State vs . 1. Pradeep @ Balli on 15 May, 2013

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Delhi District Court

State vs . 1. Pradeep @ Balli on 15 May, 2013

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                                                                                  FIR No. 80/2009
                                                                                 PS - Mangol Puri



       IN THE COURT OF SH. MAHESH CHANDER GUPTA : 
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK COURT 
           : NORTHWEST DISTRICT : ROHINI : DELHI
                                      
Sessions Case No. :  06/13
Unique ID No.     :  02404R0258802009

State                      Vs.               1.  Pradeep @ Balli 
                                                  S/o Sh. Raj Singh 
                                                  R/o V&PO Kanjhawala, Delhi.

                                                      2.  Arvind Kumar
                                                           S/o Sh. Dalel Singh
                                                           R/o V&PO Akbarpur Barota,
                                                           Sonipat, Haryana.

FIR No.                    :  80/2009
Police Station             :  Mangol Puri 
Under Sections             :  U/s 376/506/328/212 IPC &
                              U/s 25 Arms Act 


Date of committal to session Court                    :             18/09/2009

Date on which Judgment reserved                       :             26/04/2013

Date of which Judgment announced                      :             15/05/2013




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                                                                                FIR No. 80/2009
                                                                               PS - Mangol Puri




J U D G M E N T

1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under : On 09/03/2009 on receipt of DD No. 14A, ASI Krishan Singh alongwith Constable Rajpal went to H. No. A9A, Avantika Enclave, Rohini and W/ASI Prem Lata also reached at H. No. A9A, Avantika Enclave, Rohini, where prosecutrix (named withheld being a case u/s 376 IPC) alongwith her mother Smt. Sunita and her father Sh. Mukesh Kumar met. W/ASI Prem Lata recorded the statement of the prosecutrix in front of her mother and father against one Pradeep @ Balli, which is to the effect that, she resides at the above mentioned address alongwith her family members and studies in Class 9th in Kamdhenu School. In Avantika there is a person named Pradeep @ Balli who is Pradhan of the area whom she knows very well by face and name as this person for about four years ago had lifted his hand on her mother (meri mummy par hath uthaya tha) but later on the matter was compromised. In December, 2008 her parents had solemnized the marriage of one orphan girl in which Pradeep @ Balli had also 2 of 137 3 FIR No. 80/2009 PS - Mangol Puri participated and after the marriage since December, 2008, Pradeep @ Balli had started teasing her (pareshan karne laga). In February, 2009, the date she does not recollect, in the night at about 3:00 a.m. he after getting opening her room came in her room and her Mummy, Papa and Brother and Sister were also sleeping in that room and he after threatening her, committed 'galat kaam' with her and thereafter went away from there. She had not disclosed about this incident to her parents, Brother and Sister. Thereafter on 06/03/2009 in the night at abut 3:30 a.m., this Pradeep @ Balli again came and after striking her with a danda from the window he made her awake and she, due to fear, opened the door and he took the entry into the house and he pushed her aside and he peeped into the room of her Mummy, Papa which was open and she does not know what she did in that room and thereafter, he came into her room and on that night she was wearing suit and he committed 'galat kaam' with her after threatening and committing 'badtamizi' with her and in that night he committed 'galat kaam' two times with her and thereafter he made her to swallow one tablet and left threatening her not to disclose about the incident to anyone. If she disclosed the incident to anyone, then he will do the worst of her parents (tumhare Mummy, Papa ka bura haal kar dunga) and due to this reason she did not 3 of 137 4 FIR No. 80/2009 PS - Mangol Puri disclose the incident at that time to anyone. On 08/03/2009 in the evening, on the asking of her Mummy, as to why she is perturbed (tum pareshan kyu ho), on which she (prosecutrix) told all about the incident to her mother Sunita and thereafter, her mother disclosed the incident, as was told by her, to her father - Mukesh Kumar Sharma on which her father today made the call at number 100 on which Police had come and she got recorded her statement. Legal action be taken against Pradeep @ Balli to whom she knows previously. Her medical examination be got conducted. She has heard and read her statement and is correct. On the basis of the statement on finding that offences u/s 376/506 IPC appeared to have been committed, the case was got registered and the investigation was taken up by ASI Prem Lata. Site Plan was prepared, statements of the witnesses were recorded. Medical examination of the prosecutrix vide MLC No. 2564 was got conducted from SGM Hospital, Mangol Puri and the sealed exhibits handed over by the Doctor after her medical examination were taken into Police possession. The night suit of the prosecutrix was also taken into Police possession. Counseling of the prosecutrix was also got done from NGO Swan Chetan. Case property was deposited in the Malkhana. Search for the accused was made. Further investigation was transferred to Special Staff, 4 of 137 5 FIR No. 80/2009 PS - Mangol Puri Outer District and was carried out by SI Joginder Singh who during the course of investigation took the bed sheet from the place of incident into Police possession and seized the age proof of the prosecutrix from Kamdhenu School. Statements of the witnesses were recorded u/s 161 Cr.P.C. Despite best efforts accused Pradeep @ Balli could not be arrested and NBWs were obtained against him from the concerned Court. Report of NGO, Swan Chetan was obtained. Further investigation was handed over to Inspector Amardeep Sehgal, who verified the medical papers of MR Hospital annexed with the anticipatory bail application filed by accused Pradeep @ Balli and the same were found to be forged. The photocopies of the Hospital record were taken into Police possession. Accused Pradeep @ Balli was searched but he kept on evading his arrest. On 08/04/2009, accused Pradeep @ Balli was arrested vide DD No. 17 dated 08/04/2009, by SIT, Crime Branch and was produced before the Court on 09/04/2009 on the kalandra u/s 41.1 (a) Cr.P.C. After obtaining permission from the Court concerned, accused Pradeep @ Balli was interrogated and arrested and his Police Custody Remand was obtained. During the course of investigation, on the pointing out of accused Pradeep @ Balli, original documents of MR Hospital were taken into Police possession which accused Pradeep @ Balli disclosed 5 of 137 6 FIR No. 80/2009 PS - Mangol Puri of having got prepared for seeking his anticipatory bail. Car No. DL6CG0079 of accused Pradeep @ Balli was taken into Police possession and the key of this car was seized from Arvind Kumar and from below the driver seat of the said car accused Pradeep @ Balli got recovered one desi katta and on checking of which one live cartridge was recovered from it and the desi katta and the live cartridge were taken into Police possession. During the course of investigation, it was also revealed that Arvind had harboured accused Pradeep @ Balli and had also assisted him in the preparation of forged documents of MR Hospital and had also been moving with him (Uske saath aata jata raha hai). Arvind was interrogated and after finding sufficient evidence against him, he was arrested and during his personal search whatever was found was taken into Police possession vide a memo and his disclosure statement was recorded. Medical examination of accused Pradeep @ Balli was got conducted vide MLC No. 3949 dated 09/04/2009 from the SGM Hospital and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession. Case property was deposited in Malkhana. The exhibits and the desi katta and live cartridge were sent to the FSL for expert opinion. For the preparation of the forged documents of the MR Hospital by accused Pradeep 6 of 137 7 FIR No. 80/2009 PS - Mangol Puri @ Balli, Inspector Amardeep Sehgal separately got registered a case vide FIR No. 100/09 u/s 417/419/511/465/468/471/193/120B IPC at PS - Kanjhawala. After the transfer of Inspector Amardeep Sehgal on 04/06/2009, further investigation was handed over to SI Deepak Malik who during the course of investigation obtained the original MCD certificate of the prosecutrix issued by MCD from the father of the prosecutrix and took into Police possession. The original and carbon copies of the forged Documents of the MR Hospital got prepared by accused Pradeep @ Balli were taken into Police possession by SI Jagdish, IO of FIR No. 100/09, PS - Kanjhawala from SI Deepak Malik.

Upon completion of the necessary further investigation challan u/s 376/506/328 IPC & u/s 25 of Arms Act against accused Pradeep @ Balli and for the offence u/s 212 IPC against accused Arvind Kumar was prepared and was sent to the Court for trial.

2. Since the offences u/s 376/328 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.

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3. Upon committal of the case to the court of Session, after hearing of charge prima facie a case u/s 458/376/328/506II IPC and u/s 25 Arms Act was made out against the accused Pradeep @ Balli and prima facie a case u/s 212 IPC was made out against the accused Arvind Kumar. Charges were framed accordingly on 05/04/2010 which were read over and explained to the accused persons to which they pleaded not guilty and claimed trial.

4. In support of its case prosecution has produced and examined 33 witnesses. PW1 Ms. prosecutrix (name withheld), PW2 Sh. Mukesh Kumar, PW3 Ms. Sunita, PW4 Mangli Devi, PW5 Savita, PW6 Kanta Devi, PW7 HC Jagjeet Singh, PW8 Constable Sunil Kumar, PW9 Constable Manish, PW10 HC Moti Ram, PW11 SI Deepak Malik, PW12 ASI Ramesh Chander, PW13 Dr. Mahipal Singh, CMO, SGM Hospital, Mangolpuri, Delhi, PW14 Mrs. Prem Lata, PW15 Dr. Surekha, Sr. Gynae, SGM Hospital, Mangol Puri, Delhi, PW16 ASI Krishan Singh, PW17 Lady Constable Urmila, PW18 Constable Raj Pal, PW19 Dr. Kuldeep Singh, CMO, BSA Hospital, Delhi, PW20 Ms. Nirmal Bankar, Vice Principal, Govt. CoEd. School, P Block, Sultanpuri, Delhi, PW21 8 of 137 9 FIR No. 80/2009 PS - Mangol Puri Inspector Sanjay Gade, PW22 Sh. Sudhanshu Kaushik, Metropolitan Magistrate, Saket Court, Delhi, PW23 - Constable Rajiv Raghav, PW24 Anil Kumar, Public Health InspectorcumSub Registrar, Registrar of Birth and Death, MCD, West Zone, Delhi, PW25 - B. K. Singh, DCP (North East), Delhi, PW26 Sh. K.C. Varshney, Assistant Director Ballistic FSL, Rohini, Delhi, PW27 ASI Prem Lata, PW28 Inspector Jogender Singh, PW29 HC Surender Singh, PW30 Inspector Puran Pant, PW31 Anil Rana, PW32 SI Jagdish Chander and PW33 Inspector Amardeep Sehgal.

5. In brief the witnessography of the prosecution witnesses is as under : PW1 prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW1/A bearing her signature at point 'A', her statement recorded u/s 164 Cr.P.C Ex. PW1/B signed by her at points 'A', seizure memo of her (prosecutrix) clothes Ex. PW1/C, seizure memo of the cover of the quilt Ex. PW1/D and identified and proved her clothes, Pyjami, Top/Tshirt, panty and quilt cover Ex. P1 to Ex. P4 respectively and country made pistol Ex. P5.

9 of 137 10 FIR No. 80/2009 PS - Mangol Puri PW2 Sh. Mukesh Kumar is the father of the prosecutrix who deposed regarding the incident as was disclosed to him by his wife Sunita (PW3) which was disclosed to her (PW3 - Sunita) by his daughter/prosecutrix and proved the seizure memo of the bed sheet Ex. PW1/A (Be read as PW1/D) and also deposed on the investigational aspects which he joined.

PW3 Ms. Sunita is the mother of the prosecutrix who deposed regarding the incident as was disclosed to her by her daughter/prosecutrix and deposed regarding the investigational aspects which she joined.

PW4 Mangli Devi is the neighbour in the locality where the prosecutrix lives and where the office of accused Pradeep @ Balli is situated, who deposed that accused Pradeep is a property dealer and working in their locality but was turned hostile and did not support the prosecution case. She was also crossexamined by the Learned Addl. PP for the State.

PW5 Savita is the neighbour in the locality where the prosecutrix lives and where the Office of accused Pradeep @ Balli is 10 of 137 11 FIR No. 80/2009 PS - Mangol Puri situated, who deposed that accused Pradeep is a property dealer and working in their locality. His property dealer shop is situated at B15A, Avantika Enclave visible from their house. He was running his property dealer shop in the name of Bajrang Property. He used to call himself as Pradhan of the locality but he was not elected as a Pradhan of the locality. His conduct in general is not good and he was involved in number of cases. On 09/03/2009 Police officials came at the house of prosecutrix and people gathered and they came to know from the mother of prosecutrix that her daughter was raped. In general people were afraid of accused because of his bad conduct. She (PW5) had seen the accused in the locality on 08/03/2009 and earlier also.

PW6 Kanta Devi is the neighbour in the locality where the prosecutrix lives and where the Office of accused Pradeep @ Balli is situated, who deposed that accused Pradeep is a property dealer and working in their locality but was turned hostile and did not support the prosecution case. She was also crossexamined by the Learned Addl. PP for the State.

PW7 HC Jagjeet Singh is the Duty Officer, who deposed that on 11 of 137 12 FIR No. 80/2009 PS - Mangol Puri 09/03/2009, he was posted at PS - Mangol Puri as DD Officer and his duty timing was from 9:00 a.m. to 5:00 p.m. On that day at about 2:20 p.m. Constable Raj Pal brought a rukka sent by W/ASI Prem Lata on the basis of which he got recorded FIR No. 80/09, u/s 376/506 IPC through Computer Operator and after registration he handed over the computerized FIR Copy and original Rukka to Constable Raj Pal to handed over the same to W/ASI Prem Lata. He also made endorsement on rukka at point 'A' vide DD Entry No. 19A regarding registration of FIR and proved the copy of the FIR as Ex. PW7/A. PW8 - Constable Sunil Kumar is the member of the crime team who deposed regarding the arrest of accused Pradeep @ Balli under Section 41.1 (a) Cr.P.C and proved the arrest memo of accused Pradeep @ Balli Ex. PW8/A, his personal search memo Ex. PW8/B both signed by him at point 'A' and proved kalandra u/s 41.1(a) Ex. PW8/C. PW9 Constable Manish who deposed that on 21/04/2009 at the instructions of IO he took one sealed pullanda sealed from MHC(M) PS Mangolpuri vide RC No. 13/21/09 and deposited the same with the FSL 12 of 137 13 FIR No. 80/2009 PS - Mangol Puri Rohini and also took the receipt from the FSL official and deposited the same with the MHC(M) PS Mangolpuri.

PW10 HC Moti Ram is the MHC (M) who deposed that on 09/03/2009, he was posted as MHC(M) at PS - Mangol Puri. On that day ASI Prem Lata of CAW Cell deposited three sealed pullindas sealed with the seal of SGMH, Govt. of NCT of Delhi and one sealed pullinda containing clothes of prosecutrix sealed with the seal of 'PL' and he made entry in register no. 19 at Serial No. 5181. Further on 17/03/2009 one pullinda sealed with the seal of JS was deposited by ASI and he made entry at serial no. 5194 in register no. 19. On 09/04/2009 Inspector Amardeep Sehgal deposited one pullinda and one sample seal, sealed with the seal of SCMH, Govt. of NCT of Delhi regarding which he made entry in register no. 19 at serial no. 5213. On 11/04/2009, Inspector Amardeep Sehgal deposited one pullinda sealed with the seal of 'ADS' alongwith FSL Seal regarding which he made entry in register no. 19 at serial no. 5222 alongwith a car no. DL6CG0079. He also deposited the articles recovered in personal search of accused Arun Kumar (Be read as Arvind Kumar) and he made entry below the above entry no. 5222. On 27/04/2009, five pullindas alongwith 13 of 137 14 FIR No. 80/2009 PS - Mangol Puri three sample seals and FSL Form were sent through Constable Rajiv Raghav, vide RC No. 14/21/09 to FSL, Rohini and all the pullindas alongwith FSL Report were received through Constable Lakshman on 03/12/2009 and he made entries in register no. 19. On 21/04/2009, one pullinda deposited on 11/04/2009 was sent through Constable Mukesh Kumar to FSL, Rohini vide RC No. 13/21/09 and the same was received on 17/09/2009 through Constable Ravel alongwith FSL Result and he made entries in register no. 19 and extract of the above entries is collectively Ex. PW10/A running into seven pages. He also proved the copies of RC No. 13/21/09 & 14/21/09 Ex. PW10/B & Ex. PW10/C respectively and the FSL receipts Ex. PW10/D & Ex. PW10/E respectively.

PW11 SI Deepak Malik is the subsequent IO of the case, who deposed on the investigational aspects and besides proving the other memos also proved the seizure memo of the date of birth certificate (Ex. X1) of prosecutrix collected from her father Sh. Mukesh Kumar Ex. PW2/DA, the certificate Ex. X1, showing date of birth of prosecutrix as 02/08/1992 and also proved the seizure memo of the handing over of the medical papers and certificate of accused Pradeep @ Balli to SI Jagdish (PW32) Ex. PW11/B 14 of 137 15 FIR No. 80/2009 PS - Mangol Puri signed by him at point 'A' and deposed that he procured FSL result from FSL Rohini and filed it in the Court and tendered FSL result in evidence as Ex. PW11/X1 and Ex. PW11/X2.

PW12 ASI Ramesh Chander is the member of the crime team who deposed regarding the arrest of accused Pradeep @ Balli under Section 41.1 (a) Cr.P.C and proved the arrest memo of accused Pradeep @ Balli Ex. PW8/A, his personal search memo Ex. PW8/B, both signed by him at point 'B', his disclosure statement Ex. PW12/A signed by him at point 'A' and kalandra u/s 41.1(a) Cr.P.C. Ex. PW8/C. PW13 Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi, who deposed that on 09/03/2009 he examined patient/prosecutrix (name withheld) vide MLC Ex. PW13/A, signed by him at point 'A' and after preliminary medical examination referred her to S.R. Gynae for further examination and treatment and further deposed that at the time of referring the patient he had also made a note to seal the undergarments by the concerned Senior Gynae. He further deposed that on 09/04/2009 he also examined accused Pradeep @ Balli and found that there is nothing to suggest 15 of 137 16 FIR No. 80/2009 PS - Mangol Puri that patient cannot perform sexual intercourse and proved the MLC Ex. PW13/B signed by him at PointA and further deposed that the blood sample of patient/accused Pradeep @ Balli was sealed and handed over to the IO.

PW14 Mrs. Prem Lata is the neighbour in the locality where the prosecutrix lives and where the office and the flat of accused Pradeep @ Balli are situated who deposed that accused Pradeep was working as the Property Dealer in their locality. His shop was situated at B15, Avantika Enclave and his shop name was Bajrang Properties. He is known to her for the last 8/9 years. Some persons having bad character used to sit in his office/shop as a result they openly had gone (had stopped going) from the side of his shop. Accused Pradeep also taking (used to take) liquor in the company of other associates. The locality people were afraid of him. She further deposed that she came to know that accused Pradeep was involved in a rape case with the prosecutrix (name withheld) who was also residing in a building in front of their house. The accused was also residing in their neighbourhood and he was having a flat. The accused is a bad character of their area and because of that people were fearing of him.

16 of 137 17 FIR No. 80/2009 PS - Mangol Puri PW15 Dr. Surekha, Sr. Gynae, SGM Hospital, Mangolpuri, Delhi, who proved the gynaecological examination as was conducted by Dr. Kirti at Point 'B' on MLC Ex. PW13/A signed by Dr. Kirti at point 'C'.

PW16 ASI Krishan Singh who deposed that on 09/03/2009 DD No. 14A was entrusted to him by the Duty Officer with regard to that at Avantika Enclave at A9A a daughter/girl was raped after showing the revolver to the daughter of caller. He proved the DD No. 14A Ex. PW16/A and further deposed that he alongwith Constable Raj Pal went to the abovesaid spot where prosecutrix (name withheld) and her mother Sunita met him and she affirmed the factum of rape with her daughter. He made a requirement to the Duty Officer for sending some ladies Police official as the matter was of rape. After sometime ASI Prem Lata alongwith lade Constable Urmila came at the spot. He narrated the facts to ASI Prem Lata and spot was handed over to SI Prem Lata and he left the spot leaving behind Constable Raj Pal at the spot.

PW17 Lady Constable Urmila who on 09/03/2009 joined the investigation with W/ASI Prem Lata and deposed on the investigational 17 of 137 18 FIR No. 80/2009 PS - Mangol Puri aspects and besides proving the other memos also proved the seizure memo of the clothes of the prosecutrix Ex. PW1/C signed by her at point 'C', seizure memo of the sealed exhibits handed over by the doctor after the medical examination of the prosecutrix Ex. PW17/A signed by her at point 'A' and identified and proved clothes, Pajami & white colour top of the prosecutrix Ex. P1 & Ex. P2 respectively.

PW18 Constable Raj Pal who on 09/03/2009 joined the investigation with ASI Krishan Pal and deposed on the investigational aspects and deposed that he took the rukka and got the FIR registered and reached at Sanjay Gandhi Hospital and handed over the copy of FIR and original rukka to the IO.

PW19 Dr. Kuldeep Singh, CMO, BSA Hospital, Delhi who deposed that on 08/04/2009 he medically examined accused Pradeep @ Balli vide MLC Ex. PW19/A signed by him at PointA. PW20 Ms. Nirmal Bankar, Vice Principal, Govt. Coed School, PBlock, Sultanpuri, Delhi who deposed that on 16/03/2009 she was working 18 of 137 19 FIR No. 80/2009 PS - Mangol Puri as Vice Principal in Govt. Sarvodaya Kanya Vidhalaya, D - Block, Kamdhenu, Mangol Puri, Delhi and deposed that the certificate of the date of birth (02/08/1992) of the prosecutrix (name withheld) was issued by her to Inspector Special Staff Ex. PW20/A signed by her at point 'A' and also proved the copy of school record Ex. PW20/B running in five pages (colly.).

PW21 Inspector Sanjay Gade who deposed that on 17/03/2009, he was posted as SI at Special Staff, Outer District, Delhi. On that day, he alongwith SI Joginder went to House No. 9A, Avantika Enclave, Mangol Puri where SI Joginder had seized a quilt cover (rajai cover) given by Mukesh Kumar, the father of the prosecutrix, vide seizure memo Ex. PW1/D, signed by him at point 'C', after preparing pullinda and was sealed with the seal of 'JS'. Prosecutrix (name withheld) was also present at that time and identified the quilt cover as Ex. P4.

PW22 Sh. Sudhanshu Kaushik, Metropolitan Magistrate, Saket Court, Delhi, who deposed that he recorded the statement of the prosecutrix u/s 164 Cr.P.C Ex. PW1/B, signed by him at point X1, X2, X3 and X4 and further deposed that he appended the certificate regarding correctness of the 19 of 137 20 FIR No. 80/2009 PS - Mangol Puri recording of the statement of prosecutrix and further deposed that he allowed the request for providing the copy of the statement to the IO on his application Ex. PW22/A signed by him at point 'A'.

PW23 Constable Rajiv Raghav who on 09/04/2009 joined the investigation with Inspector Amarjit Sehgal and SI Puran Pant and deposed on the investigational aspects and besides proving the arrest memo of accused Pradeep @ Balli Ex. PW8/A also proved seizure memo of the sealed exhibits given by the doctor after medical examination of accused Pradeep @ Balli Ex. PW23/A bearing his signature at point 'A'. He further deposed that on 27/04/2009 he took the sealed exhibits from the MHC(M) and deposited the same with the FSL Rohini vide road certificate no. 14/21/09 and FSL officials had given acknowledgment which he had deposited with MHC(M) after returning from the office of FSL. So long as pullindas remained with him nobody has tampered them.

PW24 Anil Kumar, Asstt. Public Health InspectorcumSub Registrar, Registrar of Birth and Death, MCD, West Zone, Delhi, who deposed that the date of birth of girl child/prosecutrix (name withheld) is 20 of 137 21 FIR No. 80/2009 PS - Mangol Puri 02/08/1992, the name of the father of girl child is Mukesh Kumar (PW2) and name of mother is Sunita (PW3) which was registered in their office on 04.08.1992 vide registration no. 837 and also proved the photocopy of the same Ex. PW24/A and further deposed that the relevant entry is encircled in red on S. No. 837. He further deposed that he has been shown the birth certificate Ex. PX1 having the registration no. 837 of dated 04/08/1992. On seeing the same he states that the certificate corelates to the entry at S. No. 837 of the record brought by him, photocopy of which is Ex. PW24/A. PW25 Sh. B. K. Singh, DCP (NorthWest), Delhi who deposed that he gave sanction u/s 39 Arms Act for the prosecution of accused Pradeep @ Balli S/o Sh. Raj Singh, u/s 25 Arms Act and proved the sanction order Ex. PW25/A signed by him at point 'A'.

PW26 Sh. K.C. Varshney, Assistant Director Ballistic FSL, Rohini, Delhi, who deposed that on 21/04/2009 he received one sealed parcel in FSL alongwith forwarding letter which was marked to him for examination and opinion. He examined the contents of the parcel. The country made pistol and the cartridge were 'fire arm' and 'ammunition' as 21 of 137 22 FIR No. 80/2009 PS - Mangol Puri defined in Arms Act and proved the Ballistic report Ex. PW26/A signed by him at Point 'A'.

PW27 ASI Prem Lata is the Investigating Officer (IO) of the case, who deposed that on 09/03/2009, she was posted at CAW Cell, Outer District as ASI. On that day, she was called by the SHO Mangol Puri as a rape case had been happened. On his call, she went to PS - Mangol Puri. From PS - Mangol Puri, she alongwith Lady Constable Urmila went to the spot i.e. A9A, Avantika Enclave, Rohini, Mangol Puri. There ASI Krishan Kumar alongwith Constable Raj Pal met her. Prosecutrix (name withheld) and her mother and father were also found present there. Being the rape case, ASI Krishan Kumar handed over the investigation to her. She recorded the statement of the prosecutrix (name withheld) and the same is Ex. PW1/A, signed by prosecutrix (name withheld) at point 'A' and attested her signature at point 'B'. Under her statement, she made endorsement Ex. PW27/A, signed by her at point 'C' and further deposed that she got the case registered and proved the seizure memo of sealed pullanda and one tube of swab of prosecutrix sealed with the seal of SGMH, NCT of Govt. of Delhi and a urine test tube sealed with the seal of SGMH, NCT of Govt. of Delhi which 22 of 137 23 FIR No. 80/2009 PS - Mangol Puri were given by the concerned doctor of SGM hospital after the medical examination of the prosecutrix Ex. PW17/A, signed by her at point 'B', site plan Ex. PW27/B, signed by her at point 'A', seizure memo of the clothes of the prosecutrix which she was wearing at the time of commission of offence i.e one top & one pajami of white colour which she (prosecutrix) stated to have washed after offence Ex. PW1/C signed by her at point 'C' and identified the clothes of prosecutrix, one Pajami and one Top Ex. P1 and P2 respectively.

PW28 Inspector Jogender Singh is one of the IO of the case who deposed that on 16/03/2009, the investigation of the case was handed over to him and he was posted as SI Special Staff Outer District. On that day, prosecutrix and her parents came to the Special Staff Office and told him that the statement is to be taken u/s 164 Cr.P.C. since he could not find any application in the file therefore he moved another application for recording the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PW28/A signed by him at point A, to the concerned Court. The same was marked to the Learned MM, Sh. Sudhanshu Kaushik as he was Link MM at Rohini Courts, who recorded the statement of prosecutrix u/s 164 Cr.P.C. Ex. PW1/B. He also 23 of 137 24 FIR No. 80/2009 PS - Mangol Puri took the copy of the statement by moving an application Ex. PW22/A signed by him at point 'B' and received the copy of the same after the same was allowed. He also recorded the supplementary statement of the prosecutrix. He further deposed that on 17/03/09, he alongwith SI Sanjay went to the house of prosecutrix i.e, A9/A, Avantika Enclave, where father of the prosecutrix Mukesh Kumar had produced a cover of quilt (rajai) and stated that it is the same cover which had been placed on the charpai in place of bed sheet on the day of incident and affirmed by prosecutrix (name withheld). The same was converted into a pullinda and sealed with the seal of JS and taken into possession vide memo Ex. PW1/D signed by him at point D. and identified the white quilt cover as Ex. P4. He further deposed that he also searched the accused at his house and number of other places but all in vein. On 02/04/2009 on the direction of senior officers, investigation of this case was handed over to Inspector Amardeep Sehgal. He further deposed that on 04/04/2009, he alongwith Inspector Amardeep Sehgal and other staff were going in search of accused at his house and when they were coming, MR Hospital, Karala was on the way and they met concerned doctor namely Dr. Naresh Pratap. On interrogation, he stated that the accused Pradeep @ Balli was remained admitted in the hospital and 24 of 137 25 FIR No. 80/2009 PS - Mangol Puri photocopies of all the connected medical records regarding admission of accused Pradeep in the hospital, were taken into possession by the IO vide memo Ex. PW28/B signed by him at point A. After his transfer, he came to know that with regard to these documents, a separate case was registered against the accused Pradeep at PS Kanjhawala. He further deposed that on 09/04/2009, an information was received from SIT Crime Branch that accused Pradeep Kumar @ Balli was arrested u/s 41.1 (a) Cr.P.C. vide DD no. 17 dated 08.04.09 and he will be produced in the Rohini Court and as he was wanted in this case, he alongwith IO Inspector Amardeep Sehgal, SI Puran Pant and other staff went to the Court. They moved an application to interrogate and arrest of the accused Pradeep and after due permission by the court, accused was interrogated formally. He was arrested vide arrest memo Ex. PW28/C by the IO, signed by him at point A. His disclosure statement was recorded by the IO and the same is Ex. PW28/D signed by him at point A. IO moved an application for obtaining PC remand of the accused and Learned MM was pleased to give three days PC remand of accused Pradeep @ Balli. Accused was taken for his medical examination to SGM hospital and after medical examination of accused, concerned doctor has given one sealed pulinda sealed with the seal of SGMH, Govt. of NCT of Delhi and a 25 of 137 26 FIR No. 80/2009 PS - Mangol Puri sample seal of the same specimen and the same were taken into possession by the IO vide memo Ex. PW23/A signed by him at point B. Accused was interrogated on 10/04/09 but he has not revealed any information. He was interrogated again and his disclosure statement was recorded again by the IO. Same is Ex. PW28/E, signed by him at point A. He further deposed that on 11/04/2009, accused taken him, HC Surender and IO Amardeep Sehgal to MR hospital, Kanjhawala Road, Karala and he pointed out the hospital where he got prepared the forged documents regarding his admission from dated 04/03/2009 to 08/03/2009. Dr. Naresh Pratap Singh handed over the related records to them and the same was taken into police possession vide memo Ex. PW28/F signed by him at point A. Thereafter, accused Pradeep @ Balli took them to house no. 607, Sector 6,. Pocket A, Narela. In front of the said house, one vehicle i.e, Opel Astra Car bearing no. DL6CG0079 was parked and from that car, the recovery of desi katta was got made by accused Pradeep @ Balli from the driver seat. The key of the said car was with accused Arvind who was present there and he had handed over the key of the said car to the IO. Katta was opened and it contained a live cartridge. Sketch of the country made katta and live cartridge was prepared and the same is Ex. PW28/G, signed by him at point A. Katta and live cartridges 26 of 137 27 FIR No. 80/2009 PS - Mangol Puri were converted into a pullinda by the IO and sealed with the seal of ADS and FSL form was also filled up and seal of ADS was put on it and both were taken into possession vide memo Ex. PW28/H signed by him at point A. seal after used was handed over to him. The said Opel Astra Car was also taken into possession vide memo Ex. PW28/J by the IO, signed by him at point A. Accused Arvind was formally interrogated and after interrogation, he was arrested vide arrest memo Ex. PW28/K, signed by him at point A. His personal search was also conducted vide memo Ex. PW28/L, signed by him at point A. His disclosure statement was also recorded which is Ex. PW28/M, signed by him at point A. Thereafter, they all returned to PS Mangol Puri. Case property was deposited with the MHC(M) and both the accused persons were sent to the lockup. He further deposed that on 16/03/2009, Constable Narender was sent to Kamdhenu School, Mangol Puri with the application addressed to the Principal regarding the date of birth of prosecutrix (name withheld), on which the Principal concerned had given a letter of the date of birth of the Prosecutrix. The carbon copy of request letter / application is Ex. PW28/N signed by him at point A and the letter given by the Principal regarding the date of birth of the prosecutrix is already exhibited as Ex. PW20/A and identified the country made pistol as Ex. P5 27 of 137 28 FIR No. 80/2009 PS - Mangol Puri and test fired cartridge as Ex. PX and the Opel Astra Car bearing No. DL6CG0079 Ex. P6.

PW29 HC Surender Singh who on 11/04/2009 joined the investigation with SI Joginder, Inspector Amardeep Sehgal, SI Jasmohinder Choudhary etc. and deposed on the investigational aspects and also proved the seizure memo of the original documents relating to the admission of accused Pradeep @ Balli Ex. PW28/F, signed by him at point 'A', sketch of katta and live cartridge Ex. PW28/G, signed by him at point 'B', seizure memo of katta and live cartridge Ex. PW28/H, signed by him at point 'A', seizure memo of Opel Astra Car No. DL6CG0079 Ex. PW28/J, arrest memo of accused Arvind Ex. PW28/K, his personal search memo Ex. PW28/L, both signed by him at point 'B', identified and proved desi katta as Ex. P5, test fired cartridge as Ex. PX and Opel Astra Car as Ex. P6.

PW30 Inspector Puran Pant who on 09/04/2009 joined the investigation with Inspector Amardeep Sehgal, SI Joginder, Ct. Rajeev Raghav etc. and deposed on the investigational aspects and also proved the arrest memo of accused Pradeep @ Balli Ex. PW28/C, his disclosure 28 of 137 29 FIR No. 80/2009 PS - Mangol Puri statement Ex. PW28/D both signed by him at point 'B' and seizure memo of the sealed exhibits given by the doctor after medical examination of accused Pradeep @ Balli Ex. PW23/A signed by him at point 'C'.

PW31 Anil Rana who deposed that in the year, 2009 he was residing at village Siraspur at House No. 176, Village Siras Pur, Delhi - 42. He never resided in Delhi. He is working as a driver. He knows accused Pradeep @ Balli whose sister has married with a boy of their Siraspur Village. He has never given statement to the Police. Once Police came to their house in search of accused Pradeep @ Balli in the village and his brother Anil was taken to the Police Station. When he returned to his house from Jaipur tour on the same night then he went to the Police Station at about 1:00 a.m. night. Police inquired from him and he stated to them that he knew accused Pradeep @ Balli being his relative. Police have taken his signatures after recording his statement on some papers. He is not aware what was written in those papers. Police was searching accused Pradeep @ Balli as he was involving (involved) in a criminal case. He does not know accused Arvind and he never met him (PW31). He was turned hostile and did not support the prosecution case and was also crossexamined by the Learned 29 of 137 30 FIR No. 80/2009 PS - Mangol Puri Addl. PP for the State.

PW32 - SI Jagdish Chander who deposed that in this case an interim bail application was moved by the accused Pradeep Balli on the medical ground in which he had stated that he was admitted in MR Road main Kanjhawala Road, Karala, Delhi and was treated from 04/03/2009 to 08/03/2009. Later on, on verification the medical papers were found forged by the IO SI Deepak Malik and case was also registered by Inspector Amardeep Sehgal vide FIR No. 100/09 under section 417/419/511/465/468/471/193/120B IPC, Police Station - Kanjhawala for using the forged medical papers. IO of the present case had collected the documents like admission and discharged slip, patient record, treatment chart and Hospital bills etc. on 11/04/2009 from MR Hospital, Kanjhawala pertaining to the record of his alleged admission in the Hospital during the period 04/03/2009 to 08/03/2009. The above documents were handed over to him as he was Investigating Officer in case FIR No. 100/09 vide memo already exhibited as Ex. PW11/B which bears his signature at point 'B' on 11/06/2009. In the investigation of case FIR No. 100/09 he had also collected the original registers of the admission of accused Pradeep Balli in 30 of 137 31 FIR No. 80/2009 PS - Mangol Puri MR Hospital from 04/03/2009 to 08/03/2009. He had also collected the specimen hand writing of accused Pradeep Balli and alongwith the seized record on 11/06/2009 in this case was sent to FSL, Rohini for opinion. The seized registers were deposited with concerned MHC(M) in case FIR No. 100/09.

PW33 - Inspector Amardeep Sehgal is one of the Investigating Officer (IO) of the case who deposed that in the month of March, 2009, he was posted as Inspector in Special Staff, Outer District, Rohini, Delhi. On 16/03/2009, investigation of this case was marked to SI Joginder Singh for investigation of this case. On 02/04/2009 as per the order from the Senior Officers of the Outer District, he took up the investigation of this case. He further deposed that accused had moved an application for interim anticipatory bail before the Hon'ble High Court of Delhi on the basis of medical as he was admitted in MR Hospital, Karala, Delhi from 04/03/2009 to 08/03/2009. He further deposed that he collected the photocopies of admission and discharged, bill registers, entries in register by the patient in the Hospital for treatment from 30/05/2008 to 17/10/2008 and photocopies of the other relevant entries, photocopies newly created fabricated register 31 of 137 32 FIR No. 80/2009 PS - Mangol Puri record in respect of his admission w.e.f. 30/05/2008 to 31/03/2009 and he seized them on 04/04/2009 vide Ex. PW28/B signed by him at point 'B' and he also filed the status report in the Hon'ble High Court of Delhi on 07/04/2009. He further deposed that on 08/04/2009, SIT Crime Branch Officials had arrested the accused Pradeep @ Balli u/s 41.1(a) Cr.P.C. vide DD No. 17 and information was passed on to Special Staff in regard to producing him in the concerned Court. On 09/04/2009, he moved an application requesting to arrest and interrogation of accused Pradeep Bali Ex. PW33/A signed by him at point 'A'. After the permission of the Court was granted, accused was arrested in this case formally vide arrest memo Ex. PW28/C signed by him at point 'C'. He was interrogated and his disclosure statement Ex. PW28/D was recorded signed by him at point 'C'. Police Custody Remand was also obtained for three days from the concerned Court. Accused was got medically examined from SGM Hospital and on the MLC it was mentioned that pubic hair were shaved two days before examination as accused Pradeep @ Balli had told himself. After medical examination, concerned Doctor had given blood sample of accused and a sample seal to SI Joginder who had handed over the same to him and he seized vide memo Ex. PW23/A signed by him at point 'D'. Accused Pradeep had disclosed during 32 of 137 33 FIR No. 80/2009 PS - Mangol Puri Police Custody Remand that he can get recovered the forged documents prepared for his admission in MR Hospital 04/03/2009 to 08/03/2009 from MR Hospital and also disclosed that he can get recovered the weapon of offence from his Opel Astra Car No. DL6CG0079 and his further disclosure statement was also recorded which is Ex. PW28/E signed by him at point 'B'. He further deposed that on 11/04/2009 accused Pradeep led them to MR Hospital, Karala and got recovered original documents in respect of his admission in the Hospital w.e.f. 04/03/2009 to 08/03/2009. the said documents were seized. The said documents were produced by Dr. Naresh Pratap Singh who was present in the Hospital. Seizure memo of the documents is Ex. PW28/F signed by him at point 'C'. In the discharge slip the signature of coaccused Arvind were also mentioned. The concerned document seized on 11/04/2009 i.e. Admission and Discharge Sheet and other documents as per recovery memo Ex. PW28/F are Ex. PW33/P1 (running into nine pages and whose originals are in case FIR No. 100/09 PS

- Kanjhawala) and the documents containing signatures of accused Arvind i.e. Admission and Discharge Sheet of accused Pradeep dated 04/03/2009. He further deposed that thereafter accused Pradeep led the Police party towards flat no. 607, Pocket - A, Sector - 6, Narela and pointed out towards 33 of 137 34 FIR No. 80/2009 PS - Mangol Puri an Opel Astra Car No. DL6CG0079 of grey colour and got recovered a Country made pistol (katta) under the driver seat used for threatening prosecutrix. The key of the vehicle was produced by Arvind. Same was measured and the sketch of the pistol was prepared and also a cartridge inside the pistol Ex. PW28/G signed by him at point 'C'. The pullinda of the cartridge and pistol was prepared and sealed with the seal of 'ADS' and also filled up the FSL Form and the same was taken into possession vide pointing out and recovery memo Ex. PW28/H, signed by him at point 'C'. Opel Astra Car No. DL6CG0079 of Grey colour was also taken into possession vide memo Ex. PW28/J, signed by him at point 'C'. Seal after use was handed over to SI Joginder. Accused Arvind was present at the spot was arrested vide arrest memo Ex. PW28/K, signed by him at point 'C' and his personal search was also conducted vide memo Ex. PW28/L, signed by him at point 'C'. Both accused were sent to JC as per procedure. He further deposed that on 21/04/2009, exhibits of country made pistol was sent to FSL through Constable Manish and on 27/04/2009 the other exhibits of this case were sent to FSL through Constable Rajeev Raghav. He further deposed that on 30/05/2009, as accused Pradeep @ Balli has taken the plea of alibi in the Hon'ble High Court and Learned Sessions Court during his anticipatory bail 34 of 137 35 FIR No. 80/2009 PS - Mangol Puri but he was (not) found admitted on MR Hospital, Kanjhawala Road, Karala, Delhi from 04/03/2009 to 08/03/2009 as such he prepared a rukka Ex. PW33/B and the case was registered at PS - Kanjhawala u/s 417/511/465/471/193/120B IPC by the FIR No. 100/09 and the investigation was handed over to another Police official. Copy of FIR No. 100/09 is Ex. PW33/C. He also recorded the statements of witnesses. Thereafter he was transferred and the file was deposited with MHC(R) and identified the Desi Katta as Ex. P5 and test fired cartridge as Ex. PX and identified the Opel Astra Car No. DL6CG0079 of Grey colour as Ex. P6.

The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.

6. Statements of accused Pradeep @ Balli and Arvind Kumar were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication. They opted to lead defence evidence and in their defence examined only one defence witness namely DW1 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd., D184, Okhla Industrial Area, PhaseI, New Delhi.

35 of 137 36 FIR No. 80/2009 PS - Mangol Puri DW1 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd., D184, Okhla Industrial Area, PhaseI, New Delhi who deposed that he has brought the summoned record pertaining to mobile No. 9810003176 and 981053176. He has brought the call detail record of the above said mobile numbers for the period from 06/03/2009 till 12/03/2009. The attested copy of the call detail record pertaining to mobile no. 9810003176 is Ex. DW1/A. The attested copy of the call detail record pertaining to mobile no. 981053176 is Ex. DW1/B. Certificate U/s 65B of Indian Evidence Act for the aforesaid mobile numbers is Ex. DW1/C. He has also brought the Cell I.D. Chart for the aforesaid mobile numbers and the same is Ex. DW1/D (running in two pages). He has also brought the attested copy of customer application form of mobile no. 9810053176 in the name of Pradeep Kumar S/o Raj Singh is Ex. DW1/E(OSR). He has also brought the attested copy of customer application form of mobile no. 9810003176 in the name of Shravan Kumar S/o Satish Kumar is Ex. DW1/F(OSR).

7. Learned Counsel for accused submitted that the statement of PW1

- prosecutrix is self contradictory and is not reliable nor inspires confidence. The way she has deposed the entry of accused at the odd hours of night at 36 of 137 37 FIR No. 80/2009 PS - Mangol Puri 3:00/3:30 a.m. on both the occasions i.e. in the month of February, 2009 and on 06/03/2009 is highly improbable under the circumstances she deposed because firstly, at the first occasion she without verifying the identity of the person at odd hours of the night opened the door which she should not have. Even if she opened the door she was threatened by accused by showing/putting revolver upon her shoulder, the accused had gone alone inside the room of her parents while she was left behind alone, there was sufficient time for her to go out of the room and raise voice and save herself, Secondly, it is highly improbable that a person having lust for sex would cut the hand of the prosecutrix from several places and lick her blood instead of fulfilling his lust for sex.

Thirdly, when the accused gave cut marks, the prosecutrix would have naturally suffered pain and cried and in those circumstances it was but natural for her parents to make them awake but they did not wake up, Fourthly, when she admitted in her crossexamination that the lights were switched off so long the accused remained in her room, the statement of PW1 regarding that the accused forced her to write letter is highly improbable because it was not possible to write letter in the darkness of the night.

37 of 137 38 FIR No. 80/2009 PS - Mangol Puri Learned Counsel for accused further submitted that the prosecutrix did not disclose the incident of rape upon her of February, 2009 to anyone including her mother, brother or sister or even after the first incident of rape, she continued to sleep in her room and also continued to go to her School. PW2 and PW3 (her parents also admitted) they they were not told by PW1 about the rape incident of February, 2009. Disclosing this fact after one month to the Police is fatal to the prosecution.

Learned Counsel for accused further submitted that the prosecutrix i.e. PW1 - has not stated in her statement to Police that the accused threatened her with any revolver or pistol.

Learned Counsel for accused further submitted that even otherwise if some one knocks the door of some house at the odd hours of night the old person particularly the parents remain generally more vigilant and alert instead of the young children and they first woke up but in this case they did not woke up when their room was just adjoining nor they woke up even after hearing some kind of whisper while committing rape. PW1 has not shown any resistance, nor informed her parents and remained silent and even continued to go to her School till 08/03/2009 shows the conduct of PW1, which is highly questionable and thus her statement does not inspire 38 of 137 39 FIR No. 80/2009 PS - Mangol Puri confidence. Her statement before Police and also in Court is full of self contradictions and there is no other evidence in her favour. No one knows what was the true story. PW1 cannot be believed at all under these circumstances.

Learned Counsel for accused further submitted that similar circumstances have been stated by PW1 in her statement regarding the second incident of rape of dated 06/03/2009. The circumstances narrated by PW1 are even more illusionary. The act of accused of first removing the cooler and thereafter removing the window panes and then striking PW1 with danda in order to awake her is a highly improbable story because by hearing such kind of noise of removing the cooler and window panes from the window which was just adjoining to the room of her parents would have naturally awaken her parents. Even at the second time, PW1 neither tried to run away nor raised voice nor resisted despite opportunities available to her. The statement of the prosecutrix under these circumstances cannot be believed on the basis of facts and circumstances of the case. The statement of prosecutrix (PW1) does not inspire confidence nor the same is trustworthy.

Learned Counsel for accused further submitted that in her cross 39 of 137 40 FIR No. 80/2009 PS - Mangol Puri examination PW1 - prosecutrix has been confronted with her statement given to Police and in the Court at the most crucial points from A to A1 to J to J1. It shows that the prosecutrix made deliberate improvement on material points. In fact accused had never gone in the room of the prosecutrix/PW1 either in the month of February, 2009 or on 06/03/2009. Contradictory statements of PW1 did not make her a reliable witness or to believe her.

Learned Counsel for accused further submitted that PW1 - prosecutrix has introduced the story of revolver in her statement u/s 64 Cr.P.C. whereas she has not stated in her statement given to Police that any threat was given to her by the accused by showing revolver. She has been confronted with her statement at various material points and as such her statement in Court becomes doubtful.

Learned Counsel for accused further submitted that in her cross examination PW1 - prosecutrix has admitted that the letters Ex. PW1/DD, Ex. PW1/DE and Ex. PW1/DF are in her handwriting however she voluntarily stated that those letters were got written by accused from her under force. The version/language of these letters itself speaks that letter Ex PW1/DD cannot be got written after giving threats by accused as alleged. The language and narration in this letter is so natural and spontaneous that it 40 of 137 41 FIR No. 80/2009 PS - Mangol Puri absolutely speaks itself about the natural view of the executant and further proved that the same cannot be the result of any writing under threat or force. Similarly letters Ex. PW1/DE and Ex. PW1/DF cannot be said to have been got written by accused under any threat. The letter Ex. PW1/DD is such a lengthy letter and written so spontaneous and in legible handwriting that it cannot be possible to write in the darkness of the night. Thus the plea of PW1 is totally false and is not reliable.

Learned Counsel for accused further submitted that the PW1 - prosecutrix also admitted three photographs of her room Ex. PW1/DA, Ex. PW1/DB and Ex. PW1/DC. From the photographs, the cooler installed in window and the iron gate proves that it was not possible for the accused to remove the cooler without any voice and in such a silent manner that no voice is heard in the adjoining room.

Learned Counsel for accused further submitted that at the time of the first incident of rape in February, 2009, PW1 - prosecutrix deposed that after hearing the noise she opened the wooden door and identified the accused who was standing out and then she opened the iron gate. Thus no force or threat used by accused has been alleged by PW1. Even on second time i.e. on 06/03/2009, PW1 voluntarily opened the door and thus neither 41 of 137 42 FIR No. 80/2009 PS - Mangol Puri any force was used nor any threat was given by the accused.

Learned Counsel for accused further submitted that there are broad probabilities and possibilities which are to be looked into by this Court. There were ample opportunity available to PW1 not to allow the accused to enter in her room and if the accused entered to run away outside the room and to show resistance but PW1 did not avail the same intentionally and deliberately. There was no fear nor any kind of threat even given to the prosecutrix.

Learned Counsel for accused further submitted that the prosecutrix (PW1) and PW3 (mother of PW1) have admitted that the rented house wherein PW1 has been living with her parents (PW2 Sh. Mukesh Kumar, PW3 Ms. Sunita) was got let out to them by the accused and further admitted that they promised to vacate the same firstly in December, 2008 and thereafter by March, 2009 but they could not vacate the same. Learned Counsel submitted that the accused has been falsely implicated as the accused was putting pressure upon PW2 and PW3 to vacate the house.

Learned Counsel for accused further submitted that PW2 Sh. Mukesh Kumar and PW3 Ms. Sunita, have admitted that their daughter PW1 - prosecutrix had not informed them about the incident of rape with her 42 of 137 43 FIR No. 80/2009 PS - Mangol Puri in the month of February, 2009 till 08/03/2009. PW2 has denied having made any telephone call from his phone 9811762953 to the mobile telephone of accused i.e. 9810003176 and 9810053176 on 7, 8, 9,10, 11/03/2009 but in CDR Ex. DW1/A there are telephone calls made by PW2 from his telephone to the mobile telephone of accused. This fact proves that PW2 is not a reliable witness and he is telling lie.

Learned Counsel for accused further submitted that the age of the PW1 - prosecutrix is more than 16 years as per the case of prosecution on the date of occurrence of the offence. Her date of birth is 02/08/1992 as per document Ex. PX.

Learned Counsel for accused further submitted that from the statement of PW1 - prosecutrix on carefully examining the possibility of consent which was not only present in the present case but almost proved and probabilised by the circumstances, which appear from the prosecutrix evidence itself, this Court is to consider the striking circumstances which demolish the prosecution case. This Court also to examine the possibility of consent even if the same was not pleaded by the accused.

Learned Counsel for accused further submitted that in a criminal case the accused is not bound by his pleading and it is open to accused to 43 of 137 44 FIR No. 80/2009 PS - Mangol Puri prove his defence even from the admission made by the prosecution witnesses or the circumstances proved in the case. There are telling circumstances and glaring errors in the prosecution case, which are necessary to reject the prosecution case.

Learned Counsel for accused further submitted that there is no medical evidence in the present case. PW1 was medically examined by Dr. Kirti of SGMH who was a Sr. Gynae on dated 09/03/2009. To prove the MLC prepared and signed by Dr. Kirti has been proved by PW15 Dr. Surekha who has identified the signatures of Dr. Kirti on MLC prepared by Dr. Kirti having her signature at points 'B' and 'C' on MLC Ex. PW13/A. In her crossexamination PW15 admitted that on 09/03/2009 she had not even joined SGMH and nor she saw Dr. Kirti writing or signing on 09/03/2009. PW15 has stated that she joined the services in SGMH on dated 17/04/2009. Thus the medical report of PW1 remained unproved. As such there is no medical evidence on record. Even otherwise there is no other medical evidence on record which proved the commission of rape upon the prosecutrix. In the absence of medical evidence proving the commission of rape, the case of the prosecution stands demolished in toto. Even as per the medical report, the prosecutrix was used to sexual intercourse as her hymen 44 of 137 45 FIR No. 80/2009 PS - Mangol Puri was found absent. The testimony of PW1 does not inspire any confidence.

Learned Counsel for accused further submitted that nothing has been recovered pursuant to the disclosure statement of the accused Pradeep @ Balli. The medical documents relating to the admission of the accused in M. R. Hospital w.e.f. 04/03/2009 to 08/03/2009 have not been recovered at the instance of the accused. The documents whatsoever were proved were given by Dr. Naresh Pratap of M. R. Hospital and not by the accused.

Learned Counsel for accused further submitted that the alleged country made revolver which was allegedly recovered has been planted upon the accused. The alleged weapon was allegedly got recovered from the Opel Astra car bearing no. DL6CG0079 found parked in the open place near flat no. 607, Pocket - A, Sector - 6, Narela, Delhi which was opened with the key given by coaccused Arvind.

Learned Counsel for accused further submitted that Opel Car does not belong to the accused nor the accused took the Police at Sector - 6, Narela nor got made any alleged recovery. PW33 Inspector Amardeep Sehgal did not make any investigation to trace out the registered owner of that car nor PW33 joined any public person while effecting the recovery particularly when it was the day time and there were the residents in the flats.

45 of 137 46 FIR No. 80/2009 PS - Mangol Puri PW33 has also not verified as to who was the owner of the flat no. 607, Pocket - A, Sector - 6, Narela in order to link the accused.

Learned Counsel for accused further submitted that PW33 Inspector Amardeep Sehgal even has not investigated the case properly. He has failed to examine the landlord/owner of the flat which was got let out by accused to PW2 and the allegations of nonpayment of rent and not vacating the flat despite making promise and the fact that the father of the prosecutrix PW1 was being pressurized by the accused to vacate the tenanted premises.

Learned Counsel for accused further submitted that PW33 Inspector Amardeep Sehgal has not collected the CDR of the mobile telephone of the accused from the crime branch as the crime branch had put the telephone of the accused on surveillance and had collected the CDR from the concerned department, which has been proved by the accused in his defence evidence as DW1/A (colly.) and Ex. DW1/B. Learned Counsel for accused further submitted that at the alleged time of commission of offence of rape on dated 06/03/2009 at 3:30 to 4:00 a.m. the accused was not present in the house of the prosecutrix. The accused was talking to his sister at her telephone no. 61286655767 in Australia from his mobile telephone no. 9810053176 at 3:20 a.m. on dated 46 of 137 47 FIR No. 80/2009 PS - Mangol Puri 07/03/2009 and had talked for 1783 seconds i.e. for 29 minutes. It proved that the accused remained busy in talking to his sister till 3:50 a.m. and such long conversation cannot be possible from the room of the prosecutrix. Moreover, the location of the accused at that relevant time was not at the house of PW1 rather his location was village Mangol Pur Kalan, Delhi and not at Avantika where the house of PW1 is situated.

Learned Counsel for accused further submitted that the statement of PW2 - Mukesh Kumar is also false who has stated that he never called from his mobile telephone number 9811762953 to the accused because PW2 had talked to the accused on his mobile telephone no. 9810053176 on dated 09/03/2009 on dated 10/03/2009 (three times) on dated 11/03/2009 as revealed from the CDR Ex. DW1/A at pages 6, 8 and 9.

Learned Counsel for accused further submitted that the medical evidence is of particularly no value nor the same has been proved as per law. In the absence of medical evidence no offence of rape is proved. The evidence is not sufficient to bring home the guilt of the accused. It would be unsafe to act on the sole testimony of PW1 as she is not reliable witness. Even in the absence of medical report of vaginal and cervical swabs, it cannot be said that the accused had committed sexual intercourse.

47 of 137 48 FIR No. 80/2009 PS - Mangol Puri Learned Counsel for accused further submitted that the prosecution story is not at all reliable. The prosecutrix/PW1 is a young and matured girl. She herself without putting any question or confronting the accused about his presence at her room at the odd hours of night on both the occasions i.e. in the month of February, 2009 and on 06/03/2009 and even after identifying the accused has opened the door, inspite of many opportunities, she did not attempt to escape nor she made a cry. Her statement before the Police and also in Court is full of selfcontradiction. There is the shelter of loss of his memory. No justification was given by PW33 for recording the second disclosure statement of accused. The false implication of the accused in an arms act cannot be ruled out.

Learned Counsel for accused further submitted that the prosecution has not led any evidence against accused Arvind to prove the offence alleged to have been committed by him u/s 212 of IPC. One PW - Anil Rana who is examined as PW31 has not supported the case and has been declared hostile. There is no other evidence on record against the accused Arvind.

Learned Counsel for accused further submitted that in nutshell keeping in view the normal conduct of PW1, in the circumstances examined 48 of 137 49 FIR No. 80/2009 PS - Mangol Puri above like not saving herself by running out of her room inspite of opportunities, not showing any resistance, not telling about the incident of rape to anyone for about one month, writing love letters which speaks about the deep love and affection of PW1 for accused, her act of washing her clothes even immediately after the alleged offence raise serious suspicion about the truthfulness of the prosecution version that the accused had sexual intercourse with the prosecutrix under threat. Such circumstances and the like tend to strengthen the defence.

Learned Counsel for the accused further submitted that in view of the above submissions, the prosecution has failed to prove the case beyond reasonable doubt against the accused persons thus both the accused are entitled for acquittal and prayed that they be acquitted, in the interest of justice.

Learned Counsel for the accused referred to cases and are reported as 'Surjan and Ors. Vs. State of M.P.', AIR 2002 SC 476, 'Dilip and Anr. Vs. State of M.P.', AIR 2001 SC 3049, 'Ajit Kumar Vs. State', 1997(@) C.C. Cases 283 (HC), 'Umesh Kumar Vs. State', 1997(2) C.C. Cases 287 (HC), 'Ajit Kumar Vs. State', 1998 [1] JCC 36 [Delhi], 'Satyavir Singh Rathi Vs. State (through CBI)', 1998 [1] JCC 39 [Delhi], 'Chidda Ram Vs. State', 49 of 137 50 FIR No. 80/2009 PS - Mangol Puri 1992 (2) C.C. Cases 225 (HC), 'Diwan Singh Vs. The State', 1998 [2] JCC [Delhi] 122, 'Madhuresh Vs. C.B.I.', 1998 [2] JCC [Delhi] 127, 'Hari Chand Vs. State', 2000[1] JCC [Delhi] 46, 'Ashok Kumar Jha Vs. State of Bihar', 2002 [3] JCC 2004, 'Vishwajit Shankar Khavanekar Vs. State of Maharashtra', 2002 [3] JCC 2007 and 'Pratap Mishra & Ors. Vs. State of Orissa', AIR 1977 SC 1307.

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. R. S. Mahla, Learned Counsel for the accused and have also carefully perused the entire record.

10. The charge for the offences u/s 458/376/328/506(II) IPC and Section 25 Arms Act against the accused Pradeep @ Balli is, that in the 50 of 137 51 FIR No. 80/2009 PS - Mangol Puri month of February, 2009 he committed the offence of house breaking by night by entering into House No. A9A, Avantika Enclave, Mangol Puri, Delhi which was in possession of parents of prosecutrix and was being used as a human dwelling, by threatening the prosecutrix with assault with the help of a country made pistol having made preparation for causing hurt to the prosecutrix and that in the month of February, 2009 and later on at about 3:30 a.m. on 06/03/2009, at House No. A9A, Avantika Enclave, Mangol Puri, Delhi he committed rape on the prosecutrix and that on the abovesaid date, time and place he sprinkled some poison or stupefying thing on the parents of the prosecutrix while they were sleeping with intent to commit or to facilitate the commission of an offence upon the prosecutrix and that on the abovesaid date, time and place he criminally intimidated the prosecutrix by threatening to kill her parents, her brother and her sister, with intent to cause alarm to her and that, on 11/04/2009 he got recovered one country made pistol loaded with one live cartridge from a car bearing No. DL6CG0079 belonging to him which was parked in front of Flat No. 607, Pocket - A, Sector - 6, Narela.

The charge for the offence u/s 212 IPC against accused Arvind Kumar is, that on 06/03/2009 accused Pradeep @ Balli had committed rape 51 of 137 52 FIR No. 80/2009 PS - Mangol Puri and other offences on the prosecutrix and he (Arvind Kumar) on 09/03/2009 onwards had harboured accused Pradeep @ Balli at his village Barota, District Sonipat, Haryana and whereafter at flat of Dharamvir, situated at Pocket - A, Sector - 6, Janta Flat, Narela and also at a flat situated at Sector

- 16, Rohini, Delhi and also provided food etc. to him knowing that he is an accused.

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. PW1 - Prosecutrix, during her statement u/s 164 Cr.P.C. Ex. PW1/B recorded on 16/03/2009 has stated her age around 16 years.

PW3 - Ms. Sunita, the mother of the prosecutrix, in her examinationinchief has deposed that her daughter, prosecutrix was 16 years of age at the time of incident and her date of birth is 02/08/1992.

52 of 137 53 FIR No. 80/2009 PS - Mangol Puri PW2 - Mukesh Kumar, the father of the prosecutrix during his crossexamination recorded on 30/04/2011 has deposed that :

"My daughter prosecutrix (name withheld) was born on 02/08/1992. I had given the birth certificate issued by the MCD to the police. Same is (was) taken into possession vide memo EX PW2/DA and the certificate is Ex. PX (also Exhibit X1 in the examinationinchief of PW11 - SI Deepak Malik) mentioning the date of birth of my daughter as 02/08/1992. EX PX is the original document issued by the MCD office. It is correct that document Ex. PX is issued on dated 05/06/2009. It is wrong to suggest that the document Ex. PX is (not) the copy of the original birth certificate issued at the time of the birth of my daughter. It is correct that I applied for issuance of the birth certificate of my daughter in the office of MCD when the police asked me for the birth certificate of my daughter and thereafter the birth certificate Ex. PX was issued to me by MCD. I had taken the certificate Ex. PX for the first time. I have admitted my daughter for the first time at J. S. S. Public School at Budh Vihar. I had mentioned the date of birth of my daughter on 02/08/1992 at the time of her admission. It is wrong to suggest that at the of first admission of my daughter I had (not) mentioned her date of month (birth) as 02/08/1991. It is wrong to suggest that I have manipulated to get this birth certificate Ex. PX By giving false affidavit regarding the date of birth of my daughter in order to show the age of my daughter less than 16 years of age."

PW20 - Ms. Nirmal Banker, Vice Principal, Govt. Co.Ed. School, P - Block, Sultan Puri, Delhi proved the certificate of the date of birth (02/08/1992) of the prosecutrix as per the record of the School Ex.

53 of 137 54 FIR No. 80/2009 PS - Mangol Puri PW20/A signed by her at point 'A' and also proved the copy of the School record (running in five pages) Ex. PW20/B (colly.).

The perusal of the certificate Ex. PW20/A shows the date of birth of the prosecutrix as 02/08/1992.

PW24 Anil Kumar, Asstt. Public Health InspectorcumSub Registrar, Registrar of Birth and Death, MCD, West Zone, Delhi, who deposed that the date of birth of girl child/prosecutrix (name withheld) is 02/08/1992, the name of the father of girl child is Mukesh Kumar (PW2) and name of mother is Sunita (PW3) which was registered in their office on 04.08.1992 vide registration no. 837 and also proved the photocopy of the same Ex. PW24/A and further deposed that the relevant entry is encircled in red on S. No. 837. He further deposed that he has been shown the birth certificate Ex. PX1 having the registration no. 837 of dated 04/08/1992. On seeing the same he states that the certificate corelates to the entry at S. No. 837 of the record brought by him, photocopy of which is Ex. PW24/A. There is nothing in the crossexamination of PW3 - Ms. Sunita, PW20 - Ms. Nirmal Banker and PW24 - Anil Kumar so as to impeach their creditworthiness.

In the circumstances, it stands proved on record that the date of 54 of 137 55 FIR No. 80/2009 PS - Mangol Puri birth of the prosecutrix is 02/08/1992. Undisputably, no evidence to the contrary has been proved or produced by the accused on the record.

As the date of the alleged incident is 06/03/2009 and the date of birth of the prosecutrix is 02/08/1992, on simple arithmetical calculation, the age of the prosecutrix comes to 16 years seven months and four days as on the date of alleged incident on 06/03/2009.

In the circumstances, it stands established on the record that PW1 - Prosecutrix was aged 16 years seven months and four days on the date of the alleged incident on 06/03/2009.

MEDICAL EVIDENCE OF THE PROSECUTRIX

13. PW13 - Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi has deposed that on 09/03/2009, he conducted the preliminary examination of the prosecutrix (name withheld) and after preliminary examination, referred the patient to Gynae Department for further examination treatment and proved the MLC Ex. PW13/A signed by him at point 'A'.

PW15 - Dr. Surekha, Senior Gynae, SGM Hospital, Mangol Puri, 55 of 137 56 FIR No. 80/2009 PS - Mangol Puri Delhi who proved the gynaecological examination of the prosecutrix as was conducted by Dr. Kirti at point 'B' on the MLC Ex. PW13/A signed by Dr. Kirti at point 'C'.

It is pertinent to reproduce the examinationinchief of PW15 - Dr. Surekha which reads as under :

"I am deputed on behalf of Dr. Kirti as she has left the hospital and her whereabouts are not known. I am working in the hospital for last 2 years and Dr. Kirti used to work in the same hospital with me for about 3/4 months before leaving the hospital. I am conversant with the handwriting and signatures of Dr. Kirti as I have seen her writing and signing in usual course of my duty. Patient prosecutrix (name withheld) was referred to SR Gynae on 09/03/2009 and she examined the patient as Dr. Kirti was working as SR Gynae at that time. As per record according to the mother of the victim her daughter prosecutrix (name withheld) had alleged history of sexual assault two times in February and third time on 6.3.2008. Patient had taken bath and changed her clothes after the assault. She has brought those clothes with her which she was wearing at the time of assault but they have been washed. LMP ? 08/02/2009. After local examination Labia Majora and Labia Minora normal. Hymen absent. Fresh abrasion seen on the fourchette, no bleeding was found. On per vaginal examination uterus normal size, mid position, bilateral fornices free. UPT (urine pregnancy test) was negative and patient undergarments and high vaginal swab was sealed and handed over to IO. The MLC prepared by Dr. Kirti is at Point B signed by her at Point C on MLC Ex. PW13/A."

There is nothing in the crossexamination of PW15 - Dr. Surekha 56 of 137 57 FIR No. 80/2009 PS - Mangol Puri as to impeach her creditworthiness.

In the circumstances, the gynaecological examination of the prosecutrix as was conducted at point 'B' on the MLC Ex. PW13/A by Dr. Kirti stands proved on the record.

14. Learned Counsel for accused submitted that there is no medical evidence in the present case. PW1 was medically examined by Dr. Kirti of SGMH who was a Sr. Gynae on dated 09/03/2009. To prove the MLC prepared and signed by Dr. Kirti has been proved by PW15 Dr. Surekha who has identified the signatures of Dr. Kirti on MLC prepared by Dr. Kirti having her signature at points 'B' and 'C' on MLC Ex. PW13/A. In her cross examination PW15 admitted that on 09/03/2009 she had not even joined SGMH and nor she saw Dr. Kirti writing or signing on 09/03/2009. PW15 has stated that she joined the services in SGMH on dated 17/04/2009. Thus the medical report of PW1 remained unproved. As such there is no medical evidence on record. Even otherwise there is no other medical evidence on record which proved the commission of rape upon the prosecutrix. In the absence of medical evidence proving the commission of rape, the case of the prosecution stands demolished in toto.

57 of 137 58 FIR No. 80/2009 PS - Mangol Puri I have carefully perused and analysed the evidence on record. Section 47 of Indian Evidence Act, 1872 provides for opinion as to handwriting, when relevant. It reads as under : "47. Opinion as to handwriting, when relevant. When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation. A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him."

From above, it is clearly indicated that the opinion of any person acquainted with the handwriting of the person by whom any documents was written or signed, is a relevant fact. As per the explanation, a person is said to be acquainted with the handwriting of another person when he has seen that person write.

PW15 - Dr. Surekha, in her examinationinchief has specifically deposed which is reproduced and reads as under : "I am working in the hospital for last 2 years and Dr. Kirti used to work in the same hospital with me for about 3/4 months before 58 of 137 59 FIR No. 80/2009 PS - Mangol Puri leaving the hospital. I am conversant with the handwriting and signatures of Dr. Kirti as I have seen her writing and signing in usual course of my duty."

From the aforesaid narration of PW15 - Dr. Surekha, it is clearly indicated that she worked with Dr. Kirti for about 3/4 months and is conversant with the handwriting and signatures of Dr. Kirti as she had seen her writing and signing in usual course of her duty.

In the circumstances, PW15 - Dr. Surekha being acquainted with the handwriting and signatures of Dr. Kirti as she had seen her writing and signing in usual course of her duty has proved the MLC prepared by Dr. Kirti of prosecutrix, of her gynaecological examination at point 'B' signed by Dr. Kirti at point 'C' on MLC Ex. PW13/A. In view of above and in the circumstances, no benefit can be reaped by the accused by the part of crossexamination of PW15 Dr. Surekha that on 09/03/2009 she had not even joined the SGMH and had not seen Dr. Kirti writing or signing on 09/03/2009 because PW15 - Dr. Surekha has proved the MLC prepared by Dr. Kirti of prosecutrix, of her gynaecological examination at point 'B' signed by Dr. Kirti at point 'C' on MLC Ex. PW13/A on the basis of her being acquainted with the handwriting and signatures of Dr. Kirti as she had seen her writing and signing in usual 59 of 137 60 FIR No. 80/2009 PS - Mangol Puri course of her duty, in consonance with the provisions contained in Section 47 of Indian Evidence Act, 1872 as reproduced hereinabove.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

15. Learned Counsel for the accused submitted that even as per the medical report, the prosecutrix was used to sexual intercourse as her hymen was found absent.

I have carefully perused and analysed the evidence on record. PW15 - Dr. Surekha has clearly deposed regarding the gynaecological examination of PW1 - prosecutrix as was conducted by Dr. Kirti at point 'B' signed by Dr. Kirti at point 'C' on MLC Ex. PW13/A. It is not made clear by Learned Counsel for accused as to what benefit he intends to reap from the said plea so raised. Does he intend to convey that PW1 - prosecutrix is a girl/woman of "easy virtues" or a girl/woman of "loose moral character".

If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.

In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 60 of 137 61 FIR No. 80/2009 PS - Mangol Puri SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.

In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because has is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.

In the circumstances, there is no substance in the plea so raised by Learned Counsel for the accused.

61 of 137 62 FIR No. 80/2009 PS - Mangol Puri VIRILITY OF ACCUSED PRADEEP @ BALLI

16. PW19 - Dr. Kuldeep Singh, CMO, BSA Hospital, Delhi has deposed that on 08/04/2009, he examined Pradeep Kumar @ Balli and proved the MLC Ex. PW19/A bearing his signature at point 'A'.

PW13 - Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi has deposed that on 09/04/2009, he examined accused Pradeep @ Balli and after examination he found there is nothing to suggest that the patient cannot perform sexual intercourse and proved his MLC Ex. PW13/B signed by him at point 'A'.

Despite grant of opportunity PW13 - Dr. Mahipal Singh and PW19 - Dr. Kuldeep Singh were not crossexamined on behalf of the accused.

In the circumstances, it stands established on the record that accused Pradeep @ Balli was not incapable of performing sexual intercourse.

BIOLOGICAL AND SEROLOGICAL EVIDENCE

17. PW11 - SI Deepak Malik in his examinationinchief has deposed that he procured FSL Result from FSL, Rohini and filed it in the Court and 62 of 137 63 FIR No. 80/2009 PS - Mangol Puri tendered FSL result in evidence as Ex. PW11/X1 and Ex. PW11/X2.

As per the biological report Ex. PW11/X1, the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "PL"

containing exhibits '1a' and '1b'.

Exhibit '1a'    :      One white pyjami.
Exhibit '1b'    :      One white top/Tshirt.

Parcel '2'    :        One   sealed   cloth   parcel   sealed   with   the   seal   of  
                       "SGMH GOVT. OF NCT DELHI" containing exhibit 
                       '3'.
Exhibit '2'   :        One underwear.
Parcel '3'     :       One   sealed   cloth   parcel   sealed   with   the   seal   of  
                       "SGMH GOVT. OF NCT DELHI" containing exhibit 
                       '3'.
Exhibit '3'    :       One 'urine pregnancy kit' described as Vaginal swab.
Parcel '4'   :         One sealed cloth parcel sealed with the seal of "JS"  
                       containing exhibit '4'.
Exhibit '4'   :        One quilt cover described as bedsheet.
Parcel '5'  :          One   sealed   cloth   parcel   sealed   with   the   seal   of  
                       "SGMH GOVT. OF NCT DELHI" containing exhibit 
                       '5'.
Exhibit '5'   :        Dark brown foul smelling liquid described as blood  
                       sample kept in a test tube.

                                                                              63 of  137
                                             64
                                                                                FIR No. 80/2009
                                                                               PS - Mangol Puri




                           RESULT OF ANALYSIS
1.           Blood was detected on exhibit '5'.

2. Blood could not be detected on exhibits '1a', '1b', '2', '3' and '4'.

3. Semen could not be detected on exhibits '1a', '1b', '2', '3' and '4'.

4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'NK FSL DELHI'.

As per FSL report Ex. PW11/X2 the result of serological analysis reads as : Exhibits Species of Origin ABO Grouping/Remarks '5' Blood Sample Sample was putrefied hence no opinion On careful perusal and analysis of the biological evidence it clearly shows that blood was detected on exhibit '5' (Blood Sample of accused Pradeep @ Balli ); blood could not be detected on exhibit '1a' (Pyjami of the prosecutrix), exhibit '1b'(Top/Tshirt of the prosecutrix), exhibit '2'(underwear of the prosecutrix), exhibit '3' (vaginal swab of the 64 of 137 65 FIR No. 80/2009 PS - Mangol Puri prosecutrix) and exhibit '4' (bed sheet/quilt cover) and semen could not be detected on exhibit '1a' (Pyjami of the prosecutrix), exhibit '1b'(Top/Tshirt of the prosecutrix), exhibit '2'(underwear of the prosecutrix), exhibit '3' (vaginal swab of the prosecutrix) and exhibit '4' (bed sheet/quilt cover). As per the serological report Ex. PW11/X2 'Sample was putrefied hence no opinion' could be given on the exhibit '5' (Blood Sample of accused Pradeep @ Balli).

As per the biological report Ex. PW11/X1, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW1/C, parcel nos. 2 & 3 belong to the prosecutrix which were seized vide seizure memo Ex. PW17/A, parcel no. 4 containing the quilt cover described as bed sheet was recovered from the scene of crime vide seizure memo Ex. PW1/D, parcel no. 5 belongs to accused Pradeep @ Balli which was seized vide seizure memo Ex. PW23/A. PW1 - prosecutrix in her examinationinchief has deposed that : "The clothes, which I was wearing on 06/03/2009 at the time of commission of rape at which point of time the said clothes were already washed which were seized by the Police officials vide memo Ex. PW1/C signed by me at point 'A'."

65 of 137 66 FIR No. 80/2009 PS - Mangol Puri PW15 - Dr. Surekha who has deposed regarding the gynaecological examination of PW1 - prosecutrix as was conducted by Dr. Kirti at point 'B', signed by Dr. Kirti at point 'C' on MLC Ex. PW13/A, in her examinationinchief has deposed that : "Patient had taken bath and changed her clothes after the assault. She has brought those clothes with her which she was wearing at the time of assault but they have been washed."

A conjoint reading of the testimony of PW1 - prosecutrix and of PW15 - Dr. Surekha that prosecutrix had taken bath and changed her clothes after the assault and had washed her clothes, explains the reasons for the nondetection of blood and semen on exhibit '1a' (Pyjami of the prosecutrix), exhibit '1b'(Top/Tshirt of the prosecutrix), exhibit '2' (underwear of the prosecutrix), exhibit '3' (vaginal swab of the prosecutrix) and also that PW1 - prosecutrix must have answered the call of nature from the date of alleged incident on 06/03/2009 till her medical examination on 09/03/2009.

18. Now let the testimonies of PW1 - Prosecutrix, PW2 - Mukesh Kumar, father of the prosecutrix, PW3 - Ms. Sunita, mother of the prosecutrix, PW4 - Mangli Devi, PW5 - Savita, PW6 - Kanta Devi, PW14 - Mrs. Prem Lata the neighbours of the prosecutrix as well as of accused 66 of 137 67 FIR No. 80/2009 PS - Mangol Puri Pradeep @ Balli and PW31 - Anil Rana, a known of accused Pradeep @ Balli be perused and analysed.

PW1 - Prosecutrix in her examinationinchief has deposed that : "I reside the abovesaid address (A9A, Avantika Enclave, Mangol Puri, Delhi) alongwith my family members. At the relevant time, I was a student of 9th class in Kamdhenu School. Accused Pradeep @ Balli present in the court today (correctly identified) is known to me as about 4 years prior to the present incident, there (was) a dispute (jhagra) between accused and my parents and in that dispute, he slapped (Haath Uthaya) my mother and because of this reason as well as accused being Pradhan of our residential area is known to me.

In December 2008, my parents performed the marriage of orphan girl namely Priyanka. Accused also attended the said marriage being Pradhan of the area and since then he was teasing me (Mujhe Pareshaan kar rakha tha).

In the month of February 2009 however I do not remember the exact date during night hours at about 3:00/3:30 a.m., someone knocked the door of my room on which I opened the door whereupon the accused Pradeep @ Balli kept the revolver on my shoulder and entered my room. From there i.e my room itself he entered the room of my parents at which point of time, the accused was carrying having a bottle containing something from which he sprayed in the room of my parents and told me that now my parents have got unconscious and they will not wakeup. Thereafter he did galat kaam with me against my will and wish. He also cut my hand and licked the blood which was oozing from the cut injury and got some letters written from me. Accused had threatened me to kill my parents and brothers and sisters in case I did not do galat kaam with him or in case I disclose to 67 of 137 68 FIR No. 80/2009 PS - Mangol Puri anybody about his said activities. By galat kaam I mean to say that accused had raped me. I did not disclose this incident to my parents due to threats extended by the accused to me.

On 06/03/2009 at about 3:30 a.m., I was sleeping in my room in the said house. Accused Pradeep after removing the cooler which was there on the window of my room who had also removed the glass pains (panes) woke me up by hitting me with a danda. Due to the fear of accused, I opened the door of my room. Accused came in my room from where he entered the room of my parents and sprayed some material/article there and again came to me. The accused forced me to consume liquor and also applied liquor at my vagina and forcibly raped me. On that night, accused had raped me twice or thrice in a very brutal manner (gande tarike se). Thereafter he had forcibly administered one tablet to me saying that it would save me from getting pregnant. Accused again threatened me not to disclose about this incident.

Next day, I was very upset and on repeated asking of my mother about my condition, I disclosed her about the entire incident in the evening of 08/03/2009. My mother narrated the entire incident to my father when he arrived at home. Thereafter my father became very nervous and after giving a considerable thought, we reported the matter to the police on 09/03/2009. My complaint to the police is Ex. PW1/A signed by me at point A."

She also proved her statement recorded u/s 164 Cr.P.C. Ex. PW1/B signed by her at points 'A', seizure memo of her clothes Ex. PW1/C signed by her at point 'A', seizure memo of the quilt cover Ex. PW1/D signed by her at point 'A' and proved her clothes that is pajami, top/TShirt, Panty and quilt cover Ex. P1 to P4 respectively and also proved the country made 68 of 137 69 FIR No. 80/2009 PS - Mangol Puri pistol Ex. P5.

From the aforesaid narration of PW1 - prosecutrix it is clear that she was residing along with her family members at A9A, Avantika Enclave, Mangol Puri, Delhi. At the relevant time she was a student of 9th Class in Kaamdhenu School. Accused Pradeep @ Balli present in the Court (correctly identified) was known to her for about four years prior to the present incident and there was a dispute (jhagra) between accused and her parents and in that dispute, he slapped (Haath Uthaya) his mother and because of this reason as well as accused being Pradhan of their residential area is known to her. In December 2008, her parents performed the marriage of orphan girl namely Priyanka. Accused also attended the said marriage being Pradhan of the area and since then he was teasing her (Mujhe Pareshaan kar rakha tha). In the month of February, 2009 however she does not remember the exact date during night hours at about 3:00/3:30 a.m., someone knocked the door of her room on which she opened the door whereupon the accused Pradeep @ Balli kept the revolver on her shoulder and entered her room. From there i.e. her room itself he entered the room of her parents at which point of time, the accused was carrying having a bottle 69 of 137 70 FIR No. 80/2009 PS - Mangol Puri containing something from which he sprayed in the room of her parents and told her that now her (prosecutrix) parents have got unconscious and they will not wakeup. Thereafter, he did galat kaam with her against her will and wish. He also cut her hand and licked the blood which was oozing from the cut injury and got some letters written from her. Accused had threatened her to kill her parents and brothers and sisters in case she did not do galat kaam with him or in case she disclose to anybody about his said activities. By galat kaam she means to say that accused had raped her. She did not disclose this incident to her parents due to threats extended by the accused to her. On 06/03/09 at about 3:30 a.m., she was sleeping in her room in the said house. Accused Pradeep after removing the cooler which was there on the window of her room who had also removed the glass panes woke her up by hitting her with a danda. Due to the fear of accused, she opened the door of her room. Accused came in her room from where he entered the room of her parents and sprayed some material/article there and again came to her. The accused forced her to consume liquor and also applied liquor at her vagina and forcibly raped her. On that night, accused had raped her twice or thrice in a very brutal manner (gande tarike se). Thereafter, he had forcibly administered one tablet to her saying that it would save her from getting 70 of 137 71 FIR No. 80/2009 PS - Mangol Puri pregnant. Accused again threatened her not to disclose about this incident. Next day, she was very upset and on repeated asking of her mother about her condition, she disclosed her about the entire incident in the evening of 08/03/2009. Her mother narrated the entire incident to her father when he arrived at home. Thereafter her father became very nervous and after giving a considerable thought, they reported the matter to the Police on 09/03/2009. Her complaint to the Police is Ex. PW1/A signed by her at point A. During her crossexamination PW1 - Prosecutrix negated the suggestions that prior to the marriage of Priyanka, her father borrowed Rs. 20,000/ from accused Pradeep @ Balli or that accused Pradeep @ Balli had not come to her room in the night of February, 2009 and 06/03/2009 or that accused Pradeep @ Balli had not committed rape and various other alleged offences of giving cuts, giving liquor, threats etc. to her in February, 2009 and on 06/03/2009 or that she has falsely implicated accused Pradeep @ Balli in this case at the behest of her parents, Police and one Sh. Vishnu Kant Jha or that she has deposed falsely or that she was in love with accused Pradeep @ Balli.

Inspite of incisive crossexamination of PW1 - Prosecutrix, nothing material has been brought out so as to impeach her creditworthiness.

71 of 137 72 FIR No. 80/2009 PS - Mangol Puri In the witness box she has withstood the test of crossexamination and her testimony is consistent throughout. The version of this witness on the core spectrum of crime has remained intact. The testimony of PW1 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused (Pradeep @ Balli) to falsely implicate him in the case.

Her testimony is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW1/B as well as her complaint made to the Police Ex. PW1/A. The testimony of PW1 - Prosecutrix is also corroborated by PW2 - Mukesh Kumar, her father and PW3 - Ms. Sunita, her mother, to whom prosecutrix had disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.

PW2 - Mukesh Kumar, father of the prosecutrix in his examinationinchief has deposed that : "Prosecutrix prosecutrix (name withheld) is my daughter.

72 of 137 73 FIR No. 80/2009 PS - Mangol Puri Accused Pradeep was having a shop doing property dealership and stated himself to be the Pardhan of the colony.

About 34 years ago, accused Pradeep quarrel with my wife Sunita in the night time on the issue of children and he was in a drunken condition but matter was compromised though, my wife has reported the matter to the police. At that time, I was not present in my house. In the month of Dec. 2008 I had married deserted daughter (aanath daugther Priyanka) of my uncle Late Sh. Pyare Lal and accused Pradeep attended the said marriage and we were developed our talking terms with him.

On 8.3.2009 when I returned to my work place, at about 9.00/9.30p.m my wife has stated to me that accused Pradeep had committed rape upon our daughter. I remained in tension through out the night and do not sleep on that night. prosecutrix (name withheld) stated to me on the next date that accused has ruined her life and it was desirable to lodge a complaint against him. On this I made a call at No.100. Police arrived at my house and recorded the statement of my daughter prosecutrix (name withheld) and a case was registered against the accused. A night suit which my daughter was wearing at the time of incident was taken into possession by lady police official. The quilt cover which was used as a bed sheet on the day of incident was seized by special staff police officials after number of days later after converted the same into pullanda and sealed the same and was taken into possession vide memo Ex. PW1/A which is signed by me at point B. Accused Pradeep is present in the court today."

From the aforesaid narration of PW2 - Mukesh Kumar it is clear that the prosecutrix (name withheld) is his daughter. Accused Pradeep was having a shop doing property dealership and stated himself to be the Pardhan 73 of 137 74 FIR No. 80/2009 PS - Mangol Puri of the colony. About 34 years ago, accused Pradeep quarreled with his wife Sunita in the night time on the issue of children and he was in a drunken condition but matter was compromised though, his wife has reported the matter to the Police. At that time, he was not present in his house. In the month of Dec. 2008 she had married deserted daughter (anaath daugther Priyanka) of his uncle Late Sh. Pyare Lal and accused Pradeep attended the said marriage and they developed their talking terms with him. On 08/03/2009 when he returned from his work place, at about 9:00/9:30p.m. his wife has stated to him that accused Pradeep had committed rape upon their daughter. He remained in tension throughout the night and did not sleep on that night. Prosecutrix (name withheld) stated to him on the next date that accused has ruined her life and it was desirable to lodge a complaint against him. On this he (PW2) made a call at No. 100. Police arrived at his house and recorded the statement of his daughter/prosecutrix (name withheld) and a case was registered against the accused. A night suit which his daughter was wearing at the time of incident was taken into possession by lady Police official. The quilt cover which was used as a bed sheet on the day of incident was seized by special staff Police officials after number of days later after converting the same into pullanda and sealed the same and 74 of 137 75 FIR No. 80/2009 PS - Mangol Puri was taken into possession vide memo Ex. PW1/A which is signed by him at point B and had identified the accused Pradeep @ Balli in the Court.

PW2 - Mukesh Kumar during his crossexamination negated the suggestion that no offence of rape has been committed by the accused with his daughter and he and his other family members had falsely implicated the accused in this false case.

PW3 - Ms. Sunita, mother of the prosecutrix in her examination inchief has deposed that : "I am a house wife and having three children and the eldest daughter is prosecutrix (name withheld) who was studying in IX the class at Kamdhenu School. My daughter prosecutrix (name withheld) was 16th years of age at the time of incident and her date of birth is 02/08/1992. I saw that prosecutrix (name withheld) was perturbed for the last many days before 08/03/2009. I asked her what happened to you, then she stated to me on 08/03/2009 (be read as 06/03/2009) that accused Pradeep @ Balli had raped upon her twice. She also stated that in case I disclosed to anybody he will kill her younger brother and sister. I was shocked to know then I have talked to my husband who told that this is the height of the criminality and after looking all pros and cons my husband reported the matter to the police by dialing no. 100. Police came to our house and we all went to the police station. prosecutrix (name withheld) was investigated and her statement was recorded by the police and on her statement case was registered. Police also 75 of 137 76 FIR No. 80/2009 PS - Mangol Puri got medically examined my daughter prosecutrix (name withheld). Police tried to search for the accused Pradeep but he could not apprehended him. Accused Pradeep is present in the court today."

From the aforesaid narration of PW3 - Sunita it is clear that she is a house wife and having three children and the eldest daughter is the prosecutrix (name withheld) who was studying in IX Class class at Kamdhenu School. Her daughter/prosecutrix (name withheld) was 16 years of age at the time of incident and her date of birth is 02/08/1992. She saw that prosecutrix (name withheld) was perturbed for the last many days before 08/03/2009. She asked her what happened to her, then she stated to her on 08/03/2009 (be read as 06/03/2009) that accused Pradeep @ Balli had raped upon her twice. She also stated that in case she (PW1 - prosecutrix) disclosed to anybody he will kill her younger brother and sister. She (PW3) was shocked to know then she (PW3) had talked to her husband who told that this is the height of the criminality and after looking all pros and cons her husband reported the matter to the Police by dialing no. 100. Police came to their house and they all went to the Police Station. Prosecutrix (name withheld) was investigated and her statement was recorded by the Police and on her statement case was registered. Police also got medically 76 of 137 77 FIR No. 80/2009 PS - Mangol Puri examined her daughter/prosecutrix (name withheld). Police tried to search for the accused Pradeep but could not apprehended him and had identified the accused Pradeep @ Balli in the Court.

PW3 - Ms. Sunita during her crossexamination negated the suggestion that accused Balli took part in the marriage of Priyanka or that accused Balli had spent substantial amount in the marriage of Priyanka with her step brother on food, tent, furnitures and other various articles which were purchased and given in the marriage of Priyanka or that they demanded a sum of Rs. 10 lacs for withdrawal of their complaint. However, the accused refused to accede to their demand by stating that he has done nothing wrong and he has been defamed by them in the society or that her daughter used to write letters to accused Balli. Vol. accused Balli forced her to write letter by cutting her hands or that she is deposing falsely or that the present case against the accused is false and the accused has been falsely implicated in this case.

Nothing could be elicited during the crossexamination of PW2 - Mukesh Kumar and PW3 - Ms. Sunita, so as to impeach their 77 of 137 78 FIR No. 80/2009 PS - Mangol Puri creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII (S.C.)1] their testimonies are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused (Pradeep @ Balli) to falsely implicate him in the case.

PW4 - Mangli Devi, PW5 - Savita, PW6 - Kanta Devi and PW14 - Mrs. Prem Lata who are the neighbours in the locality where the prosecutrix lives and where the Office of accused Pradeep @ Balli is situated are not the witnesses/Res gestae witnesses to the offences involved in the present case. They deposed regarding the accused Pradeep @ Balli, his business and conduct in the locality. PW4 - Mangli Devi and PW6 - Kanta Devi turned hostile and were crossexamined by the Learned Addl. PP. Their hostility has no impact on the prosecution case which is otherwise proved on record by clear, cogent and convincing evidence. However, PW5

- Savita in her examinationinchief has specifically deposed that accused Pradeep is a property dealer and working in their locality. His property 78 of 137 79 FIR No. 80/2009 PS - Mangol Puri dealer shop is situated at B15A, Avantika Enclave visible from their house. He was running his property dealer shop in the name of Bajrang Property. He used to call himself as Pradhan of the locality but he was not elected as a Pradhan of the locality. His conduct in general is not good and he was involved in number of cases. On 09/03/2009 Police officials came at the house of prosecutrix and people gathered and they came to know from the mother of prosecutrix that her daughter was raped. In general people were afraid of accused because of his bad conduct. She (PW5) had seen the accused in the locality on 08/03/2009 and earlier also.

PW12 - Mrs. Prem Lata in her examinationinchief has deposed that accused Pradeep was working as the Property Dealer in their locality. His shop was situated at B15, Avantika Enclave and his shop name was Bajrang Properties. He is known to her for the last 8/9 years. Some persons having bad character used to sit in his office/shop as a result they openly had gone (had stopped going) from the side of his shop. Accused Pradeep also taking (used to take) liquor in the company of other associates. The locality people were afraid of him. She further deposed that she came to know that accused Pradeep was involved in a rape case with the prosecutrix (name withheld) who was also residing in a building in front of their house. The 79 of 137 80 FIR No. 80/2009 PS - Mangol Puri accused was also residing in their neighbourhood and he was having a flat. The accused is a bad character of their area and because of that people were fearing of him.

There is nothing in the crossexamination of PW5 - Savita and PW14 - Mrs. Prem Lata so as to impeach their creditworthiness.

PW31 - Anil Rana, is a known of accused Pradeep @ Balli, who has deposed that in the year 2009, he was residing at House No. 176, Village Siraspur, Delhi - 110042 and he knows accused Pradeep @ Balli, whose sister has married with a boy of their Siraspur village. He is not the witness/Res gestal witness to the offences involved in the present case. He was turned hostile and was crossexamined by the Learned Addl. PP for the State. His hostility has no impact on the prosecution case which is otherwise proved on record by clear, cogent and convincing evidence.

19. While analysing the testimonies of PW1 - Prosecutrix, PW2 - Mukesh Kumar and PW3 - Ms. Sunita as discussed hereinabove, inspite of incisive crossexamination nothing has come out in the statements of PW1 - Prosecutrix, PW2 - Mukesh Kumar and PW3 - Ms. Sunita which may throw even a slightest doubt on the prosecution version of the incident. Though, 80 of 137 81 FIR No. 80/2009 PS - Mangol Puri the suggestions put by the defence to PW1 - Prosecutrix that prior to the marriage of Priyanka, her father borrowed Rs. 20,000/ from accused Pradeep @ Balli or that accused Pradeep @ Balli had not come to her room in the night of February, 2009 and 06/03/2009 or that accused Pradeep @ Balli had not committed rape and various other alleged offences of giving cuts, giving liquor, threats etc. to her in February, 2009 and on 06/03/2009 or that she has falsely implicated accused Pradeep @ Balli in this case at the behest of her parents, Police and one Sh. Vishnu Kant Jha or that she has deposed falsely or that she was in love with accused Pradeep @ Balli and the suggestions put to PW2 - Mukesh Kumar that no offence of rape has been committed by the accused with his daughter and he and his other family members had falsely implicated the accused in this false case and the suggestions put to PW3 - Ms. Sunita that accused Balli took part in the marriage of Priyanka or that accused Balli had spent substantial amount in the marriage of Priyanka with her step brother on food, tent, furnitures and other various articles which were purchased and given in the marriage of Priyanka or that they demanded a sum of Rs. 10 lacs for withdrawal of their complaint. However, the accused refused to accede to their demand by stating that he has done nothing wrong and he has been defamed by them in 81 of 137 82 FIR No. 80/2009 PS - Mangol Puri the society or that her daughter used to write letters to accused Balli. Vol. accused Balli forced her to write letter by cutting her hands or that she is deposing falsely or that the present case against the accused is false and the accused has been falsely implicated in this case, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.

At the cost of repetition, from the suggestions put to PW1 - prosecutrix, PW2 - Mukesh Kumar and PW3 - Ms. Sunita as detailed here inabove, by the accused Pradeep @ Balli, it is to be noticed that a futile attempt has been made by accused Pradeep @ Balli to save his skin from the clutches of law by floating every possible theory. The theories floated by accused Pradeep @ Balli are : The Theory that, "prior to the marriage of Priyanka, her father borrowed Rs. 20,000/ from accused Pradeep @ Balli".

The Theory that, "she (PW1 - prosecutrix) has falsely implicated accused Pradeep @ Balli in this case at the behest of her parents, Police and one Sh. Vishnu Kant Jha".

82 of 137 83 FIR No. 80/2009 PS - Mangol Puri The Theory that, "she (PW1 - prosecutrix) was in love with accused Pradeep @ Balli".

The Theory that, "no offence of rape has been committed by the accused with his (PW2 - Mukesh Kumar) daughter and he and his other family members had falsely implicated the accused in this false case.

The Theory that, "they (PW2 - Mukesh Kumar and PW3 - Ms. Sunita, parents of PW1 - prosecutrix) demanded a sum of Rs. 10 lacs for withdrawal of their complaint and The Theory that, "her (PW3 - Ms. Sunita) daughter used to write letters to accused Balli.

The said theories so propounded by accused Pradeep @ Balli are not only self contradictory but have also not at all being made probable much established by any cogent evidence therefore falls flat to the ground.

ARREST OF ACCUSED PRADEEP @ BALLI AND RECOVERIES AFFECTED

20. PW8 - Constable Sunil Kumar deposed that on 08/04/2009, he was posted at SIT, Crime Branch and on 08/04/2009 accused Pradeep @ 83 of 137 84 FIR No. 80/2009 PS - Mangol Puri Balli, wanted in this case, was arrested u/s 41.1(a) Cr.P.C. vide arrest memo Ex. PW8/A and his personal search was conducted vide memo Ex. PW8/B signed by him at points 'A' and proved the kallandra Ex. PW8/C and further deposed that he was produced before the Court and the concerned Police of PS - Mangol Puri was informed about the arrest of the accused.

PW12 - ASI Ramesh Chander who is also the official of SIT, Crime Branch deposed to the same effect as has been deposed by PW8 - Constable Sunil Kumar and also proved the disclosure statement of accused Pradeep @ Balli Ex. PW12/A signed by him at point 'A'.

PW33 - Inspector Amardeep Sehgal deposed that on 09/04/2009, he moved the application Ex. PW33/A for the arrest and interrogation of accused Pradeep @ Balli before the Court concerned which was allowed and accused Pradeep @ Balli was formally arrested in this case vide arrest memo Ex. PW28/C. He also made a disclosure statement Ex. PW28/D signed by him at points 'C'. Police Custody remand of accused Pradeep @ Balli was obtained and his medical examination was got conducted. The sealed exhibits given by the Doctor after the medical examination of accused Pradeep @ Balli were seized vide seizure memo Ex. PW23/A. Further disclosure statement of accused Pradeep @ Balli Ex. PW28/E was also 84 of 137 85 FIR No. 80/2009 PS - Mangol Puri recorded signed by him at point 'B'. Pursuant to the disclosure statement, the original documents, in respect of his admission in the MR Hospital, Karala from 04/03/2009 to 08/03/2009 were seized vide seizure memo Ex. PW28/F signed by him at point 'C'. In the discharge slip, the signature of coaccused Arvind were also mentioned and proved the medical documents seized vide seizure memo Ex. PW28/F as Ex. PW33/P1 running into nine pages whose originals are kept in the case FIR No. 100/09, PS - Kanjhawala. Pursuant to the disclosure of accused Pradeep @ Balli, Opel Astra Car (Ex. P6) bearing No. DL6CG0079 was seized vide seizure memo Ex. PW28/J. The key of the said vehicle was produced by accused Arvind. The recovery of the country made pistol (Katta) was made from below the driver seat of the said Opel Astra Car which was used for threatening the prosecutrix and after preparation of its sketch and of a live cartridge inside the pistol Ex. PW28/G, the same was seized vide pointing out - cum - recovery memo Ex. PW28/H and proved the Desi Katta as Ex. P5 and the test fired cartridge as Ex. PX.

To the same effect has also been deposed by PW28 Inspector Jogender Singh, whose detailed testimony has been dealt with herein before.

There is nothing in the crossexamination of PW8 - Constable 85 of 137 86 FIR No. 80/2009 PS - Mangol Puri Sunil Kumar, PW12 - ASI Ramesh Chander, PW28 - Inspector Jogender Singh and PW33 - Inspector Amardeep Sehgal so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. Their testimonies on careful perusal and analysis are found to be clear, cogent and inspiring confidence.

21. Learned Counsel for accused submitted that the alleged country made revolver which was allegedly recovered has been planted upon the accused. The alleged weapon was allegedly got recovered from the Opel Astra car bearing no. DL6CG0079 found parked in the open place near flat no. 607, Pocket - A, Sector - 6, Narela, Delhi which was opened with the key given by coaccused Arvind. Learned Counsel for accused further submitted that Opel Car does not belong to the accused nor the accused took the Police at Sector - 6, Narela nor got made any alleged recovery. PW33 Inspector Amardeep Sehgal did not make any investigation to trace out the registered owner of that car nor PW33 joined any public person while effecting the recovery particularly when it was the day time and there were the residents in the flats. PW33 has also not verified as to who was the owner of the flat no. 607, Pocket - A, Sector - 6, Narela in order to link the 86 of 137 87 FIR No. 80/2009 PS - Mangol Puri accused.

I have carefully perused and analysed the evidence on record. In view of the clear and categorical testimony of PW28 - Inspector Jogender Singh and PW33 - Inspector Amardeep Sehgal, as discussed hereinbefore, there is nothing to doubt that the recovery of country made pistol (katta) Ex. P5 was not made from below the driver seat of Opel Astra Car No. DL6CG0079. Ex. P6 pursuant to the disclosure statement of accused Pradeep @ Balli Ex. PW28/D. There is nothing in the crossexamination of PW28 - Inspector Jogender Singh and PW33 - Inspector Amardeep Sehgal so as to impeach their creditworthiness.

In the circumstances, there is no substance in the plea of Learned Counsel for accused that country made pistol (katta) Ex. P5 has been planted upon accused Pradeep @ Balli.

As far as the plea of Learned Counsel for accused for nonmaking of any investigation to trace out of the registered owner of Opel Astra Car Ex. P6 is concerned, nothing adverse can be taken against the prosecution for the reason that the Police was investigating a criminal case and was effecting recovery of country made pistol (katta) Ex. P5 pursuant to the disclosure 87 of 137 88 FIR No. 80/2009 PS - Mangol Puri statement of accused Pradeep @ Balli Ex. PW28/D and was not investigating as to who was the owner of Opel Astra Car Ex. P6 from where the recovery was effected. Moreover, the fact as to who was the registered owner of Opel Astra Car Ex. P6 must be especially within the knowledge of accused Pradeep @ Balli. As per Section 106, Indian Evidence Act, 1872, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Section 106 of Indian Evidence Act, 1872 reads as under : "106. Burden of proving fact especially within knowledge. when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

Further, there is no substance in the plea of Learned Counsel for the accused that PW33 - Inspector Amardeep Sehgal did not verify as to who was the owner of Flat No. 607, Pocket - A, Sector - 6, Narela. On the similar reasoning, Police was not investigating the ownership of the said flat. Such fact must be especially within the knowledge of accused Pradeep @ Balli as to who was the owner of the said flat. At the cost of repetition, as per Section 106, Indian Evidence Act, 1872, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

88 of 137 89 FIR No. 80/2009 PS - Mangol Puri As far as the plea of nonjoining of public persons at the time of recovery is concerned, it is a matter of common experience that public persons seldom come forward to join the Police proceedings and remain the mute spectators. Even otherwise nonjoining of public persons does not falsify the case of prosecution which is otherwise proved on record by clear, cogent and convincing evidence.

It is a known fact that the persons of the public are reluctant to join any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence. (Ref. Nirmal Sngh & Ors. Vs. State 2011 III AD (Delhi) 699).

In State of Government of Delhi Vs. Sunil & Ors. 2000 VIII AD (SC) 613 it was held by the Hon'ble Supreme Court that the legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the Police is cast on a Police officer when searches are made under chapter VII of the Code of Criminal Procedure and not for discovery under Section 27 of the Indian Evidence Act.

In view of above and in the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

89 of 137 90 FIR No. 80/2009 PS - Mangol Puri BALLISTIC EVIDENCE

22. PW26 - Sh. K. C. Varshney, Asstt. Director, Ballistic, FSL, Rohini, Delhi, is the Ballistic Expert who proved the Ballistic Report Ex. PW26/A which bears his signature at point 'A'. The country made pistol is Ex. P5 and the test fired cartridge is Ex. PX.

As per the Ballistic Report Ex. PW26/A, the description of the articles contained in the parcel and the result of analysis reads as under :

1. DESCRIPTION OF PARCEL (S) :

            Sealed cloth parcel       :             01 (one)
            Total                     :             01 (one)

One sealed cloth parcel; seals were intact and tallied with the specimen seals as per forwarding letter (FSL FORM)

2. DESCRIPTION OF ARTICLES CONTAINED INT HE PARCEL (S)/EXHIBIT (S) :

Parcel No. No. & Seal Description of Exhibit(s) contained in Impression Parcel(s) 1 06 A D S One country made pistol .315" bore marked exhibit 'F.1' and one 8mm/315" cartridge marked exhibit 'A1' 90 of 137 91 FIR No. 80/2009 PS - Mangol Puri

3. RESULTS OF EXAMINATION/OPINION :

(1) The country made pistol 0315" bore marked exhibit 'F1' is designed to fire a standard 8mm/.315" bore cartridge. It is in working order in its present condition.

(2) The 8mm/.315" bore cartridge marked exhibit 'A1' is live one and can be fired through .315" bore firearm.

(3) The 8mm/.315" bore cartridge marked exhibit 'A1' was test fired through the country made pistol .315" marked exhibit 'F1' above.

(4) The exhibits 'F1' / 'A1' are firearm/ammunition as defined in the Arms Act, 1959.

NOTE : Case Exhibits/Remnants of Exhibits sent to this laboratory for examination have been sealed with the seal of KCV FSL DELHI.

On careful perusal and analysis of the Ballistic Report Ex. PW26/A, it stands clearly established on the record that exhibit F1 the country made pistol .315" bore (also Ex. P5) and A1 a test fired cartridge (also Ex. PX) are the fire arm/ammunition as defined in the Arms Act, 1959.

91 of 137 92 FIR No. 80/2009 PS - Mangol Puri MEDICAL RECORD OF ACCUSED PRADEEP @ BALLI OF M R HOSPITAL, KARALA, DELHI - RELATING TO FIR NO. 100/09, PS

- KANJHAWALA, U/S 417/511/465/471/193/120B IPC

23. PW11 - SI Deepak Malik is the part IO of the case who has deposed that on 11/06/2009, he handed over the medical documents to SI - Jagdish (PW32) who was IO in the case FIR No. 100/09 of PS - Kanjhawala and the certificate of accused Pradeep @ Balli which were taken into possession vide memo Ex. PW11/B signed by him at point 'A'.

PW28 - Inspector Joginder Singh has deposed that on interrogation accused Pradeep @ Balli disclosed that he remained admitted in the MR Hospital, Karala and the connected medical record regarding his admission in the Hospital was taken into possession vide memo Ex. PW28/B signed by him at point 'A'. He came to know that with regard to these documents, a separate case was registered against accused Pradeep @ Balli at PS - Kanjhawala. He further deposed regarding the seizure of the documents vide memo Ex. PW20/F and the recovery of the Opel Astra Car and of the country made pistol (Katta) at the instance of accused Pradeep @ Balli as has been deposed by PW33 - Inspector Amardeep Sehgal.

PW32 - Inspector Jagdish Chander who is the Investigating Officer (IO) of the case FIR No. 100/09, PS - Kanjhawala, u/s 92 of 137 93 FIR No. 80/2009 PS - Mangol Puri 417/511/465/471/193/120B IPC and deposed regarding the investigation carried out in the case FIR No. 100/09 and proved the seizure memo Ex. PW11/B which bears his signature at point 'B' and has further deposed that he also collected the specimen handwriting of accused Pradeep @ Balli and sent the same alongwith the seized record to FSL Rohini, for opinion.

PW33 - Inspector Amardeep Sehgal has deposed that an interim anticipatory bail application was moved by accused Pradeep @ Balli in the Hon'ble High Court of Delhi on the basis of the medical that he was admitted in MR Hospital, Karala, Delhi from 04/03/2009 to 08/03/2009. He collected the photocopies of admission and discharge, bill register, entries in the register by the patient in the Hospital for treatment from 30/05/2008 to 17/10/2008 and photocopies of the other relevant entries, photocopies of newly created fabricated register record in respect of his admission w.e.f. 30/05/2008 to 31/03/2009 and seized the same on 04/04/2009 vide seizure memo Ex. PW28/B signed by him at point 'B' and also filed the Status Report in the Hon'ble High Court of Delhi on 07/04/2009.

There is nothing in the crossexamination of PW11 - SI Deepak Malik, PW28 - Inspector Joginder Singh, PW32 - Inspector Jagdish Chander and PW33 - Inspector Amardeep Sehgal so as to impeach their 93 of 137 94 FIR No. 80/2009 PS - Mangol Puri creditworthiness. They have withstood the rigors of crossexamination without being shaken. Their testimonies on careful perusal and analysis are found to be clear, cogent and inspiring confidence.

24. Learned Counsel for accused submitted that nothing has been recovered pursuant to the disclosure statement of the accused Pradeep @ Balli. The medical documents relating to the admission of the accused in M. R. Hospital w.e.f. 04/03/2009 to 08/03/2009 have not been recovered at the instance of the accused. The documents whatsoever were proved were given by Dr. Naresh Pratap of M. R. Hospital and not by the accused.

I have carefully perused and analysed the evidence on record. From the testimony of PW28 - Inspector Joginder Singh and PW33 - Inspector Amardeep Sehgal as discussed and detailed hereinabove, it is clearly indicated that the fact regarding his admission in MR Hospital from 04/03/2009 to 08/03/2009 was disclosed by accused Pradeep @ Balli in his interim anticipatory bail application moved before the Hon'ble Delhi High Court and pursuant to that medical record was seized by the Police.

In the circumstance, the accused Pradeep @ Balli cannot be heard 94 of 137 95 FIR No. 80/2009 PS - Mangol Puri uttering that the documents whatsoever were proved were given by Dr. Naresh Partap of M. R. Hospital and not by the accused.

Moreover, the bottom of the theory of "Admission of accused Pradeep @ Balli in M. R. Hospital w.e.f. 04/03/2009 to 08/03/2009" has been knocked out by PW5 - Savita, who lives in the locality where the office of accused Pradeep @ Balli is situated and has specifically deposed in her examinationinchief that she had seen accused Pradeep @ Balli in the locality on 08/03/2009 and earlier also.

It is pertinent to reproduce the examinationinchief of PW5 - Savita which reads as under : "Accused Pradeep is a property dealer and working in our locality. His property dealer shop is situated at B15A, Avantika Enclave visible from our house. He was running his property dealer shop in the name of Bajrang Property. He used to call himself as Pradhan of the locality but he was not elected as a Pradhan of the locality. His conduct in general is not good and he was involved in number of cases. On 09/03/2009 Police officials came at the house of prosecutrix and people gathered and we came to know from the mother of prosecutrix that her daughter was raped. In general people were afraid of accused because of his bad conduct. I have seen the accused in the locality on 08/03/2009 and earlier also."

In the circumstances, there is no substance in the plea so raised by 95 of 137 96 FIR No. 80/2009 PS - Mangol Puri the Learned Counsel for the accused.

ARREST OF ACCUSED ARVIND

25. PW28 - Inspector Joginder Singh in his examinationinchief has deposed that accused Arvind was formally interrogated and after interrogation he was arrested vide arrest memo Ex. PW28/K and his personal search was conducted vide memo Ex. PW28/L and his disclosure statement Ex. PW28/M was also recorded signed by him at point 'A'.

During his crossexamination, PW28 - Inspector Joginder Singh has deposed that accused Arvind was arrested immediately at the spot near Flat No. 607, Sector - 6, Narela. He negated the suggestions that accused Arvind was not having any connection with the said flat or that he was not in possession of the said flat or that Arvind did not give the key of the said car (Opel Astra Car bearing no. DL6CG0079) Ex. P6 to the IO or that the car Opel Astra was not recovered from Sector - 6, Narela.

Except this, nothing has come on the record against accused Arvind Kumar to indicate that on 09/03/2009 onwards he had harboured accused Pradeep @ Balli at his village Barota, District Sonipat, Haryana and 96 of 137 97 FIR No. 80/2009 PS - Mangol Puri whereafter at flat of Dharamvir, situated at Pocket - A, Sector - 6, Janta Flat, Narela and also at flat situated at Sector - 16, Rohini, Delhi and also provided food etc. to him knowing that he is an accused.

In the circumstances, prosecution has failed to prove beyond shadows of all reasonable doubt, its case against accused Arvind that on 09/03/2009 onwards he had harboured accused Pradeep @ Balli at his village Barota, District Sonipat, Haryana and whereafter at flat of Dharamvir, situated at Pocket - A, Sector - 6, Janta Flat, Narela and also at flat situated at Sector - 16, Rohini, Delhi and also provided food etc. to him knowing that he is an accused.

I, accordingly, acquit Arvind Kumar for the offence punishable u/s 212 Cr.P.C.

SANCTION U/S 39 ARMS ACT FOR THE PROSECUTION OF ACCUSED Pradeep @ BALLI

26. PW25 - Sh. B. K. Singh, DCP NorthEast, Delhi has proved the sanction u/s 39 Arms Act Ex. PW25/A signed by him at point 'A' for the prosecution of accused Pradeep @ Balli u/s 25 Arms Act.

There is nothing in the crossexamination of PW25 - Sh. B. K. 97 of 137 98 FIR No. 80/2009 PS - Mangol Puri Singh so as to impeach his creditworthiness.

In the circumstances, the sanction u/s 39 Arms Act Ex. PW25/A for the prosecution of accused Pradeep @ Balli for the offence u/s 25 Arms Act stands proved on the record.

27. Learned Counsel for accused submitted that the statement of PW1

- prosecutrix is self contradictory and is not reliable nor inspires confidence. The way she has deposed the entry of accused at the odd hours of night at 3:00/3:30 a.m. on both the occasions i.e. in the month of February, 2009 and on 06/03/2009 is highly improbable under the circumstances she deposed because firstly, at the first occasion she without verifying the identity of the person at odd hours of the night opened the door which she should not have. Even if she opened the door she was threatened by accused by showing/putting revolver upon her shoulder, the accused had gone alone inside the room of her parents while she was left behind alone, there was sufficient time for her to go out of the room and raise voice and save herself, Secondly, it is highly improbable that a person having lust for sex would cut the hand of the prosecutrix from several places and lick her blood instead of fulfilling his lust for sex.

98 of 137 99 FIR No. 80/2009 PS - Mangol Puri Thirdly, when the accused gave cut marks, the prosecutrix would have naturally suffered pain and cried and in those circumstances it was but natural for her parents to make them awake but they did not wake up, Fourthly, when she admitted in her crossexamination that the lights were switched off so long the accused remained in her room, the statement of PW1 regarding that the accused forced her to write letter is highly improbable because it was not possible to write letter in the darkness of the night.

I have carefully perused and analysed the evidence on record. As regards the entry of accused Pradeep @ Balli at the odd hours of night at 3:30 a.m. on both the occasions, in the month of February, 2009 and on 06/03/2009 is concerned, there is no question of any 'High Improbability'. The testimony of PW1 - prosecutrix is clear and categorical both in her examinationinchief as well as crossexamination on this aspect as discussed hereinbefore. She has withstood the rigors of crossexamination and her testimony is consistent throughout. Her version on the core spectrum of crime has remained intact. Needless to state that the testimony of a witness is to be read in its totality and not isolatedly and in a pick and choose manner.

99 of 137 100 FIR No. 80/2009 PS - Mangol Puri At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW1 - prosecutrix which reads as under : "In the month of February 2009 however I do not remember the exact date during night hours at about 3/3.30 am, someone knocked the door of my room on which I opened the door whereupon the accused Pradeep @ Balli kept the revolver on my shoulder and entered my room. From there i.e my room itself he entered the room of my parents at which point of time, the accused was carrying having a bottle containing something from which he sprayed in the room of my parents and told me that now my parents have got unconscious and they will not wakeup. Thereafter he did galat kaam with me against my will and wish. He also cut my hand and licked the blood which was oozing from the cut injury and got some letters written from me. Accused had threatened me to kill my parents and brothers and sisters in case I did not do galat kaam with him or in case I disclose to anybody about his said activities. By galat kaam I mean to say that accused had raped me. I did not disclose this incident to my parents due to threats extended by the accused to me.

On 06/03/09 at about 3:30 a.m., I was sleeping in my room in the said house. Accused Pradeep after removing the cooler which was there on the window of my room who had also removed the glass pains (panes) woke me up by hitting me with a danda. Due to the fear of accused, I opened the door of my room. Accused came in my room from where he entered the room of my parents and sprayed some material/article there and again came to me. The accused forced me to consume liquor and also applied liquor at my vagina and forcibly raped me. On that night, accused had raped me twice or thrice in a very brutal manner (gande tarike se). Thereafter he had forcibly administered one tablet to me saying that it would save me from getting pregnant. Accused again threatened me not to disclose about this 100 of 137 101 FIR No. 80/2009 PS - Mangol Puri incident."

As regards the plea that PW1 - prosecutrix had sufficient time to go out of the room and raise voice and save herself, is concerned, it is a matter of common experience, that different people, act/react differently under a given situation. Moreover, sight cannot be lost of the fact of the mental trauma through which PW1 - prosecutrix was undergoing when she was been threatened with revolver, in the odd hours, it may be that, she might not have gathered the courage to go out of the room and raise voice.

As regards the plea that a person having lust for sex would fulfill his lust for sex and why he would cut the hand of the prosecutrix and lick her blood is concerned, why the accused Pradeep @ Balli did so, this fact must be especially within his knowledge and burden was on him to prove it (Section 106 of Indian Evidence Act 1872). Moreover, it appears that by doing so he (accused Pradeep @ Balli) wanted to give a spine chilling fear to PW1 - prosecutrix and wanted to give a signal, if she did not accede to his carnal desire then what condition of her will be done.

In the circumstances, nothing more can be read in the testimony of PW1 - prosecutrix.

As regards the plea that when accused gave cut marks, the 101 of 137 102 FIR No. 80/2009 PS - Mangol Puri prosecutrix would have naturally suffered pain and cried and in those circumstances, it was but for natural for her parents to make them awake but they did not wake up, is concerned, no doubt cut/injury to body parts causes pain but in the circumstances of fear/terror, the pain which leads one to cry, scream evaporates and the tears dry up and moreover PW1 - prosecutrix has specifically deposed that accused Pradeep @ Balli had sprayed some material/article in the room of her parents making them unconscious. In the circumstances, even if PW1 - prosecutrix had cried, her parents would not have come to her rescue as they were made unconscious by accused by spraying some anesthetic substance.

Further the fact regarding the spraying of some material/article in the room of the parents of PW1 - prosecutrix by accused Pradeep @ Balli making them unconscious, is corroborated by PW3 - Sunita who during her crossexamination has specifically deposed that : "It is correct that I have also not heard any noise of whispering or any kind of noise on 06/03/2009 between 3:30 to 4:00 a.m. I normally get up at about 6:30 a.m. I could not wake up due to sound sleep on the alleged day of incident. On that day when I got up I was not feeling normal as "Mera Sir Bhari Tha are Chakkar Aa Rahe The"."

In the circumstances, it does not lie in the mouth of accused to utter that why PW1 - prosecutrix not cried in pain when cuts were given to 102 of 137 103 FIR No. 80/2009 PS - Mangol Puri her and why her cry did not awake her parents.

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 the prosecutrix did not disclose the incident of rape upon her of February, 2009 to anyone including her mother, brother or sister or even after the first incident of rape, she continued to sleep in her room and also continued to go to her School. PW2 and PW3 (her parents also admitted) they they were not told by PW1 about the rape incident of February, 2009. Disclosing this fact after one month to the Police is fatal to the prosecution.

I have carefully perused and analysed the evidence on record. It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from such plea. As discussed hereinabove, PW1 - prosecutrix has specifically deposed regarding the reasons as to why she did not disclose the incident of February, 2009 to anyone as the accused had threatened to kill her parents, brothers and sister if the incident is disclosed to anyone. The delay in reporting the matter to the Police has been sufficiently and satisfactorily explained by the prosecutrix.

103 of 137 104 FIR No. 80/2009 PS - Mangol Puri At the cost of repetition, the relevant part of examinationinchief of PW1 - prosecutrix reads as under : "Accused had threatened me to kill my parents and brothers and sisters in case I did not do galat kaam with him or in case I disclose to anybody about his said activities. By galat kaam I mean to say that accused had raped me. I did not disclose this incident to my parents due to threats extended by the accused to me."

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)].

The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held 104 of 137 105 FIR No. 80/2009 PS - Mangol Puri "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 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. 105 of 137 106 FIR No. 80/2009 PS - Mangol Puri 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 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 V. 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 : 106 of 137 107 FIR No. 80/2009 PS - Mangol Puri "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."

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 even otherwise if some one knocks the door of some house at the odd hours of night the old person particularly the parents remain generally more vigilant and alert instead of the young children and they first woke up but in this case they did not woke up when their room was just adjoining nor they woke up even after hearing some kind of whisper while committing rape. PW1 has not shown any resistance, nor informed her parents and remained silent and even continued to go to her School till 08/03/2009 shows the conduct of PW1, which is highly questionable and thus her statement does not inspire 107 of 137 108 FIR No. 80/2009 PS - Mangol Puri confidence. Her statement before Police and also in Court is full of self contradictions and there is no other evidence in her favour. No one knows what was the true story. PW1 cannot be believed at all under these circumstances.

I have carefully perused and analysed the evidence on record. There is no doubt that parents remain more vigilant instead of young children if someone knocks the door of the house in the odd hours of night but the Theory of "Parents remain vigilant" as propounded by the Learned Counsel for the accused does not hold water in the instant case in view of the specific and categorical testimony of PW1 - prosecutrix that accused Pradeep @ Balli in February, 2009 as well as on 06/03/2009 firstly, made the parents of the prosecutrix unconscious by spraying some anesthetic material in order to be certain that they do not awake at the time of committal of the crime by him upon the prosecutrix.

It is now well settled principle of law that conviction for rape can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to 108 of 137 109 FIR No. 80/2009 PS - Mangol Puri be reliable corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. (Ref. State of H.P. Vs. Asha Ram AIR 2006 SC 381).

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 similar circumstances have been stated by PW1 in her statement regarding the second incident of rape of dated 06/03/2009. The circumstances narrated by PW1 are even more illusionary. The act of accused of first removing the cooler and thereafter removing the window panes and then striking PW1 with danda in order to awake her is a highly improbable story because by hearing such kind of noise of removing the cooler and window panes from the window which was just adjoining to the room of her parents would have naturally awaken her parents. Even at the second time, PW1 neither tried to run away nor raised voice nor resisted despite opportunities available to her. The statement of the prosecutrix under these circumstances cannot be 109 of 137 110 FIR No. 80/2009 PS - Mangol Puri believed on the basis of facts and circumstances of the case. The statement of prosecutrix (PW1) does not inspire confidence nor the same is trustworthy. Learned Counsel for accused further submitted that the PW1 - prosecutrix also admitted three photographs of her room Ex. PW1/DA, Ex. PW1/DB and Ex. PW1/DC. From the photographs, the cooler installed in window and the iron gate proves that it was not possible for the accused to remove the cooler without any voice and in such a silent manner that no voice is heard in the adjoining room.

I have carefully perused and analysed the evidence on record. The testimony of PW1 - prosecutrix as reproduced and discussed hereinabove is clear, cogent, natural and inspires confidence. In view of it, the theory of "Highly improbable story" so propounded does not hold water. As is indicated and proved on record from the testimony of PW1 - prosecutrix that accused Pradeep @ Balli, after taking forcible entry into the room of the prosecutrix, by putting her in fear, had made it certain that her parents sleeping in the adjoining room may not awake, therefore, sprayed some anesthetic material upon them in order to be certain that they do not awake at the time when he committed the crime upon the PW1 - prosecutrix.

In the circumstances, it does not lie in the mouth of accused to 110 of 137 111 FIR No. 80/2009 PS - Mangol Puri utter that the act of removal of cooler and then removal of window panes may not have been done without producing any voice and then striking of prosecutrix with a Danda, did not awake her parents.

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 in her cross examination PW1 - prosecutrix has been confronted with her statement given to Police and in the Court at the most crucial points from A to A1 to J to J1. It shows that the prosecutrix made deliberate improvement on material points. In fact accused had never gone in the room of the prosecutrix/PW1 either in the month of February, 2009 or on 06/03/2009. Contradictory statements of PW1 did not make her a reliable witness or to believe her. Learned Counsel for accused further submitted that the prosecutrix i.e. PW1

- has not stated in her statement to Police that the accused threatened her with any revolver or pistol.

I have carefully perused and analysed the evidence on the record. It is pertinent to indicate the points 'A' to 'A1' To 'J' to 'J1' in the examinationinchief of PW1 - prosecutrix which is reproduced and 111 of 137 112 FIR No. 80/2009 PS - Mangol Puri reads as under : "In the month of February 2009 however I do not remember the exact date during night hours at about 3/3.30 am, someone knocked the door of my room on which I opened the door whereupon A the accused Pradeep @ Balli kept the revolver on my shoulder and entered my room. From there i.e my room itself he entered the room of my parents at which point of time, the accused was carrying having a bottle containing something from which he sprayed in the room of my parents and told me that now my parents have got unconscious and they will not wakeup A1. Thereafter he did galat kaam with me against my will and wish. B He also cut my hand and licked the blood which was oozing from the cut injury and got some letters written from me. Accused had threatened me to kill my parents and brothers and sisters in case I did not do galat kaam with him or in case I disclose to anybody about his said activities B1. By galat kaam I mean to say that accused had raped me. I did not disclose this incident to my parents C due to threats extended by the accused to me C1.

On 06/03/09 at about 3:30 a.m., I was sleeping in my room in the said house. D Accused Pradeep after removing the cooler which was there on the window of my room who had also removed the glass panes D1 woke me up by hitting me with a danda. Due to the fear of accused, I opened the door of my room. Accused came in my room from where he entered the room of my parents and E sprayed some material/article there E1 and again came to me. F The accused forced me to consume liquor and also applied liquor at my vagina F1 and forcibly raped me. On that night, accused had raped me G twice or thrice in a very brutal manner (gande tarike se) G1. Thereafter he had H forcibly H1 administered one tablet to me J saying that it would save me from getting pregnant J1. Accused again threatened me not 112 of 137 113 FIR No. 80/2009 PS - Mangol Puri to disclose about this incident."

PW1 - prosecutrix in her examinationinchief has specifically deposed that "IO of the case namely Prem Lata was laughing while recording my statement Ex. PW1/A and said that whatever I have to say, I must say before the Judge Sahab and she did not properly record my statement."

During her crossexamination, PW1 - prosecutrix has specifically deposed which is reproduced and reads as under : "I had told ASI Prem Lata in my statement the portions marked as 'A' to 'A1', 'B' to 'B1', 'C' to 'C1', 'D' to 'D1', 'E' to 'E1', 'F' to 'F1', 'G' to 'G1', 'H' to 'H1' and 'J' to 'J1' reflected in my examinationinchief on page no. 1 & 2. Confronted with statement Ex. PW1/A where it is (not) so recorded)."

In view of above, they are explainable variations and do not, in any way, adversely affect the case of the prosecution, for the reason that PW1 - prosecutrix has categorically stated that she had informed the Police of what she stated under oath before the Court but why it was not so recorded in her statement Ex. PW1/A recorded by the investigating officer PW27 - ASI Prem Lata would be a reason best known to the Investigating Officer. Strangely, when PW27 - ASI Prem Lata was being crossexamined, 113 of 137 114 FIR No. 80/2009 PS - Mangol Puri no such question was put to her as to why she did not completely record the statement of the witness/PW1 - prosecutrix or whether this witness had made such aforementioned statement (portions marked as A to A1 to J to J1.

In the circumstances, the said lapse/discrepancy may reflect on the investigation but does not reflect upon the substantive evidence and probative value of the statement of PW1 - prosecutrix made on relevant and material aspects. Her testimony is clear, natural, categorical, cogent, reliable and inspires confidence. Her version on the core spectrum of the crime has remained intact.

In case titled as 'Kuria & Anr. Vs. State of Rajasthan', 2012 XI AD (S.C) 376, while dealing with a similar situation, where witness stated under oath before the Court that he had informed the Police of what he stated under oath before the Court but it was not so recorded in his statement under Section 161 Cr.P.C. recorded by the Investigating Officer (IO) the Hon'ble Supreme Court has held the reason for the same would be best known to the Investigating Officer (IO). (Para 20 & 21).

Para 20 and 21 of Kuria's Case (Supra) reads as under :

20. These cannot be termed as contradictions between the statements of the witnesses. They are explainable variations which are likely 114 of 137 115 FIR No. 80/2009 PS - Mangol Puri to occur in the normal course and do not, in any way, adversely affect the case of the prosecution. Thus, there are no material contradictions in the statement of the witnesses or the documents, nor can the presence of PW15 be doubted at the place of occurrence.

21. For instance PW15, in his crossexamination, had stated before the Court that Laleng had twisted the neck of the deceased. According to the accused, it was not so recorded in his statement under Section 161, Exhibit D/2 upon which he explained that he had stated before the Police the same thing, but he does not know why the Police did not take note of the same. Similarly, he also said that he had informed the Police that the four named accused had dragged the body of the deceased and thrown it near the hand pump outside their house, but he does not know why it was not so noted in Exhibit D/2. There are some variations or insignificant improvements in the statements of PW3 and PW7. According to the learned counsel appearing for the appellants, these improvements are of such nature that they make the statement of these witnesses unbelievable and unreliable. We are again not impressed with this contention. The witnesses have stated that they had informed the Police of what they stated under oath before the court, but why it was not so recorded in their statements under Section 161 recorded by the Investigating Officer would be a reason best known to the Investigating Officer, PW16, was being crossexamined, no such question was put to him as to why he did not completely record the statements of the witnesses or whether these witnesses had made such aforementioned statements. Improvements or variations of the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the Court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses. That is not the situation here. These improvements do not create any legal impediment in accepting the statements of PW3, PW4, PW7 and PW15 made 115 of 137 116 FIR No. 80/2009 PS - Mangol Puri under oath."

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 PW1 - prosecutrix has introduced the story of revolver in her statement u/s 164 Cr.P.C. whereas she has not stated in her statement given to Police that any threat was given to her by the accused by showing revolver. She has been confronted with her statement at various material points and as such her statement in Court becomes doubtful.

I have carefully perused and analysed the evidence on the record. Although, this plea has been dealt with in detain herein above, yet coupled with the discussion made hereinabove whereby explaining the reason and basis of such variation. No doubt, there is no mentioning regarding the threat given by showing the revolver in the statement of PW1 - prosecutrix made to the Police Ex. PW1/A however, mentioning thereof has been made in her statement u/s 164 Cr.P.C. and a categorical deposition has been made regarding this by PW1 - prosecutrix in her examinationinchief as reproduced hereinbefore but such explainable 116 of 137 117 FIR No. 80/2009 PS - Mangol Puri variation by itself does not falsify the witness as it is to be noticed that it is well established that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable (Leela Ram Vs. State of Haryana (1999) 9 SCC 525).

It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).

The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such 117 of 137 118 FIR No. 80/2009 PS - Mangol Puri discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

33. Learned Counsel for accused submitted that in her cross examination PW1 - prosecutrix has admitted that the letters Ex. PW1/DD, Ex. PW1/DE and Ex. PW1/DF are in her handwriting however she voluntarily stated that those letters were got written by accused from her under force. The version/language of these letters itself speaks that letter Ex 118 of 137 119 FIR No. 80/2009 PS - Mangol Puri PW1/DD cannot be got written after giving threats by accused as alleged. The language and narration in this letter is so natural and spontaneous that it absolutely speaks itself about the natural view of the executant and further submitted that the same cannot be the result of any writing under threat or force. Similarly letters Ex. PW1/DE and Ex. PW1/DF cannot be said to have been got written by accused under any threat. The letter Ex. PW1/DD is such a lengthy letter and written so spontaneous and in legible handwriting that it cannot be possible to write in the darkness of the night. Thus the plea of PW1 is totally false and is not reliable.

I have carefully perused and analysed the evidence on the record. It is not made clear by the Learbned Counsel for the accused as to what he wants to convey, what he intends to indicate and what benefits he intends to reap by raising the said plea.

PW1 - prosecutrix, during her crossexamination recorded on 01/12/2010 has specifically deposed that : "It is wrong to suggest that I had not gone to School in the month of February, 2009 or that I had written a letter Ex. PW1/DD to accused Pradeep @ Balli after I had left the School. It is correct that the letter Ex. PW1/DD is written in ink and not in blood. As far as I remember letter mark Ex. PW1/DE and Ex. PW1/DF was got written by the accused forcibly. It is wrong to suggest that letters Ex. PW1/DE and Ex. PW1/DF (were written by 119 of 137 120 FIR No. 80/2009 PS - Mangol Puri me) voluntarily to accused Pradeep @ Balli."

Inspite of incisive crossexamination of PW1 - prosecutrix nothing material has been brought so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken.

It is also not in dispute the said letters were put to PW1 prosecutrix during her crossexamination recorded on 01/12/2010, meaning thereby accused Pradeep @ Balli admitted the existence, condition and contents and the fact that the said letters were written by PW1 - prosecutrix. But, it appears that Learned Counsel for the accused has either misread or not read the entire and complete evidence of PW1 - prosecutrix on this aspect on the record, that the said letters Ex. PW1/DD, Ex. PW1/DE and Ex. PW1/DF were got written forcibly from her (PW1 - prosecutrix) by the accused. Since the accused wishes the Court to believe in the existence of such letters Ex. PW1/DD, Ex. PW1/DE and Ex. PW1/FE, the burden of proof lies on the accused to discharge under what conditions, when and where the said letters were written by PW1 - prosecutrix; how and in what mode the same were received by the accused and that the said letters were written by the PW1 - prosecutrix voluntarily, but the accused failed to discharge such burden (Section 103 of Indian Evidence Act, 1872).

120 of 137 121 FIR No. 80/2009 PS - Mangol Puri Section 103 of Indian Evidence Act, 1872 proves for burden of proof as to particular fact. It reads as under :

103. Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

34. Learned Counsel for accused submitted that at the time of the first incident of rape in February, 2009, PW1 - prosecutrix deposed that after hearing the noise she opened the wooden door and identified the accused who was standing out and then she opened the iron gate. Thus no force or threat used by accused has been alleged by PW1. Even on second time i.e. on 06/03/2009, PW1 voluntarily opened the door and thus neither any force was used nor any threat was given by the accused.

I have carefully perused and analysed the evidence on record. The testimony of PW1 - prosecutrix is on the record as discussed hereinabove. Her testimony on careful perusal and analysis is found to be clear, natural and categorical. Her testimony clearly indicates the reasons 121 of 137 122 FIR No. 80/2009 PS - Mangol Puri and the circumstance in which accused Pradeep @ Balli gained entry into her house. Nothing more can be read in it.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

35. Learned Counsel for accused submitted that there are broad probabilities and possibilities which are to be looked into by this Court. There were ample opportunity available to PW1 not to allow the accused to enter in her room and if the accused entered to run away outside the room and to show resistance but PW1 did not avail the same intentionally and deliberately. There was no fear nor any kind of threat even given to the prosecutrix.

I have carefully perused and analysed the evidence on record. As discussed hereinabove no two persons act/react similarly in a given situation. How and why, PW1 - prosecutrix could not avail the opportunity to run away has been discussed and detailed hereinabove. No further elaboration is called for on this aspect.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

122 of 137 123 FIR No. 80/2009 PS - Mangol Puri

36. Learned Counsel for accused submitted that the prosecutrix (PW1) and PW3 - Sunita (mother of PW1) have admitted that the rented house wherein PW1 has been living with her parents (PW2 Sh. Mukesh Kumar, PW3 Ms. Sunita) was got let out to them by the accused and further admitted that they promised to vacate the same firstly in December, 2008 and thereafter by March, 2009 but they could not vacate the same and Learned Counsel for the accused further submitted that the accused has been falsely implicated as the accused was putting pressure upon PW2 and PW3 to vacate the house.

I have carefully perused and analysed the evidence on record. The testimony of PW1 - prosecutrix, PW2 - Mukesh Kumar, father of the prosecutrix and PW3 - Sunita, mother of the prosecutrix, on the aspects of letting out of the house, their promise to vacate in December, 2008 and again their promise to vacate by March, 2009 is clear, natural and categorical. They have not concealed the said facts. Learned Counsel for the accused has not explained as to in what capacity, accused Pradeep @ Balli was putting pressure upon PW2 - Mukesh Kumar and PW3 - Sunita for vacating the tenanted house. Was he (accused Pradeep @ 123 of 137 124 FIR No. 80/2009 PS - Mangol Puri Balli) the owner of the said house? Had he (accused Pradeep @ Balli) allowed to live the prosecutrix and her family in the tenanted premises without paying any rent.

In the circumstances, the theory of "False implication of accused as he was putting pressure upon PW2 - Mukesh Kumar and PW3 - Sunita for vacating the house" so propounded falls flat on the ground.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

37. Learned Counsel for accused submitted that PW2 Sh. Mukesh Kumar and PW3 Ms. Sunita, have admitted that their daughter PW1 - prosecutrix had not informed them about the incident of rape with her in the month of February, 2009 till 08/03/2009. PW2 has denied having made any telephone call from his phone 9811762953 to the mobile telephone of accused i.e. 9810003176 and 9810053176 on 7, 8, 9,10, 11/03/2009 but in CDR Ex. DW1/A there are telephone calls made by PW2 from his telephone to the mobile telephone of accused. This fact proves that PW2 is not a reliable witness and he is telling lie.

124 of 137 125 FIR No. 80/2009 PS - Mangol Puri I have carefully perused and analysed the evidence on record. On perusal and analysis of the CDR Ex. PW1/A, some calls are being shown made from mobile phone no. 9811762953 to the mobile phone nos. 9810053176 on 09/09/2009, 10/03/2009 and 11/03/2009. On 09/03/2009, one call has been made, on 10/03/2009, two calls have been made and on 11/03/2009, one call has been made. During his cross examination, PW2 - Mukesh Kumar has deposed that he has one mobile bearing no. 9811762953 and negated the suggestion that he or his family member made any call from his mobile phone to the mobile phone number 9810003176 & 9810053176 belonging to the accused continuously on date 07,08,09,10,11/03/2009 or that all these days, he made miss calls on the mobile phone of the accused from his mobile phone or the SMS messages were left on the mobile phone of the accused or that he had talked to the accused on his mobile phone for a period of 128 seconds and demanded money from the accused for withdrawing his complaint.

DW1 - Sh. Vishal Gaurav, proved that mobile phone no. 9810053176 is in the name of Pradeep Kumar S/o Raj Singh and proved the attested copy of the Customer Application Form of the said mobile number Ex. DW1/E. He further proved the attested copy of the Customer 125 of 137 126 FIR No. 80/2009 PS - Mangol Puri Application Form of mobile no. 9810003176 in the name of Sharwan Kumar S/o Satish Kumar Ex. DW1/F. Accused Pradeep @ Balli has not put any suggestion in the cross examination of PW2 - Mukesh Kumar, as to who the Sharwan Kumar is, to whom the mobile phone no. 9810003176 belongs.

Although, the categorical testimony of PW2 - Mukesh Kumar as deposed hereinabove is on the record and the calls from mobile phone number 9811762953 has been made to mobile phone no. 9810053176 on 09/09/2009, 10/03/2009 and 11/03/2009 but the call details record Ex. DW1/A does not indicate as to who is the caller and the contents of the call except for the fact the mobile phone number 9811762953 belongs to PW2 - Mukesh and mobile phone no. 9810053176 belongs to the accused. In the absence of which, one cannot presume as to who made the call and what was the contents of the calls so made.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

38. Learned Counsel for accused submitted that from the statement of PW1 - prosecutrix on carefully examining the possibility of consent which 126 of 137 127 FIR No. 80/2009 PS - Mangol Puri was not only present in the present case but almost proved and probabilised by the circumstances, which appear from the prosecutrix evidence itself.

I have carefully perused and analysed the evidence on record. On careful perusal and analysis of the testimony of PW1 - prosecutrix, as discussed and reproduced hereinabove, there is no circumstance which has appeared in the evidence of the prosecutrix nor any other evidence has come on the record which may reflect that PW1 - prosecutrix was a consenting party in the sexual intercourse committed upon her by accused Pradeep @ Balli.

In the circumstances, the theory of "possibility of consent which was not only present in the present case but almost proved and probabilised by the circumstances, which appear from the prosecutrix evidence itself" so propounded falls flat on the ground.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

39. Learned Counsel for accused submitted that PW33 Inspector Amardeep Sehgal even has not investigated the case properly. He has failed to examine the landlord/owner of the flat which was got let out by accused to 127 of 137 128 FIR No. 80/2009 PS - Mangol Puri PW2 and the allegations of nonpayment of rent and not vacating the flat despite making promise and the fact that the father of the prosecutrix PW1 was being pressurized by the accused to vacate the tenanted premises.

I have carefully perused and analysed the evidence on record. Needless to state that in a criminal matter when the Police carries out the investigation, it is being done in accordance with law for a specific aim and object.

The plea so raised appears to be defence of accused Pradeep @ Balli, which has already been discussed hereinabove. The burden is on the person for proving the fact especially within his knowledge, as provided u/s 106 of the Indian Evidence Act. In the circumstances, nonexamination of the landlord/owner of the rented flat and the noninvestigation of the allegations of the nonpayment of rent and not vacating the rented flat does not falsify the case of the prosecution, which is otherwise proved by clear, cogent and convincing evidence on the record.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

40. Learned Counsel for accused submitted that PW33 Inspector 128 of 137 129 FIR No. 80/2009 PS - Mangol Puri Amardeep Sehgal has not collected the CDR of the mobile telephone of the accused from the crime branch as the crime branch had put the telephone of the accused on surveillance and had collected the CDR from the concerned department, which has been proved by the accused in his defence evidence as DW1/A (colly.) and Ex. DW1/B. I have carefully perused and analysed the evidence on record. Undisputably, accused Pradeep @ Balli has led the defence evidence by way of examination of DW1 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd., D184, Okhla Industrial Area, PhaseI, New Delhi.

DW1 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd., D184, Okhla Industrial Area, PhaseI, New Delhi who deposed that he has brought the summoned record pertaining to mobile No. 9810003176 and 981053176. He has brought the call detail record of the above said mobile numbers for the period from 06/03/2009 till 12/03/2009. The attested copy of the call detail record pertaining to mobile no. 9810003176 is Ex. DW1/A. The attested copy of the call detail record pertaining to mobile no. 981053176 is Ex. DW1/B. Certificate U/s 65B of Indian Evidence Act for the aforesaid mobile numbers is Ex. DW1/C. He has also brought the Cell 129 of 137 130 FIR No. 80/2009 PS - Mangol Puri I.D. Chart for the aforesaid mobile numbers and the same is Ex. DW1/D (running in two pages). He has also brought the attested copy of customer application form of mobile no. 9810053176 in the name of Pradeep Kumar S/o Raj Singh is Ex. DW1/E(OSR). He has also brought the attested copy of customer application form of mobile no. 9810003176 in the name of Shravan Kumar S/o Satish Kumar is Ex. DW1/F(OSR).

Learned Counsel for the accused failed to explain the purpose of raising the said plea and as to what benefit he intends to reap from the said plea when undisputably, at the cost of repetition, he has led the defence evidence and has examined DW1 - Sh. Vishal Gaurav, Nodal Officer.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

41. Learned Counsel for accused submitted that at the alleged time of commission of offence of rape on dated 06/03/2009 at 3:30 to 4:00 a.m. the accused was not present in the house of the prosecutrix. The accused was talking to his sister at her telephone no. 61286655767 in Australia from his mobile telephone no. 9810053176 at 3:20 a.m. on dated 07/03/2009 and had talked for 1783 seconds i.e. for 29 minutes. It proved that the accused 130 of 137 131 FIR No. 80/2009 PS - Mangol Puri remained busy in talking to his sister till 3:50 a.m. and such long conversation cannot be possible from the room of the prosecutrix. Moreover, the location of the accused at that relevant time was not at the house of PW1 rather his location was village Mangol Pur Kalan, Delhi and not at Avantika where the house of PW1 is situated.

I have carefully perused and analysed the evidence on record. I have carefully perused the CDR Ex. DW1/A, the perusal of CDR Ex. DW1/A interalia reflects one call from mobile number 9810053176 at 3:20 a.m. on 07/03/2009 to telephone number 61286655767 and talking time as 1783 seconds i.e. 29 minutes.

DW1 - Sh. Vishal Gaurav has deposed that he has brought the record pertaining to mobile no. 9810053176 and proved the attested copy of the Customer Application Form of mobile no. 9810053176 in the name of Pradeep Kumar S/o Raj Singh.

Nothing has been proved that the telephone no. 61286655767 belongs to the sister of accused Pradeep @ Balli on which call was made on 07/03/2009 from telephone no. 9810053176. Nor it is reflected from the said entry in CDR Ex. DW1/A that the caller from mobile phone number 9810053176 was accused Pradeep @ Balli.

131 of 137 132 FIR No. 80/2009 PS - Mangol Puri Any suggestion regarding the said plea that on 06/03/2009 at the time of the commission of the alleged offence at 3:30 to 4:00 a.m., the accused Pradeep @ Balli was not present in the house of the prosecutrix and was talking to his sister at Australia & the talk lasted for 29 minutes was neither put to PW1 - prosecutrix nor to PW2 - Mukesh Kumar nor to PW3 - Sunita during their lengthy and incisive crossexamination. Had there been anything like, regarding which plea has been raised, the suggestion in that regard must had been put to PW1 - prosecutrix, PW2 - Mukesh Kumar and PW3 - Sunita but that has not been done. In the circumstances, it appears to be an afterthought and does not inspire confidence and the theory that, "at the alleged time of commission of offence of rape on dated 06/03/2009 at 3:30 to 4:00 a.m. the accused was not present in the house of the prosecutrix. The accused was talking to his sister at her telephone no. 61286655767 in Australia from his mobile telephone no. 9810053176 at 3:20 a.m. on dated 07/03/2009 and had talked for 1783 seconds i.e. for 29 minutes" so propounded by the accused Pradeep @ Balli falls flat to the ground.

It is also to be noticed as discussed hereinbefore that the abovesaid theory is also found to be in contradiction to the plea taken by 132 of 137 133 FIR No. 80/2009 PS - Mangol Puri accused Pradeep @ Balli in an interim anticipatory bail application moved by him in the Hon'ble Delhi High Court on the basis of the medical that he was admitted in MR Hospital, Karala, Delhi from 04/03/2009 to 08/03/2009 regarding which case vide FIR No. 100/09 at PS

- Kanjhawala u/s 417/511/465/471/193/120B IPC was registered against him.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

42. Learned Counsel for accused referred to the cases and are reported as 'Surjan and Ors. Vs. State of M.P.', AIR 2002 SC 476, 'Dilip and Anr. Vs. State of M.P.', AIR 2001 SC 3049, 'Ajit Kumar Vs. State', 1997(@) C.C. Cases 283 (HC), 'Umesh Kumar Vs. State', 1997(2) C.C. Cases 287 (HC), 'Ajit Kumar Vs. State', 1998 [1] JCC 36 [Delhi], 'Satyavir Singh Rathi Vs. State (through CBI)', 1998 [1] JCC 39 [Delhi], 'Chidda Ram Vs. State', 1992 (2) C.C. Cases 225 (HC), 'Diwan Singh Vs. The State', 1998 [2] JCC [Delhi] 122, 'Madhuresh Vs. C.B.I.', 1998 [2] JCC [Delhi] 127, 'Hari Chand Vs. State', 2000[1] JCC [Delhi] 46, 'Ashok Kumar Jha Vs. State of Bihar', 133 of 137 134 FIR No. 80/2009 PS - Mangol Puri 2002 [3] JCC 2004, 'Vishwajit Shankar Khavanekar Vs. State of Maharashtra', 2002 [3] JCC 2007 and 'Pratap Mishra & Ors. Vs. State of Orissa', AIR 1977 SC 1307.

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 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 desination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".

43. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that in the month of February, 2009 accused Pradeep @ Balli committed the offence of house breaking by night by entering into House No. A9A, Avantika Enclave, Mangol Puri, Delhi at about 3:00/3:30 a.m. which was in possession of parents of PW1 Prosecutrix and was being used as a human dwelling, by 134 of 137 135 FIR No. 80/2009 PS - Mangol Puri threatening PW1 Prosecutrix with assault with the help of a country made pistol Ex. P5 having made preparation for causing hurt to PW1 Prosecutrix and in the month of February, 2009 and later on, on 06/03/2009 at about 3:30 a.m. at House No. A9A, Avantika Enclave, Mangol Puri, Delhi, he committed rape on PW1 Prosecutrix after sprinkling some material/article or stupefying thing on the parents of PW1 Prosecutrix while they were sleeping with intent to commit or to facilitate the commission of offence of rape upon PW1 Prosecutrix and he also criminally intimidated PW1 Prosecutrix by threatening to kill her parents, her brother and her sister, with intent to cause alarm to her and further, on 11/04/2009 he got recovered the said country made pistol Ex. P5 which was used for threatening PW1 prosecutrix loaded with one live cartridge from the Opel Astra car bearing No. DL6CG0079 Ex. P6 which was parked in front of Flat No. 607, Pocket - A, Sector - 6, Narela.

However, prosecution has failed to prove beyond shadows of all reasonable doubt, its case against accused Arvind Kumar that on 09/03/2009 onwards he had harboured accused Pradeep @ Balli at his village Barota, District Sonipat, Haryana and whereafter at flat of Dharamvir, situated at Pocket - A, Sector - 6, Janta Flat, Narela and also at flat situated at Sector -

135 of 137 136 FIR No. 80/2009 PS - Mangol Puri 16, Rohini, Delhi and also provided food etc. to him knowing that he is an accused.

I, accordingly, hold accused Pradeep @ Balli guilty for the offences punishable u/s 458/376/328/506(II) IPC and u/s 25 Arms Act, 1959 and convict him thereunder.

I accordingly acquit accused Arvind Kumar for the offence punishable u/s 212 Cr.P.C.

44. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Pradeep @ Balli in the commission of the offences u/s 458/376/328/506(II) IPC and u/s 25 Arms Act, 1959 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 Pradeep @ Balli beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Pradeep @ Balli. I, therefore, hold accused Pradeep @ Balli guilty for the offences punishable u/s 458/376/328/506(II) IPC and u/s 25 Arms Act, 1959 and convict him thereunder. As regards accused Arvind Kumar, I am of the considered opinion that prosecution has failed to prove 136 of 137 137 FIR No. 80/2009 PS - Mangol Puri its case beyond reasonable doubt against accused Arvind Kumar. He is given the benefit of doubt and is acquitted for the offence punishable u/s 212 Cr.P.C. The bail bond of accused Arvind Kumar u/s 437A Cr.P.C. shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such Court issues notice in respect of any petition filed against this judgment.

Announced in the open Court (MAHESH CHANDER GUPTA) on 15th Day of May, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 137 of 137

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State vs . 1. Pradeep @ Balli on 15 May, 2013