Delhi District Court
State vs . Subhash on 13 July, 2015
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FIR No. 100/13
PS - Ashok Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 252/13
Unique ID No. : 02404R0168842013
State Vs. Subhash
S/o Sh. Raj Dev Sharstri
R/o N28B, 552 Chandra
Shekhar Azad Colony,
Wazirpur Industrial Area,
Ashok Vihar, Delhi - 110052.
Also at :
Village - Mahgawan,
PO - Sidhiqpur,
PS - Sarai Khwaza,
Tehsil - Sadar,
District - Jaunpur, U.P.
FIR No. : 100/13
Police Station : Ashok Vihar
Under Sections : 376(1)/375(a)/417/506 IPC
Date of committal to session Court : 27/06/2013
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FIR No. 100/13
PS - Ashok Vihar
Date on which judgment reserved : 10/07/2015
Date on which judgment announced : 13/07/2015
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 03/04/2013, prosecutrix (name withheld being a case u/s 376 IPC), D/o Sita Ram R/o Jhuggi No. N - 28B - 551 WPIA, CSA Colony, went to PS - Ashok Vihar and got recorded her statement to W/SI Rajesh Sharma which is to the effect that, she lives at the above address with her parents and does the work in Kothis. In the Jhuggi adjacent to her, one boy named Subhash lives. Subhash, about 34 years back had asked her to perform the marriage with him but she refused. Till about one year back, he kept on saying for performing the marriage, on which she said yes to it because Subhash was threatening her again and again that she will not let her marriage to be performed some other place and if she perform the marriage some other place then he will defame her in the Samaj. She, by insistence, made her parents agreeable 2 of 46 3 FIR No. 100/13 PS - Ashok Vihar to the marriage. She established physical relations with Subhash under the pretext of marriage. For about two years, he had been making physical relations with her on the pretext of marriage and during this, a few times, she had asked him to perform the marriage but he kept on asking her to wait for some time and every time he, on this pretext kept on deferring the marriage. On 17/03/2013, when she alongwith her father was going to her village for seeing a bridegroom for her marriage on which Subhash created a ruckus (hangama) and said that he will not allow her to go anywhere nor he will allow any other else to perform the marriage with her, on which she phoned at No. 100 and after some time, Police reached there. Before the Police, her family members and neighbours, Subhash told his willingness to perform the marriage with her. In the morning of 19/03/2013, her father asked about Subhash by telephoning Fufa of Subhash on which he told that Subhash has fled in the night itself. Subhash used to live in the Jhuggi of his Fufa Mangal. His Fufa Mangal had also told that Subhash was already married and is having one son aged 56 years. Thereafter, she lodged a written complaint by going to PS - Ashok Vihar against Subhash on which, Police, after going to his village, found that infact Subhash is married 3 of 46 4 FIR No. 100/13 PS - Ashok Vihar and is having a son aged 56 years. Subhash, despite being married and after threatening her to defame her, on the pretext of marriage had maintained physical relations with her for the last two years. Legal action be taken against him. Statement has been heard and is correct. On the basis of the statement, finding that offences u/s 375(a)/376(1)/417/506 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by W/SI Rajesh Sharma. Statements of the witnesses u/s 161 Cr.P.C. were recorded. Medical examination of the prosecutrix was got conducted. Statement u/s 164 Cr.P.C. of the prosecutrix was got recorded. Finding sufficient evidence against accused Subhash, he was arrested. Section 366 IPC was added in the case. No date of birth certificate of the prosecutrix could be obtained.
Upon completion of the necessary further investigation challan for the offences u/s 375(a)/376(1)/417/506/366 IPC was prepared against accused Subhash and was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the 4 of 46 5 FIR No. 100/13 PS - Ashok Vihar 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(2)(n) IPC as amended by Criminal Law (Amendment) Act, 2013 and u/s 420 IPC was made out against accused Subhash. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 15 witnesses. PW1 - HC Rajesh Kumar Sharma, PW2 - Dr. Sushil Pal, SR Gynae, BJRM Hospital, Delhi, PW3 - Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, PW4 - Prosecutrix (name withheld), PW5 - Dr. Rahul Singh, Officer Trainee of Indian Trade Services, DGFT Udyog Bhawan, Delhi, PW6 - Dr. Deepak, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, PW7 - HC Yogesh, PW8 - Sh. Bhupender Singh, Project Officer DLSA, Patiala House, New Delhi, PW9 - ASI Sumitra, PW10 - W/HC Sushma 5 of 46 6 FIR No. 100/13 PS - Ashok Vihar Chauhan, PW11 - SI Azad Singh, PW12 - Sita Ram, PW13 - Constable Pawan, PW14 - Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi and PW15 - W/Inspector Rajesh Sharma.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Rajesh Kumar Sharma is the Duty Officer, who deposed that on 03/04/2013, he was posted as Duty Officer in PS Ashok Vihar and was on duty from 4:00 p.m. to 12:00 midnight. On that day, at about 5:00 p.m. WSI Rajesh had handed over him a rukka and on the basis of which and on his instructions present FIR No. 100/13, u/s 375(a)/376 (1)/417/506 IPC was registered. After registration of FIR, he handed over the copy of the FIR and original rukka to WSI Rajesh. He has brought the original FIR register. The copy of the same is Ex. PW1/A bearing his signature at point 'A' (OSR). He made the endorsement on the rukka and the same is Ex. PW1/B bearing his signature at point 'A'.
PW2 - Dr. Sushil Pal, SR Gynae, BJRM Hospital, Delhi, 6 of 46 7 FIR No. 100/13 PS - Ashok Vihar who deposed that he has been deputed in this case by MS of the BJRM Hospital to depose before the Court. He has seen MLC No. 56967 of prosecutrix (name withheld) D/o Sita Ram, age 20 years female who was brought to the hospital on 04/04/2013 with alleged history of sexual assault. She was initially examined by JR on duty and after initial examination she was referred to SR Gynae whereupon she was examined by Dr. Kanika Sachdeva. The patient refused to get herself internally medically examined. He has also seen MLC No. 59955 of prosecutrix (name withheld) D/o Sita Ram, age 20 years female who was brought to the Hospital on 24/05/2013 with alleged history of sexual assault. She was initially examined by JR on duty and after initial examination she was referred to SR Gynae whereupon she was examined by Dr. Kanika Sachdeva. On examination, her general condition was fair. On per abdomen examination soft. On local examination hymen torn, no external injury seen. On per vaginal examination, uterus retroverted normal size cervix high up, fornes free, non tender, introitus vide easily admitting two fingers. UPT - Negative. At present Dr. Kanika Sachdeva is not working in their Hospital and her present whereabouts are not known. He is acquainted with her handwriting and signatures as he has 7 of 46 8 FIR No. 100/13 PS - Ashok Vihar seen her while writing and signing during the course of his duties. The examination of Dr. Kanika Sachdeva dated 04/04/2013 on the MLC is at point 'X' to 'X' and the same is Ex. PW2/A bearing her signature at point 'A'. The examination of Dr. Kanika Sachdeva dated 24/05/2013 on the MLC is at point 'X' to 'X' and the same is Ex. PW2/B bearing her signature at point 'A'.
PW3 - Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, who deposed that on 25/05/2013, one patient Subhash Chand, S/o Raj Dev Shashtri aged 26 years male was brought to Hospital for medical examination. Patient was examined by Dr. Bishwanath, Jr. Resident on duty under his supervision. On local examination, no fresh external injury was seen. At present Dr. Bishwanath is not working in their Hospital and his present whereabouts are not known as per records. He is acquainted with the handwriting and signatures of Dr. Bishwanath as he has seen him writing and signing during the course of his official duty. Dr. Bishwanath prepared the MLC. Same is Ex. PW3/A bearing signatures of Dr. Bishwanath at Point 'A'.
8 of 46 9 FIR No. 100/13 PS - Ashok Vihar PW4 - Prosecutrix is the victim who deposed some facts regarding the incident but did not support the prosecution and was also crossexamined by the Learned Addl. PP for State.
PW5 - Dr. Rahul Singh, Officer Trainee of Indian Trade Services, DGFT Udyog Bhawan, Delhi, who deposed that on 24/05/2013, he was posted as CMO in BJRM Hospital, Delhi. On that day one patient/prosecutrix (name withheld) D/o Sita Ram, Age 20 years female was brought to Hospital by the Police for the medical examination with the alleged H/O sexual assault. Patient was initially examined by Dr. Shashi Bhushan, J.R. under his supervision. At present, Dr. Shashi Bhushan has left the services of the Hospital. On local examination, no fresh external injury seen and thereafter the patient was referred to S.R. Gynae. The MLC was prepared by Dr. Shashi Bhushan under his supervision and the same is Ex. PW5/A, bearing signature of Dr. Shashi Bhushan at point 'A' and his signature at point 'B'. On same day one more patient Subhash Chaudhary S/o Raj Dev Shastri, Age 26 years male was brought to Hospital by the Police for the medical examination 9 of 46 10 FIR No. 100/13 PS - Ashok Vihar with the alleged H/O sexual assault (accused). Patient was initially examined by Dr. Shashi Bhushan, J.R. under his supervision. At present, Dr. Shashi Bhushan has left the services of the Hospital. On local examination, no fresh external injury seen and thereafter the patient was referred to S.R. Surgery. The MLC was prepared by Dr. Shashi Bhushan under his supervision and the same is Ex. PW5/B, bearing signature of Dr. Shashi Bhushan at point 'A' and his signature at point 'B'.
PW6 - Dr. Deepak, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, who deposed that he has been deputed in this case by the MS of the Hospital to depose in this case on behalf of Dr. Manoranjan and Dr. Kamakshi Narula, CMO who both have since left the services of the Hospital and their present whereabouts are not known as per record. He has seen MLC No. 56967 of prosecutrix (name withheld) D/o Sita Ram, Age 20 years female who was brought to Hospital for medical examination with the alleged H/O sexual assault, on 04/04/2013. The patient was initially examined by Dr. Manoranjan J.R under the supervision of Dr. Kamakshi Narula, CMO on duty. As per MLC, on local examination, no evidence of any fresh external injury 10 of 46 11 FIR No. 100/13 PS - Ashok Vihar seen and thereafter the patient was referred to S.R. Gynae for further examination. He is acquainted with the handwriting and signatures of Dr. Manoranjan and Dr. Kamakshi Narula as he has seen them while writing and signing during the course of his official duties. The MLC of prosecutrix (name withheld) was prepared by Dr. Manoranjan under the supervision of Dr. Kamakshi Narula and same is Ex. PW6/A, bearing the signature of Dr. Manoranjan at point 'A' and that of Dr. Kamakshi Narula at point 'B'.
PW7 - HC Yogesh, who deposed that a complaint was received in the Police Station Ashok Vihar from one prosecutrix (name withheld) that one Subhash was troubling her on promise to marry her. The IO of this case SI Rajesh Sharma sent him to inquire whether Subhash was already married or not. For inquiry he went to Village Faridabad, PP Purvanchal, PS Sarai Khawaja, District Jonpur (U.P.) and firstly he had directly gone to Police Chowki there. At village Faridabad at the house of accused Subhash his mother Chanarema Devi met who stated that her son Subhash was already married and was also having a son. In the inquiry his neighbour Pyare Lal and Gram Pradhan 11 of 46 12 FIR No. 100/13 PS - Ashok Vihar Raj Mani also confirmed the abovesaid facts and their statements were also recorded by him. He returned to the Police Station Ashok Vihar and apprised the abovesaid facts to the IO. IO recorded his statement.
PW8 - Sh. Bhupender Singh, Project Officer DLSA, Patiala House, New Delhi, who deposed that on 05/04/2013, he was posted as MM in Rohini Court. On that day, an application for recording statement u/s 164 Cr.P.C. of victim/prosecutrix (name withheld) D/o Sita Ram, Age 20 Years, R/o Jhuggi No. 28B 551 CSA Colony, WPIA, Ashok Vihar, Delhi was marked to him. IO SI Rajesh produced victim/prosecutrix (name withheld) and identified her and he recorded her statement in this regard. IO was asked to leave the Chamber. He put certain preliminary questions to the victim and after satisfying himself that she is making the statement voluntarily he proceeded to record her statement. His proceedings in this regard is Ex. PW8/A bearing his signature at Point 'A'. Statement of victim/prosecutrix (name withheld) recorded by him is Ex. PW8/B bearing his signature at Point 'A' and of prosecutrix (name withheld) at Point 'B'. After recording the statement, he issued the certificate regarding its correctness and the same is Ex. PW8/C bearing 12 of 46 13 FIR No. 100/13 PS - Ashok Vihar his signature at Point 'A'. Ahlmad was directed to give the copy of the same on proper receipt and directed to send the proceedings to the concerned MM in sealed cover vide Ex. PW8/D bearing his signature at Point 'A'.
PW9 - ASI Sumitra, who deposed that on 24/05/13, she was posted as HC in PS Ashok Vihar. On that day, on the instructions of the IO, she took victim/prosecutrix (name withheld) in BJRM Hospital where she was medically examined and after medical examination Doctor handed over to her (PW9) her (prosecutrix's) MLC. Victim/prosecutrix (name withheld) was sent to Nari Niketan at Nirmal Chhaya, Hari Nagar, Delhi. She handed over the MLC to the IO.
PW10 - W/HC Sushma Chauhan, who deposed that on 04/04/2013, she was posted at PS Ashok Vihar. On that day, she had taken prosecutrix (name withheld) for her medical examination at BJRM Hospital, Jahangir Puri. At the Hospital she refused for her internal medical examination to the Doctor and the endorsement to this effect was made by the Doctor on the MLC which was handed over to her. She 13 of 46 14 FIR No. 100/13 PS - Ashok Vihar alongwith the prosecutrix returned to the PS and handed over the MLC to the IO.
PW11 - SI Azad Singh, who deposed that on 30/04/2013, he was posted at PS Ashok Vihar as SI. On that day, the investigation of the present case was marked to him by the orders of Senior officers and thereafter, he alongwith HC Yogesh went to District Jaunpur, UP and reached at Police Post Purvanchal Vishvidhyalya, PS - Khwaja. From the said Police Post, he joined two local Police officials in the investigation of the present case and thereafter, they all reached at Village - Faridabad, District Jaunpur in the search of accused Subhash at his house but he was not found present there. Thereafter, they returned back to the PS Ashok Vihar on 03/05/2013 and he handed over the case file to W/SI Rajesh.
PW12 - Sita Ram is the father of the prosecutrix, who deposed that prosecutrix (name withheld) is his daughter. At present she is about 21 years old. Prior to about one year from today (13/08/2014) some quarrel took place between him and accused Subhash (Kuch 14 of 46 15 FIR No. 100/13 PS - Ashok Vihar Jhagra Huwa Tha). He correctly identified accused Subhash present in the Court. At that time accused Subhash used to reside in the same locality i.e. WPIA in his neighbourhood. His daughter/prosecutrix (name withheld) and accused Subhash wanted to marry, however, accused Subhash refused to marry his daughter/prosecutrix (name withheld). When accused Subhash refused to marry his daughter/prosecutrix (name withheld) so she gave statement to Police and case was registered. After about 2/3 months of the registration of FIR accused agreed to marry with his daughter and the marriage of accused and his daughter/prosecutrix (name withheld) was performed. Now his daughter/prosecutrix (name withheld) is residing with accused in his house. He had stated to Police the same facts which he has deposed here in the Court i.e the case was lodged as accused refused to marry his daughter. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW13 - Constable Pawan, who deposed that on 24/05/2013, he was posted as Constable at PS Ashok Vihar. On that day, he joined the investigation of this case with IO SI Rajesh Sharma. On the direction 15 of 46 16 FIR No. 100/13 PS - Ashok Vihar of IO SI Rajesh Sharma he took the accused Subhash to BJRM hospital for getting him medically examined. Thereafter, he alongwith accused returned to PS Ashok Vihar. IO arrested accused Subhash vide arrest memo and personal search memo Ex. PW13/A & Ex. PW13/B respectively bearing his signature at Points 'A'. Thereafter, accused was sent to JC. He correctly identified accused Subhash present in the Court.
PW14 - Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi, who deposed that on 24/05/2013, he was posted as Casualty Incharge, BJRM Hospital. On that day, one patient Subhash Chaudhary S/o Sh. Raj Dev Shastri, Age 26 Years, Male was brought to Hospital for medical examination by Police Constable Pawan with alleged history of being accused of the sexual assault. His preliminary medical examination was conducted by Dr. Rahul Singh, then CMO vide MLC already Ex. PW5/B and thereafter, the patient was referred by him to SR (Surgery). Dr. Shabir Ahmed Dar, SR (Surgery) examined the patient and gave his opinion that, 'there is nothing to suggest that he cannot perform sexual activity'. The medical examination conducted by Dr. Shabir Ahmed Dar, SR (Surgery) is encircled in red portion and is Ex.
16 of 46 17 FIR No. 100/13 PS - Ashok Vihar PW14/A bearing the signature of Dr. Shabir Ahmed Dar at Point 'X'. He identify the handwriting and signature of Dr. Shabir Ahmed Dar, SR (Surgery) as he has seen him writing and signing during the official course of duty.
PW15 W/Inspector Rajesh Sharma is the Investigating Officer (IO) of the case, who deposed that on 03/04/2013, she was posted at PS Ashok Vihar as SubInspector. On that day, at about 03:30 p.m. prosecutrix (name withheld) came to the Police Station and gave her statement which was recorded by her, which is already Mark PW4/PX bearing her signatures at point 'A' and same was attested by her at point 'B'. As per her statement the offences u/s 375(a), 376(1)/417/506 IPC were attracted. She prepared the Rukka Ex. PW15/A and herself got the case registered from the Duty Officer. She got the prosecutrix medically examined through W/HC Sushma. Thereafter, she moved an application for recording statement u/s 164 Cr.P.C. of prosecutrix (name withheld) and the said application is Ex. PW15/B. She recorded the statements u/s 161 Cr.P.C of witnesses. Accused Subhash was arrested vide arrest memo Ex. PW13/A and his personal search was conducted vide memo 17 of 46 18 FIR No. 100/13 PS - Ashok Vihar Ex. PW13/B both bearing her signatures at point 'B'. The disclosure statement of the accused Subhash was recorded which is Ex. PW15/C same bearing her signatures at point 'A'. Accused Subhash was got medically examined through Constable Pawan Kumar. On next day 25/05/2013, accused Subhash was produced in the concerned Court. Bail application of the accused was dismissed by the Court and was sent to JC. Prosecutrix was sent to Nari Niketan and she remained there for three days. The parents of the prosecutrix could not produce her Birth Certificate and she was sent for bone age determination. She was opined to be 25 years of age. During investigation prosecutrix got married to accused Subhash and the documents regarding her marriage were received by her by post. Complainant/prosecutrix (name withheld) personally produced two photographs Mark 'A' and 'B' of her marriage with accused Subhash and papers regarding dissolving marriage of accused Subhash with his first wife Smt. Tara which is Mark 'C'. These documents were seized by her vide seizure memo Ex. PW15/D bearing her signature at point 'A'. During investigation, she found that the prosecutrix had got case registered against the accused u/s 354/506/341/34 IPC, vide FIR No. 323/07 and the said FIR is Ex.
18 of 46 19 FIR No. 100/13 PS - Ashok Vihar PW15/E. Kalandara u/s 107/151 Cr.P.C. registered vide DD No. 30PP, WPIA, Industrial Area, PS Ashok Vihar regarding quarrel between prosecutrix (name withheld) and Subhash Chand at public place is Ex. PW15/F. Thereafter, she prepared the chargesheet against the accused and filed it in the Court. Accused Subhash is present in the Court (correctly identified).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Subhash was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Subhash did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that prosecutrix has not supported the prosecution and the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused on the charge levelled against him.
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8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Ms. Kiran Bala, Learned Addl. PP for the State and Sh. L. K. Passi, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376(2)(n) IPC as amended by Criminal Law (Amendment) Act, 2013 and u/s 420 IPC against the accused Subhash is that for the last about three to four years prior to 03/04/2013, he continuously committed rape upon prosecutrix (name withheld) D/o Sita Ram, aged around 20 years at the house of his Fufaji within the jurisdiction of PS - Ashok Vihar on the false pretext of marrying with her and that during the abovesaid period and place he cheated complainant/prosecutrix (name withheld) D/o Sita Ram by 20 of 46 21 FIR No. 100/13 PS - Ashok Vihar dishonestly inducing her to establish physical relation with her on the false pretext of marriage with her as he was already married with someone and thereupon established the physical relation with her.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW4 - Prosecutrix in her statement recorded in the Court on 12/02/2014 while giving her particulars has stated her age as 24 years.
Since PW4 - prosecutrix has stated her age as 24 years on 12/02/2014 at the time of recording her evidence/statement in the Court and the date of alleged incident is about three to four years prior to 03/04/2013, on simple arithmetical calculation, the age of the prosecutrix comes to 19 years, 01 month and 21 days as on the date of the alleged incident on 03/04/2009, about three to four years prior to 03/04/2013.
21 of 46 22 FIR No. 100/13 PS - Ashok Vihar Moreover, the said factum of age of PW4 - prosecutrix has also not been disputed by accused Subhash. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW4 - prosecutrix was aged 19 years, 01 month and 21 days as on the date of the alleged incident on 03/04/2009 about three to four years prior to 03/04/2013.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW2 - Dr. Sushil Pal, SR Gynae, BJRM Hospital, Delhi has deposed that he has been deputed in this case by MS of the BJRM Hospital to depose before the Court. He has seen MLC No. 56967 of prosecutrix (name withheld) D/o Sita Ram, age 20 years female who was brought to the hospital on 04/04/2013 with alleged history of sexual assault. She was initially examined by JR on duty and after initial examination she was referred to SR Gynae whereupon she was examined by Dr. Kanika Sachdeva. The patient refused to get herself internally 22 of 46 23 FIR No. 100/13 PS - Ashok Vihar medically examined. He has also seen MLC No. 59955 of prosecutrix (name withheld) D/o Sita Ram, age 20 years female who was brought to the Hospital on 24/05/2013 with alleged history of sexual assault. She was initially examined by JR on duty and after initial examination she was referred to SR Gynae whereupon she was examined by Dr. Kanika Sachdeva. On examination, her general condition was fair. On per abdomen examination soft. On local examination hymen torn, no external injury seen. On per vaginal examination, uterus retroverted normal size cervix high up, fornes free, non tender, introitus vide easily admitting two fingers. UPT - Negative. At present Dr. Kanika Sachdeva is not working in their Hospital and her present whereabouts are not known. He is acquainted with her handwriting and signatures as he has seen her while writing and signing during the course of his duties. The examination of Dr. Kanika Sachdeva dated 04/04/2013 on the MLC is at point 'X' to 'X' and the same is Ex. PW2/A bearing her signature at point 'A'. The examination of Dr. Kanika Sachdeva dated 24/05/2013 on the MLC is at point 'X' to 'X' and the same is Ex. PW2/B bearing her signature at point 'A'.
There is nothing in the crossexamination of PW2 - Dr. 23 of 46 24 FIR No. 100/13 PS - Ashok Vihar Sushil Pal so as to impeach his creditworthiness.
PW5 - Dr. Rahul Singh, Officer Trainee of Indian Trade Services, DGFT Udyog Bhawan, Delhi has deposed that on 24/05/2013, he was posted as CMO in BJRM Hospital, Delhi. On that day one patient/prosecutrix (name withheld) D/o Sita Ram, Age 20 years female was brought to Hospital by the Police for the medical examination with the alleged H/O sexual assault. Patient was initially examined by Dr. Shashi Bhushan, J.R. under his supervision. At present, Dr. Shashi Bhushan has left the services of the Hospital. On local examination, no fresh external injury seen and thereafter the patient was referred to S.R. Gynae. The MLC was prepared by Dr. Shashi Bhushan under his supervision and the same is Ex. PW5/A, bearing signature of Dr. Shashi Bhushan at point 'A' and his signature at point 'B'.
PW6 - Dr. Deepak, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, who deposed that he has been deputed in this case by the MS of the Hospital to depose in this case on behalf of Dr. Manoranjan and Dr. Kamakshi Narula, CMO who both have since left the services of the Hospital and their present whereabouts are not known 24 of 46 25 FIR No. 100/13 PS - Ashok Vihar as per record. He has seen MLC No. 56967 of prosecutrix (name withheld) D/o Sita Ram, Age 20 years female who was brought to Hospital for medical examination with the alleged H/O sexual assault, on 04/04/2013. The patient was initially examined by Dr. Manoranjan J.R under the supervision of Dr. Kamakshi Narula, CMO on duty. As per MLC, on local examination, no evidence of any fresh external injury seen and thereafter the patient was referred to S.R. Gynae for further examination. He is acquainted with the handwriting and signatures of Dr. Manoranjan and Dr. Kamakshi Narula as he has seen them while writing and signing during the course of his official duties. The MLC of prosecutrix (name withheld) was prepared by Dr. Manoranjan under the supervision of Dr. Kamakshi Narula and same is Ex. PW6/A, bearing the signature of Dr. Manoranjan at point 'A' and that of Dr. Kamakshi Narula at point 'B'.
Despite grant of opportunity, PW5 - Dr. Rahul Singh and PW6 - Dr. Deepak were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination dated 04/04/2013, vide MLC Ex. PW6/A and dated 25 of 46 26 FIR No. 100/13 PS - Ashok Vihar 24/05/2013, vide MLC Ex. PW5/A and the gynaecological examination dated 04/04/2013 from point 'X' to 'X' Ex. PW2/A on the MLC Ex. PW6/A, and dated 24/05/2013 from point 'X' to 'X' Ex. PW2/B on the MLC Ex. PW5/A of PW4 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED SUBHASH
14. PW3 - Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi has deposed that on 25/05/2013, one patient Subhash Chand, S/o Raj Dev Shashtri aged 26 years male was brought to Hospital for medical examination. Patient was examined by Dr. Bishwanath, Jr. Resident on duty under his supervision. On local examination, no fresh external injury was seen. At present Dr. Bishwanath is not working in their Hospital and his present whereabouts are not known as per records. He is acquainted with the handwriting and signatures of Dr. Bishwanath as he has seen him writing and signing during the course of his official duty. Dr. Bishwanath prepared the MLC. Same is Ex. PW3/A bearing signatures of Dr. Bishwanath at Point 'A'.
26 of 46 27 FIR No. 100/13 PS - Ashok Vihar PW5 - Dr. Rahul Singh, Officer Trainee of Indian Trade Services, DGFT Udyog Bhawan, Delhi has deposed that on same day (24/05/2013), one more patient Subhash Chaudhary S/o Raj Dev Shastri, Age 26 years male was brought to Hospital by the Police for the medical examination with the alleged H/O sexual assault (accused). Patient was initially examined by Dr. Shashi Bhushan, J.R. under his supervision. At present, Dr. Shashi Bhushan has left the services of the Hospital. On local examination, no fresh external injury seen and thereafter the patient was referred to S.R. Surgery. The MLC was prepared by Dr. Shashi Bhushan under his supervision and the same is Ex. PW5/B, bearing signature of Dr. Shashi Bhushan at point 'A' and his signature at point 'B'.
PW14 - Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi has deposed that on 24/05/2013, he was posted as Casualty Incharge, BJRM Hospital. On that day, one patient Subhash Chaudhary S/o Sh. Raj Dev Shastri, Age 26 Years, Male was brought to Hospital for medical examination by Police Constable Pawan with alleged history of being accused of the sexual assault. His preliminary medical examination was conducted by Dr. Rahul Singh, then CMO vide MLC already Ex. PW5/B 27 of 46 28 FIR No. 100/13 PS - Ashok Vihar and thereafter, the patient was referred by him to SR (Surgery). Dr. Shabir Ahmed Dar, SR (Surgery) examined the patient and gave his opinion that, 'there is nothing to suggest that he cannot perform sexual activity'. The medical examination conducted by Dr. Shabir Ahmed Dar, SR (Surgery) is encircled in red portion and is Ex. PW14/A bearing the signature of Dr. Shabir Ahmed Dar at Point 'X'. He identify the handwriting and signature of Dr. Shabir Ahmed Dar, SR (Surgery) as he has seen him writing and signing during the official course of duty.
Despite grant of opportunity, PW3 - Dr. V. K. Jha, PW5 - Dr. Rahul Singh and PW14 - Dr. R. S. Mishra were not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Subhash was capable of performing sexual activity.
15. Now let the testimony of PW4 Prosecutrix be perused and analysed.
28 of 46 29 FIR No. 100/13 PS - Ashok Vihar PW4 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I do the work of cleaning utensils and of sweeping in the kothis. I know accused Subhash, who was living in my neighbourhood. Due to his living in my neighbourhood, my talking started with him (Wo Bagal Me Rahta Tha Ishliye Meri Batchit Suru Ho Gai Uske Sath). He used to say to me to marry with him (Wo Shadi Karne Ke Liye Kahta Tha). He was saying so, to marry with him since for about last one year. I was ready to marry with him but my parents were not ready for my such marriage with him. Later on, I had persuaded my parents for my such marriage with him. But my parents did not agree to such marriage. Thereafter, accused Subhash had gone to his village, there he made agree his parents for the marriage with me and then he (Subhash) telephoned me from there. Thereafter, Subhash came to Delhi, met me and told me "if your parents are not agree to this marriage, let you go with him to his village and there they will perform the marriage and perhaps after marriage they (your parents) will become agree (Maan Jayege) with this marriage". On which I said I am agree to it. Thereafter, I went with Subhash to his village. In the village on 06/05/2013 we performed the marriage in Maihar Devi Mandir. On the next day on 07/05/2013 we performed our Court marriage there in the village. I remained for about 13 days at my inlaws house (Sasural Me). Thereafter, I telephoned my father in Delhi that I have performed marriage with Subhash. My father had lodged the report with the Police. Thereafter, there at my inlaws house we received a phone call of the Police asking us to come to Delhi and also assuring us that nothing will happen except for the presence (Kuch Nahi Hoga Hazari Ke Alawa). Thereafter, on the said asking of 29 of 46 30 FIR No. 100/13 PS - Ashok Vihar the Police, myself and Subhash came to Delhi and appeared in the Court. I was sent to the Nari Niketan and Subhash was sent to the custody. After three days I was released from the Nari Niketan and I went to my inlaws house in the village. Thereafter, I had appeared in the Court but my no statement was recorded. Accused Subhash is running in custody since then. My husband Subhash is innocent and he may kindly be released.
At this stage the wooden partition is removed. The witness pointed towards the accused Subhash and identified him correctly.
At this stage the wooden partition is restored to its original position."
From the aforesaid narration of PW4 - prosecutrix, it is clear that she does the work of cleaning utensils and of sweeping in the kothis. She knows accused Subhash, who was living in her neighbourhood. Due to his living in her neighbourhood, her talking started with him (Wo Bagal Me Rahta Tha Ishliye Meri Batchit Suru Ho Gai Uske Sath). He used to say to her to marry with him (Wo Shadi Karne Ke Liye Kahta Tha). He was saying so, to marry with him since for about last one year. She was ready to marry with him but her parents were not ready for her such marriage with him. Later on, she had 30 of 46 31 FIR No. 100/13 PS - Ashok Vihar persuaded her parents for her such marriage with him. But her parents did not agree to such marriage. Thereafter, accused Subhash had gone to his village, there he made agree his parents for the marriage with her and then he (Subhash) telephoned her from there. Thereafter, Subhash came to Delhi, met her and told her "if your parents are not agree to this marriage, let you go with him to his village and there they will perform the marriage and perhaps after marriage they (your parents) will become agree (Maan Jayege) with this marriage". On which she said she is agree to it. Thereafter, she went with Subhash to his village. In the village on 06/05/2013 they performed the marriage in Maihar Devi Mandir. On the next day on 07/05/2013 they performed their Court marriage there in the village. She remained for about 13 days at her in laws house (Sasural Me). Thereafter, she telephoned her father in Delhi that she has performed marriage with Subhash. Her father had lodged the report with the Police. Thereafter, there at her inlaws house they received a phone call of the Police asking them to come to Delhi and also assuring them that nothing will happen except for the presence (Kuch Nahi Hoga Hazari Ke Alawa). Thereafter, on the said asking of the Police, she and Subhash came to Delhi and appeared in the Court. She 31 of 46 32 FIR No. 100/13 PS - Ashok Vihar was sent to the Nari Niketan and Subhash was sent to the custody. After three days she was released from the Nari Niketan and she went to her inlaws house in the village. Thereafter, she had appeared in the Court but her no statement was recorded. Accused Subhash is running in custody since then. Her husband Subhash is innocent and he may kindly be released. She correctly identified accused Subhash present in the Court.
PW4 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "I am not educated but I can sign. I was knowing accused Subhash for the last 5/6 years. He was a driver. He used to live with the family of his Bua, in our neighbourhood. He proposed to me for marriage for the first time after my knowing him for about 2/3 years. I had not responded to his firstly made marriage proposal. I do not remember as to when he proposed to me for marriage for the second time. I do not remember as to when he further proposed to me for marriage. He had proposed to me for marriage for 2/3 times. Vol. I had not given my attention to Count the number of occasions when he proposed to me for marriage.
Q. When did you agree to the proposal of marriage of accused Subhash, when he proposed to you for marriage for 2/3 times regarding 32 of 46 33 FIR No. 100/13 PS - Ashok Vihar which you deposed hereinabove.
Ans. After passing of much time (Kaphi Time Bitne Ke Bad) I agreed to marry with him.
I established physical relation for the first time with Subhash after marriage with him. I do not remember for how many times, I had gone to the Police Station in connection with the present case. It is correct that I had gone to the Police Station in connection with the present case. I had gone once with my father to the Police Station in connection with the present case. I do not recollect as to whether I had gone to the Police Station with my father on 03/04/2013. It is wrong to suggest that I had gone to the Police Station with my father on 0304/2013 and intentionally I am deposing that I do not recollect about the said fact. Q. Please see the statement dtd. 03/04/2013, is it correct that it is your statement which you made to the police and bear your signature. (?) Ans. I had given some statement to the police and thereafter Police told that they will record the statement themselves. I am illiterate, I do not know as to what they had written but my signature is at point 'A'. (for the purpose of the reference the said statement is Mark PW4/PX).
The statement Mark PW4/PX has been read over to the witness to which she denies of having made such statement to the Police. It is wrong to suggest that I have made the statement Mark PW4/PX to the Police or that in order to save the accused Subhash I am denying of having made such statement to the Police."
During her further crossexamination by the Learned Addl. PP for the State recorded on 24/02/2012, PW4 - prosecutrix 33 of 46 34 FIR No. 100/13 PS - Ashok Vihar has deposed that : "I do not recollect as to whether 34 years prior to the registration of the present case, accused Subhash had proposed me for marriage but I had declined. It is correct that for one year thereafter accused Subhash kept on saying to me for performing the marriage (Uske Baad Ek Saal Tak Subhash Mujhe Shadi Karne Ke Liye Kahta Raha). It is also correct that thereafter I said 'yes' to the marriage (Uske Baad Maine Haan Kar Di).
Q. Is it correct that you had said 'yes' to the marriage to Subhash as he was continuously threatening to you that "he will not let you to do the marriage at any other place (Kahin Doosari Jagah), if you did the marriage at any other place (Kahin Doosari Jagah), then he will defame you in the society (Samaj Mein)" and you have stated so to the Police in your statement Mark PW4/PX?
Ans. It is incorrect.
Q. Is it correct that under the deception (Jhanse Mein) played by accused Subhash, you established physical relations with him and you have stated so to the Police in your statement Mark PW4/PX? Ans. It is incorrect.
Q. Is it correct that accused Subhash by keeping you under the deception of the marriage kept on making physical relation with you for two years and you have stated so to the Police in your statement Mark PW4/PX?
Ans. It is incorrect. (Court observation : The witness nodded her head in the negative while answering the question) Q. Is it correct that during the said period you asked him (accused Subhash) to perform the marriage but he kept on saying to wait for some time (Kuch Samay Rukne Ke Liye Kahata Raha) and kept on deferring 34 of 46 35 FIR No. 100/13 PS - Ashok Vihar the marriage on the same excuse and you have stated so to the Police in your statement Mark PW4/PX ?
Ans. It is correct. Vol. his Mummi, Papa were not agreeable to this marriage (Uske Mummi, Papa Iss Shadi Ke Liye Raji Nahin Thhe).
I do not recollect as to whether my any statement was recorded u/s 164 Cr.P.C. I have been shown the statement u/s 164 Cr.P.C. which is already Ex. PW8/B, it bears my signature at point 'B'. It is wrong to suggest that I am intentionally deposing falsely that I do not recollect as to whether my any statement was recorded u/s 164 Cr.P.C.
It is correct that I had lodged one another case against accused Subhash bearing FIR No. 323/07, u/s 354/506/341/34 IPC, PS Ashok Vihar. I do not recollect as to whether I had deposed as a witness in the court on 09/07/2010 in the said case FIR No. 323/07 u/s 354/506/341/34 IPC, PS Ashok Vihar. It is wrong to suggest that I am intentionally deposing falsely that I do not recollect as to whether I had deposed as a witness in the Court on 09/07/2010 in the said case FIR No. 323/07 u/s 354/506/341/34 IPC, PS Ashok Vihar. In the case FIR No. 323/07 u/s 354/506/341/34 IPC, PS Ashok Vihar besides accused Subhash, Sonu was also the accused.
I do not recollect as to whether on 23/03/07, accused Subhash had been booked in a kalandara u/s 107/151 Cr.P.C. vide DD No. 30PP WPIA, PS Ashok Vihar and in the said kalandara my statement was also recorded by the Police. I have been shown the photocopy the statement recorded in above said kalandara and it bears my signature at point 'A'. The copy of the same is Mark PW4/PY. It is wrong to suggest that I am intentionally deposing falsely that I do not recollect as to whether on 23/03/07, accused Subhash had been booked in a kalandara u/s 107/151 Cr.P.C. vide DD No. 30PP WPIA, PS Ashok 35 of 46 36 FIR No. 100/13 PS - Ashok Vihar Vihar and in the said kalandara my statement was also recorded by the Police.
It is incorrect that I stated to the Police that on 17/03/13 I alongwith my father were going to the village to see a boy for my marriage, then accused Subhash had created a ruckus (hungama) and he said that he will not let me go anywhere nor he will allow me to do marriage with anyone else. It is incorrect to suggest that on 17/03/2013 I made a call to police on No. 100. It is incorrect to suggest that on 17/03/2013 when Police had come, in front of Police, in front of my family members and neighbours accused Subhash had told to marry me. Vol. I was not present at that time. The name of phupha of accused Subhash is Mangal Singh. I am not aware that in the morning of 19/03/2013 my father had telephoned phupha of accused Subhash who had told that Subhash had fled in the night itself. It is correct that accused Subhash was living in the house of his phupha. I was not knowing previously that accused Subhash was already married or that he was having one son aged five/six years. I came to know three years prior from today that accused Subhash is married and is having a son of five/six years of age. I came to know about Subhash already being married and having a son of five/six years of age from his phupha Mangal Singh. Accused Subhash had not told himself to me that he is already married and is having a son. Vol. since the wife of Subhash had already been married off. The parents of accused Subhash had told me about the fact that the wife of Subhash had already been married off and this was told after my marriage with accused Subhash. I do not know as to when the wife of accused Subhash had been married off. I did not ask accused Subhash as to when his marriage had taken place, or as to when their divorce had taken place or as to when his wife had again married. Vol. nor accused Subhash ever told me about this. It is incorrect to 36 of 46 37 FIR No. 100/13 PS - Ashok Vihar suggest that I am intentionally deposing falsely that the wife of Subhash had already been married off.
It is correct that on 04/04/2013 when I was taken to the Hospital by the Police, for my medical examination I had refused for my internal examination. Vol. When nothing was done with me for this reason I had refused for medical examination ('Jab Hamerai Sath Kuch Kiya Nahi Tha Tu Maine Mana Kar Diya'). It is correct that on 24/05/2013 when I was again taken to the hospital by the Police I had consented for my medical examination and my medical examination was done.
I have been shown my testimony made on 09/07/2010 in the case FIR No. 323/07, PS Ashok Vihar before the concerned Ld. MM Court. It bears my signature at Point 'A'. The photocopy of the same is Ex. PW4/A (OSR).
It is wrong to suggest that I have deposed falsely my age as 24 years in my particulars on 12/02/2014 at the time of recording of my examination. It is wrong to suggest that since accused Subhash has married with me after the registration of the present case for this reason in order to save him I am deposing falsely. It is wrong to suggest that after the registration of the present case I have been won over by accused Subhash who had married me in order to save him. It is wrong to suggest that I am deposing falsely."
During her crossexamination conducted by the Learned Counsel for the accused, PW4 prosecutrix has deposed that : "It is correct that after my marriage with accused Subhash, I 37 of 46 38 FIR No. 100/13 PS - Ashok Vihar was living in inlaw's house at Jaun Pur, U.P. I am facing no problem at my inlaw's house. It is correct that the present case was registered with the Police by my father and not me.
Q. Is it correct that accused Subhash had obtained divorce around three years prior to the registration of this case fro his previous wife? Ans. It is correct."
On analysing the entire testimony of PW4 - prosecutrix it is clearly indicated that she has specifically deposed that, "In the village on 06/05/2013 we performed the marriage in Maihar Devi Mandir. On the next day on 07/05/2013 we performed our Court marriage there in the village. I remained for about 13 days at my inlaws house (Sasural Me). Thereafter, I telephoned my father in Delhi that I have performed marriage with Subhash. My father had lodged the report with the Police. Thereafter, there at my inlaws house we received a phone call of the Police asking us to come to Delhi and also assuring us that nothing will happen except for the presence (Kuch Nahi Hoga Hazari Ke Alawa). Thereafter, on the said asking of the Police, myself and Subhash came to Delhi and appeared in the Court. I was sent to the Nari Niketan and Subhash was sent to the custody. After three days I was released from the Nari Niketan and I went to my inlaws house in the village." During 38 of 46 39 FIR No. 100/13 PS - Ashok Vihar her crossexamination the Learned Counsel for accused she has specifically deposed that, "it is correct that after my marriage with accused Subhash, I was living in inlaw's house at Jaun Pur, U.P. I am facing no problem at my inlaw's house. It is correct that the present case was registered with the Police by my father and not me." During her crossexamination by Learned Addl. PP for the State she has also specifically deposed that, "I established physical relation for the first time with Subhash after marriage with him". She negated the suggestions put to her by the Learned Addl. PP for the State that she had gone to the Police Station with her father on 03/04/2013 and intentionally she is deposing that she does not recollect about the said fact or that she has made the statement Mark PW4/PX to the Police or that in order to save the accused Subhash she is denying of having made such statement to the Police or that she is intentionally deposing falsely that she does not recollect as to whether her any statement was recorded u/s 164 Cr.P.C. or that she is intentionally deposing falsely that she does not recollect as to whether she had deposed as a witness in the Court on 09/07/2010 in the said case FIR No. 323/07 u/s 354/506/341/34 IPC, PS Ashok Vihar or that she is intentionally deposing falsely that she does not recollect as to 39 of 46 40 FIR No. 100/13 PS - Ashok Vihar whether on 23/03/07, accused Subhash had been booked in a kalandara u/s 107/151 Cr.P.C. vide DD No. 30PP WPIA, PS Ashok Vihar and in the said kalandara her statement was also recorded by the Police or that she stated to the Police that on 17/03/13 she alongwith her father were going to the village to see a boy for her marriage, then accused Subhash had created a ruckus (hungama) and he said that he will not let her go anywhere nor he will allow her to do marriage with anyone else or that on 17/03/2013 she made a call to Police on No. 100 or that on 17/03/2013 when Police had come, in front of Police, in front of her family members and neighbours accused Subhash had told to marry her Vol. She was not present at that time or that she is intentionally deposing falsely that the wife of Subhash had already been married off or that she has deposed falsely her age as 24 years in her particulars on 12/02/2014 at the time of recording of her examination or that since accused Subhash has married with her after the registration of the present case for this reason in order to save him she is deposing falsely or that after the registration of the present case she has been won over by accused Subhash who had married her in order to save him or that she is deposing falsely.
40 of 46 41 FIR No. 100/13 PS - Ashok Vihar As discussed hereinbefore, PW4 - prosecutrix has been found to be aged around 19 years, from the testimony of PW4 - prosecutrix, nothing is being indicated that for the last about three to four years prior to 03/04/2013, accused Subhash continuously committed rape upon PW4 prosecutrix at the house of his Fufaji on the false pretext of marrying with her or that during the abovesaid period and place he cheated PW4 prosecutrix by dishonestly inducing her to establish physical relation with her on the false pretext of marriage with her as he was already married with someone and thereupon established the physical relation with her.
Now, let the testimony of PW12 - Sita Ram, father of the prosecutrix be perused and analysed.
PW12 - Sita Ram, father of the prosecutrix in his examinationinchief has deposed that, prosecutrix (name withheld) is his daughter. At present she is about 21 years old. Prior to about one year from today (13/08/2014) some quarrel took place between him and accused Subhash (Kuch Jhagra Huwa Tha). He correctly identified 41 of 46 42 FIR No. 100/13 PS - Ashok Vihar accused Subhash present in the Court. At that time accused Subhash used to reside in the same locality i.e. WPIA in his neighbourhood. His daughter/prosecutrix (name withheld) and accused Subhash wanted to marry, however, accused Subhash refused to marry his daughter/prosecutrix (name withheld). When accused Subhash refused to marry his daughter/prosecutrix (name withheld) so she gave statement to Police and case was registered. After about 2/3 months of the registration of FIR accused agreed to marry with his daughter and the marriage of accused and his daughter/prosecutrix (name withheld) was performed. Now his daughter/prosecutrix (name withheld) is residing with accused in his house. He had stated to Police the same facts which he has deposed here in the Court i.e the case was lodged as accused refused to marry his daughter.
PW12 - Sita Ram was also crossexamined by the Learned Addl. PP for the State as he was resiling from his previous statement which is reproduced and reads as under : "It is correct that initially accused Subhash pressurized my daughter to marry with him, however, later on we became agree for the marriage of my daughter/prosecutrix (name withheld) with accused 42 of 46 43 FIR No. 100/13 PS - Ashok Vihar Subhash. It is correct that there was an affair between my daughter/prosecutrix (name withheld) and accused Subhash. It is correct that accused Subhash had made physical relations with my daughter/prosecutrix (name withheld) (prior to the marriage) on the pretext of marriage. It is further correct that when we asked accused to marry Geeta (as he had made physical relations with her prior to marriage) then accused used to linger on the marriage on one pretext or the other. It is further correct that I had seen another match (boy) in the village for my daughter (Maine Apni Ladki Kai Liya Gaon Mai Dusara Ladka Dekha Tha). It is correct that my daughter agreed to see (consider) that match. It is correct that on 17/03/2013 when my daughter was leaving our house for village then accused raised a quarrel (Hangama Kar Diya) by stating that neither he would permit Geeta to go to the village nor he would permit her to marry with another boy. It is correct that on seeing the conduct of accused my daughter made PCR call. Police arrived at our house. It is correct that accused agreed to marry with my daughter before the Police. It is further correct that after two days when I made telephone call to the fufa of accused Subhash then he informed me that accused Subhash had already fled away from house during night. He also informed me that Subhash was already married and having a son aged about 56 years. It is correct that after coming to know that accused Subhash was already married and then I told my daughter to lodge complaint before the Police. It is correct that I had stated all these facts to Police in my statement."
On careful perusal and analysis of the testimony of PW12 - Sita Ram, father of the prosecutrix, it is found that nothing material has 43 of 46 44 FIR No. 100/13 PS - Ashok Vihar come out in his testimony so as to advance the case of the prosecution on the core spectrum of the crime. Nor his testimony finds corroboration from the testimony of his daughter/PW4 - prosecutrix on the material aspects. Moreover, the fact deposed by him during his crossexamination by the Learned Addl. PP for the State, of accused Subhash having made physical relations with his daughter/ prosecutrix (prior to marriage) on the pretext of marriage, is not supported by PW4 - prosecutrix, who during her crossexamination by the Learned Addl. PP for the State has specifically deposed that, "I established physical relation for the first time with Subhash after marriage with him."
16. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Subhash. The hostility of PW4 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that for the last about three to four years prior to 03/04/2013, accused Subhash continuously committed rape upon PW4 - prosecutrix, aged around 19 years, at the house of his Fufaji on the false pretext of marrying with her or that during the abovesaid period and place he 44 of 46 45 FIR No. 100/13 PS - Ashok Vihar cheated PW4 prosecutrix by dishonestly inducing her to establish physical relation with her on the false pretext of marriage with her as he was already married with someone and thereupon established the physical relation with her.
I accordingly, acquit accused Subhash for the offences punishable u/s 376(2)(n) IPC as amended by Criminal Law (Amendment) Act, 2013 and u/s 420 IPC.
17. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Subhash in the commission of offences punishable u/s 376(2)(n) IPC as amended by Criminal Law (Amendment) Act, 2013 and u/s 420 IPC, is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to accused Subhash beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Subhash. I, therefore, acquit accused Subhash for the offences punishable u/s 376(2)(n) IPC as amended by Criminal Law (Amendment) Act, 2013 and u/s 420 IPC after giving him the benefit of 45 of 46 46 FIR No. 100/13 PS - Ashok Vihar doubt. Accused Subhash is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Subhash shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment. Announced in the open Court (MAHESH CHANDER GUPTA) on 13th Day of July, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 46 of 46