Delhi District Court
State vs . 1. Vishal Sonkar on 26 November, 2015
1
FIR No. 581/14
PS - Mahendra Park
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 174/14
Unique ID No. : 02404R0396602014
State Vs. 1. Vishal Sonkar
S/o Sh. Achhey Lal
R/o Village - Kasba Dev,
PS - Kasba Dev,
Village Azamgarh, U.P.
FIR No. : 581/14
Police Station : Mahendra Park
Under Sections : 376/366 IPC
Date of committal to session Court : 20/12/2014
Date on which judgment reserved : 20/11/2015
Date on which judgment announced : 26/11/2015
J U D G M E N T
1 of 43 2 FIR No. 581/14 PS - Mahendra Park
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That in the night of 23/09/2014, prosecutrix (name withheld being a case u/s 376 IPC), D/o Sh. Jeet Ram, R/o House No. 170, Sarai, Pipal Thala, came to the PS - Mahendra Park and told to SI Mukesh Kumar regarding the committal of the Galat Kaam with her. Due to it being late night and due to nonavailability of any Lady IO and NGO Counselor the statement of the prosecutrix was recorded by W/Constable Poonam and the prosecutrix made the statement which is to the effect that, she lives at the above address with her family and studies in BA I st Year. A boy named Vishal, with his father used to live in their house as a tenant about three years back, then that boy used to do talkings with her (Mere Se Baat Cheet Karta Tha). Slowly slowly they started loving each other. Vishal, after about two months, after vacating their house had started living in village Bhadola, where he used to call her to meet him. About 3/4 months ago, he after calling her, that he will perform the marriage with her, forcibly established physical relation with her. Thereafter, he established physical relations many times (Kai Baar) with her and he kept on saying to her that he will perform the marriage with 2 of 43 3 FIR No. 581/14 PS - Mahendra Park her only. When she told all about the incident (Apni Aap Beeti) to her family members, on which they agreed to perform her marriage with Vishal and they also made the family members of Vishal agreeable to it (Vishal kae ghar walo ko bhee mana liya). Her family members were just on the verge of getting their marriage performed (Hamare Gharwale Hamari Shadi Karvane Wale Hi The), but about 56 days back, Vishal fled away. Vishal, on the false pretext of marriage has established physical relations with her many times and now he is refusing for marriage. Legal action be taken against Vishal. On the basis of the statement, 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 Mukesh Kumar. The medical examination of the prosecutrix was got conducted from BJRM hospital and the sealed exhibits handed over by the doctor after her medical examination were taken into police possession. On 23/09/20144, SI Sumedha, PS - Shalimar Bagh, got recorded the statement of the prosecutrix u/s 164 Cr.P.C. Thereafter, the investigation was handed over to SI Seema. Site Plan was prepared by SI Seema at the instance of the prosecutrix. Statements of the witnesses were recorded. On 17/10/2014, accused 3 of 43 4 FIR No. 581/14 PS - Mahendra Park Vishal was arrested and his disclosure statement was recorded. On 05/11/2014, Potency Test of accused Vishal was got conducted from RML Hospital vide MLC No. 237135/14. The age proof documents of the prosecutrix were obtained from her School. Age proof of the accused Vishal was also obtained according to which his date of birth is 19/05/1991. Section 366 IPC was added in the case. Sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation, challan for the offences u/s 376/366 IPC was prepared against accused Vishal Sonkar and was sent to the Court for trial.
2. Since the offences under sections 366/376 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376 IPC was made out against accused Vishal Sonkar. The charge was framed accordingly, 4 of 43 5 FIR No. 581/14 PS - Mahendra Park 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 13 witnesses. PW1 - Dr. Faruq Ahmed, BJRM Hospital, Jahangir Puri, Delhi, PW2 Prosecutrix (name withheld), PW3 - HC Mukesh Kumar, PW4 - Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi, PW5 - Dr. R. Kappu, MO, BJRM Hospital, Delhi, PW6 - Constable Ram Niwas, PW7 - Kashmiri Devi, PW8 - W/SI Seema, PW9 - Sh. Rakesh Kumar, Record Clerk, Dr. Ram Manohar Lohia Hospital, Delhi, PW10 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, PW11 - Inspector Mukesh Kumar, PW12 - ASI Babu Khan, PW13 - Constable Lalit.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Dr. Faruq Ahmed, BJRM Hospital, Jahangir Puri, Delhi, who deposed that on 17/10/2014, he was posted as Junior Resident Doctor in BJRM Hospital. On that day, Constable Praveen produced 5 of 43 6 FIR No. 581/14 PS - Mahendra Park Vishal Sonkar S/o Achhey Lal, age 19 years, Male for medical examination with alleged history of sexual assault. His vital found to be normal and there (was no any) fresh injury in external genitalies (genitalia). No smega was present on galns (glans) penis. The patient was referred to forensic expert for Potency Test. His blood gauze piece, and undergarment were sealed and handed over to the IO. MLC of Vishal is in his hand and the same is Ex. PW1/A bears his signature at point 'A'.
PW2 Prosecutrix is the victim, who deposed some facts regarding the incident and proved her statement made to the Police Ex. PW2/A; site plan Ex. PW2/B; arrest memo of accused Ex.PW2/C and her statement recorded u/s 164 Cr.P.C Ex. PW2/D. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for State.
PW3 - HC Mukesh Kumar is the MHC(M), who deposed that on 09/10/2014, he was posted as MHC(M) at PS - Mahendra Park. On that day, IO SI Mukesh deposited one sealed pullinda sealed with the 6 of 43 7 FIR No. 581/14 PS - Mahendra Park seal of 'MS BJRM HOSPITAL' after medical examination of prosecutrix (name withheld) which was deposited by him in the Malkhana vide Entry No. 1070/14 in Register No. 19. The copy of the said entry is Ex. PW3/A (original seen and returned). On 09/10/2014, the above said sealed pullinda was handed over to Constable Lalit Kumar vide RC No. 88/21/14 for depositing the same in FSL. Constable Lalit deposited the same in FSL and handed over to him the receipt of the RC copy of which is Ex. PW3/B (original seen and returned). He had also put his endorsement regarding sending the sealed pullindas to FSL through Constable Lalit Kumar at point 'A' against Entry No. 1070/14 in Register No. 19. On 17/10/2014, he was posted as MHC(M) at PS - Mahendra Park. On that day, IO SI Seema deposited three sealed pullindas sealed with the seal of 'MS BJRM HOSPITAL' after medical examination of accused Vishal Sonkar which was deposited by him in the Malkhana vide Entry No. 1119/14 in Register No. 19. The copy of the said entry is Ex. PW3/C (original seen and returned). On 22/10/2014, the above said sealed pullindas were handed over to Constable Bablu vide RC No. 96/21/14 for depositing the same in FSL. Constable Bablu deposited the same in FSL and handed over to him the receipt of the RC copy of which 7 of 43 8 FIR No. 581/14 PS - Mahendra Park is Ex. PW3/D (original seen and returned). He had also put his endorsement regarding sending the sealed pullindas to FSL through Constable Bablu at point 'A' against Entry No. 1119/14 in Register No.
19. PW4 - Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi, who deposed that he has been deputed by MS BJRM Hospital to depose in Court on behalf of Dr. Ummer who has left the services of the Hospital and his present whereabouts are not known. He has seen MLC No. 85713 pertaining to prosecutrix (name withheld) D/o Jeet Ram age 19 years which was prepared by Dr. Ummer JR Casualty. He has seen the MLC Ex. PW4/A bearing the note in the hand of Dr. Ummer from point 'A' to 'A' and his signature at point 'X' on MLC Ex. PW4/A. After medical examination of the patient she was referred to Gynae SR. He can identify handwriting of Dr. Ummer as he has seen him writing and signing in course of his official duties.
PW5 - Dr. R. Kappu, MO, BJRM Hospital, Delhi, who deposed that she has been deputed by MS, BJRM Hospital to depose in 8 of 43 9 FIR No. 581/14 PS - Mahendra Park Court on behalf of Dr. Prachi Patenja, SR Gynae who has left the services of the Hospital and her present whereabouts are not known. She has seen MLC No. 85713 pertaining to prosecutrix (name withheld), D/o Jeet Ram age 19 years, who was referred by Dr. Ummer, JR to Gynae, SR for her medical examination. On her local examination, hymen was found ruptured (old tear). The MLC Ex. PW4/A bearing the note in the hand of Dr. Prachi from point 'B' to 'B1' and her signature at point 'Y'. She can identify handwriting of Dr. Prachi as she has seen her writing and signing in course of her official duties.
PW6 - Constable Ram Niwas, who deposed that on 17/10/2014, he was posted at PS Mahendra Park. On that day, he had joined the investigation with IO WSI Seema in the present case. They reached at B180, Azadpur Subji Mandi, Delhi where on the pointing out of secret informer one person was apprehended who disclosed his name as Vishal. Accused was interrogated and arrested vide arrest memo already Ex. PW2/C and his personal search was conducted vide memo Ex. PW2/A both the memos bearing his signature at point 'A'. Thereafter, he was brought to PS. His statement was recorded by the IO.
9 of 43 10 FIR No. 581/14 PS - Mahendra Park Accused Vishal is present in the Court (Correctly identified).
PW7 - Kashmiri Devi is the mother of the prosecutrix, who deposed that she lives at House No. 170, Sarai Pipal Thala, Delhi with her family which consists of her husband and her daughter/prosecutrix (name withheld). She is a household lady. She is having five daughters. Prosecutrix (name withheld) is her youngest daughter. Her all the four daughters elder to prosecutrix (name withheld) have since been married off. Accused Vishal was tenant in their house. Her daughter/ prosecutrix (name withheld) had insisted that she will perform the marriage with accused Vishal only. Initially, they did not agree to it but on her insistence, they gave in (Hum Maan Gaye). Her daughter/prosecutrix (name withheld) had not told anything about her friendship/affairs with accused Vishal. Due to some misunderstanding, her daughter/prosecutrix (name withheld) had lodged the report with the Police as accused Vishal had gone somewhere without leaving any information. Now the marriage has been performed between her daughter/prosecutrix (name withheld) and accused Vishal and they are living happily. She has nothing more to say. Accused Vishal is present 10 of 43 11 FIR No. 581/14 PS - Mahendra Park in the Court (correctly identified). She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW8 - W/SI Seema is the subsequent Investigating Officer (IO) of the case, who deposed that on 01/10/2014, she was posted at PS - Mahendra Park. On that day, the present case file was handed over to her by the order of SHO for further investigation. Thereafter, she visited the house of prosecutrix. She made inquiries from the prosecutrix and recorded her supplementary statement. Thereafter, prosecutrix led them to the place of occurrence, where on her pointing out, she inspected the spot and prepared Site Plan Ex. PW2/B bearing her signature at point 'B'. She recorded the statement of prosecutrix and her mother Kashmiri. On 09/10/2014, the exhibits of the present case were sent to FSL through Constable Lalit. Thereafter, she recorded the statement of MHC(M) and Constable Lalit. On 17/10/2014, she alongwith Constable Ram Niwas visited B - 180, Azad Pur Subzi Mandi, Delhi where on the pointing out of secret informer one person was apprehended who disclosed his name as Vishal. Accused was interrogated and arrested vide arrest memo 11 of 43 12 FIR No. 581/14 PS - Mahendra Park already Ex. PW2/C and his personal search was conducted vide memo Ex. PW2/A both the memos bearing her signature at point 'C'. Disclosure statement of accused Vishal was recorded which is Ex. PW8/A bearing her signature at point 'A'. Thereafter, he was brought to PS and she recorded the statement of Constable Ram Niwas. Accused was sent for the medical examination and his medical examination was got conducted at BJRM Hospital vide MLC No. 86472 and the sealed exhibits handed over by the Doctor after the medical examination were seized vide seizure memo Ex. PW8/B bearing her signature at point 'A'. Accused was sent to lockup and on the next day, he was produced before the concerned Court and was sent to JC. Accused Vishal is present in the Court (correctly identified). She collected the Date of Birth Certificate of prosecutrix and the same is Ex. PW8/C. On 22/10/2014, remaining exhibits were sent to FSL, Rohini. She completed the investigation and prepare the chargesheet and sent to the Court for trial.
PW9 - Sh. Rakesh Kumar, Record Clerk, Dr. Ram Manohar Lohia Hospital, Delhi, who deposed that he is working as a record Clerk in RML Hospital since 1996. He has seen the MLC No. 237135/14 of 12 of 43 13 FIR No. 581/14 PS - Mahendra Park Patient Vishal, 19 years, Male. Accused was produced in the Casualty for his medical examination who was examined by Dr. Preeti Saniya. Dr. Preeti Saniya is on CCL. He can identify her handwriting and signature as he has seen her while writing and signing during the course of the duties. MLC is Ex. PW9/A bearing the signature of Dr. Preeti Saniya at point 'A'. He has also seen the notings on the back side of MLC. The said noting was in the handwriting of Dr. Anurag Singla, SR, Urology from portion 'X' to 'X' and same is Ex. PW9/B bearing the signature of Dr. Anurag Singla at point 'A' which he identifies.
PW10 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, who deposed that on 17/10/2014, he was working as a CMO in BJRM Hospital. On that day, patient Vishal, Age 19 Years, Male, was examined vide MLC No. 86472/14 by Doctor Faruq Ahmed under his supervision. The MLC is already Ex. PW1/A bearing his signature at Point 'A' and signature of Dr. Faruq Ahmed at Point 'B' which he identifies.
13 of 43 14 FIR No. 581/14 PS - Mahendra Park PW11 - Inspector Mukesh Kumar is the initial Investigating Officer (IO) of the case, who deposed that on 23/09/2014, he was posted as Incharge Police Post - N. S. Mandi of PS Mahendra Park and working as a SI. On that day, prosecutrix came to Police Post and in his presence Lady Constable Poonam had recorded her statement already Ex. PW2/A which bears the signature of Lady Constable at point 'B' and thereafter, he prepared Rukka Ex. PW11/A and handed over to DO of PS Mahendra Park for the registration of FIR. Prosecutrix was sent to Hospital for her medical examination alongwith Lady Constable Poonam. After the medical examination of prosecutrix, Lady Constable Poonam handed over him exhibits which were taken into possession vide seizure memo Ex. PW11/B bearing his signatures at point 'A' and same were deposited with MHC(M). Thereafter, further investigation of the case was handed over to W/SI Seema after registration of FIR. The FSL result has been obtained. He tendered the FSL result which is Ex. PW11/C. PW12 - ASI Babu Khan is the Duty Officer, who deposed that on 23/09/2014, he was posted as Duty Officer in PS Mahendra Park 14 of 43 15 FIR No. 581/14 PS - Mahendra Park and was on duty from 12:00 midnight to 8:00 a.m. On that day, at about 1:20 a.m., he received Rukka/Tehrir from SI Mukesh Kumar for the registration of FIR on the basis of which he got recorded FIR No. 581/14, u/s 376 IPC through the Computer Operator on the computer installed in PS. He obtained a print out of the FIR. This print out has been obtained on the basis of information which is used in the routine manner for the purpose of feeding the similar category. The said computer was under
his lawful control. Nothing adverse took place during the period as to cause any error regarding the information feeded in the computer. The copy of FIR is Ex. PW12/A bearing his signature at Point 'A' (OSR). He handed over the copy of FIR to SI Mukesh. He also issued a Certificate u/s 65B of The Evidence Act which is Ex. PW12/B bearing his signature at Point 'A'. He made endorsement on the Rukka and the same is Ex. PW12/C, bearing his signature at point 'A'.
PW13 - Constable Lalit, who deposed that on 09/10/2014, he was posted at PS Mahendra Park. On that day, on the instruction of IO he received exhibits and sample seal from MHC(M) vide RC No. 88/11/14 in a sealed condition to deposit the same at FSL Rohini. He
15 of 43 16 FIR No. 581/14 PS - Mahendra Park deposited the exhibits in a sealed condition at FSL office and obtained the acknowledgment. Thereafter, he came back to PS. Acknowledgment was handed over to MHC(M). The exhibits as long as (remained) in his possession it was not tampered or allowed to be tampered and were remained intact. Thereafter, IO recorded his statement in this regard.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is to be mentioned that on 28.08.2015 accused Vishal made the statement wherein he admitted the proceedings u/s 164 Cr.P.C conducted by Ms. Shilpi Jain, Learned MM (but not the contents thereof). The request of IO for conducting the proceedings is Ex.PX1; the proceedings u/s 164 Cr.P.C is Ex.PX2 (running into four pages); the statement u/s 164 Cr.P.C is already Ex.PW2/D and the copy of the application of the IO for supply of the proceedings is Ex. PX3. Accused had also stated that he has 'no objection' if the Learned MM is not examined in the court as a witness.
16 of 43 17 FIR No. 581/14 PS - Mahendra Park
7. Statement of accused Vishal Sonkar was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Vishal Sonkar did not opt to lead any defence evidence.
8. Learned Counsel for the accused submitted that prosecutrix has not supported the prosecution and the prosecution has failed to prove its case beyond reasonable doubts and prayed for the acquittal of the accused on the charge levelled against him.
9. 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.
10. I have heard Shri Ashok Kumar, Learned Addl. PP for the State and Shri V. K. Vats, Learned Counsel for the accused and have also carefully perused the entire record.
17 of 43 18 FIR No. 581/14 PS - Mahendra Park
11. The charge for the offence punishable u/s 376 IPC against the accused Vishal Sonkar is that during the period of 34 months prior to 23/09/2014, at his house situated at Village - Bhadoula, he committed rape upon prosecutrix (name withheld) D/o Sh. Jeet Ram, aged about 18 years, on false pretext of marriage several times.
12. 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
13. PW2 - Prosecutrix in her statement recorded in the Court on 08/07/2015 while giving her particulars has stated her age as 20 years.
PW8 - W/SI Seema, IO during her examinationinchief has 18 of 43 19 FIR No. 581/14 PS - Mahendra Park deposed that she collected the date of birth certificate of the prosecutrix and the same is Ex. PW8/C. Perusal of the date of birth certificate of the prosecutrix Ex. PW8/C indicates her date of birth as 17.04.1995.
There is nothing in the crossexamination of PW8 W/SI Seema so as to impeach her creditworthiness. Moreover, the said date of birth of PW2 prosecutrix has not been disputed by accused Vishal. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands established on the record that the date of birth of the prosecutrix is 17.04.1995.
Since the date of alleged incident is 34 months prior to 23/09/2014 and the date of the birth of the prosecutrix is 17.04.1995 on simple arithmetical calculation, the age of the prosecutrix comes to 19 years, 01 month and 06 days as on the date of alleged incident on 19 of 43 20 FIR No. 581/14 PS - Mahendra Park 23/05/2014, 34 months prior to 23/09/2014.
In the circumstances, it stands proved on record that PW2 - prosecutrix was aged 19 years, 01 month and 06 days as on the date of incident on 23.05.2014, 34 months prior to 23/09/2014. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW4 - Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi has deposed that he has been deputed by MS BJRM Hospital to depose in Court on behalf of Dr. Ummer who has left the services of the Hospital and his present whereabouts are not known. He has seen MLC No. 85713 pertaining to prosecutrix (name withheld) D/o Jeet Ram age 19 years which was prepared by Dr. Ummer JR Casualty. He has seen the MLC Ex. PW4/A bearing the note in the hand of Dr. Ummer from point 'A' to 'A' and his signature at point 'X' on MLC Ex. PW4/A. After medical examination of the patient she was referred to Gynae SR. He can identify handwriting of Dr. Ummer as he has seen him writing and signing in course of his official duties.
PW5 - Dr. R. Kappu, MO, BJRM Hospital, Delhi has 20 of 43 21 FIR No. 581/14 PS - Mahendra Park deposed that she has been deputed by MS, BJRM Hospital to depose in Court on behalf of Dr. Prachi Patenja, SR Gynae who has left the services of the Hospital and her present whereabouts are not known. She has seen MLC No. 85713 pertaining to prosecutrix (name withheld), D/o Jeet Ram age 19 years, who was referred by Dr. Ummer, JR to Gynae, SR for her medical examination. On her local examination, hymen was found ruptured (old tear). The MLC Ex. PW4/A bearing the note in the hand of Dr. Prachi from point 'B' to 'B1' and her signature at point 'Y'. She can identify handwriting of Dr. Prachi as she has seen her writing and signing in course of her official duties.
Despite grant of opportunity, PW4 - Dr. R. S. Mishra and PW5 - Dr. R. Kappu were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical/gynaecological examination vide MLC Ex. PW4/A from point 'A' to 'A' and from point 'B' to 'B1' of PW2 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED VISHAL SONKAR 21 of 43 22 FIR No. 581/14 PS - Mahendra Park
15. PW9 - Sh. Rakesh Kumar, Record Clerk, Dr. Ram Manohar Lohia Hospital, Delhi has deposed that he is working as a record Clerk in RML Hospital since 1996. He has seen the MLC No. 237135/14 of Patient Vishal, 19 years, Male. Accused was produced in the Casualty for his medical examination who was examined by Dr. Preeti Saniya. Dr. Preeti Saniya is on CCL. He can identify her handwriting and signature as he has seen her while writing and signing during the course of the duties. MLC is Ex. PW9/A bearing the signature of Dr. Preeti Saniya at point 'A'. He has also seen the notings on the back side of MLC. The said noting was in the handwriting of Dr. Anurag Singla, SR, Urology from portion 'X' to 'X' and same is Ex. PW9/B bearing the signature of Dr. Anurag Singla at point 'A' which he identifies.
PW1 - Dr. Faruq Ahmed, BJRM Hospital, Jahangir Puri, Delhi has deposed that on 17/10/2014, he was posted as Junior Resident Doctor in BJRM Hospital. On that day, Constable Praveen produced Vishal Sonkar S/o Achhey Lal, age 19 years, Male for medical examination with alleged history of sexual assault. His vital found to be normal and there (was no any) fresh injury in external genitalies 22 of 43 23 FIR No. 581/14 PS - Mahendra Park (genitalia). No smega was present on galns (glans) penis. The patient was referred to forensic expert for Potency Test. His blood gauze piece, and undergarment were sealed and handed over to the IO. MLC of Vishal is in his hand and the same is Ex. PW1/A bears his signature at point 'A'.
PW10 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi has deposed that on 17/10/2014, he was working as a CMO in BJRM Hospital. On that day, patient Vishal, Age 19 Years, Male, was examined vide MLC No. 86472/14 by Doctor Faruq Ahmed under his supervision. The MLC is already Ex. PW1/A bearing his signature at Point 'A' and signature of Dr. Faruq Ahmed at Point 'B' which he identifies.
Despite grant of opportunity, PW9 - Sh. Rakesh Kumar, PW1 - Dr. Faruq Ahmed and PW10 - Dr. Gopal Krishna were not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands 23 of 43 24 FIR No. 581/14 PS - Mahendra Park proved on the record that accused Vishal was capable of performing sexual intercourse.
BIOLOGICAL EVIDENCE
16. PW11 - Inspector Mukesh Kumar, IO during his examinationinchief has tendered the FSL Result in the evidence Ex. PW11/C. As per FSL Report Ex. PW11/C, the description of the sources, Biological examination and result of examination reads as under
: DESCRIPTION OF THE SOURCE Forensic Sample received on 09/10/2014 vide FSL No. 2014/DNA7526 Parcel '1' : One sealed cardboard box sealed with the seal of "MS BJRMS J.PURI DELHI" containing unsealed envelopes marked in this laboratory as envelope '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m', '1n' & '1o' described as 'Examination kit for victim of sexual abuse'.
Envelope '1a' : One envelope labelled as 'Step 4 Debri Collection' 24 of 43 25 FIR No. 581/14 PS - Mahendra Park containing one forceps wrapped in a white paper sheet returned in original without examination.
Envelope '1b' : One envelope labelled as 'Step 4 InBetween Fingers' containing exhibit '1b'.
Exhibit '1b' : Cotton wool swab on a wooden stick, wrapped in a white paper sheet.
Envelope '1c' : One envelope labelled as 'Step 4 Body Fluid Collection' containing exhibit '1c'.
Exhibit '1c' : Dirty cotton wool swab on a wooden stick, kept in a plastic tube.
Envelope '1d' : One envelope labelled as 'Step 4 Nail Scraping' containing exhibit '1d'.
Exhibit '1d' : Nail clippings along with nail cutter, wrapped in a white paper sheet.
Envelope '1e' : One envelope labelled as 'Step 5 Breast Swab' containing exhibit '1e'.
Exhibit '1e' : Cotton wool swab on a wooden stick. Envelope '1f' : One envelope labelled as 'Step 6 Combing of Pubic Hair' containing one small comb wrapped in a white sheet returned in original 25 of 43 26 FIR No. 581/14 PS - Mahendra Park without examination.
Envelope '1g' : One envelope labelled as 'Step 7 Clipping of Pubic Hair' containing exhibit '1g'.
Exhibit '1g' : A few strands of black hair along with scissors, wrapped in a white paper sheet.
Envelope '1h' : One envelope labelled as 'Step 9 Cervical Mucus Collection [C]' containing exhibit '1h'.
Exhibit '1h : Brownish cotton wool swab on a wooden stick, kept in a plastic tube.
Envelope '1i' : One envelope labelled as 'Step 9 Vaginal Secretion [V]' containing exhibits '1i1', '1i2' & '1i3'.
Exhibits : Two microslides, kept in a plastic cover. '1i1' & '1i2' Exhibit '1i3' : Dirty brownish cotton wool swab on a wooden stick. Envelope '1j' : One envelope labelled as 'Step 10 Culture' containing exhibit '1j'.
Exhibit '1j' : Wet cotton wool swab on a plastic stick in a gelatinous medium, kept in a plastic tube.
26 of 43 27 FIR No. 581/14 PS - Mahendra Park Envelope '1k' : One envelope labelled as 'Step 11 Washing from Vagina' containing exhibit '1k'.
Exhibit '1k' : Liquid material kept in a syringe. Envelope '1l' : One envelope labelled as 'Step 12 Rectal Examination' containing exhibits '1l1', '1l2' & '1l3'.
Exhibits '1l1' : Two microslides, kept in a plastic cover. & '1i2' Exhibit '1l3' : Cotton wool swab on a wooden stick, kept in a plastic tube.
Envelope '1m' : One envelope labelled as 'Step 13 Oral Swab' containing exhibits '1m1', '1m2' & '1m3'.
Exhibits : Two microslides, kept in a plastic cover. '1m1' & '1m2' Exhibit '1m3' : Cotton wool swab on a wooden stick. Envelope '1n' : One envelope labelled as 'Step 14 Blood Collection of Victim' containing exhibits '1n1' & '1n2'.
Exhibit '1n1' : Dark brown foul smelling liquid, kept in a test tube. Exhibit '1n2' : Dark brown foul smelling liquid, kept in a test tube.
27 of 43 28 FIR No. 581/14 PS - Mahendra Park Envelope '1o' : One envelope labelled as 'Step 15 Urine and Oxalate Blood Vial' containing exhibits '1o1' & '1o2'. Exhibit '1o1' : Liquid material, kept in a plastic container. Exhibit '1o2' : Dark brown foul smelling liquid, kept in a test tube. DESCRIPTION OF THE SOURCE Forensic Sample received on 22/10/2014 vide FSL No. 2014/DNA7907 Parcel '1' : One sealed cloth parcel sealed with the seal of "MS BJRMS J.PURI DELHI" containing exhibit '2', labelled as 'Blood sample of Vishal Sonkar etc.', deposited in continuation with FSL 2014/DNA7526.
Exhibit '2' : Damp foul smelling greenish brown gauze cloth piece kept in a plastic container.
Parcel '2' : One sealed cloth parcel sealed with the seal of "MS BJRMS J.PURI DELHI" labelled as 'Pubic or Vishal Sonkar etc.', returned in original without examination.
Parcel '2' : One sealed cloth parcel sealed with the seal of "MS BJRMS J.PURI DELHI" labelled as 'Underwear of Vishal Sonkar etc.', returned in original without examination.
28 of 43 29 FIR No. 581/14 PS - Mahendra Park BIOLOGICAL EXMAINATION
1. Blood was detected on exhibits '1g', '1h', '1i1', '1i2', '1i3', '1j', '1k', '1l1', '1l2', '1l3', '1n1', '1n2', '1o1', '1o2' & '2'.
2. Blood could not be detected on exhibits '1b', '1c', '1d', '1e', '1m1', '1m2' & '1m3'.
3. Semen could not be detected on exhibits '1b', '1c', '1d', '1e', '1g', '1h', '1i1', '1i2', '1i3', '1j', '1k', '1l1', '1l2', '1l3', '1m1', '1m2', '1m3' & '1o1'.
4. DNA Fingerprinting examination was not conducted for the exhibits '1g', '1h', '1i1', '1i2', '1i3', '1j', '1k', '1l1', '1l2', '1l3', '1n1', '1n2', '1o1', '1o2' (Samples of victim) & exhibit '2' (Blood sample of accused) as semen could not be detected on the exhibits '1b', '1c', '1d', '1e', '1g', '1h', '1i1', '1i2', '1i3', '1j', '1k', '1l1', '1l2', '1l3', '1m1', '1m2', '1m3' & '1o1'.
NOTE : Remnants of the exhibits have been sealed with the seal of 'AC FSL DELHI'.
As per the FSL Report Ex. PW11/C, 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.PW11/B dated 23.09.2014 (FSL No. 2014/DNA7526) and Parcel No. 1 to 3 belong to accused Vishal Sonkar which were seized vide seizure memo Ex. PW8/B dated 17.10.2014 (FSL No. 29 of 43 30 FIR No. 581/14 PS - Mahendra Park 2014/DNA7907).
On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibit '1g' (few strands of black hair alongwith scissors of the prosecutrix), exhibit '1h' (Brownish cotton wool swab of the prosecutrix), exhibit '1i1' (microslide of the prosecutrix), exhibit '1i2' (microslide of the prosecutrix), exhibit '1i3' (Dirty brownish cotton wool swab of the prosecutrix), exhibit '1j' (Culture of the prosecutrix), exhibit '1k' (Washing from Vagina of the prosecutrix), exhibit '1l1' (Microslide of the prosecutrix), exhibit '1l2' (Microslide of the prosecutrix), exhibit '1l3' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1n1' (Dark brown foul smelling liquid of the prosecutrix), exhibit '1n2' (Dark brown foul smelling liquid of the prosecutrix), exhibit '1o1' (Liquid material of the prosecutrix), exhibit '1o2' (Dark brown foul smelling liquid of the prosecutrix) & exhibit '2' (Damp foul smelling greenish brown gauze cloth piece of the accused); blood could not be detected on exhibit '1b' (InBetween Fingers of the the prosecutrix), exhibit '1c' (Dirty cotton wool swab on a wooden stick of the the 30 of 43 31 FIR No. 581/14 PS - Mahendra Park prosecutrix), exhibit '1d' (Nail clippings along with nail cutter of the the prosecutrix), exhibit '1e' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1m1' (Microslide of the prosecutrix), exhibit '1m2' (Microslide of the prosecutrix) & exhibit '1m3' (Cotton wool swab on a wooden stick of the prosecutrix) and semen could not be detected on exhibit '1b' (InBetween Fingers of the prosecutrix), exhibit '1c' (Dirty cotton wool swab on a wooden stick of the prosecutrix), exhibit '1d' (Nail clippings along with nail cutter of the prosecutrix), exhibit '1e' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1g' (Few strands of black hair alongwith scissors of the prosecutrix), exhibit '1h' (Brownish cotton wool swab on a wooden stick of the prosecutrix), exhibit '1i1' (Microslide of the prosecutrix), exhibit '1i2' (Microslide of the prosecutrix), exhibit '1i3' (Dirty brownish cotton wool swab on a wooden stick of the prosecutrix), exhibit '1j' (Wet cotton wool swab on a plastic stick in a gelatinous medium of the prosecutrix), exhibit '1k' (Liquid material of the prosecutrix), exhibit '1l1' (Microslide of the prosecutrix), exhibit '1l2' (Microslide of the prosecutrix), exhibit '1l3' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1m1' (Microslide of the prosecutrix), exhibit '1m2' (Microslide of the 31 of 43 32 FIR No. 581/14 PS - Mahendra Park prosecutrix), exhibit '1m3' (Cotton wool swab on a wooden stick of the prosecutrix) & exhibit '1o1' (Liquid material of the prosecutrix).
As per the FSL Report Ex. PW11/C, DNA Fingerprinting examination was not conducted for the exhibits '1g', '1h', '1i1', '1i2', '1i3', '1j', '1k', '1l1', '1l2', '1l3', '1n1', '1n2', '1o1', '1o2' (Samples of victim) & exhibit '2' (Blood sample of accused) as semen could not be detected on the exhibits '1b', '1c', '1d', '1e', '1g', '1h', '1i1', '1i2', '1i3', '1j', '1k', '1l1', '1l2', '1l3', '1m1', '1m2', '1m3' & '1o1' as detailed hereinabove.
17. Now let the testimony of PW2 prosecutrix be perused and analysed.
PW2 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "Accused Vishal was initially living in our house as a tenant and had vacated the premises three years back. Friendship had developed between us. On the promise of marriage of Vishal, the physical relations were established between us with my consent. I had 32 of 43 33 FIR No. 581/14 PS - Mahendra Park informed my family members that the physical relations have been established between me and Vishal with my consent on his promise of marriage with me. My family members did not object to my marriage with Vishal. Vishal refused to marry with me and he left for his native place and later on, he agreed to marry with me. On this misunderstanding and at the instance of my parents, I lodged the report with the Police which is Ex. PW2/A bearing my signature at point 'A'. My medical examination was got conducted by the Police in the Hospital. My marriage with Vishal has since taken place with the blessings of my parents as well as his parents. I am pregnant from Vishal and is carrying four months pregnancy. I have nothing more to say. I can identify Vishal, if shown to me.
At this stage, the wooden partition has been removed. Accused Vishal is present in the Court (correctly identified).
The wooden partition now has been restored to its original position."
From the aforesaid narration of PW2 - prosecutrix, it is clear that accused Vishal was initially living in their house as a tenant and had vacated the premises three years back. Friendship had developed between them. On the promise of marriage of Vishal, the physical relations were established between them with her consent. She had informed her family members that the physical relations have been 33 of 43 34 FIR No. 581/14 PS - Mahendra Park established between her and Vishal with her consent on his promise of marriage with her. Her family members did not object to her marriage with Vishal. Vishal refused to marry with her and he left for his native place and later on, he agreed to marry with her. On this misunderstanding and at the instance of her parents, she lodged the report with the Police which is Ex. PW2/A bearing her signature at point 'A'. Her medical examination was got conducted by the Police in the Hospital. Her marriage with Vishal has since taken place with the blessings of her parents as well as his parents. She is pregnant from Vishal and is carrying four months pregnancy. She has nothing more to say. She correctly identified accused Vishal present in the Court.
PW2 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State which is reproduced and reads as under : "I have completed my B. A. IInd Year but could not take the examination of the Final Year. I had not stated to the Police that on the false pretext of marriage accused Vishal established physical relations with me. (Confronted with the statement Ex. PW2/A where it is so recorded). It is wrong to suggest that on the false pretext of marriage accused Vishal established physical relations with me. I had not stated to 34 of 43 35 FIR No. 581/14 PS - Mahendra Park the Police that on 27/07/2014, I alongwith the accused went to Bonta Park, Delhi University at 3:00 p.m. where the accused forcibly raped me in a hut and when I started crying he told me that he will very soon marry with me. Vol. We had gone to Bonta Park but nothing sort of this happened with me. (Confronted with the statement dated 01/10/2014 Ex. PW2/B where it is so recorded). It is wrong to suggest that on 27/07/2014, I alongwith the accused went to Bonta Park, Delhi University at 3:00 p.m. where the accused forcibly raped me in a hut and when I started crying he told me that he will very soon marry with me.
I had not stated to the Police that accused again committed the same offence at the same place at Bonta Park, Delhi University forcibly with me. (Confronted with the statement dated 01/10/2014 Ex. PW2/A where it is so recorded). It is wrong to suggest that accused again committed the same offence at the same place at Bonta Park, Delhi University forcibly with me.
I had not given any statement to the Police on 01/10/2014. At this stage, statement dated 01/10/2014 is shown to the witness who denies of having made such statement to the Police. The said statement is Mark PW2/PX.
I had not stated to the Police that in August, 2014, accused Vishal had also committed rape upon me against my will. (Confronted with the statement dated 01/10/2014 Mark PW2/PX where it is so recorded). It is wrong to suggest that that in August, 2014, accused Vishal had also committed rape upon me against my will.
I had not stated to the Police that accused after lifting his luggage (Apna Samaan Utha Kar) from the place where he was living in Delhi went away and when I contacted him through phone, he told me that he has left Delhi and he will not marry with me. (Confronted with the statement dated 01/10/2014 Mark PW2/PX where it is so recorded).
35 of 43 36 FIR No. 581/14 PS - Mahendra Park It is wrong to suggest that accused after lifting his luggage (Apna Samaan Utha Kar) from the place where he was living in Delhi went away and when I contacted him through phone, he told me that he has left Delhi and he will not marry with me.
I had not taken the Police to the place on incident and had shown the same to the Police and thereupon Police prepared the site plan. (Confronted with the statement dated 01/10/2014 Mark PW2/PX where it is so recorded). It is wrong to suggest that I had not taken the Police to the place on incident and had shown the same to the Police and thereupon Police prepared the site plan. It is correct that the site plan Ex. PW2/B bears my signature at point 'A'. Vol. My signatures were obtained by the Police on the blank papers.
It is correct that accused Vishal was arrested by the Police on my identification vide arrest memo Ex. PW2/C bearing my signature at point 'A'.
My statement u/s 164 Cr.P.C. was also recorded by the Ld. MM. At this stage, one sealed envelope lying on the Judicial Record sealed with the seal of 'SJ' containing the proceedings u/s 164 Cr.P.C. is opened form which the statement u/s 164 Cr.P.C. is taken out and shown to the witness. The statement is Ex. PW2/D bearing my signature at point 'A'. Vol. I was upset and was not in the fit state of mind and had made the statement on the tutoring of the Police.
It is wrong to suggest that I am concealing the true and the actual facts. It is wrong to suggest that I am deposing falsely in order to save the accused who is now my husband."
PW2 - Prosecutrix was not crossexamined on behalf of accused despite grant of opportunity.
36 of 43 37 FIR No. 581/14 PS - Mahendra Park On analysing the entire testimony of PW2 - prosecutrix it is clearly indicated that during her examinationinchief she has specifically deposed that, "accused Vishal was initially living in their house as a tenant and had vacated the premises three years back. Friendship had developed between them. On the promise of marriage of Vishal, the physical relations were established between them with her consent. she had informed her family members that the physical relations have been established between her and Vishal with her consent on his promise of marriage with her. Her family members did not object to her marriage with Vishal. Vishal refused to marry with her and he left for his native place and later on, he agreed to marry with her. On this misunderstanding and at the instance of her parents, she lodged the report with the Police which is Ex. PW2/A bearing her signature at point 'A'. Her medical examination was got conducted by the Police in the Hospital. Her marriage with Vishal has since taken place with the blessings of her parents as well as his parents. She is pregnant from Vishal and is carrying four months pregnancy." She has also not supported the prosecution in her statement u/s 164 Cr.P.C Ex. PW2/D 37 of 43 38 FIR No. 581/14 PS - Mahendra Park bearing her signature at point 'A' when she voluntarily deposed that she was upset and was not in the fit state of mind and had made the statement on the tutoring of the police. During her crossexamination by Learned Addl. PP for the State she negated the suggestions put to her by the Learned Addl. PP for the State that, on the false pretext of marriage accused Vishal established physical relations with her or that on 27/07/2014, she alongwith the accused went to Bonta Park, Delhi University at 3:00 p.m. where the accused forcibly raped her in a hut and when she started crying he told her that he will very soon marry with her or that accused again committed the same offence at the same place at Bonta Park, Delhi University forcibly with her or that in August, 2014, accused Vishal had also committed rape upon her against her will or that accused after lifting his luggage (Apna Samaan Utha Kar) from the place where he was living in Delhi went away and when she contacted him through phone, he told her that he has left Delhi and he will not marry with her or that she had taken the Police to the place of incident and had shown the same to the Police and thereupon Police prepared the site plan or that she is concealing the true and the actual facts or that she is deposing falsely in order to save the accused who is now her husband.
38 of 43 39 FIR No. 581/14 PS - Mahendra Park As discussed hereinbefore, PW2 - prosecutrix has been found to be aged around 19 years, from the testimony of PW2 - prosecutrix, nothing is being indicated that during the period of 34 months prior to 23/09/2014, at his house situated at Village - Bhadola, Delhi, accused Vishal Sonkar committed rape upon PW2 prosecutrix on false pretext of marriage several times. Even the FSL Report Ex. PW11/C as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
Now, let the testimony of PW7 - Kashmiri Devi, mother of the prosecutrix be perused and analysed.
PW7 - Kashmiri Devi, mother of the prosecutrix in her examinationinchief has deposed that, she lives at House No. 170, Sarai Pipal Thala, Delhi with her family which consists of her husband and her daughter/prosecutrix (name withheld). She is a household lady. She is having five daughters. Prosecutrix (name withheld) is her youngest daughter. Her all the four daughters elder to prosecutrix (name 39 of 43 40 FIR No. 581/14 PS - Mahendra Park withheld) have since been married off. Accused Vishal was tenant in their house. Her daughter/ prosecutrix (name withheld) had insisted that she will perform the marriage with accused Vishal only. Initially, they did not agree to it but on her insistence, they gave in (Hum Maan Gaye). Her daughter/prosecutrix (name withheld) had not told anything about her friendship/affairs with accused Vishal. Due to some misunderstanding, her daughter/prosecutrix (name withheld) had lodged the report with the Police as accused Vishal had gone somewhere without leaving any information. Now the marriage has been performed between her daughter/prosecutrix (name withheld) and accused Vishal and they are living happily. She has nothing more to say. Accused Vishal is present in the Court (correctly identified).
PW7 - Kashmiri Devi 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 : "No inquiries were made from me by the Police. It is wrong to suggest that inquiries were made from me by the Police. I had not told to the Police that my daughter Shallu had told me that one day, accused 40 of 43 41 FIR No. 581/14 PS - Mahendra Park Vishal had taken her to Bonta Park, Delhi University and where he had committed Galat Kaam with her on the pretext of marriage but later on he fled away. (Confronted with the statement Mark PW7/PX, where it is so recorded). It is wrong to suggest that I had told to the Police that my daughter Shallu had told me that one day, accused Vishal had taken her to Bonta Park, Delhi University and where he had committed Galat Kaam with her on the pretext of marriage but later on he fled away. It is wrong to suggest that since marriage has been taken place between my daughter Shallu and accused Vishal, for this reason, I am concealing the true and actual facts in order to save the accused. It is wrong to suggest that I am deposing falsely."
PW7 - Kashmiri Devi was not crossexamined on behalf of accused despite grant of opportunity.
On careful perusal and analysis of the testimony of PW7 - Kashmiri Devi, mother of the prosecutrix, it is found that nothing material has come out in her testimony so as to advance the case of the prosecution on the core spectrum of the crime. She negated the suggestions, as were put to her by the Learned Addl. PP, that, she had told to the Police that her daughter/prosecutrix (name withheld) had told her that one day, accused Vishal had taken her to Bonta Park, Delhi 41 of 43 42 FIR No. 581/14 PS - Mahendra Park University and where he had committed Galat Kaam with her on the pretext of marriage but later on he fled away or that since marriage has been taken place between her daughter/prosecutrix (name withheld) and accused Vishal, for this reason, she is concealing the true and actual facts in order to save the accused or that she is deposing falsely.
18. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Vishal Sonkar. The hostility of PW2 - prosecutrix and that of PW7 - Kashmiri Devi, her mother has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that during the period of 34 months prior to 23/09/2014, at his house situated at Village - Bhadola, Delhi, accused Vishal Sonkar committed rape upon PW2 - prosecutrix, aged around 19 years on false pretext of marriage several times.
I accordingly, acquit accused Vishal Sonkar for the offence punishable u/s 376 IPC.
19. In view of above discussion, I am of the considered opinion 42 of 43 43 FIR No. 581/14 PS - Mahendra Park that as far as the involvement of accused Vishal Sonkar in the commission of offence punishable u/s 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 Vishal Sonkar beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Vishal Sonkar. I, therefore, acquit accused Vishal Sonkar for the offence punishable u/s 376 IPC after giving him the benefit of doubt. Accused Vishal Sonkar is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Vishal Sonkar 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) on 26th Day of November, 2015 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 43 of 43