Delhi District Court
State vs . Hardeep Kundu on 6 August, 2015
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FIR No. 162/14
PS - Aman Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 50/14
Unique ID No. : 02404R0063872014
State Vs. Hardeep Kundu
S/o Sh. Ram Niwas Kundu
R/o B - 84, Lakhi Ram Park,
Delhi - 110086.
Permanent Address :
Village - Kharakgagar,
Tehsil - Safido, Zilla - Jind,
Haryana.
FIR No. : 162/14
Police Station : Aman Vihar
Under Sections : 376/506 IPC
Date of committal to session Court : 20/03/2014
Date on which judgment reserved : 03/08/2015
Date on which judgment announced : 06/08/2015
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FIR No. 162/14
PS - Aman Vihar
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 16/02/2014, SI Manisha was present in the PS - Aman Vihar and Duty Officer produced one DD No. 37A and victim/prosecutrix (name withheld being a case u/s 376 IPC) alongwith her mother Smt. Inderjeet Kaur before SI Manisha. SI Manisha made inquiries from the prosecutrix and took the prosecutrix to the SGM Hospital accompanied by her mother Smt. Inderjeet Kaur, W/Constable Pinki and Constable Balwan and got conducted her medical examination vide MLC no. 24456 and on the MLC, the Doctor has endorsed "A/H/O Sexual Assault in lieu of false promise of getting married, by a boy named Hardeep Kundu, girl was in physical relation with this boy Hardeep for the last four years. Girl's family had refused to get the girl married to this boy since beginning. Last episode of sexual contact 10 days back following which the boy refused to get married to her so girl has filed a complaint." The sealed exhibits were handed over by the Doctor after her medical examination to W/Constable Pinki and the prosecutrix was admitted in the Hospital by the Doctor for her treatment.
2 of 43 3 FIR No. 162/14 PS - Aman Vihar Prosecutrix (name withheld) D/o Sh. Dilbagh Singh, R/o C1/332333, Sultan Puri, Delhi made the statement in the Hospital, in front of her mother and NGO Smt. Radha Bhardwaj which is to the effect that, she lives at the above address with her parents and brother and sisters on rent for the last one year. They have been living in Delhi for the last about 30 years and are the permanent resident of Village - Arnaya, District - Kurukshetra, Haryana. They are six brothers and sisters. She has studied upto 2nd Class. She, her mother and her brother Sonu about four years back used to work in a factory, Neel Guard Aqua System at Peeragarhi, where Hardeep Kundu used to work as a Manager and since then, she and her family used to know Hardeep. Hardeep on the pretext of paying salary firstly called her at his rented house at Sector - 1, Avantika by saying that he will give the money at his house as he is having no money in his office, when she went to his house, Hardeep was alone at his house and on the pretext of doing conversation (Baat Cheet Karne Ke Bahane Se), he established physical relations with her and when she started weeping, then he said that he will perform the marriage with her. Thereafter, by saying that he is having proof against her and he will show to all, several times he established physical relations with her 3 of 43 4 FIR No. 162/14 PS - Aman Vihar and he also used to give a tablet and used to say to her to swallow it and nothing will happen (Weh Mujhe Goli Deta Ki Ise Kha Le Is Se Kuch Nahi Hota) and he used to threaten her not to disclose the incident to anyone, otherwise he will show the proof to all (Dhamki Deta Ki Yeh Baat Kisi Ko Mat Batana Nahi To Sab Ko Saboot Dikha Dunga). About 10 days ago, she alongwith her brother Sonu had gone to the house of his (Sonu) known uncle Shiv Ram at Prem Nagar in a function, where at about 4:004:30 p.m., Hardeep made a call on her mobile phone number 9210014582 from his mobile phone number 9212092760 and said that he wanted to meet her and asked her to come out. Then she went out telling her uncle Shiv Ram that, "uncle she is going out and she will be back within half an hour". At that time her brother was busy in function. Then she after coming out from the house of his uncle, reached at an unknown place, a little ahead of the house of his uncle, where Hardeep was standing in a white colour vehicle, its number she does not know. Hardeep asked her to sit in the vehicle as he is to talk to her. She sat in the front seat of the vehicle. Thereafter, Hardeep took her to an unknown place and after stopping the vehicle started saying let they talk by sitting on the rear seat (Pichli Seat Par Baat Karte Hain). Then she 4 of 43 5 FIR No. 162/14 PS - Aman Vihar sat on the rear seat and there, on the rear seat, Hardeep established physical relations with her and also gave a tablet for swallowing. Thereafter, he after making her sit in the vehicle (Mujhe Gadi Mei Baitha Kar), left her in front of Prem Nagar Chowki saying that now she go to her house and he will talk to her later on. She came to her house but she did not disclose this incident to anyone. Today on 16/02/2014, she disclosed all about the incidents to her mother, who has brought her to the Police Station. Hardeep has spoiled her life, legal action be taken against him. She is making the statement in front of her mother without any pressure. She has heard her statement and is correct. On the basis of the statement, from the inspection of the MLC and the circumstances, finding that offences u/s 376/506 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Manisha. Accused Hardeep Kundu was searched for but he could not be found. The sealed exhibits of the prosecutrix were deposited in the Malkhana. Statements of the witnesses u/s 161 Cr.P.C. were recorded. On 19/02/2014, on a secret information, accused Hardeep Kundu was arrested on the identification of the prosecutrix. His disclosure statement was recorded. Medical examination of the accused was got 5 of 43 6 FIR No. 162/14 PS - Aman Vihar conducted from SGM Hospital and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession. Statement of the prosecutrix u/s 164 Cr.P.C. was recorded. Accused did not point out the vehicle and the place of incident despite efforts made. The sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offences u/s 376/506 IPC was prepared against accused Hardeep Kundu and was sent to the Court for trial.
2. Since the offence under section 376 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 under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 376/506 IPC was made out against accused Hardeep Kundu. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
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4. In support of its case prosecution has produced and examined 13 witnesses. PW1 - HC Raj Kumar, PW2 - Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi, PW3 - Dr. Brijesh Singh, CMO, SGM Hospital, Mangol Puri, Delhi, PW4 - Constable Bhupender, PW5 - Monika Chakravarty, SSA/RO, FSL, Rohini, Delhi, PW6 - ASI Raj Kumar, PW7 - Dr. Supriya Prashar, SR Gynae, SGM Hospital, Delhi, PW8 - Prosecutrix (name withheld), PW9 - HC Devender Kumar, PW10 - Constable Vinod Kadian, PW11 - W/Constable Pinki, PW12 - Ms. Shefali Barnala Tandon, MM, Rohini Courts, Delhi, PW13 - W/SI Manisha.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Raj Kumar is the MHC(M), who deposed that on 16/02/2014, he was posted as MHC(M) in PS Aman Vihar. On that day, W/SI Manisha Sharma deposited three sealed pullindas sealed with the seal of 'SGMH GNCT DELHI' alongwith sample seal in the Malkhana. He made entry at Serial No. 1495 in Register No. 19. On 20/02/2014, 7 of 43 8 FIR No. 162/14 PS - Aman Vihar W/SI Manisha Sharma deposited two sealed pullindas sealed with the seal of 'SGMH MANGOLPURI DELHI' alongwith sample seal in the Malkhana. He made entry at Serial No. 1499 in Register No. 19. On 21/02/2014, on the instructions of IO W/SI Manisha Sharma, all the above sealed pullindas alongwith sample seals were handed over to Constable Devender for depositing the same in the FSL, Rohini vide RC No. 31/21/14. After depositing the same in FSL, he deposited the acknowledgment receipt of the pullinda with him. He has brought the Register No. 19 and 21. The copy of the relevant entry of Register No. 19 is Ex. PW1/A & Ex. PW1/B. The copy of relevant entry of Register No. 21 is Ex. PW1/C. Copy of the acknowledgment receipt is Ex. PW1/D (OSR). Sealed pullindas remained intact during his custody.
PW2 - Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi, who deposed that on 19/02/2014, at about 11:05 p.m., one patient Hardeep Kundu S/o Sh. Ram Niwas, aged about 26 years was brought to the Hospital by Police with the alleged history of sexual assault (accused's point of view). He examined the patient Hardeep Kundu and opined that there is nothing to suggest that the patient was 8 of 43 9 FIR No. 162/14 PS - Aman Vihar incapable of performing sexual activity. The blood sample and undergarment of Hardeep Kundu were taken and handed over to the IO after sealing the same. He prepared the detailed MLC Ex. PW2/A bearing his signatures at point 'A'.
PW3 - Dr. Brijesh Singh, CMO, SGM Hospital, Mangol Puri, Delhi, who deposed that on 16/02/2014, at about 6:15 p.m., one patient/prosecutrix (name withheld) D/o Sh. Dilbagh Singh, aged about 20 years, was brought to the Hospital by Police with the alleged history of sexual assault. He examined the patient and no external injury was seen on her body. Thereafter, he referred the patient to SR Gynae for further management. After conducting the preliminary examination of the patient/prosecutrix (name withheld), he prepared the MLC Ex. PW3/A bearing his signature at point 'A'.
PW4 - Constable Bhupender, who deposed that on 20/02/2014, he was posted as Constable at PS Aman Vihar. On that day, he joined the investigation of this case with W/SI Manisha. On that day, one day PC remand of accused Hardeep Kundu was obtained by IO 9 of 43 10 FIR No. 162/14 PS - Aman Vihar SI Manisha. Accused Hardeep Kundu was taken in the area of Avantika and Mangolpur Khurd for the recovery of one car. Accused led the Police party to various places but the alleged car could not be recovered. IO prepared memo 'amad baramadgi of car' which is Ex. PW4/A bearing his signature at Point 'A'. She interrogated accused and recorded his disclosure statement Ex. PW4/B. Thereafter, he took the accused to SGM Hospital for his medical examination and thereafter, he was brought to PS. His statement was recorded by IO. He correctly identified accused Hardeep Kundu present in the Court.
PW5 - Monika Chakravarty, SSA/RO, FSL, Rohini, Delhi, who proved the DNA Reports Ex. PW5/A and Genotype Analysis Ex. PW5/B respectively signed by her at points 'A'.
PW6 - ASI Raj Kumar is the Duty Officer, who deposed that on 16/02/2014, he was posted as Duty Officer in PS Aman Vihar and was on duty from 4:00 p.m. to 12:00 midnight. On that day, at about 9:00 p.m., Constable Balwan handed over a Tehrir to him which was sent by W/SI Manisha Sharma, on the basis of which he recorded FIR No. 10 of 43 11 FIR No. 162/14 PS - Aman Vihar 162/14, u/s 376/506 IPC through the Computer Operator on the Computer installed in PS. He obtained a print out of the FIR. This print out has been obtained on the basis of information which is used in the routine manner for the purpose of feeding the similar category. The said computer was under his lawful control. Nothing adverse took place during the period as to cause any error regarding the information feeded in the Computer. The copy of FIR is Ex. PW6/A bearing his signature at Point 'A' (OSR). He handed over the copy of FIR to Constable Balwan for giving the same to IO W/SI Manisha Sharma. He also issued a Certificate u/s 65B of The Evidence Act which is Ex. PW6/B bearing his signature at Point 'A'. He made endorsement on the Rukka and the same is Ex. PW6/C, bearing his signature at point 'A'.
PW7 - Dr. Supriya Prashar, SR Gynae, SGM Hospital, Delhi, who deposed that on 16/02/2014 at 6:45 p.m. one prosecutrix (name withheld) D/o Dilbagh Singh, Aged 23 Years, Female, was referred to Gynae Deptt. after her preliminary examination in the casualty vide MLC already Ex. PW3/A. She conducted gynecological examination of prosecutrix (name withheld). Her UPT (pregnancy test) 11 of 43 12 FIR No. 162/14 PS - Aman Vihar was positive. So she was again examined by her on the same day at 7:20 p.m. as initially she had not given any history of pregnancy. The samples were collected and sealed and same were handed over to Police. Her detailed examination of prosecutrix (name withheld) at 6:45 p.m. on 16/02/2014 in the encircled portion 'X to X1' on the MLC Ex. PW3/A bearing her signature at Point 'B'. Her detailed examination of prosecutrix (name withheld) conducted at 7:20 p.m. on the same day is on the backside of the MLC Ex. PW3/A bearing her signature at Point 'B'.
PW8 - Prosecutrix is the victim who deposed some facts regarding the incident and admitted her thumb impression on her statement dated 16/02/2014, Ex. PW8/A and also admitted her signature on the statement recorded u/s 164 Cr.P.C. Ex. PW8/B and proved the arrest memo of accused Hardeep Kundu Ex. PW8/C. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW9 - HC Devender Kumar, who deposed that on 12 of 43 13 FIR No. 162/14 PS - Aman Vihar 21/02/2014, he was posted at PS Aman Vihar. On that day, on the instructions of IO SI Manisha he obtained five sealed parcels alongwith two sample seals from MHC(M) and took the same to FSL Rohini vide RC No. 31/21/14. He deposited the sealed parcels and sample seals in FSL and obtained the acknowledgment receipt. Thereafter, he returned to PS and handed over copy of acknowledgment receipt to MHC(M). During the period the parcels remained in his custody same were not tampered.
PW10 - Constable Vinod Kadian, who deposed that on 19/02/2014, he was posted as Constable at PS - Aman Vihar. On that day, he joined the investigation of this case with IO SI Manisha. He alongwith IO, victim/prosecutrix (name withheld) and her brother went to search accused Hardeep Kundu. When they reached at Lakhi Ram Park, a Secret Informer met them and informed that Hardeep Kundu used to reside at House No. B - 84, Lakhi Ram Park. They went to House No. B - 84, where accused Hardeep Kundu met them. He was identified by victim/prosecutrix (name withheld). IO interrogated accused Hardeep Kundu and arrested him in the present case vide arrest memo Ex. PW8/C 13 of 43 14 FIR No. 162/14 PS - Aman Vihar bearing his signatures at point 'B'. Personal search of accused was conducted vide memo Ex. PW10/A bearing his signatures at point 'A'. The information regarding arrest of accused was given to his father. IO interrogated accused and recorded his disclosure statement which is Ex. PW10/B bearing his signatures at point 'A'. Then accused was brought to PS. Thereafter, on the instructions of IO, he and Constable Dharambir took accused to SGM Hospital for his medical examination. After the medical examination of accused, Doctor gave two sealed exhibits alongwith one sample seal to him. Then accused was brought to PS. He produced the sealed exhibits before IO which were taken into Police possession by her vide seizure memo Ex. PW10/C bearing his signatures at point 'A'. Accused Hardeep Kundu is present in the Court (correctly identified).
PW11 - W/Constable Pinki, who deposed that on 16/02/2014, she was posted as Constable at PS Aman Vihar. On that day, at about 5:15 p.m. prosecutrix (name withheld) alongwith her mother came to PS. She alongwith SI Manisha Sharma and Constable Balwan took the prosecutrix (name withheld) and her mother to SGM 14 of 43 15 FIR No. 162/14 PS - Aman Vihar Hospital for conducting the medical examination of prosecutrix. After the medical examination of prosecutrix (name withheld) Doctor handed over three sealed parcels alongwith one sample seal to her which she produced before IO. These sealed parcels and sample seals were taken into Police possession vide seizure memo Ex. PW11/A bearing her signature at Point 'A'. The prosecutrix (name withheld) was admitted by Doctor in SGM Hospital. IO called Member NGO in SGM Hospital and the Member NGO provided counseling to the prosecutrix. IO SI Manisha recorded the statement of prosecutrix in the presence of Member NGO and prepared Tehrir. IO handed over the Tehrir to Constable Balwan and he was sent to PS for the registration of FIR. The mother of prosecutrix stayed in the Hospital to take care of her daughter/prosecutrix (name withheld). She alongwith IO went to Lakhi Ram Park, Aman Vihar, Delhi, in search of accused Hardeep Kundu. They went to the house of accused Hardeep Kundu situated near Lakhi Ram Park. Accused Hardeep Kundu was not present in his house at that time then she alongwith IO returned back to PS. PW12 - Ms. Shefali Barnala Tandon, MM, Rohini Courts, 15 of 43 16 FIR No. 162/14 PS - Aman Vihar Delhi, who deposed that on 20/02/2014, she was posted as MM in Rohini Court. On that day, an application for recording statement u/s 164 Cr.P.C. of victim/prosecutrix (name withheld) D/o Sh. Dilbagh Singh, Age 23 Years, R/o H. No. C1/332/333, Sultan Puri, Delhi, was marked to her. IO SI Manisha Sharma has produced victim/prosecutrix (name withheld) and identified her and she recorded her statement in this regard. IO was asked to leave the Chamber. She put certain preliminary questions to the victim and after satisfying herself that she is making the statement voluntarily she proceeded to record her statement. Her proceedings in this regard is Ex. PW12/A bearing her signature at Point 'A'. Statement of victim/prosecutrix (name withheld) recorded by her is already Ex. PW8/B bearing her signature at Point 'B' and of prosecutrix (name withheld) at Point 'A'. After recording the statement, she issued the certificate regarding its correctness and the same is Ex. PW12/B bearing her signature at Point 'A'. Ahlmad was directed to give the copy of the same on the application moved by IO which is Ex. PW12/C bearing her signature at Point 'A'. Ahlmad was directed to send the proceedings to the concerned MM in sealed cover.
16 of 43 17 FIR No. 162/14 PS - Aman Vihar PW13 - W/SI Manisha, who deposed that 16/02/2014, she was posted at PS Aman Vihar. On that day, prosecutrix (name withheld) alongwith her mother Inderjeet Kaur came at PS. They lodged DD No. 37A which is Ex. PW13/A, thereafter, she alongwith L/Constable Pinki, Constable Balwan and prosecutrix (name withheld) went to SGM Hospital where she was medically got examined vide MLC No. 24456 which is already Ex. PW3/A. After the medical examination of the prosecutrix Doctor handed over exhibits of the present case in a sealed condition and same were taken into possession vide seizure memo already Ex. PW11/A. NGO Radha Bhardwaj was called and in her presence she recorded the statement of the prosecutrix which is already Ex. PW8/A which bears the thumb impression (RTI) of the mother of the prosecutrix at Point 'A' and signature of prosecutrix at Point 'B'. Thereafter, she attested the same at Point 'C'. The said statement also bears the signature of NGO Radha Bhardwaj at Point 'D' which was signed in her presence. She recorded the statement of prosecutrix whatever she stated in her statement. Thereafter, she (PW13) prepared the rukka Ex. PW13/B bearing her signature at Point 'A' and handed over to Constable Balwan for the registration of the FIR. Constable Balwan 17 of 43 18 FIR No. 162/14 PS - Aman Vihar left the Hospital to PS for the registration of FIR and victim/prosecutrix (name withheld) was admitted in the Hospital. Thereafter, she alongwith L/Constable Pinki and mother of prosecutrix left the SGM Hospital in search of accused. They made their best efforts to trace the accused but all in vain. In the meanwhile, Constable Balwan also met her and he produced the copy of FIR already Ex. PW6/A and he also handed over her original Rukka. Thereafter, she recorded the statement of the mother of the prosecutrix and she was relieved from the investigation. On 19/02/2014, she received a call from brother of prosecutrix wherein he told her that he alongwith his sister/prosecutrix (name withheld) were coming to PS. On reaching to the PS she alongwith Constable Vinod, prosecutrix (name withheld) and her brother went in search of accused. They reached at B84, Lakhi Ram Park, Delhi, where on the identification of prosecutrix one person namely Hardeep Kundu (accused present in the Court, correctly identified) was apprehended and interrogated. Accused Hardeep Kundu was arrested vide arrest memo already Ex. PW8/C and his personal search was conducted vide memo already Ex. PW10/A, both memos bears her signature at Point 'A' respectively. Accused made his confessional statement which was 18 of 43 19 FIR No. 162/14 PS - Aman Vihar reduced in writing and same is already Ex. PW10/B. Accused Hardeep Kundu was taken into SGM Hospital and he was medically got examined vide Ex. PW2/A. Doctor handed over the exhibits in a sealed condition and same was taken into possession vide seizure memo already Ex. PW10/C bearing her signature at Point 'C'. On the next day i.e. 20/09/2014 accused Hardeep Kundu was produced in the concerned Court and he was remanded to one day PC remand. He was further interrogated and during his interrogation he again made his confessional statement which is Ex. PW4/B bearing her signature at Point 'B'. Thereafter, accused led them in search of the vehicle but it could not be got recovered and she prepared the memo in this regard and same is already Ex. PW4/A bearing her signature at Point 'B'. Accused pointed out the place of occurrence where he had committed the rape upon the prosecutrix and same is Ex. PW13/C bearing her signature at Point 'A'. Thereafter, accused was produced in the Court and sent to JC. On the same day, prosecutrix (name withheld) was produced before the MM and she (PW13) moved application for recording her statement u/s 164 Cr.P.C. which is Ex. PW13/D bearing her signature at Point 'A' and same was marked to Link MM, before the Link MM the statement of 19 of 43 20 FIR No. 162/14 PS - Aman Vihar prosecutrix was recorded and thereafter, she moved an application for providing the statement u/s 164 Cr.P.C. of prosecutrix which is Ex. PW13/E bearing her signature at Point 'A' and same was allowed vide the endorsement of Ld. MM which is already Ex. PW12/C. She recorded the supplementary statement of prosecutrix as well as statements of Police witnesses. On 21/02/2014 exhibits of the present case was sent to FSL Rohini through Constable Devender vide RC No. 31/21/14 in a sealed condition. After depositing the same he came back to PS and she recorded the statements of MHC(M) and Constable Devender. On 28/02/2014 on the pointing out of the prosecutrix she prepared the rough site plan of place of incident and same is Ex. PW13/F bearing her signature at Point 'A'. During the course of investigation she recorded the statements of the witnesses from time to time and after completion of the investigation, she prepared the chargesheet and sent to the Court for judicial verdict. During the course of trial of this case FSL Result was received and same was filed in the Court and FSL result is already Ex. PW5/A and Ex. PW5/B. The testimonies of the prosecution witnesses shall be dealt 20 of 43 21 FIR No. 162/14 PS - Aman Vihar with in detail during the course of appreciation of evidence.
6. Statement of accused Hardeep Kundu was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Hardeep Kundu did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that prosecutrix has not supported the prosecution and the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused on the charge levelled against him.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Shri V. K. Negi, Learned Addl. PP for the State 21 of 43 22 FIR No. 162/14 PS - Aman Vihar and Sh. Sanjeev Kumar, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/506 IPC against accused Hardeep Kundu is that four years prior to 16/02/2014, date and time not known at his tenanted house at Sector - 1, Avantika, Delhi, within the jurisdiction of PS - Aman Vihar, he forcibly committed rape upon the prosecutrix (name withheld) D/o Sh. Dilbagh Singh, age - 23 years and that 10 days prior to 16/02/2014 he also forcibly committed rape upon prosecutrix (name withheld), age - 23 years in car at place not known and also criminally intimidated her not to disclose about the incident to anyone otherwise her photographs which are in his possession would be made public.
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.
22 of 43 23 FIR No. 162/14 PS - Aman Vihar AGE OF THE PROSECUTRIX
12. PW8 - Prosecutrix in her statement recorded in the Court on 07/04/2015 while giving her particulars has stated her age as 23 years.
Since PW8 - prosecutrix has stated her age as 23 years on 07/04/2015 at the time of recording her evidence/statement in the Court and the date of alleged incident is four years prior to 16/02/2014, on simple arithmetical calculation, the age of the prosecutrix comes to 17 years, 10 months and 09 days as on the date of alleged incident on 16/02/2010, four years prior to 16/02/2014.
Moreover, the said factum of age of PW8 - prosecutrix has also not been disputed by accused Hardeep Kundu. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW8 - prosecutrix was aged 17 years, 10 months and 09 days as on the date of alleged incident on 16/02/2010, four years prior to 16/02/2014.
23 of 43 24 FIR No. 162/14 PS - Aman Vihar MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 - Dr. Brijesh Singh, CMO, SGM Hospital, Mangol Puri, Delhi has deposed that on 16/02/2014, at about 6:15 p.m., one patient/prosecutrix (name withheld) D/o Sh. Dilbagh Singh, aged about 20 years, was brought to the Hospital by Police with the alleged history of sexual assault. He examined the patient and no external injury was seen on her body. Thereafter, he referred the patient to SR Gynae for further management. After conducting the preliminary examination of the patient/prosecutrix (name withheld), he prepared the MLC Ex. PW3/A bearing his signature at point 'A'.
PW7 - Dr. Supriya Prashar, SR Gynae, SGM Hospital, Delhi has deposed that on 16/02/2014 at 6:45 p.m. one prosecutrix (name withheld) D/o Dilbagh Singh, Aged 23 Years, Female, was referred to Gynae Deptt. after her preliminary examination in the casualty vide MLC already Ex. PW3/A. She conducted gynecological examination of prosecutrix (name withheld). Her UPT (pregnancy test) was positive. So she was again examined by her on the same day at 7:20 p.m. as initially she had not given any history of pregnancy. The samples were 24 of 43 25 FIR No. 162/14 PS - Aman Vihar collected and sealed and same were handed over to Police. Her detailed examination of prosecutrix (name withheld) at 6:45 p.m. on 16/02/2014 in the encircled portion 'X to X1' on the MLC Ex. PW3/A bearing her signature at Point 'B'. Her detailed examination of prosecutrix (name withheld) conducted at 7:20 p.m. on the same day is on the backside of the MLC Ex. PW3/A bearing her signature at Point 'B'.
Despite grant of opportunity, PW3 - Dr. Brijesh Singh and PW7 - Dr. Supriya Prashar were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical and the gynaecological examination vide MLC Ex. PW3/A, from portion 'X to X1' on the MLC Ex. PW3/A and on the back side of the MLC Ex. PW3/A of PW8 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED HARDEEP KUNDU
14. PW2 - Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi has deposed that on 19/02/2014, at about 11:05 p.m., one 25 of 43 26 FIR No. 162/14 PS - Aman Vihar patient Hardeep Kundu S/o Sh. Ram Niwas, aged about 26 years was brought to the Hospital by Police with the alleged history of sexual assault (accused's point of view). He examined the patient Hardeep Kundu and opined that there is nothing to suggest that the patient was incapable of performing sexual activity. The blood sample and undergarment of Hardeep Kundu were taken and handed over to the IO after sealing the same. He prepared the detailed MLC Ex. PW2/A bearing his signatures at point 'A'.
Despite grant of opportunity, PW2 - Dr. Mahipal Singh were not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Hardeep Kundu was capable of performing sexual activity.
DNA FINGER PRINTING EVIDENCE
15. PW5 - Monika Chakravarty, SSA/RO, FSL, Rohini, Delhi has proved the DNA Reports Ex. PW5/A and Genotype Analysis Ex. PW5/B respectively signed by her at points 'A'.
26 of 43 27 FIR No. 162/14 PS - Aman Vihar As per DNA Report Ex. PW5/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed envelope sealed with the seal of "SGMH GNCT DELHI" containing exhibits '1a' & '1b'. Exhibit '1a' : Cotton wool swab on a stick described as High vaginal swab.
Exhibit '1b' : Cotton wool swab on a stick described as Low vaginal swab.
Parcel '2' : One sealed envelope sealed with the seal of "SGMH GNCT DELHI" containing exhibits '2a' & '2b' described to be of prosecutrix.
Exhibit '2a' : Dark brown liquid in a tube described as blood sample.
Exhibit '2b' : Gauze cloth piece having brown stains described as Gauze piece.
Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" described to contain undergarment of accused returned unexamined.
27 of 43 28 FIR No. 162/14 PS - Aman Vihar Parcel '5' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '5'. Exhibit '5' : Dark brown liquid in a tube described as Blood sample of accused.
REPORT OF BIOLOGICAL ANALYSIS Human semen was detected on exhibits '1a' & '1b'.
DNA EXAMINATION Exhibits '1ab (High & Low vaginal swabs of prosecutrix)', and '5 (Blood sample of accused)' were subjected to DNA isolation. DNA was isolated from the source of exhibits '1ab' & '5'. DNA profiles were generated from the source of exhibits '1ab' & '5' using AmpFl STR Identifiler plus PCR amplification kit. STR analysis was used for each of the exhibits. Data was analysed using GeneMapper Idx software.
RESULT OF ANALYSIS Alleles from the source of exhibit '5' (Blood sample of accused)' were not accounted in the alleles from the source of exhibits '1ab (High & Low vaginal swabs of prosecutrix)'.
CONCLUSION 28 of 43 29 FIR No. 162/14 PS - Aman Vihar DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA profiles from the source of exhibit '5 (Blood sample of accused)' were not similar to the Male DNA profiles from the source of exhibits '1ab (High & Low vaginal swabs of prosecutrix)'.
Note : Remnants of the exhibits have been sealed with the seal of 'MCh FSL DELHI'.
Encl : Annexure I (Genotype data of exhibits '1ab' & '5'.
As per Genotype analysis using MICROSATELLITES Ex. PW5/B reads as under :
1) D8S1179 2) D21S11 3) D7S820 4) CSFIPO 5) D3S1358 6) TH01 7) D13S317 8) D16S539 9) D2S1338 10) D19S433 11) VWA 12) TPOX 13) D18S51 14) D5S818 15) FGA 16) AMELOGENIN Allele data LOCI Exhibit '1ab' Exhibit '5' (High & Low (Blood sample vaginal swabs of accused) of prosecutrix) D8S1179 13, 15 10, 12 D21S11 30, 32.2 30, 32.2 29 of 43 30 FIR No. 162/14 PS - Aman Vihar D7S820 10, 11 10, 11 CSFIPO 10, 13 11, 12 D3S1358 15, 16 15, 16 TH01 6, 9 7, 7 D13S317 11, 12 11, 12 D16S539 8, 13 12, 12 D2S1338 19, 20 18, 22 D19S433 13, 15 13, 13 VWA 16, 19 18, 19 TPOX 8, 10 9, 10 D18S51 15, 16 15, 18 D5S818 12, 12 11, 11 FGA 22, 23 21, 24 AMELOGENIN X, Y X, Y As per the DNA Report Ex. PW5/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 & 2 belong to the prosecutrix which were seized vide seizure memo Ex. PW11/A, dated 16/02/2014 and parcel nos. 4 & 5 belong to the accused Hardeep Kundu which were seized vide seizure 30 of 43 31 FIR No. 162/14 PS - Aman Vihar memo Ex. PW10/C, dated 20/02/2014.
On careful perusal and analysis of the DNA Report Ex. PW5/A coupled with the Genotype Analysis Ex. PW5/B, it clearly shows that alleles from the source of exhibit '5' (Blood sample of accused Hardeep Kundu)' were not accounted in the alleles from the source of exhibits '1a' (High vaginal swabs of prosecutrix)' and '1b (Low vaginal swabs of prosecutrix)' and the DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA profiles from the source of exhibit '5 (Blood sample of accused Hardeep Kundu)' were not similar to the Male DNA profiles from the source of exhibits '1a' (High vaginal swabs of prosecutrix)' and '1b (Low vaginal swabs of prosecutrix)'
16. Now let the testimony of PW8 Prosecutrix be perused and analysed.
PW8 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : 31 of 43 32 FIR No. 162/14 PS - Aman Vihar "Four years back I joined Neelquard (Neelguard) Acqua System Company situated at Peeragarhi as labour. My mother, brother Sukhvinder Singh and my sister Jyoti also started working in the above named company. The owner of the company was Mr. Sunil. One Hardeep was working as Manager in the above company so I became acquainted with him. Hardeep started visiting our house. I can identify Hardeep, if shown to me.
At this stage, the wooden partition has been removed. Accused Hardeep Kundu is present in the Court (correctly identified).
The wooden partition now has been restored to its original position.
With the passage of time the friendship between me and accused Hardeep Kundu developed. The talks of marriage between me with accused Hardeep Kundu started but my family members refused to perform my marriage with accused as he was not from our caste. I wanted to marry with accused Hardeep Kundu. The physical relations between me and accused Hardeep Kundu were established with my own consent. The physical relations were established several times during this period of four years. Out of fit of anger I lodged the complaint against accused Hardeep Kundu with Police. I was upset at that time as my family members were not ready to perform my marriage with accused Hardeep Kundu.
At this stage, the statement of the witness dated 16/02/2014 is shown to the witness, who admits her thumb impression at Point 'A' on the same. The statement is Ex. PW8/A. Police also took me to Hospital for my medical examination. I was also brought to the Court by Police for recording of my statement before Ld. MM. I do not remember as to 32 of 43 33 FIR No. 162/14 PS - Aman Vihar what I have stated before Ld. MM during my statement recorded u/s 164 Cr.P.C.
At this stage, an envelope sealed with the seal of 'SBT' lying on the judicial file, is opened after breaking the seal from which the proceedings u/s 164 Cr.P.C are taken out. The statement of the witness recorded u/s 164 Cr.P.C. is shown to the witness, who admits her signature at Point 'A'. The statement of the witness recorded u/s 164 Cr.P.C. is Ex. PW8/B. During investigation accused Hardeep Kundu was arrested from his house at my instance vide arrest memo Ex. PW8/C bearing my signature at Point 'A'."
From the aforesaid narration of PW8 - prosecutrix, it is clear that four years back she joined Neelquard (Neelguard) Acqua System Company situated at Peeragarhi as labour. Her mother, brother Sukhvinder Singh and her sister Jyoti also started working in the above named company. The owner of the company was Mr. Sunil. One Hardeep was working as Manager in the above company so she became acquainted with him. Hardeep started visiting their house. She correctly identified accused Hardeep Kundu present in the Court. With the passage of time the friendship between her and accused Hardeep Kundu developed. The talks of marriage between her with accused Hardeep Kundu started but her family members refused to perform her marriage 33 of 43 34 FIR No. 162/14 PS - Aman Vihar with accused as he was not from their caste. She wanted to marry with accused Hardeep Kundu. The physical relations between her and accused Hardeep Kundu were established with her own consent. The physical relations were established several times during this period of four years. Out of fit of anger she lodged the complaint against accused Hardeep Kundu with Police. She was upset at that time as her family members were not ready to perform her marriage with accused Hardeep Kundu. She admitted her thumb impression at Point 'A' on the statement dated 16/02/2014 Ex. PW8/A. Police also took her to Hospital for her medical examination. She was also brought to the Court by Police for recording of her statement before Ld. MM. She does not remember as to what she has stated before Ld. MM during her statement recorded u/s 164 Cr.P.C. She admitted her signatures on the statement recorded u/s 164 Cr.P.C. Ex. PW8/B. During investigation accused Hardeep Kundu was arrested from his house at her instance vide arrest memo Ex. PW8/C bearing her signature at Point 'A'.
PW8 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State which is reproduced and reads as 34 of 43 35 FIR No. 162/14 PS - Aman Vihar under : "The salary was used to be given by the owner of company i.e by Mr. Sunil. It is wrong to suggest that the Manager namely accused Hardeep Kundu used to give salary. I frequently visit the house of accused Hardeep Kundu situated in Sector 1, Avantika. Accused Hardeep Kundu never asked me to come to his house for taking salary on the pretext that he was not having sufficient money in the office. Accused Hardeep Kundu did not make physical relations with me against my wishes in his house. It is wrong to suggest that accused Hardeep Kundu called me in his house on the pretext of giving salary and made physical relations with me against my consent. I signed the statement Ex. PW8/A without reading the same. My statement Ex. PW8/A was not read over before me by the Police prior to obtaining my signature on the same. It is correct that Police recorded my statement Ex. PW8/A after making inquiry from me (Marai Bayan Mujhse Puch Kar Likai Gai Thai).
I had not stated to the Police that accused Hardeep Kundu called me at his house on the pretext of giving salary to me and there he established physical relations with me against my consent. (Confronted with the statement Ex. PW8/A, where it is so recorded). It is wrong to suggest that I had stated to the Police that accused Hardeep Kundu called me at his house on the pretext of giving salary to me and there he established physical relations with me against my consent. I had not stated to the Police that when I started crying accused Hardeep Kundu promised me to perform marriage with me. (Confronted with the statement Ex. PW8/A, where it is so recorded). It is wrong to suggest that when I started crying accused Hardeep Kundu promised me to perform marriage with me. I had not stated to the Police that accused 35 of 43 36 FIR No. 162/14 PS - Aman Vihar Hardeep Kundu established physical relations with me several times on the pretext of marriage and also by saying that he was having several evidence against me and if I would not give consent to establish physical relations with him then he would show the same to public persons. (Confronted with the statement Ex. PW8/A, where it is so recorded). It is wrong to suggest that accused Hardeep Kundu established physical relations with me several times on the pretext of marriage and also by saying that he was having several evidence against me and if I would not give consent to establish physical relations with him then he would show the same to public persons.
It is correct that in the month of February, 2014 when I alongwith my brother Sonu went to the house of my uncle Shiv Ram to attend the function then accused Hardeep Kundu made a telephone call to me and called me outside the function venue. I went out from the function venue to meet accused Hardeep Kundu and had accompanied him in his car and had made physical relations in the car in a secluded place with my consent. No tablet (Goli) was given to me by accused Hardeep Kundu in the car for swallowing (Khane Kai Liye). It is wrong to suggest that accused Hardeep Kundu gave a tablet to me in the car for swallowing the same. It is wrong to suggest that accused Hardeep Kundu used to give tablets to me whenever he established physical relations with me. I did not disclose about the conduct of accused to my mother. It is correct that I came to PS with my mother. I did not state to the Police that accused Hardeep Kundu used to make physical relations with me forcibly after giving threats that if I would not give consent then he would show the evidence to the public. It is wrong to suggest that accused Hardeep Kundu used to make physical relations with me forcibly after giving threats that if I would not give consent then he would show the evidence to the public.
36 of 43 37 FIR No. 162/14 PS - Aman Vihar At this stage, the Portion 'A1 to A2' of the statement Ex. PW8/A is read over to the witness, who denies of having made any such statement to the Police. It is wrong to suggest that I had stated all the facts mentioned in the Portion 'A1 to A2' in the statement Ex. PW8/A to the Police.
It is correct that my medical examination was conducted. Vol. the physical relations were established by accused Hardeep Kundu with my consent.
I was not in a fit state of mind at the time I made the statement u/s 164 Cr.P.C. Ex. PW8/B. At this stage, the statement recorded u/s 164 Cr.P.C. Ex. PW8/B is read over to the witness. On which she stated that, 'I do not remember as to whether I had given such statement to Ld. MM or not'.
It is wrong to suggest that I was in a fit state of mind at the time of making the statement u/s 164 Cr.P.C. or that I had voluntarily given my statement Ex. PW8/B before Ld. MM. It is wrong to suggest that I had (not) given the statement Ex. PW8/B under pressure. It is wrong to suggest that I am concealing the true facts as the matter has already been settled between me and the accused Hardeep Kundu. It is wrong to suggest that I have deposed falsely as I have been won over by accused. It is wrong to suggest that I am deposing falsely."
PW8 - Prosecutrix during her crossexamination by the Learned Counsel for accused has deposed that : "It is correct that accused Hardeep Kundu had proposed to marry me in the presence of my mother and other family members about 37 of 43 38 FIR No. 162/14 PS - Aman Vihar four years back when we met each other. It is also correct that my mother did not give the consent to the marriage as we were Punjabis by caste and accused Hardeep Kundu was belonging to Jat caste. It is correct that my acquaintance and meeting with accused Hardeep Kundu were not in the knowledge of my mother and other family members. It is correct that two days prior to the lodging of the Police report my mother had come to know my acquaintance and meeting with accused Hardeep Kundu and on this issue lot of quarrel had taken place between me and my family members. It is correct that I did not want to go to Police Station to lodge any report and that I was forcibly taken by my mother to the Police Station for lodging the report. My mother was present with me at the time when the report was lodged in the Police Station. My mother who was present with me in the Police Station had only conversed and talked with the Police officials. My mother had accompanied me to the Court on the day when my statement u/s 164 Cr.P.C. was recorded. It is correct that I was instructed, pressurized and tutored by my mother as to what statement I have to make u/s 164 Cr.P.C."
On analysing the entire testimony of PW8 - prosecutrix it is clearly indicated that she has specifically deposed that, "I wanted to marry with accused Hardeep Kundu. The physical relations between me and accused Hardeep Kundu were established with my own consent. The physical relations were established several times during this period of four years. Out of fit of anger I lodged the complaint 38 of 43 39 FIR No. 162/14 PS - Aman Vihar against accused Hardeep Kundu with Police. I was upset at that time as my family members were not ready to perform my marriage with accused Hardeep Kundu." During her crossexamination by the Learned Counsel for the accused, she has specifically deposed that, "It is correct that I was instructed, pressurized and tutored by my mother as to what statement I have to make u/s 164 Cr.P.C." During her crossexamination by Learned Addl. PP for the State she specifically deposed that accused Hardeep Kundu did not make physical relations with her against her wishes in his house. She went out from the function venue to meet accused Hardeep Kundu and had accompanied him in his car and had made physical relations in the car in a secluded place with her consent. It is correct that her medical examination was conducted. Vol. the physical relations were established by accused Hardeep Kundu with her consent. She negated the suggestions put to her by the Learned Addl. PP for the State that the Manager namely accused Hardeep Kundu used to give salary or that accused Hardeep Kundu called her in his house on the pretext of giving salary and made physical relations with her against her consent or that she had stated to the Police that accused Hardeep Kundu called her at his house on the pretext of giving salary to her and there he 39 of 43 40 FIR No. 162/14 PS - Aman Vihar established physical relations with her against her consent or that when she started crying accused Hardeep Kundu promised her to perform marriage with her or that accused Hardeep Kundu established physical relations with her several times on the pretext of marriage and also by saying that he was having several evidence against her and if she would not give consent to establish physical relations with him then he would show the same to public persons or that accused Hardeep Kundu gave a tablet to her in the car for swallowing the same or that accused Hardeep Kundu used to give tablets to her whenever he established physical relations with her or that accused Hardeep Kundu used to make physical relations with her forcibly after giving threats that if she would not give consent then he would show the evidence to the public or that she had stated all the facts mentioned in the Portion 'A1 to A2' in the statement Ex. PW8/A to the Police or that she was in a fit state of mind at the time of making the statement u/s 164 Cr.P.C. or that she had voluntarily given her statement Ex. PW8/B before Ld. MM or that she had (not) given the statement Ex. PW8/B under pressure or that she is concealing the true facts as the matter has already been settled between her and the accused Hardeep Kundu or that she has deposed falsely as she has been won over 40 of 43 41 FIR No. 162/14 PS - Aman Vihar by accused or that she is deposing falsely.
As discussed hereinbefore, PW8 - prosecutrix has been found to be aged around 18 years, from the testimony of PW8 - prosecutrix, nothing is being indicated that four years prior to 16/02/2014, at the tenanted house of accused Hardeep Kundu at Sector - 1, Avantika, Delhi, accused Hardeep Kundu forcibly committed rape upon her or that 10 days prior to 16/02/2014 he also forcibly committed rape upon her in a car at a secluded place or that he also criminally intimidated her not to disclose about the incident to anyone otherwise her photographs which are in his possession would be made public. Even the DNA Report Ex. PW5/A as reproduced, discussed and analysed here inbefore also does not come to the rescue of the prosecution case.
17. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Hardeep Kundu. The hostility of PW8 - prosecutrix aged around 18 years has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that four years prior 41 of 43 42 FIR No. 162/14 PS - Aman Vihar to 16/02/2014, at the tenanted house of accused Hardeep Kundu at Sector
- 1, Avantika, Delhi, accused Hardeep Kundu forcibly committed rape upon her or that 10 days prior to 16/02/2014 he also forcibly committed rape upon her in a car at a secluded place or that he also criminally intimidated her not to disclose about the incident to anyone otherwise her photographs which are in his possession would be made public.
I accordingly, acquit accused Hardeep Kundu for the offences punishable u/s 376/506 IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Hardeep Kundu in the commission of offences punishable u/s 376/506 IPC, is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to accused Hardeep Kundu beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Hardeep Kundu. I, therefore, acquit accused Hardeep Kundu for the offences punishable u/s 376/506 IPC after giving him the benefit of doubt. Accused Hardeep Kundu is on bail. However, 42 of 43 43 FIR No. 162/14 PS - Aman Vihar u/s 437A Cr.P.C. the bail bond of accused Hardeep Kundu shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment.
Announced in the open Court (MAHESH CHANDER GUPTA) on 06th Day of August, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 43 of 43