Delhi District Court
Sc No. 06/13 State vs Brijesh Etc. Page No. 1 Of 20 on 29 April, 2014
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0216512012
SESSIONS CASE NO. 06/13
FIR NO. 174/12
POLICE STATION : SANGAM VIHAR
UNDER SECTION : 376 IPC
STATE
VERSUS
1. BRIJESH
S/O SH. RAM NARESH,
R/O G10/147, SANGAM VIHAR, NEW DELHI.
2. RAJESH
S/O SH. LAL SINGH,
R/O J2B/4/49, SANGAM VIHAR,
NEW DELHI.
(ACCUSED RAJESH IS PROCLAIMED OFFENDER )
DATE OF INSTITUTION : 08.08.2012.
DATE OF RESERVING ORDER : 15.03.2014.
DATE OF DECISION : 29.04.2014.
J U D G M E N T
Case of Prosecution:
1. Brief facts of the prosecution case are that on 10.05.2012 on SC No. 06/13 State Vs Brijesh etc. Page No. 1 of 20 receiving DD NO. 28A SI Brahm Dutt reached at the spot where Sushila met them and stated that her daughter namely 'X' (name withheld to keep her identity confidential) was kidnapped by Brijesh who runs a shop in front of her shop. Prosecutrix was searched and was found at Pahari Wali School G Block. Prosecutrix was brought to police station and NGO Garima was called for counseling the prosecutrix. W/ASI Kanchan Mala recorded the statement of prosecutrix 'X' who stated that she was studying in 8th class when her mother stopped her studies. She used to go to her mother's shop. Accused Brijesh used to run a shop near her mother's shop. They started talking to each other and she fell in love. Accused Brijesh took her to a park and made physical relations with her. She stated that two years back her brother Rajesh had also committed wrong act with her two three times. Three months back her mother took her to village Raibareili, UP and left her there with her chachi and grandmother.
After some time, her mother brought her back to Delhi. Her mother had beaten her and also told her younger brother to lock the house. She managed to escape from the house and called accused Brijesh at Neem Chowk. Accused Brijesh told her to return to her house. But she did not return and went to her friend's house namely Divya at J2, Block and stayed there for 23 hours. Thereafter in the evening police came with her younger brother Nitesh and recovered her from near G Block Pahari Wali School and brought her to police station. On the statement of prosecutrix case was registered. Prosecutrix was medically examined at AIIMS hospital. Accused Brijesh was arrested and was medically examined at AIIMS Hospital. Exhibits were collected by the police. Age certificate of prosecutrix was collected from the school wherein her date SC No. 06/13 State Vs Brijesh etc. Page No. 2 of 20 of birth was mentioned as 12.02.1997. Prosecutrix statement was got recorded under section 164 Cr. P.C. NBWs of other accused Rajesh were taken on the statement of prosecutrix but could not be traced till date. Process under section 82/83 Cr.P.C were issued. Exhibits were sent to FSL for examination. Mother of prosecutrix 'X' namely Sushila was kept in the column 12. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 376 IPC was filed against the accused Brijesh in the court.
2. Since the offence under Section 376 IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3. Prima facie case under Section 376 IPC was made out against the accused Brijesh. Charge under Section 376 IPC was framed upon the accused Brijesh to which he pleaded not guilty and claimed trial. Accused Rajesh has already been declared proclaimed offender. Vide order dated 25.02.2013 supplementary challan of accused Rajesh was received by way of assignment and attached and tried with main case. Witnesses Examined:
4. In support of its case, prosecution has examined thirteen witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
5. PW3 is prosecutrix 'X' who deposed that her mother used to SC No. 06/13 State Vs Brijesh etc. Page No. 3 of 20 sell clothes in her shop at I Block, Sangam Vihar and she used to visit there. Accused Brijesh used to sit on a shop towards the other side of the gali opposite their shop. They started talking each other which resulted into love affairs. They also used to go for outings. About 1 year back, accused took her to a park and committed rape with her. She again stated in her examination that in the year 2012 she was studying in 8th class at Neem Chowk, Devli. Her mother was running a shop at Peepal Chowk.Accused used to ran a shop in front of their shop. One day accused asked her that her mother was calling her at Neem Chowk so she accompanied him. He took her to a park where he forcibly committed rape with her. She shouted a lot when the accused was committing rape but there was nobody available to help her. Thereafter she came back alone in an autorickshaw and narrated the incident to her mother. Police recorded her statement Ex.PW3/A. In the year 2012 the brother and bhabi of accused Brijesh took her and her mother to Kalkaji Mandir. Her mother fell ill and admitted in National Hospital in Sangam Vihar. Thereafter, the brother and bhabi of accused took them to their house and at the house of accused Brijesh, the bhabi of accused Brijesh put sindoor in her forehead and also worn chutki (bichiya) into her foot finger. One girl present there took the photographs through mobile phone. Thereafter, she left for the hospital for taking care of her mother. In the evening her mother got discharged from the hospital so she returned with her to her house. During the investigation police arrested the accused. At the time of lodging of FIR, she was sent to the hospital for medical examination by the police and thereafter she was taken to Prayas where she remained for two days. She was also produced before the Ld.MM and SC No. 06/13 State Vs Brijesh etc. Page No. 4 of 20 gave statement Ex.PW6/B. The said statement was recorded by the Ld. MM one year before in the month of May. During examination, the witness turned hostile. Ld. APP for the state has cross examined the witness as she turned hostile but nothing material came out in the examination.
6. PW9 is ASI Kanchan Mala who deposed that on 10.05.2012 upon receipt of DD No. 28A he along with SI Brahm Dutt reached at the spot i.e. J2B, Gali No.4, H.No. 49 where the mother of the prosecutrix namely Smt. Sushila met them and narrated the incident. They made efforts to locate the Sangeeta who could be found at GBlock, Pahariwala School, Sangam Vihar late in the night. They brought her to police station, examined her and recorded her statement. She called up the NGO officials from NGO Garima. She prepared rukka Ex.PW9/A and got the case registered. She alongwith lady constable Manoj took the prosecutrix to AIIMS Hospital and got her medically examined. Her mother had also accompanied to the hospital. After medical examination, the doctor handed over two pullandas duly sealed with the seal of hospital along with sample seal to L/Ct. Manoj who produced the same to her and she seized the same vide memo already Ex.PW4/A. Prosecutrix was lodged in Prayas. On 11.05.2012 they brought the prosecutrix from Prayas but her statement under section 164 Cr.P.C could not be recorded as Ld. MM was on leave and same could be recorded on 14.05.2012. She produced the prosecutrix before CWC on 15.05.2012 and by the order of CWC she was handed over to her mother. Further investigation was then transferred to SI Sushma Yyagi.
7. PW10 is Inspector Sushma Tyagi, who deposed that on SC No. 06/13 State Vs Brijesh etc. Page No. 5 of 20 08.06.2012 she was entrusted the investigation of the case. On 22.06.2012 she came to court for getting the judicial custody of the accused extended along with IInd IO/SI Brahm Dutt. Process under section 82/83 Cr.PC was procured against accused Rajesh, brother of prosecutrix and was got declared proclaimed offender after execution of the process. She prepared the charge sheet and submitted the same before the court. Accused Brijesh was correctly identified by the witness in the court.
8. PW12 is SI Brahm Dutt who deposed that he reached at the spot, recovered the prosecutrix, arrested the accused, got the accused medically examined, collected the pullanda sealed with the seal of hospital along with sample seal and deposited the case property in Malkhana. His statement was recorded by the IO. Accused was correctly identified by the witness and proved the exhibits on record.
9. PW13 is SI Rakesh Kumar who recorded the formal FIR, proved the computerized print out of the FIR on record Ex.PW13/A and after the registration of the FIR, handed over the rukka and copy of FIR to SI Brahm Dutt, IO of the case. He proved endorsement on rukka Ex.PW13/B. Formal Witnesses:
10. PW1 is Sh. Ramji Lal, TGT Social Science, Govt. Girls Sr. Secondary School, Sangam Vihar, New Delhi who had brought the pasting file consisting of admission form, the affidavit and have also brought the admission register. He stated that as per record prosecutrix 'X' was admitted in the school on 03.06.2009 in 6th class and the entry SC No. 06/13 State Vs Brijesh etc. Page No. 6 of 20 was made in the admission register vide no. 10798 and as per the record, date of birth of prosecutrix is 12.02.1997. He has duly proved the photocopy of admission form Ex.PW1/A, photocopy of affidavit Ex.PW1/B, photocopy of admission register containing the relevant entry Ex.PW1/C bearing the signature and seal of Principal Smt. Manju Aggarwal whose signatures were correctly identified by PW1.
11. PW4 is L/Ct. Manoj who deposed that on the intervening night of 10/11.05.2012 she was called at PS Sangam Vihar where the prosecutrix 'X' met her. Her counseling was done by the NGO officials and thereafter she was medically examined at AIIMS Hospital. The doctor handed over two pullandas sealed with the seal of hospital along with the sample seal to PW4 which she produced before the IO. IO seized the same vide memo Ex.PW4/A. Thereafter, prosecutrix was taken to Prayas NGO and got her lodged there. Her (PW4) statement was then recorded by the IO of the case.
12. PW5 is Ct. Rakesh who stated that on 11.05.2012 investigation officer had had interrogated the accused Brijesh in the police station and arrested him vide arrest memo Ex.PW5/A, conducted his personal search vide personal search memo Ex.PW5/B and recorded his disclosure statement and his statement to this effect.
13. PW6 is Ms. Preeti Parewa, Metropolitan Magistrate, who had recorded the statement of prosecutrix under section 164 Cr.P.C and had proved on record Ex.PW6/A to Ex.PW6/D.
14. PW7 is Ct. Subhash on 11.05.2012 he along with IO/SI Brahm Dutt and Ct.Vinod took accused Brijesh to AIIMS Hospital and got him medically examined. Thereafter, the doctor in the hospital SC No. 06/13 State Vs Brijesh etc. Page No. 7 of 20 handed over pullanda duly sealed with seal of hospital along with sample seal which was taken into possession by the IO vide seizure memo Ex.PW7/A and recorded his statement.
15. PW8 is Ct. Dhanpal who deposed that on 21.05.2012 on the instructions of IO, he collected the exhibits of the present case in sealed condition from MHCM , PS Sangam Vihar vide RC NO. 86/21/12 and deposited the same in FSL, Rohini and gave back to MHCM. Same was not tempered with till the same remains in his possession and his statement was recorded by the IO.
Medical Witnesses:
16. PW2 is Dr. Deepak Prakash who deposed that he had medically examined the accused/patient, prepared detailed MLC and proved the same vide Ex.PW2/A. He further opined that there is nothing to suggest that the person examined is incapable to perform sexual intercourse under normal circumstances. He stated that he collected the blood in gauze and sealed the same with the seal of hospital and handed over to the police along with the sample seal.
17. PW11 is Dr. Tsering Wangdi who deposed that he had medically examined the prosecutrix and prepared the detailed MLC Ex.PW11/A and upon examination found multiple old hymen tears. During the course of medical examination PW11 collected three vaginal smears and one blue undergarment and sealed the same with the seal of hospital and handed over to the police along with sample seal. Statement and Defence of accused :
18. Statement of accused under Section 313 Cr.P.C was recorded SC No. 06/13 State Vs Brijesh etc. Page No. 8 of 20 wherein the accused denied the case of the prosecution and stated that it is a false case registered against him at the instance of mother of the prosecutrix. The mother of the prosecutrix had taken a loan of Rs. 10,000/ from him. When he asked the mother of the prosecutrix to return the same she called the police and got him falsely implicated in this case. Police had taken him to the police station on the pretext of making enquiry and got his signatures on 810 papers by intimidating him. Later on he came to know that mother of prosecutrix is in the habit of making false accusations against several persons in the past. Accused further stated that he does not wish to lead defence evidence.
19. I have heard the Ld. Defence counsel for the accused and Ld. APP for state and have carefully perused the record. Arguments of Ld. APP for state:
20. It is argued by the Ld. APP for the state that rape is made out in view of the statement of the prosecutrix. She has levelled specific allegations of rape. Minor contradictions in the time or place of occurrence or the number of times rape was committed does not discredit her testimony. Hence, accused be convicted.
Arguments of Ld. Defence Counsel for accused:
21. It is argued by the counsel for accused that time, place and manner of occurrence are the essence of criminal trial. If any of the ingredients is missing, doubt is created. It is stated that the charge is framed in this case with regard to the rape in the house of the prosecutrix but as per her deposition the rape was committed in the park. In her statement on 13.02.2012 she accepts her love affair with the accused. Her SC No. 06/13 State Vs Brijesh etc. Page No. 9 of 20 statement is full of contradictions with regard to the time and date and the duration and number of times when the rape had been committed upon her. There are other contradictions also in the statement. She has also levelled rape allegations against her brother in the statement given to the police. In her deposition before the court on 27.04.2013 she has put up a new story against the brother and bhabi of the accused. Brother of the prosecutrix is also an accused but he is proclaimed offender in this case. It is also argued that DNA has not matched with the accused. The photographs placed on record show that she is a married girl and her age mentioned as 15 years in the school record is false. Hence, it is stated that seeing the contradictions the accused be acquitted. Ld. Counsel for accused has cited the following judgments :
1. Narender Kumar Vs State of NCT of Delhi 2012 (5) LRC 137 (SC).
2. Raj Kumar Singh @ Raju @ Batya Vs State of Rajasthan 2013 (5) LRC 165 (SC).
3. Sujit Biswas Vs State of Assam 2013 (5) LRC 133 (SC).
4. Mohd. Faizan Ahmad @ Kalu Vs State of Bihar 2013 (1) LRC 82 (SC).
5. State Vs Anil Kumar 2012 (7) LRC 16 (Del)(DB).
6. State Vs Anwar Hussain 2012 (4) LRC 310 (Del)(DB).
7. State Vs Vicky and Others 2012 (6) LRC 177 (Del).
8. Devu Samal Vs State 2012 (1) LRC 240 (Del).
9. Ram Babu Vs State 2013 (4) LRC 191 (Del).
10. Rajesh Patel Vs State of Jharkhand 2013 (4) LRC 14 (SC)
11. Mumtaz Vs State (Govt. of NCT of Delhi) 2013 (5) LRC SC No. 06/13 State Vs Brijesh etc. Page No. 10 of 20 345 (Del)
12. K. Venkateshwarlu Vs State of Andhra Pradesh 2012 (8) LRC 12 (SC)
13. Rai Sandeep @ Deepu & Another Vs State of NCT of Delhi 2012 (8) LRC 210 (SC).
Conclusion:
22. Before appreciating the facts of this case,it is necessary to know the ingredients of the offence by resorting to the provisions of sec.375 read with sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and SC No. 06/13 State Vs Brijesh etc. Page No. 11 of 20 consequences of that to which she gives consent.
Sixthly With or without her consent, when she under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
23. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
24. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
25. The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether she SC No. 06/13 State Vs Brijesh etc. Page No. 12 of 20 was a consenting party to the incident or not.
Age of the prosecutrix:
26. As per the case of prosecution, prosecutrix was 15 years of age at the time of incident as per the school record. Though, the school record is not based on any date of birth certificate but the school record is treated as authentic proof of date of birth. The accused could not produce any document to contradict the school record, hence as per record the prosecutrix is proved to be minor.
Consent of the prosecutrix:
27. The most material witness to prove the offence of rape is the prosecutrix PW3 'S' herself. I have seen the testimony of the prosecutrix which is full of contradictions. PW3/prosecutrix has turned hostile and has not supported the case of the prosecution and was cross examined by the Ld. APP for the state.
28. It is settled law decided in catenna of judgments by Superior Courts that the court while evaluating facts of the case is supposed to form opinion about the credibility of the witness examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion about the credibility of the witness. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes following ways in which the evidence of a witness can be termed unreliable:
a) the witness statement is inherently improbable or contrary SC No. 06/13 State Vs Brijesh etc. Page No. 13 of 20 to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and,
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
29. The statement of prosecutrix was firstly recorded on 13.12.2012 when she had stated that the accused used to sit in a shop towards the other side in the gali opposite to their shop. She also stated that they started talking to each other which resulted into love affair and used to go for outings. She stated that about one year back from now the accused took her to park where he committed rape with her. After her part examination in chief on 13.12.2012, she took adjournment as she was not feeling well. She was again examined on 25.02.2013 when she had given an new statement that one day the accused asked her that her mother is calling her at Neem Chowk so she accompanied him. On this pretext, the accused took her to a park where he forcibly committed rape with her. She further submitted that she shouted a lot when the accused was committing rape but there was nobody available to help her. Thereafter, she alone came back on a rickshaw and narrated the incident to her mother and her mother took her to the police station where police recorded her statement Ex.PW3/A. She was further examined on 27.04.2013 in the court when she had turned hostile. In the said SC No. 06/13 State Vs Brijesh etc. Page No. 14 of 20 statement also she had given a new story to the effect that in the year 2012 brother and bhabi of accused took her and her mother to Kalkaji Mandir. Suddenly her mother was not feeling well so she was admitted to National Hospital, Sangam Vihar. Thereafter, the brother and bhabi of accused took them to their house and at the house of accused bhabi of accused put sindoor in her forehead and worn chutki into her foot finger and another girl took photographs from mobile phone. Thereafter, she left for the hospital from where her mother was discharged and thereafter they returned to their house. This story as putforth by the prosecutrix on 27.04.2013 was never disclosed by her in her statement to the police or to the magistrate. During her cross examination various suggestions were put to the prosecutrix wherein she has denied that initially she started taking with the accused and then she fell in love with him. She has also denied of making any statement of leaving the house by jumping the back wall and gone to the house of her friend namely Divya. She has stated that statement made to the magistrate on the point of love affair was made under the pressure of police. She has also stated in her cross examination that : " It is correct that I had stated in my statement under section 164 Cr.P.C that accused Brijesh used to call me daily and at one time, accused Brijesh came to my school and took me in the park where he removed my clothes and committed wrong act with me so, there was bleeding. Thereafter, he left from there after dropping me at Beer Bazar. (Vol. Said fact stated to the MM under pressure of the police) . It is correct that accused committed rape with me without my consent in the park. It is correct that I had stated in my statement under Section 164 SC No. 06/13 State Vs Brijesh etc. Page No. 15 of 20 Cr.P.C that I returned to my home after 7/8 days. We again went to the park and returned after talking then, we reached our respective houses then, Brijesh called me and told "I Love You" on one occasion, my mother caught me while talking with Brijesh on telephone. Thereafter she was angry and scolded to Brijesh but he continued to ring me up. After 2/3 days Brijesh called me at Neem Chowk through telephone and told that if any case is registered, allegations be made against my brother. I stated the said fact to the Ld. MM under the pressure of police. It is correct that I had stated in my statement under section 164 Cr.P.C that on 15.03.2012 my mother, father and brother went to Chattarpur because of ill health of my grandfather. At that time, I was alone in my house and Brijesh came at night in my house and he committed wrong act with me then, he left from the house at about 4 AM . (Vol. I made the said statement to the magistrate under the influence of the police. The accused never came to my house nor committed wrong act with me on 15.03.2012. ). It is correct that I had made the statement to the magistrate that on 16.03.2012 at about 9 AM my dada was expired. So, we all went to our village Raibareli. It is correct that I had made the statement to the magistrate that the accused used to telephone me in Raibareli after three days of returning from our village. Brijesh called me at Peeple chowk and then he left from there after five minutes. Again, after three days, I was called at Veer Bazar by Brijesh where I took food in a hotel and then Brijesh left from there and I returned from there. On that day, in the evening my mother slapped me then, I left from my house in the morning and called Brijesh while making call from STD shop at Veer Bazar who instructed me to go back to my house. While going SC No. 06/13 State Vs Brijesh etc. Page No. 16 of 20 towards my house, my friend Divya met me on the way then, I stated at the house of Divya for about 3 hours. After returning from the house of Divya, I again called Brijesh from Budh Bazar but said call was picked up by the police and they called me at Pahari Wala School and then, they took meto the police station. (Vol. I had stated all these facts under pressure of the police. Accused Brijesh committed rape with me only once in the park against my wishes. )"
30. The above extract of crossexamination of prosecutrix show that there are several contradictions, additions and omissions in her statement before the court from her statement as given to Metropolitan Magistrate under Section 164 Cr.P.C and even to the police. During her cross examination by defence counsel she admitted that she has made the statement to the police that her brother Rajesh has also committed forceful rape 23 times about 1 ½ years back and again stated that the statement was made under the pressure of police. She also stated that she made the statement to the police that she disclosed about the forceful rape by her brother to her mother who instead of scolding her brother, scolded her. She again stated that this fact also made under the pressure of police. When specifically asked about the contradictions between her two statements recorded in the court first on 27.04.2013 wherein it is deposed by her that she reported the matter of rape by the accused to her mother who took her to the police station and second statement recorded on 13.12.2012 when she stated in court that the rape was committed by the accused 1 year prior, she has stated that the accused had committed rape with her two days prior to making of complaint to the police. She denied that she had stated that the accused had committed rape with her 1 year SC No. 06/13 State Vs Brijesh etc. Page No. 17 of 20 prior to the lodging of complaint or 34 months prior to lodging of complaint. She was again specifically asked by the defence counsel that: " Q. I put it you that in your statement to the magistrate, you have stated that after committing rape with you, the accused had left you at Veer Bazar, however, in your statement made to the court on 25.02.2013, you had stated that you were left alone by the accused at the park from where you took an auto and came to your house. Which of your statement is correct?
Ans. My statement made to the court on 25.02.2013 in this regard is correct."
31. She has stated that when she went to the police station she was wearing the same clothes which she was wearing at the time of incident and the police had seized the said clothes. However, she has also stated that the factum of rape by her brother was told by her in fear. During her cross examination, she has further stated that she never went to the house of the accused before the alleged date of incident but after the incident his Bhabhi had took her. She was made to wear Saree, Chutki and her photographs were clicked by a girl at the house of accused. If she was forcibly raped by the accused in the park, why she accompanied bhabhi of the accused to the house of accused after incident and why she wore Saree and Chutki and why she did not report the factum of rape to anybody. This conduct is against normal human behaviour. As per her statement in court, she was raped only once by the accused in the park but her MLC shows multiple old hymen tears. She has also named her brother as a culprit in this case but if he was named under some pressure of police, why she did not disclose this fact to SC No. 06/13 State Vs Brijesh etc. Page No. 18 of 20 Metropolitan Magistrate and why she did not make any complaint anywhere. If she was raped in park which is a public place, it is not believable that if she shouted for help, nobody was there to help her. Hence, various contradictions, exaggeration, omissions, additions made by the prosecutrix in her statement in the court makes her testimony doubtful. All these contradictions in the statement of the prosecutrix show that time and again she had improved upon her testimony and her testimony is full of contradictions. She is also been declared hostile by the prosecution. To rely upon her retracted and contradictory statement, there should be some other corroborative piece of evidence but no corroboration is available on record.
32. As per the result of DNA report, no male DNA profile has been generated from the source of undergarments of the prosecutrix or from the vaginal smear and as such, blood in guaze of the accused could not be processed for DNA. The MLC of the prosecutrix also show that there are multiple old hymen tears and vagina admits one finger easily. No blood or external injury was found hence the statement of the prosecutrix that she was raped by the accused one or two days prior to the incident or that on the very same day of incident she was taken to the hospital is not proved from her medical examination. Hence, the testimony of prosecutrix is full of contradictions and is not reliable and trustworthy nor the same is supported by DNA result. Her wavering statements to police and to the court, making allegations against her brother also makes her testimony unreliable. From the testimony of the prosecutrix it is not proved that she was raped by the accused. Hence, giving benefit of doubt to the accused, accused Brijesh is acquitted of the SC No. 06/13 State Vs Brijesh etc. Page No. 19 of 20 offence under section 376 IPC.
33. In view of the Section 437A of Cr.PC, accused Brijesh is directed to furnish bail bond in a sum of Rs. 20,000/ with one surety of like amount for the period of six months with the condition that he shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT ON 29.04.2014.
( RENU BHATNAGAR )
DESIGNATED JUDGE
TADA/POTA/MCOCA
ASJ SE01/NEW DELHI
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