Delhi District Court
State vs . Narayan on 9 May, 2014
1
FIR No. 162/12
PS - Bhalaswa Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 111/13
Unique ID No. : 02404R0351942012
State Vs. Narayan
S/o Parbhu
R/o A387388,
Bhalswa Dairy,
Delhi.
FIR No. : 162/12
Police Station : Bhalswa Dairy
Under Sections : 376/323 IPC
Date of committal to session Court : 21/12/2012
Date on which judgment reserved : 26/04/2014
Date on which judgment announced : 09/05/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 101 2 FIR No. 162/12 PS - Bhalaswa Dairy That complainant / prosecutrix (name withheld being a case u/s 376 IPC) w/o Ashok Sharma, R/o Gali No. 2/6, Kabari Wala Road, Mukandpur, Delhi 42, age 40 years made the statement to SI Vineeta Prasad which is to the effect that, she is presently living alone in the house at the above said address. Ground floor has been let out by her on rent. In her family besides her, there is her husband and four children. Her husband is in Air Force and is posted in Mumbai. Two sons are in Army, one is posted at Sri Nagar and the other is posted at Ahmedabad. Of the two daughters, one has been married and the other is studying in Mumbai (Mai Pata Uprokat Ke Makan Mei Filwaqt Akeli Reh Rahi Hoon. Ground Floor Ko Maine Kiraye Par De Rakha Hai Mere Parivaar Mei Mere Alawa Mere Pati Aur Char Bachche Hain Mere Pati Air Force Mei Hain Aur Mumbai Mei Posted Hain Do Bete Army Mei Hain Ek Srinagar Mei Aur Dusra Ahmadabad Mei Posted Hai. Do Betiyon Mei Ek Ki Shadi Kar Di Hai Dusri Mumbai Mei Padhai Kar Rahi Hai). On 10/09/2012 at about 12:00 noon, she was present at her house, at that time Narayan Pradhan who lives in Bhalaswa Dairy to whom she knows for the last two years as he used to come to meet her husband, came and started saying that he had a talk with her husband and 2 of 101 3 FIR No. 162/12 PS - Bhalaswa Dairy he has come to buy their motorcycle (Dinank 10/09/2012 Ko Samay Kareeb 12 Baje Din Mei Apne Ghar Par Maujood Thi Usi Samay Narayan Pradhan Jo Bhalswa Dairy Mei Rehta Hai Mere Ghar Aaya Aur Kehne Laga Ki Uski Mere Pati Se Baat Ho Gai Hai Weh Hamari Motorcycle Kharidne Aaya Hai). She made him sit in the upper room where she lives and she came after bringing water for him, at that time, he after catching hold her hand made her fall on the bed and forcibly committed Galat Kaam (rape) with her and after committing the rape, he poured some unknown chemical in her private part (Maine Use Upar Kamre Mei Jahan Mai Rehti Hoon Baitha Diya Aur Mai Uske Liye Pani Le Kar Aayi. Usi Samay Usne Mera Haath Pakad Kar Mujhe Bed Par Gira Diya aur Mere Sath Zabardasti Galat Kaam (Balatkaar) Kiya Aur Balatkaar Karne Ke Baad Mere Private Part Mei Koi Namalum Chemical Daal Diya). At that time due to feeling of shame she did not disclose anything to anyone but due to lot of burn sensation in her private part, she herself came to the Base Hospital, where she was given preliminary treatment (Us Waqt Turant Maine Sharmo Haya Ke Karan Kisi Ko Kuch Nahi Bataya. Lekin Private Part Mei Kafi Jalan Hone Ke Karan Main Swaym Base Hospital Aa Gai Jahan Mera Prathmik Upchar 3 of 101 4 FIR No. 162/12 PS - Bhalaswa Dairy Kiya Gaya). Thereafter, Police came from PS Bhalaswa and brought her to BJRM Hospital where her internal medical examination was got conducted. Thereafter, with Police, she came to the Police Station and interrogation was made from her. Narayan Pradhan has forcibly committed Galat Kaam (rape) upon her without her consent. Legal action be taken against him. On the basis of the statement of the prosecutrix and from inspection of the MLC, on finding that offences u/s 323/376 IPC appeared to have been committed, the case was got registered. During the course of investigation on the pointing out of the prosecutrix, site plan was prepared. On the identification of the complainant/prosecutrix accused Narayan Pradhan was arrested on 12/09/2012. Medical examination of the accused was got conducted from the BJRM Hospital and the blood sample of accused handed over by the Doctor was taken into Police possession. Sealed exhibits were sent to FSL, Rohini.
Upon completion of necessary further investigation Challan for the offences u/s 323/376 IPC was prepared against accused Narayan Pradhan and was sent to the Court for trial.
4 of 101 5 FIR No. 162/12 PS - Bhalaswa Dairy
2. Since the offence under Section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 376/324 IPC was made out against accused Narayan. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 15 witnesses. PW1 HC Pramod Kumar, PW2 Constable Narender, PW3 Lt. Col. (Doctor) Smita Moudgil, Base Hospital, Delhi Cantt, Delhi, PW4 Dr. Rahul Singh, CMO BJRM Hospital, Jahangir Puri, Delhi, PW5 Prosecutrix, PW6 HC Samarvir Singh, PW7 Constable Arun, PW8 Dr. Latika, S.R. Gynae, BJRM Hospital, Delhi, PW9 - W/Constable Ranjana, PW10 SI Jagbir Khatri, PW11 Constable Sarabjeet Singh, PW12 - Ms. L. Babyto Devi, Senior 5 of 101 6 FIR No. 162/12 PS - Bhalaswa Dairy Scientific Officer, Rohini, Delhi, PW13 SI Vinita Prasad, PW14 - SI Surender Kumar and PW15 - Smt. Kavita Goyal, Senior Scientific Officer, Chemistry, FSL, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Pramod Kumar who deposed that on 12/09/2012, he was posted as Duty Officer in PS - Bhalaswa Dairy and was on duty from 12:00 mid night to 8:00 a.m. On that day, at about 1:50 a.m., he received a rukka from SI Vinita Prasad. On the basis of the same and on his instructions, the present FIR No. 162/12 u/s 323/376 IPC was registered and same is Ex. PW1/A which bears his signature at point 'A'. He also made his endorsement on rukka and the same is Ex. PW1/B which bears his signature at point 'A'. After registration of FIR, he handed over copy of FIR and original rukka to Constable Arun for handing over to SI Vinita Prasad for further investigation (OSR).
PW2 Constable Narender who deposed that on 25/10/2012 he was posted in PS - Bhalaswa Dairy. On that day on the instruction of 6 of 101 7 FIR No. 162/12 PS - Bhalaswa Dairy IO he took sealed pullinda alongwith sample seal from MHC(M) for depositing it in FSL Rohini vide RC No. 169/21/12. He deposited the same in FSL Rohini and thereafter deposited the receipt with MHC(M). The sealed pullinda remained intact during his possession.
PW3 Lt. Col. (Doctor) Smita Moudgil, Base Hospital, Delhi Cantt., New Delhi who deposed that on 11/09/2012 at 10:00 hours prosecutrix (name withheld) W/o Ashok Kumar Sharma came in their hospital for medical examination with the alleged history of sexual assault and injection of something in her genital at her house in Mukund Pur on 10/09/2012 at 12:00 hrs. Patient alleged that assailant is known to her since two years. The patient was handed over to civil Police for further examination. She (PW3) prepared the MLC No. 471/09/12. The same is Ex. PW3/A bearing her signature at point 'A'.
PW4 Dr. Rahul Singh, CMO BJRM Hospital, Jahangir Puri, Delhi who deposed that on 12/09/2012 one Narayan S/o Prabhu, age 45 years male was brought to hospital for medical examination. The patient was examined by him. On local examination no fresh 7 of 101 8 FIR No. 162/12 PS - Bhalaswa Dairy external injury was seen. Blood sample was taken and handed over to IO. The patient was referred to SR (Surgery) where he was examined by Dr. Vishal. At present Dr. Vishal is not working in their Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Vishal as he has seen him while writing and signing during the course of his duties. As per MLC, there is nothing to suggest that the patient cannot do sexual act. The MLC is Ex. PW 4/A bearing his signatures at point 'A' and that of Dr. Vishal at point 'B'. On 11/09/2012 prosecutrix (name withheld) W/o Ashok Kumar Sharma age 40 years female was brought to Hospital for medical examination with the alleged history of sexual assault on 10/09/2012 at 12:00 hr. The patient was examined by Dr. Shabbir under his supervision. On local examination, two curvilinear superficial abrasion one on each side just below the neck (were seen). The patient was referred to SR (Gynae) for further examination. At present Dr. Shabbir is not working in their Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Shabbir as he has seen him while writing and signing during the course of his duties. The MLC is Ex. PW 4/B bearing signatures of Dr. Shabbir 8 of 101 9 FIR No. 162/12 PS - Bhalaswa Dairy at point 'A'.
PW5 - Prosecutrix is the victim who deposed regarding the incident and proved her signature at point 'A' on the statement made to the Police Mark PX1 and also proved her signatures at point 'B' on the seizure memo of the exhibits Ex. PW9/A, arrest memo of accused Narayan Ex. PW7/A and disclosure statement of accused Narayan Ex. PW7/C and deposed regarding the investigational aspects which she joined. She was also crossexamined by the Learned Addl. PP for the State.
PW6 HC Samarvir Singh who deposed that on 12/09/2012, he was posted as MHC(M) in PS - Bhalaswa Dairy. On that day, IO SI Vinita Prasad deposited two sealed pullindas sealed with the seal of MS BJRM Hospital alongwith two sample seals in the Malkhana. He made entry at Serial No. 608 in Register No. 19. On 25/10/2012, on the instructions of IO, above said sealed pullindas alongwith sample seals were handed over to Constable Narender for depositing in the FSL, Rohini vide RC No. 169/21/12. After depositing the same in FSL, he 9 of 101 10 FIR No. 162/12 PS - Bhalaswa Dairy (Constable Narender) had deposited the acknowledgment receipt of the pullinda with him. He has brought the Register Nos. 19 & 21. The copy of the relevant entry of Register No. 19 is Ex. PW6/A. The copy of the relevant entry of Register No. 21 is Ex. PW6/B. Copy of the acknowledgment receipt is Ex. PW6/C (OSR). Sealed pullindas remained intact during his custody.
PW7 Constable Arun who deposed that on 12/09/2012 he was posted as Constable in PS - Bhalaswa Dairy. On that day, he alongwith SI Vinita Prasad and complainant/prosecutrix (name withheld) reached at her house at Gali No. 2/6, Kabariwala Road, Mukundpur, Delhi and there IO prepared site plan at the instance of the complainant. On the ground floor of the house IO made inquiries from Sarita Mishra W/o Rajeev Mishra who was the tenant in the house. She told that one person by the name of Narayan came there yesterday and he has been shown motorcycle number DL13S3215 Honda Stanner which was parked on the ground floor. He (PW7) being the Beat Constable of the area knows the accused Narayan Pradhan, thereafter, they reached at the house of A387/388, Bhalswa Dairy and from there at the instance of the 10 of 101 11 FIR No. 162/12 PS - Bhalaswa Dairy complainant apprehended Narayan Pradhan. He was interrogated and arrested vide arrest memo Ex. PW7/A, his personal search was conducted vide memo Ex. PW7/B, bearing his (PW7) signature at points 'A'. He made disclosure statement Ex. PW7/C, bearing his (PW7) signature at point 'A'. Thereafter, they came back to PS and accused was produced before the SHO. Thereafter, accused was sent to Hospital through Constable Sarabjeet for medical examination. Accused Narayan is present in the Court. Witness correctly identified the accused Narayan. IO recorded his (PW7) statement.
PW8 Dr. Latika, S.R. Gynae, BJRM Hospital, Delhi deposed that on 11/09/2012 patient/prosecutrix (name withheld) W/o Ashok Kumar was brought in the Hospital for medical examination. She was initially examined by Junior Resident on duty and thereafter, patient was referred to S.R. Gynae. Whereupon, she (prosecutrix) was examined by her. She was brought to Hospital with the alleged history of sexual assault by a stranger one day before. On examination the vital were stable. On local examination there were scratch mark over right and left side of neck extending towards chest. No other signs and symptoms of 11 of 101 12 FIR No. 162/12 PS - Bhalaswa Dairy injury were noted. On per abdomen examination ligation scar present. Per speculum examination : cervical erosion present, smeared with mucoid secretion, posterior fornix was full of fluid / Semen. Per vaginal examination : introitus gaping and roomy vagina, uterus anteverted normal size, Adnexa clear. External genitalia healthy, no signs of injury. Samples were taken, sealed and handed over to Police Constable. Her examination is Ex. PW8/A encircled red on the MLC Ex. PW4/B, signed by her at point 'Z'.
PW9 - W/Constable Ranjana who deposed that on the intervening night of 1112/09/2012, she was posted at PS - Ashok Vihar and she was on night duty at District Line. She was called form PS - Bhalaswa Dairy as there was a case of sexual assault of a woman. She went to Bhalaswa Dairy Police Station and from there she alongwith PSI Jagbir went to the Base Hospital, Delhi Cantt. From the Base Hospital, Delhi Cantt., PSI procured the MLC of complainant/prosecutrix (name withheld). From there, she (PW9) alongwith prosecutrix and PSI Jagbir went to BJRM Hospital, Jahangir Puri where prosecutrix (name withheld) was medically examined under her protection. After medical 12 of 101 13 FIR No. 162/12 PS - Bhalaswa Dairy examination, the concerned Doctor has handed over to her sealed pullinda and a sample seal sealed with the seal of BJRM Hospital and the same was handed over to the IO who seized the same vide memo Ex. PW9/A signed by her at point 'A'. Thereafter, they all returned to the Police Station and interrogated prosecutrix (name withheld) and IO recorded her (PW9) statement and the exhibits were deposited with the MHC(M). Throughout the investigation, the prosecutrix remained under her protection. Her statement was also recorded by the IO in the Police Station.
PW10 SI Jagbir Khatri who deposed that on the intervening night of 1112/09/2012, he was posted at PS - Bhalaswa Dairy. On that day at about 7:30 - 8:00 p.m. an information was received at the Police Station that a prosecutrix (name withheld) was admitted in Base Hospital, Delhi Cantt. He alongwith Constable Ranjana who was called from the District Line Ashok Vihar went to the Base Hospital, Delhi Cantt. From the Base Hospital, Delhi Cantt., he procured the MLC of complainant Sunita Sharma. From there, he alongwith prosecutrix and Constable Ranjana went to BJRM Hospital, 13 of 101 14 FIR No. 162/12 PS - Bhalaswa Dairy Jahangir Puri where prosecutrix (name withheld) was medically examined under the protection of Constable Ranjana. After medical examination, the concerned Doctor has handed over to Constable Ranjana one sealed pullinda and a sample seal sealed with the seal of BJRM Hospital and the same was handed over to Constable Ranjana and the same was handed over to IO SI Vineeta Prashad who seized the same.
PW11 Constable Sarabjeet Singh who deposed that on 12/09/2012, he was posted in PS Bhalswa Dairy. On that day on the instructions of IO, he took accused Narayan, present in the Court in BJRM Hospital for medical examination. He was medically examined and after medical examination, Doctor handed over the sealed pullinda containing the exhibits which he handed over to IO and the same were seized by the IO vide memo Ex. PW11/A, bearing his signature at point 'A'. Accused was produced in the Court and was sent to JC. Case property was deposited in the Malkhana.
PW12 - Ms. L. Babyto Devi, Senior Scientific Officer, FSL, 14 of 101 15 FIR No. 162/12 PS - Bhalaswa Dairy Rohini, Delhi who deposed that she is M.Sc. in forensic Science and having more than six years of experience in examining the exhibits in Biology Division and DNA Division. On 25/10/2012, two sealed parcels were received in their Office in connection with the present case and the same were marked to her for DNA examination. She conducted the DNA examination and gave her report Ex. PW12/A bearing her signature at point 'A' and allele data is Ex. PW12/B bearing her signature at point 'A'. On 20/05/2013, blood sample of accused Narayan was received in their Office and the same was marked to her for DNA examination. She conducted the DNA examination and gave her report Ex. PW12/C bearing her signature at point 'A' and allele data is Ex. PW12/D bearing her signature at point 'A'.
PW13 SI Vinita Prasad who deposed that on the intervening night of 11/12/09/2012 she was posted as Sub Inspector in PS Jahangir Puri. On that day, she was called at PS Bhalswa Dairy and thereafter, she reached PS Bhalswa Dairy where she met W/Constable Ranjana, PSI Jagbir alongwith complainant/prosecutrix (name withheld). PSI Jagbir briefed her about the facts of this case and 15 of 101 16 FIR No. 162/12 PS - Bhalaswa Dairy he has produced the MLC's of prosecutrix (name withheld). She made inquiries from complainant. She tried to contact Sampurna NGO but she could not be contacted. She recorded statement of prosecutrix (name withheld) Ex. PW13/A (earlier given as Mark PX1) and attested signature of prosecutrix (name withheld) at point 'A', bearing her signature at point 'B'. She prepared rukka Ex. PW13/B, bearing her signature at point 'A'. She handed over the rukka to Duty Officer for getting the FIR registered. After registration of FIR, Duty Officer handed over to her the copy of FIR and original rukka. Thereafter, she alongwith Constable Arun, complainant/prosecutrix (name withheld) left the Police Station and reached at the house of prosecutrix (name withheld) at Gali No. 2/6, Kabariwala Road,Mukundpur, Delhi and she prepared the site plan Ex. PW13/C & Ex. PW13/D, both bearing her signature at point 'A' at the instance of the complainant. She made inquiry from the tenant of prosecutrix (name withheld). She told that one person by the name of Narayan came there yesterday. Constable Arun told that he being the Beat Constable knows the Narayan Pradhan, thereafter, they reached at House No. A387/88, Bhalswa Dairy and from there accused Narayan Pradhan, present in the Court was apprehended at 16 of 101 17 FIR No. 162/12 PS - Bhalaswa Dairy the instance of the complainant. He was interrogated and arrested vide arrest memo Ex. PW7/A, his personal search was conducted vide memo Ex. PW7/B and he made disclosure statement Ex. PW7/C, all bearing her signature at point 'X'. Prosecutrix (name withheld) was relieved. Thereafter, they came back to Police Station and accused Narayan was produced before the SHO. Accused Narayan was medically examined and after medical examination, Doctor handed over the sealed pullinda containing exhibits and the same were seized vide memo Ex. PW11/A, bearing her signature at point 'X'. Case property was deposited in the Malkhana. Accused Narayan Pradhan was produced in the Court and was sent to JC. The exhibits were sent to FSL. On 25/10/2012, the exhibits were sent to FSL through Constable Narender. The MLC of prosecutrix (name withheld) was deposited in the BJRM Hospital for opinion and opinion was taken. She collected the copy of DD No. 49B which is Ex. PW13/E. He recorded the statement of witnesses. After completing the investigation, challan was prepared and filed in the Court. Accused Narayan is present in the Court (correctly identified).
PW14 - SI Surender Kumar who deposed that in this case 17 of 101 18 FIR No. 162/12 PS - Bhalaswa Dairy FSL Report was received in which it was mentioned that blood sample was putrefied. He moved an application for taking the blood sample of accused Narayan again on 13/05/2013 and said application was allowed by the Hon'ble Court. Thereafter, he produced accused Narayan on 20/05/2013 directly to FSL Official at FSL, Rohini and his blood sample was taken again. After examination the exhibits of the case, he procured the FSL Result from FSL, Rohini and the same was filed in the Court. The FSL Result is already Ex. PW12/C and D. PW15 - Smt. Kavita Goyal, Senior Scientific Officer, Chemistry, FSL, Delhi who deposed that she is M.SC. (Chemistry) and is having more than twelve years of experience in examining the exhibits in Chemistry Division. On 25/03/2013 one sealed parcel was received in their division in connection with the present case. The same was marked to her for examination. The parcel was opened. It contained Ex.1A (one white cloth piece having some faint stains) and exhibits 1B(I) to 1B(XI) as detailed in her report. She analysed the exhibits and her detailed report is Ex. PW15/A bearing her signature at Point 'A'. After examination the remnants of the exhibits were resealed and sent back to 18 of 101 19 FIR No. 162/12 PS - Bhalaswa Dairy Police. She identified one white cloth piece to be the same on which she conducted the examination. The said cloth piece is Ex. PW15/B. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Narayan was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and did not opt to lead any defence evidence.
7. Learned Counsel for accused submitted that the incident took place on 10/09/2012 with the complainant and the FIR has been registered on 12/09/2012 after delay of two days. There is delay of two days in registration of the FIR because the present case falsely registered against the accused and he has been falsely implicated by the Investigating Agency. Learned Counsel for accused further submitted that in the MLC's of the complainant conducted at Base Hospital and BJRM Hospital there is nowhere mentioned in the alleged history that the accused is the person who has committed rape upon the complainant, 19 of 101 20 FIR No. 162/12 PS - Bhalaswa Dairy in the medical conducted at Base Hospital. Learned Counsel for accused further submitted that as per the story of the prosecution after committing the rape upon the complainant the accused put some chemical on the private part of the complainant but as per chemical report no mineral acid Hydrochloric acid, sulphuric acid and nitric acid could be deducted (detected) in the exhibits, so in the view of the chemical report there is strong doubt in the case of the prosecution. Learned Counsel for accused further submitted that earlier the blood sample of the accused was taken by the IO and the same was sealed in the Hospital and sent to the FSL, Rohini, Delhi, but due to the fault of the Investigating Officer, the blood got putrefy, so the lack of investigation done by the IO in the present case created strong doubt in the story of the prosecution case. Learned Counsel for accused further submitted that the clothes/bed sheet has not been produced in the Court at the time of prosecution evidence and the same has not been identified by any of the prosecution witnesses. Learned Counsel for accused further submitted that after recording of the examinationinchief of PW5 i.e. complainant, the investigation officer has intentionally filed application for taking blood sample of the accused for DNA. Learned 20 of 101 21 FIR No. 162/12 PS - Bhalaswa Dairy Counsel for accused further submitted that the investigating officer i.e. PW13 has not recorded the statement of tenants who were residing in the house of the complainant nor has recorded the statement of husband as well as son of the complainant, so there is doubt in the story of the prosecution case. Learned Counsel for accused further submitted that PW4 - Dr. Rahul has deposed in his crossexamination that injuries mentioned in MLC Ex. PW4/B at point 'X' are possible due to shrugging of clothes. Learned Counsel for accused further submitted that PW5 - prosecutrix who is the complainant has not supported the case of the prosecution and she has deposed that accused Narayan has not committed rape upon her and her signature were obtained on some papers. Learned Counsel for accused further submitted that PW5 - prosecutrix is the sole witness of this case and she has not supported the case of the prosecution so in view of the statement of PW5 there is strong doubt in the case of the prosecution. Learned Counsel for accused further submitted that PW6 - HC Samarvir Singh is the person who deposited the pullindas in FSL and in his crossexamination suggestion was given on behalf of the accused that the sealed pullindas were tampered during his custody which he denied. Learned Counsel for 21 of 101 22 FIR No. 162/12 PS - Bhalaswa Dairy accused further submitted that PW10 - SI Jagbir Khatri has deposed in his crossexamination that he reached at Base Hospital at about 9:30 p.m. and there he met with a lady Doctor but he does not remember her name. PW10 further deposed in his crossexamination that he did not record the statement of the complainant in the Hospital and he also did not make any entry in the Base Hospital regarding their arrival at Base Hospital. PW10 further deposed in his crossexamination that he does not remember whether he had made DD Entry regarding the investigating of the present case in the DD Register. Being the first person/official of the case he did not lodge any DD entry regarding his investigation and he also did not record the statement of the complainant at Base Hospital. So there is doubt in the story of the prosecution case and it is settled preposition of law that whenever the doubt comes it always go in favour of the accused. Learned Counsel for accused further submitted that suggestion were given to PW12 i.e. Scientific Officer, that she has prepared the false DNA report at the instance of the IO of the case and she has not used the appropriate scientific tools and technique in the analysis carried out by her for giving DNA Report which she denied. Learned Counsel for accused further submitted that PW13 i.e. SI Vinita 22 of 101 23 FIR No. 162/12 PS - Bhalaswa Dairy Prasad who is the IO of the case, has deposed in her crossexamination that she does not remember the mobile number of the lady of NGO. PW13 in her crossexamination has stated that she did not lodge any DD entry in the register at the time of investigation marked to her. PW13 SI Vinita Prasad has deposed in her crossexamination that at the time of arrest of accused his other family members present and there signature were also obtained, but at the time of crossexamination of PW13 the arrest memo Ex. PW7/A was shown to the witness where the signature of any other family members of the accused were not present on the same. PW13 SI Vinita Prasad has deposed in her crossexamination that she did not record the statement of tenant Sushila who was present there. PW13 SI Vinita Prasad has deposed in her crossexamination that she did not take the photographs of the place of incident and also did not seize anything from the spot and signature of the complainant were not obtained on the site plan. PW13 SI Vinita Prasad has deposed in her crossexamination that she did not get record the statement of complainant u/s 164 Cr.P.C. and she further deposed that she did not go to Base Hospital to make inquiries regarding the present case because initially complainant got admitted in Base Hospital and from there the 23 of 101 24 FIR No. 162/12 PS - Bhalaswa Dairy complainant was taken to BJRM Hospital. So in view of the lack of investigation conducted by the Investigating Agency there is suspicion in the story of the prosecution case. Learned Counsel for accused further submitted that the piece of cloth/bed sheet which was sent to the FSL for purpose of DNA report has not been seized by the IO i.e. PW13 and the same has been admitted in her crossexamination by PW13. So in view of the admission on the part of the Investigating Officer no articles were seized from the place of incident it creates doubt on the DNA Report, that if no articles were seized from the spot, how and from where the bed sheet/piece of cloth has been sent to the FSL for purpose of DNA report. Learned Counsel for accused further submitted that PW14 - SI Surender Kumar, has stated in his crossexamination that he had moved application for taking of blood sample of accused again, when SHO has directed him to move the same. Thereafter, suggestion were given to him that he had moved the application in connivance of the SHO to solve the present case and on his and on their direction FSL has given false and fabricated report which he denied. Learned Counsel for accused further submitted that prosecution has failed to prove its case beyond reasonable doubts, and it is settled preposition of law that burden of proof always on the 24 of 101 25 FIR No. 162/12 PS - Bhalaswa Dairy prosecution to prove their case beyond reasonable doubts.
Learned Counsel for accused prayed for the acquittal of accused on all the charges levelled against him.
Learned Counsel for the accused referred to the cases and are reported as 'K. Venkateshwarlu Vs. The State of Andhra Pradesh', AIR 2012 SC 2955, 'Subhash Chand Vs. State of Rajasthan', 2001(2)JCC(SC)332, 'Virender Vs. The State of NCT of Delhi', MANU/DE/2606/2009, 'Gurpreet Singh Vs. State of Punjab', CRA No. 340SB of 2011, (Date of decision 17/05/2013) (P & H High Court), 'Ajit Kumar Vs. State', 1998[1]JCC36 [Delhi], 'Anandamay Bag Vs. State of West Bengal and Anr.', (Date of decision 07/05/2007) (Calcutta High Court), 'State of Karnataka Vs. Gommatesha', (Date of decision 24/04/2013) (Karnataka High Court), 'State Vs. Nanda Singh', Appeal No. 1471 of 2001 (Date of decision 12/11/2008) (Uttaranchal High Court), 'Mohar Singh and Ors. Vs. State of Punjab', AIR1981SC1578, 'Piara Singh and Ors. Vs. State of Punjab', AIR1977SC2274, 'Paramjeet Singh @ Pamma Vs. State of Uttarakhand', AIR2011SC200 and 'Sabur 25 of 101 26 FIR No. 162/12 PS - Bhalaswa Dairy Hossain Biwas Vs. State of West Bengal & Ors.', 2008 Cri.L.J.1183.
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. S. C. Sroai, Learned Addl. PP for the State and Sh. Gajraj Singh, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/324 IPC against the accused Narayan is that on 10/09/2012 at about 12:00 noon, at Gali No. 216, Gadiwala Road (Be read as Gali No. 2/6, Raddiwala Road), Mukandpur - II, Delhi, within the jurisdiction of PS - Bhalaswa Dairy, he committed rape upon the prosecutrix (name withheld) W/o Sh. Ashok Kumar Sharma, age - 42 years against her will and that on the 26 of 101 27 FIR No. 162/12 PS - Bhalaswa Dairy above mentioned date, time and place of occurrence, after committal of the rape upon the prosecutrix, he also criminally caused hurt to the prosecutrix by putting some unknown chemical in her private part.
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. PW5 - prosecutrix was examined in the Court on 18/02/2013, in her particulars, she has deposed her age as 40 years.
The said factum of the age of the prosecutrix being 40 years has also not been disputed by the accused. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
As the date of alleged incident is 10/09/2012 and the 27 of 101 28 FIR No. 162/12 PS - Bhalaswa Dairy prosecutrix has deposed her age as 40 years in her particulars on 18/02/2013 on the date of recording of her statement in the Court. In the circumstances, on simple arithmetical calculation, the age of the prosecutrix comes to around 40 years as on the date of incident on 10/09/2012.
In view of above and in the circumstances, it stands established on record that PW5 prosecutrix was aged around 40 years as on the date of alleged incident on 10/09/2012. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 Lt. Col. (Doctor) Smita Moudgil, Base Hospital, Delhi Cantt., New Delhi has deposed that on 11/09/2012 at 10:00 hours prosecutrix W/o Ashok Kumar Sharma came in their hospital for medical examination with the alleged history of sexual assault and injection of something in her genital at her house in Mukund Pur on 10/09/2012 at 12:00 hrs. Patient alleged that assailant is known to her since two years. The patient was handed over to civil Police for further examination. She (PW3) prepared the MLC No. 471/09/12. The same is Ex. PW3/A bearing her signature at point 'A'.
28 of 101 29 FIR No. 162/12 PS - Bhalaswa Dairy During her crossexamination, PW3 Lt. Col. Dr. Samita Moudgil has admitted to be correct that the information to the local/civil Police was given by the Hospital Authorities.
PW4 Dr. Rahul Singh, CMO BJRM Hospital, Jahangir Puri, Delhi has deposed that on 11/09/2012 prosecutrix (name withheld) W/o Ashok Kumar Sharma age 40 years female was brought to Hospital for medical examination with the alleged history of sexual assault on 10/09/2012 at 12:00 hr. The patient was examined by Dr. Shabbir under his supervision. On local examination, two curvilinear superficial abrasion one on each side just below the neck. The patient was referred to SR (Gynae) for further examination. At present Dr. Shabbir is not working in their Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Vishal as he has seen him while writing and signing during the course of his duties. The MLC is Ex. PW 4/B bearing signatures of Dr. Shabbir at point 'A'.
During his crossexamination, PW4 - Dr. Rahul Singh has 29 of 101 30 FIR No. 162/12 PS - Bhalaswa Dairy deposed which is reproduced and reads as under : "Q. Whether the injury mentioned in MLC Ex. PW4/B at point 'X' are possible due to allergy or due to insect bite or due to shrugging of a peace of cloth under pressure?
Ans. Such type of injuries is possible due to shrugging of cloth but it is still dependent as to how and in what manner the cloth has been worn or used. However, such injuries are not possible due to allergy or by insect bite."
PW8 Dr. Latika, S.R. Gynae, BJRM Hospital, Delhi has deposed that on 11/09/2012 patient/prosecutrix (name withheld) W/o Ashok Kumar was brought in the Hospital for medical examination. She was initially examined by Junior Resident on duty and thereafter, patient was referred to S.R. Gynae. Whereupon, she (prosecutrix) was examined by her. She was brought to Hospital with the alleged history of sexual assault by a stranger one day before. On examination the vital were stable. On local examination there were scratch mark over right and left side of neck extending towards chest. No other signs and symptoms of injury were noted. On per abdomen examination ligation scar present. Per speculum examination : cervical erosion present, smeared with mucoid secretion, posterior fornix was full of fluid / Semen. Per vaginal 30 of 101 31 FIR No. 162/12 PS - Bhalaswa Dairy examination : introitus gaping and roomy vagina, uterus anteverted normal size, Adnexa clear. External genitalia healthy, no signs of injury. Samples were taken, sealed and handed over to Police Constable. Her examination is Ex. PW8/A encircled red on the MLC Ex. PW4/B, signed by her at point 'Z'.
Despite grant of opportunity, PW8 - Dr. Latika was not crossexamined on behalf of the accused.
On careful perusal and analysis of the testimonies of PW3 Lt. Col. Dr. Samita Moudgil, PW4 Dr. Rahul Singh and PW8 - Dr. Latika, the same are found to be clear, cogent and reliable. There is nothing in the crossexamination of PW3 Lt. Col. Dr. Samita Moudgil and PW4 Dr. Rahul Singh so as to impeach their creditworthiness In view of above and in the circumstances, the medical and the gynaecological examination of PW5 - prosecutrix vide MLC Ex. PW3/A, Ex. PW4/B and vide examination Ex. PW8/A encircled red on the MLC Ex. PW4/B respectively stands proved on the record.
31 of 101 32 FIR No. 162/12 PS - Bhalaswa Dairy VIRILITY OF THE ACCUSED
14. PW4 Dr. Rahul Singh, CMO BJRM Hospital, Jahangir Puri, Delhi who deposed that on 12/09/2012 one Narayan S/o Prabhu, age 45 years male was brought to hospital for medical examination. The patient was examined by him. On local examination no fresh external injury was seen. Blood sample was taken and handed over to IO. The patient was referred to SR (Surgery) where he was examined by Dr. Vishal. At present Dr. Vishal is not working in their Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Vishal as he has seen him while writing and signing during the course of his duties. As per MLC, there is nothing to suggest that the patient cannot do sexual act. The MLC is Ex. PW 4/A bearing his signatures at point 'A' and that of Dr. Vishal at point 'B'.
There is nothing in his crossexamination so as to impeach his creditworthiness.
In view of above and in the circumstances, it stands 32 of 101 33 FIR No. 162/12 PS - Bhalaswa Dairy proved on the record that accused Narayan was capable of performing any sexual act.
DNA FINGER PRINTING EVIDENCE
15. PW12 Ms. L. Babyto Devi, Senior Scientific Officer, Rohini, Delhi has proved the DNA Examination Report dated 29/04/2013 Ex. PW12/A bearing her signature at point 'A' and allelic data Ex. PW12/B bearing her signature at point 'A' and has proved the DNA Examination Report dated 06/06/2013 Ex. PW12/C bearing her signature at point 'A' and allelic data Ex. PW12/D bearing her signature at point 'A'.
As per DNA Report dated 29/04/2013 Ex. PW12/A the description of articles contained in parcel, DNA examination and results of analyses and the allelic data Ex. PW12/B reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibits '1A', '1B' and 33 of 101 34 FIR No. 162/12 PS - Bhalaswa Dairy '1C' described as of victim/prosecutrix (name withheld). Exhibit '1A' : One cloth piece described as '3A Outer clothing'.
Exhibit '1B' : Cotton wool swab on a wooden stick. Exhibit '1C' : One microslide having faint smear labelled as 'Step 9 Vaginal secretion'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibit '3' said to contain 'Blood sample of accused'.
Exhibit '3' : Foul smelling gauze cloth piece described as blood sample of accused.
DNA EXAMINATION Exhibits '1A', '1B', '1C' & '3' wee subjected to DNA isolation. DNA was isolated from the exhibits '1A', '1B', '1C' and '3'. Identifiler plus amplification kit was used for each of the samples and data was analysed by GeneMapper IDx Software.
RESULTS OF EXAMINATION Mixed DNA profile was generated from the exhibit '1A' (Bedsheet) whereas female DNA profile was generated from the exhibits '1B' (Cotton wool swab) and '1C' (Microslides). However, DNA profile could not be generated from the exhibits '3' (Blood in gauze of accused) due to degradation of the sample. Therefore, comparison of DNA profile of exhibits '1A', '1B', '1C' with exhibit '3' could not be given due to non availability of DNA profile in exhibit '3'.
34 of 101 35 FIR No. 162/12 PS - Bhalaswa Dairy NOTE :
1. Exhibits '1A', '1B', '1C' of Parcel No. '1' were sufficient to conclude the result. Therefore, rest of the exhibits were returned in original.
2. Remnants of the exhibits have been sealed with the seal of 'BD FSL DELHI'.
Genotype analysis - I, Ex. PW12/B reads as under : Genotype analysis I Allele Data LOCI Exhibit 1A Exhibit 1B & 1C Allele data Allele data D8S1179 10 15, 16 10 16 D21S11 28, 29 30 30 30 D7S820 8 12 8 12 CSFIPO 10 11, 12 11 12 D3S1358 14, 15 16, 18 15 18 TH01 6, 7, 9 9.5 5.3 9.3 D13S317 7, 9 10, 11 7 9 D16S539 8, 9 10, 12 9 12 D2S1338 18, 19 20, 24 18 24 D19S433 12, 13 14 14 14 VWA 16 17 17 17 TPOX 11 12 11 11 35 of 101 36 FIR No. 162/12 PS - Bhalaswa Dairy D18S51 12, 14 15 12 15 D5S818 10, 12 11 12 13 FGA 20, 21 23, 24 23 23 AMELOGENIN X Y X X As per the DNA Report Ex. PW12/C dated 06/06/2013, the source DNA examination, conclusion and the allelic data Ex. PW12/D reads as under : Blood samples received on 20/05/2013 Name of source Collected on Sample No. Exhibit No. Blood sample of 20/05/2013 4 4 Sh. Narayan Identification Form No. 1 DNA EXAMINATION Exhibits '4' was subjected to DNA isolation. DNA was isolated from the source of exhibit '4' (Blood sample of accused). Identifiler plus amplification kit was used for each of the samples and data was analysed by GeneMapper IDx Software. CONCLUSION DNA profile (STR) analysis was performed in exhibit '4' is sufficient to conclude that the allelic data from the source of exhibit '4' 36 of 101 37 FIR No. 162/12 PS - Bhalaswa Dairy vide FSL - 2013/DNA - 4136 is accounted in the mixed allelic data from the source of exhibit '1A (Cloth piece/Bedsheet) vide FSL No. 2012/DNA7740.
Genotype analysis - I, Ex. PW12/D reads as under : Genotype analysis I Allele Data LOCI Exhibit 1A Exhibit 1B & 1C (Cloth piece/Bedsheet) (Blood sample) Mixed Allele data Allele data D8S1179 10, 15, 16 15 15 D21S11 28, 29, 30 28 29 D7S820 8, 12 8 12 CSFIPO 10, 11, 12 10 12 D3S1358 14, 15, 16, 18 14 15 TH01 6, 7, 9, 9.3 7 9 D13S317 7, 9, 10, 11 10 11 D16S539 8, 9, 10, 12 8 10 D2S1338 18, 19, 20, 24 19 20 D19S433 13, 14 13 14 VWA 16, 17 16 16 TPOX 11, 12 12 12 D18S51 12, 14, 15 14 14 D5S818 10, 12, 13 10 12 37 of 101 38 FIR No. 162/12 PS - Bhalaswa Dairy FGA 20, 21, 23, 24 20 21 AMELOGENIN XY X Y On careful perusal and analysis of DNA Report dated 29/04/2013 Ex. PW12/A, the allelic data Ex. PW12/B coupled with the DNA Report dated 06/06/2013 Ex. PW12/C and the allelic data Ex. PW12/D as reproduced hereinabove, the DNA profile of exhibit '4' (Blood sample of accused Narayan) is sufficient to conclude that the allelic data from the source of exhibit '4' (Blood sample of accused Narayan) is accounted in the mixed allelic data from the source of exhibit '1A' (Cloth piece/bedsheet).
As per the DNA Report dated 29/04/2013 Ex. PW12/A with regard to the articles contained in the parcel/exhibits, it is noticed that parcel no. 1 belongs to PW5 - prosecutrix which was seized vide seizure memo Ex. PW9/A dated 12/09/2012. As per the DNA Report dated 06/06/2013 Ex. PW12/C, the exhibit '4' (Blood sample of accused Narayan) was collected by the FSL on 20/05/2013 regarding 38 of 101 39 FIR No. 162/12 PS - Bhalaswa Dairy which has been deposed by PW14 - SI Surender Kumar in his examinationinchief.
As per the DNA Report dated 29/04/2013 Ex. PW12/A, the allelic data Ex. PW12/B and the DNA Report dated 06/06/2013 Ex. PW12/C and the allelic data Ex. PW12/D, prosecution has discharged its initial burden of proving that the allelic data from the source of exhibit '4' (Blood sample of accused Narayan) has been accounted in the mixed allelic data from the source of exhibit '1A' (cloth piece/bedsheet). Accused was under an obligation to explain how and under what circumstances the allelic data from his blood sample (exhibit '4') came to be accounted for in the mixed allelic data from the source of exhibit '1A' (cloth piece/bedsheet). The absence of such an explanation both in Section 313 statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
It is also to be noticed that the alleged incident is of dated 39 of 101 40 FIR No. 162/12 PS - Bhalaswa Dairy 10/09/2012 and the gynaecological examination of PW5 - prosecutrix was conducted on 11/09/2012 vide MLC Ex. PW8/A (encircled on the MLC Ex. PW4/B) and the exhibits '1A', '1B' and '1C' detailed in the DNA Report Ex. PW12/A dated 29/04/2013 were collected on 11/09/2012 and were seized vide seizure memo Ex. PW9/A dated 12/09/2012 and in the gynaecological examination Ex. PW8/A (encircled on the MLC Ex. PW4/B), it is mentioned therein that "patient had taken bath and douched", during this period from incident on 10/09/2012 till 11/09/2012, it cannot be ruled out that prosecutrix must have answered the call of nature and must have urinated a number of times and in the circumstances, it appears that it could be the reason for nondetection of semen on exhibit '1B' (cotton wool swab of the prosecutrix) and exhibit '1C' (vaginal secretion of the prosecutrix).
16. Learned Counsel for accused submitted that suggestion were given to PW12 i.e. Scientific Officer, that she has prepared the false DNA report at the instance of the IO of the case and she has not used the appropriate scientific tools and technique in the analysis carried out by her for giving DNA Report which she denied.
40 of 101 41 FIR No. 162/12 PS - Bhalaswa Dairy I have carefully perused and analysed the evidence on record.
PW12 Ms. L. Babyto Devi, Senior Scientific Officer, Rohini, Delhi has proved the DNA Examination Report dated 29/04/2013 Ex. PW12/A bearing her signature at point 'A' and allelic data Ex. PW12/B bearing her signature at point 'A' and has proved the DNA Examination Report dated 06/06/2013 Ex. PW12/C bearing her signature at point 'A' and allelic data Ex. PW12/D bearing her signature at point 'A'.
PW12 Ms. L. Babyto Devi, Senior Scientific Officer, Rohini, Delhi during her crossexamination has deposed which is reproduced and reads as under : "Whenever we receive the parcel/s at the time of examination, the same are in sealed conditions. After opening the sample or at the time of analysis if it is found that the sample is putrefied or that the quantity of the sample is not sufficient for analysis, such facts are mentioned in the report itself and the same is not communicated to the IO or the sender while being in the mid of the analysis/examination. It is wrong to suggest that I have not used the appropriate scientific tools and technique in the analysis carried out by me. It is wrong to suggest that the reports Ex. PW12/A, B, C & Ds have been prepared at the 41 of 101 42 FIR No. 162/12 PS - Bhalaswa Dairy instance of the IO."
DNA Report dated 29/04/2013 Ex. PW12/A, the allelic data Ex. PW12/B and the DNA Report dated 06/06/2013 Ex. PW12/C and the allelic data Ex. PW12/D have been discussed and analysed hereinabove and there is nothing in the crossexamination of PW12 Ms. L. Babyto Devi so as to impeach her creditworthiness.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. FORENSIC EVIDENCE (CHEMICAL)
17. PW15 - Smt. Kavita Goyal, Senior Scientific Officer, Chemistry, FSL, Delhi who deposed that she is M.SC. (Chemistry) and is having more than twelve years of experience in examining the exhibits in Chemistry Division. On 25/03/2013 one sealed parcel was received in their division in connection with the present case. The same was marked to her for examination. The parcel was opened. It contained Ex.1A (one white cloth piece having some faint stains) and exhibits 1B(I) to 1B(XI) as detailed in her report. She analysed the exhibits and her detailed 42 of 101 43 FIR No. 162/12 PS - Bhalaswa Dairy report is Ex. PW15/A bearing her signature at Point 'A'. After examination the remnants of the exhibits were resealed and sent back to Police. She identified one white cloth piece to be the same on which she conducted the examination. The said cloth piece is Ex. PW15/B. As per Forensic Evidence Chemical Report dated 29/04/2013 Ex. PW15/A the description of articles contained in parcels and results of analyses reads as under : No. of No. of Seals & Description of Parcels/Exhibits Parcels / Seal Impression Exhibits Parcel1 Seven seals of One sealed yellow envelope stated to be "BD FSL containing "Sexual Assault evidence DELHI" collection kit". It was found to contain exhibits '1A' [kept in a yellow envelope with imprint outer clothings STEP3A] & '1B(I)', '1B(II)', '1B(III)', '1B(IV)', '1B(V)', '1B(VI)', '1B(VII)', '1B(VIII)', '1B(IX)', '1B(X)', '1B(XI)' [kept in an open white paper cardboard box bearing seals of MS BJRMHJ.PURI DELHI] Exhibit One white cloth piece having some faint '1A' stains.
Exhibit - One white envelope marked as STEP4 - '1B(I)' 'Nail Scraping' wrapped in a white paper.
43 of 101 44 FIR No. 162/12 PS - Bhalaswa Dairy Exhibit One white envelope marked as STEP4 - '1B(II)' 'Body Fluid collection' containing one stoppered collection vial labelled as 'Sunita vaginal swab' having a cotton swab on a plastic stick.
Exhibit One white envelope marked as STEP7 - '1B(III)' 'clipping of pubic hair' containing few small pieces of black hair wrapped in a white paper.
Exhibit One white envelope marked as STEP9 - '1B(IV)' 'Cervical mucous secretion' containing one stoppered collection vial labelled as 'Sunita cervical swab' having a cotton swab on a plastic stick.
Exhibit One white envelope marked as STEP9 - '1B(V)' 'vaginal secretion' containing one white plastic slide box.
Exhibit One white envelope marked as STEP10 - '1B(VI)' 'CULTURE vaginal swab' containing one small polythene having one cotton swab on a plastic stick.
Exhibit One white envelope marked as STEP11 - '1B(VII)' 'Washing from vagina' containing one disposable plastic syringe having approx 1 ml of light brown turbid liquid.
44 of 101 45 FIR No. 162/12 PS - Bhalaswa Dairy Exhibit - One white envelope marked as STEP12 - '1B(VIII)' 'Rectal examination' containing one stoppered collection vial having one cotton swab on plastic stick alongwith a white plastic slide box.
Exhibit - One white envelope marked as STEP13 - '1B(IX)' 'Oral Swab' containing a white plastic slide box.
Exhibit - One white envelope marked as STEP14 - '1B(X)' 'Blood collection of victim' containing two stoppered collection vials each having approx 2 ml blood sample.
Exhibit - One white envelope marked as STEP15 - '1B(XI)' 'Urine and oxalate blood vial' containing one plastic container with approx 0.2 ml of brown turbid liquid & one & one stoppered collection vial having approx 1.5 ml of blood sample.
9. Purpose of reference : For Chemical Examination & Report.
10. Dates of Examination : 16/04/2013 to 29/04/2013.
11. RESULTS OF EXAMINATION REPORT On chemical examination, mineral acidHydrochloric acid, Sulphuric acid and Nitric acid could not be detected in exhibits '1A', '1B(I)' to '1B(XI)'.
45 of 101 46 FIR No. 162/12 PS - Bhalaswa Dairy
12. After the examination, the remnants of the exhibits have been sealed with the seals impression as per specimen provided below.
On careful perusal and analysis of the Chemical Examination Report Ex. PW15/A, it is clear that the mineral acid Hydrochloric acid, Sulphuric acid and Nitric acid could not be detected in exhibits '1A' (One white cloth piece having some faint stains), '1B(I)' (nail scraping of the prosecutrix), '1B(II)' (vaginal swab of the prosecutrix), '1B(III)' (clippings of pubic hair of the prosecutrix), '1B(IV)' (cervical mucous secretion of the prosecutrix), '1B(V)' (vaginal secretion of the prosecutrix), '1B(VI)' (CULTURE vaginal swab of the prosecutrix), '1B(VII)' (washing from vagina of the prosecutrix), '1B(VIII)' (Rectal examination of the prosecutrix), '1B(IX)' (oral swab of the prosecutrix), '1B(V)' (blood collection of the prosecutrix) and '1B(XI)' (urine and oxalate blood vial of the prosecutrix).
As per the Chemical Examination Report dated 29/04/2013 Ex. PW15/A with regard to the articles contained in the parcel/exhibits, it is noticed that Parcel No. 1 belongs to PW5 - prosecutrix which was seized vide seizure memo Ex. PW9/A dated 12/09/2012.
46 of 101 47 FIR No. 162/12 PS - Bhalaswa Dairy It is also to be noticed that the alleged incident is of dated 10/09/2012 and the gynaecological examination of PW5 - prosecutrix was conducted on 11/09/2012 vide MLC Ex. PW8/A (encircled on the MLC Ex. PW4/B) and the exhibits '1A', '1B(I)' to '1B(XI)' as detailed in the Chemical Examination Report Ex. PW15/A dated 29/04/2013 were collected on 11/09/2012 and were seized vide seizure memo Ex. PW9/A dated 12/09/2012 and in the gynaecological examination Ex. PW8/A (encircled on the MLC Ex. PW4/B), it is mentioned therein that "patient had taken bath and douched", during this period from incident on 10/09/2012 till 11/09/2012, it cannot be ruled out that prosecutrix must have answered the call of nature and must have urinated a number of times and in the circumstances, it appears that it could be the reason for nondetection of mineral acidHydrochloric acid, Sulphuric acid and Nitric acid in exhibits '1A', '1B(I)' to '1B(XI)'.
18. It is settled legal proposition that the dependable part of the evidence of a hostile witness can be relied on.
In case of "Rameshbhai Mohanbhai & Ors. Vs. State of 47 of 101 48 FIR No. 162/12 PS - Bhalaswa Dairy Gujrat" 2010 XI AD (S.C.) 53, the Hon'ble Supreme Court held that : "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Cri) 566, Syad Akbar Vs. State of Karnataka 1980 SCC (Cri) 59 and Khujji Vs. State of M.P. 1991 SCC (Cri) 916] In State of U.P. Vs. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to the subjected to close the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra 2002 VII AD (S.C.) 249 = 2003 SCC (Cri) 112, Gagan Kanojia Vs. State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh Vs. State of U.P. 2006 I AD (S.C.) 417 = (2006) 1 SCC (Cri) 661, Sarvesh Narayan Shukla Vs. Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh Vs. State (2009) 2 SCC (Cri) 1106."
In a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands 48 of 101 49 FIR No. 162/12 PS - Bhalaswa Dairy thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto ; (Ref. Pandappa Hanumappa Nanamar V. State of Karnataka, (1997) 3 Supreme Today 63).
Evidence of a prosecution witness cannot be rejected in India merely because the prosecution chose to treat him as hostile and crossexamine him. Evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable or careful scrutiny thereof ; (Ref. Prithi Vs. State of Haryana, (2010) 8 SCC 536).
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused ; (Ref. Lalla Srinivasa Rao Vs. State of Andhra Pradesh, AIR 2004 SC 1720).
In case 'Himanshu @ Chintu Vs. State (NCT of Delhi)', 49 of 101 50 FIR No. 162/12 PS - Bhalaswa Dairy (2011) 2 SCC 36, the Hon'ble Supreme Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff and the maxim falsus in uno falsus in omnibus, has no application in India vide 'Nisar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.
19. The whole case of the prosecution hinges on the testimony of PW5 - prosecutrix.
Now let the testimony of PW5 Prosecutrix be perused and analysed.
PW5 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "My husband is working in Air Force and he is presently posted in Mumbai. I am having two sons and they both are serving in Army. My one son is posted at Sri Nagar and other son is posted at Ahmedabad. I am having two daughters, out of which one is married and the other daughter is studying at Mumbai.
The tenants are residing at the ground floor of my house. On 10/09/2012 at about 12:00/12:30 p.m., I was present at the first floor of my house. Narayan Pradhan came to my house. I can identify Narayan Pradhan if shown to me.
50 of 101 51 FIR No. 162/12 PS - Bhalaswa Dairy At this stage the wooden partition is removed. The witness pointed towards the accused Narayan Pradhan and identified him correctly.
At this stage the wooden partition is restored to its original position.
Narayan Pradhan told me that he has talked to my sons State about the purchase of motorcycle. He had seen the motorcycle. I asked him to sit in the room and to have water. He sat in the room and I gave him glass of water. Thereafter, I went inside the kitchen to prepare tea. I gave him a cup of tea. A quarrel was going on between our neighbourers and I went there. When I came back to my house, accused Narayan had already gone. I had consumed the tea in the kitchen. I felt giddiness and thereafter went to sleep. I woke after about 45 hours and I was not feeling well. I was feeling itching in my private part and then I went to base Hospital. Doctor medically examined me. Thereafter I told to the Doctor all the things whatever I have stated today. Doctor informed the Police. I do not know why the Police was called. Police came from PS Bhalswa Dairy and took me to Jahangir Puri Hospital. Police took accused Narayan Pradhan in the PS and I identified him. I am not aware whether Police had recorded my statement. Police had obtained my signatures on some paper. Accused Narayan had not done anything wrong with me."
PW5 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement. The crossexamination as conducted by the Learned Addl. PP for the 51 of 101 52 FIR No. 162/12 PS - Bhalaswa Dairy State reads as under : "I knew accused Narayan @ Pradhan for about three years prior to the incident. He had come to my house only once prior to the date of incident. He had come three days prior to the date of incident, to my house to talk to my son Sonu regarding the sale of motorcycle. Accused Narayan @ Pradhan is also known to my husband for about three years prior to the incident. Accused Narayan @ Pradhan used to come of and on (Kabhi Kabhi) to my house to meet my husband. It is correct that owing to the fact that accused Narayan @ Pradhan used to come to my house to meet my husband and my son and for this reason I had asked him to sit inside my house on the date of the incident. It is correct that I was alone on the date and time of the incident when accused Narayan @ Pradhan had come to my house.
It is correct that prior to the date of incident I had never felt any such pain in my private part so that I felt any necessity to go to the Hospital.
I never met or had treatment at any time at the BASE Hospital from Lt. Col. (Dr.) Smita Mudgil, prior to the date of incident. I had gone alone to the BASE Hospital and thereafter, firstly I went to OPD and from there I was referred to Emergency of the BASE Hospital on 11/09/2012. On 11/09/2012, I went to BASE Hospital at about 8:00/9:00 a.m. in the morning and remained there till 9:00 p.m. Local Police had come and met me at about 9:00 p.m. in the BASE Hospital on 11/09/2012. It is correct that from the BASE Hospital I was taken by the local Police to Babu Jag Jiwan Ram Hospital where my medical examination was also conducted. No my family member or relatives with me at Babu Jag Jiwan Ram Hospital. From Babu Jag Jiwan Ram Hospital I was brought at PS Bhalswa Dairy where my statement was 52 of 101 53 FIR No. 162/12 PS - Bhalaswa Dairy recorded by the Police. I have gone through the statement and I had not given such statement to the Police although it bears my signature at point 'A'. The said statement is marked as Mark PX1. I am 12th class passed. It is wrong to suggest that I had signed at point 'A' after going through the statement Mark PX1.
Q. See the statement Mark PX1 is dated 12/09/2012. Had you signed any document/paper without going through the same prior to 12/09/2012?
A. I had not signed any document/paper without going through the same. Vol. Sometimes it happens that a document/paper is signed without going through it.
I cannot tell the nature and kind of the document/paper which had signed by me without going through it. Q. You have deposed that you used to sign some document/papers without going through the contents thereof. At whose instance you used to sign such papers without going through the same? A. I used to sign some documents without going through the same at the asking of my husband and I also used to sign some documents without going through the contents thereof pertaining to UNIT Programs and the documents relating to the Parents Meetings etc. of the school.
After the registration of the case on 12/09/2012, firstly I met my husband on 1617/09/2012.
Q. See the case was registered at 1:50 a.m. on the intervening night of 1112/09/2012. Did you talk with any family member after the registration of the case?
A. I had a talk with my husband at about 1:30 a.m. or 2:00 a.m. in the 53 of 101 54 FIR No. 162/12 PS - Bhalaswa Dairy intervening night of 1112/09/2012.
I had a talk with my husband at the time when I was in the BASE Hospital.
My husband could not come immediately after the registration of the case as he could not get leave. I did not have any talk with my children regarding this case.
It is wrong to suggest that on 10/09/2012 at about 12:00 noon when accused had came to my house and I made him to sit in the room and when I brought water for him, he caught hold my hand and laid me down on the bed and thereafter committed rape upon me. (confronted from portion 'A' to 'A' of the statement Mark PX1 where it is so recorded). It is wrong to suggest that accused Narayan @ Pradhan after committing rape upon me put some unknown chemical in my private part (confronted from portion 'B' to 'B' of the statement Mark PX1 where it is so recorded). It is wrong to suggest that I have given statement Mark PX1 to the Police and contents of the same were recorded by the Police as were adverbatim. It is wrong to suggest that I have deposed falsely in my examinationinchief that, "on that day a quarrel was going on between our neighbourers and I went there, when I came back to my house, accused Narayan had already gone and when I had consumed the tea in the kitchen, I felt giddiness and thereafter went to sleep".
It is correct that seizure memo Ex. PW9/A bears my signature at point 'B'. It is correct that police had arrested accused Narayan and his arrest memo Ex. PW7/A bears my signature at point 'B'. It is also correct that disclosure statement of accused Ex. PW7/C bears my signature at point 'B'. It is wrong to suggest that my husband and sons have compromised the matter with accused Narayan and due to their 54 of 101 55 FIR No. 162/12 PS - Bhalaswa Dairy pressure I am deposing falsely in order to save him."
From the aforesaid narration of PW5 - prosecutrix, it is clearly indicated that her husband is working in Air Force and he is presently posted in Mumbai. She is having two sons and they both are serving in Army. Her one son is posted at Sri Nagar and other son is posted at Ahmedabad. She is having two daughters, out of which one is married and the other daughter is studying at Mumbai. The tenants are residing at the ground floor of her house. On 10/09/2012 at about 12:00/12:30 p.m., she was present at the first floor of her house. Narayan Pradhan came to her house. She correctly identified accused Narayan Pradhan in the Court. Narayan Pradhan told her that he has talked to her sons State about the purchase of motorcycle. He had seen the motorcycle. She asked him to sit in the room and to have water. He sat in the room and she gave him glass of water. Thereafter, she went inside the kitchen to prepare tea. She gave him a cup of tea. A quarrel was going on between our neighbourers and she went there. When she came back to her house, accused Narayan had already gone. She had consumed the tea in the kitchen. She felt giddiness and thereafter went 55 of 101 56 FIR No. 162/12 PS - Bhalaswa Dairy to sleep. She woke after about 45 hours and she was not feeling well. She was feeling itching in her private part and then she went to base Hospital. Doctor medically examined her. Thereafter, she told to the Doctor all the things whatever she has stated on the day of her examination. Doctor informed the Police. She does not know why the Police was called. Police came from PS Bhalswa Dairy and took her to Jahangir Puri Hospital. Police took accused Narayan Pradhan in the PS and she identified him. She is not aware whether Police had recorded her statement. Police had obtained her signatures on some paper. Accused Narayan had not done anything wrong with her.
PW5 - prosecutrix negated the suggestions as were put to her during the course of her crossexamination by the Learned Addl. PP that she had signed at point 'A' after going through the statement Mark PX1 or that on 10/09/2012 at about 12:00 noon when accused had came to her house and she made him to sit in the room and when she brought water for him, he caught hold her hand and laid her down on the bed and thereafter, committed rape upon her or that accused Narayan @ Pradhan after committing rape upon her put some unknown chemical in her 56 of 101 57 FIR No. 162/12 PS - Bhalaswa Dairy private part or that she has given statement Mark PX1 to the Police and contents of the same were recorded by the Police as were adverbatim or that she has deposed falsely in her examinationinchief that, "on that day a quarrel was going on between our neighbourers and she went there, when she came back to her house, accused Narayan had already gone and when she had consumed the tea in the kitchen, she felt giddiness and thereafter went to sleep" or that her husband and sons have compromised the matter with accused Narayan and due to their pressure she is deposing falsely in order to save him.
PW5 prosecutrix was not crossexamined on behalf of accused.
On analysing the entire testimony of PW5 - prosecutrix, it transpires that she has categorically deposed regarding the coming of accused Narayan to her house on the date and time of incident on 10/09/2012 at about 12:00/12:30 p.m. Nor the said fact has been disputed by the accused since PW5 - prosecutrix was not cross examined despite grant of opportunity.
57 of 101 58 FIR No. 162/12 PS - Bhalaswa Dairy During her crossexamination by the Learned Addl. PP for the State PW5 - prosecutrix has specifically deposed that : "I knew accused Narayan @ Pradhan for about three years prior to the incident. He had come to my house only once prior to the date of incident."
"Accused Narayan @ Pradhan is also known to my husband for about three years prior to the incident. Accused Narayan @ Pradhan used to come of and on (Kabhi Kabhi) to my house to meet my husband. It is correct that owing to the fact that accused Narayan @ Pradhan used to come to my house to meet my husband and my son and for this reason I had asked him to sit inside my house on the date of the incident. It is correct that I was alone on the date and time of the incident when accused Narayan @ Pradhan had come to my house.
It is correct that prior to the date of incident I had never felt any such pain in my private part so that I felt any necessity to go to the Hospital."
"I had gone alone to the BASE Hospital and thereafter, firstly I went to OPD and from there I was referred to Emergency of the BASE Hospital on 11/09/2012. On 11/09/2012, I went to BASE Hospital at about 8:00/9:00 a.m. in the morning and remained there till 9:00 p.m. Local Police had come and met me at about 9:00 p.m. in the BASE Hospital on 11/09/2012. It is correct that from the BASE Hospital I was taken by the local Police to Babu Jag Jiwan Ram Hospital where my medical examination was also conducted. No my family member or relatives with me at Babu Jag Jiwan Ram Hospital. From Babu Jag Jiwan Ram Hospital I was brought at PS Bhalswa Dairy where my
58 of 101 59 FIR No. 162/12 PS - Bhalaswa Dairy statement was recorded by the Police."
"It is correct that seizure memo Ex. PW9/A bears my signature at point 'B'. It is correct that police had arrested accused Narayan and his arrest memo Ex. PW7/A bears my signature at point 'B'. It is also correct that disclosure statement of accused Ex. PW7/C bears my signature at point 'B'."
On the said facts so elicited by the Learned Addl. PP for the State during the crossexamination of PW5 - prosecutrix, the same were not disputed by the accused since PW5 - prosecutrix was not crossexamined despite grant of opportunity.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In view of above and in the circumstances, it stands clearly established on the record that accused Narayan visited the 59 of 101 60 FIR No. 162/12 PS - Bhalaswa Dairy house of PW5 - prosecutrix on the date and time of incident on 10/09/2012 at about 12:00/12:30 p.m. and he was known to the prosecutrix and was made to sit inside the house and PW5 - prosecutrix was alone on the date and time of incident. On the date of incident she (PW5 - prosecutrix) had felt pain in her private part and had gone to the Base Hospital on 11/09/2012 and thereafter she was taken to BJRM Hospital by local Police where her medical examination was also conducted. She has also identified her signature at points 'B' on the seizure memo of the sealed exhibits Ex. PW9/A, on the arrest memo of accused Ex. PW7/A and the disclosure statement of accused Ex. PW7/C. On a conjoint reading of the said dependable part of testimony of PW5 - prosecutrix so established on the record coupled with the DNA Report dated 29/04/2013 Ex. PW12/A, the allelic data Ex. PW12/B and the DNA Report dated 06/06/2013 Ex. PW12/C and the allelic data Ex. PW12/D with gynaecological examination Ex. PW8/A encircled on MLC Ex. PW4/B, it clearly indicates that sexual intercourse activity has taken place in the instant case and it was 60 of 101 61 FIR No. 162/12 PS - Bhalaswa Dairy none else but accused Narayan who has performed the act of sexual intercourse with PW5 - prosecutrix against her will. PW5 - prosecutrix has made a futile attempt to conceal the same.
It is also to be noticed that PW8 - Dr. Latika, SR Gynae, BJRM Hospital in her examinationinchief has specifically deposed that on local examination of patient/PW5 - prosecutrix there were scratch mark over right and left side of neck extending towards chest.
It is pertinent to reproduce the relevant part of examination inchief of PW8 - Dr. Latika which reads as under : "On 11/09/2012 patient/prosecutrix (name withheld) W/o Ashok Kumar was brought in the Hospital for medical examination. She was initially examined by Junior Resident on duty and thereafter, patient was referred to S.R. Gynae. Whereupon, she was examined by me. She was brought to Hospital with the alleged history of sexual assault by a stranger one day before.
On examination the vital were stable. On local examination there were scratch mark over right and left side of neck extending towards chest....."
(underlined by me) 61 of 101 62 FIR No. 162/12 PS - Bhalaswa Dairy The aforesaid narration of PW8 - Dr. Latika is clearly indicative of the use of force at the time of the committal of sexual assault upon the prosecutrix by accused Narayan. Despite grant of opportunity, PW8 - Dr. Latika was not crossexamined on behalf of accused.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
It is well settled that a witness may lie but not the circumstances.
In view of as to what has been discussed and analysed here inabove, the plea raised by the Learned Counsel for the accused that PW5 - prosecutrix who is the complainant has not supported the case of the prosecution or that she has deposed that accused Narayan has not committed rape upon her or that her signature were obtained on some papers or that PW5 - prosecutrix is the sole witness of this case or that 62 of 101 63 FIR No. 162/12 PS - Bhalaswa Dairy she has not supported the case of the prosecution so in view of the statement of the PW5 there is strong doubt in the case of the prosecution, are found to have no substance.
20. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity.
63 of 101 64 FIR No. 162/12 PS - Bhalaswa Dairy Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW5 - Prosecutrix in the light of medical evidence vide MLC Ex. PW3/A, MLC Ex. PW4/B, gynaecological examination vide MLC Ex. PW8/A (encircled on the MLC Ex. PW4/B), DNA Report dated 29/04/2013 Ex. PW12/A, the allelic data Ex. PW12/B and the DNA Report dated 06/06/2013 Ex. PW12/C and the allelic data Ex. PW12/D, together with the MLC of 64 of 101 65 FIR No. 162/12 PS - Bhalaswa Dairy accused Ex. PW4/A, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Narayan with PW5 - Prosecutrix against her will.
21. Learned Counsel for accused submitted that the incident took place on 10/09/2012 with the complainant and the FIR has been registered on 12/09/2012 after delay of two days. There is delay of two days in registration of the FIR because the present case falsely registered against the accused and he has been falsely implicated by the Investigating Agency.
I have carefully perused and analysed the evidence on record.
PW5 - prosecutrix in her examinationinchief has 65 of 101 66 FIR No. 162/12 PS - Bhalaswa Dairy specifically deposed that on 10/09/2012 at about 12:00/12:30 p.m. she was present at the first floor of her house. Narayan Pradhan came to her house. She correctly identified accused Narayan Pradhan present in the Court.
During her crossexamination conducted by the Learned Addl. PP for the State, PW5 - prosecutrix has specifically deposed that : "It is correct that prior to the date of incident I had never felt any such pain in my private part so that I felt any necessity to go to the Hospital.
I never met or had treatment at any time at the BASE Hospital from Lt. Col. (Dr.) Smita Mudgil, prior to the date of incident. I had gone alone to the BASE Hospital and thereafter, firstly I went to OPD and from there I was referred to Emergency of the BASE Hospital on 11/09/2012. On 11/09/2012, I went to BASE Hospital at about 8:00/9:00 a.m. in the morning and remained there till 9:00 p.m. Local Police had come and met me at about 9:00 p.m. in the BASE Hospital on 11/09/2012. It is correct that from the BASE Hospital I was taken by the local Police to Babu Jag Jiwan Ram Hospital where my medical examination was also conducted. No my family member or relatives with me at Babu Jag Jiwan Ram Hospital. From Babu Jag Jiwan Ram Hospital I was brought at PS Bhalswa Dairy where my statement was recorded by the Police. I have gone through the statement and I had not given such statement to the Police although it bears my signature at point 'A'. The said statement is marked as Mark PX1. I am 12th class passed. It is wrong to suggest that I had signed at point 'A' after going through the statement Mark PX1.
66 of 101 67 FIR No. 162/12 PS - Bhalaswa Dairy Q. See the statement Mark PX1 is dated 12/09/2012. Had you signed any document/paper without going through the same prior to 12/09/2012?
A. I had not signed any document/paper without going through the same. Vol. Sometimes it happens that a document/paper is signed without going through it.
I cannot tell the nature and kind of the document/paper which had signed by me without going through it. Q. You have deposed that you used to sign some document/papers without going through the contents thereof. At whose instance you used to sign such papers without going through the same? A. I used to sign some documents without going through the same at the asking of my husband and I also used to sign some documents without going through the contents thereof pertaining to UNIT Programs and the documents relating to the Parents Meetings etc. of the school.
After the registration of the case on 12/09/2012, firstly I met my husband on 1617/09/2012.
Q. See the case was registered at 1:50 a.m. on the intervening night of 1112/09/2012. Did you talk with any family member after the registration of the case?
A. I had a talk with my husband at about 1:30 a.m. or 2:00 a.m. in the intervening night of 1112/09/2012.
I had a talk with my husband at the time when I was in the BASE Hospital.
My husband could not come immediately after the 67 of 101 68 FIR No. 162/12 PS - Bhalaswa Dairy registration of the case as he could not get leave. I did not have any talk with my children regarding this case."
From the aforesaid narration of PW5 prosecutrix, it is clearly indicated that on 10/09/2012, at about 12:00/12:30 p.m., she was present at the first floor of her house. Narayan Pradhan came to her house and correctly identified him present in the Court. Prior to the date of incident she had never felt any such pain in her private part so that she felt any necessity to go to the Hospital. On 11/09/2012, she went to BASE Hospital at about 8:00/9:00 a.m. in the morning and remained there till 9:00 p.m. Local Police had come and met her at about 9:00 p.m. in the BASE Hospital on 11/09/2012. From the BASE Hospital she was taken by the local Police to Babu Jag Jiwan Ram Hospital where her medical examination was also conducted. From Babu Jag Jiwan Ram Hospital she was brought at PS - Bhalswa Dairy where her statement was recorded by the Police. The statement is Mark PX1 dated 12/09/2012.
PW13 - SI Vinita Prasad in her examinationinchief has 68 of 101 69 FIR No. 162/12 PS - Bhalaswa Dairy deposed that she recorded statement of prosecutrix (name withheld) Ex. PW13/A (earlier given as Mark PX1) and attested signature of prosecutrix (name withheld) at point 'A', bearing her signature at point 'B'. She prepared rukka Ex. PW13/B, bearing her signature at point 'A'. She handed over the rukka to Duty Officer for getting the FIR registered. After registration of FIR, Duty Officer handed over to her the copy of FIR and original rukka.
PW1 - HC Parmod Kumar has deposed that on 12/09/2012, he was posted as Duty Officer in PS - Bhalaswa Dairy and was on duty from 12:00 mid night to 8:00 a.m. On that day, at about 1:50 a.m., he received a rukka from SI Vinita Prasad. On the basis of the same and on his instructions, the present FIR No. 162/12 u/s 323/376 IPC was registered and same is Ex. PW1/A which bears his signature at point 'A'. He also made his endorsement on rukka and the same is Ex. PW1/B which bears his signature at point 'A'. After registration of FIR, he handed over copy of FIR and original rukka to Constable Arun for handing over to SI Vinita Prasad for further investigation (OSR).
69 of 101 70 FIR No. 162/12 PS - Bhalaswa Dairy In view of above and in the circumstances, the delay in the registration of the case satisfactorily and sufficiently stands explained.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
Delay in lodging of FIR is a normal phenomenon especially in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi 70 of 101 71 FIR No. 162/12 PS - Bhalaswa Dairy Administration) 1989 CRLJ 137 (Delhi).
The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is 71 of 101 72 FIR No. 162/12 PS - Bhalaswa Dairy false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige 72 of 101 73 FIR No. 162/12 PS - Bhalaswa Dairy of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case 'Satyapal Vs. State of Haryana AIR 2009 SC 2190' has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
73 of 101 74 FIR No. 162/12 PS - Bhalaswa Dairy In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused submitted that in the MLC's of the complainant conducted at Base Hospital and BJRM Hospital there is nowhere mentioned in the alleged history that the accused is the person who has committed rape upon the complainant, in the medical conducted at Base Hospital.
I have carefully perused and analysed the evidence on record.
On perusal of the MLC Ex. PW3/A made at the Base Hospital, it is found mentioned interalia therein : "Patient is 40 years old W/o Service Soldier C/o Alleged H/o Sexual Assault and injection of something in her genitals at her house in Mukandpur on 10/09/2012 at 12:00 Hours. Patient alleges that assailant is known to her some 02 years.
It is also to be notice that during her crossexamination by the Learned Addl. PP for the State PW5 - prosecutrix has specifically 74 of 101 75 FIR No. 162/12 PS - Bhalaswa Dairy deposed that : "I knew accused Narayan @ Pradhan for about three years prior to the incident. He had come to my house only once prior to the date of incident."
"Accused Narayan @ Pradhan is also known to my husband for about three years prior to the incident. Accused Narayan @ Pradhan used to come of and on (Kabhi Kabhi) to my house to meet my husband. It is correct that owing to the fact that accused Narayan @ Pradhan used to come to my house to meet my husband and my son and for this reason I had asked him to sit inside my house on the date of the incident. It is correct that I was alone on the date and time of the incident when accused Narayan @ Pradhan had come to my house.
(underlined by me) PW3 - Lt. Col. Dr. Smita Moudgil, Base Hospital, Delhi Cantt. New Delhi has proved the MLC No. 47109/09/12 of the prosecutrix Ex. PW3/A bearing her signature at point 'A'.
As to why PW5 - prosecutrix did not disclose the name of the assailant in the alleged history (of MLC Ex. PW3/A). She should have been crossexamined on this aspect. For failure to do so, accused is to blame himself and none else.
75 of 101 76 FIR No. 162/12 PS - Bhalaswa Dairy At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In case "Noor Salam Vs. State (Govt. of NCT of Delhi)", 2013 II AD (Cri.) (DHC) 322 it has been held that it is not mandatory for Doctor to record in MLC or to make enquiry from injured about name of assailant. Generally Doctors on duty do not ask for assailant's name. Omission of injured to disclose assailant's name to Doctor does not discredit her testimony.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for accused submitted that as per the story of the prosecution after committing the rape upon the complainant the accused put some chemical on the private part of the complainant but as per chemical report no mineral acid Hydrochloric acid, sulphuric acid 76 of 101 77 FIR No. 162/12 PS - Bhalaswa Dairy and nitric acid could be deducted (detected) in the exhibits, so in the view of the chemical report there is strong doubt in the case of the prosecution.
I have carefully perused and analysed the evidence on record.
Non detection of any mineral acidHydrochloric acid, Sulphuric acid and Nitric acid in the exhibits '1A', '1B(I)' to '1B(XI)' of the prosecutrix in the Chemical Examination Report Ex. PW15/A does not falsify the case of the prosecution. In view of the categorical deposition of PW5 - prosecutrix made by her during her cross examination as conducted by the Learned Addl. PP for the State which reads as under : "It is correct that prior to the date of incident I have never felt any such pain in my private part so that I felt any necessity to go to the Hospital."
The said part of the testimony of PW5 - prosecutrix clearly indicates that she felt such pain in her private part on the date of the incident which she never felt prior to the date of incident.
77 of 101 78 FIR No. 162/12 PS - Bhalaswa Dairy On the said fact, PW5 - prosecutrix was not crossexamined by the Learned Counsel for the accused.
In the circumstances, it stands established on the record that on the date of incident she felt such pain in her private part that she felt the necessity to go to the Hospital.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
At the cost of repetition, as discussed hereinbefore that during the period from the date of the alleged incident on 10/09/2012 till the gynaecological examination of PW5 - prosecutrix conducted on 11/09/2012 vide MLC Ex. PW8/A (encircled on the MLC Ex. PW4/B) wherein it is also mentioned that "patient has taken bath and douched", it cannot be ruled out that prosecutrix must have 78 of 101 79 FIR No. 162/12 PS - Bhalaswa Dairy answered the call of nature and must have urinated a number of times and in the circumstances it appears that it could be the reason for the nondetection of any mineral acid or chemical, in exhibits '1A', '1B(I)' to '1B(XI)'.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for accused submitted that earlier the blood sample of the accused was taken by the IO and the same was sealed in the Hospital and sent to the FSL, Rohini, Delhi, but due to the fault of the Investigating Officer, the blood got putrefy, so the lack of investigation done by the IO in the present case created strong doubt in the story of the prosecution case.
I have carefully perused and analysed the evidence on record.
The said lapse, non taking of the blood sample of the accused in a proper manner, may reflect on the investigation but does not 79 of 101 80 FIR No. 162/12 PS - Bhalaswa Dairy reflect upon the substantive evidence and the probative value and the dependable part of the statement made by PW5 - prosecutrix on the material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear and cogent evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for accused submitted that the clothes/bed sheet has not been produced in the Court at the time of prosecution evidence and the same has not been identified by any of the prosecution witnesses.
I have carefully perused and analysed the evidence on record.
PW15 - Smt. Kavita Goyal, Senior Scientific Officer, Chemistry, FSL, Delhi has proved and identified the white cloth piece (exhibit 1A in the Chemical Report Ex. PW15/A) as Ex. PW15/B. 80 of 101 81 FIR No. 162/12 PS - Bhalaswa Dairy In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that after recording of the examinationinchief of PW5 i.e. complainant, the investigation officer has intentionally filed application for taking blood sample of the accused for DNA. Learned Counsel for accused further submitted that PW14 - SI Surender Kumar, has stated in his crossexamination that he had moved application for taking of blood sample of accused again, when SHO has directed him to move the same. Thereafter, suggestion were given to him that he had moved the application in connivance of the SHO to solve the present case and on his and on their direction FSL has given false and fabricated report which he denied.
I have carefully perused and analysed the evidence on record.
The said plea so raised by the Learned Counsel for the accused has not been substantiated despite the fact that the application 81 of 101 82 FIR No. 162/12 PS - Bhalaswa Dairy for taking fresh blood sample of the accused dated 10/02/2014 was dealt with after giving a notice and hearing the Learned Counsel for the accused and was disposed off vide order dated 11/02/2014.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused submitted that the investigating officer i.e. PW13 has not recorded the statement of tenants who were residing in the house of the complainant nor has recorded the statement of husband as well as son of the complainant, so there is doubt in the story of the prosecution case.
I have carefully perused and analysed the evidence on record.
The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it. Though, the neighbourhood may be replete with other residents also. Nonciting and nonexamination of tenants who were residing in the house of the 82 of 101 83 FIR No. 162/12 PS - Bhalaswa Dairy prosecutrix and of the husband and the son of the prosecutrix does not affect the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. 83 of 101 84 FIR No. 162/12 PS - Bhalaswa Dairy State of U.P.', (1979) 4 SCC 345, 'State of U.P. Vs. Anil Singh', AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar', 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for accused submitted that PW4 - Dr. Rahul has deposed in his crossexamination that injuries mentioned in MLC Ex. PW4/B at point 'X' are possible due to shrugging of clothes.
I have carefully perused and analysed the evidence on record.
PW4 - Dr. Rahul Singh, CMO, BJRM Hospital, Delhi in his examinationinchief has deposed that on 11/09/2012 prosecutrix (name 84 of 101 85 FIR No. 162/12 PS - Bhalaswa Dairy withheld) W/o Ashok Kumar Sharma age 40 years female was brought to Hospital for medical examination with the alleged history of sexual assault on 10/09/2012 at 12:00 hr. The patient was examined by Dr. Shabbir under his supervision. On local examination, two curvilinear superficial abrasion one on each side just below the neck. The patient was referred to SR (Gynae) for further examination. At present Dr. Shabbir is not working in their Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Vishal as he has seen him while writing and signing during the course of his duties. The MLC is Ex. PW 4/B bearing signatures of Dr. Shabbir at point 'A'.
During his crossexamination, PW4 - Dr. Rahul Singh has deposed which is reproduced and reads as under : "Q. Whether the injury mentioned in MLC Ex. PW4/A at point 'X' are possible due to allergy or due to insect bite or due to shrugging of a peace of cloth under pressure?
Ans. Such type of injuries is possible due to shrugging of cloth but it is still dependent as to how and in what manner the cloth has been worn or used. However, such injuries are not possible due to allergy or by insect bite."
85 of 101 86 FIR No. 162/12 PS - Bhalaswa Dairy On careful perusal and analysis, the testimony of PW4 - Dr. Rahul Singh is found to be clear, cogent and convincing. There is nothing in his crossexamination so as to impeach his creditworthiness.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. Nor it is the case of the accused that he put any suggestion to PW5 - prosecutrix during her crossexamination that the injuries mentioned at point 'X' on the MLC Ex. PW4/B were caused due to shrugging of cloth.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for accused submitted that PW6 - HC Samarvir Singh is the person who deposited the pullindas in FSL and in his crossexamination suggestion was given on behalf of the accused that the sealed pullindas were tampered during his custody which he denied.
I have carefully perused and analysed the evidence on 86 of 101 87 FIR No. 162/12 PS - Bhalaswa Dairy record.
At the cost of repetition, PW6 - HC Samarvir Singh has who deposed that on 12/09/2012, he was posted as MHC(M) in PS - Bhalaswa Dairy. On that day, IO SI Vinita Prasad deposited two sealed pullindas sealed with the seal of MS BJRM Hospital alongwith two sample seals in the Malkhana. He made entry at Serial No. 608 in Register No. 19. On 25/10/2012, on the instructions of IO, above said sealed pullindas alongwith sample seals were handed over to Constable Narender for depositing in the FSL, Rohini vide RC No. 169/21/12. After depositing the same in FSL, he had deposited the acknowledgment receipt of the pullinda with him. He has brought the Register Nos. 19 &
21. The copy of the relevant entry of Register No. 19 is Ex. PW6/A. The copy of the relevant entry of Register No. 21 is Ex. PW6/B. Copy of the acknowledgment receipt is Ex. PW6/C (OSR). Sealed pullindas remained intact during his custody.
During his crossexamination, PW6 - HC Samarvir Singh has deposed : "It is wrong to suggest that sealed pullindas were tampered with during my custody."
87 of 101 88 FIR No. 162/12 PS - Bhalaswa Dairy Nothing has been proved or shown on the record regarding the fact on which the suggestion was made to PW6 - HC Samarvir Singh that the pullinda was tampered with during his custody which he negated.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for accused submitted that PW10 - SI Jagbir Khatri has deposed in his crossexamination that he reached at Base Hospital at about 9:30 p.m. and there he met with a lady Doctor but he does not remember her name. PW10 further deposed in his cross examination that he did not record the statement of the complainant in the Hospital and he also did not make any entry in the Base Hospital regarding their arrival at Base Hospital. PW10 further deposed in his crossexamination that he does not remember whether he had made DD Entry regarding the investigating of the present case in the DD Register. Being the first person/official of the case he did not lodge any DD entry regarding his investigation and he also did not record the statement of the 88 of 101 89 FIR No. 162/12 PS - Bhalaswa Dairy complainant at Base Hospital. So there is doubt in the story of the prosecution case and it is settled preposition of law that whenever the doubt comes it always go in favour of the accused.
I have carefully perused and analysed the evidence on record.
The said lapses may reflect on the investigation but does not reflect upon the substantive evidence and the probative value and the dependable part of the statement made by PW5 - prosecutrix on the material and relevant aspect. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear and cogent evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for accused submitted that PW13 i.e. SI Vinita Prasad who is the IO of the case, has deposed in her cross examination that she does not remember the mobile number of the lady 89 of 101 90 FIR No. 162/12 PS - Bhalaswa Dairy of NGO. PW13 in her crossexamination has stated that she did not lodge any DD entry in the register at the time of investigation marked to her. PW13 SI Vinita Prasad has deposed in her crossexamination that at the time of arrest of accused his other family members present and there signature were also obtained, but at the time of crossexamination of PW13 the arrest memo Ex. PW7/A was shown to the witness where the signature of any other family members of the accused were not present on the same. PW13 SI Vinita Prasad has deposed in her cross examination that she did not record the statement of tenant Sushila who was present there. PW13 SI Vinita Prasad has deposed in her cross examination that she did not take the photographs of the place of incident and also did not seize anything from the spot and signature of the complainant were not obtained on the site plan. PW13 SI Vinita Prasad has deposed in her crossexamination that she did not get record the statement of complainant u/s 164 Cr.P.C. and she further deposed that she did not go to Base Hospital to make inquiries regarding the present case because initially complainant got admitted in Base Hospital and from there the complainant was taken to BJRM Hospital. So in view of the lack of investigation conducted by the Investigating Agency there is 90 of 101 91 FIR No. 162/12 PS - Bhalaswa Dairy suspicion in the story of the prosecution case.
I have carefully perused and analysed the evidence on record.
The said lapses may reflect on the investigation but does not reflect upon the substantive evidence and the probative value and the dependable part of the statement made by PW5 - prosecutrix on the material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear and cogent evidence.
As far as the plea regarding the nonrecording of the statement u/s 164 Cr.P.C. of the prosecutrix is concerned, PW13 - SI Vineeta Prasad in her crossexamination has specifically deposed that she did not get recorded the statement of the prosecutrix u/s 164 Cr.P.C. and also negated the suggestion that she did not get recorded the statement of the prosecutrix for the reason that she has prepared a false case against the accused. Moreover, to get record the statement of the prosecutrix u/s 164 Cr.P.C. is the prerogative of the Investigating Agency 91 of 101 92 FIR No. 162/12 PS - Bhalaswa Dairy (Ref. Tasleem @ Pappu Vs. State (NCT Govt. of Delhi 2011 III AD (Delhi) 325). Non getting record the statement of PW5 - prosecutrix u/s 164 Cr.P.C. by the Investigating Agency does not falsify the case of the prosecution which is otherwise proved on the record by the clear, cogent and convincing evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
32. Learned Counsel for accused submitted that the piece of cloth/bed sheet which was sent to the FSL for purpose of DNA report has not been seized by the IO i.e. PW13 and the same has been admitted in her crossexamination by PW13. So in view of the admission on the part of the Investigating Officer no articles were seized from the place of incident it creates doubt on the DNA Report, that if no articles were seized from the spot, how and from where the bed sheet/piece of cloth has been sent to the FSL for purpose of DNA report.
I have carefully perused and analysed the evidence on 92 of 101 93 FIR No. 162/12 PS - Bhalaswa Dairy record.
At the cost of repetition, PW8 Dr. Latika, S.R. Gynae, BJRM Hospital, Delhi who conducted the gynaecological examination of PW5 - prosecutrix has deposed that on 11/09/2012 patient/prosecutrix (name withheld) W/o Ashok Kumar was brought in the Hospital for medical examination. She was initially examined by Junior Resident on duty and thereafter, patient was referred to S.R. Gynae. Whereupon, she (prosecutrix) was examined by her. She was brought to Hospital with the alleged history of sexual assault by a stranger one day before. On examination the vital were stable. On local examination there were scratch mark over right and left side of neck extending towards chest. No other signs and symptoms of injury were noted. On per abdomen examination ligation scar present. Per speculum examination : cervical erosion present, smeared with mucoid secretion, posterior fornix was full of fluid / Semen. Per vaginal examination : introitus gaping and roomy vagina, uterus anteverted normal size, Adnexa clear. External genitalia healthy, no signs of injury. Samples were taken, sealed and handed over to Police Constable. Her examination is Ex. PW8/A encircled red on the MLC Ex. PW4/B, signed by her at point 'Z'.
93 of 101 94 FIR No. 162/12 PS - Bhalaswa Dairy At the cost of repetition, as per DNA Report dated 29/04/2013 Ex. PW12/A the description of articles contained in parcel, DNA examination and results of analyses and the allelic data Ex. PW12/B reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibits '1A', '1B' and '1C' described as of victim/prosecutrix (name withheld). Exhibit '1A' : One cloth piece described as '3A Outer clothing'.
Exhibit '1B' : Cotton wool swab on a wooden stick. Exhibit '1C' : One microslide having faint smear labelled as 'Step 9 Vaginal secretion'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibit '3' said to contain 'Blood sample of accused'.
Exhibit '3' : Foul smelling gauze cloth piece described as blood sample of accused.
As per the DNA Report dated 29/04/2013 Ex. PW12/A with regard to the articles contained in the parcel/exhibits, it is noticed that 94 of 101 95 FIR No. 162/12 PS - Bhalaswa Dairy parcel no. 1 belongs to PW5 - prosecutrix which was seized vide seizure memo Ex. PW9/A dated 12/09/2012.
As per Forensic Evidence Chemical Report dated 29/04/2013 Ex. PW15/A the description of articles contained in parcels and results of analyses reads as under : No. of No. of Seals & Description of Parcels/Exhibits Parcels / Seal Impression Exhibits Parcel1 Seven seals of One sealed yellow envelope stated to be "BD FSL containing "Sexual Assault evidence DELHI" collection kit". It was found to contain exhibits '1A' [kept in a yellow envelope with imprint outer clothings STEP3A] & '1B(I)', '1B(II)', '1B(III)', '1B(IV)', '1B(V)', '1B(VI)', '1B(VII)', '1B(VIII)', '1B(IX)', '1B(X)', '1B(XI)' [kept in an open white paper cardboard box bearing seals of MSBJRMHJ.PURI DELHI] Exhibit One white cloth piece having some faint '1A' stains.
95 of 101 96 FIR No. 162/12 PS - Bhalaswa Dairy Exhibit - One white envelope marked as STEP4 - '1B(I)' 'Nail Scraping' wrapped in a white paper. Exhibit One white envelope marked as STEP4 - '1B(II)' 'Body Fluid collection' containing one stoppered collection vial labelled as 'Sunita vaginal swab' having a cotton swab on a plastic stick.
Exhibit One white envelope marked as STEP7 - '1B(III)' 'clipping of pubic hair' containing few small pieces of black hair wrapped in a white paper.
Exhibit One white envelope marked as STEP9 - '1B(IV)' 'Cervical mucous secretion' containing one stoppered collection vial labelled as 'Sunita cervical swab' having a cotton swab on a plastic stick.
Exhibit One white envelope marked as STEP9 - '1B(V)' 'vaginal secretion' containing one white plastic slide box.
Exhibit One white envelope marked as STEP10 - '1B(VI)' 'CULTURE vaginal swab' containing one small polythene having one cotton swab on a plastic stick.
Exhibit One white envelope marked as STEP11 - '1B(VII)' 'Washing from vagina' containing one disposable plastic syringe having approx 1 ml of light brown turbid liquid.
96 of 101 97 FIR No. 162/12 PS - Bhalaswa Dairy Exhibit - One white envelope marked as STEP12 - '1B(VIII)' 'Rectal examination' containing one stoppered collection vial having one cotton swab on plastic stick alongwith a white plastic slide box.
Exhibit - One white envelope marked as STEP13 - '1B(IX)' 'Oral Swab' containing a white plastic slide box.
Exhibit - One white envelope marked as STEP14 - '1B(X)' 'Blood collection of victim' containing two stoppered collection vials each having approx 2 ml blood sample.
Exhibit - One white envelope marked as STEP15 - '1B(XI)' 'Urine and oxalate blood vial' containing one plastic container with approx 0.2 ml of brown turbid liquid & one & one stoppered collection vial having approx 1.5 ml of blood sample.
PW15 - Smt. Kavita Goyal, SSO, Chemistry, FSL, Delhi has identified the white cloth piece Exhibit 1A and proved it as Ex. PW15/B. From above, it is clearly indicated that the white cloth piece (exhibit 1/A detailed in the DNA Report Ex. PW12/A and in 97 of 101 98 FIR No. 162/12 PS - Bhalaswa Dairy the chemical report Ex. PW15/A) Ex. PW15/B was sealed within an envelope containing "Sexual Assault Evidence Collection Kit" with the samples by PW8 - Dr. Latika, SR Gynae at the time of the gynaecological examination of PW5 - prosecutrix regarding which she deposed as reproduced hereinabove. Despite grant of opportunity, PW8 - Dr. Latika, SR Gynae was not crossexamined on behalf of accused. Nor PW5 - prosecutrix was crossexamined on behalf of accused despite grant of opportunity, who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else. In the circumstances, the testimony of PW13 - SI Vineeta Prasad IO does not come to the rescue of the accused.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
98 of 101 99 FIR No. 162/12 PS - Bhalaswa Dairy
33. Learned Counsel for the accused referred to the cases and are reported as 'K. Venkateshwarlu Vs. The State of Andhra Pradesh', AIR 2012 SC 2955, 'Subhash Chand Vs. State of Rajasthan', 2001(2)JCC(SC)332, 'Virender Vs. The State of NCT of Delhi', MANU/DE/2606/2009, 'Gurpreet Singh Vs. State of Punjab', CRA No. 340SB of 2011, (Date of decision 17/05/2013) (P & H High Court), 'Ajit Kumar Vs. State', 1998[1]JCC36 [Delhi], 'Anandamay Bag Vs. State of West Bengal and Anr.', (Date of decision 07/05/2007) (Calcutta High Court), 'State of Karnataka Vs. Gommatesha', (Date of decision 24/04/2013) (Karnataka High Court), 'State Vs. Nanda Singh', Appeal No. 1471 of 2001 (Date of decision 12/11/2008) (Uttaranchal High Court), 'Mohar Singh and Ors. Vs. State of Punjab', AIR1981SC1578, 'Piara Singh and Ors. Vs. State of Punjab', AIR1977SC2274, 'Paramjeet Singh @ Pamma Vs. State of Uttarakhand', AIR2011SC200 and 'Sabur Hossain Biwas Vs. State of West Bengal & Ors.', 2008 Cri.L.J.1183.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are 99 of 101 100 FIR No. 162/12 PS - Bhalaswa Dairy wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
34. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 10/09/2012 at about 12:00/12:30 p.m., at the house of the prosecutrix at Gali No. 2/6, Raddiwala (Kabadiwala) Road, Mukandpur - II, Delhi, accused Narayan committed rape upon PW5 prosecutrix (name withheld) aged around 40 years against her will and that after committal of the rape upon the prosecutrix, he also criminally caused hurt to the prosecutrix by putting some unknown chemical in her private part due to which she felt so much pain in her private part that she had to rush to the BASE Hospital where she was referred to Emergency of the said 100 of 101 101 FIR No. 162/12 PS - Bhalaswa Dairy Hospital.
I accordingly hold accused Narayan guilty for the offences punishable u/s 376/324 IPC and convict him thereunder.
35. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Narayan in the commission of the offences u/s 376/324 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Narayan beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Narayan guilty for the offences punishable u/s 376/324 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 09th Day of May, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 101 of 101