Delhi District Court
State vs . Karan Bhasin on 20 October, 2015
1
FIR No. 235/10
PS - S. P. Badli
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 11/13
Unique ID No. : 02404R017412012
State Vs. Karan Bhasin
S/o Sh. Surender Bhasin
R/o Sector - 18,
Millennium Apartments,
Delhi.
FIR No. : 235/10
Police Station : S. P. Badli (Crime Branch)
Under Section : 376 IPC
Date of committal to session Court : 11/09/2012
Date on which judgment reserved : 03/10/2015
Date on which judgment announced : 17/10/2015
J U D G M E N T
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1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 09/08/2010, complainant/prosecutrix (name withheld being a case u/s 376 IPC) D/o Late Sh. Man Singh, R/o B13, ID Hospital, Kingsway Camp, Delhi submitted a complaint at PS - Samai Pur Badli, in which she stated that she (prosecutrix) D/o Late Sh. Man Singh, R/o B13, ID Hospital, Kingsway Camp, Delhi - 110009 is working as water carrier in Delhi Police and posted in PHQ. Her date of birth is 27/12/1985. She got married to Amit in August, 2008 but due to some differences they divorced at Tis Hazari Court and she came back to her parental family. In February, 2010, she met one Karan, S/o Surender Bhasin, R/o Sector18, Millennium Apartment, Rohini, Delhi at McDonald, Model Town, who had also come there along with his friend Mohit. Karan followed her and asked for her friendship, initially she refused but later on was trapped in his talks. On the calling of Karan she started roaming with him here and there and mostly they used to meet at Metro Walk. Whenever, Karan used to get an opportunity, he used to attempt to do 'galat harkat' (wrong act) with her, which she objected to but he did not refrain himself from his wrong acts (harkato sey) and used 2 of 109 3 FIR No. 235/10 PS - S. P. Badli to get commit molestation/touching again and again (bar bar ched chad kar hi leta tha). One day he asked to meet her family and on meeting them he placed the proposal for performing marriage with her on which she and her family did not hide the factum of her previous marriage with Amit and told him everything about it. Despite this, he (Karan) agreed to perform marriage with her on which her family members seeing no objection from Karan gave their consent. After this, she started doing long conversation with Karan on telpehone and started roaming with him more frequently than earlier. When the family members of Karan came to know about their affair, then the family members of Karan alongwith his friend Mohit came to her house to meet them and talked about their marriage. During the meetings Karan always pressurized her for making physical relations with her on which she had told him that she will make physical relations with him only after the marriage, on which Karan said now their marriage naturally will be performed (ab to hamari shadi ho hi jaegi). He on conversing like this and in the name of love exploited her. One day, he took her to Sector - 18, Paradise Apartments in his car and there after parking his car in a corner he made her to drink some cold drink laced with sedatives, due to which she became drowsy and then he 3 of 109 4 FIR No. 235/10 PS - S. P. Badli committed intercourse with her against her will and without her consent and thereafter, he had repeatedly made physical relations with her after giving fraudulent inducement of marriage (shadi ka jhansa de kar) and after making her consume some intoxicating material. Under her drowsiness he had also got written something from her which she does not remember. Karan also got introduced her to all his friends Mohit, Ankit Soni, Kushal Huda as their would be Bhabhi. One day she felt that she is pregnant and she got herself done the urine test by which it was confirmed that she was pregnant. She told this fact regarding her pregnancy to Karan on which he asked her to get the abortion done which she refused but one day he, against her will, fraudulently made her to drink something due to which her abortion took place. In the month of June, 2010 one day Karan got made a call through his friend Mohit that his (Karan) marriage is taking place and Karan also told the fact regarding the taking place of his marriage on telephone and by this fact of his marriage taking place, she was shocked and she stopped talking to him. Thereafter, he (Karan) himself again contacted with her and told her that his marriage has not taken place and he was just telling a lie and again he started assuring her, of love and of marriage (dobara se pyar ki 4 of 109 5 FIR No. 235/10 PS - S. P. Badli aur shadi ki duhai dene laga). For some days, all was going well but slowly slowly she felt that he was ignoring her and then she found out that he was having an affair with another girl. One day she (prosecutrix) asked him to meet but he started showing his hesitation (woh aana kani karne laga) but later on he agreed to meet her. On meeting him, she asked him for performing the marriage but he started making false excuses. During the said talkings (inhee baato kae dauran) he made her drink water after bringing it from some where. After some time when Karan had gone, she started feeling problem in breathing and started coughing (khasi hone lagi). On seeing her condition, one boy who was passing nearby therefrom took her to Saroj Hospital. After some time, her family members also come at the Hospital on being informed by the doctor. Thereafter, Karan and his friend Ankit Soni also came there. Karan told her that he will marry with her and also told her that she should give the statement to the Police that she herself had consumed Begon. She did what he told her to do and when Police came, she stated that she had consumed the Begon of her own. After that she got information from his friends that he (Karan) was making a fool of her. On 18th July, Karan clearly refused for the performance of marriage. She 5 of 109 6 FIR No. 235/10 PS - S. P. Badli repeatedly requested to Karan for the performance of marriage but Karan told her he will not marry with her and whatever she want to do can do. After that she talked to Karan's mother and his elder sister but Karan's mother did not pay any heed. Karan, under the fraudulent promise of marriage sexually assaulted her against her wish. Legal action be taken against Karan for the crime committed upon her. On the basis of complaint finding that offence u/s 376 IPC appeared to have been committed, the case was got registered and the investigation was taken up by Inspector Hari Ram Malik, ATO, PS - S. P. Badli. Later on, investigation of the case was transferred to Crime Branch vide order dated 14/08/2010 and the investigation was carried out by Inspector Poornima. During the course of investigation, complainant was got medically examined vide MLC No. 31.EN No. 70437 on 27/08/2010. On 10/09/2010, investigation was entrusted to Inspector R. P. Sharma. On 30/09/2010, complainant joined the investigation and gave a written request that investigation be kept pending for some time. On 05/12/2010 complainant again joined the investigation and requested for recording of her statement u/s 164 Cr.P.C. On 03/01/2011, statement of complainant was got recorded wherein she alleged rape but did not want to proceed 6 of 109 7 FIR No. 235/10 PS - S. P. Badli legally against Karan. Again on 05/01/2011, complainant joined the investigation and gave a written statement requesting therein for the recording of her supplementary statement u/s 164 Cr.P.C and with this request she also enclosed a medical certificate and affidavit but the application for recording the supplementary statement u/s 164 Cr.P.C was dismissed by the Court of Sh. Vishal Singh, Learned MM vide order dated 07/02/2011. During investigation, it was learnt that prior to the request for recording her statement u/s 164 Cr.P.C., the complainant filed an affidavit on 09/11/2010 for quashing of the present FIR vide Crl. MC No. 3535/2010 filed by Karan before the Hon'ble Delhi High Court. The said petition was dismissed by the Hon'ble Delhi High Court on 15/11/2010. Apart from this, complainant also gave in writing to the investigating agency that no rape was committed upon her by Karan and whatever was happened was with the consent and she did not want to proceed in the case. Complainant is working with Delhi Police as Fourth Class Employee and also appeared before Senior Officers and gave in writing that she did not want to proceed with the FIR as Karan did not rape her and she consented for the physical relation with Karan. During investigation, accused Karan also joined the investigation. The 7 of 109 8 FIR No. 235/10 PS - S. P. Badli conduct of the complainant to mislead the investigating agency to fulfill her crafty purpose of falsely implicating Karan in a rape case has been exposed. Accordingly, a cancellation report with the prayer for action against the complainant u/s 182 IPC was filed in the concerned Court of Learned Metropolitan Magistrate, Rohini, Delhi. However, the Learned Metropolitan Magistrate after perusing the record, took the cognizance of the offence punishable u/s 376 IPC and summoned the accused Karan Bhasin vide order dated 01/08/2012.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376 IPC was made out against accused Karan Bhasin. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
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4. In support of its case prosecution has produced and examined 13 witnesses. PW1 - W/HC Nambu Sherpa, PW2 - HC Raj Kumar, PW3 - Inspector Hari Ram Malik, PW4 - Dr. Abhilasha, SR Gynae, Dr. BSA Hospital, Rohini, Delhi, PW5 - HC Pramod Kumar, PW6 - Prosecutrix (name withheld), PW7 - Sh. Vishal Singh, Learned Civil Judge, Tis Hazari Courts, Delhi, PW8 - Sh. Ankit Soni, PW9 - Sh. Mohit Kohli, PW10 - Inspector Purnima Panthri, PW11 - Smt. Rama Devi, PW12 - Kushal, PW13 - Ms. Sunena and PW14 - Inspector Arti Sharma.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - W/HC Nambu Sherpa, who deposed that on 27/08/2010, she alongwith IO Inspector Purnima took complainant/ prosecutrix (name withheld) in BSA Hospital for medical examination. She was medically examined. After medical examination, Doctor handed over the sealed pullinda containing the exhibits which were 9 of 109 10 FIR No. 235/10 PS - S. P. Badli seized by the IO vide seizure memo Ex. PW1/A, bearing her signature at point 'A'. On 31/08/2010, complainant/prosecutrix (name withheld) handed over one Top of light green colour and the same was put up into pullinda and sealed with the seal of PP and the same was seized vide memo Ex. PW1/B, bearing her signature at point 'A'. She correctly identified one light green coloured top which was handed over by the complainant as Ex. P1.
PW2 - HC Raj Kumar is the duty officer, who deposed that on 09/08/2010, he was posted as Duty Officer in PS - S. P. Badli and was on duty from 5:00 p.m. to 1:00 a.m. midnight. On that day, at about 9:40 p.m., he received a rukka from Inspector Rajender Dubey. On the basis of which and on his instructions, the present FIR No. 235/10 u/s 376 IPC was registered. After registration of FIR, he handed over the copy of FIR and original Rukka to Inspector Hare Ram for further investigation. He has brought the FIR register. The copy of FIR is Ex. PW2/A (Original seen and returned). He made endorsement on the Rukka and the same bears his signatures at point 'A'.
10 of 109 11 FIR No. 235/10 PS - S. P. Badli PW3 - Inspector Hari Ram Malik is the initial Investigating Officer (IO) of the local police, of the case, who deposed that on 09/08/2010, he was posted as Addl. SHO, PS - S. P. Badli. On that day, after registration of FIR, Duty Officer handed over to him the copy of FIR and original Rukka for further investigation. Complainant/ prosecutrix (name withheld) was also found present in the Police Station. On that day, medical examination of complainant/prosecutrix (name withheld) could not be conducted due to late hours. On 11/08/2010, complainant/prosecutrix (name withheld) alongwith her mother Smt. Rama Devi, Smt. Sunaina, Mohit Kohli, Ankit Soni and Kushal Huda came in the Police Station and he recorded their statements. Thereafter, he alongwith complainant and her mother reached in Paradise Apartment, Sector 18, Rohini and he prepared the site plan at the instance of complainant which is Ex. PW3/A, bearing his signature at point 'A'. Due to ill health of the complainant, her medical examination could not conducted on that day. On 14/08/2010, the investigation of the present case was transferred in the Crime Branch and he handed over the case file to MHC(R).
11 of 109 12 FIR No. 235/10 PS - S. P. Badli PW4 - Dr. Abhilasha, SR Gynae, Dr. BSA Hospital, Rohini, Delhi, who deposed that on 27/08/2010, she was posted as Senior Resident in Dr. BSA Hospital, Rohini. On that day, one patient/prosecutrix (name withheld) D/o Man Singh, aged 24 years female, was brought to Hospital with alleged history of sexual assault by her boy friend Karan as told by patient herself. There was history of sexual assault four to five times since April 2010. She also gave history of aborting her pregnancy unknowingly by giving her some pills by Karan in June 2010. Last sexual contact with Karan around 16th July 2010. On examination patient was conscious well oriented. Patient was married and divorced in January, 2008 from her husband. Per abdominal examination - soft. Local examination no obvious fresh external injury seen. Per vaginal examination os closed uterus retroverted retroflex normal size firm/ mobile. Bilateral fornices free. External genetalia well developed. No obvious fresh external injury was seen on other body parts. Urine pregnancy test negative. Samples taken, sealed and handed over to concerned Police officer. She prepared the MLC and the same is Ex. PW4/A bears her signatures at point 'A'.
12 of 109 13 FIR No. 235/10 PS - S. P. Badli PW5 - HC Pramod Kumar is the MHC(M), who deposed that on 27/08/2010, he was posted as MHC(M) in PS - S. P. Badli. On that day, Inspector Purnima deposited one sealed pullinda sealed with the seal of 'SD' alongwith sample seal in the Malkhana. He made entry at Serial No. 6238 in Register No. 19. On 31/08/2010, Inspector Purnima deposited one sealed pullinda sealed with the seal of 'PP' in the Malkhana. He made entry at Serial No. 6243 in Register No. 19. He has brought the Register No. 19. The copy of the relevant entries of Register No. 19 is Ex. PW5/A (collectively)(OSR). Sealed pullindas remained intact during his custody.
PW6 - Prosecutrix (name withheld) is the victim who deposed regarding the incident and proved her complaint Ex. PW6/A made to the Police bearing her signature at point 'A', proved her statement recorded u/s 164 Cr.P.C. Ex. PW6/B bearing her signature at point 'A'. She also proved the seizure memo of her cloth, one lady Top of Light Green Colour Ex. PW1/B bearing her signature at point 'B' and identified and proved the Lady Top of Light Green Colour as Ex. P1.
13 of 109 14 FIR No. 235/10 PS - S. P. Badli PW7 - Sh. Vishal Singh, Learned Civil Judge, Tis Hazari Courts, Delhi, who deposed that on 03/01/2011, he was posted as MM at Rohini Courts. On that day, an application filed by Inspector Aasti Sharma for recording the statement u/s 164 Cr.P.C. was marked to him by Learned ACMM, Sh. Manish Gupta. He recorded the statement of witness/prosecutrix (name withheld) on Oath u/s 164 Cr.P.C. in the Court Chamber attached to his Court. The proceedings is Ex. PW7/A (running into three pages) bearing his signatures at points 'B' to 'F'. Upon completion of the statement, the IO Inspector Aarti Sharma applied for the copy of the same, the application is Ex.PW7/B. The application was allowed and bears his signatures at point 'X'. Thereafter, the entire proceedings was kept in a sealed pullinda, sealed with the Court seal and was sent to the concerned Court.
PW8 - Sh. Ankit Soni is the friend of the accused, who deposed that he knows accused Karan present before the Court as he is his friend. About 45 years prior to today (29/08/2014), accused Karan used to reside in Millennium Apartment, Sector - 18, Rohini. He is also knowing prosecutrix (name withheld) as she was friend of accused 14 of 109 15 FIR No. 235/10 PS - S. P. Badli Karan and he introduced prosecutrix (name withheld) before him. They i.e. accused, he and prosecutrix (name withheld) used to meet in restaurant and they also used to go for outing in Delhi. One Mohit who is also his friend, used to accompany them during their meeting in Coffee Shops or in other restaurants. He is not able to recollect the date, month and year however, about 4 years prior to today (29/08/2014), accused Karan called him in his house. At that time, he was attending the function of his relative. He went to the house of accused Karan and from there they went to Saroj Hospital, Rohini as prosecutrix (name withheld) was admitted there. Accused Karan informed him about the admission of prosecutrix (name withheld) in Saroj Hospital. At that time, prosecutrix (name withheld) was admitted in the ICU of Saroj Hospital. Jyoti, sister of prosecutrix (name withheld) was also present in the Hospital. She (Jyoti) did not inform him about the reason as to why prosecutrix (name withheld) was admitted in Saroj Hospital. On the same day, accused Karan was also discharged from the Hospital after the operation of his shoulder. After about 56 months of this incident (admission of prosecutrix (name withheld) in Saroj Hospital), she prosecutrix (name withheld) met him outside the Millennium Society 15 of 109 16 FIR No. 235/10 PS - S. P. Badli and informed that the relations between her and accused Karan broke up (Karan Se Breakup Ho Gaya Hai). Police made inquiry from him in connection with the present case and he informed the same facts (which he has deposed in the Court) to Police. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW9 - Sh. Mohit Kohli is the friend of the accused, who deposed that he knows accused Karan present in the Court. He is his friend. He is knowing accused Karan since the year 20082009 when accused Karan shifted in the Millennium Apartment, Sector - 18, Rohini, Delhi. He is also knowing Ankit who is residing in the same Millennium Apartment and he is his friend. He is also knowing prosecutrix (name withheld) as she was introduced by accused Karan before him and Ankit. They all are common friends. Initially, prosecutrix (name withheld) was only a friend of accused Karan but later on an affair was developed between both of them. He does not remember the date, month and year due to lapse of long time. About five years have been passed. On one day accused Karan asked him to accompany him to Ghaziabad as he 16 of 109 17 FIR No. 235/10 PS - S. P. Badli (Karan) received the phone call of prosecutrix (name withheld) that she had gone to Ghaziabad for attending a function and she called him (accused Karan) to take her back to Delhi. Then he alongwith accused Karan went to Ghaziabad by the car of accused Karan and took the prosecutrix from Ghaziabad. On the way prosecutrix (name withheld) told accused Karan that she had not taken the dinner, then they alongwith prosecutrix (name withheld) went to City Park Hotel for having dinner. Thereafter, prosecutrix (name withheld) was dropped at her house. Thereafter, he had met with prosecutrix (name withheld) for about 23 times. On one occasion accused Karan called him at Paradise Apartment, Sector - 18, Rohini, Delhi by stating that there was some problem in his car (Usne Bataya Gadi Gharab Ho Gai). He went to Paradise Apartment where accused Karan and prosecutrix met him. He was informed that car was not starting (Usne Bataya Gadi Start Nahi Ho Rahi Hai), thereafter he and accused Karan pushed the car and then it got started. Thereafter they left that place. He was informed by his friend Ankit that Police came to his shop and they were calling him. He went to the shop of Ankit there Police made inquiries from him. He has stated the same facts to the Police which he has stated in the Court. He resiled 17 of 109 18 FIR No. 235/10 PS - S. P. Badli from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW10 - Inspector Purnima Panthri is the initial Investigating Officer (IO), of the Crime Branch, of the case, who deposed that on 17/08/2010, she was posted as Inspector in Crime Branch SIT. On that day, the present case file was marked to her for further investigation. She perused the case file. On 27/08/10, she called complainant/prosecutrix (name withheld) in the Office of Crime Branch. She made inquiries from prosecutrix (name withheld) about her complaint. She alongwith Lady HC Nambu Sherpa took the prosecutrix (name withheld) to BSA Hospital for her medical examination. After the medical examination of the prosecutrix Doctor handed over one sealed parcel sealed with the seal of 'SD' alongwith sample seal to Lady HC Nambu Sherpa which was seized by her vide seizure memo already Ex. PW1/A bearing her signatures at point 'B'. She recorded the statement of witnesses. The sealed exhibits were deposited with MHC(M). On 31/08/2010, prosecutrix (name withheld) came to the office of Crime Branch. She produced a light green colour top by stating that with this 18 of 109 19 FIR No. 235/10 PS - S. P. Badli top accused Karan Bhasin had cleaned himself on the day of incident i.e. 1617/05/2010 after committing rape upon her. She further stated that the said top was washed by her. This top was sealed by her with the seal of 'PP' and it was seized vide memo already Ex. PW1/B bearing her signatures at point 'C'. She recorded the statement of witnesses. On 10/09/2010, the further investigation of this case was handed over to Inspector Arti. She correctly identified one green colour lady's top being same which was produced by the prosecutrix and seized by her as already Ex. P1.
PW11 - Smt. Rama Devi is the mother of the prosecutrix, who deposed that she has five children, out of which four are daughters and one is son. Prosecutrix (name withheld) is her second child. Her husband has expired on 11th July and about five years have been passed. After the death of her husband her memory power got weak (Mere Pati Ki Maut Ke Baad Meri Yaadasht Kamzor Ho Gai Hai). Her daughter/prosecutrix (name withheld) informed about her friendship with Karan. She saw Karan only once. She correctly identified accused Karan, present in the Court. She does not know anything else. She does 19 of 109 20 FIR No. 235/10 PS - S. P. Badli not (know) anything about the present case. She does not know by whom the complaint of the present case was filed and why the complaint was filed. Police did not record her statement. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW12 - Kushal is the friend of the accused, who deposed that he knows accused Karan present in the Court (correctly identified). He is his friend. Prior to 4/5 years accused Karan used to reside in Sector 18, Rohini, Delhi, however, later on he shifted to Sector 24, Rohini, Delhi. Accused Karan introduced prosecutrix (name withheld) to him by saying that she is his friend. He met prosecutrix (name withheld) one or two times. Accused Karan Bhasin told him that prosecutrix (name withheld) is his friend and except this he didn't inform him anything about prosecutrix (name withheld). Police recorded his statement during investigation of this case. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
20 of 109 21 FIR No. 235/10 PS - S. P. Badli PW13 - Ms. Sunena is the friend of the prosecutrix, who deposed that now she is residing at Sant Nagar Burari with her husband Sh. Samuel. Prosecutrix (name withheld) is her friend and she knew her since her school days. She does not remember the exact date and month, however, in the year 2011, she alongwith her friend/prosecutrix (name withheld) went to MCD Model Town, Delhi. Her friend Karan also came in McD Model Town and her friend/prosecutrix (name withheld) proposed him for marriage. She correctly identified accused Karan Bhasin present in the Court. She does not know anything else about the present case. She also does not know what had happened with prosecutrix (name withheld) after their meeting in McD. Police met her during investigation of this case and recorded her statement. She does not want to say anything else. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW14 - Inspector Arti Sharma is the subsequent Investigating Officer (IO) of the Crime Branch, of the case, who deposed that on 10/09/2010, she was posted with SIT Crime Branch, Rohini as 21 of 109 22 FIR No. 235/10 PS - S. P. Badli Inspector. On that day, the present case file was marked to her for further investigation of the case. She perused the case file. She contacted the complainant/prosecutrix (name withheld) for joining the investigation who came to the Office of SIT - Crime Branch on 30/09/2010. She gave a written request to her mentioning to keep pending the investigation of this case for some more time. The application of the prosecutrix dated 30/09/2010 is Ex. PW14/A bearing the signatures of prosecutrix (name withheld) at point 'A'. On 05/12/2010, prosecutrix (name withheld) again came to the Office of SIT
- Crime Branch and gave a written application to her requesting for recording of her statement u/s 164 Cr.P.C. The said application of prosecutrix dated 05/12/2010 is Ex. PW14/B bearing the signatures of prosecutrix (name withheld) at point 'A'. On the request of prosecutrix (name withheld), she produced her in the Court on 03/01/2011 for recording of her statement u/s 164 Cr.P.C. and same was recorded on that day. On 05/01/2011, prosecutrix (name withheld) again came to her Office and gave a written statement to her in which she requested for again recording of her statement u/s 164 Cr.P.C. as on 03/01/2011, she could not give her statement properly before Ld. MM as she got afraid.
22 of 109 23 FIR No. 235/10 PS - S. P. Badli This statement of prosecutrix (name withheld) dated 05/01/2011 is Ex. PW14/C bearing her signatures at point 'A'. Prosecutrix (name withheld) gave one affidavit alongwith her medical certificate alongwith the written statement dated 05/01/2011. This affidavit is already Ex. PW6/DB. On 07/02/2011, she again produced the prosecutrix (name withheld) in the Court for again recording of her statement u/s 164 Cr.P.C. She moved an application in this regard which is Ex. PW14/D bearing her signatures at point 'A'. However, this application was dismissed by the Court. During investigation, she came to know that on 09/11/2010, prosecutrix (name withheld) had filed an affidavit in the quashing petition filed by accused Karan Bhasin before Hon'ble High Court. On 15/11/2010, the petition for quashing of the FIR filed by the accused Karan Bhasin was dismissed by Hon'ble High Court. However the fact regarding filling of affidavit dated 09/01/2010 (Be read as 09.11.2010) with the quashing petition and regarding the dismissal of quashing petition by Hon'ble High Court on 15/11/2010 were concealed by prosecutrix (name withheld) from Police as well as from the Court at the time of recording of her statement u/s 164 Cr.P.C. Thereafter, she made inquiry from prosecutrix (name withheld) regarding the above said 23 of 109 24 FIR No. 235/10 PS - S. P. Badli fact which she concealed from the Police on which she told her that whatever physical relationship were established between her and accused Karan Bhasin, were with her consent and thereafter, prosecutrix (name withheld) did not cooperate with the Police. On 20/12/2011, she filed a complaint against her (IO) before her senior officer by alleging that she (IO) was harassing her and not doing proper investigation. The said complaint of the prosecutrix is Ex. PW6/D. On 04/01/2012, accused Karan Bhasin joined the investigation of this case. She interrogated accused Karan Bhasin. On 25/02/2012, she filed cancellation report of this case before the Court. Accused Karan Bhasin is present in the Court and correctly identified.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is to be mentioned that the cancellation Report filed by the police was not accepted by the Court of Learned ACMM1 (OD), Rohini, Delhi and after perusing the record, had taken the 24 of 109 25 FIR No. 235/10 PS - S. P. Badli cognizance of the offence punishable u/s 376 IPC and had summoned the accused Karan Bhasin vide a detailed order dated 01.08.2012.
7. Statement of accused Karan Bhasin was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Karan Bhasin did not opt to lead any defence evidence.
8. Learned Counsel for the accused submitted that PW6 - Prosecutrix could not prove the alleged rape committed by accused Karan Bhasin on the false pretext of marriage. Her behaviour casts doubt upon her veracity. She did not support the prosecution version and further introduced new version at the time of recording of cross examination by the Learned Counsel for the accused. She denied all the suggestions put by the Learned Addl. PP during her reexamination and further admitted that the accused Karan Bhasin had not repeatedly raped her against her will and consent after giving her some intoxicant in the cold drink. Learned Counsel further submitted that PW8 - Ankit Soni, PW9 - Mohit Kohli, PW7 Smt. Rama Devi, PW12 - Khushal and PW13
- Ms. Sunena did not support the prosecution case. Learned Counsel 25 of 109 26 FIR No. 235/10 PS - S. P. Badli referred to the cases and are reported as Aba Dinakr Girdhar Koli Vs. The State of Maharashtra, 2008 Cri.L.J 2516 and Sujit Ranjan Vs. State MANU/DE/0378/2011. Learned Counsel prayed for the acquittal of the accused on the charge levelled against him.
9. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
10. I have heard Shri Ashok Kumar, Learned Addl. PP for the State and Sh. Pradeep Rana, Learned Counsel for the accused and have also carefully perused the entire record.
11. The charge for the offence punishable u/s 376 IPC against the accused Karan Bhasin is that in the month of February, 2010, at time not known, Sector - 18, Paradise Apartments, Rohini, Delhi and 26 of 109 27 FIR No. 235/10 PS - S. P. Badli thereafter many times, he repeatedly committed rape upon PW6 Prosecutrix (name withheld), D/o Late Sh. Maan Singh, aged around 27 years, against her will and without her consent by giving her some intoxicant in cold drink and after making her consume some intoxicating material.
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. PW6 - Prosecutrix during her examinationinchief has deposed her date of birth as 27.12.1985.
Moreover, the said factum of date of birth of PW6 - prosecutrix has also not been disputed by accused Karan Bhasin during her crossexamination. Nor any evidence to the contrary has been 27 of 109 28 FIR No. 235/10 PS - S. P. Badli produced or proved on the record on behalf of the accused.
In the circumstances it stands proved on record that the date of birth of PW6 - Prosecutrix is 27.12.1985.
As the alleged incident is of February, 2010 and the date of birth of prosecutrix is 27.12.1985, on simple arithmetical calculation the age of the prosecutrix comes to 24 years, 01 month and 04 days as on 01.02.2010, of the alleged incident in the month of February, 2010.
In the circumstances, it stands proved on record that PW6 - prosecutrix was aged 24 years, 01 month and 04 days as on 01.02.2010 of the alleged incident in the month of February, 2010. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW4 - Dr. Abhilasha, SR Gynae, Dr. BSA Hospital, Rohini, Delhi, has deposed that on 27/08/2010, she was posted as Senior Resident in Dr. BSA Hospital, Rohini. On that day, one 28 of 109 29 FIR No. 235/10 PS - S. P. Badli patient/prosecutrix (name withheld) D/o Man Singh, aged 24 years female, was brought to Hospital with alleged history of sexual assault by her boy friend Karan as told by patient herself. There was history of sexual assault four to five times since April 2010. She also gave history of aborting her pregnancy unknowingly by giving her some pills by Karan in June 2010. Last sexual contact with Karan around 16th July 2010. On examination patient was conscious well oriented. Patient was married and divorced in January, 2008 from her husband. Per abdominal examination - soft. Local examination no obvious fresh external injury seen. Per vaginal examination os closed uterus retroverted retroflex normal size firm/ mobile. Bilateral fornices free. External genetalia well developed. No obvious fresh external injury was seen on other body parts. Urine pregnancy test negative. Samples taken, sealed and handed over to concerned Police officer. She prepared the MLC and the same is Ex. PW4/A bears her signatures at point 'A'.
Despite grant of opportunity, PW4 - Dr. Abhilasha was not crossexamined on behalf of the accused.
29 of 109 30 FIR No. 235/10 PS - S. P. Badli In view of above and in the circumstances, the medical/ gynaecological examination vide MLC Ex. PW4/A of PW6 - prosecutrix stands proved on the record.
15. Now let the testimony of PW6 prosecutrix be perused and analysed.
PW6 Prosecutrix, in her examinationinchief recorded on 29.08.2013 has deposed which is reproduced and reads as under : "I am working as a Water Carrier in Delhi Police and is presently posted in 1st Battalion, Kingsway Camp, Delhi. My Date of Birth is 27/12/1985. My marriage had taken place with Amit either in the year 2007 or 2008 and the said marriage with Amit lasted for 2/3 months and thereafter I had obtained divorce from him. Thereafter, I started living with my mummy at B13, I. D. Hospital, Kingsway Camp, Delhi. I know accused Karan Bhasin. I can identify him, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Karan Bhasin and identified him correctly.
At this stage the wooden partition is restored to its original position.
30 of 109 31 FIR No. 235/10 PS - S. P. Badli I met Karan Bhasin for the first time in the February, 2010 in front of Mc Donald, Model Town II. I was accompanied by my friend Sunaina at that time. Karan Bhasin was present with his friend name Mohit. We (myself and Karan) had a normal exchange of talks and we also exchanged our mobile numbers. Thereafter, we had been talking continuously on the phone and we kept on meeting with each other. We used to roam together and used to have normal talks regarding our jobs, regarding our past etc. After some time, the phone of Karan stop coming (Kuch Time Baad Uska Phone Aana Band Ho Gaya Tha). Due to this I came under tension. I wanted to marry with him (Karan). As such I went to the Police Station Smai Pur Badli and got lodged report against Karan Bhasin that he on the pretext of marriage has used me (Usne Shaddi Ka Jhasa Dekar Mera Use Kiya Hai). By words, 'Mera Use Kiya Hai' I mean, he had committed rape upon me. My complaint made to PS Smai Pur Badli is in my handwriting which is Ex. PW6/A and the same bears my signature at point 'A'. My medical examination was also got conducted by the Police. My statement u/s 164 Cr.P.C. was also recorded.
At this stage one sealed envelope sealed with the seal of 'DS' lying in the Court file is opened. From which the proceedings u/s 164 Cr.P.C. are taken out. The statement u/s 164 Cr.P.C. shown to the witness who identifies the same of having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing my signature at points 'A'.
I had given my clothes to the Police and the same were seized by the Police vide seizure memo already Ex. PW1/B, bearing my signature at point 'B'.
31 of 109 32 FIR No. 235/10 PS - S. P. Badli I can identify my clothes, if shown to me.
At this stage, MHC(M) has produced a pullinda sealed with Court seal, the same is opened which is found to contain one lady Top of Light Green Colour, and shown to the witness who identifies the same. The lady Top of Light Green Colour is already Ex. P1."
From the aforesaid narration of PW6 - prosecutrix, it is clear that she is working as a Water Carrier in Delhi Police and is presently posted in 1st Battalion, Kingsway Camp, Delhi. Her Date of Birth is 27/12/1985. Her marriage had taken place with Amit either in the year 2007 or 2008 and the said marriage with Amit lasted for 2/3 months and thereafter she had obtained divorce from him. Thereafter, she started living with her mummy at B13, I. D. Hospital, Kingsway Camp, Delhi. She knows accused Karan Bhasin. She correctly identified accused Karan Bhasin present in the Court. She met Karan Bhasin for the first time in the February, 2010 in front of Mc Donald, Model Town II. She was accompanied by her friend Sunaina at that time. Karan Bhasin was present with his friend name Mohit. They (she and Karan) had a normal exchange of talks and they also exchanged their mobile numbers. Thereafter, they had been talking continuously on the phone and they kept on meeting with each other. They used to roam 32 of 109 33 FIR No. 235/10 PS - S. P. Badli together and used to have normal talks regarding their jobs, regarding their past etc. After some time, the phone of Karan stop coming (Kuch Time Baad Uska Phone Aana Band Ho Gaya Tha). Due to this she came under tension. She wanted to marry with him (Karan). As such she went to the Police Station Smai Pur Badli and got lodged report against Karan Bhasin that he on the pretext of marriage has used her (Usne Shaddi Ka Jhasa Dekar Mera Use Kiya Hai). By words, 'Mera Use Kiya Hai' she means, he had committed rape upon her. Her complaint made to PS Samai Pur Badli is in her handwriting which is Ex. PW6/A and the same bears her signature at point 'A'. Her medical examination was also got conducted by the Police. Her statement u/s 164 Cr.P.C. was also recorded. She identified her statement u/s 164 Cr.P.C. having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing her signature at points 'A'. She had given her clothes to the Police and the same were seized by the Police vide seizure memo already Ex. PW1/B, bearing her signature at point 'B'. She correctly identified one lady Top of Light Green Colour as already Ex. P1.
During her crossexamination by the Learned Counsel 33 of 109 34 FIR No. 235/10 PS - S. P. Badli for the accused recorded on 30.09.2013, PW6 - Prosecutrix has deposed that : "It is correct that there was a good friendship between me and accused Karan Bhasin. He never promised for marriage with me. I had made physical relation with him with my own consent and not under any deception or promise of marriage. It is correct that in order to put pressure upon accused Karan Bhasin for making marriage with me, I had got registered the FIR and made the statement U/S 164 Cr. PC against him in anger. No rape was committed upon me by accused Karan Bhasin. I established physical relations with him voluntarily."
During her reexamination, by the Learned Addl. PP for the State, recorded on 30/09/2013 after her crossexamination by the Learned Counsel for the accused, PW6 - Prosecutrix has deposed that : 'I had studied upto B.A. 2nd year. I am working in Delhi Police for the last seven years.' During her further reexamination, by the Learned 34 of 109 35 FIR No. 235/10 PS - S. P. Badli Addl. PP for the State, recorded on 08/05/2014 after her cross examination by the Learned Counsel for the accused, PW6 - Prosecutrix has deposed that : "It is wrong to suggest that my deposition dated 29.08.2013 was correct and true. It is wrong to suggest that my complaint dated 09.08.2010 was true and correct. It is wrong to suggest that my statement U/s 164 Cr.P.C dated 03.01.2011 Ex. PW6/B is true and correct. It is wrong to suggest that in the month of February, 2010 at Sector18, Paradise Apartment, Rohini, and thereafter, accused Karan Bhasin had repeatedly raped me against my will and consent after giving some intoxicant in the cold drink and misused me. It is wrong to suggest that the matter has been compromised with the accused in order to save the accused. It is wrong to suggest that I have been won over by the accused. It is wrong to suggest that I am deposing falsely.' During her crossexamination by the Learned Counsel for accused Karan Bhasin recorded on 08.05.2014, after her re examination by the Learned Addl. PP for the State PW6 - Prosecutrix has deposed that : 'It is correct that I had given a complaint to the police officials Crime Branch during investigation of this case stated therein 35 of 109 36 FIR No. 235/10 PS - S. P. Badli that my statement u/s 164 Cr.P.C. was not recorded as per the correct version and Karan Bhasin had not raped me, which is Ex. PW6/DA bearing my signature at Point 'A'. It is correct that I had also given an affidavit in support of the complaint Ex. PW6/DA. The affidavit is Ex. PW6/DB bearing my signatures at Points 'A' & 'B'. It is correct that during the course of investigation I had conveyed to the investigating agency that accused Karan Bhasin is innocent and has not committed any wrong upon me but my that statement was not recorded by the investigating agency.' On analysing the entire testimony of PW6 - Prosecutrix it transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of the sexual assault upon her by accused Karan Bhasin. Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination except getting her resiled or taking a U-Turn on the issue of 'committal of sexual assault upon her' on an adjourned date of hearing on 30.09.2013 by putting a series of questions beginning with the words "It is correct that ........". However, the core facts about the committal of crime by the accused have remained intact.
36 of 109 37 FIR No. 235/10 PS - S. P. Badli The testimony of PW6 - Prosecutrix is also found to be corroborated by the medical/gyneacological evidence as discussed hereinbefore.
The testimony of PW6 - Prosecutrix is also found to be in consonance with her statement made to the police Ex. PW6/A as well as her statement recorded u/s 164 Cr.P.C Ex. PW6/B. At the cost of repetition PW6 - Prosecutrix during her examinationinchief recorded on 29.08.2013 has interalia deposed which is reproduced and reads as under: "........I met Karan Bhasin for the first time in the February, 2010 in front of Mc Donald, Model Town II. I was accompanied by my friend Sunaina at that time. Karan Bhasin was present with his friend name Mohit. We (myself and Karan) had a normal exchange of talks and we also exchanged our mobile numbers. Thereafter, we had been talking continuously on the phone and we kept on meeting with each other. We used to roam together and used to have normal talks regarding our jobs, regarding our past etc. After some time, the phone of Karan stop coming 37 of 109 38 FIR No. 235/10 PS - S. P. Badli (Kuch Time Baad Uska Phone Aana Band Ho Gaya Tha). Due to this I came under tension. I wanted to marry with him (Karan). As such I went to the Police Station Smai Pur Badli and got lodged report against Karan Bhasin that he on the pretext of marriage has used me (Usne Shaddi Ka Jhasa Dekar Mera Use Kiya Hai). By words, 'Mera Use Kiya Hai' I mean, he had committed rape upon me.
My complaint made to PS Smai Pur Badli is in my handwriting which is Ex. PW6/A and the same bears my signature at point 'A'. My medical examination was also got conducted by the Police. My statement u/s 164 Cr.P.C. was also recorded.
At this stage one sealed envelope sealed with the seal of 'DS' lying in the Court file is opened. From which the proceedings u/s 164 Cr.P.C. are taken out. The statement u/s 164 Cr.P.C. shown to the witness who identifies the same of having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing my signature at points 'A'.
I had given my clothes to the Police and the same were seized by the Police vide seizure memo already Ex. PW1/B, bearing my signature at point 'B'.
I can identify my clothes, if shown to me.
At this stage, MHC(M) has produced a pullinda sealed with Court seal, the same is opened which is found to contain one lady Top of Light Green Colour, and shown to the witness who identifies the same. The lady Top of Light Green Colour is already Ex. P1."
(Underlined by me) 38 of 109 39 FIR No. 235/10 PS - S. P. Badli At the cost of repetition, during her crossexamination by the Learned Counsel for the accused recorded on 30.09.2013, PW6 - Prosecutrix has deposed which is reproduced and reads as under: "It is correct that there was a good friendship between me and accused Karan Bhasin. He never promised for marriage with me. I had made physical relation with him with my own consent and not under any deception or promise of marriage. It is correct that in order to put pressure upon accused Karan Bhasin for making marriage with me, I had got registered the FIR and made the statement U/S 164 Cr. PC against him in anger. No rape was committed upon me by accused Karan Bhasin. I established physical relations with him voluntarily."
(Underlined by me) Though PW6 - Prosecutrix during the course of her cross examination by Learned Counsel for accused recorded on an adjourned date on 30.09.2013, has resiled and taken a U-turn from what she had deposed in her examinationinchief recorded on 29.08.2013 but her such reversal or taking a U-Turn during her crossexamination does not falsify or negate her categorical deposition made during her examinationin 39 of 109 40 FIR No. 235/10 PS - S. P. Badli chief as reproduced hereinbefore, which on careful perusal and analysis has been found to be natural, clear, cogent, convincing, reliable and trustworthy and on a careful scrutiny also finds corroboration from the clear, cogent and convincing evidence proved on the record. Nor does her such reversal during her crossexamination dislodge the substratum of the prosecution case and despite its existence the clear, cogent, convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. It is well settled that the evidence on record is to be read in totality and not in isolation or in a fragmented manner.
It is settled law that if any witness has taken complete U Turn from what he had deposed in examinationinchief, then the chief examination part of the witness cannot be thrown out. (Ref. Brij Pal Singh (Shri) vs. CBI 2011 VII AD (DELHI) 371).
Dealing with the effect of deposition in opposition by the witness in the crossexamination, the Hon'ble Supreme Court in cases 40 of 109 41 FIR No. 235/10 PS - S. P. Badli Radha Mohan Singh @ Lal Saheb & Ors Vs. State of U.P. AND Kaushal Kishore Singh & Anr. Vs. State of U.P. (2006) 2 SCC 450, observed as under : ".....The testimony of PW1 - Ganesh Singh, who is an injured witness and PW4 Ramji Singh clearly establish the guilt of the accused. According to the case of the prosecution the incident took place shortly after sunset. The eyewitnesses have deposed that after the incident the deceased Hira Singh was carried on a cot to the "bandh", which is on the outskirts of the village. As no conveyance was available, the first informant had to wait for quite some time and thereafter a tempo was arranged on which the deceased was taken to the District Hospital where he medically examined by PW2 - Dr. Siddiqui at 9:00 p.m. It has come in the evidence that the village is at a distance of six miles from Police Station Kotwali, Ballia. The nonavailability of any conveyance is quite natural as it was Holi festival. Even PW3 - Mohan Yadav fully supported the prosecution case in his examinationinchief. In his cross examination, which was recorded on the same date, he gave details of the weapons being carried by each of the accused and also the specific role played by them in assaulting the deceased and other injured persons. As his crossexamination could not be completed it was resumed on the next day and then he gave a statement that he could not see the incident on account of darkness. His testimony has been carefully examined by the Learned Sessions Judge and also by two Learned Judges of the High Court (Hon'ble K. K. Mishra), J. and Hon'ble U. S. Tripathi, J.) and they have held that the witness, on account of pressure exerted upon him by the accused, tried to support them in his crossexamination on the next 41 of 109 42 FIR No. 235/10 PS - S. P. Badli day. It has been further held that the statement of the witness, as recorded on the first day including his crossexamination, was truthful and reliable. It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. (See 'Bhagwan Singh V. State of Haryana' AIR 1976 SC 202, 'Rabindra Kumar Dey V. State of Orissa' AIR 1977 SC 170, 'Syad Akbar V. State of Karnataka' AIR 1979 SC 1848 and 'Khujji V. State of M.P' AIR 1991 SC 1853)."
(Underlined by me).
The facts regarding knowing of each other (accused Karan Bhasin and PW6 - Prosecutrix); the good friendship between the two; of exchange of mobile numbers between the two; of their talking continuously on phone; of their meeting with each other; of their roaming together and of their having normal talks regarding their jobs, regarding their pasts etc., have not been disputed by the accused Karan Bhasin either during the crossexamination of PW6 - Prosecutrix or even during his statement recorded u/s 313 Cr.P.C.
42 of 109 43 FIR No. 235/10 PS - S. P. Badli The relevant part of the statement of accused Karan Bhasin recorded u/s 313 Cr.P.C is reproduced and reads as under: "Q1. It is in evidence against you that PW6 Prosecutrix was knowing you and there was a good friendship between you and her and that you have been correctly identified by PW6 Prosecutrix. What you have to say?
Ans. It is correct.
Q2. It is in evidence against you that you (accused Karan Bhasin and PW6 Prosecutrix) had a normal exchange of talks and you (accused Karan Bhasin and PW6 Prosecutrix) also exchanged your mobile numbers and thereafter, you (accused Karan Bhasin and PW6 Prosecutrix) had been talking continuously on phone and you (accused Karan Bhasin and PW6 Prosecutrix) kept on meeting with each other and you (accused Karan Bhasin and PW6 Prosecutrix) used to roam together and used to have normal talks regarding your jobs, regarding your past etc. What have you to say?
Ans. It is correct.
It is also evident from the record that, during the cross examination of PW6 Prosecutrix conducted by Learned Counsel for the accused, the factum of making the physical relations by the accused 43 of 109 44 FIR No. 235/10 PS - S. P. Badli Karan Bhasin with the prosecutrix has not been disputed by him.
During her examinationinchief PW6 - Prosecutrix has specifically deposed that, "My medical examination was also got conducted by the police." It is also to be noticed that PW6 - Prosecutrix has given a detailed alleged history herself at the time of her medical examination as reflected in the MLC Ex. PW4/A. PW4 - Dr. Abhilasha has proved the MLC of prosecutrix Ex. PW4/A who during her examinationinchief has deposed that 'on 27/08/2010, she was posted as Senior Resident in Dr. BSA Hospital, Rohini. On that day, one patient/prosecutrix (name withheld) D/o Man Singh, aged 24 years female, was brought to Hospital with alleged history of sexual assault by her boy friend Karan as told by patient herself. There was history of sexual assault four to five times since April 2010. She also gave history of aborting her pregnancy unknowingly by giving her some pills by Karan in June 2010. Last sexual contact with Karan around 16th July 2010.' Despite grant of opportunity PW 4 - Dr. Abhilasha was not crossexamined on behalf of the accused. The said 44 of 109 45 FIR No. 235/10 PS - S. P. Badli part of the testimony of PW4 - Dr. Abhilasha wherein alleged history was given by the prosecutrix herself has not been disputed/challanged during her crossexamination. Nor the said alleged history reflected in the MLC Ex. PW4/A was put to PW6 - Prosecutrix during the course of her incisive crossexamination by the Learned Counsel for the accused.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
During her crossexamination by the Learned Counsel for the accused recorded on 08.05.2014 PW6 - Prosecutrix has deposed that, "It is correct that I had given a complaint to the police officials Crime Branch during investigation of this case stated therein that my statement u/s 164 Cr.P.C. was not recorded as per the correct version and Karan Bhasin had not raped me, which is Ex. PW6/DA bearing my signature at Point 'A'. It is correct that I had also given an affidavit in support of the complaint Ex. PW6/DA. The affidavit is Ex.
45 of 109 46 FIR No. 235/10 PS - S. P. Badli PW6/DB bearing my signatures at Points 'A' & 'B'. It is correct that during the course of investigation I had conveyed to the investigating agency that accused Karan Bhasin is innocent and has not committed any wrong upon me but my that statement was not recorded by the investigating agency."
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the aforesaid part of the cross examination of PW6 - Prosecutrix. PW6 - Prosecutrix during her examinationinchief has specifically deposed that, "My statement u/s 164 Cr.P.C was also recorded. At this stage one sealed envelope sealed with the seal of 'DS' lying in the Court file is opened. From which the proceedings u/s 164 Cr.P.C. are taken out. The statement u/s 164 Cr.P.C. shown to the witness who identifies the same of having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing my signature at points 'A'." Undisputably, PW6 - Prosecutrix has not uttered a single word regarding the complaint Ex. PW6/DA and the affidavit Ex. PW6/DB, nor about the contents thereof during the course of her entire examinationinchief. It clearly indicates, Had she 46 of 109 47 FIR No. 235/10 PS - S. P. Badli (prosecutrix) been attaching any weight/value and really meant and concerned with the complaint Ex. PW6/DA and the affidavit Ex. PW6/DB and the contents thereof then she must have deposed regarding the same during her examinationinchief. In the circumstances, the said part of the crossexamination of PW6 - Prosecutrix conducted by the Learned Counsel for the accused, as reproduced hereinabove does not come to the rescue of the accused nor it advances the defence of the accused.
Moreover the application moved by the IO for again recording of the statement of the prosecutrix u/s 164 Cr.P.C was dismissed by the Court of Learned MM vide order dated 07.02.2011.
PW14 Inspector Arti Sharma, IO during her examinationinchief has specifically deposed that, "On 05/12/2010, prosecutrix (name withheld) again came to the Office of SIT - Crime Branch and gave a written application to her requesting for recording of her statement u/s 164 Cr.P.C. The said application of prosecutrix dated 47 of 109 48 FIR No. 235/10 PS - S. P. Badli 05/12/2010 is Ex. PW14/B bearing the signatures of prosecutrix (name withheld) at point 'A'. On the request of prosecutrix (name withheld), she produced her in the Court on 03/01/2011 for recording of her statement u/s 164 Cr.P.C. and same was recorded on that day. On 05/01/2011, prosecutrix (name withheld) again came to her Office and gave a written statement to her in which she requested for again recording of her statement u/s 164 Cr.P.C. as on 03/01/2011, she could not give her statement properly before Ld. MM as she got afraid. This statement of prosecutrix (name withheld) dated 05/01/2011 is Ex. PW14/C bearing her signatures at point 'A'. Prosecutrix (name withheld) gave one affidavit alongwith her medical certificate alongwith the written statement dated 05/01/2011. This affidavit is already Ex. PW6/DB. On 07/02/2011, she again produced the prosecutrix (name withheld) in the Court for again recording of her statement u/s 164 Cr.P.C. She moved an application in this regard which is Ex. PW14/D bearing her signatures at point 'A'. However, this application was dismissed by the Court."
48 of 109 49 FIR No. 235/10 PS - S. P. Badli During her examinationinchief PW6 - Prosecutrix has specifically deposed that she gave her cloth i.e lady top of light green colour to the police which was seized vide seizure memo Ex. PW1/B bearing her signature at Point 'B' and also identified and proved the lady top of light green colour as Ex.P1. The relevant part of her examinationinchief is reproduced and reads as under: "I had given my clothes to the Police and the same were seized by the Police vide seizure memo already Ex. PW1/B, bearing my signature at point 'B'.
I can identify my clothes, if shown to me.
At this stage, MHC(M) has produced a pullinda sealed with Court seal, the same is opened which is found to contain one lady Top of Light Green Colour, and shown to the witness who identifies the same. The lady Top of Light Green Colour is already Ex. P1. "
(Underlined by me) It is evident from the record that the aforesaid part of examinationinchief of PW6 - Prosecutrix has not been disputed/ challenged during her entire crossexamination. Nor any explanation has been obtained from her as to why and for what purpose she gave her cloth, the lady top of light green colour (Ex.P1) to the police which was seized vide seizure memo Ex. PW1/B bearing her signature at Point 'B'.
49 of 109 50 FIR No. 235/10 PS - S. P. Badli She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else. Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
It is also to be noticed the aforesaid part of the testimony of PW6 - Prosecutrix regarding the handing over of her cloth, (lady top of light green colour Ex.P1) and of its seizure by the police also finds corroboration from the evidence of PW1 - W/HC Nambu Sherpa and PW10 - Inspector Poornima Panthri, IO.
PW1 - W/HC Nambu Sherpa, who in her examination inchief has deposed that on 27/08/2010, she alongwith IO Inspector Purnima took complainant/ prosecutrix (name withheld) in BSA Hospital for medical examination. She was medically examined. After medical 50 of 109 51 FIR No. 235/10 PS - S. P. Badli examination, Doctor handed over the sealed pullinda containing the exhibits which were seized by the IO vide seizure memo Ex. PW1/A, bearing her signature at point 'A'. On 31/08/2010, complainant/ prosecutrix (name withheld) handed over one Top of light green colour and the same was put up into pullinda and sealed with the seal of PP and the same was seized vide memo Ex. PW1/B, bearing her signature at point 'A'. She correctly identified one light green coloured top which was handed over by the complainant as Ex. P1.
Despite grant of opportunity PW1 - W/HC Nambu Sherpa was not crossexamined on behalf of the accused.
The testimony of PW10 - Inspector Poornima Panthri, IO has been detailed and discussed hereinbefore. There is nothing in her crossexamination so as to impeach her creditworthiness. There is also nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. She has deposed regarding the facts as to what she acted, perceived, observed and experienced during the course of investigation.
51 of 109 52 FIR No. 235/10 PS - S. P. Badli The testimony of PW6 - Prosecutrix is also found to be corroborated by PW8 - Sh. Ankit Soni, PW9 - Sh. Mohit Kohli, PW11 - Smt. Rama Devi, PW12 - Kushal and PW13 - Ms. Sunena, in material particulars.
Now let the testimonies of PW8 - Sh. Ankit Soni, PW9 - Sh. Mohit Kohli, PW11 - Smt. Rama Devi, PW12 - Kushal and PW13 - Ms. Sunena be perused and analysed.
PW8 - Sh. Ankit Soni in his examinationinchief has deposed that he knows accused Karan present before the Court as he is his friend. About 45 years prior to today (29/08/2014), accused Karan used to reside in Millennium Apartment, Sector - 18, Rohini. He is also knowing prosecutrix (name withheld) as she was friend of accused Karan and he introduced prosecutrix (name withheld) before him. They i.e. accused, he and prosecutrix (name withheld) used to meet in restaurant and they also used to go for outing in Delhi. One Mohit who is also his friend, used to accompany them during their meeting in Coffee Shops or in other restaurants. He is not able to recollect the date, 52 of 109 53 FIR No. 235/10 PS - S. P. Badli month and year however, about 4 years prior to today (29/08/2014), accused Karan called him in his house. At that time, he was attending the function of his relative. He went to the house of accused Karan and from there they went to Saroj Hospital, Rohini as prosecutrix (name withheld) was admitted there. Accused Karan informed him about the admission of prosecutrix (name withheld) in Saroj Hospital. At that time, prosecutrix (name withheld) was admitted in the ICU of Saroj Hospital. Jyoti, sister of prosecutrix (name withheld) was also present in the Hospital. She (Jyoti) did not inform him about the reason as to why prosecutrix (name withheld) was admitted in Saroj Hospital. On the same day, accused Karan was also discharged from the Hospital after the operation of his shoulder. After about 56 months of this incident (admission of prosecutrix (name withheld) in Saroj Hospital), she prosecutrix (name withheld) met him outside the Millennium Society and informed that the relations between her and accused Karan broke up (Karan Se Breakup Ho Gaya Hai). Police made inquiry from him in connection with the present case and he informed the same facts (which he has deposed in the Court) to Police. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the 53 of 109 54 FIR No. 235/10 PS - S. P. Badli State.
During his crossexamination by the Learned Addl. PP for the State PW8 - Ankit Soni has deposed which is reproduced and reads as under: "It is correct that accused Karan informed me that his meetings with prosecutrix (name withheld) were increasing (Uska prosecutrix (name withheld) Se Milna Julna Aur Dosti Badh Rahi Hai). Accused Karan never informed me that he has started loving the prosecutrix (name withheld) and wanted to marry with her. I was present at the Metro Walk at the time when accused Karan and prosecutrix (name withheld) were meeting (Mil Rahe The). Vol. Such meetings had taken place between them many times (Kai Baar). Accused Karan never asked me to call/address prosecutrix (name withheld) as my Bhabhi. It is wrong to suggest that accused Karan asked me to call/address prosecutrix (name withheld) as my Bhabhi or that on such asking of accused Karan, I started calling/addressing prosecutrix (name witheld) as my Bhabhi. Accused Karan never told me that once, he had mixed something intoxicant in the Limca which was offered to prosecutrix (name withheld) and thereafter, he had established physical relations with her. It is wrong to suggest that accused Karan had told me that once, he had mixed something intoxicant in the Limca which was offered to prosecutrix (name withheld) and thereafter, he had established physical relations with her. From the Doctors, it was revealed that prosecutrix (name withheld) was suffering from food poisoning, when she was admitted in Saroj Hospital and I had gone there to see her. It is wrong to suggest that accused Karan was tutoring the prosecutrix (name 54 of 109 55 FIR No. 235/10 PS - S. P. Badli withheld) in the Saroj Hospital where she was admitted as to what statement she is to give to the Police, when I had gone there to see her. Vol. Police had not come in my presence there. It is wrong to suggest that the Police had come there at the Saroj Hospital in my presence or that prosecutrix (name withheld) had given the statement on the tutoring of accused Karan to the effect that she had taken the poison of her own. I have not stated the above facts to the Police in my statement. At this stage, portion 'A1' to 'A2' of the statement Mark PW8/PX is read over to the witness, to which he denies having made any such statement to the Police. It is wrong to suggest that I am deliberately concealing these facts being the friend of accused Karan. It is wrong to suggest that I have given a false statement in order to save accused Karan."
Despite grant of opportunity PW8 - Ankit Soni was not crossexamined by the Learned Counsel for the accused.
PW9 - Sh. Mohit Kohli in his examinationinchief has deposed that he knows accused Karan present in the Court. He is his friend. He is knowing accused Karan since the year 20082009 when accused Karan shifted in the Millennium Apartment, Sector - 18, Rohini, Delhi. He is also knowing Ankit who is residing in the same Millennium Apartment and he is his friend. He is also knowing prosecutrix (name withheld) as she was introduced by accused Karan before him and Ankit. They all are common friends. Initially, prosecutrix (name withheld) was 55 of 109 56 FIR No. 235/10 PS - S. P. Badli only a friend of accused Karan but later on an affair was developed between both of them. He does not remember the date, month and year due to lapse of long time. About five years have been passed. On one day accused Karan asked him to accompany him to Ghaziabad as he (Karan) received the phone call of prosecutrix (name withheld) that she had gone to Ghaziabad for attending a function and she called him (accused Karan) to take her back to Delhi. Then he alongwith accused Karan went to Ghaziabad by the car of accused Karan and took the prosecutrix from Ghaziabad. On the way prosecutrix (name withheld) told accused Karan that she had not taken the dinner, then they alongwith prosecutrix (name withheld) went to City Park Hotel for having dinner. Thereafter, prosecutrix (name withheld) was dropped at her house. Thereafter, he had met with prosecutrix (name withheld) for about 23 times. On one occasion accused Karan called him at Paradise Apartment, Sector - 18, Rohini, Delhi by stating that there was some problem in his car (Usne Bataya Gadi Gharab Ho Gai). He went to Paradise Apartment where accused Karan and prosecutrix met him. He was informed that car was not starting (Usne Bataya Gadi Start Nahi Ho Rahi Hai), thereafter he and accused Karan pushed the car and then it got 56 of 109 57 FIR No. 235/10 PS - S. P. Badli started. Thereafter they left that place. He was informed by his friend Ankit that Police came to his shop and they were calling him. He went to the shop of Ankit there Police made inquiries from him. He has stated the same facts to the Police which he has stated in the Court. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
During his crossexamination by the Learned Addl. PP for the State PW9 - Mohit Soni has deposed which is reproduced and reads as under: "Police had made inquiries from me but I am not aware as to whether my any statement was recorded by the police. I am not aware as to whether any talks of marriage between accused Karan and prosecutrix were going on or not. When I reached near Paradise Apartment I found prosecutrix (name withheld) laughing and not crying. Prosecutrix (name withheld) had not informed me that accused Karan kept her at that place during whole night and had given some intoxicant in the cold drink and thereafter committed wrong act (galat kam) with her. It is wrong to suggest that when I reached near Paradise Apartment I found that prosecutrix (name withheld) was crying and she informed me that accused Karan kept her at that place during whole night and had given some intoxicant in the cold drink and thereafter committed wrong act (galat kam) with her. It is wrong to suggest that accused Karan told me 57 of 109 58 FIR No. 235/10 PS - S. P. Badli that he was going to marry with prosecutrix (name withheld) soon and there is nothing wrong in having physical relations. Accused Karan did not state to me that I shall address prosecutrix (name withheld) as Bhabi. It is correct that accused Karan remained missing for 23 days from his house and when his mother asked me about her son (accused Karan) then I told her that he was having friendship with prosecutrix (name withheld). I am not aware if there were any talks between the mother and sister of accused Karan with the mother of prosecutrix (name withheld). Accused Karan never informed me that he had made physical relations with prosecutrix (name withheld) several times. Accused Karan did not inform me that he was not going to marry with prosecutrix (name withheld) as she belongs to a different castes.
At this stage the portion A1 to A2 of the statement mark PW9/PX is read over to the witness to which he denies having made any such statement to the police. It is wrong to suggest that I was very well aware about the fact that accused Karan had made physical relations with prosecutrix (name withheld) after promising her to marry. It is wrong to suggest that I am giving a false statement in order to save accused Karan who is my friend."
Despite grant of opportunity PW9 Mohit Soni was not crossexamined by the Learned Counsel for the accused.
PW11 - Smt. Rama Devi in her examinationinchief has deposed that she has five children, out of which four are daughters and one is son. Prosecutrix (name withheld) is her second child. Her 58 of 109 59 FIR No. 235/10 PS - S. P. Badli husband has expired on 11th July and about five years have been passed. After the death of her husband her memory power got weak (Mere Pati Ki Maut Ke Baad Meri Yaadasht Kamzor Ho Gai Hai). Her daughter/prosecutrix (name withheld) informed about her friendship with Karan. She saw Karan only once. She correctly identified accused Karan, present in the Court. She does not know anything else. She does not (know) anything about the present case. She does not know by whom the complaint of the present case was filed and why the complaint was filed. Police did not record her statement. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
During her crossexamination by the Learned Addl. PP for the State PW11 - Smt. Rama Devi has deposed which is reproduced and reads as under: "I am not getting any treatment for weakening of my memory power (yaadasht kamzor). It is wrong to suggest that I do not have any such problem or that for this reason I am not getting any treatment. I do not recollect if I got married prosecutrix (name withheld) with Amit on 5.8.2007 do not recollect if prosecutrix (name withheld) got divorced from Amit by mutual consent. It is wrong to suggest that I 59 of 109 60 FIR No. 235/10 PS - S. P. Badli know this fact very well i.e about the marriage of my daughter prosecutrix (name withheld) with Amit and about her divorce and I am intentionally concealing the same. I do not know if prosectrix (name withheld) frequently go with accused Karan for wandering or that she informed me that accused Karan is ready to perform marriage with her. It is wrong to suggest that I know this fact very well i.e my daughter prosecutrix (name withheld) frequently go with accused Karan for wandering or that she informed me that accused Karan is ready to perform marriage with her. I saw accused Karan in a park in Kingsway Camp. It is wrong to suggest that I asked prosecutrix (name withheld) to bring accused Karan at our house and she brought accused Karan to our house. It is wrong to suggest that I talked with accused Karan regarding the marriage of my daughter prosecutrix (name withheld) with him to which he agreed. It is wrong to suggest that accused Karan came to my house with friend Mohit, his mother and two sisters in the month of April, 2010 and they talked for the marriage of accused Karan with my daughter. It is wrong to suggest that I also agreed for the marriage of my daughter with accused Karan and thereby the marriage was settled (main bhi taiyar ho gai aur shadi ki baat pakki kar di). It is correct that on 30.4.2010, I came to know that my daughter prosecutrix (name withheld) was admitted in Saroj Hospital after consuming some poisonous thing. After receiving this information, I went to Saroj Hospital. It is wrong to suggest that in the hospital, prosecutrix (name withheld) informed me that accused Karan gave Water to her after mixing something in the same. It is wrong to suggest that accused Karan apologized before me and prosecutrix (name withheld) and requested Poonam not to disclose anything to the police after assuring for performing marriage with her. It is wrong to suggest that my daughter prosecutrix (name withheld) did not inform anything to the police about mixing of some poisonous thing 60 of 109 61 FIR No. 235/10 PS - S. P. Badli in the water by accused Karan on the promise by accused Karan for performing marriage with her. It is wrong to suggest that my daughter also informed me that accused Karan had made physical relations with her after giving some intoxicating substance. It is wrong to suggest that my daughter (name withheld) informed me that accused Karan gave some intoxicating substance and got her abortion. It is wrong to suggest that prior to 1520 days of lodging of this complaint by my daughter prosecutrix (name withheld), accused Karan and her mother refused for performing marriage with my daughter prosecutrix (name withheld).
At this stage, the statement Mark PW11/PX is read over to the witness to which she denies of having made any such statement to the police. It is wrong to suggest that the statement Mark PW11/PX is my correct statement which was given by me to the police.
It is wrong to suggest that I am deliberately concealing all these facts as matter has been already settled. It is wrong to suggest that I am giving a false statement favoring accused in order to save him. It is wrong to suggest that I am deposing falsely."
Despite grant of opportunity PW11 - Smt. Rama Devi was not crossexamined by the Learned Counsel for the accused.
PW12 - Kushal in his examinationinchief has deposed that he knows accused Karan present in the Court (correctly identified). He is his friend. Prior to 4/5 years accused Karan used to reside in Sector 18, Rohini, Delhi, however, later on he shifted to Sector 24, Rohini, Delhi. Accused Karan introduced prosecutrix (name withheld) to him by 61 of 109 62 FIR No. 235/10 PS - S. P. Badli saying that she is his friend. He met prosecutrix (name withheld) one or two times. Accused Karan Bhasin told him that prosecutrix (name withheld) is his friend and except this he didn't inform him anything about prosecutrix (name withheld). Police recorded his statement during investigation of this case. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
During his crossexamination by the Learned Addl. PP for the State PW12 - Kushal has deposed which is reproduced and reads as under: "Accused Karan didn't inform me in February, 2010 that he was having affair with prosecutrix (name withheld) and they were intending to performing marriage. It is wrong to suggest that accused Karan Bhasin informed me in February, 2010 that he was having affair with prosecutrix (name withheld) and they were intending to performing marriage It is correct that I met with Karan and prosecutrix (name withheld) at Matro Walk Rohini. I didn't meet Karan and prosecutrix (name withheld) at Netaji Subhash Place. It is incorrect to suggest that accused Karan asked me to call prosecutrix (name withheld) as 'bhabhi', as they are intending to perform marriage. Accused Karan didn't inform me that he had made physical relations with prosecutrix (name withheld) several times. It is wrong to suggest that accused Karan informed me that he had made physical relations with prosecutrix (name withheld) 62 of 109 63 FIR No. 235/10 PS - S. P. Badli several times. I do not remember if there was any party organized by Pankaj at Sector18, Millanium Apartment, Rohini, Delhi. Accused Karan Bhasin and prosecutrix (name withheld) did not meet me on 17.07.2010 in any party. It is wrong to suggest that on 17.07.2010 a party was organized at Sector18, Millanium Apartment, Rohini, Delhi or that Karan Bhasin and prosecutrix (name withheld) met me in that party or that from there they had gone together at about 11.00 PM. It is wrong to suggest that accused Karan Bhasin told me about his relations with prosecutrix (name withheld) and about his intention to marry with her or that time intentionally concealing this fact.
At this stage, the statement Mark PW12/PX is read over to the witness to which he denies of having made any such statement to the police.
It is wrong to suggest that the statement Mark PW12/PX is the correct statement which was made by me before the police. It is wrong to suggest that I am giving a statement favouring to accused in order to save him. It is wrong to suggest that I am deposing falsely as accused Karan Bhasin is my friend. It is wrong to suggest that I am deposing falsely."
Despite grant of opportunity PW12 - Kushal was not crossexamined by the Learned Counsel for the accused.
PW13 - Ms. Sunena in her examinationinchief has deposed that now she is residing at Sant Nagar Burari with her husband Sh. Samuel. Prosecutrix (name withheld) is her friend and she knew her 63 of 109 64 FIR No. 235/10 PS - S. P. Badli since her school days. She does not remember the exact date and month, however, in the year 2011, she alongwith her friend/prosecutrix (name withheld) went to McD Model Town, Delhi. Her friend Karan also came in McD Model Town and her friend/prosecutrix (name withheld) proposed him for marriage. She correctly identified accused Karan Bhasin present in the Court. She does not know anything else about the present case. She also does not know what had happened with prosecutrix (name withheld) after their meeting in MCD. Police met her during investigation of this case and recorded her statement. She does not want to say anything else. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
During her crossexamination by the Learned Addl. PP for the State PW13 - Sunena has deposed which is reproduced and reads as under: "I got married in the year 2006. After my marriage my friend prosecutrix (name withheld) did not meet me regularly. She did not share her personal feeling with me. It is wrong to suggest that I was in regular touch with my friend prosecutrix (name withheld) even after my marriage or that she used to share her personal feelings with me. It is correct that accused Karan Bhasin came to MCD and thereafter, his 64 of 109 65 FIR No. 235/10 PS - S. P. Badli friendship developed with my friend prosecutrix (name withheld). It is further correct that my friend did not propose for marriage accused Karan Bhasin in my presence on that day. Vol. later on I was informed to me by my friend that the friendship between accused Karan Bhasin was developed and she wanted to perform marriage with him. Accused Karan Bhasin alongwith prosecutrix (name withheld) did not come to my house at any point of time. It is wrong to suggest that I had stated to police in my statement that accused Karan Bhasin alongwith prosecutrix (name withheld) visited my house in the car of accused Karan Bhasin bearing no. 2544 and they told me that they were going to perform marriage. (Confronted with the statement dated 11.08.2010 Mark PW13/PX where it is so recorded). Prosecutrix (name withheld) did not inform me that accused Karan Bhasin had given some substance intoxicating after mixing it in the cold drink and when she became intoxicating after consuming the same he made physical relations with her without her consent. I did not state to the police that prosecutrix (name withheld) informed me that accused Karan Bhasin had given some substance intoxicating after mixing it in the cold drink and when she became intoxicating after consuming the same he made physical relations with her without her consent. (Confronted with the statement dated 11.08.2010 Mark PW13/PX where it is so recorded). It is wrong to suggest that prosecutrix (name withheld) informed me that accused Karan Bhasin had given some substance intoxicating after mixing it in the cold drink and when she became intoxicating after consuming the same he made physical relations with her without her consent. It is wrong to suggest that in the month of May 2010 accused Karan Bhasin alongwith my friend prosecutrix (name withheld) came to my house and I scolded accused Karan Bhasin for making physical relations with my friend prior to performing marriage with her. (Confronted with the 65 of 109 66 FIR No. 235/10 PS - S. P. Badli statement dated 11.08.2010 Mark PW13/PX where it is so recorded). It is wrong to suggest that accused Karan Bhasin told me that they were going to perform marriage soon and there is nothing wrong in making physical relations with prosecutrix (name withheld). (Confronted with the statement dated 11.08.2010 Mark PW13/PX where it is so recorded). I do not know if accused Karan and his family members refused to perform marriage with prosecutrix (name withheld). It is wrong to suggest that I had stated in my statement given to police that accused Karan Bhasin and his family members refused to perform marriage of Karan and prosecutrix (name withheld).
At this stage, the Portion 'A1 to A2' of the statement Mark PW13/PX is read over to the witness, who denies of having made any such statement to the police. It is wrong to suggest that I am deliberately concealing the true facts as I have been won over by accused Karan Bhasin. It is wrong to suggest that I am deposing falsely."
Despite grant of opportunity PW13 - Ms. Sunena was not crossexamined by the Learned Counsel for the accused.
On careful perusal and analysis of the testimonies of PW8 - Sh. Ankit Soni, PW9 - Sh. Mohit Kohli, PW11 - Smt. Rama Devi, PW12
- Kushal and PW13 - Ms. Sunena it is found that PW8 Sh. Ankit Soni, PW9 - Sh. Mohit Kohli and PW12 - Kushal are the friends of accused Karan Bhasin. PW11 - Smt. Rama Devi, is the mother of the prosecutrix and PW13 - Ms. Sunena, is the friend of the prosoecutrix. They have 66 of 109 67 FIR No. 235/10 PS - S. P. Badli deposed regarding the friendship between accused Karan Bhasin and the prosecutrix, the meetings between accused Karan Bhasin and the prosecutrix, their friendship with either with the prosecutrix or with accused Karan Bhasin and regarding the marriage proposal made by prosecutrix to accused Karan Bhasin. They are not the witnesses to the offence involved in the present case. 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 Karan Bhasin to falsely implicate him in the case. They have deposed regarding the facts as to what they observed, experienced and perceived. Though they resiled and turned hostile and were crossexamined by the Learned Addl. PP but their hostility does not vitiate or negate the case of prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is well settled that the evidence of a hostile witness, to the extent, it supports the case of the prosecution, can be relied upon, if it is corroborated by other reliable evidence. (Ref. Raj Kumar Vs. State of Delhi, 2015 IV AD (DELHI) 280).
67 of 109 68 FIR No. 235/10 PS - S. P. Badli
16. While analysing the testimony of PW6 Prosecutrix, as discussed hereinabove, nothing has come out in her statement which may throw even a slightest doubt on the prosecution version of the incident. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
17. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving 68 of 109 69 FIR No. 235/10 PS - S. P. Badli any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
69 of 109 70 FIR No. 235/10 PS - S. P. Badli On analysing the testimony of PW6 - Prosecutrix in the light of medical/gynaecological examination vide MLC Ex. PW4/A of the prosecutrix as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by the accused Karan Bhasin with PW6 - Prosecutrix without her consent.
NOW LET THE SUBMISSIONS/PLEAS RAISED BY THE LEARNED DEFENCE COUNSEL BE ANALYSED AND APPRECIATED
18. Learned Counsel for the accused submitted that PW6 - Prosecutrix could not prove the alleged rape committed by accused Karan Bhasin on the false pretext of marriage. Her behaviour casts doubt upon her veracity. She did not support the prosecution version and further introduced new version at the time of recording of cross examination by the Learned Counsel for the accused. She denied all the 70 of 109 71 FIR No. 235/10 PS - S. P. Badli suggestions put by the Learned Addl. PP during her reexamination and further admitted that the accused Karan Bhasin had not repeatedly raped her against her will and consent after giving her some intoxicant in the cold drink.
I have carefully perused and analysed the evidence on record.
Although the plea raised by the Learned Counsel for the accused has been dealt with in extenso hereinbefore while analysing the evidence yet at the cost of repetition I shall deal with the same in the interest of justice.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
So far as the plea so raised by the Learned Counsel for the 71 of 109 72 FIR No. 235/10 PS - S. P. Badli accused that PW6 - Prosecutrix could not prove the alleged rape committed by accused Karan Bhasin on the false pretext of marriage. Her behaviour casts doubt upon her varacity. She did not support the prosecution version and further introduced new version at the time of recording of crossexamination by the Learned Counsel for the accused. She denied all the suggestions put by the Learned Addl. PP during her reexamination and further admitted that the accused Karan Bhasin had not repeatedly raped her against her will and consent after giving her some intoxicant in the cold drink, is concerned, on careful perusal and analysis of the evidence on record, it is found to have no substance. The testimony of PW6 - Prosecutrix has been reproduced, discussed and analysed hereinbefore. The version of PW6 -Prosecutrix on the core spectrum of the crime has remained intact.
At the cost of repetition, PW6 - Prosecutrix, in her examinationinchief recorded on 29.08.2013 has deposed which is reproduced and reads as under : "I am working as a Water Carrier in Delhi Police and is presently posted in 1st Battalion, Kingsway Camp, Delhi. My Date of Birth is 27/12/1985. My marriage had taken place with Amit either in 72 of 109 73 FIR No. 235/10 PS - S. P. Badli the year 2007 or 2008 and the said marriage with Amit lasted for 2/3 months and thereafter I had obtained divorce from him. Thereafter, I started living with my mummy at B13, I. D. Hospital, Kingsway Camp, Delhi. I know accused Karan Bhasin. I can identify him, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Karan Bhasin and identified him correctly.
At this stage the wooden partition is restored to its original position.
I met Karan Bhasin for the first time in the February, 2010 in front of Mc Donald, Model Town II. I was accompanied by my friend Sunaina at that time. Karan Bhasin was present with his friend name Mohit. We (myself and Karan) had a normal exchange of talks and we also exchanged our mobile numbers. Thereafter, we had been talking continuously on the phone and we kept on meeting with each other. We used to roam together and used to have normal talks regarding our jobs, regarding our past etc. After some time, the phone of Karan stop coming (Kuch Time Baad Uska Phone Aana Band Ho Gaya Tha). Due to this I came under tension. I wanted to marry with him (Karan). As such I went to the Police Station Smai Pur Badli and got lodged report against Karan Bhasin that he on the pretext of marriage has used me (Usne Shaddi Ka Jhasa Dekar Mera Use Kiya Hai). By words, 'Mera Use Kiya Hai' I mean, he had committed rape upon me. My complaint made to PS Smai Pur Badli is in my handwriting which is Ex. PW6/A and the same bears my signature at point 'A'. My medical examination was also got 73 of 109 74 FIR No. 235/10 PS - S. P. Badli conducted by the Police. My statement u/s 164 Cr.P.C. was also recorded.
At this stage one sealed envelope sealed with the seal of 'DS' lying in the Court file is opened. From which the proceedings u/s 164 Cr.P.C. are taken out. The statement u/s 164 Cr.P.C. shown to the witness who identifies the same of having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing my signature at points 'A'.
I had given my clothes to the Police and the same were seized by the Police vide seizure memo already Ex. PW1/B, bearing my signature at point 'B'.
I can identify my clothes, if shown to me.
At this stage, MHC(M) has produced a pullinda sealed with Court seal, the same is opened which is found to contain one lady Top of Light Green Colour, and shown to the witness who identifies the same. The lady Top of Light Green Colour is already Ex. P1."
From the aforesaid narration of PW6 - prosecutrix, it is clear that she is working as a Water Carrier in Delhi Police and is presently posted in 1st Battalion, Kingsway Camp, Delhi. Her Date of Birth is 27/12/1985. Her marriage had taken place with Amit either in the year 2007 or 2008 and the said marriage with Amit lasted for 2/3 months and thereafter she had obtained divorce from him. Thereafter, she started living with her mummy at B13, I. D. Hospital, Kingsway 74 of 109 75 FIR No. 235/10 PS - S. P. Badli Camp, Delhi. She knows accused Karan Bhasin. She correctly identified accused Karan Bhasin present in the Court. She met Karan Bhasin for the first time in the February, 2010 in front of Mc Donald, Model Town II. She was accompanied by her friend Sunaina at that time. Karan Bhasin was present with his friend name Mohit. They (she and Karan) had a normal exchange of talks and they also exchanged their mobile numbers. Thereafter, they had been talking continuously on the phone and they kept on meeting with each other. They used to roam together and used to have normal talks regarding their jobs, regarding their past etc. After some time, the phone of Karan stop coming (Kuch Time Baad Uska Phone Aana Band Ho Gaya Tha). Due to this she came under tension. She wanted to marry with him (Karan). As such she went to the Police Station Smai Pur Badli and got lodged report against Karan Bhasin that he on the pretext of marriage has used her (Usne Shaddi Ka Jhasa Dekar Mera Use Kiya Hai). By words, 'Mera Use Kiya Hai' she means, he had committed rape upon her. Her complaint made to PS Samai Pur Badli is in her handwriting which is Ex. PW6/A and the same bears her signature at point 'A'. Her medical examination was also got conducted by the Police. Her statement u/s 164 Cr.P.C. was also 75 of 109 76 FIR No. 235/10 PS - S. P. Badli recorded. She identified her statement u/s 164 Cr.P.C. having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing her signature at points 'A'. She had given her clothes to the Police and the same were seized by the Police vide seizure memo already Ex. PW1/B, bearing her signature at point 'B'. She correctly identified one lady Top of Light Green Colour as already Ex. P1.
During her crossexamination by the Learned Counsel for the accused recorded on 30.09.2013, PW6 - Prosecutrix has deposed that : "It is correct that there was a good friendship between me and accused Karan Bhasin. He never promised for marriage with me. I had made physical relation with him with my own consent and not under any deception or promise of marriage. It is correct that in order to put pressure upon accused Karan Bhasin for making marriage with me, I had got registered the FIR and made the statement U/S 164 Cr. PC against him in anger. No rape was committed upon me by accused Karan Bhasin. I established physical relations with him voluntarily."
During her reexamination, by the Learned Addl. PP for the State, recorded on 30/09/2013 after her crossexamination by the Learned Counsel for the accused, PW6 - Prosecutrix has deposed 76 of 109 77 FIR No. 235/10 PS - S. P. Badli that : 'I had studied upto B.A. 2nd year. I am working in Delhi Police for the last seven years.' During her further reexamination, by the Learned Addl. PP for the State, recorded on 08/05/2014 after her cross examination by the Learned Counsel for the accused, PW6 - Prosecutrix has deposed that : "It is wrong to suggest that my deposition dated 29.08.2013 was correct and true. It is wrong to suggest that my complaint dated 09.08.2010 was true and correct. It is wrong to suggest that my statement U/s 164 Cr.P.C dated 03.01.2011 Ex. PW6/B is true and correct. It is wrong to suggest that in the month of February, 2010 at Sector18, Paradise Apartment, Rohini, and thereafter, accused Karan Bhasin had repeatedly raped me against my will and consent after giving some intoxicant in the cold drink and misused me. It is wrong to suggest that the matter has been compromised with the accused in order to save the accused. It is wrong to suggest that I have been won over by the accused. It is wrong to suggest that I am deposing falsely.' During her crossexamination by the Learned Counsel for accused Karan Bhasin recorded on 08.05.2014, after her re 77 of 109 78 FIR No. 235/10 PS - S. P. Badli examination by the Learned Addl. PP for the State PW6 - Prosecutrix has deposed that : 'It is correct that I had given a complaint to the police officials Crime Branch during investigation of this case stated therein that my statement u/s 164 Cr.P.C. was not recorded as per the correct version and Karan Bhasin had not raped me, which is Ex. PW6/DA bearing my signature at Point 'A'. It is correct that I had also given an affidavit in support of the complaint Ex. PW6/DA. The affidavit is Ex. PW6/DB bearing my signatures at Points 'A' & 'B'. It is correct that during the course of investigation I had conveyed to the investigating agency that accused Karan Bhasin is innocent and has not committed any wrong upon me but my that statement was not recorded by the investigating agency.' On analysing the entire testimony of PW6 - Prosecutrix it transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of the sexual assault upon her by accused Karan Bhasin. Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination except getting her resiled or taking a U-Turn on the issue of 'committal of sexual assault upon her' on an adjourned date of hearing on 30.09.2013 by putting a 78 of 109 79 FIR No. 235/10 PS - S. P. Badli series of questions beginning with the words "It is correct that ........". However, the core facts about the committal of crime by the accused have remained intact.
The testimony of PW6 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence as discussed hereinbefore.
The testimony of PW6 - Prosecutrix is also found to be in consonance with her statement made to the police Ex. PW6/A as well as her statement recorded u/s 164 Cr.P.C Ex. PW6/B. At the cost of repetition PW6 - Prosecutrix during her examinationinchief recorded on 29.08.2013 has interalia deposed which is reproduced and reads as under: "........I met Karan Bhasin for the first time in the February, 2010 in front of Mc Donald, Model Town II. I was accompanied by my friend Sunaina at that time. Karan Bhasin was present with his friend name Mohit. We (myself and Karan) had a normal exchange of talks and we also exchanged our mobile numbers. Thereafter, we had been talking 79 of 109 80 FIR No. 235/10 PS - S. P. Badli continuously on the phone and we kept on meeting with each other. We used to roam together and used to have normal talks regarding our jobs, regarding our past etc. After some time, the phone of Karan stop coming (Kuch Time Baad Uska Phone Aana Band Ho Gaya Tha). Due to this I came under tension. I wanted to marry with him (Karan). As such I went to the Police Station Smai Pur Badli and got lodged report against Karan Bhasin that he on the pretext of marriage has used me (Usne Shaddi Ka Jhasa Dekar Mera Use Kiya Hai). By words, 'Mera Use Kiya Hai' I mean, he had committed rape upon me.
My complaint made to PS Smai Pur Badli is in my handwriting which is Ex. PW6/A and the same bears my signature at point 'A'. My medical examination was also got conducted by the Police. My statement u/s 164 Cr.P.C. was also recorded.
At this stage one sealed envelope sealed with the seal of 'DS' lying in the Court file is opened. From which the proceedings u/s 164 Cr.P.C. are taken out. The statement u/s 164 Cr.P.C. shown to the witness who identifies the same of having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing my signature at points 'A'.
I had given my clothes to the Police and the same were seized by the Police vide seizure memo already Ex. PW1/B, bearing my signature at point 'B'.
I can identify my clothes, if shown to me.
At this stage, MHC(M) has produced a pullinda sealed with Court seal, the same is opened which is found to contain one lady Top of Light Green Colour, and shown to the witness who identifies the same. The lady Top of Light Green Colour is already Ex. P1."
80 of 109 81 FIR No. 235/10 PS - S. P. Badli (Underlined by me) At the cost of repetition, during her crossexamination by the Learned Counsel for the accused recorded on 30.09.2013, PW6 - Prosecutrix has deposed which is reproduced and reads as under: "It is correct that there was a good friendship between me and accused Karan Bhasin. He never promised for marriage with me. I had made physical relation with him with my own consent and not under any deception or promise of marriage. It is correct that in order to put pressure upon accused Karan Bhasin for making marriage with me, I had got registered the FIR and made the statement U/S 164 Cr. PC against him in anger. No rape was committed upon me by accused Karan Bhasin. I established physical relations with him voluntarily."
(Underlined by me) Though PW6 - Prosecutrix during the course of her cross examination by Learned Counsel for accused recorded on an adjourned date on 30.09.2013, has resiled and taken a U-turn from what she had deposed in her examinationinchief recorded on 29.08.2013 but her such reversal or taking a U-Turn during her crossexamination does not falsify 81 of 109 82 FIR No. 235/10 PS - S. P. Badli or negate her categorical deposition made during her examinationin chief as reproduced hereinbefore, which on careful perusal and analysis has been found to be natural, clear, cogent, convincing, reliable and trustworthy and on a careful scrutiny also finds corroboration from the clear, cogent and convincing evidence proved on the record. Nor does her such reversal during her crossexamination dislodge the substratum of the prosecution case and despite its existence the clear, cogent, convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. It is well settled that the evidence on record is to be read in totality and not in isolation or in a fragmented manner.
At the cost of repetition, it is settled law that if any witness has taken complete UTurn from what he had deposed in examinationin chief, then the chiefexamination part of the witness cannot be thrown out. (Ref. Brij Pal Singh (Shri) vs. CBI 2011 VII AD (DELHI) 371).
At the cost of repetition, dealing with the effect of deposition in opposition by the witness in the crossexamination, the 82 of 109 83 FIR No. 235/10 PS - S. P. Badli Hon'ble Supreme Court in cases Radha Mohan Singh @ Lal Saheb & Ors Vs. State of U.P. AND Kaushal Kishore Singh & Anr. Vs. State of U.P. (2006) 2 SCC 450, observed as under : ".....The testimony of PW1 - Ganesh Singh, who is an injured witness and PW4 Ramji Singh clearly establish the guilt of the accused. According to the case of the prosecution the incident took place shortly after sunset. The eyewitnesses have deposed that after the incident the deceased Hira Singh was carried on a cot to the "bandh", which is on the outskirts of the village. As no conveyance was available, the first informant had to wait for quite some time and thereafter a tempo was arranged on which the deceased was taken to the District Hospital where he medically examined by PW2 - Dr. Siddiqui at 9:00 p.m. It has come in the evidence that the village is at a distance of six miles from Police Station Kotwali, Ballia. The nonavailability of any conveyance is quite natural as it was Holi festival. Even PW3 - Mohan Yadav fully supported the prosecution case in his examinationinchief. In his cross examination, which was recorded on the same date, he gave details of the weapons being carried by each of the accused and also the specific role played by them in assaulting the deceased and other injured persons. As his crossexamination could not be completed it was resumed on the next day and then he gave a statement that he could not see the incident on account of darkness. His testimony has been carefully examined by the Learned Sessions Judge and also by two Learned Judges of the High Court (Hon'ble K. K. Mishra), J. and Hon'ble U. S. Tripathi, J.) and they have held that the witness, on account of pressure exerted upon him by the accused, tried to support them in his crossexamination on the next day. It has been further held that the statement of the witness, as 83 of 109 84 FIR No. 235/10 PS - S. P. Badli recorded on the first day including his crossexamination, was truthful and reliable. It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. (See 'Bhagwan Singh V. State of Haryana' AIR 1976 SC 202, 'Rabindra Kumar Dey V. State of Orissa' AIR 1977 SC 170, 'Syad Akbar V. State of Karnataka' AIR 1979 SC 1848 and 'Khujji V. State of M.P' AIR 1991 SC 1853)."
(Underlined by me).
The facts regarding knowing of each other (accused Karan Bhasin and PW6 - Prosecutrix); the good friendship between the two; of exchange of mobile numbers between the two; of their talking continuously on phone; of their meeting with each other; of their roaming together and of their having normal talks regarding their jobs, regarding their pasts etc., have not been disputed by the accused Karan Bhasin either during the crossexamination of PW6 - Prosecutrix or even during his statement recorded u/s 313 Cr.P.C.
The relevant part of the statement of accused Karan 84 of 109 85 FIR No. 235/10 PS - S. P. Badli Bhasin recorded u/s 313 Cr.P.C is reproduced and reads as under: "Q1. It is in evidence against you that PW6 Prosecutrix was knowing you and there was a good friendship between you and her and that you have been correctly identified by PW6 Prosecutrix. What you have to say?
Ans. It is correct.
Q2. It is in evidence against you that you (accused Karan Bhasin and PW6 Prosecutrix) had a normal exchange of talks and you (accused Karan Bhasin and PW6 Prosecutrix) also exchanged your mobile numbers and thereafter, you (accused Karan Bhasin and PW6 Prosecutrix) had been talking continuously on phone and you (accused Karan Bhasin and PW6 Prosecutrix) kept on meeting with each other and you (accused Karan Bhasin and PW6 Prosecutrix) used to roam together and used to have normal talks regarding your jobs, regarding your past etc. What have you to say?
Ans. It is correct.
It is also evident from the record that, during the cross examination of PW6 Prosecutrix conducted by Learned Counsel for the accused, the factum of making the physical relations by the accused Karan Bhasin with the prosecutrix has not been disputed by him.
85 of 109 86 FIR No. 235/10 PS - S. P. Badli During her examinationinchief PW6 - Prosecutrix has specifically deposed that, "My medical examination was also got conducted by the police." It is also to be noticed that PW6 - Prosecutrix has given a detailed alleged history herself at the time of her medical examination as reflected in the MLC Ex. PW4/A. PW4 - Dr. Abhilasha has proved the MLC of prosecutrix Ex. PW4/A who during her examinationinchief has deposed that 'on 27/08/2010, she was posted as Senior Resident in Dr. BSA Hospital, Rohini. On that day, one patient/prosecutrix (name withheld) D/o Man Singh, aged 24 years female, was brought to Hospital with alleged history of sexual assault by her boy friend Karan as told by patient herself. There was history of sexual assault four to five times since April 2010. She also gave history of aborting her pregnancy unknowingly by giving her some pills by Karan in June 2010. Last sexual contact with Karan around 16th July 2010.' Despite grant of opportunity PW 4 - Dr. Abhilasha was not crossexamined on behalf of the accused. The said part of the testimony of PW4 - Dr. Abhilasha wherein alleged history was given by the prosecutrix herself has not been disputed/challanged 86 of 109 87 FIR No. 235/10 PS - S. P. Badli during her crossexamination. Nor the said alleged history reflected in the MLC Ex. PW4/A was put to PW6 - Prosecutrix during the course of her incisive crossexamination by the Learned Counsel for the accused.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
During her crossexamination by the Learned Counsel for the accused recorded on 08.05.2014 after her reexamination by the Learned Addl. PP for the state PW6 - Prosecutrix has deposed that, "It is correct that I had given a complaint to the police officials Crime Branch during investigation of this case stated therein that my statement u/s 164 Cr.P.C. was not recorded as per the correct version and Karan Bhasin had not raped me, which is Ex. PW6/DA bearing my signature at Point 'A'. It is correct that I had also given an affidavit in support of the complaint Ex. PW6/DA. The affidavit is Ex. PW6/DB bearing my signatures at Points 'A' & 'B'. It is correct that during the 87 of 109 88 FIR No. 235/10 PS - S. P. Badli course of investigation I had conveyed to the investigating agency that accused Karan Bhasin is innocent and has not committed any wrong upon me but my that statement was not recorded by the investigating agency."
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the aforesaid part of the cross examination of PW6 - Prosecutrix. PW6 - Prosecutrix during her examinationinchief has specifically deposed that, "My statement u/s 164 Cr.P.C was also recorded. At this stage one sealed envelope sealed with the seal of 'DS' lying in the Court file is opened. From which the proceedings u/s 164 Cr.P.C. are taken out. The statement u/s 164 Cr.P.C. shown to the witness who identifies the same of having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing my signature at points 'A'." Undisputably, PW6 - Prosecutrix has not uttered a single word regarding the complaint Ex. PW6/DA and the affidavit Ex. PW6/DB, nor about the contents thereof during the course of her entire examinationinchief. It clearly indicates, Had she (prosecutrix) been attaching any weight/value and really meant and 88 of 109 89 FIR No. 235/10 PS - S. P. Badli concerned with the complaint Ex. PW6/DA and the affidavit Ex. PW6/DB and the contents thereof then she must have deposed regarding the same during her examinationinchief. In the circumstances, the said part of the crossexamination of PW6 - Prosecutrix conducted by the Learned Counsel for the accused, as reproduced hereinabove does not come to the rescue of the accused nor it advances the defence of the accused.
Moreover the application moved by the IO for again recording of the statement of the prosecutrix u/s 164 Cr.P.C was dismissed by the Court of Learned MM vide order dated 07.02.2011.
PW14 Inspector Arti Sharma, IO during her examinationinchief has specifically deposed that, "On 05/12/2010, prosecutrix (name withheld) again came to the Office of SIT - Crime Branch and gave a written application to her requesting for recording of her statement u/s 164 Cr.P.C. The said application of prosecutrix dated 05/12/2010 is Ex. PW14/B bearing the signatures of prosecutrix (name 89 of 109 90 FIR No. 235/10 PS - S. P. Badli withheld) at point 'A'. On the request of prosecutrix (name withheld), she produced her in the Court on 03/01/2011 for recording of her statement u/s 164 Cr.P.C. and same was recorded on that day. On 05/01/2011, prosecutrix (name withheld) again came to her Office and gave a written statement to her in which she requested for again recording of her statement u/s 164 Cr.P.C. as on 03/01/2011, she could not give her statement properly before Ld. MM as she got afraid. This statement of prosecutrix (name withheld) dated 05/01/2011 is Ex. PW14/C bearing her signatures at point 'A'. Prosecutrix (name withheld) gave one affidavit alongwith her medical certificate alongwith the written statement dated 05/01/2011. This affidavit is already Ex. PW6/DB. On 07/02/2011, she again produced the prosecutrix (name withheld) in the Court for again recording of her statement u/s 164 Cr.P.C. She moved an application in this regard which is Ex. PW14/D bearing her signatures at point 'A'. However, this application was dismissed by the Court."
During her examinationinchief PW6 - Prosecutrix has 90 of 109 91 FIR No. 235/10 PS - S. P. Badli specifically deposed that she gave her cloth i.e lady top of light green colour to the police which was seized vide seizure memo Ex. PW1/B bearing her signature at Point 'B' and also identified and proved the lady top of light green colour as Ex.P1. The relevant part of her examinationinchief is reproduced and reads as under: "I had given my clothes to the Police and the same were seized by the Police vide seizure memo already Ex. PW1/B, bearing my signature at point 'B'.
I can identify my clothes, if shown to me.
At this stage, MHC(M) has produced a pullinda sealed with Court seal, the same is opened which is found to contain one lady Top of Light Green Colour, and shown to the witness who identifies the same. The lady Top of Light Green Colour is already Ex. P1. "
(Underlined by me) It is evident from the record that the aforesaid part of examinationinchief of PW6 - Prosecutrix has not been disputed/ challenged during her entire crossexamination. Nor any explanation has been obtained from her as to why and for what purpose she gave her cloth, the lady top of light green colour (Ex.P1) to the police which was seized vide seizure memo Ex. PW1/B bearing her signature at Point 'B'. She was the only competent witness who would have been fully capable
91 of 109 92 FIR No. 235/10 PS - S. P. Badli of explaining correctly the factual situation. For such failure accused is to blame himself and none else. Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
It is also to be noticed the aforesaid part of the testimony of PW6 - Prosecutrix regarding the handing over of her cloth, (lady top of light green colour Ex.P1) and of its seizure by the police also finds corroboration from the evidence of PW1 - W/HC Nambu Sherpa and PW10 - Inspector Poornima Panthri, IO.
PW1 - W/HC Nambu Sherpa, who in her examination inchief has deposed that on 27/08/2010, she alongwith IO Inspector Purnima took complainant/ prosecutrix (name withheld) in BSA Hospital for medical examination. She was medically examined. After medical examination, Doctor handed over the sealed pullinda containing the 92 of 109 93 FIR No. 235/10 PS - S. P. Badli exhibits which were seized by the IO vide seizure memo Ex. PW1/A, bearing her signature at point 'A'. On 31/08/2010, complainant/ prosecutrix (name withheld) handed over one Top of light green colour and the same was put up into pullinda and sealed with the seal of PP and the same was seized vide memo Ex. PW1/B, bearing her signature at point 'A'. She correctly identified one light green coloured top which was handed over by the complainant as Ex. P1.
Despite grant of opportunity PW1 - W/HC Nambu Sherpa was not crossexamined on behalf of the accused.
The testimony of PW10 - Inspector Poornima Panthri, IO has been detailed and discussed hereinbefore. There is nothing in her crossexamination so as to impeach her creditworthiness. There is also nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. She has deposed regarding the facts as to what she acted, perceived, observed and experienced during the course of investigation.
93 of 109 94 FIR No. 235/10 PS - S. P. Badli In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
19. Learned Counsel submitted that PW8 - Ankit Soni, PW9 - Mohit Kohli, PW7 Smt. Rama Devi, PW12 - Khushal and PW13 - Ms. Sunena did not support the prosecution case.
I have carefully perused and analysed the evidence on record.
The testimonies of PW6 - Prosecutrix as well as PW8 - Ankit Soni, PW9 - Mohit Kohli, PW7 Smt. Rama Devi, PW12 - Khushal and PW13 - Ms. Sunena have been reproduced, discussed and analysed hereinbefore.
So far as the plea so raised by the Learned Counsel for the accused that, "PW8 - Ankit Soni, PW9 - Mohit Kohli, PW7 Smt. Rama Devi, PW12 - Khushal and PW13 - Ms. Sunena did not support the 94 of 109 95 FIR No. 235/10 PS - S. P. Badli prosecution case", is concerned, on careful perusal and analysis of the evidence on record it is found to have no substance. The testimony of PW6 - Prosecutrix has also been found to be corroborated by PW8 - Sh. Ankit Soni, PW9 - Sh. Mohit Kohli, PW11 - Smt. Rama Devi, PW12 - Kushal and PW13 - Ms. Sunena, in material particulars as discussed and analysed hereinbefore.
At the cost of repetition, PW8 Ankit Soni has specifically deposed in his examinationinchief that he is also knowing Prosecutrix (name withheld) as she was friend of accused Karan Bhasin and he introduced Prosecutrix before him (PW8 - Ankit Soni).
PW9 Mohit Kohli has specifically deposed in his examinationinchief that he is also knowing Prosecutrix (name withheld) as she was introduced by accused Karan before him (PW9 Mohit Kohli) and Ankit.
95 of 109 96 FIR No. 235/10 PS - S. P. Badli PW12 Kushal has specifically deposed in his examinationinchief that accused Karan introduced PW6 Prosecutrix to him by saying that she is his (accused Karan Bhasin) friend.
PW13 Ms. Sunena has specifically deposed in her examinationinchief that in the year, 2011 she alongwith her friend/prosecutrix (name withheld) went to MCD Model Town, Delhi, and her (PW6 Prosecutrix) friend i.e accused Karan Bhasin also came in MCD Model Town, Delhi, and she (PW6 Prosecutrix) proposed to accused Karan Bhasin for marriage and she correctly identified accused Karan Bhasin present in the court.
PW11 Smt. Rama Devi, who is the mother of PW6 Prosecutrix has specifically deposed in her examinationinchief that her daughter/Prosecutrix (name withheld) informed about her friendship with accused Karan Bhasin and she correctly identified accused Karan Bhasin present in the court.
96 of 109 97 FIR No. 235/10 PS - S. P. Badli Moreover, the said PWs were not crossexamined on behalf of the accused despite grant of opportunity nor the aforesaid facts testified by the said PWs have been disputed by the accused during his statement recorded u/s 313 Cr.P.C.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
The relevant part of the statement of accused Karan Bhasin recorded u/s 313 Cr.P.C is reproduced and reads as under: "Q15. It is in evidence against you that PW8 Ankit Soni has deposed that he is also knowing Prosecutrix (name withheld) as she was friend of you accused Karan Bhasin and you introduced Prosecutrix before him. What you have to say?
Ans. It is correct.
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Q14. It is in evidence against you that PW9 Mohit Kohli has deposed that he is also knowing Prosecutrix (name withheld) as she was introduced by you accused Karan before him (PW9 Mohit Kohli) and Ankit. What you have to say?
Ans. It is correct.
Q12. It is in evidence against you that PW12 Kushal has deposed that you accused Karan introduced PW6 Prosecutrix to him by saying that she is your friend. What you have to say?
Ans. It is correct.
Q13. It is in evidence against you that PW13 Ms. Sunena has deposed that in the year, 2011 she alongwith her friend/prosecutrix (name withheld) went to MCD Model Town, Delhi, and her (PW6 Prosecutrix) friend i.e you accused Karan Bhasin also came in MCD Model Town, Delhi, and she (PW6 Prosecutrix) proposed to you accused Karan Bhasin for marriage and that you have been correctly identified by PW13 Ms. Sunena. What you have to say?
Ans. It is correct.
Q11. It is in evidence against you that PW11 Smt. Rama Devi, who is the mother of PW6 Prosecutrix has deposed that her daughter/Prosecutrix (name withheld) informed about her friendship with you accused Karan Bhasin and that you have been correctly identified by PW11 Smt. Rama Devi. What you have to say?
Ans. It is correct."
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On careful perusal and analysis of the testimonies of PW8 - Sh. Ankit Soni, PW9 - Sh. Mohit Kohli, PW11 - Smt. Rama Devi, PW12 - Kushal and PW13 - Ms. Sunena it is found that PW8 Sh. Ankit Soni, PW9 - Sh. Mohit Kohli and PW12 - Kushal are the friends of accused Karan Bhasin. PW11 - Smt. Rama Devi, is the mother of the prosecutrix and PW13 - Ms. Sunena, is the friend of the prosoecutrix. They have deposed regarding the friendship between accused Karan Bhasin and the prosecutrix, the meetings between accused Karan Bhasin and the prosecutrix, their friendship with either with the prosecutrix or with accused Karan Bhasin and regarding the marriage proposal made by prosecutrix to accused Karan Bhasin. They are not the witnesses to the offence involved in the present case. 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 Karan Bhasin to falsely implicate him in the case. They have deposed regarding the facts as to what they observed, experienced and perceived. Though they resiled and turned hostile and were crossexamined by the Learned Addl. PP but their hostility does not vitiate or negate the case of the prosecution which is otherwise proved 99 of 109 100 FIR No. 235/10 PS - S. P. Badli on record by clear, cogent and convincing evidence.
It is well settled that the evidence of a hostile witness, to the extent, it supports the case of the prosecution, can be relied upon, if it is corroborated by other reliable evidence. (Ref. Raj Kumar Vs. State of Delhi, 2015 IV AD (DELHI) 280).
Moreover, the facts regarding knowing of each other (accused Karan Bhasin and PW6 - Prosecutrix); the good friendship between the two; of exchange of mobile numbers between the two; of their talking continuously on phone; of their meeting with each other; of their roaming together and of their having normal talks regarding their jobs, regarding their pasts etc., have not been disputed by the accused Karan Bhasin either during the cross examination of PW6 - Prosecutrix or even during his statement recorded u/s 313 Cr.P.C.
The relevant part of the statement of accused Karan 100 of 109 101 FIR No. 235/10 PS - S. P. Badli Bhasin recorded u/s 313 Cr.P.C is reproduced and reads as under: "Q1. It is in evidence against you that PW6 Prosecutrix was knowing you and there was a good friendship between you and her and that you have been correctly identified by PW6 Prosecutrix. What you have to say?
Ans. It is correct.
Q2. It is in evidence against you that you (accused Karan Bhasin and PW6 Prosecutrix) had a normal exchange of talks and you (accused Karan Bhasin and PW6 Prosecutrix) also exchanged your mobile numbers and thereafter, you (accused Karan Bhasin and PW6 Prosecutrix) had been talking continuously on phone and you (accused Karan Bhasin and PW6 Prosecutrix) kept on meeting with each other and you (accused Karan Bhasin and PW6 Prosecutrix) used to roam together and used to have normal talks regarding your jobs, regarding your past etc. What have you to say?
Ans. It is correct."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
20. Learned Counsel for the accused referred to the cases and are reported as Aba Dinakr Girdhar Koli Vs. The State of Maharashtra, 2008 Cri.L.J 2516 and Sujit Ranjan Vs. State MANU/DE/0378/2011.
101 of 109 102 FIR No. 235/10 PS - S. P. Badli 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 destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
21. 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, 2010, at Sector - 18, Paradise Apartments, Rohini, Delhi and thereafter many times, accused Karan Bhasin repeatedly committed rape upon PW6 Prosecutrix aged around 24 years, against her will and without her consent on the false pretext of marriage.
102 of 109 103 FIR No. 235/10 PS - S. P. Badli I accordingly hold accused Karan Bhasin guilty for the offence punishable u/s 376 IPC and convict him thereunder.
22. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Karan Bhasin in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Karan Bhasin beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Karan Bhasin guilty for the offence punishable u/s 376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 17th Day of October, 2015 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 103 of 109 104 FIR No. 235/10 PS - S. P. Badli IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK COURT: NORTH DISTRICT : ROHINI : DELHI SESSIONS CASE NO. : 11/13 Unique ID No. : 02404R017412012 State Vs. Karan Bhasin S/o Sh. Surender Bhasin R/o Sector - 18, Millennium Apartments, Delhi.
FIR No. : 235/10 Police Station : S. P. Badli (Crime Branch) Under Section : 376 IPC ORDER ON SENTENCE :
1. Vide my separate detailed judgment dated 17/10/2015 accused Karan Bhasin has been convicted for the offence punishable u/s 376 IPC.
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2. Shri Pradeep Rana, Learned Counsel for the convict Karan Bhasin submitted that convict Karan Bhasin is 26 years of age. He is B.A Ist Year Pass and is unmarried. He was working as a Supply Chain Manager in Fruit and Vegetables Ist Bite at Azad Pur Mandi, Delhi and was earning Rs. 30,000/ per month and is the sole bread earner in the family. He further submitted that he is having the aged father who is suffering from liver disease and is having the aged mother who is a house wife and is also to lookafter them. He further submitted that he is having two sisters who have since been married off and is having no brother. He further submitted that he is running in Judicial Custody (JC) since 17.10.2015 and is not involved in any other case and is having clean antecedents and is not a previous convict and his conduct during the trial was very cooperative and he is the victim of the circumstances and prayed for leniency.
3. On the other hand, Sh. Ashok Kumar, Learned Addl. PP for State submitted that seeing the gravity of the offence, the convict be dealt with strictly and severest punishment be given to deter him from 105 of 109 106 FIR No. 235/10 PS - S. P. Badli committing the same offence in future and no leniency be shown to him.
4. I have heard the Learned Addl. PP for the State and the Learned Counsel for the convict Karan Bhasin on the quantum of sentence at length. That in the month of February, 2010, at Sector - 18, Paradise Apartments, Rohini, Delhi and thereafter many times, convict Karan Bhasin repeatedly committed rape upon PW6 Prosecutrix aged around 24 years, against her will and without her consent on the false pretext of marriage.
5. It has been held by the Hon'ble Apex Court in Sahdev Vs. Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that : "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
6. It has been held in 'State of Karnataka Vs. Murlidhar', 106 of 109 107 FIR No. 235/10 PS - S. P. Badli 2009 IV AD (S.C.) 1 that : "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
7. In 'Mulla & Anr. Vs. State of Uttar Pradesh, (2010) 3 SCC 508, after considering various earlier decision, the Hon'ble Supreme Court held as under : "It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate be fitting the crime".
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8. In 'Pushpanjali Sahu Vs. State of Orissa', (2012) 9 SCC 705 in para 12, the Hon'ble Supreme Court has held as under : "Sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman but also a serious blow to her honour. It leaves a traumatic and humiliating impression on her conscienceoffending her selfesteem and dignity. Rape is not only a crime against the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour reputation and not the least her chastity. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely the right of life contained in Article 21 of the Constitution. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely" (Para 12).
9. Having regard to all the facts and circumstances of the case coupled with the submissions made on behalf of the convict and after delicately balancing and giving due consideration to the facts and circumstances, the aggravating and mitigating factors and circumstances in which the offence had been committed, I am of the considered opinion that the ends of justice can be met by sentencing convict Karan Bhasin to undergo Rigorous Imprisonment for a period of seven years 108 of 109 109 FIR No. 235/10 PS - S. P. Badli and to pay a fine of Rs. 20,000/ in default thereof to further undergo Rigorous Imprisonment for a period of one year u/s 376 IPC. The period already undergone by the convict Karan Bhasin during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to the convict free of costs.
Announced in the open Court (MAHESH CHANDER GUPTA) on 20th Day of October, 2015 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 109 of 109