Delhi District Court
State vs . Suresh Malik on 30 May, 2012
1 FIR No. 01/2009
PS Rohini South
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. : 26/115
Unique ID No. : 02404R0169072011
State Vs. Suresh Malik
S/o Sh. Sher Singh
R/o Azad Nagar,
Near Khalakwal Gas Agency,
Rohtak, Haryana.
FIR No. : 01/2009
Police Station : Rohini South
Under Sections : U/S 376/365/506/366 IPC
Date of committal to session Court: 19.08.2011
Date on which judgment reserved: 21.05.2011
Date of which judgment announced: 30.05.2011
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JUDGMENT :
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 01.09.2009 the prosecutrix went to the Police Station Rohini South and lodged a self written complaint to Insp. Vijender Pal, SHO, Rohini that on 31.12.2008 she had come to Jaipur Golden Hospital, Sector3, Rohini and she had received a phone call on her mobile phone no. 9212983857 from the mobile phone no. 09812623151 of her known person, Suresh Malik, who asked her as to where she is and she disclosed her position on which he asked her to wait as he is having some work and after sometime he came in his car no. HR12J6789 Hyndai Varna of white colour at about 7.00 PM. He enticed her on the pretext to drop her at home and asked her to sit near his driver seat. Firstly for about an hour he kept on talking of here and there. She knows Suresh Malik for the last six/seven months and she met him during the treatment of her mother Sushila Devi at Jaipur Golden Hospital. On the pretext of seeing a plot Suresh Malik two to four time had also come at her house. She asked him to drop her at house otherwise she will go herself. On which he threatened if she will speak too 2 of 35 3 FIR No. 01/2009 PS Rohini South much he is having many associates and from them he will shot her dead and thereafter he locked the car. At about 12.00 in the night he took her in a desolate place in Sector3, Rohini which she may identify or she may not identify and after parking the vehicle and by pressing her mouth and after threatening to kill her he removed the seat from her back and forcibly removed her clothes and he (Suresh Malik) committed wrong act (galat kaam) with her and she kept on weeping but he didn't listen to her. Thereafter, he kept on roaming her in Bawana, Narela and at about 10.30 AM on 01.01.2009 he left her at Madhuban Chowk and threatened her, if she disclosed the incident to any one he will get eliminate her entire family. She somehow reached at her home and her mother in the noon asked her why she is so sad on which she told the incident and with her mother now she has come to Police Station Rohini and her medical examination be got conducted and the legal action be taken against Suresh Malik. On the said statement of the prosecutrix Insp. Vijender Pal made an endorsement and prepared a tehrir and got the case registered u/s 363/376/506 IPC and took up the investigation himself. During the course of investigation prosecutrix accompanied by her mother and ASI Nirmala was got medically examined from BSA Hospital, Rohini and after her medical examination the sealed pullandas handed over by doctor were taken into possession. Prosecutrix 3 of 35 4 FIR No. 01/2009 PS Rohini South was taken for the identification of the spot, but she could not identify the spot. Statements of the witnesses were recorded u/s 161 Cr.P.C. Statement of the prosecutrix was got recorded u/s 164 Cr.P.C. Accused Suresh Malik was searched for. On 13.02.009 NBWs against accused Suresh Malik was obtained and on 25.02.2009 order of proclamation u/s 82 Cr.P.C was obtained against accused Suresh Malik. Accused Suresh Malik on 28.01.2009 moved an application for anticipatory bail before the Court of Sh. R.P. Pandey, Ld. ASJ, which was dismissed. The second anticipatory bail application was also moved by the accused before the said Ld. Sessions Court, which was also dismissed.
During the course of investigation accused Suresh Malik moved an anticipatory bail application before the Hon'ble Delhi High Court. Accused Suresh Malik made allegations of black mail and extortion against Smt. Sushila Devi and prosecutrix and in this regard accused Suresh Malik through his brother Ishwar Singh, moved a separate application u/s 156 (3) Cr.P.C in the Court of Sh. Vishal Singh, Ld. MM, Rohini alongwith CD containing the conversation taken place on phone and produced the copy of FIR No. 1444/02, u/s 341/354/34 IPC, PS Sultanpuri, in which mentioning of filing of case by prosecutrix has been made. During the hearing on the bail 4 of 35 5 FIR No. 01/2009 PS Rohini South application of accused Suresh Malik in the Hon'ble Delhi High Court, the Hon'ble Delhi High Court ordered for getting done the voice sampling and for the verification of the particulars of compromise in FIR No. 1444/02 dated 29.12.2002, while granting interim anticipatory bail to the accused Suresh Malik till 27.05.2009. On 02.03.2009 the investigation of the case was handed over to Insp. Sanjita by the order of DCP/OD. During the course of investigation, voice sample test were got conducted and record of FIR No. 1444/02 was obtained and as per the record the case file of the said FIR was destroyed by the order of the court in the year 2008.
Accused joined the investigation and was interrogated and was arrested in the case and got medically examined and the sealed pullandas after his medical examination were taken into police possession. Accused Suresh Malik was released on the surety bond of Rs. 25,000/. The car of accused Suresh Malik No. HR12J6789, VERNA White Colour was taken into possession and was taken to FSL after obtaining the permission for crime scene, and was got done its internal examination. The exhibits lifted by FSL team from the car were taken into police possession and were sent for forensic opinion to FSL Rohini.
During the course of investigation voice sample result was obtained from FSL Rohini and was submitted in the Hon'ble Delhi High 5 of 35 6 FIR No. 01/2009 PS Rohini South Court on 15.09.2009. The Hon'ble Delhi High court confirmed the anticipatory bail of accused Suresh Malik. Result (Biology) was obtained.
Upon completion of necessary further investigation challan was prepared for the offences u/s 365/376/506 IPC against accused Suresh Malik and was sent to the court for trial.
2. Since the offence u/s 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 u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 365/366/376/506 IPC against accused Suresh Malik, was made out. Charge was framed accordingly which was read over and explained to accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 6 witnesses. PW1 Prosecutrix, PW2 Dr. Kuldeep Singh, CMO, BSA Hospital, Rohini, Delhi, PW3 Dr. Roshani Agrawal, B.S. Ambedkar Hospital, Delhi, PW4 Dr. C.P. Singh, Assistant Director (Physics), FSL 6 of 35 7 FIR No. 01/2009 PS Rohini South Rohini, Delhi, PW5 Smt. Sushila Devi and PW6 W/Inspector Sanjita.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 is the prosecutrix, who deposed regarding the incident and proved her complaint made to the police Ext. PW1/A on the basis of which FIR was registered. She also proved her statement u/s 164 Cr.P.C Ext. PW2/B, clothes/underwear Mark PX1. She did not support the prosecution and was turned hostile.
During crossexamination by Ld. Addl. PP for the state she also marked the documents Mark PX2 to PX4. She also marked the arrest memo and personal search memo of accused Mark PX5 & Mark PX6.
PW2 Dr. Kuldeep Singh, CMO, BSA Hospital, Rohini, Delhi, who examined the patient/prosecutrix on 01.01.2009 and proved the examination at portion A to A of MLC Ex. PW2/A. He further deposed that on 24.04.2009 he examined patient/accused Suresh Malik at Point A to A on MLC Ext. PW2/B signed by him at point 'B'.
7 of 35 8 FIR No. 01/2009 PS Rohini South PW3 Dr. Roshni Agrawal, B.S. Ambedkar, Hospital, Delhi, who proved the gynaecological examination conducted by Dr. Pooja, of prosecutrix at portion A to A1 on MLC Ext. PW3/A signed by her (Dr. Pooja) at point A & B. PW4 Dr. C.P. Singh, Assistant Director (Physics), FSL, Rohini, Delhi, who deposed that on 01.05.2009 six sealed pullandas connected with this case FIR No. 1/09, PS Rohini South was received in the office through Ct. Satya Prakash and that the pullandas were assigned to him for opinion in respect of the articles. He examined the articles i.e three CDs marked as Ex. 1a, Ex. 1b and Ex. 1c and another pullanda containing three CDs marked as Ex. 2a, Ex. 2b and Ex. 2C, another pullanda containing original audio cassettes of the voice of Suresh Malik marked as Ex. 3. another pullanda containing the audio cassettes of the voice sample of prosecutrix marked as Ex.4, another pullanda containing original audio cassettes of voice of Sushela, mother of the prosecutrix marked as Ex.5, another pullanda containing mobile make NOKIA bearing no. 09729129062 marked as Ex.6. After examination of the above exhibits he has given a detailed report Ex. PW4/A signed by him at Point A and B. 8 of 35 9 FIR No. 01/2009 PS Rohini South PW5 Smt. Sushila Devi is mother of the prosecutrix who was turned hostile and did not support the prosecution case. She was also cross examined by the Ld. Addl. PP for the state. During her crossexamination by Ld. Addl. PP she proved the seizure memo of two audio cassettes of her voice prepared by FSL Rohini Ext. PW5/A (Mark PX4).
PW6 Inspector Sanjita is the Investigating Officer (IO), who deposed on the investigational aspects and proved the arrest memo Ext. PW6/A (Mark PX5) and personal search memo Ext. PW6/B (Mark PX6) of the accused, disclosure statement of accused Ext. PW6/K. She also proved the seizure memo of car, its seat cover and key of car bearing no. HR12J6789 Ext. PW6/C (Mark PX2), seizure memo of three copies of CDS produced by accused alongwith their transcription Ext. PW6/D, seizure memo of four audio cassettes (two original and two copies) of voice samples of accused and prosecutrix prepared by FSL Ext. PW6/E (Mark PX3), seizure memo of three original CD produced by accused Ext. PW6/F, seizure memo of two audio cassettes (one original and one copy) of voice sample of PW5 Smt. Sushila Devi prepared by FSL Ext. PW5/A, seizure memo of a few strands of hair collected from foot mat and left side seat of driver seat (of car No. HR12J6789) Ext. PW6/G, seizure memo of 9 of 35 10 FIR No. 01/2009 PS Rohini South exhibits after examination of accused Ext. PW6/H, seizure memo of mobile phone no. 09729129062 produced by accused in which he had allegedly recorded conversation with prosecutrix and her mother Smt. Sushila (PW5) Ext. PW6/J, FSL reports Ext. PX & Ext. PY and Ext. PX1 & Ext. PY1, car bearing no. HR12J6789 Ext. P1, few strands of hair Ext. P2, two car seat covers Ext. P5 & Ext. P6, three car seat covers Ext. P7, Ext P8 and Ext. P9. She also proved the articles i.e three CDs marked as Ext. 1a, Ext. 1b and Ext. 1c and another pullanda containing three CDs marked Ext. 2a, Ext. 2b and Ext. 2c, another pullanda containing original audio cassettes of the voice of Suresh Malik marked as Ext. 3. another pullanda containing the audio cassettes of the voice sample of prosecutrix marked as Ext.4, another pullanda containing original audio cassettes of voice of PW5 Sushela, mother of the prosecutrix marked as Ext.5, another pullanda containing mobile make NOKIA bearing no. 09729129062 marked as Ext.6.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.
6. 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 10 of 35 11 FIR No. 01/2009 PS Rohini South material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
7. Statement of accused Suresh Malik was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. Accused Suresh Malik opted not to lead any defence evidence.
8. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the accused and have also carefully perused the entire record.
AGE OF THE PROSECUTRIX:
9. PW1 Prosecutrix during her statement recorded u/s 164 Cr.P.C Ext. PW1/B has stated her age as 24 years recorded on 02.01.2009, after one day of the alleged incident on 31.12.2008. Although no independent evidence pertaining to the age of PW1 prosecutrix has been led by the prosecution yet the said fact of the PW1 prosecutrix being aged 24 years as stated by her during her statement u/s 164 Cr.P.C Ext. PW1/B has not been disputed by the accused.
11 of 35 12 FIR No. 01/2009 PS Rohini South In the circumstances, it stands established on the record that PW1 Prosecutrix was aged about 24 years on the date of the incident.
VIRILITY OF ACCUSED SURESH MALIK:
10. PW2 Dr. Kuldeep Singh, CMO, BSA Hospital, Rohini, Delhi, who deposed that on 24.04.2009 he examined Suresh Malik S/o Sh. Sher Singh brought to the casualty ward of BSA hospital at about 5.05 pm. He examined the patient and on general examination he does not find external sign of any fresh injuries. He referred the patient to SR Surgery for further management and opinion. His opinion is at point A to A at MLC Ext.
PW2/B signed by him at PointB. PW6 Inspector Sanjita, IO in her examination in chief has deposed that "Accused was also medically examined from BSA hospital and after medical examination, concerned doctor has given sealed pullanda and sample seal and the same were taken into possession vide memo Ext. PW6/H signed by me at PointA."
12 of 35 13 FIR No. 01/2009 PS Rohini South Although Dr. Chandan Dass, S.R. Surgery who examined accused Suresh Malik surgically has not been examined yet the accused has not disputed his competency to perform the sexual act. Moreover, PW6 Inspector Sanjita has also proved that after surgical examination of accused the exhibits as were handed over by doctor were seized vide seizure memo Ext. PW6/H. In the circumstances, it stands established that accused had the competency to perform the sexual act.
MEDICAL EVIDENCE QUA PW1 PROSECUTRIX:
11. PW2 Dr. Kuldeep Singh, C.M.O, BSA Hospital, Rohini, Delhi, who deposed that on 01.01.2009 he examined the prosecutrix and proved her examination from portion A to A on MLC Ext. PW2/A signed by him at PointB. PW3 Dr. Roshni Agrawal, who proved the gynaecological examination conducted by Dr. Pooja, of prosecutrix at portion A to A1 on 13 of 35 14 FIR No. 01/2009 PS Rohini South MLC Ext. PW3/A signed by her (Dr. Pooja) at point A & B, who further deposed that as per MLC on her vaginal examination introitus admits two finger easily. Hymen was not intact and hymen edges not congested. Cervix down wards, uterus anteverted, normal size, bilateral fornices free. No bleeding per vaginally at the time of examination of the patient. Samples as per the MLC and undergarments of the patient was seized and preserved given to the ASI Nirmala.
There is nothing in the crossexamination of PW2 Dr. Kuldeep Singh and PW3 Dr. Roshani Aggarwal so as to impeach their creditworthiness.
BIOLOGICAL AND SEROLOGICAL EVIDENCE:
12. PW6 Inspector Sanjita, IO has proved the FSL reports Ext. PX, Ext. PY, Ext. PX1 and Ext. PY1.
13. As per FSL report Ext. PX1, the description of articles contained in parcel reads as under : 14 of 35 15 FIR No. 01/2009 PS Rohini South DESCTRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel'1' : One sealed card board box parcel sealed with the seal of "SD" containing exhibits '1a1', '1a2', '1b1', '1b2', '1c', '1d', '1e', '1f', '1g', '1h', & '1i'. Exhibit'1a1' & "1a2' : Two microslides labeled as 'cervical slide'. Exhibit'1b1' & "1b2' : Two microslides labeled as 'vaginal slide'.
Exhibit'1c' : One underwear.
Exhibit'1d' : A bunch of hair labeled as public hair clippings kept
in a plastic container.
Exhibit'1e' : A few nail clippings.
Exhibit'1f' : Dark brown foul smelling liquid described as blood
sample kept in a test tube.
Exhibit'1g' : Dark brown foul smelling liquid described as blood
sample kept in a test tube.
Exhibit'1h' : Cotton wool swab on a stick labeled as 'cervical
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swab' kept in a test tube.
Exhibit'1i' : Cotton wool swab on a stick labeled as 'vaginal
swab' kept in a test tube.
Parcel'2' : One sealed cloth parcel sealed with the seal of "SJ"
containing exhibit '2'.
Exhibit'2' : Two car seat covers.
Parcel'3' : One sealed cloth parcel sealed with the seal of "SJ"
containing exhibit '3'.
Exhibit'3' : Two car seat covers.
Parcel'4' : One sealed cloth parcel sealed with the seal of "SJ"
containing exhibit '4'.
Exhibit'4' : Three (03) car seat covers.
The results of the analysis reads as under:
RESULTS OF ANALYSIS
1 Blood was detected on exhibits '1f' & '1g'.
2 Human semen was detected on exhibits '1a2', '1b1', '1b2', '1c', '1h' & '1i'.
3 Blood could not be detected on exhibits '1a1','1d', '1e', '2', '3' & '4'.
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4 XX XX XX XX
The Serology Report Ext. PY1 reads as under: Exhibits Species of origin ABO Grouping/ Remarks Blood Stains: '1f' Blood sample Sample was putrefied hence no opinion. '1g' Blood sample Sample was putrefied hence no opinion.
Semen Stains:
'1c' Underwear Inconclusive
'1h' Cotton wool swab No reaction
'1i' Cotton wool swab No reaction
14. As per FSL report Ext. PX, the description of articles contained in parcel reads as under: DESCTRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel'5' : One sealed cloth parcel sealed with the seal of "SJ"
containing exhibit '5'.
Exhibit'5' : Portion of seat cover.
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Parcel'6' : One sealed envelope sealed with the seal of "SJ"
containing exhibit '6'.
Exhibit'6' : A few strands of hair.
Parcel'7' : One sealed cardboard box parcel sealed with the
seal of "SD" containing exhibits '7a', '7b', '7c', '7d', '7e' & '7f'.
Exhibit'7a' : Brownish gauze cloth piece labeled as blood sample kept in a plastic containers.
Exhibit'7b' : A few hair clippings labeled as scalp hairs kept in an injection vial.
Exhibit'7c' : A few strands of hair labeled as scalp hairs kept in an injection vial.
Exhibit'7d' : A few strands of hair labeled as public hairs kept in an injection vial.
Exhibit'7f' : One microslide labeled as glans smear.
RESULTS OF ANALYSIS 1 Blood was detected on exhibit '7a'.
2 Semen could not be detected on exhibits '5', '6', '7b', '7c', '7d' & '7f'. 3 Report of serological analysis in original is attached herewith.
The Serology Report Ext. PY reads as under:
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Exhibits Species of origin ABO Grouping/
Remarks
'7a' Gauze cloth piece Human 'A' Group.
On careful perusal and analysis of the FSL report Ex. PX1 although human semen was detected on Exhibits 1a2 (cervical slide), 1b1 & 1b2 (vaginal slide), 1c (one underwear), 1h (cervical swab) 1i (vaginal swab) of the prosecutrix but as per serology report Ext. PY1 on the exhibit 1c (underwear), the species of origin nothing could be determined and ABO Grouping remainedinconclusive.
On the Exhibit 1h and 1i, the species of origin, nothing could be determined and ABO Grouping gave "No Reaction".
While on careful perusal and analysis of the FSL report Ext. PX, blood was detected on Exhibit 7a (Gauze cloth piece) of the accused Suresh Malik and as per the serology report Ext. PY, on the Exhibit 7a, the blood was of human origin, with 'A' Group.
From above, on a conjoint reading of FSL reports Ext. PX1, Ext 19 of 35 20 FIR No. 01/2009 PS Rohini South PY1, Ext. PX and Ext PY, it is clearly indicated that human semen was detected on Exhibits 1a2, 1b1, 1b2, 1c, 1h and 1i but it could not be established on the record that the said human semen belonged to accused Suresh Malik, as the serology report Ext. PY1 with regard to the ABO Grouping remained inconclusive/No reaction, as discussed hereinabove.
FORENSIC (AUDITORY & ACOUSTIC) EVIDENCE:
15. PW4 Dr. C.P. Singh, Assistant Director (Physics), FSL, Rohini, Delhi who has deposed that "On 1.5.2009 six sealed pullandas connected with this case FIR No. 1/09 PS Rohini South was received in the office through constable Satya Prakash and that the pullandas were assigned to me for opinion in respect of the articles. I examined the articles i.e three CDs marked as Ex. 1A, Ex.1b and Ex.1c and another pullanda containing original audio cassettes of the voice of Suresh Malik marked as Ex. 3, another pullanda containing the audio cassettes of the voice sample of victim the prosecutrix (name withheld) marked as Ex.4, another pullanda containing original audio cassettes of voice of mother of the prosecutrix (name withheld) namely Sushela and the same is marked as Ex.5, another pullanda containing mobile make NOKIA bearing No. 09729129062 and it was marked as Ex6. After examination of the above exhibits, I have given the detailed report Ex.
20 of 35 21 FIR No. 01/2009 PS Rohini South PW4/A signed by me at point A and B".
PW4 Dr. C.P. Singh was not crossexamined despite grant of opportunity.
16. As per FSL report Ext. PW4/A, the description of articles contained in parcel reads as under: DESCTRIPTION OF ARTICLES CONTAINED IN PARCEL (S)/EXHIBIT (S) Parcel No.1 : One sealed polythene packet stated to be containing "original CD produced by Sh. Suresh Malik in Court", on opening three CDs was found and these were marked as "Exhibitla", "Exhibit 1b" & "Exhibit 1c"
in the laboratory.
Exhibit 1a : One CD of Moserbaer found marked "1" containing two audio files, namely, 'Voice0004' & Voice0005'. In file, namely, 'Voiceooo4' the speaker starts with "are babita se bat karana" was marked as "Exhibit Q1" and the speaker starts with "are babita kaun hoti hai" was marked as "Exhibit Q3" in the laboratory. In file, namely, "Voice 0005' the speaker starts with 21 of 35 22 FIR No. 01/2009 PS Rohini South "phone kar liya" was marked as 'Q2" and the speaker starts with "woh to ye kaha....." was marked as "Q1"
in the laboratory.
Exhibit 1b : One CD of Moserbaer found marked "2" containing four files, one file, namely '11022009179 (trimmed)' in MP3 format and other three namely '11022009178', '11022009181' & '11022009182' were in MPEG4 format. In file, namely, '11022009179 (trimmed)' the speaker starts with "hello....hello....mai ye kah" was marked as "Exhibit Q1" and the speaker starts with "hello......hello...... mai ye kah" was marked as "Exhibit Q1" and the speaker starts with "hello..... han hello.....aawaj nahi aa rahi kaya" was marked as "Exhibit Q2" in the laboratory.
Exhibit 1c : One CD of Moserbaer found marked "3" containing two audio files, namely, 'Voice0004' & Voice0005'. Parcel No.2 : One sealed polythene packet stated to be containing "Copy of CD produced by Sh. Suesh Malik, on opening three CDs were found and these were marked as "Exhibit2a", "Exhibit 2b" & "Exhibit 3c" in the laboratory.
Exhibit 2a : One CD of Moserbaer found marked "1" containing one audio files, namely, 'Voice0004' in MP3 format. In file, namely, 'Voiceooo4' the speaker starts with "hello phone kat gaya tha" was marked as "Exhibit 22 of 35 23 FIR No. 01/2009 PS Rohini South Q1" and the speaker starts with "han bolo......dekho panch mai bat banti nahi hai" was marked as "Exhibit Q3" in the laboratory.
Exhibit 2b : One CD of Moserbaer found marked "2" containing one audio file, namely '11022009179 (trimmed)' in the laboratory.
Exhibit 2c : One CD of Moserbaer found marked "3" containing one audio file, namely, '11022009179 (trimmed)' in MP3 format.
Parcel No.3 : One sealed polythene packet stated to be containing "original audio cassette of voice sample of Sh. Suresh Malik", on opening one audio cassette was found and it was marked as "Exhibit3" in the laboratory. Exhibit 3 : One audio cassette of TSeries C60, containing sample voice. The speaker (Sh. Suresh Malik) of the specimen voice sample was marked as "ExhibitS1" in the laboratory.
Parcel No.4 : One sealed polythene packet stated to be containing "original audio cassette of voice sample of Victim Babita", on opening one audio cassette was found and it was marked as "Exhibit4" in the laboratory. Exhibit 4 : One audio cassette of TSeries C60, contains 23 of 35 24 FIR No. 01/2009 PS Rohini South sample voice. The speaker (Smt. Babita) of the specimen voice sample was marked as "ExhibitS2" in the laboratory.
Parcel No.5 : One sealed polythene packet stated to be containing "original audio cassette of voice sample of Mother of Babita Smt. Sushila Devi", on opening, one audio cassette was found and it was marked as "Exhibit5"
in the laboratory.
Exhibit 5 : One audio cassette of TSeries C60, containing sample voice. The speaker (Smt. Sushila Devi) of the specimen voice sample was marked as "ExhibitS3" in the laboratory.
Parcel No.6 : One sealed polythene packet stated to be containing "one mobile make Nokia bearing no. 09729129062", on opening, one Nokia mobile phone set was found and it was marked as "Exhibit6" in the laboratory.
Exhibit 6 : One Nokia mobile phone set Model 6233 with memory chip containing six folders. Relevant folder namely "new" was found containing three audio files, namely, '11022009179 (trimmed)', 'Voice' & 'Voice0005'.
RESULTS OF EXAMINATION/OPINION:
24 of 35 25 FIR No. 01/2009 PS Rohini South One auditory analysis, the content of conversation in CD marked Exhla was found similar with the content of conversation in Exh1c.
The content of conversation in CD marked Exhibit2a was found similar with the audio file namely "Voice " in the memory chip of mobile phone set in Exhibit 6.
The content of conversation in CD marked Exhibit 2b was found similar with the audio file namely "Voice0005" in the memory chip of mobile phone set in Exhibit6.
The content of conversation in CD marked Exhibit2c was found similar with the audio file namely "11022009179 (trimmed)" in the memory chip of mobile phone set in Exhibit6 as well as in "Exhibit1b".
The memory chips contain audio file in MP3 format and not in Nokia media file format.
1 The auditory analysis of recorded speech samples of speakers marked "ExhibitQ1" & "ExhibitS1" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit Q1" is similar to the voice exhibits of speaker marked "Exhibit S1" in respect of their acoustic cues and other linguistic and phonetic features.
2 The auditory analysis of recorded speech samples of speakers marked "Exhibit Q2" and "ExhibitS2" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit Q2" is similar to the voice exhibits of 25 of 35 26 FIR No. 01/2009 PS Rohini South speaker marked "ExhibitS2" in respect of their acoustic cuses and other linguistic and phonetic features.
Hence, the voice exhibits of speakers marked "ExhibitQ2" and "Exhibit S2" are probable the voice of same person (i.e Smt. Babita).
3. XX XX XX XX XX XX The recording in audio file namely '11022009179 (trimmed)' in CD marked "Exhibit1b", "Exhibit2c" and the mobile phone set marked "Exhibit6" was found containing indications of alteration and the same is required to be subjected for authenticity test. Moreover, the audio files in the memory of mobile phone set marked "Exhibit6" is not in Nokia multimedia audio format.
17. On careful perusal and analysis of the FSL report Ext. PW4/A, relating to the auditory and acoustic analysis of recorded speech samples and speech samples of speakers, it stands established that Voice Exhibits; Exhibit Q1 and Exhibit S1 are the voice of accused Suresh Malik; Exhibit Q2 and Exhibit S2 are the probable voice of PW1 prosecutrix AND Exhibit Q3 and Exhibit S3 are probable voice of PW5 Smt. Sushila Devi, mother of the prosecutrix.
18. The whole case of the prosecution hinges on the testimony of 26 of 35 27 FIR No. 01/2009 PS Rohini South PW1 prosecutrix and PW5 Smt. Sushila Devi, mother of the prosecutrix.
Now let me perused and analysed the testimony of PW1 prosecutrix and PW5 Smt. Sushila Devi.
PW1 prosecutrix in her examinationinchief has deposed that on 31.12.2008 she had gone to Rohini for purchasing medicine from a shop at Sector3, Rohini at about 6.00 pm. She received a phone call from accused Suresh Malik present in the court to meet him near Jaipur Golden Hospital. She does not remember the phone her phone number or telephone number of accused Suresh Malik. He met her near Jaipur golden hospital in a car and she roamed with him in the same car at Narela, Bahadurgarh, Rai in Haryana. Accused also purchased some eatable items from Bahadurgarh then they went to a Resort at Rai in Haryana in the same car. She has further deposed that they stayed at Resort at Rai (Haryana) and it was about 12.30 or 1.00 am in the night. There a quarrel took place between her and accused Suresh Malik and he abused her. Thereafter at about 10.00 am in the morning he dropped her at Madhuban Chowk. From there she proceeded to her house and at the house she narrated the whole incident to her mother. Her mother questioned her as to where she was at the whole of the night and 27 of 35 28 FIR No. 01/2009 PS Rohini South have come in the morning by this time. She told her mother that she was with accused Suresh Malik. Her mother told her that whole of the night she had been dialing the phone numbers bout could not contact her. Then her mother called her brother Arun and her maternal uncle (Mama) Vinod, both the them gave beatings to her and also abused her and thereafter they left. After they ( her brother Arun and her maternal uncle Vinod) left her mother asked her to phone at no. 100 from her mobile phone and also asked her to phone accused Suresh Malik also. Police initially called her at police station at police station Mangolpuri but when it was told to the police that the place of incident is Sector3, Rohini then police called her at police station Sector3, Rohini. She went to the police station where police interrogated her and she lodged a complaint. Her complaint is Ex. PW1/A signed by her at pointA. Police got her medically examined in the BSA Hospital. Her clothes were also taken by the doctor into possession which she was wearing at the time of incident. Police got her statement recorded u/s 164 Cr.P.C Ext. PW1/B signed by her at Point A to D. She has further deposed that besides the places deposed herein above accused Suresh Malik had not taken her any other place. On the way during the time she was with accused Suresh Malik nothing had happened with her.
In the complaint Ex. PW1/A she made to the police she had 28 of 35 29 FIR No. 01/2009 PS Rohini South mentioned therein that accused Suresh Malik had taken her and during the time of roaming he done manhandling (hathapai) with her. She had not stated anything to the doctor regarding the incident at the time of medical examination. She further deposed that she knew accused Suresh Malik for the last five years. Firstly she had received a call from Suresh Malik, who had been given her phone number by somebody else. Accused Suresh Malik had also visited her house a few times but had come six months prior to the incident in question in connection with to see a plot of land. She does not know the make nor the number of the vehicle in which she was taken in roam by accused Suresh Malik. She was sitting on the front seat near to driver seat in the vehicle. She could not identify the underwear Mark PX1. She has further deposed that after the incident, a phone call was made by accused Suresh Malik to her but he never met her. On the phone call accused Suresh Malik had told as to what was the necessity of doing so as they had only had a fight. Police had later on also called her to FSL for taking her voice sample. She does not know whether any cassette was prepared by the FSL official of the voice sample given by her. No CD (compact disc) was given by her to the police of the said conversation, of such phone call she received of accused Suresh Malik. She does not recollect the phone number by using which accused Suresh Malik called her.
29 of 35 30 FIR No. 01/2009 PS Rohini South She has further deposed that nothing happened with her in the car in which she was roaming with accused Suresh Malik.
19. Since the PW1 prosecutrix was resiling from her previous statement to the police, she was crossexamined at length by the Ld. APP for the state after obtaining the permission of the court.
20. During her crossexamination as conducted by the Ld. APP for the state PW1 prosecutrix deposed that she was not in fit mental state and was furious, angry and under force from her family members, when she made the complaint (Ex. PW1/A) to the police. She had not stated to the police that she was making complaint (Ex. PW1/A) in the above said condition.
She negated the suggestion that she was in fit mental state and was not furious, angry and under pressure while making the complaint (Ex.PW1/A) that is why she had not told the said condition to the police.
She has deposed that she was under tension and not in a fit mental state at the time of making her statement U/s 164 Cr.P.C. She negated the suggestion that she was in a fit mental state and not under tension at the time 30 of 35 31 FIR No. 01/2009 PS Rohini South of making statement u/s 164 Cr.P.C or that she had stated to the police that it is the same car in which accused had committed rape upon her. She though admitted her signature on seizure memo Mark PX2 (also Ext. PW6/C), seizure memo Mark PX3 (also Ext. PW6/E), seizure memo Mark PX4 (also Ext. PW5/A), arrest memo Mark PX5 (also Ext. PW6/A), personal search memo Mark PX6 (also Ext. PW6/B) but stated that she does not know the contents of the said documents.
She negated the suggestion that a compromise had been reached between her and the accused that is why she was deposing in his favour in order to save him or she was threatened by the accused and for this reason she was deposing in his favour or that she had been won over by the accused and for this reason she was deposing in favour of the accused.
Inspite of incisive crossexamination by Ld.APP, the prosecution case could not be rescued. Moreover, the biological and serological evidence, as discussed in detail hereinbefore also could not come to the rescue of the prosecution case.
During her crossexamination by Ld. Counsel for the accused, 31 of 35 32 FIR No. 01/2009 PS Rohini South PW1 prosecutrix has deposed which is reproduced and reads as under: "It is correct on 31.12.2008 we, myself and accused Suresh Malik had met with of our own free volition in order to celebrate the New Year Eve and had roamed together with our own free consent and had gone to the Resort at Rai Haryana with her own free consent. It is correct that I was not a fit mental state and was under severe family pressure and under tension at the time of giving my complaint Ex. PW1/A and of my making the statement U/s 164 Cr.PC Ex. PW1/B and due to this reason whatever is being written in complaint Ex. PW1/A and of the statement U/s 164 Cr.PC Ex.PW1/B are not correct."
The said part of the crossexamination of PW1 prosecutrix has knocked out the bottom of the case of the prosecution.
21. PW5 Smt. Sushila Devi, mother of the prosecutrix in her examinationinchief has deposed that she does not know the month date and year. Her daughter the prosecutrix (name withheld) had gone for purchasing medicine for her and she does not know from where she had gone to purchase the medicine and on that day she had not returned to the house. She returned on the next day. She does not know what had happened with her. On inquiry by her from her she has stated that she had gone to the house of her Mausi. She has not stated anything to me. She does not want to say anything else.
32 of 35 33 FIR No. 01/2009 PS Rohini South Since PW5 Smt. Sushila Devi was resiling from her previous statement made to the police. She was crossexamined by Ld. APP for the state after obtaining the permission of the court.
During her crossexamination as conducted by Ld. APP, PW5 Smt. Sushila Devi has deposed, which is reproduced and reads as under: "Police has not recorded my statement. It is wrong to suggest that police had recorded my statement on 1.1.2009. It is wrong to suggest that I have stated to the police that after returning to the house the prosecutrix (name withheld) has told me that on the previous night accused Suresh Malik has taken my daughter the prosecutrix (name withheld) in the car from Jaipur Golden Hospital Rohini or that he has taken me an isolated place and committed rape upon her person or that I had gone to the police station alongwith my daughter the prosecutrix (name withheld) or that police has got her medically examined from BSA Hospital and recorded her statement thereafter. (Confronted from portion A to A of statement Ex. PW5/P1 where it is so recorded). It is wrong to suggest that my statement was recorded by the police on 21.04.2009. It is wrong to suggest that in the statement dated 21.4.2009 I had stated that I alongwith my daughter the prosecutrix (name withheld) had come to FSL Rohini, where our voice samples in the cassettes were taken and the original and one duplicate cassette was taken into possession. (Confronted with statement Ex.PW5/P2 where it is so recorded). It is correct that my Right Thumb Impression (RTI) is on the seizure memo mark PX4 dated 21.4.2009 at point A but my thumb impressions were obtained by the police on blank papers. The seizure memo is now marked as Ex. PW5/A. It is wrong to suggest that your thumb impressions were not 33 of 35 34 FIR No. 01/2009 PS Rohini South taken by the police on blank papers. Accused Suresh Malik visited my house 2/3 times in connection with the deal of a plot as I used to do some work of property dealing to earn something as I do not have my husband nor any son. I identify accused Suresh Malik who is present in the court. I do not know whether my daughter the prosecutrix (name withheld) had given any statement to the police or not. It is correct that I do not keep well and is on medical treatment for this reason I do not remember the exact version what happened with my daughter the prosecutrix (name withheld) in the police station. It is wrong to suggest that I have been won over by the accused and for this reason I am deposing in favour of the accused."
Inspite of incisive crossexamination by Ld. APP prosecution case could not be rescued. Moreover, PW5 Smt. Sushila Devi also did not corroborate the testimony of PW1 prosecutrix, her daughter.
22. On careful perusal and analysis of the entire evidence on record I find that prosecution has failed to prove its case beyond reasonable doubt against the accused Suresh Malik. There is nothing on the record to indicate that on 31.12.2008 at about 7.00 PM accused Suresh Malik abducted prosecutrix in his car with intention of secretly and wrongfully confining her or in order that she may be forced or seduced to illicit intercourse or that he forcefully raped her without her consent and against her will or that he also criminally intimidated her for not disclosing the incident to anyone otherwise 34 of 35 35 FIR No. 01/2009 PS Rohini South he would kill her and her family members.
23. In view of above discussion, I am of the considered opinion that as far as involvement of accused Suresh Malik in the commission of offences punishable u/s 365/366/376/506 IPC is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has not been able to bring guilt home to the accused Suresh Malik beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused. I, therefore, acquit accused Suresh Malik for offences punishable u/s 365/366/376/506 after giving him the benefit of doubt. Accused Suresh Malik is on bail. However u/s 437A Cr.P.C, the bailbond of the said accused shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such court issues notice in respect of any petition filed against this judgment.
Announced in the open Court today on 30th Day of May, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
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