Delhi District Court
State vs . Ajay on 30 August, 2014
1
FIR No. 124/11
PS - Mangol Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 68/13
Unique ID No. : 02404R0201502011
State Vs. Ajay
S/o Shri Manoj
R/o P2/13, Sultan Puri,
Delhi.
FIR No. : 124/11
Police Station : Mangol Puri
Under Sections : 376/506 IPC
Date of committal to session Court : 01/02/2012
Date on which judgment reserved : 23/08/2014
Date on which judgment announced : 30/08/2014
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 : 1 of 48 2 FIR No. 124/11 PS - Mangol Puri That on 02/04/2011, SI Sudhir Rathi was present in PS Mangol Puri, prosecutrix (name withheld being a case u/s 376 IPC) W/o Sh. Amit Kumar with her mother Smt. Jamuna Devi W/o Rajesh R/o Flat No. 49, Bhagya Laxmi Apartment, Sector 9, Rohini, Delhi 110085 came to the PS. Regarding the missing of the prosecutrix, her husband Amit S/o Dharam Pal R/o N 49, Mangol Puri, Delhi had lodged a DD No. 16B dated 10/02/11. Prosecutrix made a statement which is to the effect that, she lives at the above said address and does the household work. Her marriage had taken place about three years back in Mangol Puri and after the marriage, one son whose name was Aarav (Nannu) born to her and his age is about 2 years and she was living happily with her family. She was previously knowing Ajay S/o Manoj R/o P 2/50, Sultan Puri, Delhi who in her relation is, her bua's jeth's son and in relation (Natey Mein) is her brother and he also used to talk with her on phone and also used to meet her. (Main pata uprokt par sahparivar rahti hoon aur apne ghar ka kaam karti hoon. Meri shadi karib teen saal pehle mangolpuri mein hui thi aur shadi ke baad mujhe ek ladka paida hua jiska naam Aarav (Nannu) aur umr karib do saal hai. Mein apne parivar ke saath khushi se rah rahi thi aur meri jankari pehle se Ajay 2 of 48 3 FIR No. 124/11 PS - Mangol Puri S/o Manoj R/o P2/50, Sultan Puri, Delhi se thi jo hamari rishtedari mein meri buake jeth ka ladka hai aur naatey mein mera bhai lagta hai, jo mere se phone par bhi baat karta rahta tha aur milta rahta tha.) On 09/02/2011, the ring ceremony and sagai of her bua's son Akshay was to be held at Rohini, Sector 7 and they (prosecutrix and her husband) had a programme to go there and her husband Amit works as a photographer and he (her husband) told her to go to her bua's place in Rohini and he (her husband) will come there. Ajay by telephoning her also told that they have also to go in sagai and they will come in a vehicle (gadi) and let she come along with them (Hamare Sath Chal Padna) and asked her to meet at Balmiki Chowk, Mangol Puri. (Dinank 09/02/11 ko meri bua ke ladke Akshay ki angoothi rasam va sagai Rohini, Sec7 mein honi thi aur hamara vahan par jaane ka program tha. Mera pati Amit photographer ka kaam karta hai. Mere pati ne mujhe kaha ki aap Rohini apni bua ke yahan chali jana aur mein vahin aa jaunga. Ajay ne mujhe phone karke kaha ki hamein bhi sagai mein jana hai aur hum gadi lekar ayenge, hamare sath chal padna aur mujhe Valmiki Chowk, Mangol Puri par milne ko kaha.) At about 11:30 a.m., she came to Balmiki Chowk, Mangol Puri alone and for the reason that she was to go in a sagai she 3 of 48 4 FIR No. 124/11 PS - Mangol Puri was wearing gold jewellary. She was standing there and after some time, Ajay and his behnoi Sachin S/o Raj came driving Maruti Swift whose last number was 2067 and the complete number she does not know, in which Darshna, Mother of Ajay, Father Manoj and Brother Vicky were present and she was also made to sit in the rear seat of the car and after taking her they started going on the other way on which she said that this way does not lead to Rohini, after taking her where they are going. On which Ajay and her mother threatened her saying, sit down silently otherwise they will kill her and where they are going, let she go with them and she got frightened. (Jo mein samay karib 11:30 a.m. par akeli Valmiki Chowk, Mangol Puri aa gayi aur sagai mein jaane ki vajah se meine apne sone ke jever pehan rakhe they. Mein vahan par khadi thi ki thodi der baad Ajay va uska behnoi Sachin S/o Raj jo gaadi Maruti Swift jiska last number 2067 tha aur pura number mujhe nahin hai ko chalakar laya jismein Ajay ki maa Darshana va baap Manoj va bhai Vicky bhi gaadi mein maujood they aur mujhe bhi gaadi ki pichli seat par betha liya aur mujhe lekar ve doosre raaste ki taraf chal padey jo meine kaha ki yeh rasta to Rohini nahin jata, tum mujhe kahan lekar jaa rahe ho. To Ajay va uski maa ne mujhe dhamki di ki chupchap beth ja 4 of 48 5 FIR No. 124/11 PS - Mangol Puri nahin to jaan se maar denge aur jahan hum ja rahe hain, hamare sath chalti rah, mein dar gayi.) On the way Ajay and her Mother told her the jewellery which she is wearing let the same be given to them after removal, to which when she refused, then Ajay, his brother Vicky, mother and father of Ajay after frightening her forcibly removed her jewellery, which consisted of one big size gold necklace, one small size gold necklace, one pair big gold ear rings (jhumke), which she was wearing and two kadas of gold, four gold bangles, four gold rings, one gold nath and one gold tikka and the total weight of the gold jewellery was about 40 tola and they forcibly took her Rajasthan, Jaipur. (Aur raste mein mujhe Ajay va uski maa ne kaha ki jo jever tumne pehen rakhe hain, ve sabhi utaarkar hamein de do. Meine mana kiya to Ajay va uske bhia Vicky, Ajay ki maa va baap ne mujhe darakar jabardasti mere jever utaar liye jisse mera ek sone ka bada gale ka haar, va ek sone ka chota haar, va sone ki ek jodi badi jhumki jo meine pehen rakhi thi, va do sone ke kade, va chaar sone ki choodiyan va chaar sone ki angoothi, ek sone ki nath, va ek sone ka teeka jiska sabhi jevron ka karib 40 tola sona hai, tatha muje jabardasti Rajasthan, Jaipur le gaye.) After reaching Jaipur, Ajay alighted her from the car and the remaining persons went 5 of 48 6 FIR No. 124/11 PS - Mangol Puri away in that car. Ajay took her in hotel and the dusk (sham) had set in and took her in a room in hotel and threatened her if she told anything to anyone then he will kill her son and in the night in the room of the hotel, he forcibly committed rape upon her without her consent and kept her for two days in that hotel and thereafter, he took her to different places, Kashmir, Dehradun, Punjab, Bangalore and Varanasi and daily he kept on committing rape upon her without her consent and used to threatened her if she told anything to anyone then he will kill her and after threatening her, she got recorded her statement in a mobile against her family members and forcibly got recorded her statement in his favour. (Jaipur jaa kar Ajay ne mujhe gaadi se neeche utaar liya aur baaki aadmi ussi gaadi mein chale gaye. Ajay mujhe ek hotel me le gaya, uss samay shaam ho chuki thi aur mujhe hotel ke ek kamre mein le gaya aur kaha ki agar yahan kisi ko kuch batlaya to tere ladke ko jaan se maar doonga aur raat ko hotel ke kamre me mere sath jabardasti bina meri marji ke balatkaar kiya aur do din mujhe ussi hotel mein rakha aur uske baad mujhe Kashmir, Dehradoon, Punjab, Bangalore va Varanasi aadi jagahon par le gaya aur rojana mere sath bina meri marji ke balatkaar karta raha aur mujhe dhamki deta raha ki agar tune kisi ko kuch bhi 6 of 48 7 FIR No. 124/11 PS - Mangol Puri bataya to tujhe jaan se maar doonga tatha mujhe dhamki deker mere gharvalon ke khilaf mera bayan mobile mein record kiya tatha mobile mein usne apne paksh mein jabardasti mera bayan dilvaya aur record kiya.) On 31/03/2011, Father of Ajay, Mother of Ajay, Brother Vicky of Ajay, Jija Sachin of Ajay came to Baranas and from there, they brought her to Delhi. She does not know the names and addresses of the hotels where Ajay had kept in the hotels. Today on 02/04/2011, Ajay and his family members, at about 1:00 a.m., after leaving her near Lal Quila, Delhi had went away and she by asking the way had come to her mother and told all about the incident to her mother and her mother after taking her has come to PS - Mangol Puri. Ajay, his parents, brother Vicky and Jija Sachin after threatening her had kidnapped her and had taken her gold jewellery and after frightening her. Ajay had committed rape upon her without her consent. On 09/09/2011, when the said persons (Yeh Log) reached at Jaipur after taking her and when Ajay was alighting her from the car at that time, Mother of Ajay and all other relatives had said to Ajay, what ever he feels as pleasure, do the Galat Kaam with this girl in the night and they will keep informing him (Ajay) as to what is to be done and she was in the clutches of Ajay and she in order to save her life 7 of 48 8 FIR No. 124/11 PS - Mangol Puri and the life of her child had not told to anyone due to fear. (Aur dinank 31.03.2011 ko ajay ka pita va Ajay ki maa va Ajay ka bhai Vicky va Ajay ka jija Sachin Banaras aaye aur vahan se mujhe saath leker Dilli aa gaye. Mujhe Ajay ne jahan par hotelon mein rakha, mein vahan ke hotelon ke naam va patey nahin jaanti. Tatha Ajay va uske parivar vale aaj dinank 2.4.2011 ko samay karib 1.00 AM par Lal Kile ke pass Dilli chodkar chale gaye jo mein rasta poochkar apne ghar apni maa ke paas aa gayi aur meine apni maa ko saari batein batlai. Meri maa mujhe saath lekar thana Mangol Puri aayi jo ajay va uski maa, baap, bhai Vicki va Ajay ke jija Sachin ne mujhe jabardasti dara dhamka kar mera apharan kiya tatha mujhe darakar mere sone ke jever le liye tatha ajay ne mere sath bina meri marji ke balatkar kiya. Tatha dinank 09.02.2011 ko jab ye log mujhe lekar Jaipur pahunchey to mujhe jab ajay gadi se utarne laga to Ajay ki maa va uske sabhi rishtedaron ne Ajay se kaha ki tu jo marji aaye iss ladki ke saath raat mein galat kaam karna aur hum tujhe batate rahenge ki kya karna hai. Tatha mein Ajay ke changul mein thi. Meine apne bachche va apni jaan bachane ke liye inke dar se kisi ko kuch nahin bataya.) Legal action be taken against Ajay, his above said family members and Jija Sachin of Ajay. She has read and understood 8 of 48 9 FIR No. 124/11 PS - Mangol Puri her statement and is correct. Under the protection of Lady Constable Jyoti, medical examination of the prosecutrix was got conducted from SGMH vide MLC No. 2488/11 on which the Doctor, had endorsed 'alleged H/O sexual assault as told by patient herself'. The sealed exhibits as were handed over by the Doctor after her medical examination were taken into Police possession. From the statement of the prosecutrix, inspection of the MLC on finding that offences u/s 365/376/109/392/506/34 IPC appeared to have been committed, the case was got registered and investigation was proceeded with by SI Sudhir Rathi. The sealed exhibits were deposited in the Malkhana. Prosecutrix was interrogated. She did not disclose the address and particulars of the Hotel. Amit, husband of the prosecutrix had disclosed that the love affairs were going on between prosecutrix and Ajay for many days (Kafi Dino Se) and he also disclosed that prosecutrix and Ajay also used to meet secretly/concealingly (Chhip Chhip Kar). Interrogation was made to know the truth from the relatives of both sides. During the course of investigation, accused Ajay was called by giving Notice u/s 160 Cr.P.C. and the information given by him was verified and the statement of witnesses were recorded. Statements of witnesses and manifestos of 9 of 48 10 FIR No. 124/11 PS - Mangol Puri different airlines were taken into Police possession. Medical examination of accused Ajay was got conducted. 45 photos, 8 photocopies of the air tickets, one memory card of the mobile phone as was handed over by accused Ajay were taken into Police possession, offence of kidnapping and forcible snatching of the jewellery was not verified in the investigation and it was revealed that accused Ajay and prosecutrix were living in live in relationship. Therefore, Section 365/109/392/34 IPC were deleted from the case.
Upon completion of the necessary further investigation, challan for the offences u/s 376/506 IPC was prepared against accused Ajay and was sent to the Court for trial.
2. Since the offence u/s 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 u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 376/506 IPC was made out 10 of 48 11 FIR No. 124/11 PS - Mangol Puri against accused Ajay. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 12 witnesses. PW1 HC Sushil Kumar, PW2 Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi, PW3 Dr. Kirti Verma, S.R. Gynae, SGM Hospital, Mangol Puri, Delhi, PW4 Sh. Ram Karan, PW5 Sh. Anil Kumar, PW6 Sh. Rakesh Pankaj, PW7 - Prosecutrix, PW8 - Ms. Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi, PW9 - Sh. Vijay Roy, Manager Legal, Spice Jet Ltd., Phase - IV, 319, Udyog Vihar, Gurgaon, Haryana, PW10 - HC Mahavir Prasad, PW11 - Constable Jyoti and PW12 - SI Sudhir Rathi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Sushil Kumar, who deposed that on 02/04/2011, he was posted as HC in the PS - Mangol Puri and was working as Duty 11 of 48 12 FIR No. 124/11 PS - Mangol Puri Officer from 5:00 p.m. to 1:00 a.m. (Midnight). On that day, at about 11:00 p.m., SI Sudhir Rathi handed over original rukka to him. After receiving the rukka, he made endorsement Ex. PW1/A on it and thereafter, case FIR No. 124/11 u/s 365/376/109/392/506/34 IPC was got registered through Computer Operator. After registration of the case, he handed over the computerized copy of FIR and rukka to Constable Manoj for handing over the same to SI Sudhir Rathi for further investigation. He has brought the original FIR with him and the computerized copy of FIR is Ex. PW1/B, which bears his signatures at point 'A' (Original seen and returned).
PW2 Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi, who deposed that on 02/04/2011, he was on emergency duty. On that day, patient/prosecutrix (name withheld) W/o Amit Kumar, aged 22 years, female, was brought in Casualty with alleged history of sexual assault and was medically examined by him and he prepared MLC. Thereafter, the patient was referred to Gynae Department for her examination and management. The MLC on record is Ex. PW2/A which bears his endorsement and signatures at point encircled 'A'. The patient 12 of 48 13 FIR No. 124/11 PS - Mangol Puri did not have any external injuries so for her local examination she was referred to Gynae Department. On 06/07/2011, he also examined the patient Ajay (accused) S/o Manoj, aged 25 years, male, was brought in Casualty with alleged history of sexual assault (accused point of view). Patient Ajay was medically examined by him on local examination. There was no fresh injury and after medical examination, there was nothing to suggest that the patient cannot perform any sexual act. Blood sample of patient/accused Ajay was sealed and handed over to the IO. He (PW2) prepared the MLC which is Ex. PW2/B which bears his signatures at point 'A'.
PW3 Dr. Kirti Verma, S.R. Gynae, SGM Hospital, Mangol Puri, Delhi who deposed that on 02/04/2011, patient/prosecutrix (name withheld) W/o Amit Kumar, aged 22 years, female, was referred to Gynae Department for her further medical examination. In Gynae Department, she medically examined the patient/prosecutrix (name withheld), who was brought with alleged history of sexual assault by her cousin brother Ajay. The patient was examined after taking her consent 13 of 48 14 FIR No. 124/11 PS - Mangol Puri as well as consent of her mother. On gynaecological examination, the hymen of the patient was found torn, however, since the patient was menstruating at that time, her detailed examination could not be conducted to ascertain if the bleeding was because of menstruation or torn hymen. Samples of the patient were taken in sexual assault victim's kit and were sealed with the seal of 'SGM Hospital Mangol Puri' and were handed over to concerned Police official alongwith sample seal. The MLC of the patient is already exhibited as Ex. PW2/A and his observations thereupon are at point encircled 'X' to 'X' and bears her signatures at point 'X1'.
PW4 Sh. Ram Karan, who deposed that he is working as Receptionist at Airport Hotel and Restaurant at Mehram Nagar, opposite Palam Airport, New Delhi. On 27/04/2011, he handed over to the Police the photocopy of CheckIn Register of guests who stayed in their Hotel, dated 11/02/2011. He also handed over the photocopy of the bill and photocopy of ID Proof of the guest. The same were seized by the Police vide memo Ex. PW4/A, bearing his signature at point 'A'. As per their 14 of 48 15 FIR No. 124/11 PS - Mangol Puri record, one Ajay and Neha had stayed in their hotel on 11/02/2011 at 1:15 a.m. to 9:00 a.m. He has brought the original CheckIn register and Receipt/Bill Book , copy of the same is Ex. PW4/B (OSR) and copy of Bill and copy of ID Proof is Ex. PW4/C (OSR) and Ex. PW4/D respectively. He correctly identified accused Ajay present in the Court.
PW5 Sh. Anil Kumar, who deposed that he is working as Receptionist at Airport Hotel and Restaurant at Mehram Nagar, opposite Palam Airport, New Delhi. On 27/04/2011, Ram Karan handed over to the Police the photocopy of CheckIn Register of guests who stayed in their hotel, dated 11/02/2011. He also handed over the photocopy of the bill and photocopy of ID Proof of the guest. The same were seized by the Police vide memo Ex. PW4/A, bearing his signature at point 'B'. As per their record, one Ajay and Neha had stayed in their Hotel on 11/02/2011 at 1:15 a.m. to 9:00 am. He has brought the original Check In register and Receipt/Bill Book, copy of the same is Ex. PW4/B (OSR) and copy of Bill and copy of ID proof is Ex. PW4/C (OSR) and Ex. PW4/D respectively. He correctly identified accused Ajay present in the Court.
15 of 48 16 FIR No. 124/11 PS - Mangol Puri PW6 Sh. Rakesh Pankaj, who deposed that he is working as Duty Manager at Jet Airways at Terminal - 3, IGI Airport, New Delhi. He has come to depose on behalf of Ms. Ruchika who is working as Customer Service Assistant at Airport Manager Office, Jet Airways. He is conversant with the handwriting and signature of Ms. Ruchika as he has seen her signing and writing during the course of official duty. He has seen Notices u/s 91 Cr.P.C. dated 23/06/2011 and the same were received by Ms. Ruchika whose signature are at point 'A' of each notice. The Notice are Ex. PW6/A and Ex. PW6/B. In pursuance of the above notices, the certified copies of passenger manifesto dated 10/02/2011 from Banglore to Delhi and dated 11/02/2011 from Delhi to Mumbai of Jet Airways were handed, the same are Ex. PW6/C and Ex. PW6/D bearing signature of Ms. Ruchika at points 'A'.
PW7 Prosecutrix is the victim who deposed some facts regarding the incident but did not support the prosecution and was also crossexamined by the Learned Addl. PP for State.
16 of 48 17 FIR No. 124/11 PS - Mangol Puri PW8 - Ms. Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi, who proved the biological and serological reports Ex. PW8/A and Ex. PW8/B respectively signed by her at points 'A'.
PW9 - Sh. Vijay Roy, Manager Legal, Spice Jet Ltd., Phase
- IV, 319, Udyog Vihar, Gurgaon, Haryana, who deposed that on 23/06/2011 one Notice u/s 91 Cr.P.C. was given by IO SI Sudhir Rathi to Sh. Sumat Prakash Rautela, the then Station Manager, Spice Jet for giving the manifesto of flight No. 114BOMDEL dated 12/02/2011 from Mumbai to Varanasi and the same was supplied to the IO. The copy of the manifesto is Ex. PW9/A, bearing signature of Sh. Sumat Prakash Rautela at point 'A'.
PW10 - HC Mahavir Prasad, who deposed that on 02/04/2011, he was posted as MHC(M) in PS Mangol Puri. On that day, SI Sudhir Kumar Rathi had deposited one sealed pullinda alongwith sample seal in the malkhana and he made entry at Sr. No. 4894 of Register No. 19. On 06/07/2011, SI Sudhir Rathi had deposited two 17 of 48 18 FIR No. 124/11 PS - Mangol Puri sealed pullindas alongwith sample seal in the malkhana and he made entry at Sr. No. 5096 of Register No. 19. On 03/11/2011 on the instructions of the IO, two sealed pullinda alongwith sample seal were sent to FSL vide RC No. 152/21/11 through SI Sudhir Rathi. After depositing the same, he deposited the acknowledgment receipt with him (PW10). He has brought Register No. 19 and 21. The copies of relevant entries of Register No. 19 is collectively Ex. PW10/A (OSR). The copies of relevant entries of Register No. 21 is Ex. PW10/B (OSR) and the copy of acknowledgment receipt is Ex. PW10/C (OSR). The sealed pullindas remained intact during his custody.
PW11 - Constable Jyoti, who deposed that on 02/04/2011, he was posted as Constable in PS - Mangol Puri. On that day, she remained in the investigation of the present case. On that day she took prosecutrix (name withheld) in SGM Hospital, where she was medically examined and after medical examination, Doctor handed over the sealed pullinda containing exhibits which were seized vide memo Ex. PW11/A, bearing her signature at point 'A'. Prosecutrix was handed over to her mother. IO recorded her (PW11) statement.
18 of 48 19 FIR No. 124/11 PS - Mangol Puri PW12 - SI Sudhir Rathi, who deposed that on 10/02/2011, he was posted as SI in PS - Mangol Puri. On that day, one Amit S/o Dharampal had lodged a missing report of his wife prosecutrix (name withheld) which was recorded vide DD No. 16B, the copy of which is Ex. PW12/A. He completed the formalities regarding the missing persons and searched her. On 02/04/2011, prosecutrix (name withheld) W/o Amit Kumar alongwith her Mother Jamna Devi came in the PS and gave her statement Ex. PW7/A. He attested her signature at point 'A' bearing his signature at point 'B'. thereafter, he took prosecutrix (name withheld) alongwith her Mother and Lady Constable Jyoti in Sanjay Gandhi Hospital for her medical examination. The medical examination of prosecutrix (name withheld) was got conducted. He collected her MLC. Lady Constable also handed over to him the pullindas of exhibits of prosecutrix which were seized vide memo Ex. PW11/A bearing his signatures at point 'X'. Thereafter, they came back in the PS. He prepared rukka Ex. PW12/B bearing his signatures at point 'A' and handed over the same to the Duty Officer for registration of the FIR. After registration of the FIR, Duty Officer handed over to him the copy 19 of 48 20 FIR No. 124/11 PS - Mangol Puri of FIR and original rukka. Prosecutrix (name withheld) was handed over to her Mother vide memo Ex. PW12/C bearing his signature at point 'A'. He recorded the statements of witnesses. On 02/04/2011, after coming from the Hospital he deposited the pullindas/exhibits in the malkhana which were collected from the Hospital. On 16/04/2011, he reached at the house of prosecutrix (name withheld) where he made further inquiries from her and recorded her supplementary statement. On 23/04/2011, he served notice u/s 160 Cr.P.C to accused Ajay to join investigation. At which Ajay had come to him at the PS on 24/04/2011. He was interrogated by him and at that time he produced air tickets before him in proof of his air journey alongwith prosecutrix during the relevant period and as per the records of the tickets on 09/02/2011 accused Ajay and prosecutrix (name withheld) had travelled by air from Delhi to Banglore and they had come back to Delhi on 10/02/2011 and on 11/02/2011 both of them had travelled from Delhi to Bombay by air. They had travelled on 12/02/2011 from Bombay to Banaras by air. At that time accused Ajay had also produced before him 45 photographs of various tourist spots received by them during the relevant period. One mobile card was also produced by Ajay before him. He had taken the 20 of 48 21 FIR No. 124/11 PS - Mangol Puri photocopy of air tickets, 45 photographs and memory card into possession vide seizure memo Ex. PW10/D which bears his signature at Point 'A' and also of the accused at Point 'B'. The photographs are Ex. PW12/A1 to Ex. PW12/A45, memory card is Ex. PW12/A46 and the eight photocopies of air tickets are Ex. PW12/A47 to Ex. PW12/A54 are the same which were taken into possession by him. After making inquiries accused Ajay was relieved. Pursuant upon the interrogation made from the accused, on 27/04/2011, he reached Air Port Hotel & Restaurant at Mehrab Nagar, Delhi, where he made inquiry from concerned employee of the hotel namely Anil Yadav and Ram Karan regarding the stay of accused with prosecutrix (name withheld) in the said hotel from 1:15 a.m. to 9:00 a.m. on 11/02/2011. At that time Ram Karan had also produced the register, bill book and photocopy of I.D. Proofs of accused Ajay and prosecutrix (name withheld) about the stay of accused Ajay with prosecutrix (name withheld). Ram Karan had also produced the photocopy of the relevant register and photocopy of the bill book and he took the same into possession vide seizure memo Ex. PW4/A which bears his signature at Point 'C' alongwith photocopy of the I.D. Proof. Photocopies of aforesaid bill book, I.D. Proof and register 21 of 48 22 FIR No. 124/11 PS - Mangol Puri which are collectively Ex. PW12/D (running into four pages) are the same which were taken into possession by him. Ram Karan had also signed the aforesaid photocopies at Point 'A'. At that time, he had recorded statements of Anil Yadav, Ram Karan u/s 161 Cr.P.C. After that he came back to the PS. On 23/06/2011, he reached at the Office of Spice Jet Airways at Domestic Airport Delhi, where one Sumant Prakash Rohtella met him. He served notice upon him u/s 191 Cr.P.C. and joined him in the investigation and he told him (PW12) that on 12/02/2011 one Ajay and prosecutrix (name withheld) had travelled from Mumbai to Banaras. He handed over the certified copy of the manifesto of the relevant dates containing the names of Ajay S/o Manoj and prosecutrix (name withheld). The same is Ex. PW9/A collectively (running into five pages). On the same day, he reached at IGI Airport, Terminal III, where one Pawan met him and he served notice u/s 191 Cr.P.C to him. He had told him (PW12) that Ajay and prosecutrix (name withheld) had travelled in their Kingfisher Airlines from Delhi to Banglore on 09/02/2011. The said Pawan had handed over him the relevant certified copy of the manifesto. The same is Ex. PW12/E collectively (running into 18 pages). At that time, he had also recorded the statement of Pawan 22 of 48 23 FIR No. 124/11 PS - Mangol Puri u/s 161 Cr.P.C. Thereafter, at the Terminal - III, he had also met with one Ruchika of Jet Airways. He had also served notice u/s 191 Cr.P.C. to her at which she told that Ajay and prosecutrix (name withheld) had travelled on 10/02/2011 from Banglore to Delhi and they had also travelled on 11/02/2011 from Delhi to Mumbai. She had also handed over to him the certified copy of the relevant manifesto. The same are Ex. PW6/C and Ex. PW6/D. His notices in this respect are Ex. PW6/A & Ex. PW6/B both bear his signatures at Points 'B'. At that time, he had also recorded the statement of Ruchika u/s 161 Cr.P.C. After that he came back to the PS. On 27/06/2011, he had left Delhi for Banaras and reached there on 28/06/2011 where he had reached at Gautam Hotel at Ram Katora Road, Banaras where one Amardeep, Reception Incharge met him and he made inquiries from him and served notice u/s 161 Cr.P.C. and the same is Ex. PW12/F bearing his signature at Point 'A'. At that time Amardeep had told him about the stay of Ajay and prosecutrix (name withheld) in his hotel from 13/02/2011 to 15/02/2011. He had also handed over to him (PW12) the photocopies of the relevant entries made in the register, I.D. Proof of Ajay and copy of bill book which were taken into possession by him. The same are Ex. PW12/G collectively (running 23 of 48 24 FIR No. 124/11 PS - Mangol Puri into four pages) on which accused had also signed at Point 'A' on each page. He had also recorded the statement of Amardeep u/s 161 Cr.P.C. He had reached at the shop of one Rattandeep Jeweller in Banaras, where one Rattandeep Jaiswal met and he made inquiries from him, who told him about selling of jewellery by prosecutrix (name withheld) in the presence of Ajay. He had recorded the statement u/s 161 Cr.P.C. of Rattan Deep but he did not produce any relevant document. In the night, he had stayed in Banaras and on the next day, he had reached at the house of one Service Pandey at Banaras, where Service Pandey met him there. He made inquiries from him and who told him that accused Ajay and prosecutrix (name withheld) lived in his house as tenant as husband and wife in a room at first floor from 19/02/2011 to 31/03/2011. At that time, he had shown the photographs of Ajay and prosecutrix (name withheld) to Service Pandey and on seeing the same he identified them as their tenants who were living in his house. He recorded the statement of Service Pandey u/s 161 Cr.P.C. On the next day, he had also made inquiries from Neelam Pandey W/o Service Pandey and recorded her statement u/s 161 Cr.P.C. Prior to that, he had also made arrival and departure entry at the local Police Station at PS Sigra. After that he 24 of 48 25 FIR No. 124/11 PS - Mangol Puri had come back to Delhi. On 06/07/2011, he had called accused Ajay, who is present in the Court (correctly identified) at the PS and accordingly he had come there and he took him to SGM Hospital where he was got medically examined regarding his potentiality to perform sexual intercourse. At that time Doctor had also taken the blood sample of the accused which was taken into possession by him alongwith sample seal vide seizure memo Ex. PW12/H bearing his signature at Point 'A'. After medical examination, he came back to the PS after relieving the Ajay from the Hospital. He deposited the blood sample in the malkhana alongwith sample seal. On 03/11/2011, he had taken the exhibits from the MHC(M) and deposited the same at FSL Rohini on the same day. After depositing the exhibits he had obtained the acknowledgment receipt which he handed over to MHC(M) Mahavir. He also recorded the statement of HC Mahavir u/s 161 Cr.P.C. The copy of the notice given by him to Sumant Prakash Rohtella is Ex. PW12/I bearing his signature at Point 'A'. Copy of the notice given by him to the Manager of Kingfisher Airlines is Ex. PW12/J bearing his signature at Point 'A'. During the course of investigation, he had recorded the statements of relevant witnesses and after completing the investigation he prepared the 25 of 48 26 FIR No. 124/11 PS - Mangol Puri challan without the arrest of accused Ajay. By that time the FSL result was not available and the same was filed later on.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Ajay was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. He did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that prosecutrix has not supported the case of the prosecution and has turned hostile. He further submitted that prosecutrix of her own will had gone with the accused and had established physical relations with the accused with her own consent and will. He further submitted that the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused on all the charges levelled against him.
8. While the Learned Addl. PP for the State, on the other hand, 26 of 48 27 FIR No. 124/11 PS - Mangol Puri 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 Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Deepak Ghai, 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 the accused Ajay is that on 09/02/2011, at about 11:30, from Balmiki Chowk, Mangol Puri, Delhi, he kidnapped the prosecutrix (name withheld) W/o Sh. Amit Kumar and took her with him and from 09/02/2011 to 31/03/2011, at different places i.e. Jaipur, Kashmir, Dehradoon, Punjab, Banglore and Varanashi, he raped said prosecutrix (name withheld) without her consent and that during the period 09/02/2011 to 31/03/2011, at unknown time and aforesaid places, he threatened the prosecutrix (name withheld) not to disclose this fact to 27 of 48 28 FIR No. 124/11 PS - Mangol Puri anyone.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW7 - prosecutrix in her statement recorded in the Court on 19/03/2013 while giving her particulars has stated her age as 24 years.
Since PW7 - prosecutrix has stated her age as 24 years on 19/03/2013 at the time of recording her evidence/statement in the Court and the date of alleged incident is 09/02/2011, on simple arithmetical calculation, the age of the prosecutrix comes to around 21 years, 10 months and 20 days as on the date of alleged incident on 09/02/2011.
Moreover, the said factum of age of PW7 - prosecutrix has also not been disputed by accused Ajay. Nor any evidence to the contrary has been produced or proved on the record on behalf of the 28 of 48 29 FIR No. 124/11 PS - Mangol Puri accused.
In the circumstances, it stands proved on record that PW7 - prosecutrix was aged around 21 years, 10 months and 20 days as on the date of incident on 09/02/2011.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW2 Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi has deposed that on 02/04/2011, he was on emergency duty. On that day, patient/prosecutrix (name withheld) W/o Amit Kumar, aged 22 years, female, was brought in Casualty with alleged history of sexual assault and was medically examined by him and he prepared MLC. Thereafter, the patient was referred to Gynae Department for her examination and management. The MLC on record is Ex. PW2/A which bears his endorsement and signatures at point encircled 'A'. The patient did not have any external injuries so for her local examination she was referred to Gynae Department.
PW3 Dr. Kirti Verma, S.R. Gynae, SGM Hospital, Mangol Puri, Delhi has deposed that on 02/04/2011, patient/prosecutrix (name 29 of 48 30 FIR No. 124/11 PS - Mangol Puri withheld) W/o Amit Kumar, aged 22 years, female, was referred to Gynae Department for her further medical examination. In Gynae Department, she medically examined the patient/prosecutrix (name withheld), who was brought with alleged history of sexual assault by her cousin brother Ajay. The patient was examined after taking her consent as well as consent of her mother. On gynaecological examination, the hymen of the patient was found torn, however, since the patient was menstruating at that time, her detailed examination could not be conducted to ascertain if the bleeding was because of menstruation or torn hymen. Samples of the patient were taken in sexual assault victim's kit and were sealed with the seal of 'SGM Hospital Mangol Puri' and were handed over to concerned Police official alongwith sample seal. The MLC of the patient is already exhibited as Ex. PW2/A and his observations thereupon are at point encircled 'X' to 'X' and bears her signatures at point 'X1'.
Despite grant of opportunity, PW2 Dr. Mahipal Singh and PW3 Dr. Kirti Verma were not crossexamined on behalf of the accused.
30 of 48 31 FIR No. 124/11 PS - Mangol Puri In view of above and in the circumstances, the medical and gynaecological examination vide MLC Ex. PW2/A and from portion encircled 'X' to 'X' on the MLC Ex. PW2/A of PW7 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
14. PW2 Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi has deposed that on 06/07/2011, he also examined the patient Ajay (accused) S/o Manoj, aged 25 years, male, was brought in Casualty with alleged history of sexual assault (accused point of view). Patient Ajay was medically examined by him on local examination. There was no fresh injury and after medical examination, there was nothing to suggest that the patient cannot perform any sexual act. Blood sample of patient/accused Ajay was sealed and handed over to the IO. He (PW2) prepared the MLC which is Ex. PW2/B which bears his signatures at point 'A'.
Despite grant of opportunity, PW2 Dr. Mahipal Singh was not crossexamined on behalf of the accused.
31 of 48 32 FIR No. 124/11 PS - Mangol Puri In view of above and in the circumstances, it stands proved on the record that accused Ajay was capable of performing any sexual act.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW8 - Ms. Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi has proved the biological and serological reports Ex. PW8/A and Ex. PW8/B respectively signed by her at points 'A'.
As per biological report Ex. 8/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', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m' and '1n' each kept in a sealed cloth of "SGMH GNCT DELHI".
Exhibit '1a' : Dirty cotton wool swab on a stick kept in a tube described as 'Vaginal swab'.
Exhibit '1b' : Dirty cotton wool swab on a stick kept in a tube described as 'Vaginal swab'.
32 of 48 33 FIR No. 124/11 PS - Mangol Puri Exhibit '1c' : Dirty cotton wool swab on a stick kept in a tube described as 'Vaginal swab'.
Exhibit '1d' : Dirty cotton wool swab on a stick kept in a tube described as 'Vaginal swab'.
Exhibit '1e' : One microslide having faint whitish smear described as 'Vaginal smear'.
Exhibit '1f' : Dirty cotton wool swab on a stick kept in a tube described as 'Vulval swab'.
Exhibit '1g' : Dirty cotton wool swab on a stick kept in a tube described as 'Vulval swab'.
Exhibit '1h' : Few clippings of hair described as 'Pubic hair'. Exhibit '1i' : Few nail clippings described as 'Cutted nails'. Exhibit '1j' : Few nail clippings described as 'Cutted nails'. Exhibit '1k' : Dark brown foul smelling liquid kept in a tube described as 'Blood sample'.
Exhibit '1l' : Dark brown foul smelling liquid kept in a tube described as 'Blood sample'.
Exhibit '1m' : Cotton wool swab on a stick kept in a tube described as 'Nail scraping'.
Exhibit '1n' : Cotton wool swab on a stick kept in a tube described as 'Nail scraping'.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '2'. Exhibit '2' : Dark brown foul smelling liquid kept in a tube described as 'Blood sample'.
RESULT OF ANALYSIS 33 of 48 34 FIR No. 124/11 PS - Mangol Puri
1. Blood was detected on exhibits '1k', '1l' and '2'.
2. Semen could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1m' and '1n'.
3. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'FSL MU DELHI'.
The serological report Ex. 8/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood stains: '1k' Blood sample Sample blood putrefied hence no opinion '1l' Blood sample Sample blood putrefied hence no opinion '2' Blood sample Sample blood putrefied hence no opinion As per the biological report Ex. PW8/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW11/A dated 02/04/2011 and parcel no. 2 belongs to accused Ajay which was seized vide seizure memo Ex. PW12/A dated 06/07/2011.
34 of 48 35 FIR No. 124/11 PS - Mangol Puri On careful perusal and analysis of the biological and serological evidence on record, it shows that blood was detected on exhibit '1k' (Blood sample of the prosecutrix), exhibit '1l' (Blood sample of the prosecutrix) and exhibit '2' (Blood sample of accused) and semen could not be detected on exhibit '1a' (Vaginal swab of the prosecutrix), exhibit '1b' (Vaginal swab of the prosecutrix), exhibit '1c' (Vaginal swab of the prosecutrix), exhibit '1d' (Vaginal swab of the prosecutrix), exhibit '1e' (Vaginal smear of the prosecutrix), exhibit '1f' (Vulval swab of the prosecutrix), exhibit '1g' (Vulval swab of the prosecutrix), exhibit '1h' (Pubic hair of the prosecutrix), exhibit '1i' (Cutted nails of the prosecutrix), exhibit '1j' (Cutted nails of the prosecutrix), exhibit '1m' (Nail scraping of the prosecutrix) and exhibit '1n' (Nail scraping of the prosecutrix). As per the serological report Ex. PW8/B 'Sample was putrefied hence no opinion' could be given on the exhibit '1k' (Blood Sample of the prosecutrix), exhibit '1l' (Blood Sample of the prosecutrix) and exhibit '2' (Blood Sample of accused Ajay).
It is also to be noticed that period of alleged incident is from 09/02/2011 to 31/03/2011 and the medical and the 35 of 48 36 FIR No. 124/11 PS - Mangol Puri gynaecological examination of the prosecutrix was conducted on 02/04/2011 vide MLC Ex. PW2/A and from portion encircled 'X' to 'X' on the MLC Ex. PW2/A and the exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m' and '1n' of the prosecutrix were seized vide seizure memo Ex. PW11/A dated 02/04/2011, during this period of incident from (09/02/2011 to 31/03/2011) till 02/04/2011 it cannot be ruled out that prosecutrix must have answered the call of nature a number of times and must have urinated a number of times and this not being a case of recent sexual intercourse activity and for the said reasons it appears that the semen could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1m' and '1n', as detailed hereinabove.
16. Now let the testimony of PW7 Prosecutrix be perused and analysed.
PW7 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I was married with Amit Kumar about 5 years ago. After marriage, I started residing with my husband at N48, Mangolpuri, 36 of 48 37 FIR No. 124/11 PS - Mangol Puri Delhi. I am having one son namely Arav aged around 4 years from this marriage. I know Ajay and can identify him, if shown to me. At this stage the wooden partition is removed. The witness pointed towards the accused Ajay and identified him correctly.
At this stage the wooden partition is restored to its original position.
Accused Ajay is in relation of my bua. I know him for the last about 8/9 years. On 09/02/2011, I had gone with accused Ajay with my freewill and consent and we came back after about two months. Accused Ajay has not committed any forcible act with me.
PW7 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "I am 10th class pass. At present I am living with my husband. It is correct that statement Ex. PW7/A bears my signature at point 'A' but I disown its content. Volt. Police had obtained my signatures on many papers and I had given the same statement to the police which I has given today in the Court. I came to know that Ajay is facing a criminal trial that I had gone with him, when I was in the hospital i.e. 27/04/2011. I did not visit to the police station or any senior officer of the police to depose that Ajay has been falsely implicated in this case. I 37 of 48 38 FIR No. 124/11 PS - Mangol Puri did not disclose to my husband that Ajay has been falsely implicated in this case. I had gone to the house of my husband after about 11½ years of my going with accused Ajay. My husband has not asked me anything so I did not disclose anything to him. I had came to the house of my parents from Banaras where I had gone with Ajay. The mother and father of Ajay had brought me to Delhi. I did not try to contact with my husband after my arrival at Delhi. I had gone to the house of my husband after the intervention of my relatives and respectables of the localities. In my parental house, I am having my parents, two sisters and one brother. I did not tell my mother and father about the fact of my going with Ajay as I was ill. I was suffering from Jaundice and urinary infection. I was treated at Saroj Hospital. I remained admitted from 27/04/2011 to 03/05/2011 and then again from 09/05/2011 to 17/05/2011 and I remained admitted in ICU. During this period of my admission in the hospital, once my husband and son had come to meet me. Nothing was asked by my husband nor I was in a state to tell anything. Ajay has not come to meet me in the hospital. Nor the parents and brother Vicky of Ajay had come to meet me in the hospital. My mother had asked me softly about my having gone and I had told her whatever I have told today in the Court and had also told the same in the police station. I have not given any thing in writing in the police station. I did not ask the police official before obtaining my signature on the paper to read out as to what is written on the documents as I was not very much well. I was medically examined. I have told nothing to the doctor. It is wrong to suggest that I had told the alleged history of sexual assault by my cousin Ajay as I was kidnapped by him on 09/02/2011 at Valmiki Chowk, Mangol Puri at 11:30 a.m. at the time of my medical examination (confronted with portion encircled at point Q on the MLC Ex. PW2/A where it is so recorded). It is wrong to suggest that I am deposing falsely 38 of 48 39 FIR No. 124/11 PS - Mangol Puri on the factum of telling the history to the doctor at the time of my medical examination. It is correct that I was very much happy with my married life. It is correct that accused Ajay was my cousin brother in relation."
During her further crossexamination by the Learned Addl. PP for the State recorded on 21/08/2013, PW7 - Prosecutrix has deposed that : "It is correct that on 09/02/2011 the engagement and ring ceremony of Akshay my bua's son was fixed at his house at Sector 7, Rohini, and we had a programme to go there. It is correct that my husband Amit is a photographer. It is correct that my husband Amit had asked me to go to the house of my bua for the said ceremony and he will reach there directly.
I have not stated to the IO in my statement that accused Ajay had also telephoned me on 09/02/2011 and stated to me "hame bhi sagai me jana hai aur hum gadi le kar aayge aur hamare saath chal padna" (They also had to go in the engagement ceremony and they will come in a vehicle and you also accompany them). [Confronted with portion 'A' to 'A' of the statement Ex. PW7/A where it is so recorded].
I have not stated to the IO in my statement that Ajay had asked me to meet at Mangol Puri Chowk. (Confronted with portion 'B' to 'B' of the statement Ex. PW7/A where it is so recorded).
On 09/02/2011 I had left for going to the engagement ceremony at about 10:00/11:00 a.m. Vol. I left the home for going to attend the engagement ceremony but in fact had gone to meet Ajay. I left the home after being dressed up for occasion (Me ghar se tayar ho kar nikli). I was not wearing the ornaments. I have not stated to the IO in 39 of 48 40 FIR No. 124/11 PS - Mangol Puri my statement that I was wearing gold ornaments at that time. (Confronted with portion 'C' to 'C' of the statement Ex. PW7/A where it is so recorded).
It is correct that Ajay met me at Balmiki Chowk, Mangol Puri. I have not stated to the IO in my statement that at that time Ajay had come in a Maruti Swift Car whose last number was, 2067 and was accompanied by his jija Sachin, mother Darshna, father Manoj and brother Vicky. They made me to sit on the rear seat of car and drove away on a different route and I asked them that this way does not lead to Rohini, and where they are taking me. Ajay and his mother had also threatened me, to sit quietly otherwise they will kill me and to accompany them where they are going (Hum jaha ja rahe hamare saath chalte raho) and I got frightened. (Confronted with portion 'D' to 'D' of the statement Ex. PW7/A where it is so recorded).
I have not stated to the IO in my statement that on the way Ajay and his mother asked me to hand over my ornaments after untying them (utar kar). I refused for the same on which Ajay, his brother Vicky, mother and father after frightening me, forcibly removed my ornaments which consisted of one big gold necklace, one small gold necklace, one pair of gold big jhumki, two gold kadas, four gold bangles, four gold rings, one gold nath (nose pin), one gold tikka, the total weight of which was 40 tollas. (Confronted with portion 'E' to 'E' of the statement Ex. PW7/A where it is so recorded).
I have not stated to the IO in my statement that they all forcibly had taken me to Jaipur. After reaching at Jaipur, Ajay deboarded me from vehicle (Ajay ne mujhe gadi se niche utar diya) and all the other occupants zoomed away in that vehicle (baki aadme usi gadi me chale gaye). (Confronted with portion 'F' to 'F' of the statement Ex. PW7/A where it is so recorded).
40 of 48 41 FIR No. 124/11 PS - Mangol Puri I have not stated to the IO in my statement that at Jaipur, Ajay took me in a hotel in a room. Vol. We had not gone to Jaipur. There in the hotel room Ajay threatened me If I disclosed anything to anyone then we will kill my son and there he forcibly committed rape upon me and kept me there for two days. (Confronted with portion 'G' to 'G' of the statement Ex. PW7/A where it is so recorded).
It is correct that Ajay took me to Kashmir, Dehradun, Punjab, Bangalore, Varanasi etc. It is correct that at the places wherever Ajay took me he established physical relations with me.
I have not stated to the IO in my statement that the physical relationship were established by Ajay without my consent and after giving threat to me. (Confronted with portion 'H' to 'H' of the statement Ex. PW7/A where it is so recorded).
I have not stated to the IO in my statement that Ajay after threatening me, forcibly got recorded my statement in the mobile phone against my family members and in his favour. (Confronted with portion 'J' to 'J' of the statement Ex. PW7/A where it is so recorded).
I have not stated to the IO in my statement that on 31/03/2011 Father, Mother, Jija Sachin and Brother Vicky had brought me from Banaras to Delhi. Vol. father and mother of Ajay had brought me from Banaras together. (Confronted with portion 'K' to 'K' of the statement Ex. PW7/A where it is so recorded).
I have not stated to the IO in my statement that on 09/02/2011 after reaching at Jaipur and when Ajay had deboarded me from vehicle (Ajay ne mujhe niche utara), the relatives of Ajay present in the vehicle had asked "Ajay to do whatever galat kaam he feels like to do with this girl in the night and they will keep on instructing what he is to do". (Mujhe jab Ajay gadi se utar ne laga ajay ki maa or uske sabhi rishtedaro ne Ajay se kaha ki to jo marji aaye is ladki ke saath raat me 41 of 48 42 FIR No. 124/11 PS - Mangol Puri galat kaam karna aur hum tujhe batate rahege ki kya karna hai. (Confronted with portion 'L' to 'L' of the statement Ex. PW7/A where it is so recorded).
It is wrong to suggest that I and my family members have compromised the matter with the accused and his family members or that I have been won over by the accused and his family members and that is why I am deposing in favour of the accused and also disowning my statement made to the Police. It is wrong to suggest that I am deposing falsely."
Despite grant of opportunity, PW7 - Prosecutrix was not crossexamined on behalf of the accused.
From the aforesaid narration of PW7 - prosecutrix, it is clearly indicated that PW7 - prosecutrix has specifically deposed that accused Ajay is in relation of her bua and she knows him for the last about 89 years. On 09/02/2011, she had gone with accused Ajay with her free will and consent and they came back after about two months. Accused Ajay has not committed any forcible act with her. Inspite of incisive crossexamination of PW7 - prosecutrix, by the Learned Addl. PP for the State, nothing material has been brought out on the record. In the witness box she has adhered to the fact that on 09/02/2011, she had gone with accused Ajay with her free will and consent and they came 42 of 48 43 FIR No. 124/11 PS - Mangol Puri back after about two months. Accused Ajay has not committed any forcible act with her.
At the cost of repetition, PW7 - prosecutrix during her crossexamination by the Learned Addl. PP for the State has specifically deposed that : "It is correct that on 09/02/2011 the engagement and ring ceremony of Akshay my bua's son was fixed at his house at Sector 7, Rohini, and we had a programme to go there. It is correct that my husband Amit is a photographer. It is correct that my husband Amit had asked me to go to the house of my bua for the said ceremony and he will reach there directly."
"On 09/02/2011 I had left for going to the engagement ceremony at about 10:00/11:00 a.m. Vol. I left the home for going to attend the engagement ceremony but in fact had gone to meet Ajay. I left the home after being dressed up for occasion (Me ghar se tayar ho kar nikli). I was not wearing the ornaments."
"It is correct that Ajay met me at Balmiki Chowk, Mangol Puri."
"It is correct that Ajay took me to Kashmir, Dehradun, Punjab, Bangalore, Varanasi etc. It is correct that at the places wherever Ajay took me he established physical relations with me."
43 of 48 44 FIR No. 124/11 PS - Mangol Puri As discussed hereinabove PW7 - prosecutrix was found to be aged around 21 years as on the date of incident on 09/02/2011, from the testimony of PW7 - prosecutrix nothing is being indicated that on 09/02/2011, at about 11:30 a.m., she was kidnapped from Balmiki Chowk, Mangol Puri, Delhi by accused Ajay or that accused Ajay from 09/02/2011 to 31/03/2011 at different places i.e. Kashmir, Dehradun, Punjab, Banglore, Varanashi etc. in India had established physical relations with her without her consent or that he also threatened her not to disclose the said facts to anyone.
17. It is well settled that 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.
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 44 of 48 45 FIR No. 124/11 PS - Mangol Puri 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."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
45 of 48 46 FIR No. 124/11 PS - Mangol Puri On analysing the testimony of PW7 - Prosecutrix in the light of medical and gynaecological examination vide MLC Ex. PW2/A and from portion encircled 'X' to 'X' on the MLC Ex. PW2/A of PW7 - prosecutrix, biological and serological evidence together with the MLC of accused Ajay Ex. PW2/B, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis of semen or by partial penetration of the penis, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands established on the record, of the performance of the act of sexual intercourse by accused Ajay with PW7 - Prosecutrix with her consent.
18. On careful perusal and analysis of the entire evidence on record, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Ajay. The hostility of PW7 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that on 09/02/2011, at about 11:30 a.m., she was kidnapped from Balmiki Chowk, Mangol Puri, Delhi 46 of 48 47 FIR No. 124/11 PS - Mangol Puri by accused Ajay or that accused Ajay from 09/02/2011 to 31/03/2011 at different places i.e. Kashmir, Dehradun, Punjab, Banglore, Varanashi etc. in India had established physical relations with her without her consent or that he also threatened her not to disclose the said facts to anyone.
I, accordingly, acquit accused Ajay for the offences punishable u/s 376/506 IPC.
19. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Ajay in the commission of the offences 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 the accused Ajay beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Ajay. I, therefore acquit accused Ajay for the offences punishable u/s 376/506 IPC after giving him the benefit of doubt. Accused Ajay is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Ajay 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 47 of 48 48 FIR No. 124/11 PS - Mangol Puri this judgment.
Announced in the open Court (MAHESH CHANDER GUPTA) on 30th Day of August, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 48 of 48