Delhi District Court
"State Of Karnataka Vs. Puttraj 2004 (1) ... vs . on 11 May, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 27322/2016
Assigned to Sessions. 21.01.2015
Arguments heard on 20.04.2018
Date of Judgment 11.05.2018
FIR No. 87/2014
State V Anil s/o Lt. Sh. Prahalad, R/o. B126,
Gali No.2, Nishant Colony, Loni,
Ghaziabad, U.P.
Police Station Darya Ganj
Under Section 342/376(2)(n)/506 IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Darya Ganj had
filed a challan vide FIR No.87/2014 dated 19.02.2014 u/s. 342/376/506 IPC for
the prosecution of accused in the court of ld. Metropolitan Magistrate.
Requirement of section 207 Cr.P.C. had already been complied with by Ld.
M.M. Since, this court is a Special Fast Track Court designated for trial of the
cases pertaining to crime against women, this case was allocated to this court
by Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi for trial.
Keeping in view of section 228 (A) IPC and directions of Supreme court in
"State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs.
State of U.P. 2006, CRLJ. 2913", the identity of prosecutrix is not being
disclosed in the judgment.
Case No.27322/2016
State Vs. Anil 1/36
BRIEF FACTS OF THE CASE:
2. The criminal law set into motion on the complaint of the prosecutrix Ex.PW2/A where she claimed herself as 17 years of age and FIR No.87/2014 u/s 376/342/506 r/w section 4 POCSO Act was registered. In her complaint she alleged that she was residing with her Nani. Accused requested her to go along with him as he was wanted to buy chappal for his Bhabhi and her Nani allowed her to go with accused. On this, accused pretended with her that he wanted to keep the keys of his room at the upper floor and requested the prosecutrix to come with him to the upper floor where accused confined prosecutrix in the room, switched off the light and then forcibly raped her in the said room. Thereafter, she came back to her house, did not tell anything to her Nani and went to sleep after consuming sleeping pills of her Nani. Next day, her mother met her, she cried and told about the incident of rape to her and then she along with her mother came to PS and gave her complaint.
3. On 19.02.2014, prosecutrix was medically examined. The doctors prepared exhibits of her internal medical examination. Accused was also arrested on 19.02.2014 and he was also medically examined and the exhibits prepared by the doctor were seized by the I.O. On 20.02.2014 statement of prosecutrix was recorded u/s 164 Cr.P.C. where she also reiterated her allegations against the accused. During the course of investigation, the factum of age of prosecutrix was verified and as per enquiry conducted by Ld. ASJ she was found to be aged between 19 to 21 years of age and was major at the time of incident. Thereafter, after completing the investigation, charge sheet was filed.
CHARGE:
4. On the basis of material available on record, Ld. Predecessor of this court vide Case No.27322/2016 State Vs. Anil 2/36 order dated 27.01.2015 framed charges against accused Anil for the offence punishable u/s. 342/376 (2)(n)/506 IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
5. In order to prove its case prosecution examined 19 witnesses namely PW1 ASI Ram Chander, PW2 Prosecutrix, PW3 Dr. Saumya, PW4 Ct. Rani, PW4A Smt. Beena, PW5 Sh. Rajender Pratap Singh, PW6 Sh. Ram Chander, PW7 HC Anil, PW8 ASI Jai Parkash, PW9 Dr. Manjunathan A., PW10 Ms. Aparna Swami, PW11 Sh. Monu Kumar, PW12 Sh. Tushar Tomar, PW13 Dr. Pushpa Mishra, PW14 Sh. Munesh, PW15 Smt. Vimla Devi, PW16 Sh. Bahadur Singh, PW17 Dr. Vinay Kumar Singh, PW18 W/SI Sunita and PW19 Dr. Suminder Kaur, Sr. Forensic/Chemical Examiner (Biology).
6. PW1 ASI Ram Chander is a formal witness being Duty Officer. This witness has proved computerized copy of FIR vide Ex. PW1/A, endorsement on the original rukka vide Ex. PW1/B certificate under Section 65B Evidence Act qua the FIR vide Ex. PW1/C.
7. PW2 Prosecurix is a material witness being victim and complainant. She deposed that she has studied upto class XII. She further deposed that about 67 months prior to registration of FIR, she started living at first floor of H. No. 53 near Ram Mandir, Ansari Road, Darya Ganj, Delhi along with her Nani. Her Nani was doing the work of cooking in the said house which belongs to one Sh.
Raj Kumar and she started living with her as her mother was working. She further deposed that son of Sh. Raj Kumar is running a tailor shop in the name Case No.27322/2016 State Vs. Anil 3/36 and style of 'Kumar' opposite to Golcha Cinema at Darya Ganj. She further deposed that accused Anil present in court today [correctly identified] was working in the said shop and he used to visit the house of Sh. Raj Kumar in order to help him with his daily routine work as Sh. Raj Kumar is aged and not able to do his routine work on his own. PW2 further deposed that she used to treat accused Anil as brother and used to talk to him and used to come to house of Sh. Raj Kumar.
8. PW2 further deposed that on 17.02.2014 at about 77.30 PM, accused came to the aforesaid house. He requested her to accompany him to the market stating that he wants to buy a pair of slippers for his wife. When she refused to go with him, he started insisting and requesting him to come with him to the market. Accused asked my Nani Smt. Jamuna Devi to permit me to go with him. Her Nani agreed and told her 'Theek hai bhai ke saath chali jao' and then her Nani went to prepare food for Sh. Raj Kumar.
9. PW2 further deposed that when they came out of the house, accused told her that he has to keep the key of the room of his younger brother namely Neeraj. Neeraj used to live on the second floor of the said house and used to work in a nearby shop. She further deposed that accused also took her along with him for keeping the key upstairs and she went with him on his asking.
10. PW2 further deposed that upon reaching the second floor, accused closed the main door of the second floor by bolting it. She tried to open the door, but she could not succeed as she could not reach up to the bolt of the door. He pushed her into a room which was lying vacant and also bolted the door of the said room from inside. Thereafter, accused forcibly established physical relations Case No.27322/2016 State Vs. Anil 4/36 with her two times in that room, despite her repeated requests. When she tried to raise an alarm, accused closed her mouth with his hand and forcibly raped her. PW2 further deposed that accused also threatened that he would kill her, if she would tell about the incident to anyone.
11. PW2 further deposed that after the incident, she came downstairs to her Nani. Her Nani asked her the reason as to why she was crying, but she did not tell her. She further deposed that out of fear, she did not disclose about this incident to anyone. She consumed 810 sleeping pills which her Nani uses and then she went to sleep.
12. PW2 further deposed that on the next day at about 22.30 PM, her mother Beena Devi came to meet her Nani as she was not keeping well. Her mother woke her up and noticed that she had been crying. She asked her the reason and she narrated the entire incident to her. She further deposed that her mother took her to PS Darya Ganj in the evening where she gave her written complaint vide Ex. PW2/A.
13. This witness has proved site plan vide Ex. PW2/B which was prepared at her instance. This witness has proved arrest memo of the accused vide arrest memo vide Ex. PW2/C. This witness has correctly identified her brassier vide Ex. P 1, one full sleeve ladies sweater vide Ex.P2 and one black colour legging torn from few places vide Ex.P3 respectively. This witness has proved her statement u/s 164 Cr.P.C. vide Ex.PW2/D.
14. On being cross examined by Sh. R. S. Rawat, ld. counsel for accused, this witness deposed that she had studied in KDM Public School, Garh Case No.27322/2016 State Vs. Anil 5/36 Mukteshwar. She further deposed that there are two rooms on house no. 53, near Ram Mandir, Ansari Road Darya Ganj, Delhi and one room is lying vacant. She further deposed that in the other room younger brother of accused namely Neeraj was living along with another boy namely Ram and there are three rooms on the first floor and her Nani lives in one room. She further deposed that the elderly person i.e. Shri Raj Kumar lives in another room and the third room is lying vacant after death of wife of Shri Raj Kumar and the said third room remains locked. She further deposed that the second room on the second floor also remains locked and that Neeraj and Ram used to lock their room while leaving from there. This witness admitted that one room is built in between first and second floor in front of the staircase.
15. She deposed that she lived with her mother in the house of Raj Kumar in a room on the second floor for about one month. This witness admitted that the room of her Nani is adjoining to the room of Shri Ram Kumar. Her Nani was doing the work of cooking and cleaning the house of Shri Raj Kumar. She further deposed that she had stated to the police that she started living with her Nani as her mother was working. She confronted with the statement Ex. PW 2/A where it has not been so recorded.
16. She deposed that she had stated to the police and ld. MM that accused asked her Nani to permit her to go with him. She was confronted with statement Ex. PW2/A and Ex. PW2/B where it is not so recorded. She deposed that she had stated to the police that her Nani thereafter, went to prepare food for Shri Raj Kumar. She was confronted with statement Ex. PW2/A where it is not so recorded but where it is recorded that Nani went to give food to Shri Raj Kumar.
Case No.27322/2016 State Vs. Anil 6/3617. On Q. You earlier deposed that the vacant room on the second floor used to remain locked, but now you have deposed that it was bolted from outside. Which of your two statements is correct? This witness replied that the vacant room on the second floor used to remains locked. The key of that room used to be with accused Anil. He had opened the said room for taking out some goods one day prior to the incident and that is why on 17022014 it was not locked and was only bolted.
18. She deposed that she did not state to the police or to the ld. MM that the said vacant room was only bolted on 17022014 as accused had taken out some goods from that room one day prior to the incident. She had stated to the police that accused told her that he has to pick the key of the room of his younger brother namely Neeraj. She was confronted with statement Ex. PW2/A where name of Neeraj is not mentioned.
19. She further deposed that she had stated to police and Magistrate in her statement that while she was coming out from her house, accused had met her and had said that he is coming after giving keys of his house to his younger brother namely Neeraj. She was confronted with her complaint Ex PW2/A wherein the said fact is not mentioned, however it is mentioned "after coming out of the door accused stated to be that he has to keep the key upstairs". She further deposed that she had not stated in her complaint Ex PW2/A that when she tried to raise alarm, accused gagged her mouth however she had stated this fact in her statement Ex PW2/D. She was confronted with the statement Ex PW2/D wherein the aforesaid facts are not mentioned however it is mentioned that "Anil ne mere upper hath Rakha". This witness admitted that a case U/s 376 IPC was also registered against her boyfriend. This witness had denied to Case No.27322/2016 State Vs. Anil 7/36 suggestion that no incident at the second floor of the house mentioned in the present case had not taken place with her.
20. PW3 Dr. Saumya, Senior Resident, Gynae, Lok Nayak Hospital, Delhi has proved MLC of prosecutrix vide Ex.PW3/A.
21. PW4: Ct. Rani, has taken the prosecutrix to LNJP Hospital and got her medical examination conducted vide MLC already Ex.PW3/A. After examination of the prosecutrix, her examining doctor handed over her the exhibits pertaining the prosecutrix in sealed condition and she handed over the same to the IO. IO had seized the same vide seizure memo Ex.PW4/A.
22. On being cross examined by Sh. A.T. Ansari, Ld. Addl. PP for the state, this witness admitted that the doctor had handed over her the exhibits pertaining to the prosecutrix contained in a white pulanda and yellow colour pulanda.
23. On being cross examined by Sh. S.R. Raghav, learned counsel for accused, this witness deposed that doctor had given her three pulandas including one yellow pulanda and one white pulanda with the seal of 'LNJP'.
24. PW4A: Smt. Beena W/o Sh. Pappu @ Devender is the mother of prosecutrix.
She deposed that she has three daughters including prosecutrix and one son and that prosecutrix is her eldest daughter. PW4A further deposed that in the year 2014 prosecutrix was residing with her Nani at Darya Ganj, Delhi, as her mother (Nani) was not feeling well during those days. Incident happened last year i.e. 2015. She again said, it happened two years ago on 17th February. She deposed that next day at about 07:00 pm 07:30 pm, when she had gone to meet Case No.27322/2016 State Vs. Anil 8/36 her mother as she was not feeling well, prosecutrix was sleeping. She woke up her. After seeing her she started weeping. PW4A deposed that when she asked the reason for weeping, she narrated the incident to her stating that accused Anil whom she used to consider as a brother, had committed rape on her and that a about 10.00 pm - 11.00 pm she took the prosecutrix to police station Darya Ganj, Delhi. She further deposed that her daughter wrote a complaint at police station and gave it to the police.
25. She further deposed that she did not give any certificate with regard to date of birth of her daughter to the police. Police did not ever show me any date of birth certificate of prosecutrix of class 8th. Again said, it was shown to her by the police and she told the police that it was false certificate.
26. She further deposed that firstly, she had got the admission of the prosecutrix done in first class in school namely Pooja Bal Vidyalaya, Garh Mukteshwar, Ghaziabad, U.P. She studied upto 5th standard in this school and thereafter, she was shifted to some other school for 9th & 10 standard in Meerut near Maliyana Fatak. She had not submitted any document in the aforesaid school at the time of her admission.
27. On being cross examined by Sh. S.R. Raghav, ld. counsel for accused, this witness deposed that she does not remember the date when she had given her statement to the police. She cannot say after how many days of incident she had given the said statement to the police. Her statement was recorded at police station at about 07.00 - 07.30 pm. She had stated in her statement that she has three daughters and one son. Confronted with the statement Ex.PW4/DA, wherein the said facts are not mentioned.
Case No.27322/2016 State Vs. Anil 9/3628. She deposed that she had also stated to the police in her statement that she had reached the house of her mother at about 07.00 - 07.30 pm. She was confronted with the statement Ex.PW4/DA, wherein the said facts are not mentioned. She further deposed that she had stated to the police in her statement that she had got woke up her sleeping daughter/prosecutrix. She was confronted with the statement Ex.PW4/DA, wherein the said facts are not mentioned.
29. She deposed that she had stated to the police in her statement that she had taken the prosecutrix to police station at about 10.00 - 11.00 pm. She was confronted with the statement Ex.PW4/DA, wherein the said facts are not mentioned. She deposed that she had stated to the police in her statement that she had given birth certificate of the prosecutrix to the police. She was confronted with the statement Ex.PW4/DA, wherein the said facts are not mentioned.
30. She deposed that she had obtained birth certificate of the prosecutrix from her school in Meerut, where she had studied up to 10th class. Her daughter had not studied in 6th class. She had not ever got the prosecutrix admitted in 9th class in Adarsh Bal Inter College, Pooth Khas, Meerut, U.P. This witness had denied to suggestion that she had not got the prosecutrix admitted in 9th class in Adarsh Bal Inter College, Pooth Khas, Meerut, U.P. She deposed that she had not submitted any certificate with regard to the proof of age of the prosecutrix at the time of her admission in 9th class. This witness had denied to suggestion that she is deposing falsely in this regard or that she had submitted the certificate of the prosecutrix having shown 8th standard pass or that it was issued by Mayur Public School or that she had got admitted the prosecutrix in 9th standard on the basis of this aforesaid document in Adarsh Bal Inter Case No.27322/2016 State Vs. Anil 10/36 College. This witness deposed that she is not aware if any case is registered against her at PS Darya Ganj vide FIR No.514/2014 under section 420/468/471 IPC. She deposed that accused was not present at PS when prosecutrix had written the complaint. She deposed that she does not know if anything wrong had happened with the prosecutrix. She voluntarily deposed that it might be mentioned in the medical examination report of the prosecutrix as she was not there.
31. PW5: Sh. Rajender Pratap Singh has brought the summoned record i.e. tabulation register containing entries with regard to the examination passed by the prosecutrix. As per the said register prosecutrix had passed high school examination in the year 2013 and as per our record her date of birth is 03.05.1996. This witness has proved the copy of the relevant entries of the said register qua the prosecutrix is being tendered today on judicial record vide Ex.PW5/A and certificate vide Ex.PW5/B. Same has been issued from our office.
32. On being cross examined by Sh. S.R. Raghav, ld. counsel for accused, this witness deposed that they maintain the record qua the age of students. As per school record date of birth of the prosecutrix is 03.05.1996. School, where prosecutrix had been studying, had provided transfer certificate of the prosecutrix to the Board.
33. PW6: Sh. Ram Chander is the colleague of accused and he was working as Salesman at the shop of her landlord namely Sh. Raj Kumar at Shop No.3645, near Golcha Cinema, Netaji Subhash Marg, Darya Ganj, Delhi. He deposed that accused, present in the court (correctly identified), is known to him as they Case No.27322/2016 State Vs. Anil 11/36 both had worked at the said shop as Salesman. He deposed that he never gave the key of his room to the accused and that his landlord Raj Kumar was bed ridden. He used to take care of him. Accused also used to come to his house in his absence to take care of Raj Kumar as he was also residing in the same house. He further deposed that accused never visited his room in his absence.
34. On being cross examined by Sh. A.T. Ansari, Ld. Addl. PP for State, this witness had denied to suggestion that on 17.02.2014 he had given the key of his room to the accused to keep the Aata (flour) at his room as he used to go there in his absence to know the wellbeing of landlord Raj Kumar. This witness had denied to suggestion that he had stated the said facts in my statement Ex.PW6/A. Confronted with the statement Ex.PW6/A wherein the said facts are mentioned.
35. This witness had denied to suggestion that he has been won over by the accused as they both had worked together as Salesman and deliberately concealing the true facts or that she is deposing falsely.
36. PW7: HC Anil, has also proved the relevant entries of register no. 19 pertaining to this case, Ex.PW7/A; PW7 HC Anil also proved road certificate, Ex.PW7/B vide which exhibits were sent to FSL Rohini through PW8 Ct. Jai Parkash (now ASI); PW8 had deposited the exhibits at FSL Rohini against the acknowledgement, Ex.PW7/C.
37. PW8:ASI Jai Parkash had taken the custody of exhibits in three sealed parcels pertaining to this case along with sample seal from MHC(M), PS Daryaganj, Delhi, carried them to FSL Rohini vide Road Certificate No.6/21/14 already Case No.27322/2016 State Vs. Anil 12/36 Ex.PW7/B and deposited the same at FSL Rohini. This witness had also brought the acknowledgement qua the receipts of the said exhibits and handed over the same to MHC(M) vide Ex.PW7/C.
38. On being cross examined by Sh. S.R. Raghav, ld. counsel for accused, this witness deposed that he cannot tell the complete initial of the seal affixed on parcels. He had not given three sample seals.
39. PW9:Dr. Manjunathan conducted potency test of accused vide MLC Ex.PW9/A and found nothing to suggest that he was incapable to perform sexual intercourse under normal circumstances.
40. PW10: Ms. Aparna Swami, Ld. Additional Coordinator, Delhi International Arbitration Centre, Delhi High Court, New Delhi has recorded the statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW2/D.
41. PW11: PW11 Sh. Monu Kumar, Head Clerk, Adarsh Bal Inter College, Pootth Khhas, Meerut, U.P. has produced the record pertaining to the admission of PW2 prosecutrix in college on 01.07.2011 in class IXth, Ex.PW11/A; PW2 prosecutrix completed her 10th class in the year 2013 vide High School examination certificate, Ex.PW5/B; the aforesaid document was handed over to the police by PW11 Sh. Monu Kumar, vide forwarding letter Ex.PW11/B.
42. On being cross examined by Sh. S.R. Raghav, ld. counsel for accused, this witness admitted that certificate Ex.PW11/A does not bear the signature of Basic Shiksha Adhikari and that except the admission form with regard to the admission of the prosecutrix, no other form bears the signature of the guardian Case No.27322/2016 State Vs. Anil 13/36 of students taking admission. This witness had denied to suggestion that the said signature on the admission form of the prosecutrix is forged.
43. PW12 Sh. Tushar Tomar, Clerk, Mayur Public Jr. High School, Jail Chungi, Meerut, U.P. has produced the transfer certificate register of Mayur Public Jr. High School showing leaving certificate no.2280, Ex.PW12/A which was issued in the name of Sagar Bansla s/o Santar Pal Singh by the said school; PW12 Dr. Tushar Tomar also testified that the said certificate was not issued to PW2 prosecutrix; principal of the school, Sh. Madan Singh Tomar has also issued certificate, Ex.PW12/B to the said effect.
44. PW13:Dr. Pushpa Mishra, deposed that at the request of the police a Board was constituted comprising myself, Dr. Monisha Pradhan, Asstt. Professor, Forensic Medicine, Dr. Jyoti Kumar, Radio Diagnosis and Dr. Monika Kelkar, Dentist from Maulana Azad Medical College for ossification test of the prosecutrix. They examined the prosecutrix vide report MarkA.
45. The ossification test of the prosecutrix could not be conducted as she was carrying six weeks four days pregnancy and in that condition such test cannot conducted. They had advised to the police that medical termination of pregnancy of prosecutrix can be considered in wake of her age and unmarried status. Thereafter, prosecutrix was not brought to them for further examination. Consent form for the said test is marked as MarkB.
46. PW14 Sh. Munesh has testified that there was a school namely Pooja Vidyalaya meant for 4 to 5th class in her village being run by a lady Smt. Rama and the same had been closed 45 years back and Smt. Rama had left the school Case No.27322/2016 State Vs. Anil 14/36 due to her mental illness; the said school was being run in the house of PW15 Smt. Vimla Devi at her village; Smt. Rama was also teaching in the school along with other teachers.
47. PW15: Smt. Vimla Devi, deposed that she is illiterate. One lady Smt. Rama was running a school in her house. The name of the school was Pooja Vidyalaya. About 89 years she had left the school. She cannot tell the exact period when the said lady had run the said school, but she might have run the school for 45 years. Later she had developed some mental illness and shut the school. She does not know where she had gone thereafter. PW15 deposed that Smt. Rama along with some other teachers were teaching in the school. She does not know much about her children. Probably she had one son.
48. On being cross examined by Sh. S.R. Raghav, ld. counsel for accused, this witness denied to the suggestion that IO had tutored her to make the said statement or that no such school was being run in her house or that she is deposing falsely.
49. PW16 Sh. Bahadur Singh, Assistant Ambulance Officer, Lal Bahadur Shastri Hospital, Delhi had also produced carbon copy of ossification report, Ex.PW16/A pertaining to PW2 prosecutrix which was conducted by a board of doctors comprising PW17 Dr. Vinay Kumar Singh, Dr. Rachna Jain and Dr. Kavita Dhalla and they opined the age of PW2 prosecutrix in between 19 to 20 years.
50. PW17: Dr. Vinay Kumar Singh, Specialist: Forensic Medicine deposed that on 14.07.2014 he was posted at Lal Bahadur Shastri Hospital, Khichdipur, Case No.27322/2016 State Vs. Anil 15/36 Delhi. On that day prosecutrix was brought in the said hospital for her ossification test. Her medical examination on the said aspect was conducted by a board comprising himself, Dr. Rachna Jain and Dr. Kavita Dhalla. They gave their report already Ex.PW6/A wherein they had opined the age of the prosecutrix was in between 19 to 20 years.
51. PW18:W/SI Sunita is the investigating officer. She has deposed on the lines of investigation. This witness has proved the complaint of prosecutrix vide Ex.PW2/A and got medical examination of prosecutrix conducted vide MLC already Ex.PW3/A. The doctor who had conducted medical examination of the prosecutrix had also prepared sexual assault kit and collected the inner and outer clothes of the prosecutrix and handed over the same to her along with sample seal, which she seized vide seizure memo already Ex.PW4/A. This witness had called the NGO, who had given counseling to the prosecutrix at police station. The Duty Officer had handed over her the copy of FIR and rukka to her. She incorporated the particulars of the case in the seizure memo already Ex.PW4/A.
52. During the course of investigation, this witness arrested the accused at her instance vide arrest memo already Ex.PW2/C. Ct. Monit had conducted the personal search of the accused vide memo Ex.PW18/A. This witness interrogated the accused and recorded his disclosure statement Ex.PW18/B. Thereafter, this witness along with the prosecutrix went to her house and prepared site plan already Ex.PW2/B. This witness had got the medical examination conducted of accused vide MLC already Ex.PW9/A. This witness seized the exhibits pertaining to the accused along with sample seal vide seizure memo Ex.PW18/C. This witness had got recorded statement of the Case No.27322/2016 State Vs. Anil 16/36 prosecutrix under section 164 Cr.PC already Ex.PW2/D.
53. This witness deposed that on 24.02.2014 she had produced the prosecutrix before CWC, Mayur Vihar, Delhi because as per certificate issued by her school with regard to her 10th class provided to her by the prosecutrix, she was minor vide Ex.PW18/D (colly. two pages). She had got the said document verified, which was found genuine.
54. During the course of investigation, on 25.02.2014 she had got sent the exhibits of this case to FSL Rohini through Ct. Jai Prakash. This witness deposed that during the proceedings in the POCSO court accused had filed an application seeking directions to declare the prosecutrix major. Pursuant to the said application we again started making inquiry and during this course the school from where prosecutrix had passed out her 10th class had handed over me her 8th class transfer certificate already Ex.PW11/A on the basis of which prosecutrix had taken admission in class 10th in that school. During its verification it was found that transfer certificate already Ex.PW11/A was not issued by the school from where it was purported to be issued. The said school had given certificate already Ex.PW12/B. Then she approached to the first attended school of the prosecutrix namely Pooja Bal Vidyalaya, District Meerut, U.P. and she came to know that the lady, who was running this school had shut the same on account of her mental problem and she had left that place and shifted to some unknown place. She recorded the statements of the public witnesses in this regard.
55. Thereafter, after taking permission from CWC vide application Ex.PW18/D1, she sought to get the age estimation of the prosecutrix conducted but it could Case No.27322/2016 State Vs. Anil 17/36 not be conducted because she was pregnant at that time and the Chairman of Medical Board had provided her a letter in this regard, Ex.PW18/E. During the examination prosecutrix had revealed to her that the said pregnancy conceived by her from the physical relation established with her by some other boy.
56. This witness got a zero FIR registered with regard to the said pregnancy and got the same sent to PS Gazipur, Delhi for necessary action. During the course of investigation of that case the IO of PS Gazipur had got the ossification test of the prosecutrix conducted and she collected its report, already MarkA, MarkB, and Ex.PW16/A from PS Gazipur. As per that report prosecutrix turned out to be major. Thereafter, she prepared the supplementary charge sheet and filed the aforesaid documents in the POCSO court through supplementary chargesheet. Thereafter, pursuant to the order of POCSO court a FIR no. 514/14 was also registered against the prosecutrix and sent this case to the court being presided over by Ms. Kaveri Baweja, Ld. ASJ, Central, Tis Hazari Courts, Delhi.
57. On being cross examined by Sh. S. R. Raghav, ld. counsel for accused, this witness deposed that she had reached police station at about 12:00 midnight. Prosecutrix was found present along with her mother in the police station. She had left police station for hospital for the medical examination of the prosecutrix at 12:30 a.m. She had not made any DD entry at police station in this regard. Medical examination of the prosecutrix took 23 hours. They returned back police station along with prosecutrix at about 3:00 - 03:30 a.m. Doctor had handed over clothes of the prosecutrix along with sample seal to lady constable, who had accompanied her. She had not obtained signature of the prosecutrix on seizure memo pertaining to her clothes. She deposed that Case No.27322/2016 State Vs. Anil 18/36 she had called the counselor from the NGO during the medical examination of the prosecutrix. She deposed that she had recorded the statement of the prosecutrix after arrest of accused and preparing of site plan. No time of incident was disclosed by the prosecutrix in her complaint and statement. This witness had denied to the suggestion that accused was called at police station on 18.02.2014 in the evening time or that he was arrested there or that his arrest has been shown falsely on 19.02.2014. Information regarding arrest of accused was conveyed to Lalit, probably his brotherinlaw on telephone. This witness had denied to suggestion that there were chairs, one broken table, one sofa and one rack were also lying in that room or that room was so congested or that there was no space in that room or that she prepared wrong site plan. She had not recorded the statement of Nani of prosecutrix as she was very old. She had not taken into possession any prescription slip of sleeping pills for Nani of the prosecutrix. She had also not taken into possession any stripe of sleeping pills. She did not record the statement of proprietor of Kumar Tailors, who is also the owner of H. No. 53, Near Ram Mandir, Ansari Road, Daryaganj, Delhi. This witness admitted that school certificate issued by Mayur Public School was found forged. This witness had denied to suggestion that exhibits in the present case had been prepared falsely in connivance with doctor and prosecutrix or that she had not conducted the investigation of this case in fair manner or that all the proceedings were conducted while sitting at police station or that no such incident had happened with the prosecutrix or that she is deposing falsely.
58. PW19 Dr. Suminder Kaur, Sr. Forensic/Chemical Examiner (Biology) had conducted DNA examination qua the exhibits of this case and opined that the DNA profile generated from source of exhibit '1k1' (cotton wool swab), '1k2' (micro slides) and '1L' (cotton wool swab) was found similar with the DNA Case No.27322/2016 State Vs. Anil 19/36 profile generated from blood sample of accused, exhibit "4".
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
59. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. Accused claimed that he is innocent. He has been falsely implicated in this matter by the prosecutrix at the behest of her boyfriend with whom she later on married. She had tried to extort Rs. 5 Lakhs from him. He further claimed that the semen was planted by the IO after getting extracted the same from him in a plastic container. Accused has preferred to lead evidence in his defence.
DEFENCE EVIDENCE :
60. Accused has examined DW1 Sh. Manoj Kumar, DW2 Sh. Bhushan Kumar, Ahlmad in the court of Ms. Shilpi Jain, Ld. MM and DW3 Sh. Pramod Kumar, in his defence.
61. DW1 Sh. Manoj Kumar is a summoned witness. He deposed that he is running the business of printer repairing between middle and first floor of property No.53 at Printer Office. He opened his office at about 10:00 a.m. and close at about 8:30 or 9:00 p.m.
62. He further deposed that on 19.02.2014, police officials had met her while they were coming down in aforesaid property. He asked one of the police official as to what had happened. Police officials told him that before 23 days an incident had happened with a girl in the upper floor of his shop and they also inquired him orally if he had seen anything like this incident. He further deposed that he does not have personal knowledge about the case.
Case No.27322/2016 State Vs. Anil 20/3663. He further deposed that two days prior to 19.02.2014, he had not seen any girl or accused present in the court while going upstairs of second floor and coming down. He further deposed that if anyone cries or knocks, the door at the stairs of second floor he can hear the same easily and he found the aforesaid door locked on all the time.
64. On being cross examined by Sh. M. Zafar Khan, ld. Addl. PP for the State, he deposed that he does not know anyone in the name of Neeraj and he cannot say if accused is the brother of Neeraj and he does not know what incident had happened with any girl.
65. DW2 Sh. Bhushan Kumar, Ahlmad in the court of Ms. Shilpi Jain, Ld. MM has brought the summoned record in respect of case FIR No.514/14, PS Darya Ganj in which IO of the case has not filed the chargesheet. He further deposed that on the request of I.O. SI Dinesh Joshi, Ld. MM had issued process under section 82 Cr.P.C. against the prosecutrix who is accused in case FIR No.514/14 PS Darya Ganj for offence u/s 420/468/471 IPC. This witness has proved photocopy of the order of Ld. Magistrate vide Ex.DW2/A.
66. DW3: Sh. Pramod Kumar has deposed that accused present in the court had been working at his shop as a helper and aforesaid property is his joint property and he is having possession over ground, first and second floors in the aforesaid property and there are two rooms on the second floor.
67. He further deposed that in the year 2014 at second floor one room was in possession of Ram Chander and in other room his goods were lying and the Case No.27322/2016 State Vs. Anil 21/36 room in which his goods were lying used to be locked regularly and its key was in possession of Ram Chander.
68. He again deposed that the key of the room in which Ram Chander was in possession used to keep with him and the key of other room used to be remained with him and his goods i.e. a steel almirah, one chair and one table were lying in the other room. There was no steel box in his aforesaid room in the month of February, 2014. There was a door at the end of second floor. The aforesaid door used to be closed.
69. He further deposed that in the year 2014 one room was occupied by his father. One was occupied by his servant and third was locked. He used to keep the key of the aforesaid third room. If anyone knocks or beats the door of the second floor sound of the same can be heard on the first floor.
70. He further deposed that he had come to know that accused was arrested in connection with the case of a girl and this he came to know from his maternal uncle on 19.02.2014. He deposed that on 18.02.2014 police had taken the accused from his shop namely Kumar Tailors, near Golcha Cinema, Darya Ganj, Delhi in the evening time and accused was taken to police station. He further deposed that after shutting down his shop he had gone to police station at about 08:30 p.m. on 18.02.2014 and that one lady police official asked him to go back and as and when she would require she would call him.
71. He further deposed that he opens his shop at about 10:40 or 11:00 a.m. and used to shut down at about 07:45 or 08:00 p.m. Accused used to join his duty at about 10:45 or 11:00 a.m. and used to leave at about 07:45 or 08:00 p.m. He Case No.27322/2016 State Vs. Anil 22/36 deposed that one maid servant used to look after his father. No else other was looking after his father.
72. He further deposed that one day prior to 18.02.2014 accused Anil had remained at his shop but he was sent by him at about 01:00 p.m. for purchasing and giving medicine to his father at his house. Accused Anil had returned after 20 minutes and after that accused had not left from the shop on that day.
73. On being cross examined by Sh. M. Zafar Khan, Ld. Addl. PP for the State, this witness deposed that prosecutrix was not residence of their building. He does not know where she had been residing during those days. He deposed that as his maid servant is her Nani therefore, prosecutrix used to come to meet her over there occasionally. This witness had denied to suggestion that prosecutrix had been residing with her Nani for about 06 months prior to date of incident. He deposed that he came to know from the Nani of prosecutrix and she told him that "aisa waisa hua tha".
74. On Court question: What do you mean by "aisa waisa"? This witness replied that"Aisa waisa" means that accused had committed wrong act with the prosecutrix.
75. He deposed that he had seen prosecutrix once or twice with her Nani in his house. Prosecutrix might have been aged about 2022 years. He had not made any complaint that accused has been implicated in the present case. He did not join the investigation with the police on the second floor at any point of time. Thereafter, D.E. was closed and case was fixed for arguments.
Case No.27322/2016 State Vs. Anil 23/36ARGUMENTS;
76. Ld. Addl. PP for the State submitted that prosecutrix has supported the case of prosecution on all material points. She had categorically named accused and had identified him as offender. Prosecutrix had also named accused in FIR and statement u/s 164 Cr.P.C. recorded by ld. Magistrate. Ld. Addl. PP further submitted that as per the testimony of prosecutrix, her statement is inspiring confidence and she has also explained delay in making complaint with the police as she has consumed the sleeping pills of her Nani after the incident and she was also threatened by the accused after the incident of rape by the accused.
77. Ld. Addl. PP further submitted that the testimony of prosecutrix is corroborated by other witnesses i.e. PW6 Ram Chander, PW5 Rajinder Pratap Singh and PW4A Smt. Beena.
78. Ld. Addl. PP further submitted that as per the FSL report proved by PW19 Dr. Suminder Kaur, it has established on record that the DNA profile of the exhibit lki, lk2 and li which were of prosecutrix has matched with the DNA profile of source exhibit '4' which is blood sample of accused. As such the factum of sexual intercourse between accused and prosecutrix is proved scientifically.
79. On the other hand, Ld. counsel for accused argued and submitted that incident is improbable while prosecutrix says there was scuffle and noise by her during the incident. No sign of scuffle, objection or protest.
80. Ld. counsel for accused further submitted that voluntary accompany by prosecutrix to second floor with the accused and remained in the room for Case No.27322/2016 State Vs. Anil 24/36 about half an hour as deposed by her in cross examination dated 13.07.2015 and that no protest was mentioned in her statement u/s 161 Cr.P.C. It is notable that the vicinity of the alleged spot is thickly inhibited, so it is improbable as none could overhear the commotion. It means that the alleged incident of the sexual intercourse was consensual in nature but not forcible.
81. Ld. counsel for accused further submitted that conduct of the prosecutrix is unnatural & Improbable. Prosecutrix is a habitual liar and has no respect to speak truth. She has given her age, father's name, education, school name, source of sleeping pills etc. false statement in different versions. She has stated her age of minority in Tehrir while 21 years in the OPD card in the LNJPN Hospital in the year 2014.
82. Ld. counsel for accused further submitted that delayed FIR without any satisfactory explanation two days delay. Palace of arrest is doubtful. Prosecutrix did not disclose the place of arrest of the accused but she deposed before the court in chief examination that he was arrested at near shop of Kumar Tailors, Golcha Cinema, Darya Ganj.
83. Ld. counsel for accused further submitted that fabrication of evidence by manipulating of things by the police in collusion of the complaint regarding planting of semen of the accused. Semen was not detected on pubic hair, undergarments or leggy of the prosecutrix. It is very surprising and improbable that semen stains were found on the seater but not on the undergarments. On these grounds, ld. counsel for accused prayed that accused may be acquitted.
PERUSAL OF RECORD:
Case No.27322/2016 State Vs. Anil 25/3684. Record perused. On perusal of record, it is revealed that on the handwritten complaint prosecutrix Ex.PW2/A, present FIR was registered against the accused.
85. It is further revealed that IO PW18 W/SI Sunita along with PW4 W/Ct. Rani also got medical examination of PW2 prosecutrix conducted vide MLC Ex.PW3/A and medical examination of PW2 prosecutrix was conducted by PW3 Dr. Saumya. PW3 Dr. Saumya had also taken into possession the wearing clothes of PW2 prosecutrix i.e. her brassier, Ex.P1, her full sleeve ladies sweater and one black colour lagging, Ex.P2 and Ex.P3 respectively and handed over the same to PW4 W/Ct. Rani. IO PW18 W/SI Sunita seized the same vide seizure memo Ex.PW4/A.
86. It is further revealed that accused was also arrested by IO PW18 W/SI Sunita at the instance of PW2 prosecutrix from near shop of Kumar Tailor, Golcha Cinema, Daryaganj, Delhi vide arrest memo Ex.PW2/C. His personal search was also conducted vide personal search memo Ex.PW18/A. IO PW18 W/SI Sunita also recorded his disclosure statement, Ex.PW18/B.
87. It is further revealed that on 20.02.2014 IO PW18 W/SI Sunita got the statement of PW2 prosecutrix vide Ex.PW2/D under section 164 Cr.P.C. recorded pursuant to her application Ex.PW10/B. It was recorded by PW10 Ms. Aparna Swami, Ld. M.M., Tis Hazari Court, Delhi.
88. It is further revealed that PW5 Sh. Rajender Pratap Singh, Administrative Officer, Regional Office, Board of High School and Intermediate Education, Meerut, U.P. has produced the relevant entries vide Ex.PW5/A with regard to Case No.27322/2016 State Vs. Anil 26/36 high school examination passed by PW2 prosecutrix in the year 2013 and showing her date of birth as 03.05.1996. PW5 Sh. Rajender Pratap Singh has also proved his certificate Ex.PW5/B issued by the Secretary of his office to the said effect.
89. It is further revealed that PW7 HC Anil has also proved the relevant entries of register no. 19 pertaining to this case, Ex.PW7/A. PW7 HC Anil also proved road certificate, Ex.PW7/B vide which exhibits were sent to FSL Rohini through PW8 Ct. Jai Parkash. PW8 had deposited the exhibits at FSL Rohini against the acknowledgement, Ex.PW7/C.
90. It is further revealed that PW9 Dr. Manjunathan conducted potency test of accused vide MLC Ex.PW9/A and found nothing to suggest that he was incapable to perform sexual intercourse under normal circumstances.
91. It is further revealed that PW11 Sh. Monu Kumar, Head Clerk, Adarsh Bal Inter College, Pootth Khhas, Meerut, U.P. has produced the record pertaining to the admission of PW2 prosecutrix in college on 01.07.2011 in class IXth, Ex.PW11/A. PW2 prosecutrix completed her 10th class in the year 2013 vide high school examination certificate, Ex.PW5/B; the aforesaid document was handed over to the police by PW11 Sh. Monu Kumar, vide forwarding letter Ex.PW11/B.
92. It is further revealed that PW12 Sh. Tushar Tomar, Clerk, Mayur Public Jr. High School, Jail Chungi, Meerut, U.P. has produced the transfer certificate register of Mayur Public Jr. High School showing leaving certificate no.2280, Ex.PW12/A which was issued in the name of Sagar Bansla s/o Santar Pal Singh Case No.27322/2016 State Vs. Anil 27/36 by the said school. PW12 Dr. Tushar Tomar also testified that the said certificate was not issued to PW2 prosecutrix; principal of the school, Sh. Madan Singh Tomar has also issued certificate, Ex.PW12/B to the said effect.
93. It is further revealed that on 27.05.2014 a board comprising PW13 Dr. Pushpa Mishra, Dr. Monisha Pradhan, Dr. Jyoti Kumar and Dr. Monika Kelkar of Maulana Azad Medical College was constituted to conduct ossification test of PW2 prosecutrix pursuant to application Ex.PW18/D1 of IO PW18 W/SI Sunita, but it could not be conducted as PW2 prosecutrix was carrying 6 weeks 4 days pregnancy. They prepared their report, MarkX in this regard; the said Board had given a letter Ex.PW18/E in this regard to IO PW18 W/SI Sunita.
94. It is further revealed that PW16 Sh. Bahadur Singh, Assistant Ambulance Officer, Lal Bahadur Shastri Hospital, Delhi had also produced carbon copy of ossification report, Ex.PW16/A pertaining to PW2 prosecutrix which was conducted by a board of doctors comprising PW17 Dr. Vinay Kumar Singh, Dr. Rachna Jain and Dr. Kavita Dhalla and they opined the age of PW2 prosecutrix in between 19 to 20 years.
95. It is further revealed that PW18 W/SI Sunita also prepared site plan Ex.PW2/B at the instance of prosecutrix.
96. It is further revealed that Ct. Mohit had handed over the exhibits pertaining to you to IO PW18 W/SI Sunita who seized the same vide seizure memo Ex.PW18/C.
97. It is further revealed that on 24.02.2016 IO PW18 W/SI Sunita had produced Case No.27322/2016 State Vs. Anil 28/36 the prosecutrix before CWC, Mayur Vihar, Delhi as she was found minor as per her certificate issued by her school, Ex.PW18/D.
98. It is further revealed that during inquiry conducted pursuant to the directions of POCSO court, it was found that the certificate Ex.PW11/A filed by the prosecutrix was not issued by school from which it was purported to have been issued; the said school had given certificate Ex.PW12/B.
99. It is further revealed that pregnancy of the prosecutrix detected at the time of her ossification test. IO PW18 W/SI Sunita got a zero FIR registered and sent the same to PS Gazipur, Delhi. During the investigation of that case ossification test of the prosecutrix got conducted and IO PW18 W/SI Sunita collected the reports MarkA, MarkB and Ex.PW16/A from PS Gazipur and filed the same in the present case.
100. It is further revealed that PW19 Dr. Suminder Kaur, Sr. Forensic/Chemical Examiner (Biology) had conducted DNA examination qua the exhibits of this case and opined that the DNA profile generated from source of exhibit '1k1' (cotton wool swab), '1k2' (micro slides) and '1L' (cotton wool swab) was found similar with the DNA profile generated from blood sample, exhibit "4".
101. Before reaching at any conclusion, let the relevant sections i.e. 342/376(2)
(n)/506 IPC be reproduced, which are as under: Section 342 IPC:
Punishment for wrongful confinement. Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 376 (2) (n) IPC:Case No.27322/2016 State Vs. Anil 29/36
(2) Whoever,
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and shall also be liable to fine.
Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FINDINGS:
102. Arguments heard. Record perused. On perusal of record, it is revealed that on the complaint of prosecutrix Ex.PW2/A, present case was registered. As per complaint, she had stated her aged 1617 years whereas as per ossification test Ex.PW16/A, she found to be major person between 19 to 20 years. DW3 Pramod Kumar has also stated in same manner and submits that she might have been 2022 years old. Therefore, testimony of prosecutrix in this aspect cannot be relied.
103. Further, she had stated that she was raped by the accused on pretext of seeking her company to buy slipper for his wife and further on pretext of keeping the key of the room accused had took company of her upstairs. Therefore, she had gone there and further accused bolted the door from inside the room and committed rape. DW1 Manoj who is running printer repairing business below to room where the incident had taken place and he opened his office at about 10:00 a.m. and close at about 8:30 or 9:00 p.m. He has stated that two days prior to 19.02.2014, he had not seen any girl or accused on date of offence.
Case No.27322/2016 State Vs. Anil 30/36Site plan of place of incident is that his shop was between first floor and second floor. Therefore, it was easily visible for this witness if any person coming or going out from the stairs and this witness was material witness who must have been examined by the prosecution but same has not been done. As far as DNA is concerned, since DW1 has submitted that he had not seen prosecutrix and accused at the day of incident in the aforesaid premises during his working hours 10:00 a.m. to 8:30 p.m. Therefore, the testimony of this witness cannot be ruled out on this aspect.
104. DW2 Sh. Bhushan Kumar who is examined in this case with summoned record of case Fir No.514/14, PS Darya Ganj. This witness submitted that on 31.08.2015 on the request of I.O., Ld. MM had issued process under section 82 Cr.P.C. against the prosecutrix who is accused in case FIR No.514/14, PS Darya Ganj for offence under section 420/468/471 IPC.
105. Prosecutrix also deposed that in her testimony that after the incident she came downstairs to her Nani and her Nani asked her the reason as to why she was crying but in earlier deposition, prosecutrix never stated that after the incident she was crying and now here she stated that when she was crying. She further deposed that she consumed 810 pills which her Nani used. She further stated that on next day means 18.02.2014 at about 2:30 p.m. her mother Smt. Beena come to house of her Nani as she was not keeping well, her mother had awakened her up and that she started crying on seeing her mother and her mother asked her about reason of crying. She narrated entire incident to her. Her mother took her to PS Darya Ganj where she had given written complaint and police registered her case on 19.02.2014. On this fact also, testimony of the prosecutrix is not believable.
Case No.27322/2016 State Vs. Anil 31/36106. Accused was arrested vide arrest memo Ex.PW2/C but the column 5 and 6 of the arrest memo appears to be filled with different ink which shows these columns might have filled at later stage. Accused has also claimed in his statement u/s 313 Cr.P.C. that he was called at PS where he was arrested. Therefore, column No.5 of arrest memo regarding place of arrest reflect about that accused was arrested from open road near Kumar Tailors.
107. It is admitted case of prosecution that accused has been visited house of her Nani. Therefore, she might have in touch with the accused ad it is also improbable if any offence has been committed with a girl, she would take pills to sleep for a long hour or woke up till her mother comes there.
108. On perusal of testimony of prosecutrix, it has come on record that nowhere prosecutrix has raised alarm or that sought help from any person available on shop or that she had told her Nani about the incident if any incident had happened with prosecutrix. She must have told the incident to her Nani with whom she was residing at that time. Neither she stated the incident to her Nani nor the shopkeeper nearby where she was residing for 56 months.
109. Further, when prosecutrix submitted that accused had asked her to accompany her to keep the key there. It shows that prosecutrix had been consenting. Prosecutrix has also stated in her testimony that accused had told her that he had to keep the keys of room of his younger brother Neeraj who used to live in second floor but Neeraj has not been examined just to find he had given keys to the accused or not or that he had left the room locked or unlocked.
110. Conduct of prosecutrix shows that she has not come forward with clean hands on aspect of his complaint and deliberately she had disclosed her lower age Case No.27322/2016 State Vs. Anil 32/36 despite knowing that she was major on the day of incident.
111. There is no explanation of delay of registration of case whereas she submitted that her mother come on next day i.e. 18.02.2014 and she had told her entire fact of the case but despite that matter was registered on 19.02.2014 for which there is no explanation from the prosecutrix.
112. There are contradictions on material aspects in the statement of prosecutrix given in the court and statement of prosecutrix Ex.PW2/A recorded by police. She was confronted on the fact that she has stated to the police that the incident occurred at about 7/7:30 p.m.
113. Considering the testimony of DW1, it is proved that he had not seen the accused or prosecutrix on 17.02.2014. therefore, presence of accused with prosecutrix becomes doubtful. Therefore, fact of FSL report cannot be relied upon.
114. Prosecutrix has made material improvement in her statement during her deposition in the court and she was confronted with the improvements made by her which fact she did not tell to the police and told for the first time in court she was confronted with the question "I had stated to the police and ld. MM that accused asked my Nani to permit me to go with him" and "I had stated to the police that accused told me that he has to pick the key of the room of his younger brother namely Neeraj"
115. On specific question from the court "You earlier deposed that the vacant room on the second floor used to remain locked, but now you have deposed that it was bolted from outside. Which of your two statements is correct" Prosecutrix Case No.27322/2016 State Vs. Anil 33/36 replied that the vacant room on the second floor used to remains locked. The key of that room used to be with accused Anil. He had opened the said room for taking out some goods one day prior to the incident and that is why on 17.02.2014 it was not locked and was not locked and was only bolted.
116. I.O. had stated in her statement that transfer certificate Ex.PW11/A on its verification stated that same was not issued by the school from where it was purported to be issued.
117. I.O. further submitted that after taking permission from CWC she sought to get the age estimation of the prosecutrix conducted but it could not be conducted because she was pregnant at that time and the chairman of Medical Board had provided her a letter in this regard Ex.PW18/E but I.O. further stated that during the examination prosecutrix revealed to her that the said pregnancy conceived by her from the physical relation established with her by some other boy.
118. I.O. further stated that she got a zero FIR registered with regard to the said pregnancy and got the same sent to PS Gazipur, Delhi. During the course of investigation of that case the IO of PS Gazipur had got the ossification test of the prosecutrix conducted and she collected its report mark A, Mark B and Ex.PW16/A from PS Gazipur as per the report prosecutrix turned out to be major. Thereafter, she prepared the supplementary chargesheet and filed the aforesaid documents in the POCSO court through supplementary chargesheet. Thereafter, pursuant to the order of POCSO court a FIR No.514/14 was also registered against the prosecutrix and sent this case to the court.
119. Further, Nani of prosecutrix has also not examined by the prosecution as she Case No.27322/2016 State Vs. Anil 34/36 was very much material on the aspect of the presence of prosecutrix at her house.
120. Since the prosecutrix in her complaint stated her age 17 years by concealing actual age 19 20 years, she was intending to show her minor at the time of incident and further on enquiry her school transfer certificate found forged for which FIR was registered u/s 468/420/471 vide FIR No.514/14 PS Darya Ganj.
121. Further, MLC of prosecutrix Ex.PW3/A reflects "sexual assault on 17.02.2014 at 7:30 p.m. of patient/prosecutrix 17 years of age. Patient stay at Daryaganj with her Nani. The accused Anil used to come that house to work. The patient was locked by him in a room in the same house, where she stays and he forcefully had sexual intercourse with her twice. No h/o drug intoxication or physical assault. Patient has not changed her clothes or taken a bath since the incident. After the incident, patient herself has taken 67 pills. Her mother filed a complaint today."
122. Further, I.O. had also not examined Nani of the prosecutrix, Neeraj who was in possession of room where alleged offence stated to be committed. Manoj who has been examined as DW1, testimony of this witness in this might have supported the incident of present case.
123. In light of the material improvements and contradictions in the statement of prosecutrix, it is found that she has not deposed in the court with clean hands and she had deliberately withheld material information and also made improvements in her version given to the police. As such her testimony cannot be relied upon.
Case No.27322/2016 State Vs. Anil 35/36124. Considering the overall testimony of prosecutrix if the incident of rape with her had taken place against her then it would have been natural on her part to raise alarm or to tell about incident to her Nani and other persons whose shops/offices were situated in building but she did not do so. Hence, it creates doubt and possibility that she was consenting party to accompany the accused in a secret manner to the alleged place of incident cannot be ruled out.
125. Considering the facts and circumstances as discussed above, this court is of the view that prosecution has been failed to prove its case against the accused beyond reasonable doubt. Since prosecutrix has accompanied herself with the accused had been consenting party in the present case. Therefore, accused Anil is acquitted from the charge u/s 342/376 (2)(n)/506 IPC.
126. Accused is directed to execute bail bond u/s 437 A Cr. P.C. in sum of Rs.
25,000/ with one surety in the like amount.
127. Since prosecutrix has improved her version and has misused the due process of law, hence, no compensation is awarded to her.
128. File be consigned to record room.
PRONOUNCED IN THE OPEN
COURT ON 11.05.2018
(RAMESH KUMARII)
Digitally signed ASJ/SFTC2(CENTRAL),
by RAMESH
RAMESH KUMAR TIS HAZARI COURTS, DELHI.
KUMAR Date:
2018.05.11
17:07:08 +0000
Case No.27322/2016
State Vs. Anil 36/36