Delhi District Court
State vs . 1). Rajender Kumar @ Rajender Jindal on 1 February, 2013
1
FIR No. 1470/2006
PS Sultanpuri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK COURT
: NORTHWEST & OUTER DISTRICT : DELHI
Sessions Case No. : 107/13
Unique ID No. : 02404R0010912008
State Vs. 1). Rajender Kumar @ Rajender Jindal
@ Neetu
S/o Sh. Krishan Chand
R/o G5/112, Sector15,
Rohini, Delhi.
2). Ajay Kumar
S/o Sh. Rajender Kumar
R/o G5/112, Sector15, Rohini,
Rohini, Delhi.
FIR No. : 1470/06
Police Station : Sultanpuri
Under Sections : U/S 323/376/511/509/34 IPC
Date of committal to session Court : 12/08/2008
Date on which judgment reserved : 21/01/2013
Date of which judgment announced : 01/02/2013
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FIR No. 1470/2006
PS Sultanpuri
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: On 12.09.2006 W/SI Sanjita for the inquiry of DD No. 112B reached at Sanjay Gandhi Hospital, where HC Bajrang was found present, who while detailing the circumstances of DD No. 112B dated 11.09.2006, produced, the prosecutrix, (name withheld being a case u/s 376 IPC) who made the statement to the effect that, she is the permanent resident of village Bhaddi, PS Sarae Bazar, Distt. Saharsa, Bihar and presently living on rent at C1/138C Rama Vihar, PS Sultanpuri, Delhi, with her family. She is having three children in which two daughters are aged 11 and 9 years and son is aged 6 years. Her husband runs a goods carrying cycle rickshaw (thela chalanae ka kaam). About 4 years back her husband had purchased a plot in Sukhveer Nagar which is opposite Rama Vihar, since then they started living there on taking one room on rent. Near to her home there was a bulb manufacturing factory of Rajender Jindal @ Neetu and she started doing work in that factory.
2 of 45 3 FIR No. 1470/2006 PS Sultanpuri About two year ago, Rajender Jindal on taking a room on rent at C1/138C, Rama Vihar, PS Sultanpuri, Delhi told to her that she may live her and work of his factory be also done there. For about two years she had been doing the work of making of CFL tubes there. For about three months his (Rajender Jindal) work is lying closed. Rajender Jindal used to come to her house in a drunken state, he was stopped a few times by her that he should not come there in a drunken state, on which he (Rajender Jindal) started telling that he pays the rent of the room and he can do anything what he wishes after coming here. He used to come in such drunken state and used to do abusing and he was also forbidden for doing so, by her husband.
She further stated that yesterday dated 11.09.2006 in the evening time at about 7.00 PM, Rajender Jindal in a druken state came to her house and started abusing and she told him to fill up the room rent (makaan ka kiraya bhar de), on which he told since she lives her, she to fill up the rent, on which she said that's all right, she will fill up the rent, he should lift up his luggage (saman) from here and her plot documents be returned back to her. He said let the luggage be sold out, he will get her documents return back. He called his son and asked him to get a three wheeler. His son Ajay came with a three wheeler and he (Rajender Jindal) after filling his luggage in one three wheeler sent it. His son Ajay started lifting her TV and folding bed, 3 of 45 4 FIR No. 1470/2006 PS Sultanpuri she prevented him (Ajay) saying that TV and folding bed belongs to her, she will not let them take away, on which he (Ajay) after giving a push made her lie down on the ground and pressed her throat and pressed her breasts and torned her gown and sat riding upon her and made an attempt to forcibly commit rape upon her and also abused by calling her 'haramjadi Randi'. Rajender Jindal by abusing her in filthy language has also caused harm/insult to her womanly respect. On seeing her condition, her husband made a call to police on no. 100, on which Rajender Jindal and Ajay on taking their luggage fled from there. Legal action be taken against Rajender Jindal and Ajay. She has got recorded her statement in the presence of her husband. She has heard the statement and is correct. W/SI Sanjita obtained the MLC of the prosecutrix, on the MLC, the doctor has endorsed "alleged history of physical assault with attempt of sexual assault & torn her clothes Nighty Gown & Brassier". From the statement of prosecutrix, her MLC, on finding that offences u/s 323/376/511/509/34 IPC appeared to have been committed. W/SI Sanjita got registered the case and herself took up the investigation.
During the course of investigation on the pointing out of the prosecutrix prepared the site plan. Statements of the witnesses u/s 161 Cr.P.C were recorded. The sealed pullandas preserved during the medical examination were taken into police possession. Both the accused Rajender 4 of 45 5 FIR No. 1470/2006 PS Sultanpuri Jindal and Ajay Kumar were arrested and got them medically examined and the sealed pulldans preserved during the medical examination of accused were taken into police possession. The exhibits were sent to FSL.
Upon completion of the necessary further investigation challan u/s 323/376/511/509/34 IPC was prepared against both the accused Rajender Kumar @ Rajender Jindal and Ajay Kumar and was sent to the Court for trial.
2. Since the offence u/s 376/511 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 323/509/354/34 IPC against accused Rajender Kumar and a case u/s 323/509/354/34 IPC and u/s 376/511 IPC against accused Ajay Kumar was made out. Charges were framed accordingly which were read over and explained to both the accused to which they pleaded not guilty and claimed trial.
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4. In support of its case prosecution has produced and examined nineteen witnesses. PW1 The Prosecutrix, PW2 Dr. Binay Kumar, Medical Officer, Sanjay Gandhi Memorial Hospital, Delhi83, PW3 Dinesh Poddar, PW4 Dr. Deepti Medical Officer, SGM Hospital, PW5 HC Kali Charan, PW6 Ct. Ashok Kumar, PW7 ASI Bajrang Lal, PW8 Dr. Brijesh, CMO, SGM Hospital, Mangolpuri, Delhi, PW9 Ramesh Kumar, PW10 HC Attar Singh, PW11 Dilip Kumar, PW12 Dr. Sameer Pandit, Medical Officer, Central Jail Tihar, Delhi, PW13 Kumari Shallu, PW14 Pooja @ Priya, PW15 Dr. Dinesh Jain, PW16 W/Inspector Sanjita, PW17 Ct. Joginder, PW18 ASI Ajeet Singh and PW19 HC Ramesh Kumar.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 The Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ext. PW1/A, signed by her at point 'A', arrest memos of accused Rajinder and Ajay Ext. PW1/B & Ext. PW1/C, their personal search memos Ext. PW1/D & Ext. PW1/E respectively and also proved the seizure memo of the sealed exhibits which were handed over by the Doctor after her medical examination Ext. PW1/F, signed by her at point 'A'.
6 of 45 7 FIR No. 1470/2006 PS Sultanpuri PW2 Dr. Binay Kumar, medical Officer, Sanjay Gandhi Memorial Hospital, Delhi, who medically examined the prosecutrix on 12.09.2006 and proved the MLC Ex. PW2/A signed by him at Point 'A'.
PW3 Dinesh Poddar is the husband of the prosecutrix who deposed regarding the incident and proved the statement of prosecutrix recorded by the Police in his presence Ext. PW1/A signed by him at PointA and also identified and proved the clothes of the prosecutrix, the gown Ext. P1 & bra Ext. P2.
PW4 Dr. Deepti, Medical Officer, SGM Hospital, who proved the gynaecological examination of the prosecutrix as was conducted by Dr. Meenakshi vide her endorsement encircled at PointA on the MLC Ex. PW2/A signed by Dr. Meenakshi at PointC. PW5 HC Kali Charan is the Duty Officer, who proved the copy of FIR Ext. PW5/A and his endorsement on the original rukka Ext. PW5/B. PW6 Ct. Ashok Kumar is the DD writer who deposed that on 7 of 45 8 FIR No. 1470/2006 PS Sultanpuri 11.09.2006 at about 11.02 PM he recorded DD No. 112B and proved the copy of the same Ext. PW6/A signed by him at Point 'A'.
PW7 ASI Bajrang Lal who deposed that on 11.09.2006 on receiving DD No. 112B he alongwith Ct. Joginder reached at C1/138C Rama Vihar and deposed regarding the investigational aspects and proved the seizure memo of the sealed exhibits of the prosecutrix which were handed over by the concerned Doctor alongwith one sample seal of SGMH Govt. of NCT, Delhi Ex. PW1/F signed by him at point 'C'.
PW8 Dr. Brijesh, CMO, SGM Hospital, Mangol Puri, Delhi who proved the medical examination of patient/accused Rajender Kumar as was conducted by Dr. Amit Kumar Prasad vide MLC Ext. PW8/A signed by Dr. Amit Kumar Prasad at Point 'A'.
PW9 Ramesh Kumar is the owner of House no. C1/138C at Rama Vihar, Delhi which was rented out by him on a monthly rent of Rs. 800/ to the accused Rajinder Jindal for his labour/prosecutrix to live in the said accommodation alongwith her family and to do the works of factory, in the year 2006 about six months prior to the present incident.
8 of 45 9 FIR No. 1470/2006 PS Sultanpuri PW10 HC Attar Singh who deposed that on 29.09.2006 he collected the sealed pullindas from the MHC(M), PS Sultanpuri vide RC No. 500/21/2006 and deposited the same in FSL Rohini and after depositing the same returned one copy of the RC alongwith the receipt of FSL to MHC(M).
PW11 Dilip Kumar is the neighbour of the prosecutrix who deposed that on 11.09.2006 at about 11.00 PM, when he came back to his house from his work there he saw a crowd. When he reached near the crowd he saw that prosecutrix was lying on the ground and the accused Ajay Kumar was giving beatings with fists and slaps to her after caughting hold her, "bahut buri tarah se maar raha tha". He rescued prosecutrix from the clutches of accused Ajay Kumar & thereafter, Ajay Kumar slipped from there stating that he is going to inform the police.
PW12 Dr. Sameer Pandit, Medical Officer, Central Jail Tihar, Delhi who deposed that on 12.09.2006 he examined the patient Ajay Kumar and after examination there was nothing to suggest that the patient was incapable of performing sexual intercourse and proved the MLC of accused Ajay Kumar Ext. PW12/A signed by him at PointA. 9 of 45 10 FIR No. 1470/2006 PS Sultanpuri PW13 Kumari Shallu is the younger daughter of the prosecutrix who deposed regarding the incident.
PW14 Pooja @ Priya is the elder daughter of the prosecutrix who deposed regarding the incident.
PW15 Dr. Dinesh Jain who deposed that on 11.09.2006 after off hours of his clinic, he was going to his house, when he reached near C1/138, he noticed a crowd of public and noticed that both the accused persons were giving beatings to a lady. He intervened in the matter and separated that lady from the clutches of that accused persons. The public persons over powered both the accused persons, thereafter, he went to his house to attend a patient who was present at his house. He was interrogated and police recorded his statement.
PW16 W/Inspector Sanjita is the Investigating Officer who deposed on the investigational aspects and besides proving the other memos also proved the rukka Ex. PW16/A, site plan Ex. PW16/B and the seizure memo of the sealed pullindas which were handed over by the concerned Doctor after the medical examination of accused Ajay Kumar Ex. PW16/D 10 of 45 11 FIR No. 1470/2006 PS Sultanpuri signed by her at point 'A' and deposed that she procured FSL report and tendered the same as Ext. PW16/E & Ext. PW16/F. PW17 Ct. Joginder who joined the investigation and deposed on the investigational aspects and deposed that he took the rukka to the Police Station and got the FIR registered and after registration of the case handed over the copy of FIR and original rukka to the IO.
PW18 ASI Ajeet Singh who deposed that on 11.09.2006 he was posted in NorthWest Zone, PCR, was on duty in Commander 69 and at about 11.00 PM he received a PCR call through wireless regarding beating of a person at Ram Vihar School Road at H.No. C138, Rama Vihar. He went there and removed the prosecutrix and a person namely Rajender to SGM Hospital in PCR Van and got her admitted there. In the meantime, HC Bajrang came to the hospital from PS Sultanpuri he handed over the injured and the person who was brought to the hospital namely Rajender to HC Bajrang.
PW19 HC Ramesh Kumar is the MHC(M) who proved the relevant entry of register No. 19 Ex. PW19/A, also proved the copy of the 11 of 45 12 FIR No. 1470/2006 PS Sultanpuri road certificate no. 500/21/06 as Ext. PW19/B and the copy of the acknowledgment given by the FSL of the acceptance of the case property as Ext. PW19/C on the back of carbon copy of road certificate no. 500/21/06.
The testimonies of the material prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.
6. Statements of accused Rajender Jindal and Ajay were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication at the instance of the complainant and her husband. Both the accused opted to lead defence evidence.
In their defence accused persons examined two witnesses. DW1 Makhan Dev Nath and DW2 Sanjay Bhomik.
DW1 Makhan Dev Nath in his examinationinchief has deposed that he works as a driver and runs a Vikram scooter. On 11.09.2006 he was called by accused Rajender by telephonic him to come with Vikram scooter as a house is to be vacated. The goods were loaded from that house in the Vikram Scooter by Rajender where he was called by him. The goods which 12 of 45 13 FIR No. 1470/2006 PS Sultanpuri were so loaded were taken by him to Sector15, Rohini, Delhi. When he again came to the place, the house from where he had loaded the goods, he saw a quarrel between Rajender and a lady with regard to the vacating of the house. He remained there for about 1015 minutes and had left that place by the permission of accused Rajender.
DW2 Sanjay Bhomik in his examinationinchief has deposed that on 11.09.2006 he had gone to the factory at Rama Vihar which was run in two rooms of accused Rajinder for taking the goods as Rajinder was manufacturing CFL, alongwith M.K. Rai there he saw that a quarrel was taking place with a lady who used to live in that rooms/factory and accused Rajinder present in the court. The reason for the quarrel was on a money transaction (lain dain). He does not know the details of money transaction (lain dain). Accused Ajay son of accused Rajinder was not present there at that time.
The testimonies of the defence witnesses shall be dealt with in detail during the course of the appreciation of evidence.
7. Ld. Counsel for the accused submitted that PW1 - Prosecutrix in 13 of 45 14 FIR No. 1470/2006 PS Sultanpuri her statement in chief stated that accused Rajender used to come to her said house in drunken condition and used to abuse her but no complaint was lodged in this regard. He further submitted that at the time of incident accused persons who are son and father in relation and husband of the complainant with children were present on the spot as such there is no chance and possibility of this incident. Ld. Counsel for the accused further submitted that PW1 - Prosecutrix deposed in her chief that accused Rajender thereafter, fled from the spot but in fact Rajender was present on the spot and Police caught the Rajender on the spot. He further submitted that PW3 Dinesh Poddar stated in his chief that he was present at residence and accused Rajender again came there in drunken condition and started abusing and accused Ajay pushed his wife and started beating her and also stated that accused Rajender was apprehended and handed over to the Police. As per the version of witness mentioned above this is a case of beating but in MLC no injuries was found by beating of complainant by the accused persons.
Ld. Counsel for accused further submitted that PW11 - Dalip Kumar also stated that he saw that one lady namely prosecutrix (name withheld) was lying on the ground and accused Ajay was giving beatings with fists and slaps to her and again said in cross "I cannot tell the name of the persons of the locality who helped in rescuing the complainant". Ld. 14 of 45 15 FIR No. 1470/2006 PS Sultanpuri Counsel for accused further submitted that PW13 - Kumari Shallu also in her chief stated that "I was present at my house at about 7:00 p.m. alongwith my mother and other family member except my father" and also stated that accused had given beatings to her mother and same version was deposed by PW14. He further submitted that PW15 - Dr. Dinesh Jain stated in his chief that both the accused persons were giving beatings to a lady and separated that lady from the clutches of accused persons.
Ld. Counsel for accused further submitted that PW6 - Constable Ashok Kumar stated in his chief that a call from PCR to the effect that scuffle and beating had taken place. Ld. Counsel for accused further submitted that PW7 - ASI Bajrang Lal also stated in his crossexamination that it is correct that the information received vide DD No. 112B was regarding only scuffle. He further submitted that PW16 - W/Inspector Sanjita also stated that she received an information from Duty Officer in respect of a quarrel. He further submitted that as per the witnesses and prosecution story the accused person admitted that only quarrel verbally was taken place between accused Rajender and prosecutrix (name withheld) and due to revenge and enmity, the complainant with the collusion of Police officials implicated the accused persons in this false case. As per the circumstances no case is made against the accused persons and accused Ajay 15 of 45 16 FIR No. 1470/2006 PS Sultanpuri was not present on the spot after 8:00 p.m. and prayed that the accused person may kindly be acquitted in this case.
8. While the Ld. 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.
9. I have heard Sh. S. C. Sroai, Ld. Addl. PP for the State and Sh. Naveen Sharma, Ld. Counsel for the accused persons and have also carefully perused the entire record.
10. The charge for the offences u/s 323/34, u/s 509/354/34 IPC against accused Ajay Kumar and Rajender Kumar is that on 11/09/2006, at about 7:00 p.m. at C1/138C, Rama Vihar, Sultan Puri within the jurisdiction of PS - Sultan Puri, accused Ajay Kumar alongwith coaccused Rajender Kumar, his father, in furtherance of their common intention voluntarily caused hurt to prosecutrix (name withheld) W/o Dinesh and intending to insult modesty of prosecutrix, uttered words by abusing prosecutrix in 16 of 45 17 FIR No. 1470/2006 PS Sultanpuri furtherance of their common intention, intending that same shall be heard by her. Further, the charge for the offence punishable u/s 376/511 IPC against accused Ajay Kumar is that on the abovesaid date, time and place, he attempted to rape prosecutrix and in such attempt he torned gown of prosecutrix and pressed her breast and thereafter lied upon prosecutrix in order to attempt rape upon prosecutrix.
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 interest of justice.
MEDICAL EVIDENCE:
12. PW2 Dr. Binay Kumar, Medical Officer, Sanjay Gandhi Memorial Hospital, Delhi, who in his examinationinchief has deposed that on 12.09.2006 he was posted at SGM Hospital, Mangolpuri as CMO. On that day he medically examined prosecutrix W/o Dinesh Poddar, Female, 26 17 of 45 18 FIR No. 1470/2006 PS Sultanpuri years with alleged history of attempt of sexual assault. During local examination two bruises on the right side of the neck, abrasion on left forearm and abrasion over front of chest were observed. Her garments i.e one gown and bracier (brassiere) as well as the vaginal swab which was handed over to him by the Gynae S.R Dr. Meenakshi was sealed and handed over to the IO. Patient was gynaecological examined by the Dr. Meenakshi. MLC Ext. PW2/A signed by her at Point'A'.
PW4 Dr. Deepti, Medical Officer, SGM Hospital, who proved the notings of gynaecological examination of prosecutrix (PW1) encircled at Point 'B' on the MLC Ext. PW2/A as was conducted by Dr. Meenakshi, signed by Dr. Meenakshi at PointC. The said PWs were not crossexamined despite grant of opportunities, therefore, their testimony remained unchallanged.
In view of above, the testimonies of PW2 Dr. Binay Kumar and PW4 Dr. Deepti, MLC Ext. PW2/A, notings of gynaecological examination at Point 'B' on MLC Ext. PW2/A, of prosecutrix (PW1) clearly establishes on record; two bruises on right side neck (1 X 1 cm); abrasion on left forearm (1 X 1 cm); abrasion on chest (scratch mark by nail). Torn clothes 18 of 45 19 FIR No. 1470/2006 PS Sultanpuri torn right strip of bra, sleeves of gown and mud attached to lower limbs of the PW1 prosecutrix.
13. Ld. Counsel for the accused submitted that as per the version of PW1 - Prosecutrix and PW3 - Dinesh Poddar, this is a case of beating but in the MLC no injuries were found by beating of complainant by the accused persons.
I have carefully perused and analysed the evidence on record. It appears that the Ld. Counsel for the accused has either not read or mis read the medical examination as was conducted by PW2 - Dr. Binay Kumar vide MLC Ex. PW2/A and gynaecological examination as was conducted by PW4
- Dr. Deepti at point 'B' on the MLC Ex. PW2/A of the prosecutrix, as discussed hereinabove. In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for accused.
VIRILITY OF ACCUSED AJAY KUMAR :
14. PW12 Dr. Sameer Pandit, Medical Officer, Central Jail Tihar, 19 of 45 20 FIR No. 1470/2006 PS Sultanpuri Delhi in his examinationinchief has deposed that on 12.09.2006 he was posted as CMO in Sanjay Gandhi Memorial Hospital. On that day, he examined Ajay Kumar S/o Shri Rajender Jindal, aged 23 years old who was brought by Ct. Joginder Singh with alleged history of sexual assault. He conducted his examination vide MLC No. 14002 and E number 70558 which was Ext. PW12/A which was in his handwriting and bears his signatures at pointA. In his opinion there was nothing to suggest that the present accused was incapable of performing sexual intercourse.
The said PW was not crossexamined despite grant of opportunity, therefore, his testimony has gone unchallenged.
In the circumstances, it stands established on record that there is nothing to suggest that accused Ajay Kumar was incapable of performing sexual intercourse.
BIOLOGICAL & SEROLOGICAL EVIDENCE:
15. PW16 W/Insp. Sanjita, IO in her examinationinchief has 20 of 45 21 FIR No. 1470/2006 PS Sultanpuri deposed that she also procured the FSL report from FSL Rohini which are Ext. PW16/E and Ext. PW16/F. As per FSL report Ext. PW16/E the description of articles contained in parcel and result of anaysis reads as under: DESCTRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibits '1a' & '1b'. Exhibit '1a' : One maxi.
Exhibit '1b' : One brassiere.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '2', kept in a plastic tube.
Exhibit '2' : Small cotton wool swab on a wooden stick. Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '3'.
Exhibit '3' : One underwear. Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH
GOVT OF NCT DELHI" containing exhibit '4', kept in an injection vial.
21 of 45 22 FIR No. 1470/2006 PS Sultanpuri Exhibit '4' : Dark brown foul smelling liquid described as 'Blood sample of accused'.
RESULT OF ANALYSIS
1. Human semen was detected on exhibit '3'.
2. Semen could not be detected on exhibits '1a', '1b' & '2'.
3. Blood was detected on exhibit '4'.
4. Report of serological analysis in original is attached herewith. Note : Remnants of the exhibits have been sealed with the seal of AC FSL DELHI.
As per FSL report Ext. PW16/F, the result of serological
analysis reads as:
Exhibits Species of ABO
Origin Grouping/Remarks
Semen stains
'3' Underwear No Reaction
Blood stains
'4' Blood sample Sample blood was putrefied hence no opinion
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FIR No. 1470/2006
PS Sultanpuri
On careful perusal and analysis of the biological evidence on the record, it clearly shows that Human semen was detected on exhibit '3' (underwear of accused Ajay Kumar) and Blood was detected on exhibit '4' (Blood sample of accused Ajay Kumar).
On conjoint reading of the medical evidence, the gynaecological examination at point 'B' on the MLC Ex. PW2/A of the prosecutrix, MLC of prosecutrix Ex. PW2/A together with the MLC of accused Ajay Kumar Ex. PW12/A, in the light of the biological and serological evidence detailed here inabove, it clearly indicates taking place of emission of semen from the penis of accused Ajay Kumar.
In the circumstances, it stands clearly established on the record that emission of semen from the penis of accused Ajay Kumar has taken place in the instant case.
As per the biological report Ex. PW16/E with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 and Parcel No. 2 belong to PW1 - Prosecutrix which were seized vide 23 of 45 24 FIR No. 1470/2006 PS Sultanpuri seizure memo Ex. PW1/F and Parcel No. 3 and Parcel No. 4 belong to accused Ajay Kumar which were seized vide seizure memo Ex. PW16/D. As per the biological report Ex. PW16/E, prosecution has discharged its initial burden of proving the presence of Human Semen on exhibit '3' underwear (of accused Ajay Kumar seized vide seizure memo Ex. PW16/D). Accused Ajay Kumar was under an obligation to explain how and under what circumstances, the human semen came to be present on the said exhibit '3'. The absence of such an explanation both in the Section 313 Cr.P.C. statement of the accused Ajay Kumar and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
HOUSE NO. C1/138C, RAMA VIHAR, DELHI, ITS OWNERSHIP UNDER WHOSE TENENCY.
16. PW9 Ramesh Kumar who is the owner of H.No. C1/138C, Rama Vihar, Delhi in his examinationinchief has deposed that he resides at the above given address and he is a Government Employee in the Office of Delhi State Civil Supply. He is having a house bearing No. C1/138C at 24 of 45 25 FIR No. 1470/2006 PS Sultanpuri Rama Vihar, Delhi which was rented out by him on a monthly rent of Rs. 800/ to the accused present in the Court Rajinder Jindal. At the time when the accused had taken the said accommodation on rent, he told him that his labour prosecutrix will live in the said accommodation alongwith her family and will do the minor works of his factory. The said accommodation was rented out by him in the year 2006 about six months prior to the present incident but he was unaware about the incident.
(Name of the prosecutrix withheld) PW9 Ramesh Kumar was not crossexamined despite grant of opportunity. Moreover, the testimony of PW9 Ramesh Kumar has been corroborated by PW1 Prosecutrix.
PW1 - Prosecurix who in her examinationinchief has deposed which is reproduced and reads as under : "On 11.09.2006 I used to reside at a tenanted premises bearing no. C1/138C, Rama Vihar alongwith my family. I am having three children two daughter and one son. At that time, my husband Dinesh used to run a goods carrying cycle rickshaw (Theli). 34 years prior to the present incident, my husband had purchased one plot at Sukhbir Nagar which is in front of Rama Vihar. As after purchasing the said plot, we were short of money as such I started working in the bulb manufacturing factory of accused Rajinder @ Neetu present in the court today (correctly identified).
25 of 45 26 FIR No. 1470/2006 PS Sultanpuri About 2 years prior to the present incident, accused Rajinder took H.No. C1/138C, Rama Vihar on rent and asked me to live there with my family and to execute the work of his bulb manufacturing unit. For last about 3 months of the present incident there was no work in the factory and during this period accused Rajinder used to come to my said house in drunken condition and used to abuse me and when I and my husband asked him not to come to our house in drunken state, he told that he is playing the rent of said accommodation as such he can do anything there."
From the aforesaid narration of PW1 - Prosecutrix, it is clearly indicated that on 11.09.2006, she used to reside at a tenanted premises bearing no. C1/138C, Rama Vihar alongwith her family. She is having three children two daughters and one son. At that time, her husband Dinesh used to run a goods carrying cycle rickshaw (Theli). 34 years prior to the present incident, her husband had purchased one plot at Sukhbir Nagar which is in front of Rama Vihar. As after purchasing the said plot, they were short of money as such she started working in the bulb manufacturing factory of accused Rajinder @ Neetu present in the Court. About 2 years prior to the present incident, accused Rajinder took H. No. C1/138C, Rama Vihar on rent and asked her to live there with her family and to execute the work of his bulb manufacturing unit. For last about 3 months of the present incident there was no work in the factory and during this period accused 26 of 45 27 FIR No. 1470/2006 PS Sultanpuri Rajinder used to come to her said house in drunken condition and used to abuse her and when she and her husband asked him not to come to their house in drunken state, he told that he is paying the rent of said accommodation as such he can do anything there.
In view of above and in the circumstances, it stands established on the record that PW9 Ramesh Kumar was the owner of H. No. C1/138C, Rama Vihar, Delhi who had given the said house on rent to Rajinder Jindal on the monthly rent of Rs. 800/ and the said house was given by accused Rajinder Jindal to PW1 - Prosecutrix to live there with her family and to execute the work of his (accused Rajinder Jindal) bulb manufacturing unit.
17. Now let the testimony of PW1 prosecutrix, PW3 - Dinesh Poddal, PW13 - Kumari Shallu, PW14 - Pooja, PW11 - Dilip Kumar and PW15 - Dr. Dinesh Jain be perused and analysed.
PW1 Prosecutrix in her examinationinchief has deposed that on 11.09.2006, she used to reside at a tenanted premises bearing no. C1/138C, Rama Vihar alongwith her family. She is having three children two daughters and one son. At that time, her husband Dinesh used to run a goods carrying cycle rickshaw (Theli). 34 years prior to the present incident, her husband had purchased one plot at Sukhbir Nagar which is in front of Rama 27 of 45 28 FIR No. 1470/2006 PS Sultanpuri Vihar. As after purchasing the said plot, they were short of money as such she started working in the bulb manufacturing factory of accused Rajinder @ Neetu present in the court (correctly identified). About 2 years prior to the present incident, accused Rajinder took H.No. C1/138C, Rama Vihar on rent and asked her to live there with her family and to execute the work of his bulb manufacturing unit. For last about 3 months of the present incident there was no work in the factory and during this period accused Rajinder used to come to her said house in drunken condition and used to abuse her and when she and her husband asked him not to come to their house in drunken state, he told that he is paying the rent of said accommodation as such he can do anything there.
She further deposed that on 11.09.06, at about 7.00 pm accused Rajinder again came to her said house in drunken condition and started abusing her then she said that now onwards she will pay the rent of this accommodation and you please shift your articles (Saman) from this house and she also asked accused Rajinder to return the documents of her plot which he had got mortgaged with some property dealer namely Deep Properties but he told her that whenever he would be able to sale his goods, he would manged to get the documents of her said plot returned. He called 28 of 45 29 FIR No. 1470/2006 PS Sultanpuri his son Ajay accused present in the Court and asked him to bring a three wheeler. Ajay came there after some time with a three wheeler and accused shifted all his belongings present at her said accommodation in the said three wheeler and the three wheeler moved from there. Thereafter accused Ajay started lifting her TV and folding bed were of hers. Then accused Ajay pushed her aside. She fell down, he strangulated her neck, torn her gown/nighty which she was wearing at that time and pressed her both the breasts. Vol. Still she is having a nail mark given by accused Ajay on one of her breast. He lifted her gown completely exposing her lower body portion and laid down over her with his full weight and force and attempted to commit rape on her. She used her all the strength and power and was able to remove herself from beneath the accused Ajay and ran outside (The witness weeps while deposing so). Her husband dialed 100 number. Accused Rajinder and Ajay thereafter fled from the spot. Both the accused abused her in flithy language. She made her complaint to the police Ext. PW1/A signed by her at point 'A'.
PW1 The Prosecutrix was not crossexamined despite grant of opportunity. Therefore her testimony remained unchallenged. It is well settled that if there is no crossexamination of a prosecution witness in 29 of 45 30 FIR No. 1470/2006 PS Sultanpuri respect of a statement of fact, it will only show the admission of that fact (Ref. : Wahid Ahmed and Ors. Vs. State 2011 AD (DELHI) 276.
Her testimony is natural, clear, cogent, convincing, trustworthy and inspires confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
Further the testimony of PW1 Prosecutrix on the aspects of having suffered injuries, her clothes were torn and she was laid on the ground is also corroborated by the 'Medical Evidence' as discussed herein before.
The testimony of PW1 Prosecutrix has further been corroborated by the testimonies of PW3 Dinesh Poddar, her husband and PW13 Kumari Shallu and PW14 Pooja, her daughters.
PW3 Dinesh Poddar in his examinationinchief has deposed on the same lines as has been deposed by PW1 Prosecutrix. He was not cross examined despite grant of opportunity. PW13 Kumari Shallu & PW14 Pooja have also deposed in their examinationinchief on the same lines as 30 of 45 31 FIR No. 1470/2006 PS Sultanpuri has been deposed by PW1 Prosecutrix.
During her crossexamination PW13 Kumari Shallu has negated the suggestions that she is deposing falsely at the instance of her mother or that none of the accused gave beatings to her mother or that accused Ajay did not misbehave to her mother or that accused Neetu (Rajinder) did not misbehave with her mother or that due to personal enmity the accused persons have been falsely implicated in this case.
During her crossexamination PW14 - Pooja negated the suggestions that she was not present at the time of incident at her house or that she had not seen the quarrel between the accused persons with her mother or that she is deposing falsely at the instance of her mother.
There is nothing in the crossexamination of PW13 Kumari Shallu & PW14 Pooja so as to impeach their creditworthiness. In the witness box they have withstood the test of crossexamination and their testimonies are consistent through out.
Their testimonies on perusal and analysis are found to be natural, 31 of 45 32 FIR No. 1470/2006 PS Sultanpuri cogent, reliable, inspires confidence and have a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
The testimonies of PW1 Prosecutrix, PW3 Dinesh Poddar, PW13 Kumari Shallu and PW14 Pooja have also corroborated by PW11 Dalip Kumar and PW15 Dr. Dinesh Jain.
PW11 Dalip Kumar in his examinationinchief has deposed which is reproduced and reads as under: "I am residing at C1/127, Rama Vihar, Sultan Puri, Delhi for the last 6/7 years. I am an astrologer by profession and also a Crime Reporter of the magazine 'Mitra Police'.
On 11/09/06 at about 11:00 p.m., when I came back to my house from my work there I saw a crowd. When I reached near the crowd I saw that one lady prosecutrix was lying on the ground and the accused present in the Court today Ajay Kumar (correctly identified) was giving beatings with fists and slaps to her after caughting hold her, "bahut buri tarah se maar raha tha". I rescued prosecutrix from the clutches of accused Ajay Kumar & thereafter, Ajay Kumar slipped from there stating that he is going to inform the police."
32 of 45 33 FIR No. 1470/2006 PS Sultanpuri (Name of the prosecutrix withheld) During his crossexamination PW11 - Dalip Kumar negated the suggestions that he had seen the accused for the first time in the Police custody at PS or that he was not present at the time of alleged incident or that he had not seen the alleged incident as deposed or that he is deposing falsely being a neighbour of the complainant at her instance to falsely implicate the accused persons.
PW15 Dr. Dinesh Jain in his examinationinchief has deposed which is reproduced and reads as under: "I am doctor by profession and use to run my clinic at C8/3, Shukar Bazaar Road, Rama Vihar81. On 11.09.06, after off hours of my clinic, I was going to my house, when I reached near C1/138, I noticed a crowd of public and noticed that both the accused persons present in the court today were giving beatings to a lady. I intervened in the matter and separated that lady from the clutches of that accused persons. The public persons over powered both the accused persons, thereafter, I went to my house to attend a patient who was present at my house. I was interrogated and police recorded my statement."
During his crossexamination PW15 - Dr. Dinesh Jain negated the suggestions that he was not present at the above place or that he has not seen any quarrel between the accused persons and the lady or that he had not 33 of 45 34 FIR No. 1470/2006 PS Sultanpuri intervened in between the accused persons and the lady during quarrel.
Inspite of incisive crossexamination of PW11 Dalip Kumar & PW15 Dr. Dinesh Jain nothing material has been brought out on the record so as to impeach their creditworthiness. Their testimony are natural, trustworthy inspire confidence, and have a ring of truth. They have withstood rigors of crossexamination without being shaken. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
Moreover, the defence evidence led by the accused persons by way of production and examination of DW1 Makhan Dev Nath and DW2 Sanjay Bhomik does not harm the case of the prosecution rather corroborates the testimony of PW1 the Prosecutrix in material particulars. The testimony of DW1 Makhan Dev Nath corroborates the testimony of PW1 the Prosecutrix on the facts regarding the loading of the goods from the house where the PW1 Prosecutrix was living in the premises and the work of blub manufacturing was being done and also on the facts regarding the quarrel between accused Rajender and the lady (PW1 Prosecutrix) with regard to 34 of 45 35 FIR No. 1470/2006 PS Sultanpuri the vacating of the said house.
The testimony of DW2 Sanjay Bhomik corroborates the testimony of PW1 Prosecutrix on the facts of his going on 11.09.2006 to the factory at Rama Vihar which was running in two rooms of accused Rajender for taking the goods as Rajender was manufacturing CFL alongwith N. K. Rai (DW1) there and on the fact regarding the quarrel taking place with a lady (PW1 Prosecutrix) who used to live in that rooms/factory.
In such scenario, the defence evidence led by the accused ios of no aid or assistance to them.
18. While analysing the testimony of PW1 - Prosecutrix, PW3 - Dinesh Poddar, PW13 - Kumari Shallu, PW14 - Pooja, PW11 - Dalip Kumar and PW15 - Dr. Dinesh Jain as discussed hereinabove, PW1 - Prosecutrix and PW3 - Dinesh Poddar were not crossexamined despite grant of opportunity and inspite of incisive crossexamination of PW13 - Kumari Shalu, PW14 - Pooja, PW11 - Dalip Kumar and PW15 - Dr. Dinesh nothing has come out in the statements of said PWs which may through even a slightest doubt on the prosecution version of the incident. Though, 35 of 45 36 FIR No. 1470/2006 PS Sultanpuri suggestions by the defence to PW13 - Kumari Shallu that she is deposing falsely at the instance of her mother or that none of the accused gave beatings to her mother or that accused Ajay did not misbehave to her mother or that accused Neetu (Rajinder) did not misbehave with her mother or that due to personal enmity the accused persons have been falsely implicated in this case and the suggestions to PW14 Pooja that she was not present at the time of incident at her house or that she had not seen the quarrel between the accused persons with her mother or that she is deposing falsely at the instance of her mother and the suggestions to PW11 - Dilip Kumar that he had seen the accused for the first time in the Police custody at PS or that he was not present at the time of alleged incident or that he had not seen the alleged incident as deposed or that he is deposing falsely being a neighbour of the complainant at her instance to falsely implicate the accused persons and the suggestions to PW15 - Dr. Dinesh Jain that he was not present at the above place or that he has not seen any quarrel between the accused persons and the lady or that he had not intervened in between the accused persons and the lady during quarrel, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence.
36 of 45 37 FIR No. 1470/2006 PS Sultanpuri
19. It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
37 of 45 38 FIR No. 1470/2006 PS Sultanpuri In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of medical evidence, biological and serological evidence, gynaecological examination at point 'B' on the MLC Ex. PW2/A of the prosecutrix, MLC of prosecutrix Ex. PW2/A together with the MLC of accused Ajay Kumar Ex. PW12/A, as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda is ruled out however, an attempt to perform an act of sexual intercourse stands proved.
In the circumstances, it stands clearly established on the record that accused Ajay Kumar attempted to perform an act of sexual intercourse with PW1 - Prosecutrix without her consent.
20. Ld. Counsel for the accused submitted that PW1 - Prosecutrix in her statement in chief stated that accused Rajender used to come to her said 38 of 45 39 FIR No. 1470/2006 PS Sultanpuri house in drunken condition and used to abuse her but no complaint was lodged in this regard. He further submitted that at the time of incident accused persons who are son and father in relation and husband of the complainant with children were present on the spot as such there is no chance and possibility of this incident. Ld. Counsel for the accused further submitted that PW1 - Prosecutrix deposed in her chief that accused Rajender thereafter, fled from the spot but in fact Rajender was present on the spot and Police caught the Rajender on the spot. He further submitted that PW3 Dinesh Poddar stated in his chief that he was present at residence and accused Rajender again came there in drunken condition and started abusing and accused Ajay pushed his wife and started beating her and also stated that accused Rajender was apprehended and handed over to the Police. PW11 - Dalip Kumar also stated that he saw that one lady namely prosecutrix (name withheld) was lying on the ground and accused Ajay was giving beatings with fists and slaps to her and again said in cross "I cannot tell the name of the persons of the locality who helped in rescuing the complainant". Ld. Counsel for accused further submitted that PW13 - Kumari Shallu also in her chief stated that "I was present at my house at about 7:00 p.m. alongwith my mother and other family member except my father" and also stated that accused had given beatings to her mother and same version was deposed by 39 of 45 40 FIR No. 1470/2006 PS Sultanpuri PW14. He further submitted that PW15 - Dr. Dinesh Jain stated in his chief that both the accused persons were giving beatings to a lady and separated that lady from the clutches of accused persons.
I have carefully perused and analysed the evidence on record. In view of the categorical testimonies of PW1 - Prosecutrix, PW3
- Dinesh Poddar, PW11 - Dalip Kumar, PW13 - Kumari Shallu and PW15 - Dr. Dinesh Jain, as discussed in detail hereinabove, there is not substance in the plea so raised by the Ld. Counsel for accused. At the cost of repetition, PW1 - Prosecutrix and PW3 - Dinesh Poddar were not cross examined despite grant of opportunities. Their testimonies have gone unchallenged and have also been corroborated by PW11 - Dalip Kumar, PW13 - Kumari Shallu and PW15 - Dr. Dinesh Jain. The testimonies of the said witnesses are natural, cogent, reliable and inspires confidence.
21. Ld. Counsel for accused further submitted that PW6 - Constable Ashok Kumar stated in his chief that a call from PCR to the effect that scuffle and beating had taken place. Ld. Counsel for accused further submitted that PW7 - ASI Bajrang Lal also stated in his crossexamination that it is correct that the information received vide DD No. 112B was 40 of 45 41 FIR No. 1470/2006 PS Sultanpuri regarding only scuffle. He further submitted that PW16 - W/Inspector Sanjita also stated that she received an information from Duty Officer in respect of a quarrel.
I have carefully perused and analysed the evidence on record. PW6 - Constable Ashok Kumar in his examinationinchief has deposed that : "On 11/09/2006, I was posted at PS - S. P. Badli as Constable. On that day, I was working as DD Writer from 4:00 p.m. to 12:00 mid night. On that day, at about 11:02 p.m. Wireless Operator arrived at the DO Room and informed me regarding a call from Police Control Room to the effect that scuffle and beating had taken place with one husband and wife at 138, Rama Vihar, School Wala Road. I recorded DD No. 112B regarding this information. Copy of the same is Ex. PW6/A signed by me at point 'A'".
He was not crossexamined despite grant of opportunity. PW7 - ASI Bajrang Lal in his examinationinchief has deposed that : "On 11/09/2006, I was posted at PS - Sultan Puri as HC. On that day I was on night emergency duty. On that night, on receiving DD No. 112B I alongwith Constable Joginder reached at C1/138C, Rama Vihar. There I came to know that injured Neelam had been shifted to hospital by PCR. Thereafter, I alongwith Constable Joginder reached at Sanjay Gandhi 41 of 45 42 FIR No. 1470/2006 PS Sultanpuri Hospital. There Smt. Neelam Wife of Dinesh met me and the clothes worn by her were in torn condition. She told me that Ajay Jindal S/o Rajender Jindal had attempted to commit rape with her. I passed this information to the SHO and requested him to sent some lady Police official for further investigation. After some time SI Sanjeeta arrived there."
During his crossexamination PW7 ASI Bajrang Lal deposed that : "It is correct that the information received vide DD No. 112B was regarding only scuffle."
PW16 - W/Inspector Sanjita in her examinationinchief has deposed that on 11/09/2006 she received an information from Duty Officer in respect of a quarrel taken place with a lade and she was admitted in Sanjay Gandhi Hospital vide DD Entry No. 112/B Ex. PW6/A and she went there.
From above it is clearly indicated that the said PWs have deposed regarding the facts as to what they perceived and performed. It is not made clear by the Ld. Counsel for the accused as to what benefit he intends to reap by raising the said plea. More so, when the categorical testimonies of PW1 - Prosecutrix, PW3 - Dinesh Poddar, PW11 - Dalip Kumar, PW13 - Kumari Shallu and PW15 - Dr. Dinesh Jain are on the record as discussed herein 42 of 45 43 FIR No. 1470/2006 PS Sultanpuri above and the prosecution case is proved on record by clear, cogent and convincing evidence.
22. In view of above and in the circumstances, I am of the considered opinion that prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 11.09.2006 at about 7.00 PM at H. No. C1/138C, Rama Vihar, Delhi accused Rajender Jindal in a drunken condition and his son accused Ajay Kumar in furtherance of their common intention abused the prosecutrix in filthy language with the intention to insult her modesty and further accused Ajay Kumar used criminal force to the prosecutrix and pushed her aside due to which she fell down and he strangulated her neck, torn her gown/nighty, pressed her both the breasts and nail scratched them, lifted her gown completely exposing her lower body portion and laid down over her with his full weight and force and attempted to commit rape on her.
I, accordingly hold accused Rajender Jindal and Ajay Kumar 43 of 45 44 FIR No. 1470/2006 PS Sultanpuri guilty for the offence punishable u/s 509/34 IPC. Accused Ajay Kumar is further hold guilty for the offences punishable u/s 323/354 IPC and u/s 376/511 IPC and convict them thereunder.
23. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Rajender Jindal and Ajay Kumar in the commission of the offence u/s 509/34 IPC and that of accused Ajay Kumar in the commission of the offences u/s 323/354 IPC and u/s 376/511 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Rajender Jindal and Ajay Kumar beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Rajender Jindal and Ajay Kumar. I, therefore, hold accused Rajender Jindal and Ajay Kumar guilty for the offence punishable u/s 509/34 IPC. Accused Ajay Kumar is further hold guilty for the offences punishable u/s 323/354 IPC and u/s 376/511 IPC and convict them thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 01st Day of February, 2013 ASJ/Spl. FTC N/W & Outer District 44 of 45 45 FIR No. 1470/2006 PS Sultanpuri Rohini, Delhi 45 of 45