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Delhi District Court

State vs . Mool Chand on 7 February, 2013

   IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
    JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI

Sessions Case No. 50/2012
Unique Case ID: 02404R0166372012

State                      Vs.           Mool Chand
                                         S/o Om Parkash
                                         R/o House No. 32, 
                                         Mukundpur Village, Delhi.
                                         (Acquitted) 

FIR No.                    :             34/2011
Police Station             :             Bhalaswa Dairy 
Under Section              :             376 (2) (g)/377/34 IPC

Date of committal to Sessions Court  : 7.7.2012
Date on which orders were reserved  : 21.1.2013
Date on which judgment pronounced : 7.2.2013

JUDGMENT

Brief Facts:

(1) As per the allegations on 17.10.2010 at the house of complainant in Gali No. 2, Baba Mohan Ram Colony, Mukundpur, (Part­II), Delhi, the accused Mool Chand criminally intimidated the complainant 'K' (name of the complainant is withheld being case under Section 376 IPC), to destroy her family if she did not make physical relations with him. It is alleged that between 4.11.2010 to

2.3.2011 at the above said house the accused Mool Chand committed State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 1 of 65 rape upon the complainant / prosecutrix 'K' on many occasions. It is also alleged that 15 to 20 days after Diwali in the year 2010 at about 2:00 PM, the accused Mool Chand along with his friends (not arrested) committed gang rape upon the the prosecutrix 'K' and also committed carnal intercourse against the order of nature. Case of prosecution in brief:

(2) The case of the prosecution in brief is that the complainant 'K' lodged a complaint in the police station Bhalaswa Diary wherein she stated that she was residing at Baba Mohan Ram Colony near Jaiswal Property, Mukund Vihar, Part­II, Mukund Vihar, Delhi, along with her family. She alleged in the said complaint that in the year 2006 her husband had purchased a piece of land measuring 250 square yards half of which (i.e. 100 square yards) was in the name of her husband while remaining portion was in the name of her devar and her mother­in­law. She further stated that about half a kilometer away of her house, Mool Chand S/o Om Parkash was also residing and he is related to her being her maternal cousin who was into the business of sale purchase of building material. According to her in the year 2010 during construction of her house, her husband had purchased building material from Mool Chand out of which a sum of Rs.45,000/­ remained to be paid to Mool Chand which was also paid.

In the month of March 2010 her husband again started the State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 2 of 65 construction work for he purchased building material from Mool Chand and out of that transaction a sum of Rs.36,000/­ remained to be paid to Mool Chand and for which he used to visit her house frequently. According to her, since her husband was a rickshaw puller, they were not in a position to pay the entire amount. She has further stated that Mool Chand used to visit her house only when she remained alone. She further stated to the police that on 17.10.2010 when her husband and children had gone to see Dashara, Mool Chand came to her house told her that if she established physical relations with him he would not demand his money back on which she got furious but the accused threatened her to destroy her entire family, and left her house thereafter. The complainant has further stated in her complaint to the police that on 4.11.2010 on the occasion of Choti Diwali, Mool Chand came to her house along with police and they took her husband to the police station and kept him there for the entire day and during this period (night) Mool Chand came to her house he forcibly committed rape upon her after which he threatened her not to tell anybody or her husband would got jail for seven years, and in the morning her husband returned home. According to the complainant thereafter on the occasion of Bhai Duj when her husband along with children had gone to the house of his sister, the accused Mool Chand again came to her house and forcibly committed rape upon her. She further stated that it was after 15­20 State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 3 of 65 days of Diwali at about 2:00 PM when she was alone at her house, Mool Chand came to her house along with his friend wearing monkey cap and they did jabardasti with her and when she offered resistance, he cut her writs and thereafter they both committed rape upon her one by one. She further stated that thereafter Mool Chand put his private part in her mouth. According to the complainant, on 13.2.2011 Mool Cand again came to her house and on that day she with the help of her husband and mother­in­law caught hold of him but he managed to flee from the spot after which in the presence of some respectable persons of the society, Mool Chand pleaded forgiveness saying that he would not repeat his act and therefore no police complaint was made at that time. She further stated that on 2.3.2011 it was Shivratri and she was going to mandir when on the way Mool Chand met her and came to her house and he showed her the blue film made by him with her and also committed rape upon her forcibly. On the basis of above complaint, the present FIR was registered. During investigations, the accused Mool Chand was arrested and after completing the investigations, the charge sheet was filed in the court.

CHARGE:

(3) Charge under Sections 506, 376, 376 (2) (g), 377 Indian Penal Code was settled against the accused Mool Chand to which he pleaded not guilty and claimed trial.

State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 4 of 65

EVIDENCE:

(4) In order to discharge the onus upon it, the prosecution has examined as many as fourteen witnesses:

Public Witnesses:

(5) PW9 Dharambir is the husband of complainant. He has deposed that he was residing at House No. 203, Nirankari colony, Delhi along with his family comprising of his wife and his two sons.

According to him previously he resided in Mohan Ram Colony for about 6 years. He has deposed that is Auto / TSR driver by profession. He has further deposed that Mool Chand is related to him being his brother­in­law/sala as he is son of his wife's mama. Witness has further deposed that Mool Chand is into the business of building material and he has purchased rohri/ building material from him when he made constructions of his 100 sq feet plot. According to him, date he does not recollect but it was in the month of February, 2011 perhaps it was 9th but he was not sure, when his wife told him that Mool Chand (correctly identified) had been coming to the house and asking for money for the building material that they had purchased from him. According to him, she further told him that Mool Chand had come to the house on the day of Dushera 2011 and asked her to make physical relations with him on which she refused and scolded him for making such a suggestion despite the close relationship of being the first cousin. Witness has further deposed State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 5 of 65 that on the day of Choti Diwali, the accused again came to their house with the police and he was taken away by the police at Bhalswa Police Station on account of a complaint filed by a lady regarding molestation which lady was planted by accused Mool Chand and there was settlement in the police thereafter. According to him, his wife further told him that on the same day while he was in the Police Station, Mool Chand came to his house and raped her. Witness has further deposed that again on the occasion of Bhaiya Duj when he had gone to the house of his sisters to celebrate the same, Mool Chand came to his house and made relations with his wife. According to him, after about 10­12 days of Bhaiya Duj the accused again came to their house with a other person who was wearing a monkey cap and the person who was wearing a monkey cap caught hold of his wife while the accused forcibly committed rape upon his wife. When his wife tried to free herself, the accused took out a knife and inflicted injuries on both her wrists and after this incident the accused regularly visited his house and forcibly made relations with his wife. Witness has further deposed that one day, accused Mool Chand called up his wife and told that three persons would be coming when the husband and the children would not be at home and it was then, that his wife informed him about the entire incidents when he came back in the evening and also told him that Mool Chand will be coming with three persons on the next day. According State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 6 of 65 to him, on the next day, he informed his mother about the same and called her and both of them hid in his house and waited for the accused. On the next day, the accused came alone and he was trying to do badtamizi with his wife, they pushed him on which he fell down and ran away. Witness has further deposed that they thereafter informed the elders of their community but they were advised by the elders not to exaggerate the issues further as it would adversely effect their reputation including the reputation of his wife and the accused Mool Chand also apologized in the presence of the elders. Witness has further deposed that again on the occasion of the Shivratri of February, 2012, the accused Mool Chand met his wife in the market and told her that he would be coming to their house and he again came to their house and tried to commit rape upon his wife and his wife opposed he threatened her saying that he had made a obscene film of his wife which he would show to everybody in Mukundpur and Sonepat. According to him, on the next day, they made a complaint to the police on which the police apprehended him and during this period, the family members of the accused came to them and sought forgiveness and under their pressure they were made to sign on an application, after which he was enlarged on bail and it is because of this accused that he has sold his house. (6) In leading questions put by Ld. APP for the state, witness has admitted that in his statement to the police, he has given the date State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 7 of 65 when his wife had informed him is 19.02.2011.

(7) In his cross examination by Ld. Defence counsel, witness has deposed that they had gone to the police station for making the complaint on the next day of Shivratri i.e. On 03.03.2011 and they both has gone to get this complaint typed from a shop at Mukundpur at about 7­8 AM in the morning on 03.03.2011. According to him it took about half an hour in getting the said complaint typed and after getting the said complaint typed, they had straight away gone to the Police Station Bhalswa Dairy where they had given the said complaint which was received on the same day. Witness has further deposed that police took action on the said complaint and their case was registered on the same day and the case was registered on the basis of the said complaint and no separate statement was recorded for the registration of the case. According to him, his wife's statement was recorded in the police station on the same day and the same was not recorded in his presence and police did not get her signatures on the said statement. Witness has further deposed that his statement was not recorded in the police station on that day and his statement was never recorded by the police in the present case even after the registration of the case. According to him, SI Susheela Investigating officer of the case had called him two time in the court with regard to the investigations of the present case and his statement was not got recorded in the court by the said Investigating Officer. Witness has State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 8 of 65 denied the suggestion that he had made his statement in the court being tutored to him. Witness has admitted that the Investigating officer of the case was present in the court but has denied the suggestion that Investigating officer had tutored him to make this statement in the court. Witness has admitted that his house is situated in a thickly populated area, which is both residential and commercial. Witness has admitted that the house of his mother is just adjoining his house or that next to his mother's house, his brother Karamveer is also residing in another house and he was running a shop at the time of the incident. Witness has admitted that just behind his house, there is a house belonging to Mr. Pathak or that on the other side of his house is the house of one Sh. Prem, followed by the house of Girja Giri and followed by the house of Mr. Jaiswal. Witness has admitted that he has good relations with his neighbours and there is no dispute with anybody. Witness has admitted that there is a parchoon shop, adjoining the shop of Jaiswal property but he do not know if same is belongs to Satish. Witness has admitted that there is a shop of Mahender property and Arun property adjoining the Jaiswal property dealer. Witness has admitted that his parents in law are resident of village Jatheri, Sonepat. Witness has admitted that his mother in law belongs to Mukundpur and the father of the accused who is his mama in law is resident of Mukundpur. Witness has admitted that before his marriage, relations between his family and State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 9 of 65 the family of accused was very good, as he is the first cousin of his wife being son of mama of his wife. Witness has denied the suggestion that after his marriage, the accused Mool Chand used to frequently come to his house even at Azadpur and has voluntarily explained that he only used to come during festivals. Witness has admitted that prior to Shivratri of 2011 his wife had never disclosed to him about any objectionable act of the accused. Witness has admitted that he himself had never seen the accused exhibiting any objectionable behaviour with his wife and whatever incidents he was deposing before this court was on the basis of what was told to him by his wife.

(8) Witness has denied the suggestion that the plot was got constructed in the year 2007 and has voluntarily explained that it was got started in the year 2006. Witness has admitted that an account was maintained in the ledger books of the accused and has voluntarily explained that Investigating officer had faith on the accused and never checked the same. Witness has denied the suggestion that a sum of Rs. three lacs, forty two thousand nine hundred sixty five was due to the accused which he had not paid for the purchase of the building material. Witness has denied the suggestion that he had become dishonest and did not want to pay same amount and due to this reason he has falsely implicated the accused. Witness has further deposed that the construction of his State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 10 of 65 house was completed within six months. Witness has admitted that at the time of the alleged incident they had inducted one tenant in one room on the ground floor namely Poonam wife of Tani and has voluntarily explained that they had given this one room on rent for about 2­3 months. Witness has admitted that a complaint made against him was by this Poonam, w/o Tani who was their tenant in the said house with allegations of rape against him and has voluntarily explained that it was at the instance of Mool Chand. Witness has admitted that on 04.11.2010 it was with the intervention of Mool Chand in the police station that Poonam did not pursue the case against him. Witness has denied the suggestion that Mool Chand had not got that complaint made from Poonam and it was Poonam herself who made the complaint. Witness has admitted that his wife did not disclose anybody in his family or in her own family i.e. Parents etc regarding any conduct of the accused. According to him, he had asked his wife what had happened to her wrists when he saw her wrists cut and she told him that she had fallen down from the stairs and injured her wrists with the bangles (churi lag gaye thi). Witness has further deposed that he had taken her to a lady Bengali doctor in the same area for treatment and he cannot tell his name but he is in the same area about 500 yards away from their house. According to him he did not tell the police that his wife had taken treatment from a lady doctor in the same area. Witness has denied State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 11 of 65 the suggestion that no such incident had taken place nor he had taken his wife to any doctor and it is for this reason he has not told this fact to the police. Witness has denied the suggestion that the incident of slitting of his wife's wrists took place when she quarreled with him and cut her wrists after she came to know about the reasons for the criminal case against him. Witness has denied the suggestion that thereafter Poonam was asked to leave the premises on the account of the objection of his wife and has voluntarily explained that her husband had himself vacated the premises. Witness has further deposed that the elders and respectables whom they had approach after the Shivratri incidents were their neighbours and he cannot tell the names of such persons who has advised them not to follow up and pursue the case further and has voluntarily explained that it was Mool Chand who had brought them. Witness has further deposed that those persons are also not present in the court and the police did not ask him the names of any of these elders and respectables persons of the area whom they has approached prior to the coming to the police station and has voluntarily explained that they were property dealers in the area who were residing there. Witness has denied the suggestion that no such incident had happened and no neighbours were called. Witness has denied the suggestion that they had not approached any respectables of the area and hence no names and particulars were given by him to the police.

State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 12 of 65 (9) Witness has denied the suggestion that this typed complaint was got prepared falsely. Witness has denied the suggestion that he has made this false complaint, so that he had not to pay the outstanding amount of the constructions of the house. Witness has further deposed that his wife had told him that she was receiving the calls on her mobile phone and he had given the mobile number of his wife to the police but not of Mool Chand. When he was confronted with his statement Ex.PW9/DX1(a) and Ex.PW9/DX1(b) where both the mobile numbers are not there. The witness has again stated thereafter that the police had asked him about the number which he told them but the said number was not in use at that time. Witness has denied the suggestion that he deliberately did not give the numbers of his wife and of the accused to the police because the CDRs would have exposed his lies. Witness has denied the suggestion that the allegations of the video having been prepared on the mobile of the accused is wrong. Witness has further deposed that he was not aware if police had recovered any such video from the accused and his wife did not tell him the detail description of the other person who had come with the accused wearing a monkey cap after 10­12 days of Bhaiya Dhuj. Witness has denied the suggestion that he and his wife had after this incident had compromised the disputes with the accused in the presence of many public persons vide Ex.PW9/DX2 bearing his State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 13 of 65 thumb impressions at point X and his signatures at point X1 which is an application addressed to the SHO Police Station Bhalswa Dairy and has voluntarily explained that he was pressurized and compelled by Mool Chand and his family to sign this document. According to him, he did not make any complaint to the police informing them that the accused and his family had compelled them sign this document. Witness has denied the suggestion that they had executed this document voluntarily without any pressure to correct their mistake. Witness has denied the suggestion that the allegations are all false and wrong. Witness has denied the suggestion that he has leveled all these allegations so that the accused may not claim outstanding balance which they are unable to pay. Witness has denied the suggestion that the fact that they has paid the entire outstanding balance by selling their house. Witness has denied the suggestion that he has improved upon his earlier statement made to the police on legal advise and on tutoring and hence he had not stated the details of the various incidents relating to Dusherra, Choti Diwali, Bhai Dhuj etc to the police in his earlier statement Ex.PW9/DX1 (a) and Ex.PW9/DX1 (b).

(10) PW10 is the complainant / prosecutrix 'K'. She has deposed that she was married in the year 1996 with Dharamveer after which she was residing with him in Azadpur area and in the year 2006 they shifted to Baba Mohan Ram Colony, Mukundpur, where State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 14 of 65 her husband had purchased a plot measuring 250 sq. yrds. out of which 100 sq. yrds. was in the name of her husband and the remaining 150 sq. yrds. in the name of mother­in­law and her devar. According to her, the accused Mool Chand who was present in the court (correctly identified) is her first cousin i.e. son of her Mama and he resides hardly five bigahs away of their house in the Mukundpur area itself and is into the business of selling of building materials. Witness has further deposed that after her husband had purchased the plot in the year 2006, he purchased building material from the accused Mool Chand and gave him contract for constructing the house and Rs.45,000/­ remained to be paid to Mool Chand which her husband paid back to him after selling 100 sq. yrds. of the plot. According to her, since the remaining portion on the front side had remained unconstructed, hence they again purchased further building material from Mool Chand for the purposes of plastering the said portion and out of the said purchase, a sum of Rs.36,000/­ remained to be paid to Mool Chand. According to her, Mool Chand started pressurizing them for return of this amount of Rs.36,000/­ but since she was not keeping well and her children were studying in the government school hence they could not paid the amount to the accused and requested him that he should give them time and they would pay him the amount in installment. The accused however insisted that he wanted his entire amount of Rs.36,000/­ together. State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 15 of 65 (11) Witness has further deposed that on the day of Dashehra in the year 2010, Mool Chand came to her house when she was alone as her husband along with her children had gone for watching the Dashera and Mool Chand told her that either she should make the payment of entire amount or she should make physical relations with him and he would then leave the entire amount. According to her, she scolded the accused for such a suggestion keeping in view the close relation as he was her first cousin. She told him that the entire amount would be paid to him and thereafter, the accused Mool Chand threatened her and left (dhamki de kar chala gaya) stating that he would ruin her family (mai tere pariwar ko barbad kar dunga). Witness has further deposed that on the day of the Choti Diwali in the same year i.e. 2010, the accused Mool Chand came to her house along with the police and her husband was apprehended by the police and she was taken to the police station and they went to the police station and there she came to know that her husband was got involved in some rape case. According to her, the accused thereafter continued with threats and insisted that she should make physical relations with him and also threatened her saying jo maine karna tha, vo kar diya. Witness has further deposed that thereafter, she came to her house in the night when her husband was in the police station and he (accused) told her that she should concede to his demands and make physical relations with him or else her husband would not be State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 16 of 65 released and hence under the said pressure she was compelled to make physical relations with the accused Mool Chand and on the next date i.e. day of Diwali, her husband returned home. Witness has further deposed that on the occasion of of Bhai Duj while her husband and her children had gone to the house of her Nanad to celebrate the festival, the accused Mool Chand gave a call to her and inquired if her husband was at home on which she told him that her husband had gone to her sister's house. According to her, after some time the accused came to her house and again threatened her and made physical relations with her.

(12) Witness has further deposed that after the occasion of Bhai Duj, the accused again came to her house and made physical relations with her and one day during the winter season, the date she does not recollect, the accused Mool Chand also brought one of his friends to her house and his friend told her that aaj hum bhi tumhare saath kaam karenge. According to her, she scolded the friend of the accused on such a suggestion and she also tired to slap him but that person caught hold of her hand and threw her on the floor and also slit the writs of her both hands with a knife and thereafter he i.e. the friend of the accused committed rape upon her and then Mool Chand also committed rape upon her. Witness has further deposed that the accused Mool Chand also committed oral rape upon her and thereafter, the accused Mool Chand started coming to her house State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 17 of 65 continuously on every second or third day. Witness has further deposed that thereafter, on one day, the date she do not recollect but it was in the year 2011, the accused Mool Chand had called her up and told her that he would be coming to her house along with three other persons and it was then that she disclosed to her mother­in­law what Mool Chand was doing to her and she also showed her wrist to her mother­in­law which had been cut and also disclosed to her that previously she had not told them the correct version and hidden the true facts from them and that her wrist was cut by Mool Chand. According to her, she also disclosed about the incidents to her husband and told him that Mool Chand had called her up and told that he would be coming to their house along with three other persons. Witness has further deposed that on next day, her husband took a leave from her work (chutti kar lee) and both her husband and her mother­in­law hid themselves in the house and the accused Mool Chand came alone and while he was about the do chher­chhar with her, then her husband caught hold of him but the accused pushed him and threw him on the floor and ran away. According to her, thereafter, they informed the other persons in the neighbourhood and told them what Mool Chand had been doing with her on which the elderly persons of the neighbourhood advised them not to expose this issue as it would give them a bad name and also advised Mool Chand to seek forgiveness from her keeping in view that she was his State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 18 of 65 sister. Witness has further deposed that the accused in the presence of the Samaj sought forgiveness from her and promised that he would not repeat the incident.

(13) Witness has further deposed that thereafter, on the day of 'Shivratri' the date she do not recollect but it was in the year 2011, she had gone to the temple when the accused Mool Chand met her on the way and he told her that she was looking very pretty and he should come home and he told her saying maine apne ling ki pooja karwani hai and thereafter Mool Chand followed her and came to her house and again insisted upon maintaining physical relations with her and she got scared and she refused. Thereafter, he told her that on that day when his friend had come with him to her house and committed rape upon her, he had also prepared a video film and he (accused) threatened her that he would show the said video film to everybody at Mukundpur and Sonipat and it was under these circumstances he compelled her to make physical relations with her. (14) According to the witness, in the evening her husband came home and she informed him what Mool Chand had done with her and it was then that her husband again informed the elderly people in the neighbourhood and then the elder people advised them to do whatever can be done in accordance with law and thereafter they went to the police station where during the day nobody heard them but in the evening the FIR was registered on their complaint. State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 19 of 65 Witness has further deposed that on the next day on her pointing out the accused Mool Chand was apprehended and she was made to sign on certain documents i.e. arrest memo, personal search memo and disclosure statement which are Ex.PW5/A, Ex.PW5/B and ExPW5/D on which the witness has correctly identified her signatures at Point C, respectively. According to her, she had also shown the house to the police where the offence was being committed by the accused with her on which Vineeta Madam i.e. Investigating officer of the case had prepared the site plan. Witness has further deposed that she was also taken to the BJRM Hospital where her medical examination was got conducted vide MLC Ex.PW7/A bearing her thumb impression at Point X and thereafter, she filed a detailed complaint in the court which complaint is Ex.PW10/A bearing her signatures at point A. (15) In leading questions put by Ld. APP for the state, witness has denied the suggestion that the police had interrogated the accused and she made a disclosure statement and has voluntarily explained that she was in the room meant for the ladies and only signed the document Ex.PW5/D at point C and has voluntarily explained that the accused was kept separately and she do not know what he had disclosed to the police.

(16) In her cross examination by Ld. Defence counsel, witness has deposed that she is totally illiterate and can only put her State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 20 of 65 signatures but she cannot read and write and whatever she had stated to the police was oral and had not given any written complaint. Witness has admitted that Ex.PW10/A bears her signatures but she do not recollect, where she had signed the same. According to her, she had herself got this complaint typed from Mukundpur from a shop where there is a typist and it was from a person who sits outside the shop and in so far as she recollect, it was got typed on a computer. Witness has further deposed that only her husband was with her at that time and she does not recollect the time when this complaint was got typed and she also cannot tell whether it was morning, afternoon, evening or night at that time. According to her, they had reached the police station for the first time at about 3­4 PM but she does not recollect the date and they remained there till night. Witness has further deposed that they had taken this typed complaint to the police station, when they first reached there and large number of photocopies were also got done and she do not recollect, how much time, it took for the typing work and has voluntarily explained that she had to sit for about half an hour to one hour. Witness has denied the suggestion that it was her husband who was dictating and the typist was typing. According to her, they had gone to the police station on the same day, the complaint was got typed and the police had taken action on what she had told them orally and also on the written complaint. On Court Question as to why did she say that State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 21 of 65 police did not take action initially (sunvayi nahi hui), the witness has answered that first they had gone to Adarsh Nagar and then they went to Bhalswa Dairy.

(17) Witness has further deposed that they had gone to Adarsh Nagar in the morning around 7­8 AM and has voluntarily explained that at that time the window of the complaint counter was not open. According to her, she had taken her typed complaint with her when they i.e. her and her husband went to Adarsh Nagar in the morning and she cannot tell in whose name, the complaint was got prepared, where in the name of SHO PS Adarsh Nagar or SHO PS Bhalswa Dairy. Witness has further deposed that whatever she was telling the police personals, they were also writing/noting down the same and she was also make to sign there. Court has Observed that there are no signatures of the witness in the statement recorded by the Investigating officer U/s 161 Cr. PC. Witness has further deposed that she cannot tell, how much time it took for the police officials to record her statement and after the next day, when she signed the various documents, she was not called to the police station again and thereafter she also did not make any statement any where else. On Court question the witness has explained that she did not come to the court at any point of time to make the statement previously and this court has also observed that there is no statement U/s 164 Cr. P.C. Witness has admitted that her statement was recorded on the same State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 22 of 65 day when the complaint was typed and signed by her. Witness has further admitted that her house is situated in a thickly populated area, which is both residential and commercial and has voluntarily explained that there are shops in the area. According to her, there are around 5­6 houses in the gali where her house is situated and the rest of the area has shops. Witness has also admitted that the house of her mother in law/ saas is just adjoining her house and also that next to her mother in law's house, her devar is also residing in another house and is having a shop in the said house. She has voluntarily explained that her devar was not running the shop at that time. Witness has admitted that just behind her house, there is a house of Mr. Pathak and on the other side of her house is the house of one Sh. Prem, followed by the house of Girja Giri and followed by the house of Mr. Jaiswal. Witness has admitted that she has good relations with her neighbours and there is no dispute with anybody and has voluntarily explained that she is having a good dua salam with everybody. Witness has admitted that there is a parchoon shop, adjoining the shop of Jaiswal property but she does not know if same is belongs to Satish and has voluntarily explained that she is some baniya. Witness has admitted that there is a shop of Mahender property and Arun property adjoining the Jaiswal property dealer and has voluntarily explained that those shops came up after the incident. Witness has admitted that her parents are resident of village Jatheri, State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 23 of 65 Sonepat. Witness has further admitted that her mother belongs to Mukundpur and the father of the accused who is her mama is a resident of Mukundpur. Witness has admitted that before her marriage, relations between her family and the family of accused was very good, as she is her first cousin being son of her mama. Witness has denied the suggestion that after her marriage, the accused Mool Chand used to frequently come to her house even at Azadpur. Witness has admitted that prior to Dusherra of 2010 the accused Mool Chand had never done any badtamizi / misbehaviour with her. Witness has denied the suggestion that the accused Mool Chand was never given any theka / contract to construct their house. Witness has further deposed that she was not aware whether any authority was given in writing to the accused for construction of the house by her husband and has voluntarily explained that it is between the male members of the family. Witness has denied the suggestion that the plot was got constructed in the year 2007 and has voluntarily explained that it was got started in the year 2006. According to her she was not aware if an account was maintained in the ledger books of the accused which were regularly maintained in the ordinary course of business indicating the material supplied and the payment made and also the debit, credit account and has voluntarily explained that all these things were done by the male member. Witness has denied the suggestion that a sum of Rs three lacs, forty two thousand State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 24 of 65 nine hundred sixty five was due to the accused which her husband had not paid for the purchase of the building material. Witness has denied the suggestion that her husband had become dishonest and did not want to pay same amount and due to this reason she has falsely implicated the accused. Witness has further deposed that she cannot tell if Ex.PW10/DX1 is the copy of the ledger maintained by the accused in the official course of business. According to her, she cannot tell when the construction of her house was completed. Witness has admitted that at the time of the alleged incident they had inducted one tenant in one room on the ground floor namely Poonam. Witness has further deposed that her house is only constructed upto the ground floor and has voluntarily explained that there were two rooms and two kitchens attached to each room. Witness has admitted that the complaint made against her husband was by this Poonam who was their tenant in the said house with allegations of rape against her husband. Witness has admitted that on 04.11.2010 with the intervention of Mool Chand in the police station that Poonam did not pursue the case against her husband and has voluntarily explained that the case had been foisted upon her husband by Mool Chand and hence it was he who got Poonam to settle the case with her husband. Witness has denied the suggestion that Mool Chand has not got that complaint made from Poonam and it was Poonam herself who made the complaint. Witness has admitted that she did not tell anybody in State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 25 of 65 her family including her husband or her parents about any of the incidents which took place between Dusherra of 2010 and between the Shivratri of 2011. Witness has further deposed that her husband had asked her what had happened to her wrists when she saw her wrists cut and she told him that she had fallen down from the stairs and injured her wrists with the bangles (churi lag gaye thi) and she did not go to any doctor for getting the treatment of the said injuries and has voluntarily explained that she took the treatment at home by putting a yellow medicine which is like a grease. According to her, the said medicine was available in their house which they normally use for giving first­aid to the children but she does not know its name. Witness has denied the suggestion that the incident of slitting of her wrists took place when she had a quarrel with her husband and it is then that she had cut her wrists only because she wanted to save him from penal consequences. Witness has denied the suggestion that she had attempted suicide and slit her wrists being fedup with the conduct and habit of her husband when she came to know about the allegations made against him by Poonam.

(18) Witness has further deposed that the elders and respectables to whom they has approach after the Shivratri incidents were their neighbours and she cannot tell the name of any such person who has advised them not to follow up and pursue the case further. According to her, the police did not ask her the names of State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 26 of 65 any of these elders or respectable persons of the area whom they has approached prior to the coming to the police station. Witness has denied the suggestion that no such incident had happened and no neighbours were called. Witness has denied the suggestion that they have not approached any respectables of the area and hence no names and particulars were given by her to the police and hence the police has not inquired about these facts. Witness has admitted that except the typed complaint, which she made to the police, she had not lodged any complaint about any incident to the police which took place before the date of the complaint. Witness has denied the suggestion that this typed complaint was got prepared falsely. Witness has denied the suggestion that she has made this false complaint so that her husband should not be made to pay the outstanding amount of the constructions of the house. According to her, she had not given any mobile number of Mool Chand to the police and she used to receive the telephone calls of the accused on mobile phone. She states that she does not recollect her mobile number on which she used to receive the calls. Witness has further deposed that she had neither given her mobile number nor the number of the accused to the police. Witness has denied the suggestion that she deliberately did not do this because the CDRs would expose her lies. Witness has denied the suggestion that the allegations of video having been prepared on the mobile of the State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 27 of 65 accused is wrong. According to her, she was not aware if police had recovered any such video from the accused and she did not tell the police, the detail description of the other person who had come with the accused wearing a monkey cap after 10­12 days of Bhaiya Dhuj. Witness has admitted that she did not mention this fact in her complaint that the accused had called her up and told her that she will be coming with three more persons and has voluntarily explained that she only orally told them this fact. Witness has denied the suggestion that she and her husband had after this incident compromised the disputes with the accused in the presence of many public persons vide Ex.PW9/DX2 bearing her thumb impressions at point A and her signatures at point B which is an application addressed to the SHO Police Station Bhalswa Dairy and has voluntarily explained that it was under the pressure of the villagers belonging to the village of the accused that she and her husband compelled to execute this document. Witness is further unable to tell the name of the said villagers and she states that she did not make any complaint to the police informing them that the accused and the villagers had compelled them sign this document. Witness has denied the suggestion that they had executed this document voluntarily without any pressure to correct their mistake. The document Ex.PW9/DX2 was read over to the witness after which she states that she has not said anything as mentioned in the said document. Witness has denied State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 28 of 65 the suggestion that the allegations from Dusherra to Choti Diwali, Bhaiya Dhuj and thereafter till the filling of complaint are all false and wrong. Witness has denied the suggestion that she has leveled all these allegations so that the accused may not claim outstanding balance which they are unable to pay.

Medical / Forensic Evidence:

(19) Dr. Meenakshi (PW7) has deposed that on 6.3.2011 the prosecutrix 'K' aged 27 years was brought to the BJRM hospital by W/Ct. Rashal Meena with alleged history of rape and Dr. Deepak Chugh had medically examined her vide MLC Ex.PW7/A. She has proved the observations made by Dr. Deepak that there was no fresh injury / bleeding and the patient was referred to Gynae. Examination.

The witness has deposed that in the Gyane. Department, the prosecutrix was examined by her (witness) with alleged history of rape on 2.3.2011 at about 3:00 / 4:00 PM with similar episode by same person many times and history of beatings in past. According to the witness on local examination she found cut marks present on both wrists of prosecutrix and on pelvic examination she did not find any sign of injury. This witness has not been cross examined on behalf of the accused and her testimony has gone uncontroverted. (20) Poonam Sharma (PW8) has deposed that on biological examination, blood was was detected on Ex.3 whereas blood could State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 29 of 65 not be detected on Ex.1b and Ex.1c. According to the witness hymen semen was detected on Ex.1a­1 and 1a­2 and semen could not be detected on Ex.1b and 1c. She has proved her detailed report in this regard vide Ex.PW8/A. This witness has further deposed hat on serological examination, Ex.3 i.e. cotton wool swab was found to contain blood stains of human origin but did not give any blood grouping. Her report in this regard is Ex.PW8/B. This witness has not been cross examined on behalf of the accused and her testimony has gone uncontroverted.

(21) Dr. Deepak Chugh (PW11) has deposed that on 6.3.2011 the prosecutrix 'K' was brought to BJRM hospital with alleged history of rape and was examined by Dr. Ranjeet under his supervision vide MLC Ex.PW7/A and thereafter referred the patient to Gyae. Department for further examination. This witness has not been cross examined on behalf of the accused and her testimony has gone uncontroverted.

(22) Dr. R. S. Mishra (PW12) has deposed on behalf of Dr. Rajeev, Dr. Yatinder, Dr. Suhail and Dr. Rajesh Satija and has identified their signatures and handwritings having seen them during the course of his duty. According to the witness on 6.3.2011 the accused Mool Chand was brought to the hospital for his medical examination and was examined by Dr. Ranjeet under supervision of Dr. Rajeev vide MLC Ex.PW12/A. The witness has deposed that in State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 30 of 65 surgery department, the accused Mool Chand was examined by Dr. Yatinder bearing his signatures at point B on MLC Ex.PW12/A. The witness has also identified the signatures of Dr. Suhail at point A on MLC Ex.PW12/B and of Dr. Sanesh M Garde at point A on Ex.PW12/C. According to the witness on local examination, there was old a scar mark on right and left leg and there was no fresh external injury on the body of accused Mool Chand. This witness has not been cross examined on behalf of the accused and her testimony has gone uncontroverted.

Police / Official Witnesses:

(23) HC Satish Pal (PW1) is formal witness being the duty officer. He has been examined by way of affidavit which is Ex.PW1/1. He has proved registration of the FIR copy of which is Ex.PW1/A and the endorsement made by him on the rukka vide Ex.PW1/B. He has not been cross examined on behalf of the accused despite opportunity.

(24) HC Himmat (PW2) is formal witness being the MHC (M). He has been examined by way of affidavit which is Ex.PW2/1.

He has proved the entries made by him in Register No. 19 and 21 vide Ex.PW2/A, Ex.PW2/B and Ex.PW2/C. He has not been cross examined on behalf of the accused despite opportunity. State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 31 of 65 (25) Ct. Laxman Pandey (PW3) is also formal witness being the official who had taken the exhibits to the FSL. He has been examined by way of affidavit which is Ex.PW3/1. He has proved the RC No. 36/21/11 and copy of acknowledgment receipt issued by the FSL vide Ex.PW2/C. He has not been cross examined on behalf of the accused despite opportunity.

(26) Ct. Sunder Negi (PW4) is formal witness. He has been examined by way of affidavit which is Ex.PW4/1. He had joined the investigations on 6.3.2011 and 7.3.2011 for medical examination of the accused and his production before the Ld. MM. He has not been cross examined on behalf of the accused despite opportunity. (27) Ct. Dinesh (PW5) is again a formal witness. He has been examined by way of affidavit which is Ex.PW5/1 wherein he has stated that on 6.3.2011 he joined the investigations along with the IO when the IO interrogated the complainant and her family members and medical examination of the prosecutrix was got conducted. He has also deposed that the accused Mool Chand was arrested vide memo Ex.PW5/A, personally searched vide memo Ex.PW5/B and his disclosure statement was recorded vide memo Ex.PW5/C after which his medical examination was got conducted and he was produced before the Ld. MM.

State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 32 of 65 (28) In his cross examination the witness has deposed that he started from the police station at about 3­3:30 Am and reached Baba Mohan Ram Colony within 15 minutes where the complainant 'K', her husband and mother­in­law met him and their statements were recorded by the IO SI Vineeta Prasad. He has deposed that there are other houses adjoining the house of the complainant. He has deposed that the accused was arrested in his presence and both the accused and the complainant were got medically examined in the BJRM hospital.

(29) W/Ct. Rashal Meena (PW6) is formal witness. She has been examined by way of affidavit which is Ex.PW6/1. She has relied upon the seizure memo Ex.PW6/A, arrest memo of accused Ex.PW5/A, his personal search memo Ex.PW5/B, pointing out memo Ex.PW5/C and the disclosure statement of accused vide memo Ex.PW5/D. (30) In her cross examination, the witness has explained that she joined the investigations on 6.3.2011 with SI Vineeta and Ct. Dinesh at about 3:15 AM when the complainant was present at the police station after which they all went to Mukundpur village where husband and mother in law of complainant met them. She has further explained that the statement of all these witnesses were recorded in her presence after which prosecutrix was medically examined and accused was arrested from his house in this case and State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 33 of 65 thereafter his medical examination was got conducted. The witness has denied the suggestion that the accused did not disclose anything or that his disclosure statement was falsely recorded. (31) SI Vineeta Prasad (PW13) has deposed that on 05.03.2011 she was posted at police station Jahangir Puri and on that day she came to know that a complaint has been received in respect of allegations of rape at police station Bhalsawa Dairy. According to her, on the directions of the ACP she went to police station Bhalsawa Dairy and Duty Officer handed over a complaint Ex.PW10/A to her which had been received there vide DD No. 18A on 05.03.2011. Witness has further deposed that the complainant was also present there and she made inquiries from her and made allegations of rape committed by the accused Mool Chand and corroborated the facts mentioned in the complaint Ex.PW10/A. According to her, thereafter she along with 'K', WCt. Rashal Meena and Ct. Dinesh reached at the house of prosecutrix at Baba Mohan Ram Colony, Mukund Vihar Part­II, Mukundpur and she interrogated husband and mother in law of prosecutrix and they also corroborated the allegations of prosecutrix and thereafter they went to BJRM Hospital where medical examination of prosecutrix was conducted. Witness has further deposed that she collected her MLC and she also collected the exhibits in respect of prosecutrix through W Ct. Rasal Meena and seized the same vide seizure memo Ex.PW6/A and thereafter she State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 34 of 65 reached at police station Bhalsawa Dairy and made endorsement vide Ex.PW13/A and after taking directions from higher officers. According to her, thereafter on the basis of complaint and on her endorsement, FIR No. 34/11 was registered at police station Bhalsawa Dairy and she received the copy of FIR and original complaint with rukka for further investigations. Witness has further deposed that she along with above said constables reached at Mukundpur Village along with prosecutrix and at the instance of prosecutrix accused Mool Chand was apprehended by them and he was interrogated by her and he confessed about his involvement in this case. According to her, she arrested accused Mool Chand vide Ex.PW5/A accused Mool Chand put his signatures at point E and his personal search was taken vide memo Ex.PW5/B and accused Mool Chand put his signatures at point E. Witness has further deposed that his disclosure statement was recorded vide Ex.PW5/D and accused Mool Chand put his signatures at point E. Witness has further deposed that accused Mool Chand also pointed out the place of incident vide Ex.PW5/C and accused Mool Chand put his signatures at point D and prosecutrix put her signatures at point E. Witness has further deposed that she recorded the statement of prosecutrix, her husband and her mother in law and thereafter she along with the police officials and accused Mool Chand reached at BJRM Hospital where he was medically examined and she collected his MLC and State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 35 of 65 also collected his blood sample in sealed condition with sample seal vide seizure memo Ex.PW5/E through Ct. Dinesh. According to her she returned back to police station Bhalsawa Dairy and deposited all the seized articles and she recorded statement of Ct. Rasal Meena and thereafter they reached Rohini Court and one day Police Custody remand was taken from the court and they tried to trace out the co­ accused Raju but he could not be traced. Witness has further deposed that accused was medically examined through Ct. Surender Negi. According to her, on the next day accused Mool Chand was produced before the court and from there he was sent to judicial custody and thereafter she recorded the statement of Witnesses. Witness has further deposed that during her investigation on 06.03.2011 when she went to the house of victim where she prepared the site plan Ex.PW13/B. According to her, thereafter she handed over the case file to the MHC (R) on 07.03.2011 as she was going on leave. Witness has further deposed that in the month of November 2011 again the case file was handed over to her for further investigation and she collected the FSL result and after completion of investigation she submitted the charge sheet in the court against Mool Chand who was present in the court and witness correctly identified accused Mool Chand.

(32) In her cross examination by Ld. Defence counsel, witness has deposed that the complaint Ex.PW10/A was received in the State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 36 of 65 police station on 05.03.2011. Witness has admitted that this complaint was not received in the police station on 03.03.2011. Witness has further admitted that on 03.03.2011 neither the complainant nor her husband met her in the police station or that she had not recorded any statement of complainant and her husband on 03.03.2011. Witness has further deposed that for the first time complainant met her alone in the police station on 05.03.2011 and she had not recorded her statement on 05.03.20.11 in the police station. According to her, for the first time she recorded the statement of the complainant on 06.03.2011 at her house at about 8.00­9.00AM and at that time the FIR had already been recorded. Witness has further deposed that FIR was recorded on the written / typed complaint of the complainant and she also recorded the statement of mother in law and husband of the complainant at her residence on the same day and their statement was recorded in the presence of each other. Witness has further deposed that Mool Chand was arrested from Village Mukundpur where he was doing business of property dealing. Witness has denied the suggestion that the accused did not make any disclosure statement. Witness has denied the suggestion that she has not fairly conducted the investigations. Witness has admitted that the place of incident was already shown to her by the complainant before the arrest of accused Mool Chand.

(33) SI Susheela Rana (PW14) has deposed that on State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 37 of 65 06.04.2011 she was posted at RCI Cell, Sub Division Jahangirpuri, Delhi and on that day investigations of this case was handed over to her and he recorded statement of prosecutrix and her husband Dharambir. According to her, on 30.05.2011 Exhibits of this case was sent to FSL Delhi through Ct. Laxman Pandey and she recorded his statement. Witness has further deposed that on 26.08.2011 she handed over the case file to MHC (R) as she was on official leave. Witness has further deposed that again on 26.09.2011 the case file was handed over to her for further investigations and she tried to trace out co­accused Raju but he could not be found. According to her, thereafter she was transferred from the police station and she handed over the case file to MHC (R).

(34) In her cross examination by Ld. Defence counsel, witness has deposed that she had recorded the supplementary statement of the prosecutrix in the police station during the day i.e. around 11­11:30 AM. Witness has admitted that the original complaint was recorded on the basis of the typed complaint given by the complainant. According to her she cannot tell who had accompanied the prosecutrix when she had given the first complaint to the police on the basis of which the FIR was registered. Witness has further deposed that apart from the mother in law no body in the area was ready to make a statement relating to the facts of the case as the relation between the accused and the complaint were of first cousin. State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 38 of 65 Witness has denied the suggestion that she had not made any local inquiries and proceeded only on the basis of the typed complaint given by the complainant. Witness has denied the suggestion that she was deposing falsely on the asking of the complainant. STATEMENT OF ACCUSED & DEFENCE EVIDENCE:

(35) After completion of prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him which the accused has denied. (36) The accused has stated that he is innocent and has been falsely implicated by the police in connivance with the complainant.

According to the accused the complainant and her husband had purchased building material from him for the construction of their house and an amount of Rs.3,42,965/­ was outstanding and this case has been made against him so that he may not claim the said outstanding amount. According to him he never committed any rape upon the prosecutrix who is his cousin sister and he can never even think of such an act with his cousin. He has stated that his story has been falsely made to implicate him so that he may not claim his outstanding balance which Dharambir was unable to pay in respect of the building material he purchased from him for the construction of his house. However, he later came to know that the complainant, his cousin sister had tried to commit suicide by cutting her veins of State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 39 of 65 wrists when she had a quarrel with her husband on account of his involvement with their tenant Ms Poonam wife of Toni. He has stated that he had not gone to their house with the police but having come to know that his Jija Dharambir had been taken by the police to the police station on the allegations of rape by their tenant Poonam, he helped them and got the said matter settled being in close relations. According to him he did not put any pressure but the amount outstanding was not Rs.36,000/­ but was Rs.3,42,965/­. He has stated that the complainant and her husband Dharambir felt their mistake then they of their own had given in writing to the common relations and as such no pressure from his side was put on making the said application to the police. He has stated that the said application was given to them which was produced in the court at the time of his bail application. He has stated that no such incident as alleged by the complainant has happened.

FINDINGS:

(37) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:

State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 40 of 65

Identity of the Accused:

(38) In so far as the identity of the accused is concerned, he has been specifically named in the FIR. He was also known to the prosecutrix being closed relative being cousin brother and also has been correctly identified in the court by the prosecutrix and her husband. I hold that the identity of the accused stands established.

Age of Prosecutrix:

(39) It is not disputed that the prosecutrix is a married women aged about 29 years (as per her own version) a mother of two young boys, an aspect which is not disputed by the accused.

Medical Evidence:

(40) Dr. Deepak Chugh (PW11) has proved the MLC of the prosecutrix 'K' vide Ex.PW11/A showing that she was brought to the hospital with alleged history of rape. Dr. Meenakshi (PW7) has proved the gynecological opinion given by her vide Ex.PW7/A. According to the medical examination report dated 6.3.2011 the prosecutrix had alleged sexual assault on 2.3.2011 at about 3 to 4 PM with three to four similar episodes by the some person. There was no signs of injury on her body. The doctor however has observed that there were cut marks on both the wrists but no observations have been made with regard to the same.

State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 41 of 65 (41) In so far as the accused is concerned, Dr. R. S. Mishra (PW12) has proved his MLC and also opined that the accused Mool Chand was capable of performing sexual assault.

Forensic Evidence:

(42) The biological report Ex.PW8/A and serological report Ex.PW8/B have been proved by Ms. Poonam Sharma (PW8). She has proved that human semen was detected in Ex. 1a­1 and 1z­2 i.e. micro slides and vaginal secretion whereas no reaction in respect of the blood sample (Ex.3). Here I may observe that the prosecutrix is a married women and was staying with her husband and the history of sexual assault was of 2.3.2011 whereas the exhibits were collected on 6.3.2011 hence under the given circumstances since the vaginal swab shows the presence of semen hence it was necessary to connect the accused, which has not been done. The biological report does not show any ABO grouping and the same has not been subjected to DNA examination to connect the same accused. Even otherwise I may observe that the incident being old, the possibility of connecting the accused with the same appears to be remote because there is no history of any sexual assault by the accused between 2.3.2011 and 6.3.2011.

Allegations against the accused:

(43) The case of the prosecution is that the prosecutrix 'K had State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 42 of 65 lodged a typed complaint to the SHO Police Station Bhalaswa Dairy on 3.3.2011 that she had been raped by the accused who is her first cousin being son of her real maernal uncle, between 4.11.2010 to 2.3.2011. In order to discharge the onus upon it, the prosecution has examined fourteen witnesses. The most material of them are the prosecutrix 'K' (PW10) and her husband who has been examined as PW9.

(44) Ld. Addl. PP for the State submits that the family of the prosecutrix was under debt of the accused as he was building contractor / supplier and they had purchased building material from him for construction of their house out of which certain amount was remaining to be paid which the complainant and her husband were unable to pay on account of which the accused had offered to leave the entire remaining amount in case the complainant / prosecutrix 'K' would make physical relations with him and in this background the accused by exploiting the vulnerable financial position of the prosecutrix, had made physical relations with her during this period. In this regard the prosecution has placed its reliance on the testimonies of the prosecutrix 'K' and her husband which is the sole evidence available on record.

(45) On the other hand Ld. Defence Counsel has vehemently argued that the entire claim of the prosecutrix 'K' and her family are State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 43 of 65 false which allegations have been made only to pressurize the accused so that he may not demand back his outstanding dues. Ld. Counsel has pointed out that the prosecutrix is a married lady aged about 29 years and the building material was purchased in the year 2007 and the various allegations are non­specific and vague there being no date and month given. He has pointed out that even otherwise the kind of allegations made, do not appear to be probable and correct in view of the conduct of the prosecutrix who admits that her in­laws were also staying in the same house i.e. adjoining portion where the incident to have allegedly taken place which incident she did not disclose to her in­laws or her husband or her parents. Ld. Counsel has pointed out that the prosecutrix and her husband have contradicted on material particulars. He has pointed out that according to her husband (PW9) first incident was of Dushera 2011 and second incident was of Chhoti Diwali 2011 whereas according to the prosecutrix (PW10) it was 2010. It is further pointed out that according to the husband the third incident is of 10 to 12 days after Bhaiduj when accused came with another person wearing monkey cap whereas according to the prosecutrix it was one day during winter season. Further he has submitted that the fourth incident according to the husband one day told his wife that three persons would be coming whereas according to the prosecutrix it was in the year 2011 date of which she does not know. He has further pointed State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 44 of 65 out that in cross examination both these witness (i.e. prosecutrix and her husband) have contradicted each other since the husband say that after they went to lodge the complaint they went to Bhalasway but according to the prosecutrix they first went to Adarsh Nagar. Also the husband has stated that that the statement of prosecutrix was not got signed whereas the prosecutrix admits having signed the same. Further, the husband has stated that they got the complainant typed from a shop whereas the prosecutrix says that she cannot tell the time whether it was morning or evening or night and states that they got the complaint typed at Police Station Adarsh Nagar. Further the husband says that he took his wife to a lady Bengali doctor for treatment of her wrist which was injured whereas the prosecutrix states that she did not go to any doctor and treated the injury at home by applying a yellow medicine. Ld. Defence Counsel has also placed on record the compromise dead which is Ex.PW9/DX2 on which the husband of prosecutrix has admitted his signatures and has explained that he had signed this document under pressure from the accused and his family members whereas according to the prosecutrix it was under pressure from the villagers belonging to the village of the accused. Ld. Counsel has also argued that in this background and in view of the above discrepancies, the testimonies of the prosecutrix 'K' cannot be believed.

(46) I have considered the rival contentions. Coming first to State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 45 of 65 the testimony of the prosecutrix 'K' relevant portion of which is reproduced as under:

"I was married in the year 1996 with Dharamveer after which I was residing with him in Azadpur area. In the year 2006 we shifted to Baba Mohan Ram Colony, Mukundpur, where my husband had purchased a plot measuring 250 sq. yrds. out of which 100 sq. yrds. was in the name of my husband and the remaining 150 sq. yrds. in the name of mother­in­law and my devar. The accused Mool Chand who is present in the court (correctly identified by the witness) is my first cousin i.e. son of my Mama and he resides hardly five bigahs away of our house in the Mukundpur area itself and is into the business of selling of building materials. After my husband had purchased the plot in the year 2006, my husband purchased building material from the accused Mool Chand and gave him (accused) contract for constructing the house. A sum of Rs.45,000/­ was remained to be paid to the accused Mool Chand which my husband paid back to him after selling 100 sq. yrds. of the plot. Since the remaining portion on the front side had remained unconstructed, hence we again purchased further building material from the accused Mool Chand for the purposes of plastering the said portion and out of the said purchase, a sum of Rs.

36,000/­ remained to be paid to Mool Chand. My husband is plying an auto / TSR on rent. The accused Mool Chand started pressurizing us for return of this amount of Rs.36,000/­. I was not keeping well and my children were studying in the government school and we could not paid the amount to the accused and requested him that he should give us time and that we would pay him the amount in installment but the State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 46 of 65 accused still insisted that he wanted his entire amount of Rs.36,000/­ together. On the day of Dashehra in the year 2010, the date I do not recollect, the accused Mool Chand came to my house. I was alone at my house at that time as my husband along with my children had gone for watching the Dashera. The accused Mool Chand told me that either I should make the payment of the entire amount to him or I should make physical relations with him and he would leave the entire amount. I scolded the accused for such a suggestion keeping in view the close relation as he was my first cousin and I told him that the entire amount would be paid to him. Thereafter, the accused Mool Chand threatened me and left (dhamki de kar chala gaya) stating that he would ruin my family (mai tere pariwar ko barbad kar dunga).

On the day of the Choti Diwali in the same year i.e. 2010, the accused Mool Chand came to my house along with the police and my husband was apprehended by the police and he was taken to the police station. We went to the police station and there I came to know that my husband was got involved in some rape case. The accused thereafter continued with threats and insisted that I should make physical relations with him and also threatened me saying jo mai ne karna tha, vo kar diya. Thereafter, he came to my house in the night when my husband was in the police station and he (accused) told me that I should concede with his demands and should make physical relations with him or else my husband would not be released and under the said pressure I was compelled to make physical relations with the accused Mool Chand and on the next date i.e. day of Diwali, my husband returned home.

State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 47 of 65

On the occasion of of Bhai Duj while my husband and my children had gone to the house of my Nanad to celebrate the festival, the accused Mool Chand gave a call to me and inquired if my husband was at house on which I told him that my husband had gone to his sister's house. After some time the accused came to my house and again threatened me and made physical relations with me.

After the occasion of Bhai Duj, the accused continued to come to my house and made physical relations with me. One day during the winter season, the date I do not recollect, the accused Mool Chand also brought one of his friends to my house and his friend told me that aaj hum bhi tumhare saath kaam karenge. I scolded the friend of the accused on such a suggestion and I also tired to slap him but that person caught hold of my hand and threw me on the floor and also slit the writs of my both hands with a knife and thereafter he (i.e. the friend of the accused) committed rape upon me and thereafter Mool Chand also committed rape upon me. The accused Mool Chand also committed oral rape upon me. Thereafter, the accused Mool Chand started to come my house continuously on every second and third day.

Thereafter, on one day, the date I do not recollect but it was in the year 2011, the accused Mool Chand had called me up and told me that he would be coming to my house along with three other persons and on this I disclosed to my mother­in­law what Mool Chand was doing to me. I also showed my wrist to my mother­in­law which had been cut and told her that previously I had not told them the correct version and hidden the true facts from them and that my wrist was State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 48 of 65 cut by Mool Chand. I also disclosed about the incidents to my husband and told him that Mool Chand had called me up and told that he would be coming to our house along with three other persons. On next day, my husband took a leave from his work (chutti kar lee) and both my husband and my mother­in­law hid themselves in the house. The accused Mool Chand came alone and while he was about the do chher­chhar with me, my husband caught hold of him but the accused pushed him and threw him on the floor and ran away. Thereafter, we informed the other persons in the neighbourhood and told them what Mool Chand had been doing with me and those elderly persons of the neighbourhood advised us not to expose this issue as it would have given us a bad name and also advised Mool Chand to seek forgiveness from me keeping in view that I was his sister. The accused in the presence of the Samaj sought forgiveness from me and promised that he would not repeat the incident.

Thereafter, on the day of 'Shivratri' the date I do not recollect but it was in the year 2011, I had gone to the temple when the accused Mool Chand met me on the way and he told me that I was looking very pretty and I should come home and he told me saying maine apne ling ki pooja karwani hai. Thereafter, the accused Mool Chand followed me and came to my house and again insisted upon to maintain physical relations with him and I got scared and I refused. Thereafter, he told me that on that day when his friend had come with him to my house and committed rape upon me, he had also prepared a video film and he (accused) threatened me that he would show the said video film to everybody at Mukundpur and State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 49 of 65 Sonipat and it was under these circumstances he compelled me to make physical relations with him. In the evening my husband came home and I informed him what Mool Chand had done with me. It was then that my husband again informed the elderly people in the neighbourhood and then the elder people advised us to do whatever can be done in accordance with law and thereafter we went to the police station where during the day nobody heard us but in the evening the FIR was registered on our complaint.

On the next day on my pointing out the accused Mool Chand was apprehended and I was made to sign on certain documents. (Witness means the arrest memo, personal search memo and disclosure statement of the accused which already are Ex.PW5/A, Ex.PW5/B and ExPW5/D on which the witness has correctly identified her signatures at Point C, respectively). I had also shown the house to the police where the offence was being committed by the accused with me on which Vineeta Madam (i.e. IO of the case) had prepared the site plan. I was also taken to the BJRM Hospital where my medical examination was got conducted vide MLC already Ex.PW7/A bearing my thumb impression at Point X. Thereafter, I filed a detailed complaint in the court which complaint is Ex.PW10/A bearing my signatures at point A. (47) I have considered the rival contentions and before proceeding further to analyze the evidence which has come on record I may observe that it is settled principle of law that it is not in every case that the version of the prosecutrix must be corroborated in material particulars by independent witnesses. In a case where the State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 50 of 65 Court is satisfied that the testimony of the prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix conviction can also be recorded but in appropriate cases the Court may look for corroboration from independent sources or circumstances. The testimony of the prosecutrix has to be tested on the touch stone of truthfulness and credibility. (48) The Hon'ble Supreme Court of India, in Pandurang Sitaram Bhagwat Vs State of Maharashtra reported in 2005 CRI L.J 880 has held as under :

"....... The approach of the learned trial judge as noticed supra that ordinarily a lady would not "put her character at stake" may not be wrong but cannot be applied universally . Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decisions where changes under section 376 and 354 of IPC have been found to have been falsely advanced ( para 16)"

"we are not oblivious that the the doctrine "

falsus in uno , falsus in omnibus '' is not applicable in India but the evidence led by the parties must be appreciated keeping in view the entirety of the situation.... PW 2 and PW 3 not only failed to substantiate the allegation as as regards commission of offence under section 323, 504, 506 read with section 34 IPC but also implicated the three persons falsely . The statement of the said witnesses should have been accepted with the pinch of the salt and State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 51 of 65 keeping in view the admitted animosity between the parties. The background of the case vis a vis continuous animosity between the complainant and her husband , on one hand as also the appellents and his other tenants could not have been lost sight of by the learned trial judge( Para ­20)"

(49) Further, in the case of Ram Das and ors Vs. State of Maharashtra, reported in AIR 2007 SC 155, the Hon'ble Supreme Court has held as under:

"........ It is no doubt true that the conviction in case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exists no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case and in a given case the court may be satisfied that the delay in State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 52 of 65 lodging the report has been sufficiently explained .....There may also be cases where on the account of fear and threats, witness may avoid going to the police station immediately........It is also possible to corrceive the cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to police and seek the legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weight in the mind of the court i.e. the initial hesitation of the victim to report to the police which may affect her family life and family reputation ...In the ultimate analysis, what is the effect of the delay in lodging the report with the police is a matter of appreciation of evidence and court must consider the delay in the background of the facts and circumstances of such case (para­17 )..."

(50) The Hon'ble Supreme Court of India in Dinesh Jaiswal Vs state of M.P, reported in AIR 2010 SC 1540 has held as under :

"........ Mr. C.D Singh has however placed reliance on Moti lal's case (AIR 2008 SCC (Supp) 882:2008 AIR SCW 4846) (Supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with the proposition and it has been so emphasised by this court time and again but to hold that a prosecutrix must be believed irrespective of the State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 53 of 65 improbabilities in her story is an argument that can never be accepted. The test always is as to whether the given story prima facia inspires confidence. We are of the opinion that the present matter is indeed an exceptional one (para 5)......"

(51) Now applying the above settled principles of law to the facts of present case, at the very Outset I may observe that the prosecutrix is a 29 years old adult married for almost 10 years with two young sons and is staying in a house where her in­laws are also residing in the adjoining portion with whom she has good relations. (52) Secondly the accused Mool Chand is the cousin brother of the prosecutrix being son of her mama which relationship is not disputed and the prosecutrix admits that he is into the business of supplying the construction / building material and that her husband at the time of construction of his house purchased building material from him.

(53) Thirdly it is not disputed by the prosecutrix and her husband after purchasing the building material in the year 2006­2007 were unable to pay the entire amount of the said material and some amount remained outstanding (Rs.36,000/­ according to prosecutrix) and the accused was insisting upon the payment of the same. (54) Fourthly only corroboration forthcoming to the oral State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 54 of 65 testimony of the prosecutrix is from the oral testimony of her husband Dharambir who in his cross examination has conceded that he has not observed any behaviour which was unusual in the accused at any point of time and that he had given the details of various incidents on the basis of what was told to him by his wife (i.e. prosecutrix).

(55) Fifthly in the various incidents cited by the prosecutrix she is not specific with regard to the date and time. Further, the manner in which she has alleged that the incidents took place, does not appears to be probable under the given circumstances. As per the version of the prosecutrix herself the adjoining portion of her house is occupied by her mother­in­law and the other portion by the family of her brother­in­law who all are residing in the same vicinity with whom she had good relations. It is impossible that any person could have entered the portion / house of the prosecutrix where she is residing with her in laws in the adjoining portion which is situated in the thickly populated locality, and sexually assaulted her on number of occasions without anybody having come to know of the same. The case of the prosecutrix is that she had been resisting the advances of the accused and on one of the occasions when she resisted to the rape attempt, the accused and his associate had slashed her wrist. Had this been so, I am sure there would have been an alarm in the area, which is not the case. Further, her mother­in­law, State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 55 of 65 brother­in­law, husband, sons, etc. would have all come to know about the same, which is again not the case. Also in this regard there a material contradiction in the testimony of the prosecutrix and also of her husband. While her husband claim that he had taken his wife to a lady Bengali doctor in the area when he saw the cut injury on her wrist (details of which doctor have not come on record) whereas the prosecutrix states that she did not go to any doctor and had taken treatment at home by putting some ointment available in the house. Though there is no dispute that she had a cut mark on her wrist but there is no opinion of the doctor whether the said cut mark was suicidal or homicidal or self­inflicted. The prosecutrix is a mature lady aged 29 years married with two sons living in a joint family belonging to a conservative background. The manner in which she had attributed these injuries to be inflicted by another party, does not appears to be probable because as already observed herein above had it been so, she would have raised an alarm or the said injuries would have been noticed by others in the family and got treated which is not the case. Rather, the arguments advanced by the accused that the injures were self­inflicted when her husband got involved in a rape case in which allegations made against him by tenant residing in their own house, appears to be more probable. Under the given circumstances it is not possible for this court to accept the claim of the prosecutrix without any independent corroboration in this regard. State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 56 of 65 (56) Sixthly as already observed there are no independent witnesses either from the neighborhood or from the family of the prosecutrix herself who are all residing in the vicinity. The medical and the forensic evidence also does not support her claim. As per the record the last act of rape was committed by the accused on 2.3.2011 whereas the prosecutrix had been medially examined on 6.3.2011 i.e. four days after the incident and therefore it is impossible that vaginal swab of the prosecutrix would show semen stains of the assailant. The prosecutrix being a married women the possibility of presence of semen stains in her vaginal swab of her husband, cannot be ruled out. Under the given circumstances it was necessary that the Investigating Officer should have got DNA Fingerprinting examination done in order to connect the semen stains found in the vaginal swab of the prosecutrix to connect the same with the accused, which is not done and hence benefit of the same is liable to be given to the accused (57) Seventhly it is again an admitted case that the settlement deed which has been placed on record as Ex.PW9/DX2 bears the signatures of the prosecutrix and her husband. Though it has been explained by them that it has been executed under pressure, but if it was so then why they have not lodged any police complaint with regard to the same? It is writ large from the said settlement deed that after getting the FIR registered which FIR was itself registered after much delay they compromised the matter with the accused Mool State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 57 of 65 Chand having realized their mistake. No satisfactory explanation is forthcoming with regard to the circumstances in which this compromise deed had been executed by the prosecutrix and her husband. After all the prosecutrix and her husband both are mature adults and had already got a case registered against the accused Mool Chand who was at disadvantageous position. Under these circumstances it does not appear probable that they would have signed the same under pressure. However, assuming that they did sign the same under pressure, the next question which then arises is that why then they did not make any complaint to the police or any other authority to which again no satisfactory explanation is forthcoming.

(58) Eighthly the allegations of the prosecutrix that the accused Mool Chand had been threatening her that he had made some obscene films belonging to her, does not stand established and substantiated. No obscene film has been recovered by the police. Call Detail Record of the mobile phone of the accused have been obtained by the police which were essential. The CDRs should have assisted in establishing the location of the accused at a given time. (59) Lastly there is a long delay in registration of the FIR which has not been sufficiently explained. The prosecutrix is a mature adult. Her husband himself admittedly got implicated in a rape case filed by her tenant Poonam, she had sufficient opportunity State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 58 of 65 to inform her family, neighbors or police of the acts of the accused which she did not do. Also, not a single person from the neighborhood or elders of the area who were allegedly informed by the acts of the accused and who allegedly persuaded upon her not to report the matter to the police have been named or brought to the court as witnesses which his liable to be held against the prosecution. (60) It is writ large that the only material on record is the sole testimony of the prosecutrix which is required to be read with caution and does not find any independent corroboration. Under the given facts and circumstances of the present case, two version are possible and one which goes in favour of the accused has to be accepted. In the present case on the one hand the prosecutrix has admitted that she was under debt of the accused who had been demanding the money from her and the compromise deed Ex.PW9/DX2 also prima facie shows that she has admitted that no wrong had been done to her and the only issue was that she wanted that the accused should not harass her family and husband be demanding the outstanding amount whereas on the other hand in the court she has alleged that she was subjected to repeated sexual exploitation which testimony does not inspire confidence of the Court. In this background, the version favourable to the accused is required to be taken. [Reference is being made to the case of Kishori Lal Vs. State of Haryan, Punjab & Haryana High Court, reported in 2009 (Volume 5) RCR (Criminal) State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 59 of 65

446)].

(61) In view of the above discussion, I hereby hold that the prosecution has not been able to establish and prove the allegations against the accused Mool Chand beyond reasonable doubt. FINAL CONCLUSION:

(62) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 60 of 65 accused.

(63) Applying the above principles of law to the facts of present case, the following facts have been established:

➢ That the prosecutrix 'K' is a 29 years old adult married for almost 10 years with two young sons and at the time of the incident was staying at Baba Mohan Ram Colony, Janta Vihar, Mukund Pur, Delhi, with her mother in­law and her brother­in­ law with family staying in the adjoining portion with whom she had good relations.

➢ That the accused Mool Chand is the cousin brother of the prosecutrix being son of her mama and is into the business of supplying the construction / building material. ➢ That the husband of the prosecutrix at the time of construction of his house purchased building material from the accused Mool Chand.

➢ That after purchasing the building material in the year 2006­2007 the prosecutrix and her husband were unable to pay the entire amount of the said material and some amount remained outstanding (Rs.36,000/­ according to prosecutrix) and the accused was insisting upon the payment of the same. ➢ That Dharambir husband of the prosecutrix was an accused in a case in which the complainant / prosecutrix was her tenant namely Poonam and in the said case it was the accused Mool State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 61 of 65 Chand who according to her had intervened to secure the release of her husband.

➢ That after the registration of FIR and arrest of accused Mool Chand there was a compromise between the prosecutrix and her husband on the one side and the accused on the other side in the presence of as many as 11 persons which compromise deed is Ex.PW9/DX2 wherein both the prosecutrix and her husband admit their signatures and thumb impressions. (64) I may observe that the prosecutrix is a mature adult i.e. a married women residing with her husband along with her in­laws. It does not appear probable that despite the fact that she was being repeatedly sexually exploited in her own house which is situated in a thickly populated area by the accused and allegedly by other men brought by him without her in­laws and other family members members residing in the adjoining rooms not coming to know of the same which appears to be unbelievable. There are also material contradictions in the testimony of the prosecutrix and also of her husband. In respect of the incident where the prosecutrix claims that her wrists had been slit by accused and one other person brought by him, her husband Dharambir in his testimony claims that he had taken his wife to a lady Bengali doctor in the area when he saw the cut injury on her wrist (details of which doctor have not come on State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 62 of 65 record). The prosecutrix on the other hand claims that she did not go to any doctor and had taken the treatment at home by putting some ointment available in the house itself. It appears to be improbable that such an incident could have happened without anybody in the family being seriously bothered about the same. There is also no independent witnesses examined by the prosecution either from the neighborhood or from the family of the prosecutrix herself to prove the incident.

(65) Further, the medical and the forensic evidence also does not support the claims of the prosecutrix. the MLC of the prosecutrix shows that there were cut marks on her wrist but it was given by the accused or was not self­inflicted by the prosecutrix on some other occasion, does not stand establish. As per the allegations the last act of rape was committed by the accused on 2.3.2011 whereas the prosecutrix had been medially examined on 6.3.2011 i.e. four days after the incident and therefore it is impossible that vaginal swab of the prosecutrix would show semen stains of the assailant. Further, the allegations of the prosecutrix that the accused Mool Chand had been threatening her, that he had made some obscene films belonging to her, does not stand established and substantiated since no obscene film has been recovered by the police. There is also a long delay in registration of the FIR which has not been sufficiently explained. (66) In so far as the compromise deed Ex.PW9/DX2 is State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 63 of 65 concerned, the prosecutrix has explained that the compromise deed was executed when Mool Chand was in Judicial Custody and his bail application had come up for consideration. Though she denies the contents of the compromise deed and has explained that she and her husband were threatened and pressurized to sign the compromise deed. Here, I may observe that both the prosecutrix and her husband are mature adults with Dharambir being involved in previous police case related to rape. She is aware of her rights, so much so that even the accused is her cousin brother which compromise deed she has signed on account of the pressure and threats executed by the accused and did not inform the police or to some authority or to the court when the bail application came up for hearing, which she has not done.

(67) In this background it is evident that the only material against the accused on record is the sole oral testimony of the prosecutrix which does not inspire confidence of this court. In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The material brought on record by the prosecution are insufficient to hold that the accused is guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a State Vs. Mool Chand, FIR No. 34/11, PS Bhalaswa Dairy Page 64 of 65 conclusive link connecting each individual circumstance with the other, and the accused Mool Chand. Crucially, the materials and evidence on record do not bridge the gap between "may be true" and must be true" so essential for a court to see, while finding the guilty of an accused.

(68) This being the background, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Mool Chand who is hereby acquitted of the charges under Section 506/376/376(2)(g)/377 Indian Penal Code. His surety stands discharged as per rules.

(69)          File be consigned to Record Room. 




Announced in the open Court                                (Dr. KAMINI LAU)
Dated: 7.2.2013                                          ASJ (NW)­II: ROHINI




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