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PW5 is Sh.Siddharth Sharma, ld.MM, who deposed regarding the recording of statement under Section 164 Cr.PC of the Prosecutrix (Ex.PW1/B) on 10.10.2007 being the link MM to the court of Sh.Ashutosh Kumar, ld. MM. He also deposed having appended his certificate in this regard as Ex.PW5/B. Alok Aggarwal being the Director of Chandel Advertising Pvt. Ltd. was brought into the witness box as PW13, who deposed regarding placing of an advertisement for the post of female helper, five field boys and peons by his client viz., Navjeevan Pharmacy, 2695, Mool Chand Restaurant, Karol Bagh, Delhi on 28.09.2007, which was got published in Punjab Kesri issued of 30.09.2007 vide invoice No.1585 and proved the same as Ex.PW13/A. PW2 Dr.Neeraj Kumar appeared in place of Dr.Aditya, who prepared the MLC No.13108 Ex.PW2/A of accused Manmohan Singh on 04.10.2004 and is stated to have left the hospital and his whereabouts were not known. The witness identified the signatures of Dr.Aditya at point 'A'. Dr.Saloni Sharma was brought into the witness box as PW3. She deposed regarding the potency of the accused when the accused was examined by her on 05.10.2007 vide MLC No.13108 and proved the same as Ex.PW3/A. However, as per record the witnesses was not crossexamined by the accused. Subsequently, in view of request of the ld. Predecessor, the said witness namely PW3 Dr.Saloni Sharma was dropped vide order dated 13.08.2012. In these circumstances, it cannot be disputed that the testimony of PW3 cannot be read in evidence. The effect thereof shall be discussed in subsequent paragraphs of this judgment.
The next argument raised by the learned defence counsel with regard to the charge of Section 376 IPC is that the Prosecution has completely failed to establish the basic fact that the accused was capable of performing sexual intercourse. It was pointed out that PW3 Dr.Saloni Sharma, who had conducted the medical examination of the accused with regard to his potency was examined on 20.01.2010 when her cross examination was deferred at the request of the accused. The witness was not produced in the witness box thereafter. It was contended that as per record, PW3 was reported to have left the services of LHMC hospital. Dr.Praveen who was deputed in her place was also discharged unexamined vide order dated 31.05.2012 as he stated before the court that he had never seen Dr. Saloni signing and writing. It was further contended that vide order dated 13.08.2012, in view of submissions of ld. APP, the name of Dr. Saloni was ordered to be struck off from the list of witnesses. Learned defence counsel, also argued that the accused in his statement recorded under Section 313 Cr.PC, in response to question No.21, has clearly stated that his potency test was not conducted. It was contended that it was incumbent upon the Prosecution to establish the potency of the accused in order to sustain the charge of Section 376 IPC and in absence of such evidence, the accused cannot be convicted for having committed rape upon the Prosecutrix.
I also find myself in agreement with the arguments of the learned Defence counsel that in the absence of any evidence with regard to the potency of the accused, the grouping of the semen stains found on the towel, clothes of the Prosecutrix and her private parts and considering the fact that the Prosecutrix for the first time deposed before the court regarding the allegations of the rape by the accused, the accused cannot be convicted for the offence punishable under Section 376 IPC.
In the light of the above discussion and the evidence on record, I am therefore of the considered opinion that the offence punishable under Section 376 cannot be said to be proved against the accused for want of cogent evidence to this effect. The prosecutrix PW1 for the first time has deposed before the court that she has been raped by the accused and hence her testimony to this extent cannot be accepted. Moreover, the Prosecution failed to prove the potency of the accused to perform sexual intercourse. Semen stains found on the private parts of the Proescutrix, her Salwar and Towel seized from the place of occurrence cannot be connected to the accused.