Delhi District Court
State vs . Sandeep on 29 May, 2015
1
FIR No. 35/13
PS - Jahangir Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 236/13
Unique ID No. : 02404R0131172013
State Vs. Sandeep
S/o Late Shri Richpal Singh
R/o A - 1467, Jahangir Puri,
Delhi.
FIR No. : 35/13
Police Station : Jahangir Puri
Under Sections : 376/328/417 IPC
Date of committal to session Court : 09/05/2013
Date on which judgment reserved : 21/05/2015
Date on which judgment announced : 29/05/2015
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 43 2 FIR No. 35/13 PS - Jahangir Puri report under section 173 Cr.P.C. is as under : That on 06/02/2013 prosecutrix (name withheld being a case u/s. 376 IPC), D/o Mohd. KurshidKurshid R/o D1733, Jahangir Puri went to PS - Jahangir Puri and met WSI Rakhi, who was inquired into by SI Rakhi and the prosecutrix made a statement which is to the effect that, she lives at the above address on rent with his family and for about last five years she knows Sandeep, S/o Late Richpal, R/o A1467, Jahangir Puri and her friendship with him is going on for the last five years. One day in November, 2007 Sandeep on his bike came in EE Block Paryas, where she used to take coaching of dress making, from there Sandeep took her with him to Sant Nagar, Burari, Delhi and took her in a room, where he made her drink tea, after taking tea she started feeling unconsciousness and in her unconscious state Sandeep established physical relations with her and in the unconscious condition she was feeling the same but due to being in an intoxicated state she was not able to resist. After about two hours she regained consciousness and she scolded Sandeep, on which he started apologizing from her and started saying that he will perform marriage with her. Previously, also Sandeep had expressed his desire to perform marriage with her but she 2 of 43 3 FIR No. 35/13 PS - Jahangir Puri had not told anyone about this. In April, 2009 Sandeep again took her in a house in D - Block, Jahangir Puri and again established physical relations with her. She kept on trusting on the marriage promise of Sandeep and for this reason remained silent. Thereafter, a few times Sandeep had also established physical relations with her in his vehicle. Last time on 18/11/2012 Sandeep took her in the house of his sister in Sector 21, Rithala and there also he established physical relations with her, then she asked him to perform the marriage, on which he started asking for time, and on one pretext or the other, he started deferring the issue of marriage. Now, she has come to know from someone that Sandeep is intending to marry some other girl, when she tried to talk to Sandeep, even then he kept on saying to her, let she keep silent and not to disclose to anyone. Now, since she had come to know that Sandeep, with the consent of his family members, is performing the marriage with some other girl. Sandeep, on the false pretext of marriage, for the last five years had used her and now he has refused for marriage. She wants strict legal action against him. Her medical examination has been got conducted from BJRM Hospital vide MLC No. 54240. On the basis of the statement, from the inspection of the MLC and from the 3 of 43 4 FIR No. 35/13 PS - Jahangir Puri circumstances, finding that offences u/s 376/328/417 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Rakhi. The sealed exhibits, handed over by the Doctor after the medical examination of the prosecutrix were taken into Police possession and were deposited in the Malkhana. Statements of the witnesses were recorded. Accused Sandeep was interrogated, who confessed his crime and was arrested and his disclosure statement was recorded. One day Police remand of the accused was obtained. Search for the place of occurrence was made. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. The sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offences u/s 376/328/417 IPC was prepared against accused Sandeep and and was sent to the Court for trial.
2. Since the offences under sections 376/328 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
4 of 43 5 FIR No. 35/13 PS - Jahangir Puri
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 328/420/376 IPC was made out against accused Sandeep. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 14 witnesses. PW1 - HC Sham Sher Singh, PW2 - HC Jai Pal, PW3 - Constable Anand, PW4 - Constable Sanjeev Kumar, PW5 - Constable Naresh, PW6 - HC Parveen, PW7 - Ms. Manisha Upadhaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi, PW8 - Dr. Vaibhav Gulati, MO, BJRM Hospital, Jahangir Puri, Delhi, PW9 - Prosecutrix (name withheld), PW10 - Shaguftta, PW11 - Dr. Narender, SR (Surgery), BJRM Hospital, Delhi, PW12 - Sh. Bhupinder Singh, Project Officer, DSLSA, Patiala House Courts, Delhi, PW13 - SI Dorothiya and PW14 SI Rakhi.
5. In brief the witnessography of the prosecution witnesses is as under : 5 of 43 6 FIR No. 35/13 PS - Jahangir Puri PW1 - HC Sham Sher Singh is the Duty Officer, who deposed that on 06/02/2013, he was posted as Duty Officer in PS Jahangir Puri and was on duty from 4:00 p.m. to 12:00 midnight. On that day, at about 8:30 p.m., SI Rakhi handed over him a Tehrir herself and on the basis of which and on his instructions, the present FIR No. 35/13 was registered u/s 376/328/417 IPC and after registration of FIR, he handed over the copy of FIR and original rukka to SI Rakhi for further investigation. He has brought the original FIR register. Copy of the same is Ex. PW1/A (OSR) bearing his signature at point 'A'. He made endorsement on the rukka and the same is Ex. PW1/B (OSR) bearing his signature at point 'A'. He also recorded kaymi DD No. 28A in this regard, copy of the same is Ex. PW1/C (OSR).
PW2 - HC Jai Pal is the MHC(M), who deposed that on 06/02/2013, he was posted as MHC(M) in PS Jahangir Puri. On that day, SI Rakhi deposited one sealed pullinda sealed with the seal of 'MS BJRM MS J.Puri' alongwith sample seal in the Malkhana. He made entry at Serial No. 2449 in Register No. 19. On 07/02/2013 SI Rakhi 6 of 43 7 FIR No. 35/13 PS - Jahangir Puri deposited three sealed pullindas sealed with the seal of 'MS BJRM MS J.Puri' alongwith sample seal in the Malkhana. He made entry at Serial No. 2450 in Register No. 19. On 07/03/2013, on the instructions of IO, four sealed pullindas alongwith two sample seals were handed over to Constable Anand for depositing in the FSL, Rohini vide RC No. 23/21/13. After depositing the same in FSL, he had deposited the acknowledgment receipt of the pullindas with him. He has brought the Register No. 19 and 21. The copy of the relevant entries of Register No. 19 is Ex. PW2/A (colly.). The copy of relevant entry of Register No. 21 is Ex. PW2/B. Copy of the acknowledgment receipt is Ex. PW2/C (OSR). Sealed pullindas remained intact during his custody.
PW3 - Constable Anand, who deposed that on 07/03/2013, he was posted as Constable in PS Jahangir Puri. On that day, on the instructions of IO, four sealed pullindas alongwith two sample seals were handed over to him for depositing in the FSL, Rohini vide RC No. 23/21/13. He deposited the same in FSL and thereafter, he had deposited the acknowledgment receipt of the pullindas with the MHC(M). Sealed pullindas remained intact during his custody.
7 of 43 8 FIR No. 35/13 PS - Jahangir Puri PW4 - Constable Sanjeev Kumar, who deposed that on 07/02/2013, he was posted as Constable in PS Jahangir Puri. On that day, on the instructions of IO, he took accused Sandeep in BJRM Hospital where he was medically examined and after medical examination, Doctor handed over the sealed pullinda alongwith sample seal which he handed over to the IO SI Rakhi and the same were seized vide memo Ex. PW4/A, bearing his signature at point 'A'. Thereafter, he alongwith IO, complainant and accused Sandeep reached at Rohini Court and he obtained one day PC remand of accused Sandeep. IO got recorded the statement of the prosecutrix u/s 164 Cr.P.C. He took the accused Sandeep in the BJRM Hospital where he was medically examined and thereafter they reached at Police Station. Thereafter, he alongwith IO and accused reached at Burari Sant Nagar and thereafter they reached D Block, Jahangir Puri at the house of prosecutrix (name withheld). They came back to Police Station and accused was sent to lockup. Accused Sandeep is present in the Court (correctly identified).
PW5 - Constable Naresh, who deposed that on 06/02/2013, 8 of 43 9 FIR No. 35/13 PS - Jahangir Puri he was posted at PS Jahangir Puri. On that day, he had joined the investigation of the present case with IO SI Rakhi. On that day, victim was taken to BJRM Hospital where she was medically examined by the Doctors. After the examination, Doctor handed over one white colour box sealed with the seal of BJRM Hospital. The said box was taken into possession vide seizure memo Ex. PW5/A which bears his signature at point 'A'. Thereafter, they came back to PS and exhibits were deposited with the MHC(M). IO handed over the rukka to the Duty Officer for registration of FIR. Accordingly, the present FIR was registered. Thereafter, they went in search of accused and he was arrested from A1467, Jahangir Puri vide arrest memo vide Ex. PW5/B and his personal search was conducted vide memo Ex. PW5/C, both these memos bears his signature at point 'A' respectively. The disclosure statement of accused was recorded which is Ex. PW5/D, which also bears his signature at point 'A'. Accused Sandeep who is present in the Court (correctly identified) was taken to BJRM Hospital where he was medically examined. After that they came back to PS. Accused was sent to lockup and his statement was recorded by the IO in this regard.
9 of 43 10 FIR No. 35/13 PS - Jahangir Puri PW6 - HC Parveen, who deposed that on 08/02/2013, he was posted as Constable in PS Jahangir Puri. On that day, he alongwith W/SI Rakhi remained in the investigation of the present case and accused Sandeep, present in the Court was taken out from the lock up and was taken to BJRM Hospital, where he was medically examined. Thereafter, they reached Sector 21, Rohini and accused Sandeep was asked to show the place of occurrence but he was misleading to the Police and has not shown any such place. Thereafter, they came to the Rohini Courts, accused Sandeep was produced before the Learned MM and was sent to JC. IO recorded his statement.
PW7 - Ms. Manisha Upadhaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi, who proved the biological and serological reports Ex. PW7/A and Ex. PW7/B respectively signed by her at points 'A'.
PW8 - Dr. Vaibhav Gulati, MO, BJRM Hospital, Jahangir Puri, Delhi, who deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Bishwanath, Dr. Nipun, Dr. Manas 10 of 43 11 FIR No. 35/13 PS - Jahangir Puri and Dr. Santosh who have since left the services of Hospital and their present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Bishwanath, Dr. Nipun, Dr. Manas and Dr. Santosh as he has seen them signing and writing during the official course of the duties. As per the MLC No. 54240 of prosecutrix (name withheld) D/o Md. Khurshid, Age 23 years female she was brought in the Hospital for medical examination. The patient was initially examined by Dr. Bishwanath J.R. Under the supervision of Dr. Nipun Malhotra, CMO on duty. On local examination, patient refused to shown (show) any injury on the body parts, the patient was referred to S.R. Gynae. for further examination. The MLC is Ex. PW8/A, bearing the signature of Dr. Bishwanath at point 'A' and Dr. Nipun at point 'B'. As per the MLC No. 54192 of Sandeep S/o Late Sh. Rich Pal Singh, Age 33 years male was brought in the Hospital for medical examination. The patient was initially examined by Dr. Santosh, J.R. under the supervision of Dr. Manas, CMO on duty. On local examination, no fresh external injury seen Underwear taken, sealed and handed over to IO and thereafter referred to S.R. Surgery. The MLC is Ex. PW8/B, bearing the signature of Dr. Santosh at point 'A' and Dr. Manas at point 'B'.
11 of 43 12 FIR No. 35/13 PS - Jahangir Puri PW9 - Prosecutrix is the victim who deposed some facts regarding the incident but did not support the prosecution and was also crossexamined by the Learned Addl. PP for State.
PW10 - Shaguffta is the mother of the prosecutrix, who deposed that she has three children. Prosecutrix (name withheld) is her eldest child. She does not know any person with the name Sandeep. She does not identify accused Sandeep present in the Court (witness failed to identify the accused). She does not know anything about the present case. She has come to the Court to give the statement as a witness. She does not know in what case she has come to depose as a witness. She does not know as to when Police met her and where she was when Police met her. Her no statement was recorded by the Police. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW11 - Dr. Narender, SR (Surgery), BJRM Hospital, Delhi, who deposed that on 07/02/2013, at about 12:40 p.m. one person 12 of 43 13 FIR No. 35/13 PS - Jahangir Puri Sandeep S/o Late Sh. Rich Pal Singh, Aged 33 Years, Male was referred to Surgery Deptt. after his initial examination in the casualty vide MLC already Ex. PW8/B. He examined Sandeep and opined that there is nothing to suggest that he cannot perform sexual act. The samples and clothes were taken and handed over to Police in sealed condition. His examination is from Point 'X to X1' encircled in red bearing his signature at Point 'C'.
PW12 - Sh. Bhupinder Singh, Project Officer, DSLSA, Patiala House Courts, Delhi, who deposed that on 07/02/2013, he was posted as MM at Rohini Courts. On that day, an application was filed by W/SI Rakhi, PS - Jahangir Puri for recording the statement of prosecutrix (name withheld) u/s 164 Cr.P.C. Being Link MM, he marked to himself. He proceeded to record the statement in his Chamber. The application is Ex. PW12/A bearing his initials at point 'A'. He recorded the statement of prosecutrix (name withheld) on oath u/s 164 Cr.P.C. in the Chamber attached to his Court. The statement of prosecutrix already Mark PW9/PX2, is now Ex. PW12/B (running in three pages) bearing his signatures at points 'A', 'B' & 'C'. Upon completion of the statement, the 13 of 43 14 FIR No. 35/13 PS - Jahangir Puri IO W/SI Rakhi was given the copy of the same. Thereafter, the entire proceedings was kept in a sealed pullinda, sealed with the Court seal and was sent to the concerned Court.
PW13 - SI Dorothiya is the subsequent Investigating Officer (IO) of the case, who deposed that on 27/02/2013, she was posted at PS Bhalswa Dairy as SI. On that day, the further investigation of the present case was marked to her and the case file of the present case was handed over to her by MHC(R), PS Jahangir Puri. On 07/03/2013, she got deposited the exhibits of prosecutrix and accused to FSL Rohini through Constable Anand vide RC No. 23/21/13. After depositing the same Constable Anand handed over her the copy of the acknowledgment of depositing the abovesaid exhibits to FSL and she handed over the same to MHC(R), PS - Jahangir Puri. She also recorded the statement of Constable Anand and MHC(R) u/s 161 Cr.P.C. She also inquired from the prosecutrix and recorded her statement u/s 161 Cr.P.C. Thereafter, she was transferred from PS Bhalswa Dairy. She handed over the case file to MHC(R), PS - Jahangir Puri.
14 of 43 15 FIR No. 35/13 PS - Jahangir Puri PW14 SI Rakhi is the Investigating Officer (IO) of the case, who deposed that on 06/02/2013, she was posted as SI at PS - Jahangir Puri. On that day, prosecutrix (name withheld) came to PS and informed that one person Sandeep committed rape upon her on the pretext of marriage. She (prosecutrix) gave her detailed statement to her. She alongwith Constable Naresh took the prosecutrix (name withheld) to BJRM Hospital for getting her medically examined. Her medical examination was got conducted and after her medical examination the sealed exhibits handed over by the Doctor were taken into Police possession and were seized vide seizure memo already Ex. PW5/A bearing her signature at Point 'B'. She alongwith Constable Naresh and prosecurix returned to PS. She made endorsement Ex. PW14/A on the statement of prosecutrix (name withheld) and handed over rukka to Duty Officer for registration of FIR. In the meantime, mother of prosecutrix also came to PS. She made inquiries from the mother of prosecutrix and recorded her statement. The Duty officer handed over copy of FIR and original rukka to her. Accused Sandeep of his own had also come to the PS inquiring as to whether any complaint was lodged against him at the PS. He was there identified by the prosecutrix. Interrogation was made 15 of 43 16 FIR No. 35/13 PS - Jahangir Puri to Sandeep and after finding sufficient evidence against him he was arrested vide arrest memo already Ex. PW5/B and his personal search was conducted vide memo Ex. PW5/C, both memos bearing her signature at Points 'C'. The disclosure statement made by accused Sandeep was recorded which is already Ex. PW5/D bearing her signature at Point 'B'. Accused Sandeep was taken to BJRM Hospital for his medical examination by Constable Naresh. His medical examination was conducted vide MLC No. 54135 dated 06/02/2013 Ex. PW14/B and then he was brought to PS. On the next day on 07/02/2013 accused Sandeep was again taken to Hospital and his medical examination was conducted vide MLC Ex. PW8/B and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession vide seizure memo already Ex. PW4/A bearing her signature at Point 'B'. Accused Sandeep was produced before the Court and his one day Police custody remand was taken. The statement of the prosecutrix was got recorded u/s 164 Cr.P.C. already Ex. PW12/B. She had moved an application for obtaining the copy of the statement u/s 164 Cr.P.C., which is Ex. PW12/A bearing her signature at point 'B'. Site plan of the places of occurrence could not be prepared as the prosecutrix could not identify 16 of 43 17 FIR No. 35/13 PS - Jahangir Puri the places in Rohini, Burari and D Block, Jahangir Puri. The investigation remained with her till 11/02/2013 and thereafter, she submitted the file with the MHC(R). Accused Sandeep is present in the Court (correctly identified).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Sandeep was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Sandeep did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that prosecutrix has not supported the prosecution and the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused on the charge levelled against him.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent 17 of 43 18 FIR No. 35/13 PS - Jahangir Puri and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. J. P. Sehrawat, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 328/420/376 IPC against the accused Sandeep is that in the month of November, 2007, in a room at Sant Nagar, Burari (Delhi), he administered some intoxicant in tea to prosecutrix (name withheld) D/o Mohd. Khurshid, aged around 23 years with intent to commit rape upon her and thereafter he committed rape upon the prosecutrix (name withheld) D/o Mohd. Khurshid without her consent and against her will and thereafter he assured her to marry with her, again in April, 2009, he again established physical relations with prosecutrix (name withheld) at D - Block, Jahangir Puri. He also established physical relations with her at many times in a vehicle and on 18 of 43 19 FIR No. 35/13 PS - Jahangir Puri 18/11/2012, at the house of his sister at Sector - 21, Rithala, he again established physical relations with her on the false pretext of marrying with her.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW9 - prosecutrix in her statement recorded in the Court on 15/09/2014 while giving her particulars has stated her age as 24 years.
Since PW9 - prosecutrix has stated her age as 24 years on 15/09/2014 at the time of recording her evidence/statement in the Court and the date of alleged incident is of November, 2007, on simple arithmetical calculation, the age of the prosecutrix comes to 17 years, 01 months and 16 days as on the date of alleged incident in November, 2007.
19 of 43 20 FIR No. 35/13 PS - Jahangir Puri Moreover, the said factum of age of PW9 - prosecutrix has also not been disputed by accused Sandeep. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW9 - prosecutrix was aged 17 years, 01 months and 16 days as on the date of alleged incident in November, 2007. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW8 - Dr. Vaibhav Gulati, MO, BJRM Hospital, Jahangir Puri, Delhi has deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Bishwanath, Dr. Nipun, Dr. Manas and Dr. Santosh who have since left the services of Hospital and their present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Bishwanath, Dr. Nipun, Dr. Manas and Dr. Santosh as he has seen them signing and writing during the official course of the duties. As per the MLC No. 54240 of prosecutrix (name 20 of 43 21 FIR No. 35/13 PS - Jahangir Puri withheld) D/o Md. Khurshid, Age 23 years female she was brought in the Hospital for medical examination. The patient was initially examined by Dr. Bishwanath J.R. Under the supervision of Dr. Nipun Malhotra, CMO on duty. On local examination, patient refused to shown (show) any injury on the body parts, the patient was referred to S.R. Gynae. for further examination. The MLC is Ex. PW8/A, bearing the signature of Dr. Bishwanath at point 'A' and Dr. Nipun at point 'B'.
Despite grant of opportunity, PW8 - Dr. Vaibhav Gulati was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW8/A of PW9 - prosecutrix stands proved on the record.
MEDICAL EVIDENCE OF THE ACCUSED SANDEEP
14. PW8 - Dr. Vaibhav Gulati, MO, BJRM Hospital, Jahangir Puri, Delhi, has deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Bishwanath, Dr. Nipun, Dr. Manas and Dr. Santosh who have since left the services of Hospital and their 21 of 43 22 FIR No. 35/13 PS - Jahangir Puri present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Bishwanath, Dr. Nipun, Dr. Manas and Dr. Santosh as he has seen them signing and writing during the official course of the duties. As per the MLC No. 54192 of Sandeep S/o Late Sh. Rich Pal Singh, Age 33 years male was brought in the Hospital for medical examination. The patient was initially examined by Dr. Santosh, J.R. under the supervision of Dr. Manas, CMO on duty. On local examination, no fresh external injury seen Underwear taken, sealed and handed over to IO and thereafter referred to S.R. Surgery. The MLC is Ex. PW8/B, bearing the signature of Dr. Santosh at point 'A' and Dr. Manas at point 'B'.
Despite grant of opportunity, PW8 - Dr. Vaibhav Gulati was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW8/B of accused Sandeep stands proved on the record.
VIRILITY OF THE ACCUSED SANDEEP 22 of 43 23 FIR No. 35/13 PS - Jahangir Puri
14. PW11 - Dr. Narender, SR (Surgery), BJRM Hospital, Delhi has deposed that on 07/02/2013, at about 12:40 p.m. one person Sandeep S/o Late Sh. Rich Pal Singh, Aged 33 Years, Male was referred to Surgery Deptt. after his initial examination in the casualty vide MLC already Ex. PW8/B. He examined Sandeep and opined that there is nothing to suggest that he cannot perform sexual act. The samples and clothes were taken and handed over to Police in sealed condition. His examination is from Point 'X to X1' encircled in red bearing his signature at Point 'C'.
Despite grant of opportunity, PW11 - Dr. Narender was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Sandeep was capable of performing sexual act.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW7 - Ms. Manisha Upadhaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi has proved the biological and serological 23 of 43 24 FIR No. 35/13 PS - Jahangir Puri reports Ex. PW7/A and Ex. PW7/B respectively signed by her at points 'A'.
As per biological report Ex. PW7/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "MS BJRMS J. PURI DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l' & '1m'.
Exhibit '1a' : Cotton wool swab on a stick marked as Step 4 In between fingers.
Exhibit '1b' : One empty paper alongwith forecep marked as Step 4 Debris Collection kept unexamined as nothing was found in it.
Exhibit '1c' : Few nail clippings alongwith nail cutter marked as Step 4 Nail Scrappings.
Exhibit '1d' : Cotton wool swab on a stick marked as Step 5 Breast Swab.
Exhibit '1e' : One empty paper alongwith comb marked as Step 6 'combing of Pubic hair' kept unexamined and nothing was found in it.
Exhibit '1f' : Few clippings of hair alongwith scissor marked as Step 7 clipping of Pubic hair.
Exhibit '1g' : Cotton wool swab on a stick kept in a tube marked as 24 of 43 25 FIR No. 35/13 PS - Jahangir Puri Step 9 'Cervical Mucus Collection' (C).
Exhibit '1h1' : Cotton wool swab on a stick marked as Step 9 'Vaginal Secretion' (V).
Exhibit '1h2a': Two microslides having faint whitish smear kept in a & '1h2b' plastic case marked as Step 9 'Vaginal Secretion' (V). Exhibit '1i' : Fluid/liquid kept in a syringe alongwith rubber pipes marked as Step 11 'Washing from Vagina'.
Exhibit '1j1' : Cotton wool swab on a stick kept in a tube marked as Step 12 'Rectal Examination'.
Exhibit '1j2a' : Two microslides having faint whitish smear marked &
'1j2b' as Step 12 'Rectal Examination'.
Exhibit '1k1' : Cotton wool swab on a stick marked as Step 13 'Oral
Swab'.
Exhibit '1k2a' : Two microslides having faint whitish smear marked &
'1k2b' as Step 13 'Oral Swab' kept in plastic case.
Exhibit '1l' : Dark brown foul smelling liquid kept in two separate
tubes alongwith syringe marked as Step 14 Blood collection of victim.
Exhibit '1m1': Dark brown foul smelling liquid kept in a tube marked as Step 15 Urine and oxalate Blood vial. Exhibit '1m2': Dirty yellowish fluid/liquid kept in a plastic container marked as Step 15 Urine and oxalate Blood vial. Parcel '3' : One sealed cloth parcel sealed with the seal of "MS BJRMS J. PURI DELHI" containing exhibit '3'.
Exhibit '3' : Few strands of hair kept in a plastic container described as pubic hair.
Parcel '4' : One sealed cloth parcel sealed with the seal of "MS 25 of 43 26 FIR No. 35/13 PS - Jahangir Puri BJRMS J. PURI DELHI" containing exhibit '3'.
Exhibit '4' : One underwear having dirty stains. Parcel '5' : One sealed cloth parcel sealed with the seal of "MS BJRMS J. PURI DELHI" containing exhibit '5'.
Exhibit '5' : Dirty brown gauze cloth piece described as blood sample.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1l', '1m1' & '5'.
2. Blood could not be detected on exhibits '1a', '1c', '1d', '1f', '1g', '1h1', '1i', '1j1', '1k1', '1m2', '3' & '4'.
3. Semen could not be detected on exhibits '1a', '1c', '1d', '1f', '1g', '1h1', '1h2a', '1h2b', '1i', '1j1', '1j2a', '1j2b', '1k1', '1k2a', '1k2b', '1m2', '3' & '4'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of ' FSL MU DELHI'.
The serological report Ex. PW7/B reads as under: Exhibits Species of origin ABO Grouping/Remarks '1l' Blood sample No Reaction * 26 of 43 27 FIR No. 35/13 PS - Jahangir Puri '1m1' Blood sample No Reaction * '5' Blood stained gauze Human Inconclusive cloth piece * Origin of species specific antigens degenerated.
As per the biological report Ex. PW17/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW5/A dated 06/02/2013, parcel nos. 3, 4 & 5 belong to the accused Sandeep which were seized vide seizure memo Ex. PW4/A dated 07/02/2013.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1l' (Blood collection of the victim/prosecutrix), exhibit '1m1' (Urine and oxalate Blood vial of the prosecutrix) & exhibit '5' (Blood sample of accused Sandeep); blood could not be detected on exhibit '1a' (In between fingers of the prosecutrix), exhibit '1c' (Nail Scrappings of the prosecutrix), exhibit '1d' (Breast Swab of the 27 of 43 28 FIR No. 35/13 PS - Jahangir Puri prosecutrix), exhibit '1f' (Pubic hair of the prosecutrix), exhibit '1g' (Cervical Mucus Collection (C) of the prosecutrix), exhibit '1h1' (Vaginal Secretion (V) of the prosecutrix), exhibit '1i' (Washing from Vagina of the prosecutrix), exhibit '1j1' (Rectal Examination of the prosecutrix), exhibit '1k1' (Oral Swab of the prosecutrix), exhibit '1m2' (Urine and oxalate Blood vial of the prosecutrix), exhibit '3' (Pubic hair of accused Sandeep) & exhibit '4' (Underwear of accused Sandeep) and semen could not be detected on exhibit '1a' (In between fingers of the prosecutrix), exhibit '1c' (Nail Scrappings of the prosecutrix), exhibit '1d' (Breast Swab of the prosecutrix), exhibit '1f' (Pubic hair of the prosecutrix), exhibit '1g' (Cervical Mucus Collection (C) of the prosecutrix), exhibit '1h1' (Vaginal Secretion (V) of the prosecutrix), exhibit '1h2a' (Vaginal Secretion (V) of the prosecutrix), exhibit '1h2b' (Vaginal Secretion (V) of the prosecutrix), exhibit '1i' (Washing from Vagina of the prosecutrix), exhibit '1j1' (Rectal Examination of the prosecutrix), exhibit '1j2a' (Rectal Examination of the prosecutrix), exhibit '1j2b' (Rectal Examination of the prosecutrix), exhibit '1k1' (Oral Swab of the prosecutrix), exhibit '1k2a' (Oral Swab of the prosecutrix), exhibit '1k2b' (Oral Swab of the prosecutrix), exhibit '1m2' (Urine and 28 of 43 29 FIR No. 35/13 PS - Jahangir Puri oxalate Blood vial of the prosecutrix), exhibit '3' (Pubic hair of accused Sandeep) & exhibit '4' (Underwear of accused Sandeep). As per the serological report Ex. PW7/B exhibit '1l' (Blood Sample of the prosecutrix), exhibit '1m1' (Blood Sample of prosecutrix) gave no reaction for species of origin and exhibit '5' (Blood stained gauze cloth piece of accused Sandeep) gave species of origin as Human and ABO Grouping remained inconclusive.
16. Now let the testimony of PW9 Prosecutrix be perused and analysed.
PW9 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "In November, 2007 I was attending the coaching classes at Prayas for dress making. In November, 2007 when I was going to attend the coaching classes at Prayas nothing happened with me (Merae Saath Kuch Nahi Hauwa). I know Sandeep as neighbour. I can identify Sandeep, if shown to me.
At this stage, the wooden partition has been removed. Accused Sandeep is present in the Court (correctly identified).
The wooden partition now has been restored to its 29 of 43 30 FIR No. 35/13 PS - Jahangir Puri original position.
I met Police with regard to some complaint of mobile missing. I do not recollect the date, month and year when I met the Police. I do not know as to in which case I have come today to depose as a witness in the Court. I do not know anything about this case."
From the aforesaid narration of PW9 - prosecutrix, it is clearly indicated that in November, 2007, she was attending the coaching classes at Prayas for dress making. In November, 2007, when she was going to attend the coaching classes at Prayas nothing happened with her (Mere Saath Kuch Nahi Hua). She knows Sandeep as neighbour. She correctly identified accused Sandeep present in the Court. She met Police with regard to some complaint of mobile missing. She does not recollect the date, month and year when she met the Police. She does not know as to in which case she has come to depose as a witness in the Court. She does not know anything about this case.
PW9 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : 30 of 43 31 FIR No. 35/13 PS - Jahangir Puri "My no friendship was going on with accused Sandeep in November, 2007. Accused Sandeep did not take me with him in November, 2007. Accused Sandeep did not take me to any room in Burari Sant Nagar nor he had made me drink any tea. Q. Accused Sandeep took you to a room in Burari Sant Nagar and there he offered tea to you, on drinking the same you became intoxicated and in that condition he committed 'galat kaam' upon you. Is it correct? Ans. Accused Sandeep did not take me to any room in Burari Sant Nagar, therefore, no question of any offering of tea and of my drinking the same arises.
Accused Sandeep did not want to marry with me. My signature is at Point 'A' on the statement Mark PW9/PX. Vol. police obtained my signatures on blank papers. The statement Mark PW9/PX was not read over to me by the Police.
I have not stated to the police that my friendship was going on with accused Sandeep and he had taken me to several places and committed rape upon me on the pretext of marriage, when I pressurized accused Sandeep to marry with me then he started avoiding the same and then I approached police. It is wrong to suggest that I had stated to the police that my friendship was going on with accused Sandeep and he had taken me to several places and committed rape upon me on the pretext of marriage, when I pressurized accused Sandeep to marry with me then he started avoiding the same and then I approached police. It is wrong to suggest that I gave statement Mark PW9/PX to police and then I signed the same at Point 'A'.
31 of 43 32 FIR No. 35/13 PS - Jahangir Puri At this stage, the statement Mark PW9/PX is read over to the witness to which she denies of having made any such statement to the Police.
It is wrong to suggest that I have stated to the police that in the month of April, 2009 accused Sandeep took me to a house situated in E - Block, Jahangir Puri and made physical relations with me on the pretext of marriage. It is further wrong to suggest that accused Sandeep made physical relations with me several time in his car or that on 18/11/2012 he took me to his sister's house situated at Sector 21, Rithala, Delhi, and again made physical relations with me.
It is correct that Police took me to BJRM hospital for my medical examination. It is wrong to suggest that I informed the doctor in the hospital that accused Sandeep had made physical relations with me and lastly on 18/11/2012. I do not know as to whether or not accused Sandeep was arrested by the Police in the present case. It is correct that my signatures are appearing at Point 'B' on arrest memo and personal search memo already Ex. PW5/B & Ex. PW5/C. Vol. my signatures were taken on some blank papers and on some blank formats by the Police. When I signed at the arrest memo Ex. PW5/B and the personal search memo Ex. PW5/C, the same were blank formats. It is wrong to suggest that accused Sandeep was arrested by the police at my instance as I lodged the FIR for committal of rape upon me by him.
At this stage, the statement dated 06/02/2013 Mark PW9/PX1 is read over to the witness to which she denies of having made any such statement to the Police.
32 of 43 33 FIR No. 35/13 PS - Jahangir Puri My statement was also recorded u/s 164 Cr.P.C. before the Ld. MM.
At this stage, a sealed envelope sealed with the seal of 'BS' lying on the judicial file is opened and from which the proceedings u/s 164 Cr.P.C. are taken out.
I have stated in my statement u/s 164 Cr.P.C. that in the year 2008, accused Sandeep took me to a house in Sant Nagar Burari and made me to drink a cup of tea and after consuming the same I became intoxicating and under that state he had committed 'galat kaam' upon me. I have also stated in my statement u/s 164 Cr.P.C. that when I asked accused Sandeep as to why he did that 'galat kaam' upon me then he told me that he loved me and he would marry with me. I have also stated in my statement u/s 164 Cr.P.C. that accused Sandeep assured me that he would marry with me and on his promise to marry with me we kept on meeting. I have also stated in my statement u/s 164 Cr.P.C. that on one occasion he took me to his sister's house and again committed 'wrong act' upon me. Vol. I had made the statement u/s 164 Cr.P.C. on the tutoring of the Police. I was made to mug up the statement as to what I have to make the statement u/s 164 Cr.P.C.
I do not recollect as to whether I also stated in my statement u/s 164 Cr.P.C. that I had become pregnant three times and accused Sandeep had brought the medicine and gave it to me for abortion. I do not recollect as to whether I also stated in my statement u/s 164 Cr.P.C. that I used to give Rs. 1,500/ or Rs. 2,000/ per month my salary to accused Sandeep. I do not recollect as to whether I had stated to the Ld. MM that I have been pressurized by the police to make the statement. It 33 of 43 34 FIR No. 35/13 PS - Jahangir Puri is wrong to suggest that there was no pressure upon me by the police to make the statement u/s 164 Cr.P.C. and for this reason I did not state this fact to Ld. MM at the time of making the statement. It is wrong to suggest that the statement made by me u/s 164 Cr.P.C. was voluntarily or without any pressure.
At this stage, the statement recorded u/s 164 Cr.P.C. Mark PW9/PX2 is read over to the witness to which she denies that this statement was voluntarily given by her.
It is wrong to suggest that I have been won over by the accused. It is wrong to suggest that I have concealed the true and actual fact in order to save the accused as a compromise has taken place between me and the accused. It is wrong to suggest that I am deposing falsely in order to save the accused."
PW9 - Prosecutrix was not crossexamined on behalf of accused despite grant of opportunity.
On analysing the entire testimony of PW9 - prosecutrix it is clearly indicated that she has specifically deposed in her examinationin chief that in November, 2007, when she was going to attend the coaching classes at Prayas nothing happened with her (Mere Saath Kuch Nahi Hua). During her crossexamination by Learned Addl. PP for the State 34 of 43 35 FIR No. 35/13 PS - Jahangir Puri she specifically deposed that her no friendship was going on with accused Sandeep in November, 2007. Accused Sandeep did not take her with him in November, 2007. Accused Sandeep did not take her to any Room in Burari, Sant Nagar. Nor he had made her drink any tea. She did not support the prosecution in her statement u/s 164 Cr.P.C. when she deposed that, she had made the statement u/s 164 Cr.P.C. on the tutoring of the Police. She was made to mug up the statement as to what she has to make the statement u/s 164 Cr.P.C. She negated the suggestions put to her by the Learned Addl. PP for the State that she had stated to the Police that her friendship was going on with accused Sandeep and he had taken her to several places and committed rape upon her on the pretext of marriage, when she pressurized accused Sandeep to marry with her then he started avoiding the same and then she approached Police or that she gave statement Mark PW9/PX to Police and then she signed the same at Point 'A' or that she has stated to the Police that in the month of April, 2009 accused Sandeep took her to a house situated in E - Block, Jahangir Puri and made physical relations with her on the pretext of marriage or that accused Sandeep made physical relations with her several time in his car or that on 18/11/2012 he took her to his sister's 35 of 43 36 FIR No. 35/13 PS - Jahangir Puri house situated at Sector 21, Rithala, Delhi, and again made physical relations with her or that she informed the Doctor in the Hospital that accused Sandeep had made physical relations with her and lastly on 18/11/2012 or that accused Sandeep was arrested by the Police at her instance as she lodged the FIR for committal of rape upon her by him or that there was no pressure upon her by the Police to make the statement u/s 164 Cr.P.C. and for this reason she did not state this fact to Learned MM at the time of making the statement or that the statement made by her u/s 164 Cr.P.C. was voluntarily or without any pressure or that she has been won over by the accused or that she has concealed the true and actual fact in order to save the accused as a compromise has taken place between her and the accused or that she is deposing falsely in order to save the accused.
As discussed hereinbefore, PW9 - prosecutrix has been found to be aged around 17 years, from the testimony of PW9 - prosecutrix, nothing is being indicated that in the month of November, 2007, in a room at Sant Nagar, Burari (Delhi), accused Sandeep administered some intoxicant in tea to PW9 prosecutrix, with intent to 36 of 43 37 FIR No. 35/13 PS - Jahangir Puri commit rape upon her or that thereafter he committed rape upon PW9 prosecutrix without her consent and against her will or that thereafter he assured her to marry with her or that again in April, 2009, he again established physical relations with PW9 - prosecutrix at D - Block, Jahangir Puri or that he also established physical relations with her at many times in a vehicle or that on 18/11/2012, at the house of his sister at Sector - 21, Rithala, he again established physical relations with her on the false pretext of marrying with her. Even the FSL Report Ex. PW7/A as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
Now, let the testimony of PW10 - Shaguffta, mother of the prosecutrix be perused and analysed.
PW10 - Shaguffta is the mother of the prosecutrix, who in her examinationinchief has deposed that she has three children. Prosecutrix (name withheld) is her eldest child. She does not know any person with the name Sandeep. She does not identify accused Sandeep present in the Court (witness failed to identify the accused). She does 37 of 43 38 FIR No. 35/13 PS - Jahangir Puri not know anything about the present case. She has come to the Court to give the statement as a witness. She does not know in what case she has come to depose as a witness. She does not know as to when Police met her and where she was when Police met her. Her no statement was recorded by the Police.
PW10 - Shaguffta was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "I do not know the name of my Bhatija (Nephew). Accused Sandeep is present in the Court did not use to visit my house."
During her further crossexamined by the Learned Addl. PP for the State recorded on 04/12/2014, PW10 - Shafguftta has deposed that : "It is wrong to suggest that accused Sandeep present in the Court was treated a nephew by me (Maine Sandeep Ko Bhajia Nahi Bana Rakha). My daughter/prosecutrix (name withheld) did not inform me that she was having friendship with Sandeep. I was not knowing if there was any friendship between my daughter/prosecutrix (name withheld) with accused Sandeep present in the Court today. It is wrong 38 of 43 39 FIR No. 35/13 PS - Jahangir Puri to suggest that accused Sandeep present in the Court was not treated as nephew by me. It is further wrong to suggest that he was not on visiting terms in my house. It is wrong to suggest that accused Sandeep was not having friendship with my daughter/prosecutrix (name withheld). My daughter/prosecutrix (name withheld) did not tell me that accused Sandeep wants to marry with her. It is wrong to suggest that my daughter told me that accused Sandeep wants to marry with her. My daughter did not tell me that accused Sandeep was making physical relations with her since five years on the pretext of marriage. It is wrong to suggest that my daughter did not tell me that accused Sandeep was making physical relations with her since five years on the pretext of marriage. It is wrong to suggest that accused Sandeep was going to perform marriage with other girl so my daughter approached police for filing complaint. It is wrong to suggest that I also visited PS after coming to know that my daughter/prosecutrix (name withheld) want (went) to PS for lodging complaint against Sandeep. Police did not record my statement in this case.
At this stage, statement Mark PW10/PX is read over to the witness, who denies of having made any such statement to the police. It is wrong to suggest that I gave statement Mark PW10/PX to Police. It is wrong to suggest that I am concealing true and actual facts in order to save accused Sandeep as a compromise has been taken place. It is wrong to suggest that I am not identifying accused Sandeep deliberately as matter has already been settled. It is wrong to suggest that I am deposing falsely."
PW10 - Shaguffta was not crossexamined on behalf of 39 of 43 40 FIR No. 35/13 PS - Jahangir Puri accused despite grant of opportunity.
On careful perusal and analysis of the testimony of PW10 - Shaguftta, mother of the prosecutrix, it is found that nothing material has come out in her testimony so as to advance the case of the prosecution on the core spectrum of the crime. She negated the suggestions, as were put to her by the Learned Addl. PP, that accused Sandeep present in the Court was treated a nephew by her (Maine Sandeep Ko Bhajia Nahi Bana Rakha) or that accused Sandeep present in the Court was not treated as nephew by her or that he was not on visiting terms in her house or that accused Sandeep was not having friendship with her daughter/prosecutrix (name withheld) or that her daughter told her that accused Sandeep wants to marry with her or that her daughter did not tell (told) her that accused Sandeep was making physical relations with her since five years on the pretext of marriage or that accused Sandeep was going to perform marriage with other girl so her daughter approached Police for filing complaint or that she also visited PS after coming to know that her daughter/prosecutrix (name withheld) want (went) to PS for lodging complaint against Sandeep or that she gave 40 of 43 41 FIR No. 35/13 PS - Jahangir Puri statement Mark PW10/PX to Police or that she is concealing true and actual facts in order to save accused Sandeep as a compromise has been taken place or that she is not identifying accused Sandeep deliberately as matter has already been settled or that she is deposing falsely.
18. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Sandeep. The hostility of PW9 - prosecutrix and PW10 - Shaguffta, her mother has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that in the month of November, 2007, in a room at Sant Nagar, Burari (Delhi), accused Sandeep administered some intoxicant in tea to PW9 - prosecutrix, aged around 17 years with intent to commit rape upon her or that thereafter he committed rape upon the PW9 prosecutrix without her consent and against her will or that thereafter he assured her to marry with her or that again in April, 2009, he again established physical relations with PW9 - prosecutrix at D - Block, Jahangir Puri or that he also established physical relations with her at many times in a vehicle or that on 18/11/2012, at the house of his sister at Sector - 21, Rithala, he again 41 of 43 42 FIR No. 35/13 PS - Jahangir Puri established physical relations with her on the false pretext of marrying with her.
I accordingly, acquit accused Sandeep for the offences punishable u/s 328/420/376 IPC.
19. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Sandeep in the commission of offences punishable u/s 328/420/376 IPC, is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to the accused Sandeep beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Sandeep. I, therefore, acquit accused Sandeep for the offences punishable u/s 328/420/376 IPC after giving him the benefit of doubt. Accused Sandeep is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Sandeep shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment.
42 of 43 43 FIR No. 35/13 PS - Jahangir Puri Announced in the open Court (MAHESH CHANDER GUPTA) on 29th Day of May, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 43 of 43