Delhi District Court
State vs . Sanjay on 17 July, 2015
1
FIR No. 90/13
PS - Narela
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 239/13
Unique ID No. : 02404R0125392013
State Vs. Sanjay
S/o Sh. Mannu Singh
R/o Village - Mushi Nagar,
Hathema,
Post Office/PS - Gazipur,
District - Fateh Pur, (U.P.)
FIR No. : 90/13
Police Station : Narela
Under Sections : 376/506 IPC
Date of committal to session Court : 10/05/2013
Date on which judgment reserved : 07/07/2015
Date on which judgment announced : 17/07/2015
J U D G M E N T
1 of 50 2 FIR No. 90/13 PS - Narela
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 04/02/2013, on receipt of DD No. 40A, dated 04/02/2013, regarding committal of rape at A 93, Bhorgarh, near SRHC Hospital, SI Seema from PS Narela, on return from Jaipur vide DD No. 52A from PS Narela with W/Constable Meenu reached at Police Chowki DSIDC Narela, Delhi where SI Mahavir Singh with W/Constable Raj Bala, Constable Ravinder, other Police staff and complainant (name withheld being a case u/s 376 IPC) were found present. After calling NGO Najma Khan, the inquiries were made from complainant W/o Ajay Gagoi R/o H. No. 186, Gali No. 1 B, Swatantra Nagar, Narela, Delhi who made the statement which is to the effect that, she lives with her husband and children for the last sixseven months on rent at the above address and does the labour work. She is the daughter inlaw of Village Ghuguha, District Dhimaji, PS Dhimaji, Assam. Since last November she has started doing work as a labourer in a cloth bag factory at A 93, DSIDC Narela, Delhi and her duty used to be from 8:00 a.m. to 8:00 p.m. On 05/12/2012 at about 12:00 noon when she had gone to the toilet of the factory then following her Sanjay, Supervisor of 2 of 50 3 FIR No. 90/13 PS - Narela the factory also came and he caught hold her outside the toilet and she made efforts to save herself on which Sanjay threatened her if she will raise noise, then he will throw her from the job in the factory and he is having number of boys who will kill her and she got too much frightened. Sanjay forcibly made physical relations with her in the toilet without her consent and committed rape upon her thereafter, Sanjay committed rape upon her a few times in the factory and for not disclosing about this he had threatened to kill her. Being harassed from the activities of Sanjay (Sanjay Ki Harkaton Se Tang Aa Kar) on 07/01/2013, she left the factory job but still Sanjay is continuously pressurizing her for coming to the factory. On 30/01/2013, at about 11:30 a.m., Sanjay came to her house when her husband had gone to the factory and her child had gone to School. On that day, Sanjay by threatening to kill her and her husband also committed galat kaam with her in her house. Ultimately, after being too much harassed (Akhirkar Bahut Pareshan Ho Kar) she told all about the incident to her husband and today on 04/02/2013, Police was informed in this regard on No. 100. Police came and made interrogation from her and her statement was recorded. Sanjay by threatening and intimidating her had committed 3 of 50 4 FIR No. 90/13 PS - Narela rape upon her. Legal action be taken against him. Statement has been heard, understood and is correct. Medical examination of the prosecutrix was got conducted from the SRHC Hospital, Narela vide MLC No. 4229. On the basis of the statement of the prosecutrix, from the inspection of MLC and from the circumstances finding that offences u/s 376/506 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Seema. During the course of investigation, SI Seema prepared the site plan of the place of incident, recorded the statement of the witnesses and searched for accused Sanjay. On 05/02/2013, accused Sanjay was arrested on the identification of the prosecutrix and his medical examination was got conducted vide MLC No. 232/13 and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession and were deposited in the Malkhana. HIV test of accused Sanjay was also got conducted. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded. The sealed exhibits were sent to the FSL on 18/02/2013 vide RC No. 53/21/13.
Upon completion of the necessary further investigation challan for the offences u/s 376/506 IPC was prepared against accused 4 of 50 5 FIR No. 90/13 PS - Narela Sanjay and was sent to the Court for trial.
2. Since the offence under section 376 IPC is 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.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 376/506 IPC was made out against accused Sanjay. 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 Ved Singh, PW2 - HC Surender Singh, PW3 - Dr. Nipun Sharma, S.R., SRHC Hospital, Delhi, PW4 - Constable Ravinder Kumar, PW5 - Constable Amit, PW6 - W/Constable Raj Bala, PW7 - Prosecutrix (name withheld), PW8 - Dr. Awdesh, Medical Officer, SRHC Hospital, Narela, Delhi, PW9 - Sh. Sunil Kumar, 5 of 50 6 FIR No. 90/13 PS - Narela MM, Rohini Courts, Delhi, PW10 - Sh. V. Shankarnarayanan, SSO, FSL, Rohini, Delhi, PW11 - Sh. Ajay Gagoi, PW12 - Sh. Saurav Singhal, PW13 - Inspector Mahavir and PW14 - W/SI Seema.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Ved Singh is the MHC(M), who deposed that on 04/02/2013, he was posted as MHC(M) in PS Narela. On that day, SI Seema deposited two sealed pullindas alongwith two sample seals in the Malkhana. He made entry at Serial No. 79 in Register No. 19. On 05/02/2013, SI Seema deposited one sealed pullinda alongwith sample seal in the Malkhana. He made entry at Serial No. 80 in Register No. 19. On 18/02/2013, on the instructions of IO, three sealed pullindas alongwith two sample seals were handed over to Constable Amit for depositing in the FSL, Rohini vide RC No. 53/21/13. After depositing the same in FSL, he had deposited the acknowledgment receipt of the pullinda with him. He has brought the Register No. 19 and 21. The copy of the relevant entries of Register No. 19 is Ex. PW1/A (colly.). The copy of relevant entry of Register No. 21 is Ex. PW1/B. Copy of the 6 of 50 7 FIR No. 90/13 PS - Narela acknowledgment receipt is Ex. PW1/C (OSR). Sealed pullindas remained intact during his custody.
PW2 - HC Surender Singh is the Duty Officer, who deposed that on 04/02/2013, he was posted as Duty Officer in PS Narela and was on duty from 4:00 p.m. to 12:00 midnight. On that day, at about 11:50 p.m., Constable Ravinder handed over him a Tehrir sent by SI Seema and on the basis of which and on his instructions, the present FIR No. 90/13 was registered u/s 376/506 IPC and after registration of FIR, he handed over the copy of FIR and original Rukka to Constable Ravinder for handing over the same to SI Seema further investigation. He has brought the original FIR register. Copy of the same is Ex. PW2/A, bearing his signature at point 'A'. He made endorsement on the Rukka and the same is Ex. PW2/B, bearing his signature at point 'A'.
PW3 - Dr. Nipun Sharma, S.R., SRHC Hospital, Delhi, who deposed that on 04/02/2013 one patient/prosecutrix (name withheld) W/o Ajay Age 26 years female was brought to the Hospital with alleged 7 of 50 8 FIR No. 90/13 PS - Narela history of sexual assault by her employer/colleague since last three months and thereafter patient has given history of sexual contact with her husband. Patient had given H/O last sexual contact with her employer/ colleague five days back. On P/V examination nothing abnormal detected. No H/O injury around her private part. Hymen is of multiparous size. CopperT thread seen on examination. Samples were taken, sealed and were handed over to the Police official. She prepared the MLC and same is Ex. PW3/A, bearing her signature at point 'A'. She also filled the sexual assault evidence collection kit and the same is Ex. PW3/B, bearing her signature at point 'A'.
PW4 - Constable Ravinder Kumar, who deposed that on 04/02/2013, he was posted as Constable in PS Narela. On that day, SI Seema received DD No. 48A. He alongwith SI Mahavir remained in the investigation of the present case. SI Seema had recorded statement of the complainant/prosecutrix (name withheld) who was present in the Police Post Bhor Garh. NGO was also present in the Chowki. Thereafter, he alongwith SI Seema, NGO took complainant/prosecutrix (name withheld) alongwith her husband in the SRHC Hospital where she 8 of 50 9 FIR No. 90/13 PS - Narela was medically examined. IO SI Seema had handed over to him a Tehrir at about 11:30 p.m. for getting the FIR registered. He got the FIR registered in the Police Station and thereafter he reached at the spot A93, DSIDC, Bhor Garh, Narela and handed over to the IO the copy of FIR and original Rukka at about 12:50 p.m. again said 12:50 a.m. (midnight). Thereafter, at about 2:30 a.m. accused Sanjay was entering in the factory and at the instance of the complainant accused Sanjay, present in the Court was apprehended, he was interrogated and arrested vide arrest memo Ex. PW4/A, bearing his signature at point 'A', his personal search was conducted vide memo Ex. PW4/B and he made disclosure statement Ex. PW4/C, bearing his signature at point 'A'. Accused pointed out the place of occurrence vide pointing out memos Ex. PW4/D & Ex. PW4/E, bearing his signature at point 'A'. Thereafter, he alongwith Constable Satbir took accused Sanjay to SRHC Hospital where he was medically examined and after medical examination, Doctor handed over the sealed pullinda containing exhibits and the same were seized vide memo Ex. PW4/F, bearing his signature at point 'A'.
PW5 - Constable Amit, who deposed that on 18/02/2013, he 9 of 50 10 FIR No. 90/13 PS - Narela was posted as Constable in PS Narela. On that day, on the instructions of IO, he took three sealed pullindas alongwith sample seal and FSL Form for depositing it in FSL Rohini vide RC No. 53/21/13. Accordingly, he deposited the same in FSL Rohini and thereafter deposited the acknowledgment receipt with the MHC(M). The sealed pullindas remained intact during his custody.
PW6 - W/Constable Raj Bala, who deposed that on 04/02/2013, he was posted as Constable in PS Narela. On that day, he alongwith SI Mahavir, Constable Ravinder and IO SI Seema took victim/prosecutrix (name withheld) to SRHC Hospital where she was medically examined and after medical examination, Doctor handed over the sealed pullinda containing exhibits and same were seized vide memo Ex. PW6/A, bearing his signature at point 'A'. On 05/02/2013, in the night IO prepared the site plan at the instance of the complainant.
PW7 - Prosecutrix is the victim, who deposed some facts regarding the incident and marked her statement made to the Police Mark PW7/PX, proved her statement recorded u/s 164 Cr.P.C. Ex. PW7/A 10 of 50 11 FIR No. 90/13 PS - Narela bearing her signature at point 'A', arrest memo of accused Sanjay Ex. PW4/A, his personal search memo Ex. PW4/B, pointing out memos by the accused of the places of occurrence Ex. PW4/D and Ex. PW4/E, his disclosure statement Ex. PW4/C and the document of sexual assault examination Ex. PW3/B but she did not support the prosecution and was also crossexamined by the Learned Addl. PP for State.
PW8 - Dr. Awdesh, Medical Officer, SRHC Hospital, Narela, Delhi, who deposed that on 05/02/2013 one patient Sanjay S/o Munna, Age 25 Years, Male was brought to Hospital for medical examination. After examination he opined that there is nothing to suggest that patient is not capable of performing sexual intercourse. Samples were taken, sealed and handed over to the concerned Police official. He prepared the MLC and the same is Ex. PW8/A bearing his signature at Point 'A'.
PW9 - Sh. Sunil Kumar, MM, Rohini Courts, Delhi, who deposed that on 06/02/2013 an application for recording statement u/s 164 Cr.P.C. of victim/prosecutrix (name withheld) W/o Ajay Gogoi, Age 11 of 50 12 FIR No. 90/13 PS - Narela 26 Years, R/o H. No. 186, Gali No. 1B, Ram Kala House, Sawtantra Nagar, Narela, Delhi was marked to him. IO ASI Prem Lata has produced victim/prosecutrix (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. PW9/A bearing his signature at Point 'A'. Statement of victim/prosecutrix (name withheld) recorded by him is already Ex. PW7/A bearing his signature at Point 'B' and of prosecutrix (name withheld) at Point 'A'. After recording the statement he issued the certificate regarding its correctness and the same is Ex. PW9/B bearing his signature at Point 'A'. Ahlmad was directed to give the copy of the same on proper receipt and directed to sent the proceedings to the concerned MM in sealed cover vide Ex. PW9/C bearing his signature at Point 'A'.
PW10 - Sh. V. Shankarnarayanan, SSO, FSL, Rohini, Delhi, who proved the DNA Report Ex. PW10/A bearing his signature at point 12 of 50 13 FIR No. 90/13 PS - Narela 'A'.
PW11 - Sh. Ajay Gagoi is the husband of the prosecutrix, who deposed that in the month of February, 2013, he worked in a factory at Shahpur Industrial Area. His wife/prosecutrix (name withheld) was working in a factory situated at A93, DSIDC Narela, Delhi. He is not able to recollect the name of the owner of the factory where his wife was working. Sanjay was working as Supervisor in the factory situated at A93, DSIDC Narela, Delhi. On 07/01/2013, his wife got the salary, however that was not the full amount. She asked 23 times to Supervisor Sanjay for making the full payment of the salary, but he was avoiding to give the full amount of salary on one pretext or the other. When, his wife asked Sanjay to make the payment then 34 other persons in the factory started quarreling. Someone make PCR call. Police came to the factory and arrested Sanjay. His wife/prosecutrix (name withheld) had informed all the above facts to him. He can identify accused Sanjay, if shown to him. Accused Sanjay is present in the Court (correctly identified). Police recorded his statement. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the 13 of 50 14 FIR No. 90/13 PS - Narela State.
PW12 - Sh. Saurav Singhal is the Manager of the factory, who deposed that his mother namely Smt. Kiran Singhal is running a factory of manufacturing of hand bags under the name and style of M/s SAAV INC situated at A93, DSIDC, Industrial Area, Narela, Delhi. He is working as Manager in the said factory. Accused Sanjay was employed as Supervisor in above factory from 07/11/2012 and he had worked in our factory for about 2½ months. He identify accused Sanjay present in the Court (correctly identified). Prosecutrix (name withheld) was employed as labour in their factory on 02/12/2012 and she had worked in their factory for about 1½ months. He does not remember the exact date, however in the month of March, 2013 Police came in their factory and he produced the relevant document i.e the appointment of accused Sanjay and prosecutrix in their factory, the attendance register, rent agreement and certificate of import and export of goods before the Police. The photo copies of these documents were seized by the Police vide seizure memo Ex. PW12/A (OSR), bearing his signature at point 'A'. He has brought the original of all these documents, except the rent 14 of 50 15 FIR No. 90/13 PS - Narela agreement. Photo copies of the documents mentioned in the seizure memo Ex. PW12/A (except rent agreement) are collectively exhibited as Ex. PW12/B and copy of rent agreement (running into four pages) is Ex. PW12/PX.
PW13 - Inspector Mahavir, who deposed that on 04/02/2013, he was posted as SI at PS Narela. On that day, on receipt of DD No. 48A, he alongwith Constable Ravinder and Lady Constable Rajbala went to factory No. A93, DSIDC, Bhorgarh, Narela there prosecutrix (name withheld) met him. She informed regarding committal of rape upon her by Sanjay. He gave intimation about this in PS Narela and requested for arranging lady Police official. Then they brought the prosecutrix (name withheld) at PP DSIDC, Narela. He also intimated NGO Navshristi in this regard. After sometime W/SI Seema and Ms. Nazma Khan from NGO reached at PP - DSIDC, Narela. He produced the prosecutrix before W/SI Seema. IO SI Seema recorded the statement of prosecutrix in the presence of Ms. Nazma Khan, Member NGO. Then he alongwith W/SI Seema, Constable Ravinder and Constable Rajbala took the prosecutrix to SRHC Hospital there 15 of 50 16 FIR No. 90/13 PS - Narela medical examination of the prosecutrix was got conducted by W/SI Seema. Thereafter SI Seema prepared Rukka and handed over the same to Constable Ravinder and sent him to PS for registration of the FIR. Thereafter they went to the spot. IO prepared the site plan at the instance of prosecutrix. Constable Ravinder reached to the spot with copy of FIR and original Rukka. His statement was recorded by IO.
PW14 - W/SI Seema is the Investigating Officer (IO), who deposed that on 04/02/2013, she was posted as SI at PS Narela. On that day, at about 7:50 p.m. she reached PS Narela from Jaipur (she went to Jaipur on her official duty). She was informed about the call i.e. DD No. 52A. SI Mahavir had already gone to attend the call alongwith W/Constable Rajbala and Constable Ravinder. She went to PP DSIDC, Narela. SI Mahavir produced the prosecutrix (name withheld) before her. Ms. Nazma Khan, Member NGO was also present in the Police Chawki. The counseling was provided to prosecutrix. She recorded the statement of prosecutrix (name withheld). Then she alongwith SI Mahavir and other staff took the prosecutrix to SRHC Hospital and got conducted the medical examination of prosecutrix. The Doctor handed 16 of 50 17 FIR No. 90/13 PS - Narela over the sealed exhibits which was taken into Police possession vide seizure memo already Ex. PW6/A bearing his signatures at point 'B'. She made endorsement Ex. PW14/A on the statement of prosecutrix and handed over the Rukka to Constable Ravinder and he was sent to PS for registration of FIR. Then they went to the spot alongwith prosecutrix i.e. factory No. 93, A Block, DSIDC. The prosecutrix pointed out the place of offence i.e. the toilet in the basement of factory No. 93. She prepared the site plan already Ex. PW7/C bearing her signatures at point 'A'. Constable Ravinder reached to the spot with copy of FIR and original Rukka. She recorded the statement of witnesses. Then they went to DSIDC area for search of accused Sanjay. When they again reached to factory No. A93, the prosecutrix pointed out towards one person who was entering in the factory and identified him as Sanjay who had committed rape upon her. Accused Sanjay was apprehended with the help of Constable Ravinder. She interrogated accused Sanjay and arrested him in the present case vide arrest memo already Ex. PW4/A bearing her signatures at point 'C'. His personal search was conducted vide memo already Ex. PW4/B bearing her signatures at point 'C'. Accused made a disclosure statement which was recorded, same is 17 of 50 18 FIR No. 90/13 PS - Narela already Ex. PW4/C bearing her signatures at point 'C'. Accused also pointed out the place of incident. She prepared pointing out memo which is already Ex. PW4/E bearing her signatures at point 'C'. She recorded the supplementary statement of prosecutrix and she was discharged from the investigation of the present case. Then accused Sanjay was taken to SRHC Hospital for his medical examination. After the medical examination Doctor handed over the sealed exhibits which were taken into Police possession vide seizure memo already Ex. PW4/F bearing her signatures at point 'B'. Then accused was produced in the Court. On 06/02/2013, she alongwith prosecutrix (name withheld) came to the Court and got recorded her statement u/s 164 Cr.P.C. On 18/02/2013, she got deposited the exhibits in FSL through Constable Amit. She recorded the statements of MHC(M) and Constable Amit. During investigation she recorded the statement of Ajay Gagoi, husband of prosecutrix and Saurabh. PW Saurabh produced the documents pertaining to the attendance of prosecutrix and accused Sanjay. These documents were taken into Police possession vide seizure memo already Ex. PW12/A bearing her signatures at point 'B'. These documents are already collectively exhibited as Ex. PW12/B. After completing 18 of 50 19 FIR No. 90/13 PS - Narela investigation, she filed the chargesheet. Accused Sanjay is present in the Court (correctly identified). Later on she collected the FSL result and filed the same in the Court which is already Ex. PW10/A. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Sanjay was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Sanjay 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 and consistent and the contradictions and discrepancies as pointed out 19 of 50 20 FIR No. 90/13 PS - Narela 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. Anuj Arya, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/506 IPC against the accused Sanjay is that on 05/12/2012 at about 12:00 noon at Factory No. A - 93, DSIDC Narela, Delhi, within the jurisdiction of PS
- Narela, he committed rape upon prosecutrix (name withheld) W/o Sh. Ajay aged around 26 years forcibly against her will and without her consent and criminally intimidated her by threatening her to kill and thereafter also he many times committed rape upon prosecutrix (name withheld) W/o Sh. Ajay and lastly on 30/01/2013 at about 11:30 a.m. at House No. 186, House of Ramkla, Gali No. 1B, Swatantra Nagar, Narela, he again committed rape upon prosecutrix (name withheld) W/o Sh. Ajay, forcibly, without her consent and against her will and also 20 of 50 21 FIR No. 90/13 PS - Narela criminally intimidated her by threatening her to kill husband.
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. PW7 - Prosecutrix in her statement recorded in the Court on 05/03/2014 while giving her particulars has stated her age as 26 years.
Since PW7 - prosecutrix has stated her age as 26 years on 05/03/2014 at the time of recording her evidence/statement in the Court and the date of alleged incident is 05/12/2012, on simple arithmetical calculation, the age of the prosecutrix comes to 24 years and 09 months as on the date of alleged incident on 05/12/2012.
Moreover, the said factum of age of PW7 - prosecutrix has also not been disputed by accused Sanjay. Nor any evidence to the contrary has been produced or proved on the record on behalf of the 21 of 50 22 FIR No. 90/13 PS - Narela accused.
In the circumstances, it stands proved on record that PW7 - prosecutrix was aged 24 years and 09 months as on the date of incident on 05/12/2012.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 - Dr. Nipun Sharma, S.R., SRHC Hospital, Delhi has deposed that on 04/02/2013 one patient/prosecutrix (name withheld) W/o Ajay Age 26 years female was brought to the Hospital with alleged history of sexual assault by her employer/colleague since last three months and thereafter patient has given history of sexual contact with her husband. Patient had given H/O last sexual contact with her employer/ colleague five days back. On P/V examination nothing abnormal detected. No H/O injury around her private part. Hymen is of multiparous size. CopperT thread seen on examination. Samples were taken, sealed and were handed over to the Police official. She prepared the MLC and same is Ex. PW3/A, bearing her signature at point 'A'. She also filled the sexual assault evidence collection kit and the same is Ex.
22 of 50 23 FIR No. 90/13 PS - Narela PW3/B, bearing her signature at point 'A'.
There is nothing in the crossexamination of PW3 - Dr. Nipun Sharma so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical/gynaecological examination vide MLC Ex. PW3/A of PW7 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED SANJAY
14. PW8 - Dr. Awdesh, Medical Officer, SRHC Hospital, Narela, Delhi has deposed that on 05/02/2013 one patient Sanjay S/o Munna, Age 25 Years, Male was brought to Hospital for medical examination. After examination he opined that there is nothing to suggest that patient is not capable of performing sexual intercourse. Samples were taken, sealed and handed over to the concerned Police official. He prepared the MLC and the same is Ex. PW8/A bearing his signature at Point 'A'.
Despite grant of opportunity, PW8 - Dr. Awdesh was not crossexamined on behalf of the accused.
23 of 50 24 FIR No. 90/13 PS - Narela In view of above and in the circumstances, it stands proved on the record that accused Sanjay was capable of performing sexual intercourse.
DNA FINGER PRINTING EVIDENCE
15. PW10 - Sh. V. Shankarnarayanan, SSO, FSL, Rohini, Delhi, has proved the DNA Report Ex. PW10/A bearing his signature at point 'A'.
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "SRHC HOSPITAL GYNAE & OBS NARELA" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k(i)', '1k(ii)', '1k(iii)', '1l', '1m', '1n(i)', '1n(ii)', '1n(iii)', '1o(i)', '1o(ii)', '1o(iii)', '1p(i)', '1p(ii)' & '1q'.
Exhibit '1a' : Few nail clippings.
Exhibit '1b' : Cotton wool swab on a wooden stick.
Exhibit '1c' : Cotton wool swab on a wooden stick.
Exhibit '1d' : Sample not found.
Exhibit '1e' : Sample not found.
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Exhibit '1f' : Cotton wool swab on a wooden stick.
Exhibit '1g' : Sample not found.
Exhibit '1h' : Strands of hair.
Exhibit '1i' : Strands of hair.
Exhibit '1j' : Cotton wool swab on a stick.
Exhibit '1k(i)' & : Two microslides having faint whitish smear.
'1k(ii)'
Exhibit '1k(iii)' : Cotton wool swab on a stick.
Exhibit '1l' : Kept unexamined.
Exhibit '1m' : Liquid material kept in a syringe.
Exhibit '1n(i)' & : Two microslides having faint whitish smear.
'1n(ii)'
Exhibit '1n(iii)' : Cotton wool swab on a stick.
Exhibit '1o(i)' & : Two microslides having faint whitish smear.
'1o(ii)'
Exhibit '1o(iii)' : Cotton wool swab on a stick.
Exhibit '1p(i)' & : Kept unexamined.
'1p(ii)'
Exhibit '1q' : Kept unexamined.
Parcel '2' : One sealed envelope sealed with the seal of
"SHRCH GYNAE & OBS NARELA"
containing exhibits '2a' & '2b'.
Exhibit '2a' : One underwear.
Exhibit '2b' : One brassier, kept unexamined.
Parcel '3' : One sealed cloth parcel sealed with the seal of
"S.R.H.C. HOSPITAL NARELA DELHI" said
to contain exhibit '3', returned in original
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unexamined.
RESULT OF ANALYSIS
1. Blood could not be detected on exhibits '1a', '1b', '1c', '1f', '1h', '1i', '1j', '1k(iii)', '1m(iii)' [No such exhibit described contained in Parcel No. 1], '1n(iii)' & '1o(iii)'.
2. Semen could not be detected on exhibits '1b', '1c', '1f', '1h', '1i', '1j', '1k(i)', '1k(ii)', '1k(iii)', '1n(i)', '1n(ii)', '1n(iii)', '1o(i)', '1o(ii)', '1o(iii)' & '2a'.
NOTE :
i) Since no semen was detected on victim's exhibits, DNA analysis is not necessary.
ii) Remnants of the exhibits have been sealed with the seal of "VSN FSL DELHI".
As per the DNA Report Ex. PW10/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1 & 2 belong to the prosecutrix which were seized vide seizure memo Ex. PW6/A, dated 04/02/2013 and Parcel no. 3 belongs to the accused Sanjay which was seized vide seizure memo Ex. PW4/F, dated 05/02/2013.
26 of 50 27 FIR No. 90/13 PS - Narela On careful perusal and analysis of the DNA Report Ex. PW10/A on record, it clearly shows that blood could not be detected on exhibits '1a', '1b', '1c', '1f', '1h', '1i', '1j', '1k(iii)', '1m(iii)' [No such exhibit described contained in Parcel No. 1], '1n(iii)' & '1o(iii)' belonging to the prosecutrix and semen could not be detected on exhibits '1b', '1c', '1f', '1h', '1i', '1j', '1k(i)', '1k(ii)', '1k(iii)', '1n(i)', '1n(ii)', '1n(iii)', '1o(i)', '1o(ii)', '1o(iii)' & '2a' belonging to the prosecutrix. Since no semen was detected on victim's exhibits, DNA analysis was held to be not necessary by the FSL.
16. Now let the testimony of PW7 Prosecutrix be perused and analysed.
PW7 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "In November, 2012 I started working in a bag making factory at A - 93, DSIDC, Narela, Delhi. My duty was from 9:00 a.m. to 8:00 p.m. On 07/01/2013, I had taken a leave due to some problem in my home. I had received only half of my wages and had not received the balance half of my wages ('Mujhe Adha Paisa Mila Tha, Mujhe Adha 27 of 50 28 FIR No. 90/13 PS - Narela Paisa Nahi Mila'). I had told to give the balance half of my wages to Supervisor Sanjay. I had visited 2/3 weeks, Supervisor Sanjay but I did not get my balance half of my wages. Thereafter, on 4th of February, 2013 I again went to Supervisor Sanjay, who told me that "after sometime you will get the money" ('Sanjay Ne Bola Ki Thodi Der Bad Paisa Milega'). Then I stayed at the factory. There at the factory a quarrel had taken place with one boy working there on the payment of the balance half wages. Police had reached there are the factory and I do not know how the Police reached. I had told the Police as to what I have deposed today hereinabove in the Court. Thereafter, I was made to sign on the papers by the Police, I do not know as to what was written in those papers. I had signed the papers. Thereafter, I was taken for my medical examination. In my medical examination I had also told to the Doctor as to what I have deposed today hereinabove in the Court. I do not know as to what happened later on. I have deposed as to what has occurred ('Maine Wo Hi Batya Jo Huwa Tha'). I had given the statement to the Police but I do not know as to what was recorded by the Police. The statement Mark PW7/PX bears my signature at point 'A'. My medical examination was conducted. My no clothes were taken into possession at the time of my medical examination.
My statement was recorded before the Court u/s 164 Cr.P.C. At this stage, a sealed envelop sealed with the seal of 'SK' lying on the Court record is opened and from which the proceedings u/s 164 Cr.P.C. is taken out. The statement u/s 164 Cr.P.C. Ex. PW7/A bearing my signatures at point 'A'. The arrest memo of accused Sanjay already Ex. PW4/A, his personal search memo Ex. PW4/B, pointing out memos Ex. PW4/D & Ex. PW4/E and his disclosure statement Ex. PW4/C bear my signature at points 'B'. The documents of sexual assault examination which is already Ex. PW3/B bears my signature at point 'B'.
28 of 50 29 FIR No. 90/13 PS - Narela I can identify accused Sanjay, if shown to me.
At this stage, he wooden partition has been removed. Accused Sanjay is present in the Court (correctly identified).
The wooden partition now has been restored to its original position."
From the aforesaid narration of PW7 - prosecutrix, it is clear that in November, 2012, she started working in a bag making factory at A - 93, DSIDC, Narela, Delhi. Her duty was from 9:00 a.m. to 8:00 p.m. On 07/01/2013, he had taken a leave due to some problem in her home. She had received only half of her wages and had not received the balance half of her wages ('Mujhe Adha Paisa Mila Tha, Mujhe Adha Paisa Nahi Mila'). She had told to give the balance half of her wages to Supervisor Sanjay. She had visited 2/3 weeks, Supervisor Sanjay but she did not get her balance half of her wages. Thereafter, on 4th of February, 2013 she again went to Supervisor Sanjay, who told her that "after sometime you will get the money" ('Sanjay Ne Bola Ki Thodi Der Bad Paisa Milega'). Then she stayed at the factory. There at the factory a quarrel had taken place with one boy working there on the payment of the balance half wages. Police had reached there are the 29 of 50 30 FIR No. 90/13 PS - Narela factory and she does not know how the Police reached. She had told the Police as to what she has deposed hereinabove in the Court. Thereafter, she was made to sign on the papers by the Police, she does not know as to what was written in those papers. She had signed the papers. Thereafter, she was taken for her medical examination. In her medical examination she had also told to the Doctor as to what she has deposed hereinabove in the Court. She does not know as to what happened later on. She has deposed as to what has occurred ('Maine Wo Hi Batya Jo Huwa Tha'). She had given the statement to the Police but she does not know as to what was recorded by the Police. The statement Mark PW7/PX bears her signature at point 'A'. Her medical examination was conducted. Her no clothes were taken into possession at the time of her medical examination. Her statement was recorded before the Court u/s 164 Cr.P.C. The statement u/s 164 Cr.P.C. is Ex. PW7/A bearing her signatures at point 'A'. The arrest memo of accused Sanjay is already Ex. PW4/A, his personal search memo is Ex. PW4/B, pointing out memos are Ex. PW4/D & Ex. PW4/E and his disclosure statement is Ex. PW4/C bearing her signature at points 'B'. The documents of sexual assault examination are already Ex. PW3/B bearing her signature at point 30 of 50 31 FIR No. 90/13 PS - Narela 'B'. Accused Sanjay is present in the Court (correctly identified).
PW7 - 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 : "I do not know to whom mobile phone no. 9210666624 belongs to. The said mobile phone number does not belong to me. I do not know that the Police was phoned at no. 100 from mobile phone No. 9210666624. Police had met me for the first time in the factory at about 7:30 or 8:00 p.m. When Police came I was present there with my husband and child. The mobile phone number of my husband is 9555350354.
Q. What is your mobile phone number? Ans. I do not remember. Vol. the mobile of my husband bearing No. 9555350354 remains with me.
My husband works in a factory at Bhorgarh, Delhi. Q. Which mobile phone number your husband is having? Ans. My husband has two SIM cards in his mobile phone. One having No. 9555350354 and the other number I do not remember."
During her further crossexamination conducted by the Learned Addl. PP, recorded on 14/07/2014, PW7 - Prosecutrix has 31 of 50 32 FIR No. 90/13 PS - Narela deposed that : "I do not know whose mobile number is 9210666624. I did not make any call at No. 100 from the factory. I do not know as to who had made the call at No. 100. Attention of the witness is drawn towards her statement already marked PW7/PX now Ex. PW7/B and witness identifies her signatures at Point 'A'. It is correct that on 04/02/2013 I had made my statement to the Police. I have stated to the Police in my statement that I was residing at H. No. 186, i.e. house of Ram Kala, Gali No.1B, Swatantra Nagar, Narela for the last six/seven months prior to the incident and used to work as labour and I belonged to Village Ghuguna, District Dhemaji, PS Dhemaji, Assam, India. I have stated to the Police that in the year 2012 November, I started working as labour in the bag factory at A93, DSIDC Narela, Delhi and my duty hours were from 9:00 a.m. to 8:00 p.m. It is correct that accused Sanjay present in the Court (correctly identified) was working as Supervisor in that factory and I used to work under him. I had not stated to the Police that on 05/12/2012 at 12:00 Noon when I had gone to the toilet in the factory accused Sanjay followed me and came there and had caught hold of me outside the toilet and when I tried to rescue myself then accused Sanjay had threatened me that, if I would raise my voice then I would be fired from the factory and he was having many boys and they would kill me and I got afraid. (Confronted with the statement Ex. PW7/B, where it is so recorded). It is wrong to suggest that on 05/12/2012 at 12:00 Noon when I had gone to the toilet in the factory accused Sanjay followed me and came there and had caught hold of me outside the toilet and when I tried to rescue myself then accused Sanjay had threatened me that, if I would raise my voice then I would be fired from the factory and he was having many boys and they would kill me and I got afraid. I had not 32 of 50 33 FIR No. 90/13 PS - Narela stated to the Police in my statement that accused Sanjay had forcibly confined me in the factory and had committed rape upon me and thereafter many times in the factory premises itself accused Sanjay committed rape upon me and also threatened me that if I will disclose about the incident to anyone then he would kill me. (Confronted with the statement Ex. PW7/B, where it is so recorded). It is wrong to suggest that accused Sanjay had forcibly confined me in the factory and had committed rape upon me and thereafter many times in the factory premises itself accused Sanjay committed rape upon me and also threatened me that if I will disclose about the incident to anyone then he would kill me.
It is correct that I had stopped working in the factory on 07/01/2013.
I had not stated to the Police in my statement that due to the wrong activities (Galat Harkate) of accused Sanjay I stopped working in that factory and accused used to force and pressurize me to come to the factory and on 30/01/2013 at 11:30 a.m. accused Sanjay came to my house in the absence of my husband and children and threatened me to kill my husband and raped me at my house. (Confronted with the statement Ex. PW7/B, where it is so recorded). It is wrong to suggest that due to the wrong activities (Galat Harkate) of accused Sanjay I stopped working in that factory and accused used to force and pressurize me to come to the factory and on 30/01/2013 at 11:30 a.m. accused Sanjay came to my house in the absence of my husband and children and threatened me to kill my husband and raped me at my house. I had not stated to the Police that due to the wrong activities of accused and harassment I had disclosed all the facts and incidents to my husband and on 04/02/2013 we had called No. 100 and informed the Police and went to the Police Station for action against accused for committing rape upon 33 of 50 34 FIR No. 90/13 PS - Narela me. (Confronted with the statement Ex. PW7/B, where it is so recorded). It is wrong to suggest that due to the wrong activities of accused and harassment I had disclosed all the facts and incidents to my husband and on 04/02/2013 we had called No. 100 and informed the Police and went to the Police Station for action against accused for committing rape upon me. It is wrong to suggest that statement Ex. PW7/B is my correct and true statement. It is wrong to suggest that Ex. PW7/B was made by me before the Police or that I am deliberately denying the aforesaid facts before the Court. It is wrong to suggest that I have been won over by the accused or that I am deposing falsely in order to save him. It is wrong to suggest that I am intentionally concealing the true and complete facts.
It is correct that I met with the Police on 04/02/2013. On 04/02/2013 I met with the Police at about 6:00 p.m. I remained with the Police for about 3/4 hours on 04/02/2013. My medical examination was got conducted by the Police in the Hospital. I had not suffered any bodily injury on 04/02/2013. My husband Ajay was accompanying me at the time of my medical examination in the Hospital. Q. Did you ask the Police as to why your medical examination is being got conducted on 04/02/2013 in the night when you had not suffered any bodily injury?
Ans. Police had told that it is necessary to get conduct the medical examination (Police Nai Bola Ki Medical Karvana Jaruri Hai).
I was medically examined externally as well as internally. Q. Did you ask the Doctor as to why your internal medical examination is being conducted when you had not suffered any injury? Ans. I did not ask the Doctor. Vol. I ask the Police who had told that it is necessary to get the medical examination got done.
34 of 50 35 FIR No. 90/13 PS - Narela It is wrong to suggest that my internal medical examination was conducted with my own consent. It is wrong to suggest that I have been medically examined for the reason that rape had been committed upon me by accused Sanjay.
My inner cloths i.e panty and bra were not taken into possession by the Doctor after my medical examination.
At this stage, MHC(M) has produced parcel No. 2 bearing seals of 'VSN FSL DELHI'. Parcel No. 2 contains Ex. 2a (underwear) and Ex. 2b (bra) besides other exhibits. After seeing the Ex. 2a (underwear) and Ex. 2b (bra) witness states that same do not belong to her.
It is wrong to suggest that Ex. 2a (underwear) and Ex. 2b (bra) belong to me or that I am not identifying the same intentionally.
It is wrong to suggest that I had given the history to the Doctor conducting my medical examination that I was raped by colleague. I am illiterate. I can only sign in English. I have learnt signing in English since we had come to Delhi. I had not shown the place of incident i.e toilet at Factory D 93, DSIDC Narela, Delhi, where I have been raped. It is wrong to suggest that I had shown the place of incident i.e toilet at Factory D 93, DSIDC Narela, Delhi, where I have been raped or that Police had prepared the site plan now Ex. PW7/C at my instance on 05/02/2013.
Attention of the witness is drawn towards statement dated 05/02/2013 and the contents are read over to her. After going through the contents witness has stated that she has not made any such statement before the Police. Statement dated 05/02/2013 is now Ex. PW7/D. I had not stated to the Police that on 05/02/2013 accused Sanjay present in the Court was arrested on my identification when he was going inside the 35 of 50 36 FIR No. 90/13 PS - Narela gate of factory D 93, DSIDC Narela, Delhi at 2:30 a.m. or that his documents of arrest Ex. PW4/A i.e arrest memo Ex. PW4/B, personal search memo were prepared in my presence. (Confronted with the statement Ex. PW7/D, where it is so recorded). It is wrong to suggest that on 05/02/2013 accused Sanjay present in the Court was arrested on my identification when he was going inside the gate of factory D 93, DSIDC Narela, Delhi at 2:30 a.m. or that his documents of arrest Ex. PW4/A i.e arrest memo Ex. PW4/B, personal search memo were prepared in my presence. I had not stated to the Police in my statement that the personal search of accused Sanjay one Samsung Black Colour mobile phone with Idea SIM, Id. SAAV INC (unit 2), Rs. 160 and one black guchhi bag, some visiting cards were recovered and accused Sanjay made disclosure statement Ex. PW4/C on his own before the Police. (Confronted with the statement Ex. PW7/D, where it is so recorded). It is wrong to suggest that (in) the personal search of accused Sanjay one Samsung Black Colour mobile phone with Idea SIM, Id. SAAV INC (unit 2), Rs. 160 and one black guchhi bag, some visiting cards were recovered and accused Sanjay made disclosure statement Ex. PW4/C on his own before the Police. I had not stated to the Police in my statement that accused pointed out room at my house no. 186, Gali 1B, Swatantra Nagar, where he had raped me and pointing out memo already Ex. PW4/D was prepared in my presence. (Confronted with the statement Ex. PW7/D, where it is so recorded). It is wrong to suggest that accused pointed out room at my house no. 186, Gali 1B, Swatantra Nagar, where he had raped me and pointing out memo already Ex. PW4/D was prepared in my presence. I had not stated to the Police in my statement that accused pointed out toilet at factory No. A 93, Bore Garh, DSIDC Narela, Delhi, where he had raped me and pointing out memo already Ex. PW4/E was prepared in my presence. (Confronted with the statement 36 of 50 37 FIR No. 90/13 PS - Narela Ex. PW7/D, where it is so recorded). It is wrong to suggest that accused pointed out toilet at factory no. A 93, Bore Garh, DSIDC Narela, Delhi, where he had raped me and pointing out memo already Ex. PW4/E was prepared in my presence.
It is wrong to suggest that accused Sanjay present in the Court was arrested on my identification or that he had made disclosure of having committed rape upon me or that he had pointed out the places of occurrence.
I had made my statement u/s 164 Cr.P.C. under the pressure of Police or I have been stated what I have been tutored by Police. It is wrong to suggest that statement u/s 164 Cr.P.C. Ex. PW7/A is my volunteer correct and true statement or that same was made out of my own free will. After the registration of the present case I returned to my home and stayed with my husband. On 06/02/2013 when I come to Court for making my statement u/s 164 Cr.P.C. Police was with me. It is wrong to suggest that on 05/12/2012 at about 12:00 Noon at Factory A 93, DSIDC Narela, accused Sanjay committed rape upon me against my will and thereafter, many times accused Sanjay committed rape upon me or that (he) also threatened me to kill me and my husband, if I disclosed anything before anyone. It is wrong to suggest that on 30/01/2013 at 11:30 a.m. at H. No. 186, Gali No. 1B, Swatantra Nagar, Narela, accused Sanjay committed rape upon me and also criminally intimidated me to kill my husband. It is wrong to suggest that I am deposing falsely at the instance of accused in order to save him. It is wrong to suggest that I have compromised the matter with the accused Sanjay and for this reason I have concealed the correct facts. It is wrong to suggest that I am deposing falsely."
37 of 50 38 FIR No. 90/13 PS - Narela PW7 - Prosecutrix during her crossexamination by the Learned Counsel for the accused has deposed that : "Q. Please see your statement Ex. PW7/B. Is it correct you are not aware about the contents of the said statement nor the same was read over to you by the Police and that your signature at PointA was only obtained by the Police?
Ans. It is correct.
Q. Had you told the fact regarding the quarrel (jhagrai wali baat) on the issue of wages with accused Sanjay to the Doctor at the time of your medical examination?
Ans. Yes, I told this to the Doctor."
On analysing the entire testimony of PW7 - prosecutrix it is clearly indicated that she has not deposed a single word that any rape was committed upon her forcibly by the accused against her will and without her consent or that she was also criminally intimidated by the accused by threatening her to kill. What she has deposed is that, in November, 2012, she started working in a bag making factory at A - 93, DSIDC, Narela, Delhi. Her duty was from 9:00 a.m. to 8:00 p.m. On 07/01/2013, he had taken a leave due to some problem in her home. She had received only 38 of 50 39 FIR No. 90/13 PS - Narela half of her wages and had not received the balance half of her wages ('Mujhe Adha Paisa Mila Tha, Mujhe Adha Paisa Nahi Mila'). She had told to give the balance half of her wages to Supervisor Sanjay. She had visited 2/3 weeks, Supervisor Sanjay but she did not get her balance half of her wages. Thereafter, on 4th of February, 2013 she again went to Supervisor Sanjay, who told her that "after sometime you will get the money" ('Sanjay Ne Bola Ki Thodi Der Bad Paisa Milega'). Then she stayed at the factory. There at the factory a quarrel had taken place with one boy working there on the payment of the balance half wages. She also did not support the prosecution in her statement u/s 164 Cr.P.C. Ex. PW7/A when she deposed during her crossexamination by the Learned Addl. PP that, "She had made her statement u/s 164 Cr.P.C. under the pressure of Police and she had stated what she had been tutored by Police." During her crossexamination by the Learned Addl. PP for the State, she negated the suggestions that on 05/12/2012 at 12:00 Noon when she had gone to the toilet in the factory accused Sanjay followed her and came there and had caught hold of her outside the toilet and when she tried to rescue herself then accused Sanjay had threatened her that, if she would raise her voice then she would be fired from the factory 39 of 50 40 FIR No. 90/13 PS - Narela and he was having many boys and they would kill her and she got afraid or that accused Sanjay had forcibly confined her in the factory and had committed rape upon her and thereafter many times in the factory premises itself accused Sanjay committed rape upon her and also threatened her that if she will disclose about the incident to anyone then he would kill her or that due to the wrong activities (Galat Harkate) of accused Sanjay she stopped working in that factory and accused used to force and pressurize her to come to the factory and on 30/01/2013 at 11:30 a.m. accused Sanjay came to her house in the absence of her husband and children and threatened her to kill her husband and raped her at her house or that due to the wrong activities of accused and harassment she had disclosed all the facts and incidents to her husband and on 04/02/2013 they had called No. 100 and informed the Police and went to the Police Station for action against accused for committing rape upon her or that statement Ex. PW7/B is her correct and true statement or that Ex. PW7/B was made by her before the Police or that she is deliberately denying the aforesaid facts before the Court or that she has been won over by the accused or that she is deposing falsely in order to save him or that she is intentionally concealing the true and complete 40 of 50 41 FIR No. 90/13 PS - Narela facts or that her internal medical examination was conducted with her own consent or that she has been medically examined for the reason that rape had been committed upon her by accused Sanjay or that Ex. 2a (underwear) and Ex. 2b (bra) belong to her or that she is not identifying the same intentionally or that she had given the history to the Doctor conducting her medical examination that she was raped by colleague or that he had shown the place of incident i.e toilet at Factory D 93, DSIDC Narela, Delhi, where she has been raped or that Police had prepared the site plan now Ex. PW7/C at her instance on 05/02/2013 or that on 05/02/2013 accused Sanjay present in the Court was arrested on her identification when he was going inside the gate of factory D 93, DSIDC Narela, Delhi at 2:30 a.m. or that his documents of arrest Ex. PW4/A i.e. arrest memo Ex. PW4/B, personal search memo were prepared in her presence or that (in) the personal search of accused Sanjay one Samsung Black Colour mobile phone with Idea SIM, Id. SAAV INC (unit 2), Rs. 160 and one black guchhi bag, some visiting cards were recovered and accused Sanjay made disclosure statement Ex. PW4/C on his own before the Police or that accused pointed out room at her house No. 186, Gali 1B, Swatantra Nagar, where he had raped her 41 of 50 42 FIR No. 90/13 PS - Narela and pointing out memo already Ex. PW4/D was prepared in her presence or that accused pointed out toilet at factory No. A 93, Bore Garh, DSIDC Narela, Delhi, where he had raped her and pointing out memo already Ex. PW4/E was prepared in her presence or that accused Sanjay present in the Court was arrested on her identification or that he had made disclosure of having committed rape upon her or that he had pointed out the places of occurrence or that statement u/s 164 Cr.P.C. Ex. PW7/A is her volunteer correct and true statement or that same was made out of her own free will or that on 05/12/2012 at about 12:00 Noon at Factory A 93, DSIDC Narela, accused Sanjay committed rape upon her against her will and thereafter, many times accused Sanjay committed rape upon her or that (he) also threatened her to kill her and her husband, if she disclosed anything before anyone or that on 30/01/2013 at 11:30 a.m. at H. No. 186, Gali No. 1B, Swatantra Nagar, Narela, accused Sanjay committed rape upon her and also criminally intimidated her to kill her husband or that she is deposing falsely at the instance of accused in order to save him or that she has compromised the matter with the accused Sanjay and for this reason she has concealed the correct facts or that she is deposing falsely.
42 of 50 43 FIR No. 90/13 PS - Narela As discussed hereinbefore, PW7 - prosecutrix has been found to be aged around 25 years, from the testimony of PW7 - prosecutrix, nothing is being indicated that on 05/12/2012 at about 12:00 noon at Factory No. A - 93, DSIDC Narela, Delhi, accused Sanjay committed rape upon PW7 prosecutrix forcibly against her will and without her consent or that he also criminally intimidated her by threatening her to kill or that thereafter also accused Sanjay many times committed rape upon PW7 prosecutrix or that lastly on 30/01/2013 at about 11:30 a.m. at House No. 186, House of Ramkla, Gali No. 1B, Swatantra Nagar, Narela, accused Sanjay again committed rape upon PW7 prosecutrix forcibly, without her consent and against her will or that he also criminally intimidated her by threatening her to kill her husband. Even the DNA Report Ex. PW10/A as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
Now, let the testimony of PW11 - Sh. Ajay Gagoi, husband of the prosecutrix be perused and analysed.
43 of 50 44 FIR No. 90/13 PS - Narela PW11 - Sh. Ajay Gagoi, is the husband of the prosecutrix, who in his examinationinchief has deposed that in the month of February, 2013, he worked in a factory at Shahpur Industrial Area. His wife/prosecutrix (name withheld) was working in a factory situated at A93, DSIDC Narela, Delhi. He is not able to recollect the name of the owner of the factory where his wife was working. Sanjay was working as Supervisor in the factory situated at A93, DSIDC Narela, Delhi. On 07/01/2013, his wife got the salary, however that was not the full amount. She asked 23 times to Supervisor Sanjay for making the full payment of the salary, but he was avoiding to give the full amount of salary on one pretext or the other. When, his wife asked Sanjay to make the payment then 34 other persons in the factory started quarreling. Someone make PCR call. Police came to the factory and arrested Sanjay. His wife/prosecutrix (name withheld) had informed all the above facts to him. He can identify accused Sanjay, if shown to him. Accused Sanjay is present in the Court (correctly identified). Police recorded his statement. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
44 of 50 45 FIR No. 90/13 PS - Narela PW11 - Sh. Ajay Gagoi was also crossexamined by the Learned Addl. PP for the State as he was resiling from her previous statement which is reproduced and reads as under : "My wife/prosecutrix (name withheld) had worked in the factory of accused Sanjay for about 34 years. She was getting a salary of Rs. 3,900/ per month. My wife/prosecutrix (name withheld) did not inform me that on 05/12/2012 accused Sanjay (made) relations with her in the toilet at the basement of factory No. A92. It is wrong to suggest that my wife/prosecutrix (name withheld) had informed me that on 05/12/2012 accused Sanjay (made) relations with her in the toilet at the basement of factory No. A92. Vol. no such incident took place with my wife, there was a dispute regarding the payment of salary to my wife. My wife had not informed me that on 30/01/2013, accused Sanjay came to my rented house and again made physical relations forcefully with her. It is wrong to suggest that my wife had informed me that on 30/01/2013, accused Sanjay came to my rented house and again made physical relations forcefully with her. It is wrong to suggest that my wife gave her statement to the Police regarding the committal of rape upon her by accused Sanjay in my presence. Vol. no such incident took place with my wife. It is correct that Police got my wife medically examination in SRHC Hospital, Narela. I do not know as to why Police got my wife medically examined. It is wrong to suggest that Police got my wife medically examined as she made statement to the Police alleging that accused Sanjay had committed rape upon her.
At this stage, the statement of the witness recorded u/s 161 45 of 50 46 FIR No. 90/13 PS - Narela Cr.P.C., dated 23/04/2013 is read over to the witness to which he denies having made any such statement to the Police. The statement of the witness dated 23/04/2013 is mark PW11/PX. It is wrong to suggest that I had made statement mark PW11/PX to Police.
Q. How much salary for the month of December, 2012 was received by your wife?
A. I do not remember.
It is wrong to suggest that I do not remember as to how much salary or less amount was received by my wife as there was no such dispute of salary. No written application for getting full amount of salary was made by my wife. It is wrong to suggest that no such application was made by her as she received the full amount of salary for the month of December, 2012. It is wrong to suggest that I have compromised the matter with the accused Sanjay and for this reason I have concealed the true and correct facts. It is wrong to suggest that I have been won over by the accused and for this reason I am making the statement favouring the accused. It is wrong to suggest that I am deposing falsely."
PW11 - Sh. Ajay Gagoi was not crossexamined on behalf of accused despite grant of opportunity.
On careful perusal and analysis of the testimony of PW11 - Sh. Ajay Gagoi, husband of the prosecutrix, it is found that nothing material has come out in his testimony so as to advance the case of the 46 of 50 47 FIR No. 90/13 PS - Narela prosecution on the core spectrum of the crime. He negated the suggestions, as were put to him by the Learned Addl. PP, that his wife/prosecutrix (name withheld) had informed him that on 05/12/2012 accused Sanjay (made) relations with her in the toilet at the basement of factory No. A92. Vol. no such incident took place with his wife, there was a dispute regarding the payment of salary to his wife or that his wife had informed him that on 30/01/2013, accused Sanjay came to his rented house and again made physical relations forcefully with her or that his wife gave her statement to the Police regarding the committal of rape upon her by accused Sanjay in his presence. Vol. no such incident took place with his wife or that Police got his wife medically examined as she made statement to the Police alleging that accused Sanjay had committed rape upon her or that he had made statement mark PW11/PX to Police or that he does not remember as to how much salary or less amount was received by his wife as there was no such dispute of salary or that no such application was made by her as she received the full amount of salary for the month of December, 2012 or that he has compromised the matter with the accused Sanjay and for this reason he has concealed the true and correct facts or that he has been won over by the accused and for 47 of 50 48 FIR No. 90/13 PS - Narela this reason he is making the statement favouring the accused or that he is deposing falsely.
PW11 - Sh. Ajay Gagoi was not crossexamined on behalf of accused despite grant of opportunity.
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 Sanjay. The hostility of PW7 - prosecutrix and that of PW11 - Sh. Ajay Gagoi, her husband has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that on 05/12/2012 at about 12:00 noon at Factory No. A - 93, DSIDC Narela, Delhi, accused Sanjay committed rape upon PW7 prosecutrix forcibly against her will and without her consent or that he also criminally intimidated her by threatening her to kill or that thereafter also accused Sanjay many times committed rape upon PW7 prosecutrix or that lastly on 30/01/2013 at about 11:30 a.m. at House No. 186, House of Ramkla, Gali No. 1B, Swatantra Nagar, Narela, accused Sanjay again committed rape upon PW7 prosecutrix forcibly, without her consent and against her will or that he also criminally intimidated her by threatening her to 48 of 50 49 FIR No. 90/13 PS - Narela kill her husband.
I accordingly, acquit accused Sanjay for the offences punishable u/s 376/506 IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Sanjay in the commission of offences punishable u/s 376/506 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 accused Sanjay beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Sanjay. I, therefore, acquit accused Sanjay for the offences punishable u/s 376/506 IPC after giving him the benefit of doubt. Accused Sanjay is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Sanjay 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.
Announced in the open Court (MAHESH CHANDER GUPTA) th on 17 Day of July, 2015 Additional Sessions Judge Special Fast Track Court 49 of 50 50 FIR No. 90/13 PS - Narela (N/W District), Rohini, Delhi 50 of 50