Delhi District Court
State vs . 1. Munni Sharma on 30 September, 2015
1
FIR No. 147/11
PS - K.N. Katju Marg
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 219/13
Unique ID No. : 02404R0241532012
State Vs. 1. Munni Sharma
W/o Sh. Chander Pal Sharma
R/o H.No. H3/337, Sector16
Rohini, Delhi
2. Harish Sharma
S/o Sh. Chander Pal Sharma
R/o H.No. H3/337, Sector16
Rohini, Delhi
3. Chhotu
S/o Sh. Ram Deen
R/o H.No. H3/43, Sector16,
Rohini, Delhi.
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FIR No. 147/11
PS - K.N. Katju Marg
FIR No. : 147/2011
Police Station : K.N. Katju Marg
Under Sections : 376/366/506/342/109/120B IPC &
3/4/5/6 ITP Act 1956
Date of committal to session Court : 18.03.2013
Date on which judgment reserved : 24.09.2015
Date on which judgment announced : 30.09.2015
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 06.04.2011, complainant/prosecutrix (name withheld being a case u/s 376 IPC) D/o Mohd. Mautlik @ Raju, R/o Jhuggi Bangalan Basti, Gowhati, Assam came to PS KN Katju Marg and made the statement to Inspector Sanjeev Kumar in the presence of W/ASI Raj Bala and Ms. Nazma Khan, NGO, Navshristi, which is to the effect that, she is the permanent resident of the above address. Till for the last about three months, she had been working as a maid servant in the 2 of 50 3 FIR No. 147/11 PS - K.N. Katju Marg house of Munni Sharma, R/o H. NO. H3/377, Sec16, Rohini. On 19.01.2011. She (prosecutrix) had gone to her parental house in Assam and came back to Delhi on 11.02.2011 and had got down (utri thee) at Rithala station from metro, where Munni Sharma met her, who took her to her house at H. NO. H3/377, Sec16, Rohini, where in the night itself of 11.02.2011, Harish son of Munni Sharma by intimidating her and by inducing her had done sex with her on the false pretext of marriage. Munni Sharma, her nephew (Batija) Naresh and son Harish had started doing the work of prostitution. Naresh used to take her to his house in sec17, where he had also kept some other girls, where the said persons forcibly used to get done sex with her (jaha yeh loog jabardasti marae saath sex karwatae thae). Chottu, s/o Ramdeen used to work as a pimp (dalal) and used to assist them and used to bring customers for the purpose of prostitution. These persons by threatening her used to get done the prostitution work and whatever money was got from prostitution, these persons used to keep the same with them and used to spend on themselves. Harish on the false pretext of marriage with her used to make physical relations with her. These persons after threatening and intimidating her used to get done prostitution work from her and 3 of 50 4 FIR No. 147/11 PS - K.N. Katju Marg were not allowing her to go out of the house. On finding an opportunity now, she has somehow come out. Legal action be taken against the said persons. She has heard and understood her statement and is correct. On the basis of the statement and from the circumstances, finding that offences u/s 366/376/342/109/120B IPC & 3,4,5, 6 ITP Act appeared to have been committed, the case was got registered and the investigation of the case was proceeded with and W/ASI Raj Bala was deputed as Assisting IO. On finding sufficient evidence against accused Munni Sharma, Harish Sharma they were arrested in the case. Statements of the witnesses u/s161 Cr.P.C. were recorded. Medical examination of the prosecutrix was got conducted from BSA Hospital vide MLC NO. 57/11 dated 06.04.2011 and sealed exhibits haned over by the doctor after his medical examination were taken into police possession. Medical examination of accused Harish Sharma was got conducted vide MLC NO. 2563/11 and sealed exhibits haned over by the doctor after his medical examination were taken into police possession. On 10.04.2011, abortion of the prosecutrix was conducted by the doctor in BSA hospital and the abortus (foetus) was got reserved and was taken into police possession. On 11.04.2011, the sealed exhibits were sent to the FSL.
4 of 50 5 FIR No. 147/11 PS - K.N. Katju Marg Statement of the prosecutrix u/s. 164 Cr.P.C. was got recorded. On 27.06.2011, W/ASI Sajni Devi was deputed as Assisting IO. Naresh @ Ram Naresh was apprehended on 12.05.2011 who on interrogation told himself to be a juvenile and produced his school certificate, according to which his date of birth was found as 01.01.1995. Medical examination of Naresh @ Ram Naveen was got conducted vide MLC NO. B2053/12 from BSA Hospital and the samples handed over by the doctor after his medical examination were taken into police possession. JCL Naresh @ Ram Naresh was produced before JJB and was sent to OHB and his sealed exhibits were sent to FSL Rohini. On 23.05.2012, Inspector Sanjita was deputed as Assisting IO. Accused Chottu was granted anticipatory bail by the Learned Sessions Court who was formally arrested on 13.07.2012 and was released on bail. Section 506 IPC was added in the case.
Upon completion of the necessary further investigation challan for the offences U/s 366/376/342/109/120B IPC & 3,4,5, 6 ITP Act was prepared against accused Munni Sharma, Harish Sharma and Chottu and was sent to the court for trial.
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2. Since the offences under section 366/376 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case U/s 376 (2)(g) IPC against accused Harish and Chhotu, a case U/s 376 r/w Section 109 IPC against accused Munni Sharma, a case U/s 3/4/5/6 I.T.P. Act & Section 342/34 IPC against accused Munni Sharma, Harish and Chhotu, a case U/s 506/34 IPC against accused Munni Sharma, Harish and Chhotu & a case U/s 120B IPC against accused Munni Sharma, Harish and Chhotu was made out. Charge was framed accordingly, which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 16 witnesses. PW1 - Dr. Neeraj Singh, CMO, Dr. BSA Hospital, Rohini, Delhi, PW2 - HC Shiv Ram, PW3 - Dr. Megha Malik Aneja, Senior Resident, Obs. & Gynae, Dr. BSA Hospital, Rohini, Delhi, 6 of 50 7 FIR No. 147/11 PS - K.N. Katju Marg PW4 - Ct. Virender Singh, PW5 - Dr. Shilpa Sakure, SR, BSA Hospital, Delhi, PW6 - Dr. Vijay Dhankar, HOD, Forensic Medicine, BSA Hospital, Rohini, Delhi, PW7 - Dr. Subhendu, SR Surgery, BSA Hospital, Rohini, Delhi, PW8 - A.K. Shrivastava, Deputy Director, DNA Unit, FSL Rohini, Delhi, PW9 - HC Ram Babu, PW10 - Inspector Sanjeev Kumar, PW11 - Inspector Sanjeeta, PW12 - W/Ct. Preeti, PW13
- Sh. Ajay Singh Shekhawat, ASCJ Saket Courts, New Delhi, PW14 - Ravi Shekhar, Head Clerk Home Department, GNCT of Delhi, Delhi Secretariat, New Delhi, PW15 - Ct. Sanjay Kumar, PW16 - W/ASI Raj Bala.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Dr. Neeraj Singh, CMO, Dr. BSA Hospital, Rohini, Delhi, who deposed that on 07.04.2011, one patient Harish Sharma s/o Chandan Pal Sharma, aged 27 years, male, was brought to their hospital for medical examination. He was examined by Dr. Shahdab, Jr. Resident under his supervision and on examination, no external injury seen. At 7 of 50 8 FIR No. 147/11 PS - K.N. Katju Marg present, Dr. Shahdab is not working in their hospital and his present whereabouts are not known. He is acquainted with his handwriting and signatures as he had seen him while writing and signing during the course of his duties. The MLC is Ex. PW1/A bearing signatures of Dr. Shahdab at point A and his signatures at point B. PW - 2 HC Shiv Ram is the Duty Officer, who deposed that on 06.4.2011, he was posted as Duty Officer in PS K.N.K. Marg and was on duty from 9.00 am to 5.00 pm. On that day, at about 3.00 pm, Inspector Sanjeev handed over him a Tehrir himself and on the basis of which and on his instructions, the present FIR No.147/11 was registered U/S 366/376/342/109/120B IPC & 3/4/5/6 I.T.P. Act and after registration of FIR, he handed over the copy of FIR and original rukka to Ct. Virender for handing over the same to ASI Raj Bala for further investigation. He has brought the original FIR register. Copy of the same is Ex. PW2/A, bearing his signature at point A. He made endorsement on the rukka and the same is Ex. PW2/B, bearing his signature at point A. 8 of 50 9 FIR No. 147/11 PS - K.N. Katju Marg PW3 - Dr. Megha Malik Aneja, Senior Resident, Obs. & Gynae, Dr. BSA Hospital, Rohini, Delhi, who deposed that she has been deputed in this case by the MS of the Hospital to deposed before the Court on behalf of Dr. Shweta Aggarwal. She has seen MLC No. 57/11 of Prosecutrix (name withheld), D/o Mohd. Motallic @ Raju, Age - 24 years female who was brought to Hospital for examination with the alleged H/o sexual assault (Multiple times) also H/o abduction by female named Munni Sharma around 1½ months back from Rithala Metro Station, as told by patient herself. The patient was examined by Dr. Shweta Aggarwal. As per MLC, there is H/o coitus 34 times per day for the last 1½ months with different partners. Last coitus on 04/04/2011. Patient has taken bath and changed her clothes after that. On local examination hymen torn (no evidence of recent trauma). No evidence of any external injury visible (fresh) over genital area and other parts. No scratch marks over genital area or other body parts. No discharge or bleeding per vaginum. Anal opening intact. Per vaginal examination - uterus was 14 weeks size, os closed, no bleeding. The samples were taken sealed and handed over to the concerned Police official. At present Dr. Shweta Aggarwal is not working in their Hospital 9 of 50 10 FIR No. 147/11 PS - K.N. Katju Marg and her present whereabouts are not known as per record. She is acquainted with the handwriting and signatures of Dr. Shweta Aggarwal as she has seen her while writing and signing during the course of her duties. The MLC prepared by Dr. Shweta Aggarwal is Ex. PW3/A bearing her signature at points 'A'.
PW4 - Constable Virender Singh, who deposed that on 06.04.11 he was posted as Constable at PS KNK Marg. On that day, he alongwith IO WASI Rajbala remained in the investigation of the present case. Accused Harish Sharma present in the court was apprehended, interrogated and arrested vide arrest memo Ex. PW4/A and his personal search was conducted vide memo Ex. PW4/B both bearing his signature at point A. Accused Munni Sharma present in the court was also apprehended, interrogated and arrested vide arrest memo Ex. PW4/C and her personal search was conducted vide memo Ex. PW4/D both bearing his signature at point A. Accused Harish was taken to BSA Hospital where he was medically examined. After medical examination, doctor handed over sealed pullanda containing exhibits and the same were seized by IO vide memo Ex. PW4/E bearing his signature at point 10 of 50 11 FIR No. 147/11 PS - K.N. Katju Marg A. PW5 - Dr. Shilpa Sakure, SR, BSA Hospital, Delhi, who deposed that she has been deputed in this case by MS of the hospital to depose before the Court. She has seen MLC No. 2566/11 of Munni Sharma W/o. Chander Pal Sharma, Age50 years female who was brought to the hospital on 07.04.11 for medical examination. Patient was examined by Dr. Stuti Aggarwal. As per MLC on examination no fresh external injury seen. At present Dr. Stuti is not working in their hospital and her present whereabouts were not known. She is acquainted with handwriting and signatures of Dr. Stuti as she has seen her while writing and signing during the course of her duties. The MLC of Munni Sharma is Ex. PW5/A bearing signature of Dr. Stuti at point A. PW6 - Dr. Vijay Dhankar, HOD, Forensic Medicine, BSA Hospital, Rohini, Delhi, who deposed that he has been deputed in this case by the M.S. of the hospital to depose before the Court on behalf of Dr. J. V. Kiran who had since left the hospital. He has seen MLC No. 1/11 of Harish Sharma S/o Chandan Pal Sharma, age 27 years, male, 11 of 50 12 FIR No. 147/11 PS - K.N. Katju Marg who was brought in the hospital on 07.04.2011 for medical examination with the alleged H/o forcibly holding a girl at his home and by the complaint of the girl, Harish was brought for medical examination. On charges of sexual assault, the accused Harish was initially taken to casualty of the hospital from where he was referred to Forensic Medicine. The patient was examined by Dr. J. V. Kiran. As per MLC, after examination, Dr. J. V. Kiran opined that there is nothing to suggest that the patient is unable to perform sexual intercourse. Samples were taken, sealed and handed over to the concerned police official. He is acquainted with the handwriting and signature of Dr. J. V. Kiran, as he has seen him while signing and writing during the course of his duties. MLC prepared by Dr. J. V. Kiran is Ex. PW6/A bearing his signature at point A. PW7 - Dr. Subhendu, SR Surgery, BSA Hospital, Rohini, Delhi, who deposed that he has been deputed in this case by the M.S. of the hospital to depose before the Court on behalf of Dr. Vipin who had since left the hospital. He has seen MLC No. 2563/11 of Harish Sharma S/o Chandan Pal Sharma, age 27 years, male, who was brought in the 12 of 50 13 FIR No. 147/11 PS - K.N. Katju Marg hospital on 07.04.2011 for medical examination with the alleged H/o committing sexual assault. The patient was initially examined by CMO on duty and thereafter he was referred to SR, Surgery whereupon, the patient was examined by Dr. Vipin. As per MLC, after examination, Dr. Vipin opined that there is nothing to suggest that the patient is unable to perform sexual intercourse. Samples were taken, sealed and handed over to the concerned police official. He is acquainted with the handwriting and signature of Dr. Vipin, as he has seen him while signing and writing during the course of his duties. The examination conducted by Dr. Vipin is at portion X to X of the MLC and the same is Ex. PW7/A bearing his signature at point A. PW8 - A.K. Shrivastava, Deputy Director, DNA Unit, FSL Rohini, Delhi, who deposed that on 11.04.2011, three sealed forensic parcels were received in the office of Director, FSL, Rohini, Delhi for DNA analysis seals were intact and telly with the specimen seals. He has examined all the parcels containing exhibits except 1g, 1h, 2d, 2e, 2f and submitted his reports on 13.06.2013. Report is now Ex. PW8/A bearing his signatures at point A. On conclusion, it was found that "DNA 13 of 50 14 FIR No. 147/11 PS - K.N. Katju Marg profiling STR analysis performed on the exhibits 1c, 1d, 1e, 1f, 1i, 2a, 2b, 2h & 3 provided is sufficient to conclude that DNA profile from the source of exhibits 2a (blood sample of Harish), 2b(blood sample of accused Harish), 2h (blood on gauze of accused Harish) is not similar with the DNA profile from the source of exhibits 1c (cervical smear), 1d (vaginal smear), 1e(cervical swab), 1f (vaginal swab), 1i (underwear) and Ex. 3 (abortus). Genotype chart of exhibits 1c, 1d, 1e, 1f, 1i, 2a, 2b, 2h & 3 was also annexed with as a part of his detailed report Ex. PW8/A. Genotype chart of exhibits is now Ex. PW8/B bearing his signature at point A. After the examination, remnants of the exhibits 1, 2 & 3 having sealed with the seal of AKS, FSL, Delhi and was submitted for being given to concerned authorities. On 06.06.2012, one sealed parcel duly sealed condition was received in the FSL and was examined by him. Seal were tally with the specimen seals. He had examined the exhibit and was given parcel no. 4 in the laboratory in continuation to his previous report. He has given his detailed report dated 24.01.2014 alongwith genotype chart of the exhibit. As per report, it was concluded that DNA profile was not matched with the DNA profile from the source of exhibit 3 (abortus) (vide FSL No. 2011/1791). His detailed report dated 24.01.2014 14 of 50 15 FIR No. 147/11 PS - K.N. Katju Marg is now Ex. PW8/C bearing his signature at point A and Genotype chart is now Ex. PW8/D bearing his signature at point A. PW9 - HC Ram Babu is the Duty Officer, who deposed that on 22.06.2010, he was posted as Duty Officer in PS K.N. Katju Marg and was on duty from 4.00 PM to 12.00 Midnight. On that day, at about 11.10 PM HC Ramesh handed over him a Tehrir sent by SI Jitender Joshi and on the basis of which and on his instructions, the present FIR No. 164/2010 was registered u/s. 3/4/5/6 ITP Act and after registration of FIR, he handed over the copy of FIR and original rukka to HC Ramesh for handing over the same to SI Jitender Joshi (for) further investigation. He has brought the original FIR register (OSR). Copy of the same is Ex. PW9/A bearing his signature at Point A. PW10 - Inspector Sanjeev Kumar is the initial Investigating Officer (I.O) of the case, who deposed that on 06.04.2011 he was posted as SHO PS K.N. Katju Marg. On that day at about 2.00 PM prosecutrix (name withheld) came to PS. She made the statement, which was recorded by him in the presence of ASI Raj Bala. In the statement 15 of 50 16 FIR No. 147/11 PS - K.N. Katju Marg prosecutrix (name withheld) leveled allegations of committal of rape upon her by Munni Sharma, Harish, Naresh and Chottu and also forcing her for prostitution. He obtained her thumb impression at PointA on the statement of prosecutrix (name withheld) which is Ex. PW10/A and made endorsement thereupon Ex. PW10/B bearing his signatures at PointB and at PointC. He handed over the rukka to Duty Officer for registration of FIR. Thereafter, he deputed ASI Raj Bala as assisting IO for further investigation of this case vide notification no. F.5(67)/88 Home(P)/Estt. Dated 14.12.1988. The copy of notification is Ex. PW10/C. ASI Raj Bala arrested two accused persons Harish and Munni Sharma and then further investigation was assigned to W/SI Sajani Devi and then the investigation was assigned to Insp. Sanjita. The other two accused persons were arrested by second IO and third IO. After commission of the investigation he prepared the chargesheet being Special Police Officer under ITP Act. He filed the chargesheet before the Court.
PW11 - Inspector Sanjeeta is the third Investigating Officer 16 of 50 17 FIR No. 147/11 PS - K.N. Katju Marg (IO) of this case, who deposed that on 23/05/2012, she was posted as Inspector CAW Cell, Outer District. On that day, the further investigation of the present case was marked to her by the order of DCP, Outer District. She perused the case file and found that three accused persons Munni Sharma, Harish and juvenile Naresh @ Ram Naresh has already been arrested by previous IO ASI Sajani. She got conducted the potency test of juvenile Naresh @ Ram Naresh and sent the exhibits of juvenile Naresh @ Ram Naresh to FSL on 06.06.2012. On 13.07.2012 accused Chottu surrendered himself in PS K.N.Katju Marg and had shown the order of anticipatory bail. She formally arrested him in the present case vide arrest memo Ex. PW11/A bearing her signature at PointA. After completing the investigation she handed over the case file to Insp. Sanjeev, SHO PS K.N.Katju Marg. She identified accused Chottu present in the court.
PW12 - W/Ct. Preeti, who deposed that on 06.04.2011, she was posted as constable at PS Aman Vihar, Delhi. On that day, she was on night emergency duty and her working hours were from 8:00 p.m of 06.04.2011 to 8:00 a.m of 07.04.2011 at Pitampura Police Line, Delhi.
17 of 50 18 FIR No. 147/11 PS - K.N. Katju Marg On receipt of call from PS K.N. Katju Marg, she went to Dr. BSA Hospital, Delhi, where ASI Raj Bala met her with prosecutrix (name withheld). I.O ASI Raj Bala got conducted the medical examination of the prosecutrix (name withheld) and thereafter doctor handed over the sealed exhibits to her which she produced before the I.O. ASI Raj Bala. These exhibits were seized by the I.O.
PW - 13 Sh. Ajay Singh Shekhawat, ASCJ Saket Courts, New Delhi, who deposed that on 12.04.2011 he was posted as MM in Rohini Court. On that day an application for recording statement u/s 164 Cr.P.C of victim (name withheld) D/o Mohd. Motllik, Age 24 Years, R/o Bangalan Basti, Gauwahti, Assam, was marked to him. IO ASI Rajbala has produced victim (name withheld) and identified her and he recorded her statement in this regard. IO was asked to leave the chamber. He put certain preliminary questions to the victim and after satisfying himself that she is making the statement voluntarily he proceeded to record her statement. His proceedings in this regard is Ex.PW13/A bearing his signature at PointA. Statement of victim (name withheld) recorded by him is Ex.PW13/B bearing his signature at PointB and thumb 18 of 50 19 FIR No. 147/11 PS - K.N. Katju Marg impression of victim (name withheld) at PointA. After recording the statement he issued the certificate regarding its correctness and the same is Ex. PW13/C bearing his signature at PointA. Ahlmad was directed to give the copy of the same on the application moved by IO which is Ex. PW13/D bearing his signature at PointA. Ahlmad was directed to send the proceedings to the concerned MM in sealed cover.
PW14 - Sh. Ravi Shekhar, Head Clerk, Home Department, GNCT of Delhi, Delhi Secretariat, New Delhi, who deposed that he has brought the attested copy of the Notification No. F/5(67/88 Home(P)Estt.Deptt. Delhi dated 14.12.1988. Same is taken on record. The attested copy of the abovesaid Notification is Ex. PW14/A bearing the signature of Sh. Alok Garg, Deputy Secretary, Home1 Department at PointA. PW15 - Constable Sanjay Kumar, who deposed that on 11.04.2011 , he was posted as Constable in PS K.N. Katju Marg. On that day on the instructions of IO, he took three sealed pulindas sealed with the seal of 'SD BSA Hospital' along with FSL Form from the MHC(M) 19 of 50 20 FIR No. 147/11 PS - K.N. Katju Marg for depositing it in the FSL Rohini vide RC No. 47/21/11. Copy of which is on record and is Mark PW15/PX. Accordingly, he deposited the same in FSL Rohini and thereafter deposited the acknowledgment receipt with MHC(M). The sealed pulinda remained intact during his custody.
PW16 W/ASI Raj Bala is the Second Investigating Officer (I.O) of the case , who deposed that on 06.04.2011 he was posted in PS K.N. Katju Marg as ASI. On that day prosecutrix (name withheld) D/o Mohd. Motalik came to PS and her statement was recorded by Insp. Sanjay Gautam, SHO/Special Police Officer in her presence which is already Ex. PW10/A. She was appointed as Assisting IO to Special Police Officer. The prosecutrix was got counseled from Nazma Khan, NGO. On the identification of the prosecutrix accused Munni Sharma and Harish Sharma were arrested vide arrest memos already Ex. PW4/C and Ex. PW4/A respectively and their personal searches were conducted vide memos already Ex. PW4/D & Ex. PW4/B bearing her signature at PointX. They were got medically examined from the hospital and the sealed exhibits with the sample seal handed over by the doctor after the medical examination of Harish Sharma were taken into police 20 of 50 21 FIR No. 147/11 PS - K.N. Katju Marg possession already Ex. PW4/E bearing her signature at PointB and same were deposited in the malkhana. Both the said accused were produced in the court on 07.04.2011. Prosecutrix (name withheld) was taken to the hospital for her medical examination and as she was pregnant she was got admitted in the hospital. On 10.04.2011 the abortion of the prosecutrix had taken place. She moved an application addressed to HOD Mortuary BSA hospital for the preservation of the foetus of the prosecutrix which is Ex. A1 bearing her signature at Point A. The exhibit of the foetus of the prosecutrix which was in a plastic jar sealed with the seal of 'SD' and other exhibits, handed over by the doctor alongwith the sample seal was taken into police possession vide seizure memo Ex. PW16/A & Ex. PW16/B bearing her signature at PointA. The said sample alongwith the sample seal were deposited in the malkhana and was sent to FSL through Ct. Sanjay. The prosecutrix was discharged from the hospital on 12.04.2011 and was produced in the court and was sent to Nari Niketan. Thereafter, on 12.04.2011 she moved the application in the court for recording the statement (of the prosecutrix) u/s 164 Cr.P.C. The same is Ex. PW16/C bearing her signature at PointA. She obtained the copy of the statement u/s 164 21 of 50 22 FIR No. 147/11 PS - K.N. Katju Marg Cr.P.C already Ex. PW13/B vide her application already Ex. PW13/D bearing her signature at PointB. After the recording the statement of the prosecutrix she was released from Nari Niketan by the order of the court. Site plan Ex. PW16/D was also prepared at the instance of the prosecutrix. On 07.04.2011 the opinion regarding the MLC of accused Harish Sharma was obtained on his MLC from the Forensic Deptt. of the BSA hospital and thereafter, accused Harish Sharma was produced in the court and was sent to JC. The sealed samples with the sample seals were got sent to the FSL from the malkhana. On her transfer the further investigation was handed over to W/SI Sajani. Both the accused Munni Sharma and Harish present in the court (correctly identified).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is also to be mentioned that on 27.05.2014 statement of Inspector Sanjeev Kumar was recorded in the court on oath to the effect that whereabouts of the prosecutrix could not be traced out and the summons remained unserved upon her and he proved the 22 of 50 23 FIR No. 147/11 PS - K.N. Katju Marg reports in this regard Ex. C1, Ex. C2 and Ex. C3.
7. Statements of accused Munni Sharma, Harish and Chhotu were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused did not opt to lead any defence evidence.
8. Learned Counsel for the accused submitted that prosecutrix has not been produced by the prosecution in the absence of which the prosecution has failed to prove its case beyond reasonable doubts and prayed for the acquittal of the accused on all the charges levelled against them.
9. 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 prosecution has proved its case beyond reasonable doubt.
10. I have heard Shri Ashok Kumar, Learned Addl. PP for the State and Sh. R.K. Verma, Learned Counsel for the accused and have 23 of 50 24 FIR No. 147/11 PS - K.N. Katju Marg also carefully perused the entire record.
11. The charge for the offences punishable U/s 376 (2)(g) IPC, U/s 376 r/w Section 109 IPC, U/s 3/4/5/6 I.T.P. Act & Section 342/34 IPC, U/s 506/34 IPC & U/s 120B IPC against the accused Munni Sharma, Harish and Chhotu is that on 11.02.2011 in the night at H3/377, Sector16, Rohini, Delhi, within the jurisdiction of PS - K.N.Katju Marg, accused Harish alongwith his coaccused Naresh (Juvenile) in furtherance of their common intention committed rape upon the prosecutrix (name withheld) without her consent and against her will, after threatening her and thereafter accused Harish also committed rape upon her after inducing her and on the pretext of marrying with her and that on the above mentioned, date, time and place, accused Munni abeted (abetted) the commission of rape by her coaccused Harish and Naresh (Juvenile) by facilitating them to commit rape upon prosecutrix (name withheld), aged around 24 years and that on or after 11.02.2011 all accused in furtherance of their common intention were running a brothel house at H3/337, Sector16, Rohini and procured and induced prosecutrix (name withheld) for the purpose of prostitution and detained 24 of 50 25 FIR No. 147/11 PS - K.N. Katju Marg her till 06.04.2011 in the premises where prostitution is carried on and they all were living on the earning of prostitution of prosecutrix (name withheld) and that on the above mentioned date, time and place they all in furtherance of their common intention, criminally intimidated prosecutrix (name withheld) by threatening her and that on or before 11.02.2011 all accused hatched a criminal conspiracy to commit rape upon prosecutrix (name withheld) and to induce her for prostitution.
12. 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
13. PW3 - Dr. Megha Malik Aneja, Senior Resident, Obs. & Gynae, Dr. BSA Hospital, Rohini, Delhi, has proved the medical/ gynecological examination of the prosecutrix conducted on 06.04.2011 vide MLC Ex. PW3/A. 25 of 50 26 FIR No. 147/11 PS - K.N. Katju Marg Perusal of the MLC Ex. PW3/A of the prosecutrix indicates that her age has been shown as 24 years. Moreover the said factum of age of prosecutrix has also not been disputed by the accused. Nor any evidence to the contrary has been produced or proved on record on behalf of the accused.
As the date of alleged incident is 11.02.2011 and the date of the medical/gynaecological examination of the prosecutrix is 06.04.2011, which indicates her age as 24 years, on simple arithmetical calculation, the age of the prosecutrix comes to 23 years, 10 months and 05 days as on the date of alleged incident on 11/02/2011.
In the circumstances, it stands proved on record that prosecutrix was aged 23 years, 10 months and 05 days as on the date of alleged incident on 11.02.2011.
MEDICAL EVIDENCE OF THE PROSECUTRIX 26 of 50 27 FIR No. 147/11 PS - K.N. Katju Marg
14. PW3 - Dr. Megha Malik Aneja, Senior Resident, Obs. & Gynae, Dr. BSA Hospital, Rohini, Delhi, has deposed that she has been deputed in this case by the MS of the Hospital to deposed before the Court on behalf of Dr. Shweta Aggarwal. She has seen MLC No. 57/11 of Haseena @ Seema, D/o Mohd. Motallic @ Raju, Age - 24 years female who was brought to Hospital for examination with the alleged H/o sexual assault (Multiple times) also H/o abduction by female named Munni Sharma around 1½ months back from Rithala Metro Station, as told by patient herself. The patient was examined by Dr. Shweta Aggarwal. As per MLC, there is H/o coitus 34 times per day for the last 1½ months with different partners. Last coitus on 04/04/2011. Patient has taken bath and changed her clothes after that. On local examination hymen torn (no evidence of recent trauma). No evidence of any external injury visible (fresh) over genital area and other parts. No scratch marks over genital area or other body parts. No discharge or bleeding per vaginum. Anal opening intact. Per vaginal examination - uterus was 14 weeks size, os closed, no bleeding. The samples were taken sealed and handed over to the concerned Police official. At present Dr. Shweta Aggarwal is not working in their Hospital and her present 27 of 50 28 FIR No. 147/11 PS - K.N. Katju Marg whereabouts are not known as per record. She is acquainted with the handwriting and signatures of Dr. Shweta Aggarwal as she has seen her while writing and signing during the course of her duties. The MLC prepared by Dr. Shweta Aggarwal is Ex. PW3/A bearing her signature at points 'A'.
There is nothing in the crossexamination of PW3 - Dr. Megha Malik Aneja so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical/ gynaecological examination vide MLC Ex. PW3/A of the Prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW1 - Dr. Neeraj Singh, CMO, Dr. BSA Hospital, Rohini, Delhi, has deposed that on 07.04.2011, one patient Harish Sharma s/o Chandan Pal Sharma, aged 27 years, male, was brought to their hospital for medical examination. He was examined by Dr. Shahdab, Jr. Resident 28 of 50 29 FIR No. 147/11 PS - K.N. Katju Marg under his supervision and on examination, no external injury seen. At present, Dr. Shahdab is not working in their hospital and his present whereabouts are not known. He is acquainted with his handwriting and signatures as he had seen him while writing and signing during the course of his duties. The MLC is Ex. PW1/A bearing signatures of Dr. Shahdab at point A and his signatures at point B. PW6 - Dr. Vijay Dhankar, HOD, Forensic Medicine, BSA Hospital, Rohini, Delhi, has deposed that he has been deputed in this case by the M.S. of the hospital to depose before the Hon`ble Court on behalf of Dr. J. V. Kiran who had since left the hospital. He has seen MLC No. 1/11 of Harish Sharma S/o Chandan Pal Sharma, age 27 years, male, who was brought in the hospital on 07.04.2011 for medical examination with the alleged H/o forcibly holding a girl at his home and by the complaint of the girl, Harish was brought for medical examination. On charges of sexual assault, the accused Harish was initially taken to casualty of the hospital from where he was referred to Forensic Medicine. The patient was examined by Dr. J. V. Kiran. As per MLC, after examination, Dr. J. V. Kiran opined that there is nothing 29 of 50 30 FIR No. 147/11 PS - K.N. Katju Marg to suggest that the patient is unable to perform sexual intercourse. Samples were taken, sealed and handed over to the concerned police official. He is acquainted with the handwriting and signature of Dr. J. V. Kiran, as he has seen him while signing and writing during the course of his duties. MLC prepared by Dr. J. V. Kiran is Ex. PW6/A bearing his signature at point A. PW7 - Dr. Subhendu, SR Surgery, BSA Hospital, Rohini, Delhi, has deposed that he has been deputed in this case by the M.S. of the hospital to depose before the Hon`ble Court on behalf of Dr. Vipin who had since left the hospital. He has seen MLC No. 2563/11 of Harish Sharma S/o Chandan Pal Sharma, age 27 years, male, who was brought in the hospital on 07.04.2011 for medical examination with the alleged H/o committing sexual assault. The patient was initially examined by CMO on duty and thereafter he was referred to SR, Surgery whereupon, the patient was examined by Dr. Vipin. As per MLC, after examination, Dr. Vipin opined that there is nothing to suggest that the patient is unable to perform sexual intercourse. Samples were taken, sealed and handed over to the concerned police official. He is acquainted with the 30 of 50 31 FIR No. 147/11 PS - K.N. Katju Marg handwriting and signature of Dr. Vipin, as he has seen him while signing and writing during the course of his duties. The examination conducted by Dr. Vipin is at portion X to X of the MLC and the same is Ex. PW7/A bearing his signature at point A. Despite grant of opportunity, PW1 - Dr. Neeraj Singh, PW6 - Dr. Vijay Dhankar, and PW7 - Dr. Subhendu were not cross examined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Harish was capable of performing sexual intercourse.
MEDICAL EVIDENCE OF ACCUSED MUNNI SHARMA
16. PW5 - Dr. Shilpa Sakure, SR, BSA Hospital, Delhi, has deposed that she has been deputed in this case by MS of the hospital to depose before the Court. She has seen MLC No. 2566/11 of Munni Sharma W/o. Chander Pal Sharma, Age50 years female who was brought to the hospital on 07.04.11 for medical examination. Patient was 31 of 50 32 FIR No. 147/11 PS - K.N. Katju Marg examined by Dr. Stuti Aggarwal. As per MLC on examination no fresh external injury seen. At present Dr. Stuti is not working in their hospital and her present whereabouts were not known. She is acquainted with handwriting and signatures of Dr. Stuti as she has seen her while writing and signing during the course of her duties. The MLC of Munni Sharma is Ex. PW5/A bearing signature of Dr. Stuti at point A. Despite grant of opportunity PW5 - Dr. Shilpa Sakure, was not crossexamined on behalf of accused.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW5/A of accused Munni Sharma stands proved on the record.
DNA FINGERPRINTING EVIDENCE
17. PW8 A.K. Shrivastava, Deputy Director, DNA Unit, FSL Rohini, Delhi, has deposed that on 11.04.2011, three sealed forensic parcels were received in the office of Director, FSL, Rohini, Delhi for DNA analysis seals were intact and telly with the specimen seals. He has examined all the parcels containing exhibits except 1g, 1h, 2d, 2e, 2f and 32 of 50 33 FIR No. 147/11 PS - K.N. Katju Marg submitted his reports on 13.06.2013. Report is now Ex. PW8/A bearing his signatures at point A. On conclusion, it was found that " DNA profiling STR analysis performed on the exhibits 1c, 1d, 1e, 1f, 1i, 2a, 2b, 2h & 3 provided is sufficient to conclude that DNA profile from the source of exhibits 2a (blood sample of Harish), 2b(blood sample of accused Harish), 2h (blood on gauze of accused Harish) is not similar with the DNA profile from the source of exhibits 1c (cervical smear), 1d (vaginal smear), 1e(cervical swab), 1f (vaginal swab), 1i (underwear) and Ex. 3 (abortus). Genotype chart of exhibits 1c, 1d, 1e, 1f, 1i, 2a, 2b, 2h & 3 was also annexed with as a part of his detailed report Ex. PW8/A. Genotype chart of exhibits is now Ex. PW8/B bearing his signature at point A. After the examination, remnants of the exhibits 1, 2 & 3 having sealed with the seal of AKS, FSL, Delhi and was submitted for being given to concerned authorities. On 06.06.2012, one sealed parcel duly sealed condition was received in the FSL and was examined by him. Seal were tally with the specimen seals. He had examined the exhibit and was given parcel no. 4 in the laboratory in continuation to his previous report. He has given his detailed report dated 24.01.2014 alongwith genotype chart of the exhibit. As per report, it was concluded that DNA profile 33 of 50 34 FIR No. 147/11 PS - K.N. Katju Marg was not matched with the DNA profile from the source of exhibit 3 (abortus) (vide FSL No. 2011/1791). His detailed report dated 24.01.2014 is now Ex. PW8/C bearing his signature at point A and Genotype chart is now Ex. PW8/D bearing his signature at point A. Despite grant of opportunity PW8 - A.K. Srivastava Deputy Director DNA Unit FSL, was not crossexamined on behalf of the accused.
As per DNA report (No. 2011/DNA1791) Ex. PW8/A the description of articles contained in parcels, DNA examination, results of examination and conclusion reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One cloth parcel sealed with the seal of "SD" containing exhibits'1a','1b', '1c','1d','1e','1f','1g','1h' & '1i', said to be of 'victim (name withheld)'.
Exhibit '1a' : Dark brown liquid labelled as 'Blood sample in EDTA' kept in a test tube.
Exhibit '1b' : Dark brown liquid labelled as 'Blood sample Plain' kept in a test.
34 of 50 35 FIR No. 147/11 PS - K.N. Katju Marg Exhibit '1c' : One microslide labelled as 'Cervical smear' Exhibit '1d' : One microslide labelled as 'Vaginal smear' Exhibit '1e' : One cotton wool swab labelled as 'Cervical swab' kept in a plastic tube.
Exhibit '1f' : One cotton wool swab labelled as 'Vaginal swab' kept in a plastic tube.
Exhibit '1g' : One injection vial labelled as 'Public hair' is returned unexamined.
Exhibit '1h' : One injection vial labeelled as 'Nail Clipping' is returned unexamined.
Exhibit '1i' : One paper envelope labelled as 'Undergarment of Prosecutrix (name withheld).
Exhibit '1i' : One underwear. Parcel '2' : One cloth parcel sealed with the seal of
"SD" containing exhibits '2a', '2b', '2c', '2d','2e','2f','2g','2h' & '2i', said to be of accused Harish' Exhibit '2a' : Dark brown liquid labelled as 'Blood sample EDTA' kept in a test tube.
Exhibit '2b' : Dark brown liquid labelled as 'Blood sample Plain' kept in a test tube.
Exhibit '2c' : One cloth parcel labelled as 'Slide of glance penis smear' is returned unexamined.
Exhibit '2d' : One test tube labelled as 'Plucked hair Pubic' is returned unexamined.
Exhibit '2e' : One test tube labelled as 'Cut hair - Pubic' is returned unexamined.
35 of 50 36 FIR No. 147/11 PS - K.N. Katju Marg Exhibit '2f' : One test tube labelled as 'Plucked hair - Scalp' is returned unexamined.
Exhibit '2g' : One test tube labelled as 'Cut hair Scalp' is returned unexamined.
Exhibit '2h' : One paper envelope labelled as 'blood sample spread on gauze piece' containing exhibit '2h' Exhibit '2h' : A piece of gauze cloth having brown stains. Exhibit '2i' : One paper envelope labelled as 'Undergarments of accused Harish' is returned unexamined.
Parcel '3' : One plastic jar sealed with the seal of "SD" containing exhibits '3'.
Exhibit '3' : Tissue material kept in a liquid medium described as 'Abortus' DNA EXAMINATION The exhibits '1c','1d','1e','1f','1i','2a','2b','2h', & '3' were subjected to DNA isolation. The DNA was isolated from the source of exhibits '1c','1d','1e','1f','1i','2a','2b','2h', & '3'. The DNA fingerprinting profile was generated for exhibits '1c','1d','1e','1f','1i','2a','2b','2h', & '3' by using AmpF1 STR Identifier PCR Plus Amplification Kit. STR analysis was used for each of the samples. Data was analyzed by using Genemapper IDX Software.
36 of 50 37 FIR No. 147/11 PS - K.N. Katju Marg RESULTS OF EXAMINATION Male DNA profile is generated from the source of exhibits '1c','1d','1e','1f' & '1i'. However the alleles from the source of exhibit '2a' (blood sample of accused Harish), '2b' (blood sample of accused Harish, '2h' (blood on gauze of accused Harish) are not accounted in the alleles from the source of exhibits '1c' (Cervical smear), '1d' (Vaginal smear), '1e' (cervical swab), '1f' (vaginal swab), '1i' (underwear) & exhibit '3' (Abortus).
CONCLUSION The DNA profiling STR analysis performed on the exhibits '1c','1d','1e','1f','1i','2a','2b','2h', & '3' provided is sufficient to conclude that the DNA profile from the source of exhibits '2a' (blood sample of accused Harish), '2b' (blood sample of accused Harish), '2h' (blood on gauze of accused Harish) is not similar with the DNA profile from the source of the exhibits '1c' (Cervical smear), '1d' (Vaginal smear), '1e' (cervical swab), '1f' (vaginal swab), '1i' (underwear) & exhibit '3' (Abortus).
Genotype analysis for establishing identity of accused using MICROSATELLITES Ex. PW8/B reads as under :
i) D8S1179 ii) D21S11 iii) D7S820 iv) CSF1P0 v) D3S1358 vi) TH01 vii) D13S317 viii) D16S539 ix) D2S1338 x) D19S433 xi) vWA xii) TP0X xiii) D18S51 xiv) D5S818 xv) FGA AND AMELOGENIN 37 of 50 38 FIR No. 147/11 PS - K.N. Katju Marg Loci Cervical & Cervical & Underwear Blood sample of Abortus vaginal smear vaginal smear accused Exhibit 1c & Swab 1d Exhibit 1e & 1f Exhibit 2a, 2b & Allele Data Allele Data Exhibit 1i 2h Exhibit 3 Allele Data Allele Data Allele Data D8S1179 13 14 13 14 13 14 10 16 13 13 D21S11 28 32.2 28 32.2 28 32.2 30 31 29.2 31 D7S820 6 11 6 11 6 11 8 10 7 8 CSF1P0 11 11 11 11 11 11 11 12 10 11 D3S1358 15 16 15 16 15 16 16 16 16 17 TH01 6 8 6 8 6 8 6 9.3 7 9 D13S317 11 12 11 12 11 12 11 13 12 13 D16S539 11 11 11 11 11 11 11 12 8 10 D2S1338 18 22 18 22 18 22 18 20 19 25 D19S433 12 14 12 14 12 14 13 14 14.2 14.2 vWA 17 17 17 17 17 17 15 17 16 18 TP0X 7 10 7 10 7 10 8 11 8 9 D18S51 17 19 17 19 17 19 12 13 12 17 D5S818 13 13 13 13 13 13 9 10 12 12 FGA 22 24 23 24 23 24 19 24 23 26 AMELOGENIN X Y X Y X Y X Y X X As per the DNA 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. PW16/A dated 06.04.2011, parcel No. 2 belongs to the accused Harish which was seized vide seizure memo Ex. PW4/E dated 07.04.2011 and parcel no. 3 belongs to the prosecutrix which 38 of 50 39 FIR No. 147/11 PS - K.N. Katju Marg was seized vide seizure memo Ex. PW16/B dated 10.04.2011.
On careful perusal and analysis of the DNA report Ex. PW8/A coupled with the Genotype data Ex. PW8/B, it clearly shows that Male DNA profile is generated from the source of exhibits '1c','1d','1e','1f' & '1i'. However the alleles from the source of exhibit '2a' (blood sample of accused Harish), '2b' (blood sample of accused Harish, '2h' (blood on gauze of accused Harish) are not accounted in the alleles from the source of exhibits '1c' (Cervical smear of prosecutrix), '1d' (Vaginal smear of prosecutrix), '1e' (cervical swab of prosecutrix), '1f' (vaginal swab of prosecutrix), '1i' (underwear of prosecutrix) & exhibit '3' (Abortus of prosecutrix). The DNA profiling STR analysis performed on the exhibit '1c' (Cervical smear of prosecutrix); exhibit '1d' ('Vaginal smear' of prosecutrix); exhibit '1e' ('Cervical swab' of prosecutrix); exhibit '1f' ('Vaginal swab' of prosecutrix); exhibit '1i' (underwear of prosecutrix); exhibit '2a' ('Blood sample EDTA' of prosecutrix); exhibit '2b' ( 'Blood sample of prosecutrix); exhibit '2h' ('blood sample spread on gauze piece') & on exhibit '3' (Abortus of the prosecutrix) is sufficient to conclude that the DNA profile from the 39 of 50 40 FIR No. 147/11 PS - K.N. Katju Marg source of exhibits '2a' (blood sample of accused Harish), '2b' (blood sample of accused Harish), '2h' (blood on gauze of accused Harish) is not similar with the DNA profile from the source of the exhibits '1c' (Cervical smear of prosecutrix), '1d' (Vaginal smear of prosecutrix), '1e' (cervical swab of prosecutrix), '1f' (vaginal swab of prosecutrix), '1i' (underwear of prosecutrix) & exhibit '3' (Abortus of prosecutrix).
As per DNA report (No. 2012/DNA4080) Ex. PW8/C the description of articles contained in parcels, DNA examination, results of examination and conclusion reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '4' : One cloth parcel sealed with the seal of "SD" containing exhibits '4a', '4b', '4c','4d','4e','4f','4g','4h' and '4i'. Exhibit '4a' : One Gauze Cloth piece having dark brown stains (wrapped in a paper).
Exhibit '4b' : One undergarment, returned unexamined. Exhibit '4c' : One tube labeled as blood sample plain, returned unexamined.
40 of 50 41 FIR No. 147/11 PS - K.N. Katju Marg Exhibit '4d' : One tube labeled as blood sample EDTA, returned unexamined.
Exhibit '4e' : Pubic hairs (Cut), returned unexamined. Exhibit '4f' : Scalp hair (Cut), returned unexamined. Exhibit '4g' : Scalp hair (plucked), returned unexamined. Exhibit '4h' : Pubic hairs (plucked), returned unexamined. Exhibit '4i' : Smegma, returned unexamined. DNA EXAMINATION The source of exhibits '4a' was subjected to DNA isolation. DNA was isolated from the source of exhibits '4a'. DNA Profile for the exhibits '4a' was prepared by using AmpFLSTR Identifiler plus PCR Amplification kit. STR analysis was used for the sample. Data was analyzed by using Gene Mapper IDX software. The alleles from the source of exhibit '4a' (blood gauze) were compared with exhibit '3' (Abortus) {vide FSL No. 2011/1791}.
RESULTS OF EXAMINATION
1. The alleles from the source of exhibit '4a' (blood gauze) are not accounted in the alleles from the source of exhibit 'exhibit '3' (Abortus) {vide FSL No. 2011/1791}.
CONCLUSION 41 of 50 42 FIR No. 147/11 PS - K.N. Katju Marg
1. The DNA profiling (STR analysis) performed on the exhibits '4a' and '3' are sufficient to conclude that the DNA profile from the source of exhibit '4a' (blood gauze), is not matching with DNA Profile from the source of exhibit '3' (Abortus) {vide FSL No. 2011/1791}.
Genotype analysis for establishing identity of accused using MICROSATELLITES Ex. PW8/D reads as under :
i) D8S1179 ii) D21S11 iii) D7S820 iv) CSF1P0 v) D3S1358 vi) TH01
vii) D13S317 viii) D16S539 ix) D2S1338 x) D19S433 xi) vWA xii) TP0X xiii) D18S51 xiv) D5S818 xv) FGA AND AMELOGENIN Loci Blood Gauze Abortu Exhibit 6 Exhibit 3 Allele Data FSL No. 1791/2011 Allele Data D8S1179 15 16 13 13 D21S11 30.2 32.2 29.2 31 D7S820 8 10 7 8 CSF1P0 12 12 10 11 D3S1358 16 17 16 17 42 of 50 43 FIR No. 147/11 PS - K.N. Katju Marg TH01 9 9 7 9 D13S317 11 13 12 13 D16S539 10 13 8 10 D2S1338 18 18 19 25 D19S433 14 15.2 14.2 14.2 vWA 16 18 16 18 TP0X 8 10 8 9 D18S51 14 15 12 17 D5S818 11 12 12 12 FGA 23 24 23 26 AMELOGENIN X Y X Y As per the DNA report Ex. PW8/C, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 4 belongs to Naresh @ Ram Naresh (Juvenile).
On careful perusal and analysis of the DNA report Ex. PW8/C coupled with the Genotype data Ex. PW8/D, it clearly shows that the alleles from the source of exhibit '4a' [blood gauze of Naresh @ 43 of 50 44 FIR No. 147/11 PS - K.N. Katju Marg Ram Naresh (Juvenile)] are not accounted in the alleles from the source of exhibit 'exhibit '3' (Abortus of prosecutrix) {vide FSL No. 2011/1791}, The DNA profiling (STR analysis) performed on the exhibits '4a' blood gauze [of accused Naresh @ Ram Naresh (Juvenile)] and '3' (Abortus of the prosecutrix) are sufficient to conclude that the DNA profile from the source of exhibit '4a' [blood gauze of Naresh @ Ram Naresh (Juvenile)], is not matching with DNA Profile from the source of exhibit '3' (Abortus of prosecurix) {vide FSL No. 2011/1791}.
18. Now let the testimonies of the prosecution witnesses be perused and analysed.
Undisputably, prosecutrix has not been produced and examined as a witness in the court due to her untracability.
PW10 - Inspector Sanjeev Kumar during his examinationinchief has interalia deposed which is reproduced and reads as under : 44 of 50 45 FIR No. 147/11 PS - K.N. Katju Marg "On 06.04.2011 I was posted as SHO PS K.N. Katju Marg. On that day at about 2.00 PM prosecutrix (name withheld) came to PS. She made the statement, which was recorded by me in the presence of ASI Raj Bala. In the statement prosecutrix (name withheld) leveled allegations of committal of rape upon her by Munni Sharma, Harish, Naresh and Chottu and also forcing her for prostitution. I obtained her thumb impression at PointA on the statement of prosecutrix (name withheld) which is Ex. PW10/A and made endorsement thereupon Ex. PW10/B bearing my signatures at PointB and at PointC. I handed over the rukka to Duty Officer for registration of FIR. "
From the aforesaid narration of PW10 - Inspector Sanjeev Kumar, it is clearly indicated that statement of prosecutrix Ex. PW10/A was recorded by him and he made endorsement thereupon Ex.PW10/B bearing his signatures at PointB and at PointC. PW16 - W/ASI Raj Bala, IO, during her examinationin chief has interalia deposed which is reproduced and reads as under: "Thereafter, on 12.04.2011 I moved the application in the court for recording the statement u/s 164 Cr.P.C. The same is Ex. PW16/C bearing my signature at PointA. I obtained the copy of the
45 of 50 46 FIR No. 147/11 PS - K.N. Katju Marg statement u/s 164 Cr.P.C already Ex. PW13/B vide my application already Ex. PW13/D bearing my signature at PointB."
From the aforesaid narration of PW16 - W/ASI Raja Bala, IO, it is clearly indicated that she got recorded the statement of the prosecutrix u/s 164 Cr.P.C Ex. PW13/B. PW13 - Sh. Ajay Singh Shekhawat, ASCJ Saket Court, New Delhi has deposed that he recorded the statement of the prosecutrix u/s 164 Cr.P.C Ex. PW13/B bearing his signature at PointB and thumb impression of victim/prosecutrix (name withheld) at PointA. Although, the statement of the prosecutrix recorded by PW10 - Inspector Sanjeev Kumar Ex. PW10/A and her statement recorded u/s 164 Cr.P.C. Ex. PW13/B are on the record but due to the nonproduction and nonexamination of the prosecutrix in the Court, her said statements Ex. PW10/A and Ex. PW13/B remained unproved and uncorroborated on the record. Nonproduction and nonexamination of the prosecutrix has proved to be fatal and has knocked out the bottom of the case of the prosecution.
46 of 50 47 FIR No. 147/11 PS - K.N. Katju Marg
19. On careful perusal and analysis of the evidence on record I find that the prosecution has failed to prove its case beyond reasonable doubt. Non production and nonexamination of prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that on 11.02.2011 in the night at H3/377, Sector16, Rohini, Delhi, accused Harish alongwith Naresh @ Ram Naresh (Juvenile) in furtherance of their common intention committed rape upon the prosecutrix (name withheld), aged around 24 years without her consent and against her will, after threatening her and thereafter accused Harish also committed rape upon her after inducing her, on the pretext of marrying with her or that on the above mentioned, date, time and place, accused Munni abetted the commission of rape by accused Harish and Naresh @ Ram Naresh (Juvenile) by facilitating them to commit rape upon the prosecutrix, or that on or after 11.02.2011 all the said accused in furtherance of their common intention were running a brothel house at H3/337, Sector16, Rohini and procured and induced prosecutrix for the purpose of prostitution and detained her till 06.04.2011 in the premises where prostitution was carried on and they all were living on the earning 47 of 50 48 FIR No. 147/11 PS - K.N. Katju Marg of prostitution of prosecutrix or that on the above mentioned date, time and place they all in furtherance of their common intention, criminally intimidated prosecutrix by threatening her or that on or before 11.02.2011 all the said accused hatched a criminal conspiracy to commit rape upon prosecutrix and to induce her for prostitution.
I accordingly, acquit accused Harish and Chhotu for the offence punishable u/s 376 (2)(g) IPC. Accused Munni Sharma is acquitted for the offence punishable u/s 376 r/w Section 109 IPC. Accused Munni Sharma, Harish and Chhotu are also acquitted for the offences punishable u/s 3/4/5/6 ITP Act and u/s 342/34 IPC. Accused Munni Sharma, Harish and Chhotu are also acquitted for the offence punishable u/s 506/34 IPC. Accused Munni Sharma, Harish and Chhotu are also acquitted for the offence punishable u/s 120B IPC.
20. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Harish and Chhotu in the commission of the offence u/s 376 (2)(g) IPC and that of accused Munni 48 of 50 49 FIR No. 147/11 PS - K.N. Katju Marg Sharma in the commission of the offence u/s 376 IPC r/w section 109 IPC and that of accused Munni Sharma, Harish and Chhotu also in the commission of the offences u/s 3/4/5/6 ITP Act and u/s 342/34 IPC and that of accused Munni Sharma, Harish and Chhotu also in the commission of the offence u/s 506/34 IPC and that of accused Munni Sharma, Harish and Chhotu also in the commission of the offence u/s 120B IPC, is concerned, the same has not been 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 Munni Sharma, Harish and Chhotu beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Munni Sharma, Harish and Chhotu. I, therefore acquit accused Harish and Chhotu for the offence punishable u/s 376 (2)(g) IPC. Accused Munni Sharma is acquitted for the offence punishable u/s 376 IPC r/w Section 109 IPC. Accused Munni Sharma, Harish and Chhotu are also acquitted for the offences punishable u/s 3/4/5/6 ITP Act and u/s 342/34 IPC. Accused Munni Sharma, Harish and Chhotu are also acquitted for the offence punishable u/s 506/34 IPC. Accused Munni Sharma, Harish and Chhotu are also acquitted for the offence punishable 49 of 50 50 FIR No. 147/11 PS - K.N. Katju Marg u/s 120B IPC after giving them the benefit of doubt. Accused Munni Sharma, Harish and Chhotu are on bail. However, u/s 437A Cr.P.C. The bail bonds of the said accused shall remain in force for six months and they to appear before the Hon'ble Higher Court as and when such Court issues notice in respect of any petition filed against this judgment. Announced in the open Court (MAHESH CHANDER GUPTA) on 30th Day of October, 2015 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 50 of 50