Delhi District Court
Kaini Rajan vs State Of Kerala This Judgment Has Been on 4 October, 2016
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 99/2013.
State
Versus
Joginder Yadav
s/o Shiv Narayan Yadav
r/o Jhuggi No. C618, Chuna Bhatti,
Kirti Nagar, Delhi.
First Information Report Number : 19/2013
Police Station : Kirti Nagar
Under sections 376/506 of the Indian Penal Code.
Date of receipt of file after committal in : 25.04.2013.
the Sessions Court
Date of judgment :04.10.2016
JUDGMENT
1. Accused Joginder Yadav has been sent for trial for the offence punishable u/s 376/506 IPC on the allegations that on 19/01/2013 at about 9.30 a.m at jhuggi no. 596, Chuna Bhatti, Kirti Nagar, Delhi, accused committed rape on the prosecutrix (name mentioned in the file but withheld to protect her identity) and threatened her with dire
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consequences in case, she disclose the incident to anyone.
2. After hearing arguments, vide order dated 25/04/2013, accused was charged for offence under sections 376/506 of the IPC. Accused pleaded not guilty and claimed trial.
3. In evidence prosecution has examined 10 witnesses to prove the guilt of the accused.
4. PW1 HC Balbir Singh is the duty officer, who has recorded the FIR of the present case and proved the same as Ex.PW1/A.
5. PW2 is the complainant/prosecutrix of the present case.(name mentioned in the file but withheld to protect her identity). She has deposed that in the month of January 2013, at about 9.30am she was present in her house with her one year old daughter. Her husband had gone to his work at that time. She has three children. Her eldest daughter has gone for tuition and other son aged about 4 years was sent out by accused Joginder Yadav who came to her house on that date at about 9.30am. At that time, she was residing in Chuna Bhatti and the accused was also residing in the same locality. He forcibly entered into her jhuggi and closed the door from inside. He forced her to lie down on the floor and forcibly raped her. She tried to shout for help but he closed her mouth with his hand and threatened to kill her , if she raised alarm. While the accused was going out of her jhuggi, she injured him on the head
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with a knife. However he managed to escape. Then she went to the jhuggi of a neighbour & told about the incident to her, she immediately telephoned her husband and asked him to come home. Her husband returned home at about 10.10am. She along with her husband went to the PS and lodged the complaint. The complaint is Ex.PW2/A. She was taken to hospital for medical examination. At her instance, site plan (Ex.PW2/B) was prepared. The accused was arrested vide arrest memo (Ex.PW2/D) and his personal search was taken vide personal search memo (Ex.PW2/E. Her statement u/s 164 Cr.P.C ( Ex.PW2/G) was recorded by Ld Metropolitan Magistrate.
6. PW3 Shri Naresh Kumar Laka, Ld MM has recorded the statement of prosecutrix u/s 164 Cr.P.C., which is Ex.PW3/B.
7. PW4 HC Mahavir has deposed that on 20.01.2013 SI Vandana deposited ten sealed pulandas along with two sample seals with the seal of CMO DDU Hospital in Mal Khana. He had made entry of the same in register no.19 vide serial no.2112. The photocopy of the relevant entry is Ex.PW4/A. On 23.01.2013 six sealed pulandas along with two sample seals were sent to FSL Rohini through Ct.Sushil vide RC No.07/21/13. Ct. Sushil deposited the aforesaid pulandas at FSL office and handed over receipt of the same to him. Photocopy of the RC register is Ex.PW4/B and
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photocopy of acknowledgment is Ex.PW4/C.
8. PW5 Mr Rupan Sah is husband of the prosecutrix. He has deposed in detail about the incident & the fact of lodging the complaint in police station.
9. PW6 Dr Manjeet Kumar, has proved the MLC of accused which is Ex.PW6/A.
10.PW7 Dr Shalu has proved the MLC of prosecutrix as Ex.PW7/A.
11. PW8 Ct Sushil has deposited the pulandas in FSL vide RC No. 7/2113.
12. PW9 Ct Virender has joined the investigation of the case with the IO.
13. PW10 SI Vandana is IO of the case. She has deposed that on the intervening night of 19/20.01.2013 complainant, her husband Mr. Roopan Shah and Ms. Sarita, neighbour of complainant/prosecutrix came to PS and stated that Joginder Yadav had raped prosecutrix at about 9.30 am in her jhuggi. Witness prepared tehrir (Ex.PW10/X) & handed over the tehrir to the Duty officer for registration of the case. On the pointing of complainant, site plan was prepared by her, which is Ex.PW2/B. She apprehended the accused Joginder Yadav from his jhuggi. Thereafter, accused was arrested vide arrest memo Ex.PW2/D. She had prepared his personal search memo as Ex.PW2/E. The disclosure statement of accused also prepared, which is Ex.PW2/F. Thereafter,
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prosecutrix and accused were medically examined at DDU hospital. On 22.01.2013, statement u/s 164 Cr.P.C of prosecutrix was recorded by Ld M.M (PW3). On 23.01.2013, she along with Ct. Sushil took the exhibits from Malkhana and deposited the same to the FSL Rohini. After completion of the investigation, charge sheet was prepared and filed before the Court.
14. Thereafter prosecution evidence was closed.
15. Ld counsel for accused Sh Ashish Parkash has admitted the evidence of Ms Shashi Bala Pahuja, Sr Scientific Officer, FSL, Ms Magdleen Marin, hence these witnesses were not examined.
16. Thereafter, statements of accused u/s 313 Cr.P.C was recorded wherein he has denied the allegations. He has submitted that he has been falsely implicated in the present case. Accused had stated that he wants to lead evidence in defense.
17. DW1 Mr Chaman Lal is employer of the accused. He has deposed that in the month of December, 2012, accused got an assignment of delivery of goods outside Delhi and after returning back to Delhi, he had given Rs.20,000/ to the accused for sending the same to his father. He has further deposed that he did not get any complaint about work and conduct of accused.
18. DW2 Mr Gurudev Yadav is the neighbour of prosecutrix
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as well as accused. He has also deposed on the same lines as deposed by DW1 about the behavior of the accused.
19. DW3 Mr Mangal Yadav has deposed that he knows accused Joginder Yadav since his childhood and also know Mr. Rupan Sah for the last 67 years. In the month of March April, 2012 , he had sent an amount of Rs. 5000/ each to his native place through Mr. Rupan Sah, who was in the business of transferring the amount to the native place on a commission of Rs.5/ per 100. In the month of January, 2013 when he was at his native place, he came to know about the incident of rape through some villagers , whose relative were working in Delhi. Witness has further deposed that he never heard any complaint about accused Joginder Yadav's character from anybody.
20. DW4 Sh Kailash Yadav has deposed that he knows accused Joginder Yadav and Mr. Rupan Sah since their childhood. He came to know about the incident of rape through some villagers , whose relative were working in Delhi. He has also transferred some money through Mr. Rupan Sah to her native village on commission basis in the years, 2012. he took Mr. Santosh, one of the person who used to transfer money through him to his place and handed over Rs.4000/ to him to send to his native place. He had never heard any complaint about accused Joginder Yadav's character from anybody.
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21. I have heard arguments from Sh Ashish Parkash , Ld counsel for accused as well as from Sh Subhash Chauhan, Ld Additional P.P for the State.
22. During the course of arguments, it is argued by Ld counsel for accused that material witness ie Sarita Devi has not been examined in the present case and prosecution has not been able to prove the case beyond reasonable doubt against accused as there are many inconsistencies and contradictions in the statement of prosecutrix recorded on different stages. As regards the arrest of accused also, different place of arrest have been told by different witnesses; at one place it has been stated that accused was arrested from his house and other witnesses had stated that accused was produced by his employer in the PS and then he was arrested, thus it shows that false case has been filed by the prosecutrix against the accused.
23. As regards the commission of offence of rape, Ld counsel for accused has submitted that as per the MLC of prosecutrix, she has not suffered injury on her person, therefore, it cannot be said with certainty that prosecutrix was subjected to offence of rape and further, although it is alleged by prosecutrix that she had attacked accused with knife but no injury was found on the person of accused, hence it also falsifies the case of the prosecution, benefit of which should be given to the accused, therefore, accused be acquitted of the
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offence.
24. Written submissions have also been filed by Ld counsel for accused. In support of his arguments, Ld defense counsel has relied upon the following authorities:
1. (2013) 9 Supreme Court Cases 113
2. 2014 (10) SCALE 613
3. 2014 (13) SCALE 45
4. 2014 (1) SCALE 48
5. 2014 (1) SCALE 52
6. 2015 (10) SCALE 495
7. (2015) 7 Supreme Court Cases 272
8. 2014 (1) SCALE177
25. On the other hand, Sh Subhash Chauhan, Ld Additional P.P for State had submitted that prosecution has proved its case beyond reasonable doubt against the accused. Testimony of all witnesses is cogent & unshattered, during lengthy cross examination. Testimony of PW2 (prosecutrix) is corroborated by testimony of husband of prosecutrix (PW5) along with scientific evidence, ie result of FSL (Ex.X1), which clearly proves presence of semen of accused on the clothes of the prosecutrix. With these submissions, it is prayed by Ld Additional P.P that accused be convicted for the offences, he is charged with.
26. I have considered the arguments advanced by Ld counsel for the parties and gone through the file. I have also
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considered the relevant provisions of law. I have gone through the judgments relied upon by Ld counsel for accused.
27. In the present case, prosecution has tried to prove that accused had committed rape upon prosecutrix on 19/01/2013, while prosecutrix was alone at her house with minor daughter aged one year. The incident is alleged to be of morning time ie 9.30 a.m, whereas FIR in the present case had been lodged in the night. Ld counsel for accused had contested the case on the ground that there is delay in lodging the FIR and defense taken by accused was of two folds; firstly that accused had given some money to the husband of the prosecutrix for delivering the same to his native village as both accused as well as husband of prosecutrix belong to the same village. But same was not delivered by husband of prosecutrix to the family of accused and when accused demanded his money back, he was falsely implicated in present case. The other defense taken by accused is that there was consensual physical relationship established between prosecutrix and accused, one week prior to the alleged incident and in order to falsely implicate the accused, prosecutrix had given clothes, which she was wearing at the time of consensual relationship with the accused, thus FSL result has come against the accused.
28. Section 376 IPC provides punishment for the offence of rape. Section 375 IPC provides definition of rape. Section 375
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IPC provides that there has to be sexual relationship established between the parties and the important ingredients of the same is that said relationship should be either without consent of prosecutrix or against the consent of prosecutrix.
29. Section 114A of Evidence Act provides that absence of consent in the offence of rape is to be presumed in favour of the prosecutrix and it is for the accused to prove that relationship, which had taken place between accused and prosecutrix were with the consent of the prosecutrix.
30. Thus, it is the duty of the accused to prove his defense that there was consent at the time of relationship of the prosecutrix and himself and said consent was not obtained by force, fraud or coercion. In the present case, prosecutrix was examined as PW2 on 07/05/2013 and on the same day, her cross examination was concluded. But later, on 30/05/13, an application u/s 311 Cr.P.C moved on behalf of the accused was allowed by my Ld Predecessor and again on 19/07/13, prosecutrix was cross examined at length. In further cross examination conducted by ld defense counsel on 03/4/14, suggestion given to the prosecutrix was that accused had given Rs.15,000/ to her husband for sending the same to the native village of accused but husband of prosecutrix had mis appropriated the same and now in order to save her husband, accused has been falsely implicated in the present case by prosecution.
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31. Again cross examination of prosecutrix was closed on 03/04/14 and thereafter on 29/01/15 ie after almost one year of cross examination being concluded and when the matter was listed for defense evidence, an application was moved by Ld Additional P.P u/s 311 Cr.P.C for resummoning the prosecutrix in order to prove the case property of the present case. The application was again allowed by my Ld Predecessor vide order dated 29/01/2015 and now, when the prosecutrix was again recalled for examination in chief and cross examination, totally contrary suggestion was given to the prosecutrix by Ld defense counsel on behalf of accused. It was put to prosecutrix that she had physical relations with the accused with her free consent, about one week prior to the alleged incident, and when husband of prosecutrix came to know about her extra marital affair with accused, in order to save herself, a false case was registered against present accused. It was also suggested to the prosecutrix that "petticoat" which has been exhibited Ex.P1, is the same petticoat which she was wearing, one week prior to the alleged date, when she had physical relations with the accused with her consent. Need not to say that all these suggestions were denied by the prosecutrix at that time. Important point to be noted at this stage is that by this time, FSL result Ex.X1, and Ex.X2 had been received in the court, which is in favour of the case of the prosecution. In order to
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prove the case of offence u/s 376 IPC, prosecution has to prove that prosecutrix was raped by the accused and it is for the accused to prove that prosecutrix was consenting party. Delay in lodging the FIR
32. One of the major argument of Ld defense counsel had been that there is delay of about 12 hours in lodging the FIR and thus the case of the prosecution is false. Considering the testimonies of PW2 & her husband PW5, it is clear that there was no delay in lodging the FIR and even if there was any delay, it has been sufficiently explained by husband of prosecutrix and as per the explanation tendered by PW2 and PW5, the delay appears to be natural, hence it cannot be said that there was any unnatural delay in lodging the FIR or delay could be attributed to the false implication of the case.
33. As regards delay in lodging the FIR, it has been stated by PW5, husband of prosecutrix that after coming to know about the incident, he had inquired from his wife and thereafter immediately contacted Pradhan of jhuggies, who had assured him that he will call the accused to inquire as to why he had committed the offence. It is further clarified by PW5 that he waited till 5 p.m for the response of the Pradhan of jhuggies but when no response was given by Pradhan, PW5 contacted the beat Police Booth and reported the matter to the police and finally the FIR was registered in the night of 19/20012013. It is quite natural in the society
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to which PW2 and PW5 were belonging, that when any offence is committed in the society, members of the society will contact the Pradhan of that area and will try to get the matter solved by the intervention of the Pradhan. In this case also, similar action was taken by PW5 by reporting the matter to Pradhan but when no response was given by Pradhan, he immediately took action and reported the matter to the police. No infirmity can be read in the action of PW5 in reporting the matter, firstly to Pradhan of jhuggies and only thereafter to police. Therefore, I am of the opinion that firstly there was no delay in lodging the FIR & if at all, there was any delay, same has been explained by PW5, husband of prosecutrix.
34. Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the
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Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
35. As regards the incident, there is no suggestion given from the side of accused that no such incident had taken place. In cross examination of the prosecutrix conducted on 24/08/15, accused had tried to prove that there was some friendly relationship or extra marital affair between the prosecutrix and accused. This was the completely new story, tried to be built up by the accused, only after the FSL result was received in the court. Prior to that, it has not been stated by accused that there was any extra marital affair between the prosecutrix and accused and thus, this defense taken by the accused appears to be after thought & only taken to circumvent the FSL result EXX1 and is thus not reliable.
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36. Coming to the incident as alleged by prosecutrix, on specific question about the offence about the manner of commission of offence, prosecutrix had specifically stated in her cross examination conducted on 19/07/13 that " I had told the Ld MM that the accused had insulted me (Baijat Kiya) and had explained the meaning of "Baijatee" while saying that he had put his private part in my private part. I had told the Ld MM "Usne meri saari/kapde ko ooper utha diya aur apni pent utaar li phir mere peshaab karne wali jagah par apne peshaab karne wali cheez daali".
37. After that, no suggestion has been given to the prosecutrix that accused has not committed rape against her or that accused has never made physical relations with the prosecutrix. The statement of the prosecutrix inspire confidence. All the questions put to her in cross examination have been answered by her cogently. It has been specifically stated by prosecutrix that accused had run away after committing the offence. Testimony of PW5, husband of prosecutrix corroborates the testimony of PW2 as he has stated that while going for the work in the morning, accused had met him and he had asked whether PW5 was going for his work or not, which shows that accused had ascertained the absence of the husband of prosecutrix at the time of offence in jhuggi. It is also clear from the testimony of PW2 ( prosecutrix) that accused had sent minor son of prosecutrix
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for buying biscuit, which also supports the commission of offence by the accused.
38. The commission of offence of rape has been sufficiently explained by the prosecutrix. Testimony of prosecutrix is corroborated by the testimony of PW5 and FSL result, which proves that the DNA profile generated from the source of exhibit '1' (petticoat of victim) was found similar to the DNA profile generated from the source of exhibit '6' (blood stained gauze piece of accused).
39. Now I will discuss the judgments relied upon by Ld defense counsel.
40. The judgment (2013) 9 Supreme Court Cases113 Kaini Rajan vs State of Kerala this judgment has been relied upon by Ld counsel for accused in favour of the defense. However on consideration of the judgment, it is apparent that the judgment supports the case of the prosecution. Firstly because case of Kaini Rajan vs State of Kerala is dealing in respect to the consent under mis conception of facts whereas the prosecutrix was promised to marry. Where in the present case, there is no misconception of facts. There is no allegation of the prosecutrix that she was promised by the accused to marry her. Rather this case supports the case of the prosecution as in this case Hon'ble Supreme Court has categorically held that on the sole testimony of prosecutrix if it is reliable, conviction can be
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passed.
41. In the case (2013) 9 Supreme Court Cases113Kaini Rajan vs State of Kerala Hon'ble Supreme Court has held that "conviction can be based on the sole testimony of prosecutrix if her version does not arouse doubt in mind of court. When facts and circumstances cast a doubt on the veracity of the prosecution case. It would be unsafe to convict the accused relying on uncorroborated version of prosecutrix". Though this judgment has also been relied upon by the accused to stress that conviction of accused can not be based on sole testimony of prosecutrix. But this judgment rather supports my view by saying that conviction can be based on sole testimony of prosecutrix if it does not arouse doubt in the mind of court. In view of my above discussion, it is clear that testimony of prosecutrix is categoric, unambiguous, specific & unshattered, hence appears to be fully reliable.
42. In the case 2014 (10) SCALEMunna vs State of M.P., also it was held that evidence of the prosecutrix can be acted without corroboration. In that case before Hon'ble Supreme Court, there was enmity between the husband of the prosecutrix with the appellantaccused and considering the facts and circumstances, Hon'ble Supreme Court was of the opinion that there was doubt about the correctness of the prosecution version. However, in the present case, there is no
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enmity between the prosecutrix husband or accused nor there is any allegation of there being any relationship between the accused and husband of the prosecutrix. However, in the present case, contrary defense has been taken by the accused, which itself falsifies the case of the accused.
43. Other case, 2014(13) SCALEManohar Lal vs State of M.P as relied upon by Ld counsel for accused, this judgment is in respect to the fact that if the version of the prosecutrix is found to be improbable, it is difficult to be accpeted on its face value. However, this case also does not apply to the facts of the present case. As per my above discussion, it is clear that testimony of prosecutrix coupled with the testimony of her husband lends credibility to the case of the prosecution, hence is reliable.
44. As regards case 2014 (1) SCALE48 Hem Raj vs State of Haryana facts of this judgment can be differentiated from the facts in hand as in the case before Hon'ble Supreme Court prosecutrix was declared hostile by Ld Additional P.P and therefore her version was not relied upon. Whereas this is not the scenerio in the present case.
45. Similarly other judgments as relied upon by Ld defense counsel do not apply to the facts of the present case as in the present case prosecutrix had cogently explained the commission of offence by the accused and her testimony remained unchallenged during lengthy cross examination. No
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ground has been proved by the defense, due to which, testimony of prosecutrix could be disbelieved.
46. Hence , I am of the opinion that sole testimony of the prosecutrix is sufficient enough to convict the accused as there is no infirmity or inconsistencies in the testimony of prosecutrix. The inconsistencies as mentioned by Ld defense counsel in respect to the presence of minor son of prosecutrix and place of arrest of accused are some of inconsistencies, which are very minor and trivial in nature, which does not affect the root of the case as such. It is important to consider that after the commission of offence, prosecutrix might not have been in the physical or mental situation to understand whether the minor son had entered the room after the accused had run away or before the accused had run away from her jhuggi. Also no specific question in this regard had been asked by Ld defense counsel in cross examination of PW2. As regards the place of arrest of accused, I am of the opinion that testimony of PW5 clearly proves that employer of the accused had produced him in the PS & accused was arrested. The place of preparation of document regarding arrest and personal search could be confused by the person ie PW2 and PW5, who are lay man and therefore, they may not be in a position to understand the nature of question being put to them. Even otherwise, these inconsistencies or contradictions are not fatal to the
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case of the prosecution.
47. As regards the defense evidence, accused has examined four D.Ws. All of them have stated that they have never heard any wrong against the behavior of accused, I am of the opinion that testimonies of all the DWs does not prove that accused had not committed the offence of rape. It might have been first case of the accused but that does not diminish the point that accused had committed offence in the present case. Testimonies of these witnesses do not inspire confidence in the present case as they were neither present at the spot, when the incident had taken place nor witnessed the incident and their testimonies are only hear say evidence. These witnesses can only be considered to be witness to the fact that husband of prosecutrix used to take commission for sending money to the native village of these people, as only he had a bank account. But, this, in itself does not prove that no offence was committed by accused.
48. The two way defense taken by accused in present case has actually proved fatal for him. Although, the first defense taken by accused was that since husband of prosecutrix (PW
5) had refused to return his Rs.15,000/, prosecutrix had falsely implicated the accused, in order to save her husband. But this defense has not been proved by the accused. None of DW examined by accused had stated that any money was given by accused to the PW5, or that there was any dispute
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between PW5 and accused in respect to money. Thus, it cannot be accepted that, there was any money transaction between PW5 and accused or that there was any dispute between them due to nonrefund of money by PW5, which could have been the reason of false implication of accused.
49. On the other hand, second defense taken by accused is contrary to the first defense. In further cross examination of PW2, it was alleged by Ld defense counsel that there was an extramarital relation between PW2 & accused and when husband of prosecutrix ie PW5, came to know of this, present FIR was lodged by PW2. In order to explain the FSL result, it has been tried to be established by Ld defense counsel that one week prior to the alleged incident, prosecutrix and accused had established physical relations with consent, & the Petticoat, Ex.P1, is the same which prosecutrix was wearing at that time and later when her husband came to know of their relations, same petticoat was given by PW2 to the police & thus the FSL result came positive.
50. However, there is no explanation given by Ld defense counsel on the point, as to why, PW2 will preserve her petticoat for one week? If there were extra marital relations between PW2 & accused, then why she would keep that petticoat? It is also important to appreciate that if samples are not taken within 24 hours of alleged physical relations, then it is not possible to detect the semen or to get the DNA profile
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generated from the samples of prosecutrix. Thus, it would not have been possible to extract the sample or generate DNA profile from a sample, which is more than seven days old. It is scientifically not possible. Thus, the defense taken by accused, appears to be sham defense and thus cannot be accepted.
51. In view of my above discussion, I am of the opinion that prosecution has proved its case beyond reasonable doubt that acused Joginder Yadav had committed rape upon prosecutrix and threatened her for dire consequences. Hence the accused Joginder Yadav is convicted for the offence u/s 376/506 IPC.
Announced in the open Court on (SHAIL JAIN) this 4th October , 2016 Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
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