Delhi District Court
State vs . Kapoor Chand on 20 October, 2015
1
FIR No. 410/13
PS - S.P. Badli
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 2/14
Unique ID No. : 02404R0350152013
State Vs. Kapoor Chand
S/o Shri Thimbu Ram
R/o Vill. Sehri, PS Katra,
Distt. Eriasi, Jammu.
FIR No. : 410/13
Police Station : S.P. Badli
Under Section : 376 IPC
Date of committal to session Court : 02.01.2014
Date on which judgment reserved : 13.10.2015
Date on which judgment announced : 20.10.2015
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 41 2 FIR No. 410/13 PS - S.P. Badli report under section 173 Cr.P.C. is as under : That on 25/08/2013 on receipt of DD No. 10A dated 25/08/2013, PS - S. P. Badli, SI Varun reached at the informed spot at AW142, SGT Nagar where he came to know that the prosecutrix (name withheld being a case u/s 376 IPC) W/o Late Sh. Fani Dass, R/o Main Khajuri, Gali No. 2, Delhi has already been taken to BSA Hospital through CATS van, on which, SI Renu was called at the BSA Hospital for investigation. SI Renu during the course of investigation got conducted the medical examination of the prosecutrix vide MLC No. 3658/13 and the prosecutrix made the statement which is to the effect that, she lives at the above address with her four children. Her husband died about 45 months ago due to the habit of excessive drinking. She does the work of collecting junk iron from the sorting of garbage in Sanjay Gandhi Transport (Mai Sanjay Gandhi Transport Mei Loha Beenti Hoon). Like routine of everyday she had come today (25/08/2013) also at about 5:00 a.m. in the morning for the sorting of the garbage (Kuda Been Ne Ke Liye) in SGT Nagar. At about 5:30 a.m. in the morning while sorting out of the garbage she reached at AW142, SGT Nagar, there one person sitting on the driver seat in a parked truck 2 of 41 3 FIR No. 410/13 PS - S.P. Badli No. HR55Q0181 came down and started saying to her that, "some iron is kept in his vehicle, does she want it" (meri gadi mae kuch loha rakha hai kaya tumhae chahiyae), and before she could say anything, he kept his hand on her mouth and after dragging her, took her under the truck towards the side of the wall and gave slappings and fist blows on her face (mare muhu par thapad va ghosae marae) and under the truck itself, he forcibly committed rape upon her against her will and without her consent (truck kae niche hi marae saath jabardasti meri ichha kae virud balatkar kiya). She finding an opportunity raised an alarm on which the public persons started pelting stones upon him and during this she was also inflicted with pelted stone (Maine Mauka Dekh Kar Shor Machaya to Public Ke Log Use Patthar Maarne Lag Gaye Jo Isi Dauraan Mujhe Bhi Patthar Lag Gya). During this, that person finding an opportunity, fled from the spot. Legal action be taken against that trick driver. On the basis of the statement, from the inspection of the MLC and from the circumstances, finding that an offence u/s 376 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Renu. Councelling of the prosecutrix was also got done from Nazma Khan, NGO, Nav Shrishti. Statements of the 3 of 41 4 FIR No. 410/13 PS - S.P. Badli witnesses were recorded. Site Plan was prepared at the instance of the prosecutrix. Accused Kapoor Chand was arrested on the identification of the prosecutrix. His medical examination was got conducted from BSA Hospital. Vehicle Truck No. HR55Q0181 was taken into Police possession, which was later on released on Superdari by the order of the Court. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. Sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offence u/s 376 IPC was prepared against accused Kapoor Chand 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 341/323/376 IPC was made out against accused Kapoor Chand. Charge was framed 4 of 41 5 FIR No. 410/13 PS - S.P. Badli 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 15 witnesses. PW1 - HC Devender, PW2 - Dr. Meet Kumar, CMO, Dr. BSA Hospital, Rohini, Delhi, PW3 - Dr. Pallavi Paunikar, SR. Gynae, BSA Hospital, Rohini, Delhi, PW4 - Dr. Richa, SR. Obs. & Gynae, BSA Hospital, Rohini, Delhi, PW5 - Dr. Mukesh Kumar, SR. Forensic Medicine, Dr. BSA Hospital, Rohini, Delhi, PW6 - Ms. Monika Chakravarty, Senior Scientific Assistant (Biology), FSL Rohini, Delhi, PW7 - L/Ct. Anju, PW8 - ASI Shakti Raj, PW9 - Ct. Anoop Yadav, PW10 - Ct. Dhirender, PW11 - SI Manju, PW12 - Sh. Dheerj Mor, MM, Saket Court Complex, Delhi, PW13 - Prosecutrix (name withheld), PW14 - SI Varun Dalal and PW15 - SI Renu.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Devender, is the MHC(M), who deposed that on 5 of 41 6 FIR No. 410/13 PS - S.P. Badli 25.08.2013 he was posted as MHC(M) in PS S.P. Badli. On that day W/SI Renu deposited one sealed pulinda sealed with the seal of 'BSA Hospital' alongwith sample seal and a truck bearing no. HR55Q0181 alongwith 896 cartoons of colgate in the Malkhana. He made entry at serial no. 4048/13 in register no. 19. On 26.08.2013 W/SI Renu deposited one sealed pulinda sealed with the seal of 'BSA Hospital' alongwith sample seal in the Malkhana. He made entry at serial no. 4049/13 in register no. 19. On 12.09.2013, on the instructions of IO, two sealed pulindas alongwith two sample seals were handed over to Ct. Anoop for depositing the same in the FSL, Rohini vide RC No. 242/21/13. After depositing the same in FSL, he deposited the acknowledgment receipt of the pulindas with him. He has brought the register no. 19 and 21. The copy of the relevant enteries of register no. 19 is Ex. PW1/A. The copy of relevant entry of register no. 21 is Ex. PW1/B. Copy of the acknowledgment receipt is Ex. PW1/C (OSR). Sealed pulindas remained intact during his custody. On 19.09.2013 the truck bearing no. HR55Q0181 was released on superdari and on the same day 896 cartoons of colgate were also released on indemnity bond.
6 of 41 7 FIR No. 410/13 PS - S.P. Badli PW2 - Dr. Meet Kumar, CMO, Dr. BSA Hospital, Rohini, Delhi, who deposed that on 25.08.2013 he was on duty as CMO at BSA Hospital Rohini. One patient Kapoor Chand S/o Timbo Ram, Age 29 Years, Male was brought to hospital for medical examination by Ct. Dhirender Singh, No. 1720 (O/D). There was alleged history of sexual assault with a female at around 6.00 AM as told by Ct. Dhirender Singh. There was no fresh external injury seen on the body of Kapoor Chand. His examination is encircled from Portion 'X to X' on the MLC Ex. PW2/A bearing his signature at PointA & B. The samples detailed in his examination were collected, sealed and handed over to the police. Thereafter, the patient Kapoor Chand was referred to SR Surgery for further examination and opinion.
PW3 - Dr. Pallavi Paunikar, SR. Gynae, BSA Hospital, Rohini, Delhi, who deposed that on 25.08.2013 she was working as SR. Obs. & Gynae at BSA Hospital. On that day at about 9.40 AM patient (name withheld), W/o Late Sh. Fani Dass, Age 25 Years, brought by Ct. Anju with alleged history of fight with some male near Sanjay Gandhi Transport Nagar. She was injured as he threw stone on her face on 7 of 41 8 FIR No. 410/13 PS - S.P. Badli 25.08.2013 at about 5.30 AM. She conducted the preliminary medical examination of the said patient (name withheld) but she refused for her internal medical examination. On local examination patient was having abrasion mark of 1 cm. on right aspect of the nose and on upper lip at right aspect of the same dimension. Her examination on the MLC is Ex. PW3/A bearing her signature at PointA and B (on the back side of the MLC).
PW4 - Dr. Richa, SR. Obs. & Gynae, BSA Hospital, Rohini, Delhi, who deposed that on 25.08.2013 she was working as SR. Obs. & Gynae at BSA Hospital. On that day at about 4.20 PM one patient (name withheld), W/o Late Sh. Fani Dass, Age 25 Years, brought by Ct. Anju with alleged history of sexual assault at around 12.30 AM Near Sanjay Gandhi Transport Nagar during rag picking by some driver as told by the victim. She conducted the preliminary medical examination of the said patient (name withheld) and who had earlier refused for her internal medical examination but later on she gave her consent for internal medical examination. On examination patient UPT was found negative. Her perineum was normal with no evidence of any injury. There was 8 of 41 9 FIR No. 410/13 PS - S.P. Badli also no anal injury on the patient. She had collected 16 samples of safe kit and the description of samples were mentioned on the back of the MLC. Her examination is Ex. PW4/A bearing her signature at Point A. PW5 Dr. Mukesh Kumar, SR. Forensic Medicine, Dr. BSA Hospital, Rohini, Delhi, who deposed that on 26.08.2013 one patient Kapoor Chand S/o Timbu Ram, Age 20 Years, Male was brought to hospital by SI Rita, whose MLC was prepared vide MLC No. 94422/13 dated 25.08.2013 at BSA Hospital, for his potency test. He examined the patient and on physical examination of his genital organs and there was nothing to suggest that patient is incapable of performing sexual intercourse. His examination report is Ex. PW5/A bearing his signature at point A. PW6 - Ms. Monika Chakravarty, Senior Scientific Assistant (Biology), FSL Rohini, Delhi, who deposed that on 12.09.2013 two sealed parcels were received in their office in connection with the present case and the same were marked to her for examination. She conducted the DNA examination of the exhibits and while doing so had also examined the exhibits biologically as detailed in her report Ex.
9 of 41 10 FIR No. 410/13 PS - S.P. Badli PW6/A bearing her signature at PointA. The Genotype data annexed with the report is Ex. PW6/B bearing her signature at PointA. After examination the remnants were resealed and sent back to the concerned authority with the seal of 'MCh FSL DELHI'.
PW7 - L/Ct. Anju, who deposed that on 25.08.2013 she was posted as Constable at PS S.P. Badli. On that day at about 9.15 AM when she was on the way from her house to PS, she received a call to reach at BSA hospital for medical examination of one lady. She went to BSA hospital where SI Varun Dalal met her alongwith prosecutrix (name withheld). The prosecutrix (name withheld) was already in the room of doctor. She went in that room. The doctor conducted the medical examination of prosecutrix (name withheld). She collected the MLC of prosecutrix (name withheld) and then she alongwith SI Varun Dalal and prosecutrix (name withheld) came to PS S.P. Badli. The counselor of NGO was called and SI Renu also reached at PS. SI Renu made inquiry from prosecutrix and informed her that prosecutrix was again to be taken to hospital for medical examination. She alongwith SI Renu took the prosecutrix (name withheld) to BSA hospital for her medical 10 of 41 11 FIR No. 410/13 PS - S.P. Badli examination. The doctor gave a sealed parcel alongwith sample seal which was seized by IO vide seizure memo Ex. PW7/A bearing her signature at PointA. Thereafter, prosecutrix was again brought to PS. PW8 - ASI Shakti Raj is the Duty Officer, who deposed that on 25.08.2013, he was posted as Duty Officer in PS S.P. Badli and was on duty from 9.00 AM to 5.00 PM. On that day, at about 12.30 PM, SI Renu handed over him a Tehrir and on the basis of which the present FIR No. 410/13 was registered u/s. 376 IPC with the computer installed in PS. After registration of FIR, he handed over the copy of FIR and original rukka to Ct. Yashwant for handing over the same to IO SI Renu further investigation. He has brought the original FIR register. Copy of the same is Ex. PW8/A (OSR). He has also brought the DD register containing DD No. 10A which was recorded by HC Krishan Kumar. This DD entry was received at 6.20 AM. He identifies the handwriting of HC Krishan, who had recorded the DD No. 10A. The copy of DD No. 10A dated 25.08.2013 is already lying on record. Same is Ex. PW8/B (OSR).
11 of 41 12 FIR No. 410/13 PS - S.P. Badli PW9 - Constable Anoop Yadav, who deposed that on 12.09.2013 he was posted as Constable at PS S.P. Badli. On that day on the instructions of IO W/SI Manju he obtained the two sealed parcels alongwith two sample seals from MHC(M) and took the same to FSL Rohini vide RC No. 242/21/13. He deposited the sealed parcels and sample seals with FSL form in FSL Rohini and obtained the acknowledgment receipt. He returned to PS and handed over acknowledgment receipt to MHC(M). During the period the exhibits remained in his custody, same were not tampered.
PW10 - Constable Dhirender, who deposed that on 25.08.2013 he was posted as Constable at PS S.P. Badli. On that day he joined the investigation with IO SI Renu. On that day at about 6.00 PM he alongwith IO and prosecutrix (name withheld) went to premises no. AW142, Sanjay Gandhi Transport Nagar, Delhi for searching accused Kapoor Chand. When they were searching accused Kapoor Chand, prosecutrix (name withheld) pointed out towards the person standing in the street near premises no. AW142, Sanjay Gandhi Transport Nagar, Delhi by identifying him as accused Kapoor Chand being the same 12 of 41 13 FIR No. 410/13 PS - S.P. Badli person, who had committed rape upon her. He apprehended accused Kapoor Chand. IO interrogated accused Kapoor Chand and arrested him in the present case vide arrest memo Ex. PW10/A and personal search memo Ex. PW10/B bearing his signature at PointsA. Then he and IO took accused to BSA hospital for conducting his medical examination. After the medical examination of accused Kapoor Chand doctor handed over the sealed exhibits which were taken into police possession by IO vide seizure memo Ex. PW10/C bearing his signature at PointA. Then accused Kapoor Chand was brought to PS. His statement was recorded by the IO. Accused Kapoor Chand is present in the court (correctly identified).
PW11 SI Manju is the last Investigating Officer (I.O) of the case, who deposed that on 07.09.2013 she was posted as SI at PS S.P. Badli. On that day she received the case file from MHC(R) for further investigation. She perused the case file. On 12.09.2013 she got deposited the exhibits through Ct. Anoop. She recorded the statements of MHC(M) and Ct. Anoop. On 27.09.2013 she produced the prosecutrix (name withheld) in the Court and got recorded her statement u/s 164 13 of 41 14 FIR No. 410/13 PS - S.P. Badli Cr.P.C. After completing the investigation she filed the chargesheet.
PW12 - Sh. Dheeraj Mor, MM, Saket Court Complex, Delhi, who deposed that on 27/09/2013, he was posted as MM at Rohini Courts. On that day, an application for recording the statement u/s 164 Cr.P.C. was marked to him. On the same day i.e 27.09.2013 SI Manju, PS S.P. Badli appeared before him alongwith the prosecutrix (name withheld). He recorded the statement u/s 164 Cr.P.C of the prosecutrix (name withheld) vide detailed proceedings running into five pages which were already marked and now Ex. PW12/A and it bear his signatures at Point A. After recording the statement, IO moved an application for supply of the proceedings conducted by him which was allowed by him vide his endorsement Ex. PW12/B bearing his signatures at PointA. After recording the statement of prosecutrix, the same was sent in a sealed cover/envelope Ex. PW12/C. PW13 - Prosecutrix (name withheld) is the victim who deposed some facts regarding the incident but resiled from her previous 14 of 41 15 FIR No. 410/13 PS - S.P. Badli statement and was also crossexamined by the Learned Addl. PP for the State.
PW14 - SI Varun Dalal is the initial Investigating Officer (IO) of the case, who deposed that on 25.08.2013 he was posted at PS S.P. Badli. On that day he was on Emergency Duty. At about 6.30 AM Duty Officer handed over DD No. 10A regarding rape at Gali No. AW18, Sanjay Gandhi Transport Nagar. He alongwith Constable reached at the spot i.e AW18, Sanjay Gandhi Transport Nagar, Badli, where he came to know that prosecutrix was removed in the hospital by official of PCR Van. Thereafter, He reached Dr. BSA hospital where SI Renu met him in the hospital and she had conducted the further investigation.
PW15 - SI Renu is the second Investigating Officer (IO) of the case, who deposed that on 25.08.13 she was posted at PS K.N.Katzu Marg. On receipt of the information from the senior police officials that there is a call of rape in PS S.P.Badli and had asked her to reach at BSA Hospital, Rohini, Delhi. She reached at BSA Hospital where, prosecutrix 15 of 41 16 FIR No. 410/13 PS - S.P. Badli (name withheld) was found present. She got conducted her medical examination and the prosecutrix had refused for her internal examination. SI Varun Dalal and lady Ct. Anju had also come there. After the medical examination of the prosecutrix (name withheld), she was taken to the PS, she made inquiries and recorded her statement already marked as Mark PW13/PX. She made endorsement upon it which is Mark PW15/PA and was handed over to the DO for the registration of the case on the basis of which FIR Ex. PW8/A was registered. The rukka and the copy of the FIR were handed over to her by the DO. Prosecutrix stated that she wanted to get her internal medical examination conducted. Then she alongwith lady Ct. Anju took the prosecutrix to BSA Hospital, where she wished to the doctor for getting her internal medical examination got conducted. Her internal medical examination was conducted and the sealed exhibits handed over by the doctor were taken in possession vide seizure memo already Ex. PW7/A bearing her signature at point B. Thereafter they came back to the police station. Then she along with Ct. Dhirender and prosecutrix Manju went to SGT Nagar for the search of the accused. There on the identification of the prosecutrix, accused Kapoor Chand was arrested vide arrest memo 16 of 41 17 FIR No. 410/13 PS - S.P. Badli Ex. PW10/A and his personal search was conducted vide personal search memo Ex. PW10/B, both memos bear her signatures at point B. At the instance of the prosecutrix, site plan Ex. PW15/A was prepared bearing her signature at point A. The truck bearing No. HR55Q0181 was seized vide seizure memo Mark PW15/PB bearing her signature at point A. Later on she come to know that the said truck was released on superdari by the order of the court. Supplementary statement of the prosecutrix was recorded. Accused was taken for his medical examination to BSA Hospital where his medical examination was got conducted and the sealed exhibits handed over by the doctor were seized vide seizure memo already Ex. PW10/C bearing her signature at point B. Thereafter, they returned to the PS and the accused was put in lockup. The sealed exhibits were deposited in the malkhana. Thereafter, the case file was handed over to MHC(R). Accused Kapoor Chand is present in the court (correctly identified).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
17 of 41 18 FIR No. 410/13 PS - S.P. Badli
6. Statement of accused Kapoor Chand was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused _ 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 charges 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. Arun Sehrawat, Learned Counsel for the accused and have also carefully perused the entire record.
18 of 41 19 FIR No. 410/13 PS - S.P. Badli
10. The charge for the offences punishable u/s 341/323/376 IPC against the accused Kapoor Chand is that on 25.08.2013 at about 5.30 a.m., at AW142, Sanjay Gandhi Transport Nagar, within the jurisdiction of PS - S.P. Badli, he wrongfully restrained Prosecutrix (name withheld) W/o Late Sh. Fani Das, Age 25 years and dragged her under the truck no. HR55Q0181, by the side of a wall (truck ke nicha diwar ki side mai) and voluntarily caused simple injuries on her person by beating her with punch and slaps and forcibly committed rape upon her against her will and without her consent.
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. PW13 - prosecutrix in her statement recorded in the Court 19 of 41 20 FIR No. 410/13 PS - S.P. Badli on 26/08/2015 while giving her particulars has stated her age as 26 years.
Since PW13 - prosecutrix has stated her age as 26 years on 26/08/2015 at the time of recording her evidence/statement in the Court and the date of alleged incident is 25/08/2013, on simple arithmetical calculation, the age of the prosecutrix comes to 23 years, 11 months and 29 days as on the date of alleged incident on 25.08.2013.
Moreover, the said factum of age of PW13 - prosecutrix has also not been disputed by accused Kapoor Chand. 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 PW13 - prosecutrix was aged 23 years, 11 months and 29 days as on the date of incident on 25/08/2013.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 - Dr. Pallavi Paunikar, SR. Gynae, BSA hospital, Rohini, Delhi, has deposed that on on 25.08.2013 she was working as SR. Obs. & Gynae at BSA Hospital. On that day at about 9.40 AM 20 of 41 21 FIR No. 410/13 PS - S.P. Badli patient (name withheld), W/o Late Sh. Fani Dass, Age 25 Years, brought by Ct. Anju with alleged history of fight with some male near Sanjay Gandhi Transport Nagar. She was injured as he threw stone on her face on 25.08.2013 at about 5.30 AM. She conducted the preliminary medical examination of the said patient Manju but she refused for her internal medical examination. On local examination patient was having abrasion mark of 1 cm. on right aspect of the nose and on upper lip at right aspect of the same dimension. Her examination on the MLC is Ex. PW3/A bearing her signature at PointA and B (on the back side of the MLC).
PW4 - Dr. Richa, SR. Obs. & Gynae, BSA Hospital, Rohini, Delhi, has deposed that on 25.08.2013 she was working as SR. Obs. & Gynae at BSA Hospital. On that day at about 4.20 PM one patient (name withheld), W/o Late Sh. Fani Dass, Age 25 Years, brought by Ct. Anju with alleged history of sexual assault at around 12.30 AM Near Sanjay Gandhi Transport Nagar during rag picking by some driver as told by the victim. She conducted the preliminary medical examination of the said patient (name withheld) and who had earlier refused for her internal 21 of 41 22 FIR No. 410/13 PS - S.P. Badli medical examination but later on she gave her consent for internal medical examination. On examination patient UPT was found negative. Her perineum was normal with no evidence of any injury. There was also no anal injury on the patient. She had collected 16 samples of safe kit and the description of samples were mentioned on the back of the MLC. Her examination is Ex. PW4/A bearing her signature at Point A. Despite grant of opportunity PW3 Dr. Pallavi Paunikar, SR. Gynae, and PW4 - Dr. Richa, Sr. Obs. & Gynae, were not cross examined on behalf of the accused.
In view of above and in the circumstances, the medical and the gynaecological examination vide MLC Ex. PW3/A and MLC Ex. PW4/A of PW13 - prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED KAPOOR CHAND
14. PW2 - Dr. Meet Kumar, CMO, Dr. BSA Hospital, Rohini, Delhi, has deposed that on 25.08.2013 he was on duty as CMO at BSA Hospital Rohini. One patient Kapoor Chand S/o Timbo Ram, Age 29 22 of 41 23 FIR No. 410/13 PS - S.P. Badli Years, Male was brought to hospital for medical examination by Ct. Dhirender Singh, No. 1720 (O/D). There was alleged history of sexual assault with a female at around 6.00 AM as told by Ct. Dhirender Singh. There was no fresh external injury seen on the body of Kapoor Chand. His examination is encircled from Portion 'X to X' on the MLC Ex. PW2/A bearing his signature at PointA & B. The samples detailed in his examination were collected, sealed and handed over to the police. Thereafter, the patient Kapoor Chand was referred to SR Surgery for further examination and opinion.
PW5 - Dr. Mukesh Kumar, SR. Forensic Medicine, Dr. BSA Hospital, Rohini, Delhi, has deposed that on 26.08.2013 one patient Kapoor Chand S/o Timbu Ram, Age 20 Years, Male was brought to hospital by SI Rita, whose MLC was prepared vide MLC No. 94422/13 dated 25.08.2013 at BSA Hospital, for his potency test. He examined the patient and on physical examination of his genital organs and there was nothing to suggest that patient is incapable of performing sexual intercourse. His examination report is Ex. PW5/A bearing his signature at point A. 23 of 41 24 FIR No. 410/13 PS - S.P. Badli Despite grant of opportunity, PW2 - Dr. Meet Kumar and PW5 - Dr. Mukesh Kumar were not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Kapoor Chand was capable of performing sexual intercourse.
DNA FINGERPRINTING EVIDENCE
15. PW6 - Ms. Monika Chakravarty, Senior Scientific Assistant (Biololgy), FSL, Rohini, Delhi, has proved the DNA report Ex. PW - 6/A and Genotype data annexed with the report Ex. PW - 6/B bearing her signature at point 'A'.
As per DNA report Ex. PW6/A the description of articles contained in parcels, report of biological analysis, DNA examination, result of analysis and conclusion reads as under : 24 of 41 25 FIR No. 410/13 PS - S.P. Badli DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box parcel sealed with the seal of "CASUALTY DR BASH 01.07.12 GOVT OF DELHI"
marked as 'A' containing exhibits '1a', '1b', '1c', '1d','1e','1f','1g', '1h', '1i', '1j', '1k1', '1K2', '1I', '1m', '1n', '1o', '1p', '1q', '1r1' & '1r2' kept in envelopes described to be of prosecutrix.
Exhibit '1a' : One envelope labelled as In between fingers returned unexamined.
Exhibit '1b' : One envelope labelled as Body fluid collection returned unexamined.
Exhibit '1c' : One envelope labelled as Debri collection returned unexamined.
Exhibit '1d' : One envelope labelled as Nail scrapping returned unexamined.
Exhibit '1e' : One envelope labelled as Debri collection returned unexamined.
Exhibit '1f' : One envelope labelled as Breast swab returned unexamined.
Exhibit '1g' : One envelope labelled as Combing of pubic hair returned unexamined.
Exhibit '1h' : One envelope labelled as Clipping of pubic hair returned unexamined.
Exhibit '1i' : One envelope labelled as Matted pubic hair returned unexamined.
Exhibit '1j' : Cotton wool swab on a stick described as
25 of 41 26 FIR No. 410/13 PS - S.P. Badli Cervical mucus collection.
Exhibit '1k1' : Cotton wool swab on a stick described as Vaginal secretion.
Exhibit '1k2' : Two microslides kept in a case described as Vaginal secretion.
Exhibit '1I' : One envelope labelled as Culture returned unexamined.
Exhibit '1m' : One envelope labelled as Washing from vagina returned unexamined.
Exhibit '1n' : One envelope labelled as Rectal examination returned unexamined.
Exhibit '1o' : One envelope labelled as Oral swab returned unexamined.
Exhibit '1p' : One envelope labelled as Blood collection of victim returned unexamined.
Exhibit '1q' : One envelope labelled as Urine & Oxalate blood vial returned unexamined.
Exhibit '1r1' : One pyjami. Exhibit '1r2' : One lady's shirt. Parcel '3' : One sealed cardboard box parcel sealed with the seal of "CASUALTY DR BSAH 01.07.12 GOVT. OF DELHI"
marked as 'C' containing exhibits '3a', '3b', '3c', '3d', '3e' & '3f' described to be of accused.
Exhibit '3a' : One pants returned unexamined. Exhibit '3b' : Dark brown liquid in two tubes described as Blood sample.
Exhibit '3c' : One paper parcel labelled as Blood gauze 26 of 41 27 FIR No. 410/13 PS - S.P. Badli returned unexamined.
Exhibit '3d' : Two tubes labelled as Scalp hair plucked & cut returned unexamined.
Exhibit '3e' : Two tubes labelled as Pubic hair plucked & cut returned unexamined.
Exhibit '3f' : One paper parcel labelled as Glans smear returned unexamined.
REPORT OF BIOLOGICAL ANALYSIS
1. Human semen was detected on exhibits '1j', '1k1', '1k2' & '1r1'.
2. Seman could not be detected on exhibit '1r2' DNA EXAMINATION Exhibits '1j,k1' (Cervical & Vaginal swab), '1k2' (Vaginal secretion on slide), '1r1' (Pyjami) of prosecutrix & '3b' (Blood sample of accused) were subject to DNA isolation, DNA was isolated from the source of exhibits '1j', 'k1', '1k2', '1r1' & '3b'. DNA profiles were generated from the source of exhibits '1j', k1', '1k2', '1r1' & '3b' using AmpF1 STR Identifiler plus PCR amplification kit. STR analysis was used for each of the exhibits. Data was analysed using GeneMapper Idx software. RESULT OF ANALYSIS Alleles from the source of exhibit '3b' (Blood sample of accused) were 27 of 41 28 FIR No. 410/13 PS - S.P. Badli not accounted in the alleles from the source of exhibits '1j,k1' (Cervical & Vaginal swab), '1k2' (Vaginal secretion on slide) & '1r1' (Pyjami) of prosecutrix.
CONCLUSION DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA profiles from the source of exhibit '3b' (Blood sample of accused) were not similar with the male DNA profiles from the source of exhibits '1j,k1' (Cervical & Vaginal swab), '1k2' (Vaginal secretion on slide) & '1r1' (Pyjami) of prosecutrix. NOTE : 1). Exhibits '1j', '1k1', '1k2', '1r1' & '3b" were sufficient to conclude the results therefore exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1l', '1m', '1n', '1o', '1p', '1q', '3a', '3c', '3d', '3e' & '3f' were not examined.
2). Remnants of the exhibits have been sealed with the seal of 'MCh FSL DELHI'.
Genotype analysis for establishing identity of accused using MICROSATELLITES Ex. PW6/B reads as under : GENOTYPE ANALYSIS TO ESTABLISH IDENTITY OF ACCUSED USING MICROSATELLITES
i) D8S1179 ii) D21S11 iii) D7S820 iv) CSF1P0 v) D3S1358 vi) TH01 vii) D13S317 viii) D16S539 ix) D2S1338 x) D19S433 xi) vWA xii) TP0X xiii) D18S51 xiv) D5S818 xv) FGA AND AMELOGENIN 28 of 41 29 FIR No. 410/13 PS - S.P. Badli Loci Exhibit '1j,k1' Exhibit '1k2' Exhibit '1r1' Exhibit '3b' (Cervical & Vaginal (Vaginal secretion on (Pyjami of the (Blood sample of swab of the slide of the prosecutrix) accused) prosecutrix) prosecutrix) D8S1179 14,14 14,14 14,14 10,10 D21S11 30.2,32 30.2,32 30.2,32 31.2,32.2 D7S820 8,12 8,12 8,12 8,11 CSF1P0 11,11 11,11 11,11 9,11 D3S1358 16,17 16,17 16,17 16,17 TH01 8,9 8,9 8,9 9,9.3 D13S317 8,13 8,13 8,13 9,11 D16S539 10,11 10,11 10,11 9,12 D2S1338 20,20 20,20 20,20 19,23 D19S433 14,14 14,14 14,14 13,14 vWA 13,14 13,14 13,14 16,18 TP0X 11,11 11,11 11,11 9,11 D18S51 13,17 13,17 13,17 14,14 D5S818 10,12 10,12 10,12 12,12 FGA 23,26 23,26 23,26 21,25 AMELOGENIN X,Y X,Y X,X X,Y As per the DNA report Ex. PW6/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW7/A dated 25.08.2013 and parcel No. 3 belongs to the accused Kapoor Chand which was seized vide seizure memo Ex. PW10/C dated 26.08.2013.
29 of 41 30 FIR No. 410/13 PS - S.P. Badli On careful perusal and analysis of the DNA report Ex. PW6/A coupled with the Genotype data Ex. PW6/B, it clearly shows Alleles from the source of exhibit '3b' (Blood sample of accused) were not accounted in the alleles from the source of exhibits '1j,k1' (Cervical & Vaginal swab of the prosecutrix), '1k2' (Vaginal secretion on slide of the prosecutrix) & '1r1' (Pyjami of the prosecutrix). DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA profiles from the source of exhibit '3b' (Blood sample of accused) were not similar with the male DNA profiles from the source of exhibits '1j,k1' (Cervical & Vaginal swab of the prosecutrix), '1k2' (Vaginal secretion on slide of the prosecutrix) & '1r1' (Pyjami of the prosecutrix).
16. Now let the testimony of PW13 Prosecutrix be perused and analysed.
PW13 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : 30 of 41 31 FIR No. 410/13 PS - S.P. Badli "I am residing at the above address (House No.3, Gali No. 2 Main Khajoori Khas, Delhi) alongwith my four children. My husband expired due to excess drinking of liquor. I am working as a rag picker in the area of Sanjay Gandhi Transport Nagar. I do not remember the date, month but it was in the year 2013 and it was summer time. At about 5.00am in the morning, I had gone to the Sanjay Gandhi Transport Nagar area for rag picking and there my quarrel had taken place with someone (mera wahan per kisi se jhagda ho gaya tha). Someone had telephoned the police at no.100 and police took me in the police station and there police made inquiries from me and police obtained my signatures on blank papers. Thereafter, I came back to my house. Thereafter, I do not know anything else. (uske baad mujhe nahin pata). I have nothing more to say."
From the aforesaid narration of PW13 - prosecutrix, it is clear that she is residing at the above address (House No. 3, Gali No.2, Main Khajoori Khas, Delhi) alongwith her four children. Her husband expired due to excess drinking of liquor. She is working as a rag picker in the area of Sanjay Gandhi Transport Nagar. She does not remember the date, month but it was in the year 2013 and it was summer time. At about 5.00am in the morning, she had gone to the Sanjay Gandhi Transport Nagar area for rag picking and there her quarrel had taken place with someone (mera wahan per kisi se jhagda ho gaya tha). Someone had telephoned the police at no.100 and police took her in the police station 31 of 41 32 FIR No. 410/13 PS - S.P. Badli and there police made inquiries from her and police obtained her signatures on blank papers. Thereafter, she came back to her house. Thereafter, she does not know anything else. (uske baad mujhe nahin pata). She had nothing more to say.
PW13 - 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 studies upto 5th class. I sign in Hindi. I can identify my signature.
At this stage, the statement dated 25.08.2013 is shown to the witness who identifies her signature at point A and denies of having made any such statement to the police. The statement dated 25.08.2013 is Mark PW13/PX.
I have not stated to the police that at about 5.30 am while I picking the rags (kooda beente huye) reached at AW142, SGT Nagar, where in the parked truck no. HR55Q0181, one person sitting on its driver seat came down and asked me whether I want the junk iron (loha) lying in his truck and before I could say anything, he kept his hand on my mouth and after drawing (kheenchkar) me took me under the truck towards the wall side and gave slaps and fist beatings on my face and under the truck itself he forcibly committed rape upon me without my consent and against my Will. (Confronted with the statement Mark 32 of 41 33 FIR No. 410/13 PS - S.P. Badli PW13/PX from portion A to A where it is so recorded).
It is wrong to suggest that I had stated to the police that at about 5.30 am while I picking the rags (kooda beente huye) reached at AW142, SGT Nagar, where in the parked truck no. HR55Q0181, one person sitting on its driver seat came down and asked me whether I want the junk iron (loha) lying in his truck and before I could say anything, he kept his hand on my mouth and after drawing (kheenchkar) me took me under the truck towards the wall side and gave slaps and fist beatings on my face and under the truck itself he forcibly committed rape upon me without my consent and against my Will.
I have not stated to the police that on finding an opportunity, I raised an alarm on which, the public persons started hurling the stones and during this I was also hurt by a stone and during this that person finding an opportunity had fled from there and the legal action be taken against this truck driver.
(Confronted with the statement Mark PW13/PX from portion B to B where it is so recorded).
It is wrong to suggest that I had stated to the police that on finding an opportunity, I raised an alarm on which, the public persons started hurling the stones and during this I was also hurt by a stone and during this that person finding an opportunity had fled from there and the legal action be taken against this truck driver.
At this stage, the statements dated 25.08.2013, 22.09.2013 and 25.10.2013 shown and read over to the witness who denies of having made any such statement to the police. The statement dated 25.08.2013 is Mark PW13/PX1, the statement dated 22.09.2013 is Mark PW13/PX2 and the statement dated 25.10.2013 is Mark PW13/PX3.
It is correct that I was medically examined in BSA hospital on 25.08.2013. It is wrong to suggest that on 25.08.2013 itself in the 33 of 41 34 FIR No. 410/13 PS - S.P. Badli evening at about 4.00pm, I had again gone to the BSA hospital for my internal examination got conducted. Vol. My medical examination was conducted only once.
I have seen MLC Ex.PW3/A and it does not bear my signature at point B. I have seen MLC Ex.PW4/A and it bears my signature at point B. It is wrong to suggest that my signature is present at point B on the MLC Ex.PW3/A or that I am deposing falsely in this regard or that deliberately I am not identifying my signature.
I have not stated to the police that after my medical examination on 25.08.2013, I took the police at the place of incident and there on my identification accused who had committed rape upon me was apprehended by the police and on inquiries, his name was revealed as Kapoor Chand.
(Confronted with the statement Mark PW13/PX1 from portion A to A where it is so recorded).
It is wrong to suggest that I had stated to the police that after my medical examination on 25.08.2013, I took the police at the place of incident and there on my identification accused who had committed rape upon me was apprehended by the police and on inquiries, his name was revealed as Kapoor Chand.
At this stage, the wooden partition has been removed. At this stage, accused Kapoor Chand present in the court has been pointed out to the witness by the Ld. Addl. PP and has been told that this is the same person who had committed rape upon her and was arrested by the police at her instance.
The witness states that she does not identify as to who this person is.
The wooden partition now has been restored to its 34 of 41 35 FIR No. 410/13 PS - S.P. Badli original position.
It is wrong to suggest that this is the same person who had committed rape upon me and was arrested by the police at my instance and his name was revealed as Kapoor Chand or that I am deposing falsely in this regard or that deliberately I am not identifying the accused Kapoor Chand.
It is correct that my statement u/s 164 CrPC was recorded by the Ld. MM. At this stage, the statement u/s 164 CrPC already Ex.PW12/A is shown to the witness who identifies her signature at point B and stated that it was recorded as to what I had told (jo meine bataya).
It is wrong to suggest that on 25.08.2013 at 5.00am at SGT Nagar, no quarrel had taken place between me and some other person as I deposed, in fact on 25.08.2013 at about 5.30am at SGT Nagar, I was dragged by the accused under the truck no. HR55Q0181 towards the wall and after slapping on my face and giving fists on my face, he committed rape upon me or that I have churned out a false story in order to conceal the truth.
It is wrong to suggest that I have been won over by the accused. It is wrong to suggest that I am concealing the true and actual facts in order to save the accused. It is wrong to suggest that I have compromised the matter with the accused and for this reason I am concealing the truth. It is wrong to suggest that I am deposing falsely."
During her crossexamination by the Learned Counsel for the accused, PW13 - prosecutrix has deposed that : 35 of 41 36 FIR No. 410/13 PS - S.P. Badli "It is correct that I was not in a fit state of mind at the time when I made statement u/s 164 CrPC Ex.PW12/A and I was suffering from high fever and depression. "
On analysing the entire testimony of PW13 - prosecutrix it is clearly indicated that during her examinationinchief she has not uttered a single word regarding the committal of any 'galat kaam' upon her except deposing that, "I do not remember the date, month but it was in the year 2013 and it was summer time. At about 5.00am in the morning, I had gone to the Sanjay Gandhi Transport Nagar area for rag picking and there my quarrel had taken place with someone (mera wahan per kisi se jhagda ho gaya tha). Someone had telephoned the police at no.100 and police took me in the police station and there police made inquiries from me and police obtained my signatures on blank papers. Thereafter, I came back to my house. Thereafter, I do not know anything else. (uske baad mujhe nahin pata)". Her statement u/s 164 Cr.P.C Ex. PW12/A also does not come to the rescue of the prosecution case when she deposed during her crossexamination by the Learned Addl. PP for the state that, "It was recorded as to what I had told (jo maine bataya)." During her crossexamination by Learned Addl. PP for
36 of 41 37 FIR No. 410/13 PS - S.P. Badli the state she also failed to identify the accused Kapoor Chand in the Court. During her crossexamination by Learned Addl. PP for the State she negated the suggestions that, she had stated to the police that at about 5.30 am while she was picking the rags (kooda beente huye) reached at AW142, SGT Nagar, where in the parked truck no. HR55Q0181, one person sitting on its driver seat came down and asked her whether she want the junk iron (loha) lying in his truck and before she could say anything, he kept his hand on her mouth and after drawing (kheenchkar) her took her under the truck towards the wall side and gave slaps and fist beatings on her face and under the truck itself he forcibly committed rape upon her without her consent and against her Will or that she had stated to the police that on finding an opportunity, she raised an alarm on which, the public persons started hurling the stones and during this she was also hurt by a stone and during this that person finding an opportunity had fled from there and the legal action be taken against this truck driver or that she had stated to the police that after her medical examination on 25.08.2013, she took the police at the place of incident and there on her identification accused who had committed rape upon her was apprehended by the police and on inquiries, his name was 37 of 41 38 FIR No. 410/13 PS - S.P. Badli revealed as Kapoor Chand or that this is the same person who had committed rape upon her and was arrested by the police at her instance and his name was revealed as Kapoor Chand or that she is deposing falsely in this regard or that deliberately she is not identifying the accused Kapoor Chand or that on 25.08.2013 at 5.00 a.m. at SGT Nagar, no quarrel had taken place between her and some other person as she deposed, in fact on 25.08.2013 at about 5.30 a.m. at SGT Nagar, she was dragged by the accused under the truck no. HR55Q0181 towards the wall and after slapping on her face and giving fists on her face, he committed rape upon her or that she has churned out a false story in order to conceal the truth or that she has been won over by the accused or that she is concealing the true and actual facts in order to save the accused or that she has compromised the matter with the accused and for this reason she is concealing the truth or that she is deposing falsely.
As discussed hereinbefore, PW13 - prosecutrix has been found to be aged around 24 years, from the testimony of PW13 - prosecutrix, nothing is being indicated that on 25.08.2013 at about 5.30 a.m., at AW142, Sanjay Gandhi Transport Nagar, accused Kapoor Chand 38 of 41 39 FIR No. 410/13 PS - S.P. Badli wrongfully restrained PW13 - Prosecutrix or that he dragged her under the truck no. HR55Q0181, by the side of a wall (truck ke nicha diwar ki side mai) or that he voluntarily caused simple injuries on her person by beating her with punch and slaps or that he forcibly committed rape upon her against her will and without her consent. Even the DNA Report Ex. PW6/A coupled with the Genotype data Ex. PW6/B as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
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 Kapoor Chand. The hostility of PW13 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that on 25.08.2013 at about 5.30 a.m., at AW142, Sanjay Gandhi Transport Nagar, accused Kapoor Chand wrongfully restrained PW13 - Prosecutrix aged around 24 years or that he dragged her under the truck no. HR55Q0181, by the side of a wall (truck ke nicha diwar ki side mai) or that he voluntarily caused simple injuries on her person by beating her with punch and slaps or that he forcibly 39 of 41 40 FIR No. 410/13 PS - S.P. Badli committed rape upon her against her will and without her consent.
I accordingly, acquit accused Kapoor Chand for the offences punishable u/s 341/323/376 IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Kapoor Chand in the commission of offences punishable u/s 341/323/376 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 Kapoor Chand beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Kapoor Chand. I, therefore, acquit accused Kapoor Chand for the offences punishable u/s 341/323/376 IPC after giving him the benefit of doubt. Accused Kapoor Chand is running in JC. He be released forthwith, if not wanted in any other case. However, on his release accused Kapoor Chand shall appear in the Court and shall execute a bailbond in the sum of Rs. 20,000/ under section 437A Cr.P.C.
40 of 41 41 FIR No. 410/13 PS - S.P. Badli Announced in the open Court (MAHESH CHANDER GUPTA) on 20th Day of October, 2015 Additional Sessions Judge Special Fast Track Court (North), Rohini, Delhi 41 of 41