 28 FIR No. 141/13 PS - Bhalaswa Dairy She is acquainted with the handwriting and signatures of Dr. Kanika Sachdeva, as she has seen her signing and writing during the official course of the duties. As per the MLC No. 59904, on 21.05.2013 patient/Prosecutrix (name withheld) D/o Sh. Shulendra Singh, Age 21 Years, Female was produced in the hospital by police whose gynecological examination was conducted by Dr. Kanika Sachdeva, and the said examination is from Portion 'Y to Y1' on the MLC is already Ex. PW 4/A, bearing the signature of Dr. Kanika Sachdeva, at point C. The samples were not collected by Dr. Kanika Sachdeva as the alleged last intercourse was four months back.
Despite grant of opportunity, PW4 - Dr. Mohit Tiwari and PW8 - Dr. R. Kappu were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical and the gynecological examination from Point 'X' to 'X1' and from Portion 'Y to Y1' of the MLC Ex. PW4/A of PW1 - Prosecutrix stands proved on the record.
28 of 47 29 FIR No. 141/13 PS - Bhalaswa Dairy MEDICAL EVIDENCE OF THE ACCUSED SANDEEP
14. PW4 - Dr. Mohit Tiwari has deposed that on 11/06/2014, one person Sandeep S/o Balveer Singh, Aged 22 Years, Male, was brought to the Hospital by Police for his medical examination. He was initially examined by Dr. Amit Chaudhary, JR under his supervision and then Sandeep was referred to SR (Surgery) for the potency test. Dr. Amit Chaudhary, JR prepared the MLC from Point 'X' to 'X1' under his supervision which is Ex. PW4/B bearing the signature of Dr. Amit Chaudhary at Point 'A' and bearing his (PW4) signature as CMO at Point 'B'.
Despite grant of opportunity, PW4 - Dr. Mohit Tiwari was not crossexamined on behalf of the accused.
In the circumstances, the medical examination vide MLC Ex. PW 4/B of accused Sandeep stands proved on the record. VIRILITY OF THE ACCUSED GAURAV 29 of 47 30 FIR No. 141/13 PS - Bhalaswa Dairy
15. PW7 - Dr. R.S. Mishra, CMO, BJRM Hospital, Delhi has deposed that he has been deputed by the MS of the hospital to depose on behalf of Dr. Vaibhav Gulati, Dr. Divya Kansal and Dr. Sabbir, SR, Surgery who has since left the services of Hospital and their present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Vaibhav Gulati and Dr. Divya Kansal as he has seen them signing and writing during the official course of the duties. As per the MLC No. 59800, on 22.05.2013 patient Gaurav S/o Dheeraj Singh, Age 22 Years, Male was produced in the hospital by police whose preliminary examination was conducted by Dr. Divya Kansal, JR under the supervision of Dr. Vaibhav Gulati vide MLC Ex. PW7/A bearing the signature of Dr. Divya Kansal at PointA and the signature of Dr. Vaibhav Gulati at PointB. Thereafter, Dr. Divya Kansal referred the patient to SR (Surgery) for further management. Dr. Sabbir, SR, Surgery medically examined the patient Gaurav and opined that there is nothing to suggest that he is not able to perform the sexual activity. The examination of the patient Gaurav by Dr. Sabbir in the encircled portion 'X' to 'X1' on the MLC Ex.PW7/A bearing the signatures of Dr. Sabbir at point 'C'.
30 of 47 31 FIR No. 141/13 PS - Bhalaswa Dairy Despite grant of opportunity, PW7 - Dr. R.S. Mishra was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Gaurav was capable of performing any sexual activity.
16. Now let the testimony of PW1 Prosecutrix be perused and analysed.
PW1 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "Prior to coming to Delhi we were living at Slaimpur, Nehator, Distt. Bijnaur, U.P. I knew Sandeep for the last two years, who was residing at Village Hassan, Alipur, PS Nagina, Distt. Bijnaur, U.P. His house was at a distance of about 15/16 kms. from my house. I know Gaurav as he is the son of my Bua. I was introduced and come (came) to know Sandeep at the house of Gaurav. I can identify Sandeep and Gaurav, if shown to me.
At this stage, the wooden partition has been removed. Accused Sandeep and Gaurav are present in the Court (correctly identified).
31 of 47 32 FIR No. 141/13 PS - Bhalaswa Dairy The wooden partition now has been restored to its original position.
On 04/02/2013, I performed the marriage with accused Sandeep which was registered in the Court at Bijnaur, U.P. on 25/05/2013. After 2/3 weeks accused Sandeep came to Delhi and I remained at his house at Village Hassan, Alipur, PS Nagina, Distt. Bijnaur, U.P. Prior to my marriage with accused Sandeep Yadav physical relations were established with us with my own consent. My uncle (Chacha) Bharat Singh wanted to marry me forcibly with some other person from whom he had already taken the money (jissae Paise Lai Rakhai Thai). When my uncle (Chacha) Bharat Singh came to know that I have married with accused Sandeep, he threatened me that he will kill my husband/accused Sandeep in Delhi, if I do not lodge a complaint against him. My uncle Bharat Singh asked me to go to Delhi and to lodge a complaint against accused Sandeep. Being under the threatening of my uncle Bharat Singh I came to Delhi and lodge the complaint at PS Bhalswa Dairy against accused Sandeep.
The complaint dated 21/05/2013 is bearing my signature at Point 'A' and I do not recollect at whose instance I signed at Point 'A'. The complaint is Mark PW1/PX.
Thereafter, I was taken by the Police to the Hospital for my medical examination and my medical examination was conducted.
My statement u/s 164 Cr.P.C. was also recorded. At this stage, the sealed envelope sealed with the seal of 'MK' lying on the judicial record is opened from which the proceedings u/s 164 Cr.P.C. The statement u/s 164 Cr.P.C is shown to the witness, who identifies her thumb marks at Points 'A'. The statement u/s 164 32 of 47 33 FIR No. 141/13 PS - Bhalaswa Dairy Cr.P.C. is Ex. PW1/A."
From the aforesaid narration of PW1 - Prosecutrix, it is clear that prior to coming to Delhi they were living at Slaimpur, Nehator, Distt. Bijnaur, U.P. She knew Sandeep for the last two years, who was residing at Village Hassan, Alipur, PS Nagina, Distt. Bijnaur, U.P. His house was at a distance of about 15/16 kms. from her house. She knows Gaurav as he is the son of her Bua. She was introduced and came to know Sandeep at the house of Gaurav. She correctly identified accused Sandeep and Gaurav present in the Court. On 04/02/2013, she performed the marriage with accused Sandeep which was registered in the Court at Bijnaur, U.P. on 25/05/2013. After 2/3 weeks accused Sandeep came to Delhi and she remained at his house at Village Hassan, Alipur, PS Nagina, Distt. Bijnaur, U.P. Prior to her marriage with accused Sandeep Yadav physical relations were established with them with her own consent. Her uncle (Chacha) Bharat Singh wanted to marry her forcibly with some other person from whom he had already taken the money (jissae Paise Lai Rakhai Thai). When her uncle (Chacha) Bharat Singh came to know that she has married with accused Sandeep, he threatened her that he will kill her husband/accused Sandeep 33 of 47 34 FIR No. 141/13 PS - Bhalaswa Dairy in Delhi, if she does not lodge a complaint against him. Her uncle Bharat Singh asked her to go to Delhi and to lodge a complaint against accused Sandeep. Being under the threatening of her uncle Bharat Singh she came to Delhi and lodge the complaint at PS Bhalswa Dairy against accused Sandeep. The complaint dated 21/05/2013 is bearing her signature at Point 'A' and she does not recollect at whose instance she signed at Point 'A'. The complaint is Mark PW1/PX. Thereafter, she was taken by the Police to the Hospital for her medical examination and her medical examination was conducted. Her statement u/s 164 Cr.P.C. was also recorded. She identifies her thumb marks at point 'A' on the statement u/s 164 Cr.P.C., Ex. PW1/A. PW1 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "When I signed at Point 'A' on the paper on which the complaint Mark PW1/PX is written it was blank. I had signed at Point 'A' on complaint Mark PW1/PX at the asking of Police madam. I had gone to the Police Station alone. I had told Police madam of my purpose of coming to the Police Station as I was threatened by my uncle Bharat Singh to lodge the complaint against accused Sandeep. I have not stated 34 of 47 35 FIR No. 141/13 PS - Bhalaswa Dairy to the Police that accused Sandeep had brought me from Bijnaur to Mukand Pur, Delhi, after saying that he would perform marriage with me. I did not state to the Police that accused Sandeep started committing rape upon me in the rented room at Mukand Pur on the pretext of marriage due to which I became pregnant. I did not state to the Police that when I informed accused Sandeep about my pregnancy then he started pressuring me for abortion. I did not state to the Police that when I refused for abortion then accused Sandeep brought me to my house (Bijnaur) and told me that he would come after some days to take me back. I did not state to the Police that after waiting for Sandeep for several days I came to his house at Mukand Pur, Delhi for talking him for performing marriage with me then accused Sandeep and accused Gaurav confined me in the room and gave beatings to me. I did not state to the Police that when I started raising alarm then both the accused gave threats to me that if I disclosed about this incident to anyone then they would kill me. I did not state to the Police that accused Sandeep took me to Balaji Hospital after instigating me on false pretext and caused my abortion.
At this stage, the statement Mark PW1/PX is read over to the witness who denies of having made such statement to the Police. It is wrong to suggest that I made this statement to Police and the said statement was read over to me. It is wrong to suggest that I signed the same statement Mark PW1/PX at Point 'A' after admitting it to be correct. It is wrong to suggest that the statement Mark PW1/PX was made by me as accused Sandeep had committed rape upon me several times on the pretext of marriage and also caused abortion despite of my refusal. It is wrong to suggest that there was no threats given by my uncle Bharat Singh to lodge complaint against accused Sandeep or that the complaint was lodged by me as accused Sandeep committed rape 35 of 47 36 FIR No. 141/13 PS - Bhalaswa Dairy upon me and accused Gaurav and Sandeep gave me beatings and also extended threats to me. It is wrong to suggest that during my medical examination at BJRM Hospital I informed the Doctor that one person was making physical relations with me on the promise of marriage.
It is correct that at the time of recording of my statement u/s 164 Cr.P.C. before Learned MM I did not state that I was threatened by my uncle Bharat to give a false statement against accused Sandeep. It is wrong to suggest that I have not informed about the threats given by my uncle Bharat for giving false statement against accused Sandeep to Learned MM as no such threats were given by my uncle to me. Vol. I had given the statement u/s 164 Cr.P.C. under the threatening of my uncle Bharat Singh. It is wrong to suggest that the statement given by me u/s 164 Cr.P.C. is my correct and voluntarily statement or that there was no such threats or influence of any person upon me to give statement against accused Sandeep.
I alongwith accused Sandeep went to Shri Balaji Charitable Hospital, Near Shiv Mandir, Mukandpur, Delhi, it is wrong to suggest that accused Sandeep took me to Balaji Hospital on the false pretext.
At this stage, the Consent Form for surgery is shown to the witness, who admits her signatures at Point 'A' on the said Form. The Consent Form is Ex. PW1/B. It is wrong to suggest that I have given consent in Balaji Hospital for abortion on the instigation of accused Sandeep. Vol. I was not under any threat or instigation by accused to give consent for my abortion. It was my free consent.
Accused Sandeep and accused Gaurav were arrested by Police at my instance. The arrest memo and personal search memo of accused Gaurav are Ex. PW1/C & Ex. PW1/D bearing my signature at Point 'A'. Vol. I got arrested both the accused Sandeep and Gaurav 36 of 47 37 FIR No. 141/13 PS - Bhalaswa Dairy under the threatening of my uncle Bharat Singh. It is correct that I did not state anything about the threats given by my uncle Bharat Singh to police at any stage of investigation.
It is wrong to suggest that I did not state about the threats given by my uncle Bharat Singh to Police as there was no such threats given by my uncle Bharat Singh.
It is correct that now I am residing with accused Sandeep at Azad Pur, Delhi, as he is my husband.
It is wrong to suggest that no marriage between me and Sandeep was performed on 04/02/2013. It is wrong to suggest that accused Sandeep made physical relations with me on the false pretext of marriage prior to 04/02/2013. Vol. physical relations between me and accused Sandeep were established with my consent. It is wrong to suggest that I and accused Sandeep performed marriage on 25/05/2013 at Court in Bijnaur after registration of the FIR. Vol. the marriage was already performed on 04/02/2013 which was got registered on 25/05/2013.
It is wrong to suggest that I am giving a statement favouring accused Sandeep in order to save him as now he is my husband. It is wrong to suggest that I am giving a statement favouring accused Gaurav in order to save him as he is son of my bua. It is wrong to suggest that I am deposing falsely."
PW1 - Prosecutrix was not crossexamined on behalf of accused despite grant of opportunity given.
37 of 47 38 FIR No. 141/13 PS - Bhalaswa Dairy On analysing the entire testimony of PW1 - Prosecutrix it is clearly indicated that during her examinationinchief she has specifically deposed that, prior to coming to Delhi they were living at Slaimpur, Nehator, Distt. Bijnaur, U.P. She knew Sandeep for the last two years, who was residing at Village Hassan, Alipur, PS Nagina, Distt. Bijnaur, U.P. His house was at a distance of about 15/16 kms. from her house. She knows Gaurav as he is the son of her Bua. She was introduced and came to know Sandeep at the house of Gaurav. She correctly identified accused Sandeep and Gaurav present in the Court. On 04/02/2013, she performed the marriage with accused Sandeep which was registered in the Court at Bijnaur, U.P. on 25/05/2013. After 2/3 weeks accused Sandeep came to Delhi and she remained at his house at Village Hassan, Alipur, PS Nagina, Distt. Bijnaur, U.P. Prior to her marriage with accused Sandeep Yadav physical relations were established with them with her own consent. Her uncle (Chacha) Bharat Singh wanted to marry her forcibly with some other person from whom he had already taken the money (jissae Paise Lai Rakhai Thai). When her uncle (Chacha) Bharat Singh came to know that she has married with accused Sandeep, he threatened her that he will kill her 38 of 47 39 FIR No. 141/13 PS - Bhalaswa Dairy husband/accused Sandeep in Delhi, if she does not lodge a complaint against him. Her uncle Bharat Singh asked her to go to Delhi and to lodge a complaint against accused Sandeep. Being under the threatening of her uncle Bharat Singh she came to Delhi and lodge the complaint at PS Bhalswa Dairy against accused Sandeep. During her cross examination by Learned Addl. PP for the State she negated the suggestions put to her by the Learned Addl. PP for the State that she made the statement Mark PW1/PX to Police and the said statement was read over to her or that she signed the said statement Mark PW1/PX at Point 'A' after admitting it to be correct or that the statement Mark PW1/PX was made by her as accused Sandeep had committed rape upon her several times on the pretext of marriage and also caused abortion despite of her refusal or that there was no threats given by her uncle Bharat Singh to lodge complaint against accused Sandeep or that the complaint was lodged by her as accused Sandeep committed rape upon her and accused Gaurav and Sandeep gave her beatings and also extended threats to her or that during her medical examination at BJRM Hospital she informed the Doctor that one person was making physical relations with her on the promise of marriage or that she has not 39 of 47 40 FIR No. 141/13 PS - Bhalaswa Dairy informed about the threats given by her uncle Bharat for giving false statement against accused Sandeep to Learned MM as no such threats were given by her uncle to her (Vol. She had given the statement u/s 164 Cr.P.C. under the threatening of her uncle Bharat Singh) or that the statement given by her u/s 164 Cr.P.C. is her correct and voluntarily statement or that there was no such threats or influence of any person upon her to give statement against accused Sandeep or that accused Sandeep took her to Balaji Hospital on the false pretext or that she has given consent in Balaji Hospital for abortion on the instigation of accused Sandeep (Vol. she was not under any threat or instigation by accused to give consent for her abortion. It was her free consent) or that she did not state about the threats given by her uncle Bharat Singh to Police as there was no such threats given by her uncle Bharat Singh or that no marriage between her and Sandeep was performed on 04/02/2013 or that accused Sandeep made physical relations with her on the false pretext of marriage prior to 04/02/2013 (Vol. physical relations between her and accused Sandeep were established with her consent) or that she and accused Sandeep performed marriage on 25/05/2013 at Court in Bijnaur after registration of the FIR (Vol. the marriage was already 40 of 47 41 FIR No. 141/13 PS - Bhalaswa Dairy performed on 04/02/2013 which was got registered on 25/05/2013) or that she is giving a statement favouring accused Sandeep in order to save him as now he is her husband or that she is giving a statement favouring accused Gaurav in order to save him as he is son of her bua or that she is deposing falsely.
As discussed hereinbefore, PW1 - Prosecutrix has been found to be aged around 19 years, from the testimony of PW1 - Prosecutrix, nothing is being indicated that during the period one year prior to 21/05/2013 in a rented one room at Mukund Pur, Delhi, accused Sandeep forcibly committed rape on every day upon PW1 Prosecutrix on the false pretext of marriage due to which she became pregnant or that during the month of February, 2013, he (accused Sandeep) caused miscarriage of the Prosecutrix at Shri Balaji Charitable Hospital, Mukund Pur, Delhi without her consent or that in the rented room at Mukand Pur, Delhi, he alongwith accused Gaurav in furtherance of their common intention wrongfully confined the Prosecutrix or that they had voluntarily caused simple blunt hurt to the Prosecutrix or that they in furtherance of their common intention criminally intimidated the 41 of 47 42 FIR No. 141/13 PS - Bhalaswa Dairy Prosecutrix by giving threats to kill her in case she disclosed about the incidents to anyone.
Now, let the testimony of PW11 - Smt. Bala Devi, mother of the Prosecutrix be perused and analysed.
PW11 - Smt. Bala Devi is the mother of the Prosecutrix, who in her examinationinchief has deposed that she has three children. Out of which one is daughter and two are sons. Prosecutrix (name withheld) is her daughter. Prosecutrix (name withheld) used to reside with her at village. Prior to three years she got married her daughter (name withheld) to Sandeep at Bijnor and then she went to Delhi with her husband Sandeep. She identified the accused Sandeep present in the court (correctly identified). Accused Sandeep is her son inlaw. She does not know anything about the present case. Police does not meet her during investigation and her statement was not recorded by police.
PW11 - Smt. Bala Devi was also crossexamined by the 42 of 47 43 FIR No. 141/13 PS - Bhalaswa Dairy Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "I got married my daughter/prosecutrix (name withheld) with Sandeep on 25th of Maha/ Falgun month. I do not know the year in which the marriage of Sandeep and prosecutrix (name withheld) was performed. I am illeterate. My daugther did not informed me that accused Sandeep brought her Delhi prior to her marriage with him. It is wrong to suggest that prosecutrix (name withheld) informed me that accused Sandeep aborted her pregnancy in Delhi and left her at Bijnor. prosecutrix (name withheld) did not informed me that accused Sandeep refused to perform marriage with her so she got registered case against him in Delhi. Vol. My daughter/prosecutrix (name withheld) did not inform me anything in the present case and she came to Delhi with Sandeep after her marriage. It is wrong to suggest that prosecutrix (name withheld) informed me that accused Sandeep had refused to perform marriage with her and about the registration of FIR in Delhi. Police did not record my statement in this case.
At this stage, the statement u/s 161 Cr. PC of the witness dated 14.08.2013 is read over to her who denies of having made any such statement to the police. The statement u/s 161 Cr. PC dated 14.08.2013 is Mark PW11/PX. It is wrong to suggest that the statement Mark PW1/PX was made by me before police during investigation of this case.
It is wrong to suggest that I am concealing the true and material facts in order to save accused Sandeep who is now my son in law. It is wrong to suggest that I am giving statement in favour of accused as I have been won over by accused Sandeep. It is wrong to suggest that I am deposing falsely. "
43 of 47 44 FIR No. 141/13 PS - Bhalaswa Dairy PW11 - Smt. Bala Devi was not crossexamined on behalf of accused despite grant of opportunity.
On careful perusal and analysis of the testimony of PW11 - Smt. Bala Devi, mother of the Prosecutrix, it is found that nothing material has come out in her testimony so as to advance the case of the prosecution on the core spectrum of the crime. She negated the suggestions, as were put to her by the Learned Addl. PP, that prosecutrix (name withheld) informed her that accused Sandeep had refused to perform marriage with her and about the registration of FIR in Delhi or that the statement Mark PW11/PX was made by her before police during investigation of this case or that she is concealing the true and material facts in order to save accused Sandeep who is now her sonin law or that she is giving statement in favour of accused as she has been won over by accused Sandeep or that she is deposing falsely.
17. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against 44 of 47 45 FIR No. 141/13 PS - Bhalaswa Dairy accused Sandeep and Gaurav. The hostility of PW1 - Prosecutrix and that of PW11 - Smt. Bala Devi, her mother has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that during the period one year prior to 21/05/2013 in a rented one room at Mukund Pur, Delhi, accused Sandeep forcibly committed rape on every day upon PW1 Prosecutrix aged around 19 years on the false pretext of marriage due to which she became pregnant or that during the month of February, 2013, he (accused Sandeep) caused miscarriage of the Prosecutrix at Shri Balaji Charitable Hospital, Mukund Pur, Delhi without her consent or that in the rented room at Mukand Pur, Delhi, he alongwith accused Gaurav in furtherance of their common intention wrongfully confined the Prosecutrix or that they voluntarily caused simple blunt hurt to the Prosecutrix or that they in furtherance of their common intention criminally intimidated the Prosecutrix by giving threats to kill her in case she disclosed about the incidents to anyone.
I accordingly, acquit accused Sandeep and Gaurav for the offences punishable u/s 376/313/342/323/506/34 IPC.
45 of 47 46 FIR No. 141/13 PS - Bhalaswa Dairy
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Sandeep and Gaurav in the commission of offences punishable u/s 376/313/342/323/506/34 IPC, is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to the accused Sandeep and Gaurav beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Sandeep and Gaurav. I, therefore, acquit accused Sandeep and Gaurav for the offences punishable u/s 376/313/342/323/506/34 IPC after giving them the benefit of doubt. Both the accused Sandeep and Gaurav are on bail. However, u/s 437A Cr.P.C accused Sandeep and Gaurav shall furnish a personal bond in the sum of Rs. 20,000/ each with a surety in the like amount each and the accused and the surety shall also require to annex their latest passport size photographs alongwith their latest residential proof (vide State Vs. Virender Yadav & Anr. 2014 1 AD (DELHI) 389) which shall remain in force for six months and they to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment.
46 of 47 47 FIR No. 141/13 PS - Bhalaswa Dairy Announced in the open Court (MAHESH CHANDER GUPTA) on 8th Day of February, 2016 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 47 of 47