Delhi District Court
State vs . Bablu on 27 January, 2016
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FIR No. 243/13
PS - Bhalswa Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 36/14
Unique ID No. : 02404R0184862014
State Vs. Bablu
S/o Shri Abdul
R/o B - 7/185 JJ Colony
Bhalswa Dairy,
Delhi.
FIR No. : 243/13
Police Station : Bhalswa Dairy
Under Sections : 376/451 IPC
Date of committal to session Court : 17.02.2014
Date on which judgment reserved : 19.01.2016
Date on which judgment announced : 27.01.2016
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FIR No. 243/13
PS - Bhalswa Dairy
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 24.08.2013, on receipt of DD No. 11A relating to rape SI Surender Kumar with WHC Deepika and Ct. Gulshan reached at the spot (Jai mauka par pahunche) where the prosecutrix (name withheld being a case u/s. 376 IPC) W/o Sh. Habibul Fakir R/o B7/289, J.J. Colony, Bhalaswa Dairy, Delhi, met, she was taken to BJRM hospital by SI Surender Kumar and got conducted her medical examination vide MLC No. 64914. On the direction of the Senior Police Officer Insp. Laxmi Dubey reached at BJRM hospital where the prosecutrix made the statement to Insp. Laxmi Dubey which is to the effect that, she lives at the above address with her husband Habibul Fakir and two children. Yesterday on 23.08.2013 in the night at about 11.30pm, her husband with her friend Bablu s/o Abdul were drinking liquor by sitting in the gali (gali mein baith kar sharaab pee rahe thae). In the night at about 1.00am, she went to call her husband and asked him to come to the house on which Bablu said that he will drop her husband at the house. After sometime, Bablu came to her house, taking her husband.
2 of 53 3 FIR No. 243/13 PS - Bhalswa Dairy Her husband was deadly drunk (nashe mein choor tha) and had gone to sleep immediate after coming at home (ghar per aate hi so gaya). Bablu asked her to close the door as he is going. She told him (Bablu) that there is no bolt/latch(kundi) on the door. She closed the door, after the going of Bablu (meinain Bablu ke jaane ke baad darwaja bhaed diya) and slept on the takhat. In the night at about 3.00am, one person lay with her (ek adami marae saath late gaya) on the takhat and he made physical relation with her. She took that person as her husband and for this reason she did not resist nor raised an alarm. But after sex when she saw the face of that person, she found that it was not her husband but Bablu s/o Abdul and when she immediately pushed him away from her, he fled away. She immediately woke up her husband who was sleeping on the ground and she told him all about the incident. Her husband went out of the room but by that time Bablu had already fled. Bablu has committed rape upon her in the disguise of her husband (marae paati kae dhokae mae), after trespassing her house. Legal action be taken against him. On the basis of the statement, from the inspection of the MLC finding that offences u/s 376/451 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by Inspector 3 of 53 4 FIR No. 243/13 PS - Bhalswa Dairy Laxmi Duby. Site plan was prepared at the instance of the prosecutrix. Crime team was called and inspected the Crime Scene and also took the photographs of the crime scene. Crime team report was obtained. Statements of the witnesses were recorded. During the course of investigation, the exhibits seized were deposited in malkhana. Further investigation was handed over to SI Sangeeta. Statement of the prosecutrix was got recorded u/s 164 CrPC. Accused Bablu was arrested on the identification of the prosecutrix and his disclosure statement was recorded. Accused was got medically examined from the BJRM hospital vide MLC No. 69573 and the sealed exhibits handed over by the doctor after his medical examination were taken into police possession. Sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offences u/s 376/451 IPC was prepared against accused Bablu and was sent to the court for trial.
2. Since the offence under section 376 IPC is exclusively 4 of 53 5 FIR No. 243/13 PS - Bhalswa Dairy triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 451/376 IPC was made out against accused Bablu. The charge was framed accordingly, which was read over and explained to the accused to which he plead not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 21 witnesses. PW1 - HC Shyam Lal, PW2 - Dr. Vaibhav Gulati, Medical Officer, BJRM Hospital, Delhi, PW3 - W/ASI Sarla, PW4 - Dr. Anshuman Kumar, Medical Officer, BJRM Hospital, Delhi, PW5 - Dr. R. Kappu, Medical Officer, BJRM Hospital, Delhi, PW6 - Ct. Satish, PW7 - Constable Ashwani Kumar (previous name Constable Joney), PW8 - W/ASI Deepika, PW9 - Constable Rajender, PW10 - Constable Gulshan Kumar, PW11 - Retired SI Naresh Pal, PW12 - HC Mukesh, PW13 - Sh. Sachin Gupta, MM, Rohini Courts, Delhi, PW14 -
5 of 53 6 FIR No. 243/13 PS - Bhalswa Dairy ASI Shadi Lal, PW15 - Constable Siddharath, PW16 Prosecutrix (name withheld), PW17 - Inspector Laxmi Dubey, PW18 - Habibul Fakir, PW19 - Dr. Dhruv Sharma, Assistant Director, Biology, FSL, Rohini, Delhi, PW20 - W/SI Sangeeta and PW21 - SI Surender.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Shyam Lal is the MHC(M), who deposed that on 24.08.2013, he was posted at PS Bhalaswa Dairy. On that day, Inspector Laxmi Dubey had deposited in the malkhana PS Bhalaswa Dairy three sealed pullandas, one was having seals of BJRM DELHI and remaining pullandas were having seal of LD along with sample seal of BJRM JAHANGIR PURI DELHI with HC Sandeep Kumar who was working as MHC(M) on that day and after deposit relevant entry in register No. 19 was made (by) HC Sandeep at serial number 1454 in register No. 19. He identifies the handwriting and signature of HC Sandeep as he has seen him (signing) and writing in the official course of duty. He has brought original register No. 19 containing all the relevant entries, same were 6 of 53 7 FIR No. 243/13 PS - Bhalswa Dairy retained on record (OSR). Copy of entry no. 1454 is Ex.PW1/A. On 15.11.2013, he was working as MHC(M) PS Bhalaswa Dairy. On that day, SI Sangeeta has deposited one sealed pullanda with the seal of MS BJRM JAHANGIR PURI along with sample seal, in the malkhana with him. After deposit, he had made relevant entry in register No. 19 at serial no. 1616. Copy of the entry is Ex.PW1/B. On 22.10.2013 through Constable Johny, three sealed pullandas in duly sealed condition along with one sample seal were sent and deposited at FSL Rohini vide RC no. 130/21/13. He had made the relevant entry at point X to X1 against main entry Ex.PW1/A bearing his signature at point A. He has also brought the original RC register containing RC no. 130/21/13 (OSR). Copy of the RC 130/21/13 is retained on record, the copy of which is Ex.PW1/B bearing his signature at point A and signature of Constable Johny at point B. After deposit at FSL, Constable Johny handed over him receipt acknowledgment and copy of the RC. Copy of receipt acknowledgment is also retained on record and copy of the same is Ex.PW1/C. On 19.11.2013 through HC Mukesh, one sealed pullanda in duly sealed condition along with one sample seal was sent and deposited at FSL Rohini vide RC no. 141/21/13. He had made the relevant entry at point Y 7 of 53 8 FIR No. 243/13 PS - Bhalswa Dairy to Y1 against main entry Ex.PW1/B bearing his signature at point A. He has also brought the original RC register containing RC no. 141/21/13 (OSR). Copy of the RC 141/21/13 is retained on record, the copy of which is Ex.PW1/D bearing his signature at point A and signature of HC Mukesh at point B. After deposit at FSL, HC Mukesh handed over him receipt acknowledgment and copy of the RC. Copy of receipt acknowledgment is also retained on record and copy of the same is Ex.PW1/E. So long as the case property remained in his custody it was not tampered with.
PW2 - Dr. Vaibhav Gulati, Medical Officer, BJRM Hospital, Delhi, who deposed that he has been deputed by the MS of the hospital to depose on behalf of Dr. Rahul Singh who has since left the services of Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Rahul Singh and Dr. Ronal as he has seen them signing and writing during the official course of the duties. As per the MLC No. 64914, on 24.08.2013 patient prosecutrix (name withheld) W/o Habibul, Age 19 Years, Female was produced in the hospital by W/HC Deepika who was examined by Dr. 8 of 53 9 FIR No. 243/13 PS - Bhalswa Dairy Ronal, MO and then referred the patient to SR. Obs. & Gynae. The examination of the patient prosecutrix (name withheld) is from Point 'X to X1'. Dr. Rahul Singh signed the MLC at PointA and the MLC is Ex. PW2/A and Dr. Ronal signed the MLC at PointB. PW3 - W/ASI Sarla is the Duty Officer, who deposed that on 24.08.2013, she was posted as Duty Officer in PS Bhalswa Dairy and was on duty from 8.00 AM to 4.00 PM. On that day, at about 2.25 PM, Ct. Gulshan handed over a Tehrir to her which was sent by Insp. Laxmi Dubey. On the basis of which she recorded FIR No. 243/13, U/s 376/451 IPC through the computer installed in PS. She obtained a print out of the FIR. This print out has been obtained on the basis of information which is used in the routine manner for the purpose of feeding the similar category. The said computer was under her lawful control. Nothing adverse took place during the period as to cause any error regarding the information feeded in the computer. The copy of FIR is Ex. PW 3/A bearing her signature at PointA (OSR). She handed over the copy of FIR to Constable Gulshan. She also issued a certificate U/s 65B of The Evidence Act which is Ex. PW3/B bearing her signature at Point A. 9 of 53 10 FIR No. 243/13 PS - Bhalswa Dairy She made endorsement on the rukka and the same is Ex. PW3/C, bearing his signature at point A. PW4 - Dr. Anshuman Kumar, Medical Officer, BJRM Hospital, Delhi, who deposed that on 15.11.2013 he was posted as Medical Officer in Casualty at BJRM Hospital. On that day at about 2.00 PM one patient Bablu S/o Abdul, Age25 Years, Male, was brought to the hospital by the police with the alleged history of sexual assault. He was examined by Dr. Munindra Kumar, JR and by Dr. Narender Kumar, SR (Surgery) under his supervision. No fresh external injury on the body of Bablu was observed at the time of his medical examination. His potency test was conducted by Dr. Narender in his presence. It was opined that there is nothing to suggest that the patient was incapable of performing sexual intercourse. Dr. Munindra Kumar prepared the MLC of Bablu from the Portion 'X1 to X2' and signed the same at PointA. The MLC of patient Bablu is Ex. PW4/A. Dr. Narender gave his detailed notings in the encircled portion 'Y1 to Y2' on the MLC Ex. PW4/A and signed it at PointB in his presence. The MLC Ex. PW4/A bears his signature at PointC. 10 of 53 11 FIR No. 243/13 PS - Bhalswa Dairy PW5 - Dr. R. Kappu, Medical Officer BJRM Hospital, Delhi, who deposed that she has been been deputed by the MS of the hospital to depose on behalf of Dr. Sushil Pal who has since left the services of Hospital and her present whereabouts are not known. She is acquainted with the handwriting and signatures of Dr. Sushil Pal as she has seen her signing and writing during the official course of the duties. As per the MLC No. 64914, on 24.08.2013 patient prosecutrix (name withheld) W/o Habibul, Age 19 Years, Female was produced in the hospital by police whose gynaecological examination was conducted by Dr. Sushil Pal and the said examination is from Portion 'X to X1' on the MLC is already Ex. PW 2/A, bearing the signature of Dr. Sushil Pal at point C. The samples were obtained by Dr. Sushil Pal during the medical examination of the prosecutrix and same were handed over to police in sealed condition.
PW6 - Constable Satish, who deposed that on 14.11.2013 he was posted as Constable at PS Bhalswa Dairy. On that day he was patrolling the area of B7, J.J. Colony. At about 3.30 PM when he was 11 of 53 12 FIR No. 243/13 PS - Bhalswa Dairy near the house of prosecturix (name withheld), she met him and informed that accused Bablu was present in his house. He informed about this fact to IO SI Sangeeta. After sometime SI Sangeeta reached there and he alongwith IO and prosecturix (name withheld) went to the house of accused Bablu situated at B7/185, J.J.Colony, Bhalswa Dairy, Delhi, where accused Bablu was found present. He was identified by prosecutrix (name withheld). IO arrested accused Bablu in the present case vide arrest memo Ex. PW6/A bearing his signatures at PointA. The personal search of accused Bablu was also conducted vide memo Ex. PW6/B bearing his signature at PointA. IO interrogated accused Bablu, who gave the disclosure statement which is Ex. PW6/C bearing his signature at PointA. Accused Bablu also pointed the place of incident i.e H.No. B 7/289, J.J. Colony, Bhalswa Dairy (jhuggi of prosecutrix Ashiya). IO prepared pointing out memo Ex. PW6/D bearing his signature at PointA. Accused Bablu was taken to BJRM hospital for conducting his medical examination. He correctly identified accused Bablu present in the court. Thereafter, he was brought to PS. His statement was recorded by the IO.
PW7 - Constable Ashwani Kumar (previous name 12 of 53 13 FIR No. 243/13 PS - Bhalswa Dairy Constable Joney), who deposed that on 22.10.2013 he was posted as Constable at PS Bhalswa Dairy. On that day on the direction of IO SI Sangita he took one sealed parcel sealed with the seal of 'MS BJRMS J PURI DELHI' and one sample seal and two sealed parcels bearing the seal of 'LD' from MHC(M) alongwith RC no. 130/21/13 and took the same to FSL Rohini. He deposited all the above exhibits in FSL and obtained the acknowledgment receipt. Then he returned to PS and handed over the acknowledgment receipt to MHC(M). During the period the parcels remained in his custody same were not tampered with.
PW8 - W/ASI Deepika, who deposed that on 24.08.2013 she was posted as HC at PS Bhalswa Dairy. On that day on receipt of call at about 7.45 AM she alongwith SI Surender went to H.No. B7/289, Bhalswa Dairy, Delhi, where Prosecutrix (name withheld) alongwith her husband met them. Prosecutrix (name withheld) informed that one Bablu (friend of her husband) committed rape upon her. She was taken to BJRM hospital for her medical examination. After the medical examination of Prosecutrix (name withheld) doctor handed over one sealed parcel alongwith sample seal to her. Insp. Laxmi Dubey reached 13 of 53 14 FIR No. 243/13 PS - Bhalswa Dairy at BJRM hospital. She produced the sealed parcels before Insp. Laxmi Dubey and the same were taken into police possession vide memo Ex. PW8/A bearing her signature at PointA. Her statement was recorded by the IO.
PW9 - Constable Rajender, who deposed that on 15.11.2013 he was posted as Constable at PS Bhalswa Dairy. On that day he alongwith SI Sangita took accused Bablu to BJRM hospital from PS Bhalswa Dairy for his medical examination. He got conducted the medical examination of accused Bablu. After the medical examination of accused Bablu doctor handed over the sealed exhibits to him which he produced before IO. These exhibits were taken into police possession by IO vide seizure memo Ex. PW9/A bearing his signature at PointA. Thereafter, accused Bablu was produced in the Court. Accused Bablu is present in the court (correctly identified).
PW10 - Constable Gulshan Kumar, who deposed that on 24.08.2013 he was posted as Constable at PS Bhalswa Dairy. On that 14 of 53 15 FIR No. 243/13 PS - Bhalswa Dairy day he joined the investigation of this case with SI Surender. He was called in BJRM hospital by SI Surender and accordingly he reached there. SI Surender recorded the statement of prosecutrix and prepared rukka. He handed over the rukka to him and he took the same to PS Bhalswa Dairy. He got the case registered. SI Surender came to PS and he handed over the original tehrir and copy of FIR to him. His statement was recorded by the IO but he could not tell whether same was recorded by SI Surender or by the second IO. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW11 - Retired SI Naresh Pal, who deposed that on 24.8.13, he was posted at Crime Team as an Incharge. On that day he was on duty from 8 a.m. To 8 a.m. (on next day). On that day he received a wireless message from control room regarding reaching at the spot i.e. Bhalswa Dairy H.No. B7289, J.J. Colony. He alongwith Constable Siddharth Photographer and Constable Sandeep Finger Print Expert reached at the spot where IO SI Surender alongwith SHO and staff met them there. He inspected the spot and gave the direction to Constable 15 of 53 16 FIR No. 243/13 PS - Bhalswa Dairy Siddharth photographer for taking the photographs and Constable Siddharth photographer took the photographs. Constable Sandeep tried to lift the chance print from the spot but it could not be found. He prepared his report which is Ex. PW11/A bearing his signatures at point A. PW12 - HC Mukesh, who deposed that on 19.11.13, he was posted at PS - Bhalswa Dairy . On that day on the instructions of the IO MHC (M) handed over one sealed parcel containing blood sample of accused with the seal of MS BJRMS J. Puri and one sample seal of MS BJRMS J. Puri to him for depositing in FSL vide RC NO. 141/21/13 and same was deposited by him in FSL, Rohini. He obtained the acknowledgment and same were handed over to MHC(M). The sample was not tempered by anyone during in his possession. His statement was recorded by IO.
PW13 - Sh. Sachin Gupta, MM, Rohini Courts, Delhi, who deposed that on 13.11.2013 he was posted as MM in Rohini Court. On 16 of 53 17 FIR No. 243/13 PS - Bhalswa Dairy that day an application for recording statement u/s 164 Cr.P.C of victim (name withheld) D/o Habi Bul, R/o B7/289, J.J. Colony, Bhalswa Dairy was marked to him. IO SI Sangeeta has produced victim (name withheld) and identified her and he recorded her statement in this regard. IO was asked to leave the chamber. He put certain preliminary questions to the victim and after satisfying himself that she is making the statement voluntarily he proceeded to record her statement. His proceedings in this regard is Ex.PW13/A bearing his signature at PointA. Statement of victim (name withheld) recorded by him is Ex. PW13/B bearing his signature at PointA in each page and bearing thumb impression of prosecutrix (name withheld) at PointB. After recording the statement he issued the certificate regarding its correctness and the same is Ex.PW13/C bearing his signature at PointA. Ahlmad was directed to give the copy of the same on proper receipt and directed to send the proceedings to the concerned MM in sealed cover vide Ex.PW13/D bearing his signature at PointA. IO moved an application for providing the copy of statement U/s 164 Cr.P.C. of the victim and same was allowed and copy of statement was given to the IO vide application Ex. PW13/A bearing his signatures at point A. 17 of 53 18 FIR No. 243/13 PS - Bhalswa Dairy PW14 - ASI Shadi Lal, who deposed that on 24.8.13, he was posted at PS - Bhalswa Dairy and was performing the duty as Duty Officer from 12 mid night to 8 a.m. On that day at about 7:45 a.m. he received a wireless message from Control Room that (with) a married girl of age about 18 years rape has been committed. He lodged DD no. 11 A in this regard. He has brought the original. Copy of same is Ex.PW14/A bearing his signatures at point A (OSR) and he informed the SHO and DD was sent to SI Surender who alongwith HC Deepika and Constable Gulshan left the PS. PW15 - Constable Siddharth, who deposed that on 24.8.13, he was posted in Crime Team as a Photographer. On that day he was on duty from 8 a.m. To 8 a.m. (on next day). On that day SI Naresh Pal (Incharge - Crime Team) received a wireless message from control room regarding reaching at the spot i.e. Bhalswa Dairy H.No. B7289, J.J. Colony. He alongwith SI Naresh Pal and Constable Sandeep Finger Print Expert reached at the spot where IO SI Surender alongwith SHO and staff met them there. SI Naresh Pal inspected the spot and gave 18 of 53 19 FIR No. 243/13 PS - Bhalswa Dairy direction to him for taking the photographs and (he) took 10 photographs from digital camera. Photographs are Ex. PW15/A1 to A10. He issued a certificate U/s 65 B Indian Evidence Act which is Ex. PW15/B bearing his signatures at point A. Ct. Sandeep tried to lift the chance print from the spot but it could not be found. His statement was recorded by the IO.
PW16 - Prosecutrix is the victim who deposed some facts regarding the incident and prove her statement made to the police Ex. PW16/A, seizure memo of maxi and bed sheet Ex. PW16/B, her statement recorded u/s 164 Cr.P.C Ex. PW13/B and identified her cloth, maxi as Ex. P1 and the bed sheet as Ex. P2. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for State.
PW17 - Inspector Laxmi Dubey is the initial Investigating Officer (IO) of the case, who deposed that on 24.08.2013, she was posted at PS Mahendra Park. On that day, on the instructions of seniors officers, she reached PS Bhalaswa Dairy where she came to know that SI Surender along with Lady HC Deepika and Constable Gulshan along 19 of 53 20 FIR No. 243/13 PS - Bhalswa Dairy with prosecutrix have reached BJRM Hospital on the receipt of DD No. 11A. She reached BJRM Hospital where the prosecutrix was being medically examined by the doctor in BJRM Hospital. After medical examination, she obtained the MLC of prosecutrix. She recorded the statement of Prosecutrix (name withheld) which is Ex.PW16/A bearing her signatures at point B. She made her endorsement which is Ex.PW17/A bearing her signatures at point A. Same was handed over to Constable Gulshan for getting FIR register. HC Deepika handed over the sexual assault evidence kit with the seal of MS BJRMS J PURI DELHI along with sample seal and same were taken into possession vide memo Ex.PW8/A bearing her signature at point A. She informed the Crime Team for reaching at the spot. She along with the complainant/prosecutrix reached at the spot i.e. B7/289, J J Colony, Bhalaswa Dairy, Delhi. She prepared site plan at the instance of complainant/prosecutrix which is Ex.PW17/B bearing her signatures at point A. Meanwhile, Crime Team reached at the spot. Incharge, Crime Team inspected the spot and photographer of the Crime Team had taken the photographs from different angles. She recorded the statements of police officials of Crime Team. Officials of Crime Team left the spot.
20 of 53 21 FIR No. 243/13 PS - Bhalswa Dairy Prosecutrix also handed over one maxi of grey color and one bed sheet of violet color and same were sealed with the seal of LD and taken into possession vide seizure memo Ex.PW16/B bearing her signature at point B. Meanwhile, Constable Gulshan came back at the spot along with original rukka and computerized copy of FIR and same were handed over to her. She recorded the supplementary statement of victim. She also recorded the statement of husband of prosecutrix and thereafter, she along with the prosecutrix and staff went to next gali in search of accused Bablu but accused could not be traced. Thereafter, she along with staff came back to Bhalaswa Dairy and was case property was deposited in the malkhanna. She recorded the statement of witnesses. She handed over the case file to MHC(R). She identified the case property i.e maxi as Ex.P1 and bed sheet as Ex.P2.
PW18 - Habibul Fakir is the husband of prosecutrix, who deposed that he along with his wife and two children is residing at Jhuggi No. B7/289, J J Colony, Bhalaswa Dairy, Delhi. He knows Bablu who is his childhood friend. He correctly identified accused present in court. The date and month he does not recollect but it was 21 of 53 22 FIR No. 243/13 PS - Bhalswa Dairy perhaps in 2013, when he had returned to his house, he was told by his wife that when she was sleeping in the night, somebody had entered in the room and had committed galat kaam upon her. She does not disclose the name of any person who had committed the galat kaam upon her. He has nothing more to say. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW19 - Dr. Dhruv Sharma, Assistant Director, Biology, FSL, Rohini, Delhi, who deposed that on 22.10.2013, three sealed parcels and on 19.11.2013, one sealed parcel in connection with the present case FIR No. 243/13, PS Bhalaswa Dairy were received in the office of FSL, Rohini. The same were marked to him for examination. He examined the exhibits/parcels and prepared the detailed biological report Ex. PW19/A, bearing his signature at point A. Male DNA profile was generated on exhibit 3 i.e. bedsheet. Since the blood sample of accused was degraded and its DNA profile could not be generated, fresh blood sample of accused had been asked to deposit to conclude the test.
PW20 - W/SI Sangeeta is the Subsequent Investigating 22 of 53 23 FIR No. 243/13 PS - Bhalswa Dairy Officer (IO) of the case, who deposed that on 08.09.13, she was posted at PS Bhalswa Dairy. On that day present case FIR No. 243/13 U/s 376/451 IPC was assigned to her for further investigation. She had gone through the file. Statement of prosecutrix u/s 164 Cr.P.C had to be recorded. On 22.10.13, on her instruction MHC (M) handed over the exhibits of prosecutrix to Constable Johny for depositing in FSL, Rohini. Constable Johny had deposited the same in FSL, Rohini. After depositing the same he handed over the receipt on (of) RC and acknowledgment to MHC (M). She recorded the statements of MHC(M) and Constable Johny. On 14.11.13 beat Constable Satish informed her that accused Bablu who was wanted in this case was present in his house. She alongwith Constable Satish reached the house of accused Bablu i.e. B7/185, J J Colony, Bhalswa Dairy. Meanwhile, prosecutrix came there she also joined the investigation. At the instance of the prosecutrix accused Bablu present in the court (correctly identified) was arrested vide arrest memo already Ex. PW6/A bearing her signature at point C and bearing thumb impression of accused at point D. Personal search of accused was taken vide memo already Ex. PW6/B bearing her signature at point C and thumb impression of accused at point D. 23 of 53 24 FIR No. 243/13 PS - Bhalswa Dairy Accused made a disclosure statement which is already Ex. PW6/C bearing her signature at point C and thumb impression of accused at point D. Accused took them to house No. B7/289, JJ Colony Bhalswa Dairy and pointed out the place of incident, she prepared pointing out memo which is already Ex. PW6/D bearing her signature at point C and thumb impression of accused at point D. She recorded the statement of prosecutrix (name withheld) and also recorded the statement of Constable Satish. She called Constable Rajender at the spot from PS Bhalswa Dairy. On her instruction Constable Rajender took the accused Bablu to BJRM hospital for his medical examination and he got conducted the medical examination of accused Bablu. After medical examination Constable Rajender alongwith the accused came back to PS Bhalswa Dairy and She took the accused alongwith Constable Rajender to PS Jahangir Puri and accused was put inside the lock up and she alongwith Constable Rajender came back to PS Bhalswa Dairy and case property was deposited in malkhana. On 19.11.2013, on her instruction MHC (M) handed over the exhibits of accused to HC Mukesh for depositing in FSL, Rohini. HC Mukesh had deposited the same in FSL, Rohini. After depositing the same he handed over the receipt on RC and 24 of 53 25 FIR No. 243/13 PS - Bhalswa Dairy acknowledgment to MHC(M). She recorded the statement of MHC (M) and HC Mukesh. On 30.11.13, she moved an application for recording the statement of prosecutrix vide application already Ex. PW13/A bearing her signature at point B and she identified the prosecutrix vide proceeding already Ex. PW13/B bearing her signature at point C. After recording the statement of prosecutrix she obtained the copy of statement of prosecutrix recorded u/s 164 Cr.P.C vide application Ex. PW13/E bearing her signature at point B. On 10.02.2014, she went to the house of the witness namely Nazma who made a call to 100 No. and she recorded statement of Nazma. After completion of the investigation, she filed the charge sheet.
PW21 - SI Surender, who deposed that on 24.08.2013, he was posted at PS Bhalaswa Dairy. On that day, he was on emergency duty from 8 pm to 8 am. On that day, on receipt of DD No. 11A, he along with Lady HC Deepika and Constable Gulshan reached at the spot i.e. B7/289, J.J. Colony, Bhalaswa Dairy where victim/ prosecutrix (name withheld) met them. He made inquiries from victim and she told that friend of husband, namely, Bablu had committed rape upon her. He 25 of 53 26 FIR No. 243/13 PS - Bhalswa Dairy informed the senior officers. He along with HC Deepika and Constable Gulshan took the prosecutrix to BJRM Hospital where he got conducted the medical examination of prosecutrix. Meanwhile, Inspector Laxmi Dubey reached in the hospital and recorded the statement of prosecutrix which is already Ex. PW16/A and made endorsement already Ex. PW17/A and same was handed over to Constable Gulshan for getting the FIR registered. Thereafter, they came back to the spot. Inspector Laxmi Dubey prepared site plan. Meanwhile, crime team reached at the spot. Incharge, Crime Team inspected the spot and exhibits i.e. bed sheet and clothes were lifted from the spot. Same were kept in a pullanda and pullanda was sealed with the seal of LD and same was taken into possession vide seizure memo Ex.PW16/B, bearing his signature at point A. Meanwhile Constable Gulshan came back at the spot alongwith the original rukka and computerized copy of FIR and same were handed over to Inspector Laxmi Dubey. They conducted the search of accused, but no clue was found. His statement was recorded.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
26 of 53 27 FIR No. 243/13 PS - Bhalswa Dairy
6. Statement of accused Bablu was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Bablu 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 to 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 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 Sh. Ashok Kumar, Learned Addl. PP for the State and Sh. S.P. Sharma, Learned Counsel for the accused and have 27 of 53 28 FIR No. 243/13 PS - Bhalswa Dairy also carefully perused the entire record.
10. The charge for the offences punishable u/s 451/376 IPC against the accused Bablu is that on the intervening night of 23/24.08.2013, at about 3.00 AM, within the jurisdiction of PS - Bhalswa Dairy, accused Bablu committed house trespass in order to commit offence punishable with imprisonment in House No. B7/289, J.J. Colony, Bhalswa Dairy, Delhi, and at the said house accused Bablu committed rape upon the Prosecutrix (name withheld) D/o Sh. Habibul Fakir, aged about 19 years without her consent and against her will.
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. PW16 - Prosecutrix in her statement recorded in the Court 28 of 53 29 FIR No. 243/13 PS - Bhalswa Dairy on 23.09.2015 while giving her particulars has stated her age as 22 years.
Since PW16 - Prosecutrix has stated her age as 22 years on 23.09.2015 at the time of recording her statement in the Court and the date of alleged incident is the on the intervening night of 23/24.08.2013, on simple arithmetical calculation, the age of the prosecutrix comes to 19 years and 11 months as on the date of alleged incident on the intervening night of 23/24.08.2013.
Moreover, the said factum of age of PW16 - Prosecutrix has also not been disputed by accused Bablu. 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 PW16 - Prosecutrix was aged 19 years and 11 months as on the date of the alleged incident on the intervening night of 23/24.08.2013. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW2 - Dr. Vaibhav Gulati, Medical Officer, BJRM 29 of 53 30 FIR No. 243/13 PS - Bhalswa Dairy Hospital, Delhi, has deposed that he has been deputed by the MS of the hospital to depose on behalf of Dr. Rahul Singh who has since left the services of Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Rahul Singh and Dr. Ronal as he has seen them signing and writing during the official course of the duties. As per the MLC No. 64914, on 24.08.2013 patient prosecutrix (name withheld) W/o Habibul, Age 19 Years, Female was produced in the hospital by W/HC Deepika who was examined by Dr. Ronal, MO and then referred the patient to SR. Obs. & Gynae. The examination of the patient prosecutrix (name withheld) is from Point 'X to X1'. Dr. Rahul Singh signed the MLC at PointA and the MLC is Ex. PW2/A and Dr. Ronal signed the MLC at PointB. PW5 - Dr. R. Kappu, Medical Officer BJRM Hospital, Delhi, has deposed that she has been been deputed by the MS of the hospital to depose on behalf of Dr. Sushil Pal who has since left the services of Hospital and her present whereabouts are not known. She is acquainted with the handwriting and signatures of Dr. Sushil Pal as she has seen her signing and writing during the official course of the duties.
30 of 53 31 FIR No. 243/13 PS - Bhalswa Dairy As per the MLC No. 64914, on 24.08.2013 patient prosecutrix (name withheld) W/o Habibul, Age 19 Years, Female was produced in the hospital by police whose gynaecological examination was conducted by Dr. Sushil Pal and the said examination is from Portion 'X to X1' on the MLC is already Ex. PW 2/A, bearing the signature of Dr. Sushil Pal at point C. The samples were obtained by Dr. Sushil Pal during the medical examination of the prosecutrix and same were handed over to police in sealed condition.
Despite grant of opportunity, PW2 - Dr. Vaibhav Gulati and PW5 - Dr. R. Kappu were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical and the gynaecological examination from point X to X1 and from portion X to X1 on the MLC Ex. PW2/A of PW16 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED BABLU
14. PW4 - Dr. Anshuman Kumar, Medical Officer, BJRM 31 of 53 32 FIR No. 243/13 PS - Bhalswa Dairy Hospital, Delhi, has deposed that on 15.11.2013 he was posted as Medical Officer in Casualty at BJRM Hospital. On that day at about 2.00 PM one patient Bablu S/o Abdul, Age25 Years, Male, was brought to the hospital by the police with the alleged history of sexual assault. He was examined by Dr. Munindra Kumar, JR and by Dr. Narender Kumar, SR (Surgery) under his supervision. No fresh external injury on the body of Bablu was observed at the time of his medical examination. His potency test was conducted by Dr. Narender in his presence. It was opined that there is nothing to suggest that the patient was incapable of performing sexual intercourse. Dr. Munindra Kumar prepared the MLC of Bablu from the Portion 'X1 to X2' and signed the same at PointA. The MLC of patient Bablu is Ex. PW4/A. Dr. Narender gave his detailed notings in the encircled portion 'Y1 to Y2' on the MLC Ex. PW4/A and signed it at PointB in his presence. The MLC Ex. PW4/A bears his signature at PointC. Despite grant of opportunity, PW4 - Dr. Anshuman Kumar was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands 32 of 53 33 FIR No. 243/13 PS - Bhalswa Dairy proved on the record that accused Bablu was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW19 - Dr. Dhruv Sharma, Assistant Director, Biology, FSL, Rohini, Delhi, has deposed that on 22.10.2013, three sealed parcels and on 19.11.2013, one sealed parcel in connection with the present case FIR No. 243/13, PS Bhalaswa Dairy were received in the office of FSL, Rohini. The same were marked to him for examination. He examined the exhibits/parcels and prepared the detailed biological report Ex. PW19/A, bearing his signature at point A. Male DNA profile was generated on exhibit 3 i.e. bedsheet. Since the blood sample of accused was degraded and its DNA profile could not be generated, fresh blood sample of accused had been asked to deposit to conclude the test.
As per biological report Ex. PW19/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL 33 of 53 34 FIR No. 243/13 PS - Bhalswa Dairy Parcel '1' : One sealed cloth parcel sealed with the seal of "MS BJRMS JPURI DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m', '1n', '1o(i)' and '1o(ii)' described to be of victim.
Exhibit '1a' : Cotton wool swab on a stick described as body fluid collection.
Exhibit '1b' : Cotton wool swab on a stick described as In between fingers.
Exhibit '1c' : Nail clippings described as nail scrapping. Exhibit '1d' : Cotton wool swab on a stick described as breast swab.
Exhibit '1e' : One empty envelope described as combing of Pubic hair.
Exhibit '1f' : Few cuttings of hair described as clipping of pubic hair.
Exhibit '1g' : Few hair described as matted pubic hair. Exhibit '1h' : Cotton wool swab on a stick and smear on two microslides described as vaginal secretion. Exhibit '1i' : Cotton wool swab on a stick described as cervical mucous collection.
Exhibit '1j' : Cotton wool swab on a stick described as culture.
Exhibit '1k' : Very small amount of liquid kept in a syringe described as Vaginal washing.
Exhibit '1l' : Cotton wool swab on a stick and smear on two microslides described as rectal examination. Liquid blood sample in a vial.
34 of 53 35 FIR No. 243/13 PS - Bhalswa Dairy Exhibit '1m' : Cotton wool swab on a stick and smear on two microslides described as vaginal swab.
Exhibit '1n' : Liquid blood sample in a vial.
Exhibit '1o(i)' : Liquid blood sample in a tube.
Exhibit '1o(ii)' : One empty container described as urine.
Parcel '2' : One sealed cloth parcel sealed with the
seal of "LD" containing exhibit '2'.
Exhibit '2' : One maxi.
Parcel '3' : One sealed cloth parcel sealed with the
seal of "LD" containing exhibit '3'.
Exhibit '3' : One bedsheet.
RESULTS OF BIOLOGICAL EXAMINATION
1. Semen was detected on exhibit '3'.
2. Semen could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m' and '2'. DNA EXAMINATION Exhibits '1h', '1i', '1k', '3' and '4' were subjected to DNA examination. Identifiler plus STR amplification kit was used for PCR amplification and Gene Mapper IDx Software was used to DNA profiling (STR 35 of 53 36 FIR No. 243/13 PS - Bhalswa Dairy analysis) in each of these exhibits.
RESULTS OF DNA ANAYSIS No male DNA profile could be generated from the source of exhibits '1h', '1i', '1k' (vaginal swab, cervical swab and vaginal washing). Male DNA profile was generated from the source of exhibit '3' (bedsheet), DNA profile could not be generated from the source of exhibit '4' (Blood gauze of accused), which may be due to degradation, hence comparison with the DNA profile generated from the source of exhibit '3' (bedsheet) could not be done.
NOTE :
1. Fresh blood sample of the accused may be sent for DNA examination for matching, if required.
2. Remnants of the exhibits have been sealed with the seal of 'DS FSL DELHI'.
As per the biological report Ex. PW19/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 and 2 belong to the prosecutrix which were seized vide seizure memo Ex. PW8/A dated 24.08.2013, Parcel No 4. belongs to the accused Bablu which was seized vide seizure memo Ex.PW9/A dated 15.11.2013 and Parcel No. 3 containing the bed sheet which was 36 of 53 37 FIR No. 243/13 PS - Bhalswa Dairy spread on the 'Thakht' at scene of crime vide seizure memo Ex. PW16/B dated 24.08.2013.
On careful perusal and analysis of the biological and DNA evidence on record, it clearly shows that Human Semen was detected on exhibit '3' (bed sheet which was spread on the 'Thakat' at the scene of crime) and semen could not be detected on exhibit '1a' (Cotton wool swab on a stick described as body fluid collection of the prosecutrix), exhibit '1b' (Cotton wool swab on a stick described as In between fingers of the prosecutrix), exhibit '1c'(Nail clippings described as nail scrapping of the prosecutrix), exhibit '1d' (Cotton wool swab on a stick described as breast swab of the prosecutrix), exhibit '1e' (One empty envelope described as combing of Pubic hair of the prosecutrix), exhibit '1f' (Few cuttings of hair described as clipping of pubic hair of the prosecutrix), exhibit '1g' (Few hair described as matted pubic hair of the prosecutrix), exhibit '1h' (Cotton wool swab on a stick and smear on two microslides described as vaginal secretion of the prosecutrix), exhibit '1i' (Cotton wool swab on a stick described as cervical mucous 37 of 53 38 FIR No. 243/13 PS - Bhalswa Dairy collection of the prosecutrix), exhibit '1j' (Cotton wool swab on a stick described as culture of the prosecutrix), exhibit '1k' (Very small amount of liquid kept in a syringe described as Vaginal washing of the prosecutrix), exhibit '1l' (Cotton wool swab on a stick and smear on twomicroslides described as rectal examination of the prosecutrix), exhibit '1m' (Cotton wool swab on a stick and smear on two microslides described as vaginal swab of the prosecutrix) and exhibit '2' (maxi of the prosecutrix). No male DNA profile could be generated from the source of exhibits '1h', '1i', '1k' (vaginal swab, cervical swab and vaginal washing). Male DNA profile was generated from the source of exhibit '3' (bedsheet), DNA profile could not be generated from the source of exhibit '4' (Blood gauze of accused), which may be due to degradation, hence comparison with the DNA profile generated from the source of exhibit '3' (bedsheet) could not be done.
16. Now let the testimony of PW16 Prosecutrix be perused and analysed.
PW16 - Prosecutrix, in her examinationinchief has 38 of 53 39 FIR No. 243/13 PS - Bhalswa Dairy deposed which is reproduced and reads as under : "About 2 years ago, in a summer night, my husband was taking liquor with his friend/Bablu outside my house near the Teastall. At about 11.30 p.m. on the night I went to the place where my husband was taking liquor with accused Bablu for the purpose of taking him back to his house. Accused Bablu told me that he will drop my husband at my house after finishing the liquor. I went to my house where my two minor children were sleeping. After some time, my husband who was under
the influence of liquor brought by accused Bablu to our house. My husband was under the influence of heavy liquor, therefore, my husband laid down on the ground near the Takhat/Palang. My husband went to in deep sleep. On that day, there was no light in my house and the same was switched off by me before going to bed, therefore, I cannot tell as to who had entered into my house. The person who entered in my house has laid down upon me as I was sleeping on Takhat/Palang. When I felt weight upon me, I pushed the said person aside and when I switched on the light in my house, no one was found in my house at that time and the person which was pushed by me had fled away as the doors of my room were not bolted. I raised an alarm and my neighbours gathered at my house to whom I informed about the incident. My neighbours went in search of the said person but no person could be apprehended. I was wearing Maxi/night gown at the time the said person laid upon me. The said person committed 'galat kaam' upon me. 'Galat kaam' I mean he committed rape upon me. Since Bablu had drunk the liquor with my husband, I suspected upon him but Bablu was not involved in committal of any 'galat kaam' upon me. Someone in the neighbourhood had made the call to the police. Police reached there and on the basis of my suspicion upon Bablu I informed the police, who in fact was not involved
39 of 53 40 FIR No. 243/13 PS - Bhalswa Dairy in the committal of any 'galat kaam' upon me. Police took me to the hospital where my medical examination was conducted and thereafter my statement was recorded by the police. My statement is Ex. PW16/A bearing my thumb impression at PointA. Vol. I made the statement to the police on the basis of the suspicion upon Bablu, in fact Bablu was not involved in committal of any 'galat kaam' upon me.
I can identify Bablu, if shown to me.
At this stage, the wooden partition has been removed. Accused Bablu is present in the court (correctly identified).
The wooden partition now has been restored to its original position.
I do not want to say anything else."
From the aforesaid narration of PW16 - Prosecutrix, it is clear that about 2 years ago, in a summer night, her husband was taking liquor with his friend/Bablu outside her house near the Teastall. At about 11.30 p.m. on the night she went to the place where her husband was taking liquor with accused Bablu for the purpose of taking him back to his house. Accused Bablu told her that he would drop her husband at her house after finishing the liquor. She went to her house where her two minor children were sleeping. After some time, her husband who was under the influence of liquor brought by accused Bablu to their house. Her husband was under the influence of heavy liquor, therefore, her 40 of 53 41 FIR No. 243/13 PS - Bhalswa Dairy husband laid down on the ground near the Takhat/Palang. Her husband went to in deep sleep. On that day, there was no light in her house and the same was switched off by her before going to bed, therefore, she could not tell as to who had entered into her house. The person who entered in her house has laid down upon her as she was sleeping on Takhat/Palang. When she felt weight upon her, she pushed the said person aside and when she switched on the light in her house, no one was found in her house at that time and the person which was pushed by her had fled away as the doors of her room were not bolted. She raised an alarm and her neighbours gathered at her house to whom she informed about the incident. Her neighbours went in search of the said person but no person could be apprehended. She was wearing Maxi/night gown at the time the said person laid upon her. The said person committed 'galat kaam' upon her. 'Galat kaam' she mean he committed rape upon her. Since Bablu had drunk the liquor with her husband, she suspected upon him but Bablu was not involved in committal of any 'galat kaam' upon her. Someone in the neighbourhood had made the call to the police. Police reached there and on the basis of her suspicion upon Bablu she informed the police, who in fact was not 41 of 53 42 FIR No. 243/13 PS - Bhalswa Dairy involved in the committal of any 'galat kaam' upon her. Police took her to the hospital where her medical examination was conducted and thereafter her statement was recorded by the police. Her statement is Ex. PW16/A bearing her thumb impression at PointA. Vol. She made the statement to the police on the basis of the suspicion upon Bablu, in fact Bablu was not involved in committal of any 'galat kaam' upon her. She correctly identified accused Bablu present in the Court. She does not want to say anything else.
PW16 - 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 : "My statement was recorded by the police. It is correct that my medical examination was conducted in the hospital. It is correct that my maxi of gray colour, red and blue printed flowers and bedsheet were seized by the police vide seizure memo Ex. PW16/B. My statement u/s 164 Cr.P.C was recorded by the Ld MM which is already Ex. PW13/B bearing my thumb impression at points B on each page. Vol.I made the statement u/s 164 Cr.P.C on the basis of the suspicion upon Bablu, in fact Bablu was not involved in committal of any 'galat kaam' upon me.
It is wrong to suggest that I made the statement to the police 42 of 53 43 FIR No. 243/13 PS - Bhalswa Dairy Ex. PW16/A as well as the statement u/s 164 Cr.P.C Ex. PW13/B voluntarily without being under any suspecion or that the 'galat kaam' was committed upon me by accused Bablu.
It is correct that accused Bablu was arrested by the police on my identification vide arrest memo Ex. PW6/A and the personal search was conducted vide personal search memo Ex. PW6/B, both bearing my thumb impression at point B. It is correct that accused Bablu made the disclosure statement Ex. PW6/C, bearing my thumb impression at point B. I can identify the case property, if shown to me. At this stage, parcel No. 2 sealed with the seal of DS FSL DELHI bearing the particulars of this case is produced by the MHCM, opened from which one Maxi is taken out and shown to the witness who identifies the same as belonging to her and the Maxi is Ex. P1.
At this stage, parcel No. 3 sealed with the seal of DS FSL DELHI bearing the particulars of this case is produced by the MHCM, opened from which one bedsheet is taken out and shown to the witness who identifies the same as belonging to her and the bedsheet is Ex. P2.
It is wrong to suggest that I am concealing the true and the actual facts or that deliberately I am deposing falsely in order to save the accused. It is wrong to suggest that I have compromised the matter with the accused. It is wrong to suggest that I have been won over by the accused and for this reason I am deposing favouring the accused. It is wrong to suggest that I am deliberately or intentionally suppressing the material facts recorded in my statements Ex. PW16/A and Ex. PW13/B or that the said statements were recorded on my dictation/narration or that after being satisfied regarding the correctness of the same, I had put my thumb impressions thereupon. It is wrong to suggest that I am deposing falsely. "
43 of 53 44 FIR No. 243/13 PS - Bhalswa Dairy During her crossexamination by the Learned Counsel for the accused, PW16 - Prosecutrix has deposed that : "It is correct that there were close friendly relations between my husband Habibul Fakeer and accused Bablu. It is correct that we were on visiting terms to the house of accused Bablu. It is correct that my thumb impressions were obtained by the police on plain/blank papers. It is correct that police had not read out to me the contents of the papers on which my thumb impressions were obtained by the police. It is correct that I have made the deposition today of my own free will without any pressure or coercion."
On analysing the entire testimony of PW16 - Prosecutrix it is clearly indicated that during her examinationinchief she has specifically deposed that about 2 years ago, in a summer night, her husband was taking liquor with his friend/Bablu outside her house near the Teastall. At about 11.30 p.m. on the night she went to the place where her husband was taking liquor with accused Bablu for the purpose of taking him back to his house. Accused Bablu told her that he would drop her husband at her house after finishing the liquor. She went to her house where her two minor children were sleeping. After some time, her husband who was under the influence of liquor brought by accused 44 of 53 45 FIR No. 243/13 PS - Bhalswa Dairy Bablu to their house. Her husband was under the influence of heavy liquor, therefore, her husband laid down on the ground near the Takhat/Palang. Her husband went to in deep sleep. On that day, there was no light in her house and the same was switched off by her before going to bed, therefore, she could not tell as to who had entered into her house. The person who entered in her house has laid down upon her as she was sleeping on Takhat/Palang. When she felt weight upon her, she pushed the said person aside and when she switched on the light in her house, no one was found in her house at that time and the person which was pushed by her had fled away as the doors of her room were not bolted. She raised an alarm and her neighbours gathered at her house to whom she informed about the incident. Her neighbours went in search of the said person but no person could be apprehended. She was wearing Maxi/night gown at the time the said person laid upon her. The said person committed 'galat kaam' upon her. 'Galat kaam' she mean he committed rape upon her. Since Bablu had drunk the liquor with her husband, she suspected upon him but Bablu was not involved in committal of any 'galat kaam' upon her. Someone in the neighbourhood had made the call to the police. Police reached there and on the basis of 45 of 53 46 FIR No. 243/13 PS - Bhalswa Dairy her suspicion upon Bablu she informed the police, who in fact was not involved in the committal of any 'galat kaam' upon her. Police took her to the hospital where her medical examination was conducted and thereafter her statement was recorded by the police. Her statement is Ex. PW16/A bearing her thumb impression at PointA. Vol. She made the statement to the police on the basis of the suspicion upon Bablu, in fact Bablu was not involved in committal of any 'galat kaam' upon her. During her crossexamination by Learned Addl. PP for the State she deposed that her statement u/s 164 Cr.P.C was recorded by the Learned MM which is already Ex. PW13/B bearing her thumb impression at points B on each page. Vol. She made the statement u/s 164 Cr.P.C on the basis of the suspicion upon Bablu, in fact Bablu was not involved in committal of any 'galat kaam' upon her. She negated the suggestions put to her by the Learned Addl. PP for the State that she made the statement to the police Ex. PW16/A as well as the statement u/s 164 Cr.P.C Ex. PW13/B voluntarily without being under any suspicion or that the 'galat kaam' was committed upon her by accused Bablu or that she is concealing the true and the actual facts or that deliberately she is deposing falsely in order to save the accused or that she has 46 of 53 47 FIR No. 243/13 PS - Bhalswa Dairy compromised the matter with the accused or that she has been won over by the accused and for this reason she is deposing favouring the accused or that she is deliberately or intentionally suppressing the material facts recorded in her statements Ex. PW16/A and Ex. PW13/B or that the said statements were recorded on her dictation/narration or that after being satisfied regarding the correctness of the same, she had put her thumb impressions thereupon or that she is deposing falsely.
As discussed hereinbefore, PW16 - Prosecutrix, has been found to be aged around 20 years, from the testimony of PW16 - prosecutrix, nothing is being indicated that on the intervening night of 23/24.08.2013, at about 3.00 AM, accused Bablu committed house trespass in order to commit offence punishable with imprisonment in House No. B7/289, J.J. Colony, Bhalswa Dairy, Delhi, or that at the said house accused Bablu committed rape upon the prosecutrix without her consent and against her will. Even the FSL Report Ex. PW 19/A as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
47 of 53 48 FIR No. 243/13 PS - Bhalswa Dairy Now, let the testimony of PW18 Habibul Fakir, husband of the prosecutrix be perused and analysed.
PW 18 Habibul Fakir is the husband of the prosecutrix who in his examinationinchief has deposed that he along with his wife and two children is residing at Jhuggi No. B7/289, J J Colony, Bhalaswa Dairy, Delhi. He knows Bablu who is his childhood friend. He correctly identified accused present in court. The date and month he does not recollect but it was perhaps in 2013, when he had returned to his house, he was told by his wife that when she was sleeping in the night, somebody had entered in the room and had committed galat kaam upon her. She does not disclose the name of any person who had committed the galat kaam upon her. He has nothing more to say.
PW 18 Habibul Fakir, husband of the prosecutrix, was also crossexamined by the Learned Addl. PP for the State as he was resiling from his previous statement which is reproduced and reads as under : 48 of 53 49 FIR No. 243/13 PS - Bhalswa Dairy "My statement was not recorded by the police. I did not make any complaint to any superior police officials regarding his implication in the case. It is wrong to suggest that I did not make any complaint to any superior police official as he was correctly implicated in this case. I cannot read and write Hindi.
Statement dated 24.08.2013 is read over to the witness who denies of having made any such statement to the police. The statement datd 24.08.2013 is Mark PW18/A. I had not stated to the police that on 23.07.2013 at about 11:30 pm, Bablu came to my home and took me in the gali and we both had consumed the liquor. Meanwhile, my wife came there to call me but Bablu did not allow me to go to home and asked my wife that he dropped me to my home. On this, my wife went to her home (confronted with the portion A to A of Mark PW18/A where it is so recorded).
It is wrong to suggest that I had stated to the police that on 23.07.2013 at about 11:30 pm, Bablu came to my home and took me in the gali and we both had consumed the liquor. Meanwhile, my wife came there to call me but Bablu did not allow me to go to home and asked my wife that he dropped(will drop) me to my home. On this, my wife went to her home.
I had not stated to the police that Bablu dropped me in my home as I was under the heavy influence of liquor and I laid down on the floor and Bablu was standing at the gate of my home at about 3/3:15 am, my wife awoke me and told me that Bablu had committed rape upon her and after committing rape, he ran away from there. (confronted with the portion B to B of Mark PW18/A where it is so recorded).
It is wrong to suggest that Bablu dropped me in my home as I was under the heavy influence of liquor and I laid down on the floor and Bablu was standing at the gate of my home at about 3/3:15 am, my 49 of 53 50 FIR No. 243/13 PS - Bhalswa Dairy wife awoke me and told me that Bablu had committed rape upon her and after committing rape, he ran away from there.
It is wrong to suggest that I am deposing falsely being the childhood friend of accused Bablu".
PW18 Habibul Fakir was not crossexamined on behalf of accused despite grant of opportunity.
On careful perusal and analysis of the testimony of PW18 Habibul Fakir, husband of the prosecutrix, it is found that nothing material has come out in his testimony so as to advance the case of the prosecution on the core spectrum of the crime. He negated the suggestions, as were put to him by the Learned Addl. PP, that he did not make any complaint to any superior police official as he was correctly implicated in this case or that he had stated to the police that on 23.07.2013 at about 11:30 pm, Bablu came to his home and took him in the gali and they both had consumed the liquor. Meanwhile, his wife came there to call him but Bablu did not allow him to go to home and asked his wife that he dropped (will drop) him to his home. On this, his 50 of 53 51 FIR No. 243/13 PS - Bhalswa Dairy wife went to her home or that Bablu dropped him in his home as he was under the heavy influence of liquor and he laid down on the floor and Bablu was standing at the gate of his home at about 3/3:15 am, his wife awoke him and told him that Bablu had committed rape upon her and after committing rape, he ran away from there or that he is deposing falsely being the childhood friend of accused Bablu.
17. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Bablu. The hostility of PW16 - Prosecutrix and that of PW18 - Habibul Fakir, her husband has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that on the intervening night of 23/24.08.2013, at about 3.00 AM, accused Bablu committed house trespass in order to commit offence punishable with imprisonment in House No. B7/289, J.J. Colony, Bhalswa Dairy, Delhi or that at the said house accused Bablu committed rape upon PW16 Prosecutrix, aged around 20 years without her consent and against her will.
51 of 53 52 FIR No. 243/13 PS - Bhalswa Dairy I accordingly, acquit accused Bablu for the offences punishable u/s 451/376 IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Bablu in the commission of offences punishable u/s 451/376 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 Bablu beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Bablu. I, therefore, acquit accused Bablu for the offences punishable u/s 451/376 IPC after giving him the benefit of doubt. Accused Bablu is on bail. However, u/s 437A Cr.P.C accused Bablu shall furnish a personal bond in the sum of Rs. 20,000/ with a surety in the like amount and the accused and the surety shall also require to annex their latest passport size photographs alongwith their latest residential proof (vide State Vs. Virender Yadav & Anr. 2014 1 AD (DELHI) 389) which 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 52 of 53 53 FIR No. 243/13 PS - Bhalswa Dairy against this judgment.
Announced in the open Court (MAHESH CHANDER GUPTA) on 27th Day of January, 2016 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 53 of 53