Delhi District Court
State vs . Sanjay on 30 January, 2016
1
FIR No. 39/14
PS - Swaroop Nagar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 61/14
Unique ID No. : 02404R0104932914
State Vs. Sanjay
S/o Hari Shankar
R/o C2, DCM Colony
Nathu Pura, Delhi.
FIR No. : 39/14
Police Station : Swaroop Nagar
Under Sections : 376 IPC & 66A, 67A IT Act
Date of committal to session Court : 22.04.2014
Date on which judgment reserved : 28.01.2016
Date on which judgment announced : 30.01.2016
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 44 2 FIR No. 39/14 PS - Swaroop Nagar That on 29.01.14 WASI Veena was present at PS Swaroop Nagar Prosecutrix (name withheld being a case u/s. 376 IPC) D/o Sh.Kadar Nath R/o H. No.D43A Nathupura, Delhi came to the police station and made the statement to WSI Veena which is to the effect that, she lives at the above address with her family and studies in 12th class in Sarvodaya Kanya Vidalaya. Sanjay S/o Hari Shankar who lives in her neighbourhood does the work of motor mechanic on the Nathupura Mor, with whom she was having friendship for the last about one year and he also used to drop her at her school by a vehicle (gadi mae). Sanjay a few times (kae baar) had told her to establish physical relation with her by saying that he loves her and will perform the marriage with her but she used to refuse him for establishing physical relation. In the month of August in the morning time, when she was going to the School, then Sanjay met her and said to her that he is to do some urgent talks with her in isolation (aakele mae) and took her in a room built on the backside of his shop situated at Nathupura Mor and he started talking with her and he made her drink a cup of tea, after drinking the same she lost her consciousness and Sanjay started doing 'Galat Kaam' with her but due to being under intoxication (nashae kai karan) she could not stop him.
2 of 44 3 FIR No. 39/14 PS - Swaroop Nagar When she regained consciousness, she was lying there in a naked condition and Sanjay was present there. She silently came to her house and due to fear of public shame and defame (loklajja kay dar se) she did not disclose anything to anyone and thereafter, Sanjay had committed 'Galat Kaam' with her two or three times more at the same place saying that if she did not agree for making the physical relation with her then he will disclose to all (sab ko bata dunga). Later on, she came to know that Sanjay is also having friendship with other girls, on which she (Prosecutrix) broke the friendship with Sanjay. Sanjay used to meet her intermittenly (Beech Beech main) while she used to go for school and started saying to her for making the physical relation. On her refusal Sanjay told her that he is having the video of the physical relation made with her by him and if she will not agree for making the physical relation then he will put the video in the public domain (sab jagah fella daega). She did not pay any heed to his talks. Now she has come to know that Sanjay had made a video of the "Galat Kaam" committed with her by him in August and he has distributed the same to the public persons. She will produce the video of the "Galat Kaam" committed with her. She can identify Sanjay who has committed "Galat Kaam" with her. The 3 of 44 4 FIR No. 39/14 PS - Swaroop Nagar statement has been heard and is correct. On the basis of the statement and from the circumstances finding that offences u/s 376 IPC and 66A/67A IT Act appeared to have been committed, the case got registered and the investigation was proceeded with by WSI Veena. On 29.01.14 the medical examination of the Prosecutrix was got conducted from BJRM Hospital vide MLC No. 72945. Counselling of the Prosecutrix was got done from NGO Sampurna. On 30.01.14 (be read as 31.01.14) HIV test of the Prosecutrix was got done which was found negative. On 29.01.14 on the identification of the Prosecutrix accused Sanjay was arrested and his disclosure statement was recorded. His medical examination was got conducted from BJRM Hospital vide MLC No. 73401 and potency test was also got conducted. The sealed exhibits handed over by the doctor after his medical examination were taken into police possession and were deposited in the Malkhana. Memory card after taking out from the mobile phone, from which the video was prepared was taken into police possession. Site plan was prepared. The photographs of the spot were taken. On 30.01.14 statement of the Prosecutrix u/s 164 Cr.P.C got recorded. The date of birth certificate of the Prosecutrix was obtained from the school. Statements of the 4 of 44 5 FIR No. 39/14 PS - Swaroop Nagar witnesses were recorded. Sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offences u/s 376 IPC, 66A/67A IT Act was prepared against accused Sanjay and was sent to the court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case u/s 328/376 IPC and u/s 67A IT Act was made out against accused Sanjay. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and 5 of 44 6 FIR No. 39/14 PS - Swaroop Nagar examined 15 witnesses. PW1 - W/ASI Bala Devi, PW2 - Dr. Avanish Tripathi, CMO, BJRM Hospital, Delhi, PW3 - HC Surendra Singh, PW4
- Dr. R. Kappu, MO, BJRM Hospital, Delhi, PW5 - Dr. R.S. Mishra, CMO, BJRM Hospital, Delhi, PW6 - Inspector Sanjay Drall, PW7 - Ct. Jogender Singh, PW8 - Ct. Narender, PW9 -Prosecutrix (name withheld), PW10 - Smt. Asha, PW11 Lady Constable Sandeep, PW12 Dr. Bhim Singh, Associate Professor, Department of Forensic Medicine, Subharti Medical College, Meerut (UP), PW13 Sh. Sandeep Gupta, Metropolitan Magistrate, North01, Rohini, Delhi, PW14 - Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. and PW15 - SI Veena.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - W/ASI Bala Devi is the Duty Officer, who deposed that on 29.01.2014, she was posted as Duty Officer in PS Swaroop Nagar and was on duty from 8.00 AM to 8.00 PM. On that day, at about 7.00 PM, SI Veena handed over a Tehrir to her on the basis of which she got recorded FIR No. 39/14, U/s 376 IPC and U/s 66A/67A IT Act through 6 of 44 7 FIR No. 39/14 PS - Swaroop Nagar the computer operator on the computer installed in PS. She obtained a print out of the FIR. This print out has been obtained on the basis of information which is used in the routine manner for the purpose of feeding the similar category. The said computer was under her lawful control. Nothing adverse took place during the period as to cause any error regarding the information feeded in the computer. The copy of FIR is Ex. PW1/A bearing her signature at PointA (OSR). She handed over the copy of FIR to Ct. Jogender for handing over the same to SI Veena. She also issued a certificate U/s 65B of The Evidence Act which is Ex. PW1/B bearing her signature at Point A. She made endorsement on the rukka and the same is Ex. PW1/C, bearing her signature at point A. PW2 - Dr. Avanish Tripathi, CMO, BJRM Hospital, Delhi, who deposed that on 29.01.2014 he was posted as CMO at BJRM hospital. On that day at about 10.45 PM one patient Sanjay S/o Sh. Hari Shanker Age 24 Years, Male has been brought to the hospital by police for medical examination/potency test. Dr. Munindra Kumar, JR has conducted the preliminary examination of patient Sanjay under his supervision and then referred the patient to Forensic Deptt. Dr. Munindra 7 of 44 8 FIR No. 39/14 PS - Swaroop Nagar Kumar, JR prepared the detailed MLC of patient Sanjay under his supervision which is Ex. PW2/A bearing Dr. Munindra Kumar signature at PointA and bearing his signature at PointB. PW3 - HC Surendra Singh is the MHC(M), who deposed that on 30.01.2014 he was posted as MHC(M) in PS Swaroop Nagar. On that day SI Veena handed over one sealed pulinda sealed with the seal of 'BJRM Hospital DELHI FMT' and one pulinda containing SIM CARD with the seal of 'GSR' and one pulinda containing mobile sealed with the seal of 'GSR' alongwith one sample seal of 'BJRM Hospital DELHI FMT' to him for depositing in the Malkhana and same were deposited by him in the malkhana and he made entry at serial no. 667 in register no.
19. He has brought the original register No. 19. Copy of the same is Ex. PW3/A. On 22.02.2014, he handed over two sealed pulindas with the seal of 'GSR' to W/SI Veena for depositing in FSL Rohini vide RC No. 14/21/14. W/SI Veena had deposited the same in FSL Rohini. After depositing she handed over the acknowledgment to him. He has brought the original RC book and acknowledgment. Copy of the RC is Ex. PW3/B & copy of acknowledgment Ex. PW3/C (O.S.R). Sealed 8 of 44 9 FIR No. 39/14 PS - Swaroop Nagar pulindas remained intact during his custody.
PW4 - Dr. R. Kappu, MO, BJRM Hospital, Delhi, who deposed that she is deputed by MS, BJRM Hospital to depose in Court on behalf of Dr. Latika Phogat, SR Gynae who has left the services of the hospital and her present whereabouts are not known. She has seen MLC No.72945 pertaining to Prosecutrix (name withheld) D/o Kedar Nath, age 21 yrs., who was referred by Dr. Pankaj, JR Casualty to Gynae, SR for her medical examination. On her local examination, vulva healthy and old tear in hymen at 6.00 clock position. Uterus normal size and bilateral adnexa were found normal. Her examination on the MLC is Ex. PW4/A bearing the note in the handwriting of Dr. Latika Phogat from point X to X and her signature at point A. She can identify handwriting of Dr. Latika Phogat as she has seen her writing and signing in the course of her official duties.
PW5 - Dr. R.S. Mishra, CMO, BJRM Hospital, Delhi, who deposed that he has been deputed by the MS of the hospital to depose on behalf of Dr. Pankaj who has left the services of Hospital and his 9 of 44 10 FIR No. 39/14 PS - Swaroop Nagar present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Pankaj as he has seen him signing and writing during the official course of the duties. As per the MLC No. 72945, on 29.01.2014 patient/prosecutrix (name withheld) D/o Kedar Nath, age 21 yrs. Female was produced in the hospital for her medical examination. The said examination is from Portion 'Y to Y1' on the MLC already Ex. PW 4/A, bearing the signature of Dr. Pankaj at point B. PW6 - Inspector Sanjay Drall is the Subsequent Investigating Officer (IO) of the case, who deposed that on 29.01.14 he was posted at PS Swaroop Nagar as SHO. Present case was got registered by WSI Veena. During the investigation, WSI Veena had collected the chip of mobile of the accused Sanjay. He added the section 66A/67A IT Act. After completion of investigation he filed the chargesheet against the accused Sanjay.
PW7 - Constable Jogender Singh, who deposed that on 29.01.14 he was posted at PS Swaroop Nagar as Constable. On that day, Prosecutrix (name withheld) came to the police station along with her mother. IO WSI Veena recorded her statement and made endorsement 10 of 44 11 FIR No. 39/14 PS - Swaroop Nagar and same was handed over to duty officer for getting FIR registered. Thereafter, prosecutrix was taken to BJRM Hospital by W/Constable Sandeep and WSI Veena for her medical examination. After registration of the case, duty officer handed over original rukka and computerized copy of FIR to him. He reached to BJRM Hospital and origial (original) rukka and computerised copy was handed over to WSI Veena. Thereafter, they went to DCM Colony, Nathupura in search of accused Sanjay. Accused Sanjay present in the court (correctly identified) was arrested from the gali of C2 vide arrest memo Ex. PW3/A bearing his signature at point A. Personal search of accused was taken vide memo Ex. PW3/B. Accused made a disclosure statement which is Ex. PW3/C. Thereafter, he along with WSI Veena took the accused to BJRM Hospital for his medical examination. After medical examination they came back to PS Jahangirpuri. Accused was put behind the lockup. His statement was recorded by the IO.
PW8 - Constable Narender, who deposed that on 30.01.14 he was posted at PS Swaroop Nagar as Const. On that day, accused Sanjay was taken out from the lockup and he had joined the investigation and thereafter, accused led them to his house and had 11 of 44 12 FIR No. 39/14 PS - Swaroop Nagar produced one mobile phone make Carbon (Karbonn) and accused also disclosed that he had videographed the act committed by him upon the prosecutrix. IO had taken out the memory card from the mobile phone which after putting in the match box was seized vide seizure memo Ex. PW8/A bearing his signature at point A. Mobile phone was also seized vide seizure memo Ex. PW8/B bearing his signature at point A. Thereafter, he took the accused to BJRM Hospital for his medical examination and the blood sample taken by the doctor, the same along with the sample seal was handed over to the IO which was seized vide seizure memo Ex. PW8/C bearing his signature at point A. Thereafter, accused was produced before the concerned court and was sent to J/C. IO also got recorded the statement of the prosecutrix u/s 164 Cr.P.C. His statement was also recorded by the IO.
PW9 - Prosecutrix is the victim who deposed some facts regarding the incident and proved her statement made to the police Ex. PW9/A; proved her statement u/s 164 Cr.P.C Ex. PW9/B and proved her marriage certificate regarding her marriage with accused 12 of 44 13 FIR No. 39/14 PS - Swaroop Nagar Sanjay Ex. PW9/PX. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW10 - Smt. Asha is the mother of the prosecutrix, who deposed that she has one son and five daughters namely Suman, prosecutrix (name withheld), Priyanka, Vandana, Sanchi. My daughter/prosecutrix (name withheld) used to study in Sarvodya Kanya Vidyalaya Burari in class 12th. Accused Sanjay present in the court (Correctly identified) resides in gali no. 11, and accused was having a love affair with Anjali and Anjali was friend of my daughter/prosecutrix (name withheld). One day her daughter/prosecutrix (name withheld) told her that Anjali and prosecutrix (name withheld) used to go to school by bus. Accused Sanjay had taken her daughter alongwith her friend Anjali from school and he dropped her friend at Nathu Pura and accused had taken her daughter to Abrahim Pur. Accused had offered tea to her daughter and she had taken the tea and she became unconscious and accused had committed rape upon her. Her daughter also told her that accused used to call her after threatening her. One day he had committed sexual intercourse with her and prepared videography of acts of sexual 13 of 44 14 FIR No. 39/14 PS - Swaroop Nagar act. She had also watched the videography of sexual relation of accused with her daughter. She alongwith her daughter went to police station and lodged a report. Her daughter was taken to BJRM hospital for her medical examination. Thereafter she alongwith her daughter came back to their home and accused Sanjay was over powered by police. Her statement was recorded by IO.
PW11 Lady Constable Sandeep, who has deposed that on 29.1.14, she was posted at PS - Swaroop Nagar. On that day on the instructions of IO SI Veena, she alongwith SI Veena took the Prosecutrix (name withheld) D/o Kedar Nath to BJRM hospital for her medical examination. She got conducted the medical examination of prosecutrix and she obtained the MLC of prosecutrix. Thereafter she alongwith IO and prosecutrix went to DCM colony in search of accused Sanjay. Accused Sanjay present in the court (Correctly identified) was arrested from near his house vide arrest memo Ex. PW3/A. Constable Jogender had also joined the investigation as he was present in the area and personal search of accused was taken and accused made disclosure statement. Accused Sanjay was taken to the hospital for his medical 14 of 44 15 FIR No. 39/14 PS - Swaroop Nagar examination. Thereafter they came back to PS and her statement was recorded by IO.
PW12 Dr. Bhim Singh, Associate Professor, Department of Forensic Medicine, Subharti Medical College, Meerut (UP), who deposed that on 30.1.14, he was posted at BJRM hospital. On that day one person namely Sanjay was brought in the hospital by Ct. Narender of PS - Swaroop Nagar for potency test. He had conducted the potency test of Sanjay. There was nothing to suggest that the person namely Sanjay was not capable of performing the sexual intercourse and he prepared his report in this regard which is Ex. PW12/A bearing his signature at point A and blood samples in gauze piece and sample seal were handed over to the police personal.
PW13 Sh. Sandeep Gupta, Metropolitan Magistrate, North01, Rohini, Delhi, who deposed that on 30.01.2014, he was posted as MM at Rohini Courts. On that day, an application for recording the statement u/s 164 Cr.P.C. was marked to him. On the same day i.e 15 of 44 16 FIR No. 39/14 PS - Swaroop Nagar 30.01.2014 IO W/SI Veena, PS Swaroop Nagar appeared before him alongwith the prosecutrix (name withheld). He recorded the statement u/s 164 Cr.P.C of the prosecutrix (name withheld) which is Ex. PW9/B vide detailed proceedings which are Ex. PW13/A bearing his signatures at Point - B on each page. After recording the statement, IO moved an application for supply of the proceedings conducted by him which was allowed by him vide his endorsement Ex. PW13/B bearing his signatures at PointA. He issued a certificate which is Ex. PW13/C bearing his signatures at point B. After recording the statement of prosecutrix, the same was sent in a sealed cover/envelope Ex. PW13/D. PW14 - Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd., 224, Okhla, PhaseIII, Delhi, who deposed that he has been deputed on the behalf of Vishal Gaurav as he has worked with Vishal Gaurav and he is well acquainted with his signatures and handwriting as he has seen him writing and signing during the course of duty. Vishal Gaurav has left the service and his present whereabouts are not known. He has brought summoned record i.e. Original Customer Application Forms and the CDR of Mobile No. 9717923606 As per record the Mobile No. 16 of 44 17 FIR No. 39/14 PS - Swaroop Nagar 9717923606 was allotted in the name of Sanjay Bharti S/o Hari Shankar R/o C2, DCM Colony, Ibrahimpur Ext., Delhi36. Attested copy of Customer Application Form (CAF) alongwith ID proof as Ration Card is Ex.PW14/A (OSR) bearing seal impression of company and signature of Vishal Gaurav at point A. He has also brought Call Detail Record (CDR) of the abovesaid mobile number from 01.06.2013 to 29.01.2014 (running in six pages) which is Ex.PW14/B bearing signatures of Vishal Gaurav at PointA (on each page). Certificate u/s 65B Evidence Act of the above said mobile number which is Ex.PW14/C bearing signature of Vishal Gaurav at point A. PW15 SI Veena is the Investigating Officer (I.O) of the case, who deposed that on 29.01.2014 she was posted at PS Swaroop Nagar. On that day Prosecutrix (name withheld) came in the PS. She called the NGO from Sampurana. After some time Madhu Dass NGO came in the PS. She recorded the statement of prosecutrix Ex. PW9/A bearing her signature at point B and bearing the signature of prosecutrix (name withheld) at point A. She made her endorsement on the statement of prosecutrix (name withheld) which is Ex. PW15/A bearing her 17 of 44 18 FIR No. 39/14 PS - Swaroop Nagar signature at point A and same was handed over to duty officer for getting FIR registered. Mother of the prosecutrix namely Asha was also called to the PS. After some mother of the prosecutrix came in the PS meanwhile duty officer handed over original rukka and computerized copy of FIR to her for further investigation of the case. She alongwith Lady Constable Sandeep mother of the prosecutrix took the prosecutrix to BJRM hospital Jahangir Puri. Where she got conducted the medical examination of the prosecutrix. After medical examination she obtained the MLC of the prosecutrix. Doctor advised her to conduct the HIV test of the prosecutrix. Thereafter they came at the PS. Thereafter they reached at the spot i.e. behind the shop Nathupura Road, Delhi where at the instance of the prosecutrix she prepared the site plan which is Ex. PW15/B bearing her signature at point A. She called the Constable Narender and Constable Jogender from PS Swaroop Nagar, they came at the spot. Constable Narender and Constable Jogender also joined the investigation. They proceed towards DCM colony Nathupura at the instance of the prosecutrix Sanjay present in the court was arrested from the gali of C2 vide arrest memo Ex. PW3/A bearing her signature at point C and bearing signature of accused at point D and personal search 18 of 44 19 FIR No. 39/14 PS - Swaroop Nagar of the accused was taken vide memo Ex. PW3/B bearing her signature at point B. Accused made a disclosure statement which Ex. PW3/C bearing her signature at point B and bearing the signature of accused at point C. Thereafter she alongwith Constable Narender took the accused to BJRM hospital for his medical examination. She got conducted the medical examination of the accused Sanjay. After medical examination doctor handed over one sealed parcel containing blood sample of accused with the seal of BJRM Hospital Delhi FMT and one sample seal to her. Same were taken into possession vide seizure memo Ex.PW8/C bearing her signature at point B. Thereafter they reached to PS Jahangir Puri and accused was put inside the lock up. They came back to PS Swaroop Nagar case property was deposited in the malkhana. On 30.01.2014 she alongwith Constable Narender and Constable Jogender reached PS Jahangir Puri. From where accused Sanjay was taken out from the lock up and he led them to his house i.e. C2, DCM Colony, Delhi and accused got recovered one mobile phone make Karbon and she mentioned the EMI no. on the seizure memo and mobile was taken in possession vide seizure memo Ex. PW8/B bearing her signature at point B. Memory card of the mobile phone was also kept in the match 19 of 44 20 FIR No. 39/14 PS - Swaroop Nagar box with the seal of GSR and taken into possession vide seizure memo Ex. PW8/C (be read as Ex. PW8/A) bearing her signature at point B and bearing the signature of accused at point C. Thereafter they took the accused to BJRM hospital for getting potency test conducted. Thereafter accused was produced before the concerned court and he was sent to the judicial custody. On the same day she alongwith the prosecutrix and her mother again came to Rohini Court and she got recorded the statement of prosecutrix u/s 164 Cr. PC which is Ex. PW9/B. Thereafter prosecutrix alongwith her mother left Rohini Court. On 31.01.2014 prosecutrix came to the PS and she took the prosecutrix to BJRM hospital for getting HIV test conducted. During the investigation she obtained the birth certificate and other documents (of the prosecutrix) from school of Burari. On 17.02.2014 on the instruction of the senior officers she handed over the case file to MHC(R). She correctly identified the accused present in the court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
20 of 44 21 FIR No. 39/14 PS - Swaroop Nagar
6. It is to be mentioned that on 15.12.2015 accused Sanjay made the statement in the Court and admitted the Grade sheet cum Certificate of performance for the Secondary School Examination (Session 201012) issued by Central Board of Secondary Education, Delhi to the prosecutrix wherein her date of birth is mentioned as 25.12.1992. The said certificate is Ex. PX1. He had also stated that he has 'no objection', if the concerned witness from the school is not examined in the court as a witness.
7. Statement of accused Sanjay was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Sanjay did not opt to lead any defence evidence.
8. Learned Counsel for the accused submitted that prosecutrix has not supported the prosecution and the prosecution has failed to prove its case beyond reasonable doubts and prayed for the acquittal of the accused on the charge levelled against him.
9. While the Learned Addl. PP for the State, on the other hand, 21 of 44 22 FIR No. 39/14 PS - Swaroop Nagar submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
10. I have heard Sh. Ashok Kumar, Learned Addl. PP for the State and Sh. Amulya Anand, Learned Counsel for the accused and have also carefully perused the entire record.
11. The charge for the offences punishable u/s 328/376 IPC and u/s 67A IT Act against the accused Sanjay is that in the month of August, 2013, in a room behind a shop at Nathu Pura Mod, within the jurisdiction of PS - Swaroop Nagar, accused Sanjay administered some intoxicant substance in tea to prosecutrix (name withheld) D/o Sh. Kedar nath, Aged about 21 years, due to which she became intoxicated and in that condition he committed rape upon prosecutrix (name withheld) without her consent and against her will and that during the period from August, 2013 to January, 2014, accused Sanjay published or transmitted 22 of 44 23 FIR No. 39/14 PS - Swaroop Nagar the obscene video of prosecutrix (name withheld) in the electronic form i.e through his mobile phone make 'Karbonn' which video contained sexually explicit act, to various public persons.
12. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
13. It is to be mentioned that on 15.12.2015 accused Sanjay made the statement in the court and admitted the Grade sheet cum Certificate of performance for the Secondary School Examination (Session 201012) issued by Central Board of Secondary Education, Delhi to the prosecutrix wherein her date of birth is mentioned as 25.12.1992. The said certificate is Ex. PX1. He had aslostated that he has 'no objection', if the concerned witness from the school is not examined in the court as a witness.
23 of 44 24 FIR No. 39/14 PS - Swaroop Nagar On perusal of the Grade sheet cum Certificate of performance of the Prosecutrix Ex. PX1, it is clearly indicated that her date of birth has been mentioned as 25.12.1992.
In the circumstances, it stands established on the record that the date of birth of the prosecutrix is 25.12.1992.
Moreover, the said factum of age of PW9 - prosecutrix has also not been disputed by accused Sanjay. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
As the date of birth of PW9 - Prosecutrix is 25.12.1992 and the date of alleged incident is in the month of August, 2013, on simple arithmetical calculation, the age of the prosecutrix comes to 20 years, 07 months and 06 days as on the date of alleged incident on 01.08.2013 in the month of August, 2013.
In the circumstances, it stands proved on record that 24 of 44 25 FIR No. 39/14 PS - Swaroop Nagar PW9 - Prosecutrix was aged 20 years, 07 months and 06 days as on the date of alleged incident on 01.08.2013, in the month of August, 2013.
MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW4 - Dr. R. Kappu, MO, BJRM Hospital, Delhi has deposed that she is deputed by MS, BJRM Hospital to depose in Court on behalf of Dr. Latika Phogat, SR Gynae who has left the services of the hospital and her present whereabouts are not known. She has seen MLC No.72945 pertaining to prosecutrix (name withheld) D/o Kedar Nath, age 21 yrs., who was referred by Dr. Pankaj, JR Casualty to Gynae, SR for her medical examination. On her local examination, vulva healthy and old tear in hymen at 6.00 clock position. Uterus normal size and bilateral adnexa were found normal. Her examination on the MLC is Ex. PW4/A bearing the note in the handwriting of Dr. Latika Phogat from point X to X and her signature at point A. She can identify handwriting of Dr. Latika Phogat as she has seen her writing and signing in the course of her official duties.
PW5 - Dr. R.S. Mishra, CMO, BJRM Hospital, Delhi, has 25 of 44 26 FIR No. 39/14 PS - Swaroop Nagar deposed that he has been deputed by the MS of the hospital to depose on behalf of Dr. Pankaj who has left the services of Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Pankaj as he has seen him signing and writing during the official course of the duties. As per the MLC No. 72945, on 29.01.2014 patient/prosecutrix (name withheld) D/o Kedar Nath, age 21 yrs. Female was produced in the hospital for her medical examination. The said examination is from Portion 'Y to Y1' on the MLC already Ex. PW 4/A, bearing the signature of Dr. Pankaj at point B. Despite grant of opportunity, PW4 - Dr. R. Kappu and PW5
- Dr. R.S. Mishra were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical and gynaecological examination from Portion 'Y to Y1' and from Point 'X to X' on the MLC Ex. PW4/A of PW9 - Prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED 26 of 44 27 FIR No. 39/14 PS - Swaroop Nagar
15. PW2 - Dr. Avanish Tripathi, CMO, BJRM Hospital, Delhi, has deposed that on 29.01.2014 he was posted as CMO at BJRM hospital. On that day at about 10.45 PM one patient Sanjay S/o Sh. Hari Shanker Age 24 Years, Male has been brought to the hospital by police for medical examination/potency test. Dr. Munindra Kumar, JR has conducted the preliminary examination of patient Sanjay under his supervision and then referred the patient to Forensic Deptt. Dr. Munindra Kumar, JR prepared the detailed MLC of patient Sanjay under his supervision which is Ex. PW2/A bearing Dr. Munindra Kumar signature at PointA and bearing his signature at PointB. PW12 Dr. Bhim Singh, Associate Professor, Department of Forensic Medicine, Subharti Medical College, Meerut (UP), has deposed that on 30.1.14, he was posted at BJRM hospital. On that day one person namely Sanjay was brought in the hospital by Ct. Narender of PS - Swaroop Nagar for potency test. He had conducted the potency test of Sanjay. There was nothing to suggest that the person namely Sanjay was not capable of performing the sexual intercourse and he prepared his report in this regard which is Ex. PW12/A bearing his signature at point A and blood samples in gauze piece and sample seal were handed over to 27 of 44 28 FIR No. 39/14 PS - Swaroop Nagar the police personal.
Despite grant of opportunity, PW2 - Dr. Avanish Tripathi and PW12 Dr. Bhim Singh were not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Sanjay was capable of performing sexual intercourse.
16. Now let the testimony of PW9 Prosecutrix be perused and analysed.
PW9 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I along with my parents reside in the abovesaid house at H. No. D43, Nathupura, Delhi. Accused Sanjay used to reside in C2, DCM Colony, Nathupura, Delhi and he was a motor mechanic and he used to visit in my gali and I started talking to him. I can identify Sanjay 28 of 44 29 FIR No. 39/14 PS - Swaroop Nagar if shown to me.
At this stage, the wooden partition has been removed. Accused Sanjay is present in the court (correctly identified).
The wooden partition now has been restored to its original position.
Accused Sanjay used to drop me in the school sometimes by the bike and sometimes by the car. He used to say to me that he wanted to marry with me, to which I agreed and I also wanted to marry with him but my parents did not allow me to marry with accused. The physical relations were established between me and accused Sanjay with my own free consent. He had also videographed the act of making of physical relations between me and him which was videographed with my own consent. I had also loaded the said videography in my mobile phone. Before 15 days of lodging of FIR my sister had watched the videography in my mobile phone and my sister had shown that videography to my mother, on which my mother asked regarding the same. I told her (my mother) that I love him (Sanjay) and also wanted to marry with him, on which I was given beatings by my family members. My family members were not ready for the said marriage. My family members had also gone to the house of accused Sanjay but it was found that he had gone to his native village. When accused Sanjay had come back from his village, I was pressurised by my family members to lodge a false report against him and under the threat, pressure, coercion of my family members I lodged the report with the police which is Ex. PW9/A bearing my signature at point A. My medical examination was got conducted by the police.
My statement u/s 164 Cr.P.C was also recorded by the Ld 29 of 44 30 FIR No. 39/14 PS - Swaroop Nagar MM.
At this stage, a sealed envelope sealed with the seal of SG lying on the judicial record is opened from which the proceedings u/s 164 Cr.P.C are taken out. Statement u/s 164 Cr.P.C is shown to the witness who identifies her signature at point A on each page. Vol. The said statement was made by me under the threat and pressure of my family members and on their tutoring. The statement u/s 164 Cr.P.C is Ex. PW9/B. I have already married with accused Sanjay, the copy of the marriage certificate is Mark PW9/PX (OSR). I do not want to say anything else."
From the aforesaid narration of PW9 - prosecutrix, it is clear that she with her parents reside in the house at H. No. D43, Nathupura, Delhi. Accused Sanjay used to reside in C2, DCM Colony, Nathupura, Delhi and he was a motor mechanic and he used to visit in her gali and she started talking to him. She correctly identified the accused Sanjay present in the Court. Accused Sanjay used to drop her in the school sometimes by the bike and sometimes by the car. He used to say to her that he wanted to marry with her, to which she agreed and she also wanted to marry with him but her parents does not allow her to marry with accused. The physical relations were established between her and accused Sanjay with her own free consent. He had also videographed 30 of 44 31 FIR No. 39/14 PS - Swaroop Nagar the act of making of physical relations between her and him which was videographed with her own consent. She had also loaded the said videography in her mobile phone. Before 15 days of lodging of FIR her sister had watched the videography in her mobile phone and her sister had shown that videography to her mother, on which her mother asked regarding the same. She told her (her mother) that she loves him (Sanjay) and also wanted to marry with him, on which she was given beatings by her family members. Her family members were not ready for the said marriage. Her family members had also gone to the house of accused Sanjay but it was found that he had gone to his native village. When accused Sanjay had come back from his village, she was pressurised by her family members to lodge a false report against him and under the threat, pressure, coercion of her family members she lodged the report with the police which is Ex. PW9/A bearing her signature at point A. Her medical examination was got conducted by the police. Her statement u/s 164 Cr.P.C Ex. PW9/B was also recorded by Learned MM bearing her signature at point 'A' on each page. Vol. The said statement was made by her under the threat and pressure of her family members and on their tutoring. She has already married with 31 of 44 32 FIR No. 39/14 PS - Swaroop Nagar accused Sanjay, the copy of the marriage certificate is Mark PW9/PX.
PW9 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "I am 12th class pass. My marriage with accused Sanjay had taken place on 07.03.14. It is wrong to suggest that accused Sanjay was arrested by the police on my identification.
At this stage, the arrest memo Ex. PW3/A is shown to the witness who identifies her signature at point B. vol. Police had obtained my signature on the plain/blank papers. It is wrong to suggest that the contents of the arrest memo Ex. PW3/A was read over to me or that thereafter I had signed the same at point B. It is wrong to suggest that I have not lodged the complaint Ex. PW9/A under the threat and pressure of my family members or that the same was voluntarily lodged by me of my own. It is wrong to suggest that the physical relations between me and accused Sanjay were not established with my own free consent or that I am deposing falsely in this regard. It is wrong to suggest that I have voluntarily made the statement u/s 164 Cr.P.C Ex.PW9/B without being under any threat, pressure and tutoring of my family members. It is correct that I have not stated to the Ld MM at the time of recording of my statement u/s 164 Cr.P.C that I was under the threat, pressure and tutoring of my family members. It is wrong to suggest that the videography of the act of establishing of physical relations between me and accused Sanjay was done by accused Sanjay without my consent. It is wrong to suggest that 32 of 44 33 FIR No. 39/14 PS - Swaroop Nagar accused Sanjay had sold the video clips to the children against money. It is wrong to suggest that accused Sanjay on the basis of the video clip had threatened me to stop my going to the school. It is wrong to suggest that in August 2013 accused Sanjay had administered some intoxicating substance to me after mixing the same in tea or that when I was under the influence of intoxication accused Sanjay had established physical relations with me without my consent.
It is wrong to suggest that I am concealing the true and the actual facts in order to save accused Sanjay who is now my husband. It is wrong to suggest that I have been won over by the accused or that I have been pressurised by accused who is now my husband to conceal the truth. It is wrong to suggest that I am deposing falsely. "
During her crossexamination by the Learned Counsel for the accused, PW9 - Prosecutrix has deposed that : "It is correct that I am making the statement with my own free will without under the pressure of anyone including the accused. It is correct that the physical relations were established between me and the accused with my consent. "
On analysing the entire testimony of PW9 - Prosecutrix it is clearly indicated that during her examinationinchief she has specifically deposed that, she with her parents was residing at H.No. D43, Nathupura, Delhi, Accused Sanjay used to reside in C2, DCM 33 of 44 34 FIR No. 39/14 PS - Swaroop Nagar Colony, Nathupura, Delhi and he was a motor mechanic and he used to visit in her gali and she started talking to him. She correctly identified the accused Sanjay present in the Court. Accused Sanjay used to drop her in the school sometimes by the bike and sometimes by the car. He used to say to her that he wanted to marry with her, to which she agreed and she also wanted to marry with him but her parents does not allow her to marry with accused. The physical relations were established between her and accused Sanjay with her own free consent. He had also videographed the act of making of physical relations between her and him which was videographed with her own consent. She had also loaded the said videography in her mobile phone. Before 15 days of lodging of FIR her sister had watched the videography in her mobile phone and her sister had shown that videography to her mother, on which her mother asked regarding the same. She told her (her mother) that she loves him (Sanjay) and also wanted to marry with him, on which she was given beatings by her family members. Her family members were not ready for the said marriage. Her family members had also gone to the house of accused Sanjay but it was found that he had gone to his native village. When accused Sanjay had come back from his village, she was 34 of 44 35 FIR No. 39/14 PS - Swaroop Nagar pressurised by her family members to lodge a false report against him and under the threat, pressure, coercion of her family members she lodged the report with the police which is Ex. PW9/A bearing her signature at point A. Her medical examination was got conducted by the police. Her statement u/s 164 Cr.P.C Ex. PW9/B was also recorded by Learned MM bearing her signature at point 'A' on each page. Vol. The said statement was made by her under the threat and pressure of her family members and on their tutoring. She has already married with accused Sanjay, the copy of the marriage certificate is Mark PW9/PX. During her crossexamination by the Learned Counsel for the accused, PW9 - Prosecutrix has deposed that she is making the statement with her own free will without under the pressure of anyone including the accused and that the physical relations were established between her and the accused with her consent. She negated the suggestions put to her by the Learned Addl. PP for the State that accused Sanjay was arrested by the police on her identification or that the contents of the arrest memo Ex. PW3/A was read over to her or that thereafter she had signed the same at PointB or that she has not lodged the complaint Ex. PW9/A under the threat and pressure of her family 35 of 44 36 FIR No. 39/14 PS - Swaroop Nagar members or that the same was voluntarily lodged by her of her own and that the physical relations between her and accused Sanjay were not established with her own free consent or that she is deposing falsely in this regard or that she has voluntarily made the statement u/s 164 Cr.P.C Ex.PW9/B without being under any threat, pressure and tutoring of her family members or that the videography of the act of establishing of physical relations between her and accused Sanjay was done by accused Sanjay without her consent or that accused Sanjay had sold the video clips to the children against money or that accused Sanjay on the basis of the video clip had threatened her to stop her going to the school or that in August 2013 accused Sanjay had administered some intoxicating substance to her after mixing the same in tea or that when she was under
the influence of intoxication accused Sanjay had established physical relations with her without her consent or that she is concealing the true and the actual facts in order to save accused Sanjay who is now her husband or that she has been won over by the accused or that she has been pressurised by accused who is now her husband to conceal the truth or that she is deposing falsely.
36 of 44 37 FIR No. 39/14 PS - Swaroop Nagar As discussed hereinbefore, PW9 - Prosecutrix has been found to be aged around 21 years, from the testimony of PW9 - Prosecutrix, nothing is being indicated that in the month of August, 2013, in a room behind a shop at Nathu Pura Mod, accused Sanjay administered some intoxicant substance in tea to PW9 - Prosecutrix, due to which she became intoxicated or that in that condition he committed rape upon the Prosecutrix without her consent and against her will or that during the period from August, 2013 to January, 2014, accused Sanjay published or transmitted the obscene video of the Prosecutrix in the electronic form i.e through his mobile phone make 'Karbonn' which video contained sexually explicit act, to various public persons.
Now, let the testimony of PW10 - Smt. Asha, mother of the Prosecutrix be perused and analysed.
PW10 - Smt. Asha in her examinationinchief has deposed that : "I have one son and five daughters namely Suman, Prosecutrix (name withheld), Priyanka, Vandana, Sanchi. My daughter Prosecutrix (name withheld) used to study in Sarvodya Kanya Vidyalaya 37 of 44 38 FIR No. 39/14 PS - Swaroop Nagar Burari in class 12th. Accused Sanjay present in the court (Correctly identified) resides in gali no. 11, and accused was having a love affair with Anjali and Anjali was friend of my daughter Prosecutrix (name withheld). One day my daughter Prosecutrix (name withheld) told me that Anjali and Prosecutrix (name withheld) used to go to school by bus. Accused Sanjay had taken my daughter alongwith her friend Anjali from school. And he dropped her friend at Nathu Pura and accused had taken my daughter to Abrahim Pur. Accused had offered tea to my daughter and she had taken the tea and she became unconscious and accused had committed rape upon her. My daughter also told me that accused used to call her after threatening her. One day he had committed sexual intercourse with her and prepared videography of acts of sexual act. I had also watched the videography of sexual relation of accused with my daughter. I alongwith my daughter went to police station and lodged a report. My daughter was taken to BJRM hospital for her medical examination. Thereafter I alongwith my daughter came back to our home and accused Sanjay was over powered by police. My statement was recorded by IO. "
From the aforesaid narration of PW10 Smt. Asha, mother of the prosecutrix it is clear that she has one son and five daughters namely Suman, Prosecutrix (name withheld), Priyanka, Vandana, Sanchi. My daughter/Prosecutrix (name withheld) used to study in Sarvodya Kanya Vidyalaya Burari in class 12th. Accused Sanjay present in the court (Correctly identified) resides in gali no. 11, and accused was having a love affair with Anjali and Anjali was friend of my daughter/Prosecutrix
38 of 44 39 FIR No. 39/14 PS - Swaroop Nagar (name withheld). One day her daughter/Prosecutrix (name withheld) told her that Anjali and Prosecutrix (name withheld) used to go to school by bus. Accused Sanjay had taken her daughter alongwith her friend Anjali from school and he dropped her friend at Nathu Pura and accused had taken her daughter to Abrahim Pur. Accused had offered tea to her daughter and she had taken the tea and she became unconscious and accused had committed rape upon her. Her daughter also told her that accused used to call her after threatening her. One day he had committed sexual intercourse with her and prepared videography of acts of sexual act. She had also watched the videography of sexual relation of accused with her daughter. She alongwith her daughter went to police station and lodged a report. Her daughter was taken to BJRM hospital for her medical examination. Thereafter she alongwith her daughter came back to their home and accused Sanjay was over powered by police. Her statement was recorded by IO.
On careful perusal and analysis of the testimony of PW10 - Asha, mother of the Prosecutrix, it is found that nothing material has come out in her testimony so as to advance the case of the prosecution on 39 of 44 40 FIR No. 39/14 PS - Swaroop Nagar the core spectrum of the crime. Nor her testimony finds corroboration from the testimony of PW9 - Prosecutrix on the material aspects. Moreover, the facts deposed by PW10 - Smt. Asha during her examinationinchief that, "Accused Sanjay present in the court (Correctly identified) resides in gali no. 11, and accused was having a love affair with Anjali and Anjali was friend of my daughter/Prosecutrix (name withheld). One day her daughter/Prosecutrix (name withheld) told her that Anjali and Prosecutrix (name withheld) used to go to school by bus. Accused Sanjay had taken her daughter alongwith her friend Anjali from school. And he dropped her friend at Nathu Pura and accused had taken her daughter to Abrahim Pur. Accused had offered tea to her daughter and she had taken the tea and she became unconscious and accused had committed rape upon her. Her daughter also told her that accused used to call her after threatening her. One day he had committed sexual intercourse with her and prepared videography of acts of sexual act. She had also watched the videography of sexual relation of accused with her daughter. She alongwith her daughter went to police station and lodged a report" is not supported by PW9 - Prosecutrix, who during her examinationinchief has specifically deposed that, "Accused 40 of 44 41 FIR No. 39/14 PS - Swaroop Nagar Sanjay used to reside in C2, DCM Colony, Nathupura, Delhi and he was a motor mechanic and he used to visit in her gali and she started talking to him. She correctly identified the accused Sanjay present in the Court. Accused Sanjay used to drop her in the school sometimes by the bike and sometimes by the car. He used to say to her that he wanted to marry with her, to which she agreed and she also wanted to marry with him but her parents does not allow her to marry with accused. The physical relations were established between her and accused Sanjay with her own free consent. He had also videographed the act of making of physical relations between her and him which was videographed with her own consent. She had also loaded the said videography in her mobile phone. Before 15 days of lodging of FIR her sister had watched the videography in her mobile phone and her sister had shown that videography to her mother, on which her mother asked regarding the same. She told her (her mother) that she loves him (Sanjay) and also wanted to marry with him, on which she was given beatings by her family members. Her family members were not ready for the said 41 of 44 42 FIR No. 39/14 PS - Swaroop Nagar marriage. Her family members had also gone to the house of accused Sanjay but it was found that he had gone to his native village. When accused Sanjay had come back from his village, she was pressurised by her family members to lodge a false report against him and under the threat, pressure, coercion of her family members she lodged the report with the police which is Ex. PW9/A bearing her signature at point A." She negated the suggestions, as were put to her by the Learned Counsel for the accused that she was very well in the know of the fact accused Sanjay and her daughter /Prosecutrix wanted to marry with each other or that she had given beatings to her daughter /Prosecutrix when the parents of accused Sanjay had approached her with marriage proposal with her daughter / Prosecutrix or that her daughter/Prosecutrix had not disclosed her about the incident regarding which she has deposed in her examinationinchief or that she is deposing falsely.
17. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Sanjay. The hostility of PW9 - Prosecutrix has knocked out the 42 of 44 43 FIR No. 39/14 PS - Swaroop Nagar bottom of the case of the prosecution. There is nothing on record to indicate that in the month of August, 2013, in a room behind a shop at Nathu Pura Mod, accused Sanjay administered some intoxicant substance in tea to PW9 - Prosecutrix, Aged around 21 years, due to which she became intoxicated or that in that condition he committed rape upon the Prosecutrix without her consent and against her will or that during the period from August, 2013 to January, 2014, accused Sanjay published or transmitted the obscene video of the Prosecutrix in the electronic form i.e through his mobile phone make 'Karbonn' which video contained sexually explicit act, to various public persons.
I accordingly, acquit accused Sanjay for the offences punishable u/s 328/376 IPC and u/s 67A IT Act.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Sanjay in the commission of offences punishable u/s 328/376 IPC and u/s 67A IT Act, is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring 43 of 44 44 FIR No. 39/14 PS - Swaroop Nagar the guilt home to the accused Sanjay beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Sanjay. I, therefore, acquit accused Sanjay for the offences punishable u/s 328/376 IPC and u/s 67A IT Act after giving him the benefit of doubt. Accused Sanjay is on bail. However, u/s 437A Cr.P.C accused Sanjay shall furnish a personal bond in the sum of Rs. 20,000/ with a surety in the like amount and the accused and the surety shall also require to annex their latest passport size photographs alongwith their latest residential proof (vide State Vs. Virender Yadav & Anr. 2014 1 AD (DELHI) 389) which 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 30th Day of January, 2016 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 44 of 44