Delhi District Court
State vs . Raj Mohan on 28 February, 2014
1
FIR No. 123/12
PS - Swaroop Nagar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 45/13
Unique ID No. : 02404R0285132012
State Vs. Raj Mohan
S/o Rama Singh
R/o Gali No. 4, A - Block,
Kadi Vihar, Delhi.
FIR No. : 123/12
Police Station : Swaroop Nagar
Under Sections : 363/366/376/34 IPC
Date of committal to session Court : 30/10/2012
Date on which judgment reserved : 25/02/2014
Date on which judgment announced : 28/02/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 33 2 FIR No. 123/12 PS - Swaroop Nagar That on 12/07/2012, complainant Harjinder came in the Police Station and got recorded his statement which is to the effect that he resides at House No. 50, Street No. 36, Village Kadipur, Kushak - 1, Swaroop Nagar, Delhi alongwith his family and today at 6:30 a.m. his younger sister i.e. prosecutrix (name withheld being a case u/s 376 IPC) left the home for School but neither she has reached her School, Government Girls Senior Secondary School, Kadi Pur nor had returned back home. Her description is as follows : Aged around 14 years, height 5', complexion - weetish, thin built, round face, small hairs and black eyes and is wearing white school dress, wearing black leather shoes of her School dress and is mentally normal. She has been searched by them but has not been found out. They suspect that one boy name Sachin has enticed her away by inducing her. She be traced out and he has come to lodge the report. The statement has been heard and is correct. On the said statement case u/s 363 IPC was registered and the investigation was carried out.
During the course of investigation, the prosecutrix alongwith accused Raj Mohan were recovered from Shahbad Dairy. Accused Raj Mohan was arrested in the case and the statement of the 2 of 33 3 FIR No. 123/12 PS - Swaroop Nagar prosecutrix was got recorded u/s 164 Cr.P.C. wherein, she stated that on 12/07/2012 at about 6:00 a.m. she had left her house and on the asking of Raj Mohan she had gone near Chhote Wale School. Raj Mohan lives near 2 Number Kushak. She lives near 1 number Kushak. He (Raj Mohan) works in a company opposite to his house. She knows him for 1/2 months. He took me to a rented room at Shahbad where Sachin was also present who had also left from near to School with them. There at the room, he (Raj Mohan) performed marriage with her. In the night, physical relations were established between her and Raj Mohan and at that time Sachin was also sleeping there. Medical examination of the prosecutrix as well as of accused Raj Mohan were got conducted and the sealed exhibits handed over by the Doctor were taken into Police possession and were deposited in the Malkhana. On 13/07/2012, Police had apprehended them from there. She wanted to go to her parents. During the course of investigation, JCL (Juvenile Conflict with Law) Sachin was apprehended whose ossification test was got conducted and was produced before the Juvenile Justice Board. The sealed exhibits were sent to the FSL.
3 of 33 4 FIR No. 123/12 PS - Swaroop Nagar Upon completion of necessary further investigation challan for the offences u/s 363/366/376 IPC was prepared against accused Raj Mohan and was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 363/366/376 IPC was made out against the accused Raj Mohan. 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 12 witnesses. PW1 HC Bhagwan Singh, PW2 HC Charan Singh, PW3 - Dr. Rahul Singh, CMO, BJRM Hospital, Delhi, PW4 - Prosecutrix, PW5 - Constable Renu, PW6 - Sh. Amit, Assistant Malaria 4 of 33 5 FIR No. 123/12 PS - Swaroop Nagar Inspector, Narela Zone, MCD, Bawana, PW7 - Sh. Harender Kumar, PW8 - SI Devender Kumar, PW9 - SI Shashi Lata, PW10 - Ms. Seema Nain, Senior Scientific Officer (Biology DNA), FSL, Rohini, Delhi, PW11 - SI Vinita Prasad, PW12 - Dr. Latika, S. R. Gynae, BJRM Hospital, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 - HC Bhagwan Singh is the Duty Officer who deposed that on 12/07/2012, he was posted as Duty Officer in PS - Swaroop Nagar and was on duty from 8:00 p.m. to 8:00 a.m. On that day, complainant Harender Kumar came in the Police Station and gave his statement and on the basis of which and on his (PW1) instructions, the present FIR 123/2012 u/s 363 IPC was registered. After registration of FIR, the copy of the FIR was handed over to SI Devender for further investigation. He has brought the original FIR Register. The copy of the FIR is Ex. PW1/A bearing his signature at point 'A' (OSR).
PW2 - HC Charan Singh is the MHC(M) who deposed that 5 of 33 6 FIR No. 123/12 PS - Swaroop Nagar on 13/07/2012, he was posted as MHC(M) in PS - Swaroop Nagar. On that day, SI Devender had deposited two sealed pullindas sealed with the seal of 'MS BJRM Hospital' alongwith two sample seals and one sealed pullinda sealed with the seal of 'DK' and also deposited personal search of accused Raj Mohan, in the Malkhana. He (PW2) made entry at Serial No. 616 of Register No. 19. On 23/08/2012, on the instructions of IO, two sealed pullindas sealed with the seal of 'MS BJRM Hospital' alongwith sample seal and FSL Form were handed over to Constable Arvind for depositing in FSL, Rohini vide RC No. 70/21/12. After depositing the same, he had deposited the receipt with him (PW2). He has brought the original Register Nos. 19 and 21. The copy of the relevant entry of register no. 19 is Ex. PW2/A and copy of the relevant entry of register no. 21 is Ex. PW2/B, copy of the receipt is Ex. PW2/C (OSR).
PW3 - Dr. Rahul Singh, CMO BJRM Hospital, Delhi who deposed that he has seen MLC No. 44024 of prosecutrix (name withheld) D/o Tej Pal aged 14 years female who was brought to Hospital on 13/07/2012 with the alleged history of missing from home from 6 of 33 7 FIR No. 123/12 PS - Swaroop Nagar 12/07/2012 morning 9:00 a.m. and found at 10:00 a.m. on 13/07/2012 as told by her uncle (Daya Chand). The patient was initially examined by Dr. Azia Manzoor, Junior Resident on duty under his (PW3) supervision as he was posted as CMO on duty. As per MLC, on local examination no fresh external injuries were seen at the time of examination and thereafter the patient was referred to S. R. Gynae. The MLC was prepared by Dr. Azia Manzoor and at present Dr. Azia Manzoor is not working in the Hospital and her 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 duty. The MLC prepared by Dr. Azia Manzoor is Ex. PW3/A, bearing signatures of Dr. Azia Manzoor at point 'A'.
PW4 - prosecutrix is the victim who deposed regarding the incident but she did not support the prosecution and was also cross examined by the Learned Addl. PP for the State.
PW5 - Constable Renu who deposed that on 13/07/2012, she was posted as Constable in PS Swaroop Nagar. On that day, she 7 of 33 8 FIR No. 123/12 PS - Swaroop Nagar alongwith SI Devender and Constable Arvind reached at Shahbad Dairy in House No. 328, C Block and at the instance of secret informer they raided the said house. In the room they found accused Raj Mohan, present in the Court (correctly identified) and prosecutrix (name withheld). IO made inquiry from prosecutrix (name withheld). Victim/prosecutrix (name withheld) was recovered vide memo Ex. PW5/A1, bearing her (PW5) signature at point 'A'. Accused Raj Mohan was also interrogated and arrested vide arrest memo Ex. PW5/A, his personal search was conducted vide memo Ex. PW5/B, both bearing her signature at points 'A'. He made disclosure statement Ex. PW5/C, bearing her signature at point 'A'. Thereafter, they reached at BJRM Hospital where accused and prosecutrix were medically examined. After medical examination, Doctor handed over sealed exhibits of accused Raj Mohan and prosecutrix (name withheld) which were seized vide memos Ex. PW5/D and Ex. PW5/E, both bearing her signature at points 'A'. The artificial ornaments of the prosecutrix which she was wearing were also seized vide memo Ex. PW5/F, bearing her (PW5) signature at point 'A'.
8 of 33 9 FIR No. 123/12 PS - Swaroop Nagar PW6 - Sh. Amit, Assistant Malaria Inspector, Narela Zone, MCD, Bawana who deposed that he has brought the summoned record. As per their record, there is entry regarding the birth of a female child, Father's name Tej Pal, Mother's Dayawati R/o 50 Kushak No. 1, Delhi 36 at Serial No. 330 dated 06/10/1998. As per their record, the date of birth of child is 04/10/1998. The information was given in their office by Tejpal, Father of the child. The copy of the relevant record is Ex. PW6/A (OSR). The Birth Certificate Ex. PW6/B was issued from their Office.
PW7 - Sh. Harender Kumar is the elder brother of the prosecutrix who deposed that prosecutrix (name withheld) is his younger sister. On 12/07/2012 she has left the house at about 6:30 a.m. in the morning for going to Govt. School where she was studying. She did not return the house till 1:30 p.m. They searched his sister till evening. He went to PS and reported the matter to the Police. He suspected that Sachin has kidnapped his sister. Sachin was working in a factory opposite to their house and he used to stare towards his sister. Sachin was working with Raj Mohan, present in the Court. The copy of FIR is 9 of 33 10 FIR No. 123/12 PS - Swaroop Nagar already Ex. PW1/A. PW8 - SI Devender Kumar is the Investigating Officer (IO) of the case who deposed that on 12/07/2012, he was posted as Sub Inspector in PS Swaroop Nagar. On that day complainant Harender Kumar came at PS and lodged report regarding the kidnapping of his sister/prosecutrix (name withheld) and on the basis of his statement to the Duty Officer, the present FIR was registered vide DD No. 28A, the copy of which is Ex. PW8/A. The investigation of present case was marked to him. On 13/07/2012, he alongwith W/Constable Renu and Constable Arvind reached Shahbad Dairy in private vehicle where he received a secret information that prosecutrix (name withheld) can be found in a room, behind the Government School at Shahbad Dairy. Thereafter, they reached at the room behind the Government School and from there accused Raj Mohan and prosecutrix (name withheld) were found. One boy Sachin was also found with them who was juvenile. Prosecutrix was taken into possession vide memo Ex. PW5/A1, bearing his signature at point 'B'. He made inquiry from prosecutrix who stated that accused Raj Mohan had induced her to accompany with him and 10 of 33 11 FIR No. 123/12 PS - Swaroop Nagar thereafter he brought her in the said room and committed rape upon her. Accused Raj Mohan was also interrogated and arrested vide arrest memo Ex. PW5/A and his personal search was conducted vide memo Ex. PW5/B, both bearing his (PW8) signature at point 'B'. Accused Raj Mohan made disclosure statement Ex. PW5/C, bearing his (PW8) signature at point 'B'. The artificial ornaments which prosecutrix (name withheld) was wearing were also seized after converting the same into pullinda and sealing the same with the seal of 'DK', vide memo Ex. PW5/F, bearing his signature at point 'B'. Accused Raj Mohan and prosecutrix (name withheld) were taken to BJRM Hospital where they were medically examined and after medical examination, Doctor handed over the sealed pullindas containing the exhibits which were seized vide memo Ex. PW5/D and Ex. PW5/E, bearing his (PW8) signature at point 'B'. They came back to Police Station, case property was deposited in the Malkhana. Prosecutrix was sent to Nirmal Chhaya. On the next day i.e. 14/07/2012, accused Raj Mohan was produced in the Court and was sent to JC. On 16/07/2012, he was to attend a case before the Hon'ble Delhi High Court so case file was handed over to SI Shashi Lata and she got recorded the statement of the prosecutrix u/s 164 Cr.P.C. On 11 of 33 12 FIR No. 123/12 PS - Swaroop Nagar 17/07/2012, Juvenile Sachin was apprehended and produced before the J.J.B. On 19/07/2012, case file was handed over to MHC(R) and further investigation was conducted by SI Shashi Lata. Accused Raj Mohan is present in the Court. He also identified four artificial silver colour Chutki, two pajeb of silver colour, one artificial golden colour Mangalsurta and 36 green colour bangles which were seized from the possession of the prosecutrix and the same are collectively exhibited as Ex. P1.
PW9 - SI Shashi Lata who deposed that on 16/07/2012 she was posted as Sub Inspector in PS Swaroop Nagar. On that day case file was handed over to her as IO SI Devender Kumar was to appear before the Hon'ble Delhi High Court. She alongwith Constable Renu reached Children Home, Nirmal Chhaya and from there they took prosecutrix (name withheld), aged around 14 years and brought her to Rohini Courts. She moved an application Ex. PX2, bearing her signature at point 'X' for recording her statement u/s 164 Cr.P.C. The statement of prosecutrix was got recorded and thereafter, she (PW9) obtained the copy of the statement vide application Ex. PX4. Thereafter, case file 12 of 33 13 FIR No. 123/12 PS - Swaroop Nagar was handed over to SI Devender. On 20/07/2012, case file was marked to her and investigation was handed over to her. On 23/08/2012, the exhibits of the present were sent to FSL through Constable Arvind and thereafter, he deposited the acknowledgment receipt with the MHC(M). She (PW9) recorded statement of MHC(M) and Constable Arvind. On 24/08/2012, the case file was handed over to MHC(R) and further investigation was conducted by SI Vinita Prasad. Accused Raj Mohan is present in the Court.
PW10 - Ms. Seema Nain, Senior Scientific Officer (Biology DNA), FSL, Rohini, Delhi who deposed that she is M.Sc. (Bio Chemistry) and having about 15 years of experience in examining the exhibits. On 23/08/2012, two sealed parcels were received in their office in connection with the present case. The same were marked to her for DNA Examination and after examination, she gave her report Ex. PW10/A, bearing her signature at point 'A'.
PW11 - SI Vinita Prasad who deposed that on 28/08/2012, she was posted as Sub Inspector in PS Jahangir Puri. On that day, the 13 of 33 14 FIR No. 123/12 PS - Swaroop Nagar investigation of the present case was marked to her. She had perused the file and found that accused Raj Mohan and Juvenile Sachin have already been arrested, prosecutrix (name withheld) had already been recovered. Medical examination of accused Raj Mohan regarding his potency was not conducted and the ossification test of Juvenile Sachin was not conducted. On 28/08/2012, she got conducted the ossification test of juvenile Sachin. On 17/09/2013, accused Raj Mohan was medically examined regarding his potency. After completing the investigation, challan was prepared and filed in the Court. Accused Raj Mohan is present in the Court (correctly identified).
PW12 - Dr. Latika, S. R. Gynae, BJRM Hospital, Delhi who deposed that she has been deputed in this case by the MS of the Hospital to depose on behalf of Dr. Poonam Pandey before the Court. She has seen the MLC No. 44024 of prosecutrix (name withheld) D/o Tej Pal, Age 14 years who was brought to Hospital on 13/07/2012. The patient was initially examined by the CMO on duty and thereafter, she was referred to S. R. Gynae whereupon, the patient was examined by Dr. Poonam Pandey. As per MLC there is alleged H/o missing from home 14 of 33 15 FIR No. 123/12 PS - Swaroop Nagar from yesterday 9:00 a.m. and found today at 10:00 a.m. 13/07/2012 as told by her uncle (Dayanand), H/o sexual assault. On examination : vitals stable, chest CVS normal, P/A soft non tender. Local examination : hymen broken, no external injury seen, P/V examination : normal. UPT was negative. Relevant samples were collected and handed over in SAFE Kit to concerned Police Officer. At present Dr. Poonam Pandey is not working in their Hospital and her present whereabouts are not known as per record. She is acquainted with the handwriting of Dr. Poonam Pandey as she has seen her while writing and signing during the course of her duties. The examination of Dr. Poonam Pandey is at point 'X' to 'X' on the MLC and the same is Ex. PW12/A.
6. It is to be mentioned that on 23/11/2012, accused made a statement before the Learned Transferor Court and had admitted the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PX2, the proceedings u/s 164 Cr.P.C. dated 16/07/2012 (Collectively) Ex. PX3, the envelope containing the proceedings and statement Ex. PX1, application of the IO for obtaining the copies of the proceedings Ex. PX4 and had also 15 of 33 16 FIR No. 123/12 PS - Swaroop Nagar admitted his MLCs dated 13/07/2012 bearing no. 44023 and dated 17/09/2012 bearing no. 47427 prepared by Dr. Vineet under the supervision of Dr. Rahul, Ex. PX5 and Ex. PX6 respectively and had stated he has no objection if the Learned MM Sh. Bhupinder Singh, Dr. Vineet and Dr. Rahul are (not) examined as witnesses in the Court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. Statement of accused Raj Mohan was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and did not opt to lead any defence evidence.
8. Learned Counsel for the accused submitted that the prosecutrix has not supported the prosecution and the prosecution has failed to prove its case beyond reasonable doubt against the accused.
9. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out 16 of 33 17 FIR No. 123/12 PS - Swaroop Nagar are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
10. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Ms. Sadhna Bhatia, Learned Amicus Curiae for the accused and have also carefully perused the entire record.
11. The charge for the offences punishable u/s 363/366/376 IPC against accused Raj Mohan is that on 12/07/2012 at about 6:30 a.m., when prosecutrix (name withheld) D/o Harender Kumar (be read as D/o Tej Pal) aged about 14 years left her house i.e. House No. 50, Gali No. 36, Village Kadi Pur, Kushan No. 1, Swaroop Nagar, Delhi, within the jurisdiction of PS - Swaroop Nagar, for going to her school, he kidnapped her near her school, out of the lawful guardianship of her parents and that on the aforesaid date, time and place he kidnapped minor girl i.e. prosecutrix out of the lawful guardianship of her parents with intent to seduce her to illicit intercourse or to compel her for marriage and he got married with her and that on above date, time and 17 of 33 18 FIR No. 123/12 PS - Swaroop Nagar place, he took the minor girl aged about 14 years to Shahbad in a rented room and got married with her and made physical relations with her.
12. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
13. PW6 - Sh. Amit, Assistant Malaria Inspector, Narela Zone, MCD, Bawana who deposed that he has brought the summoned record. As per their record, there is entry regarding the birth of a female child, Father's name Tej Pal, Mother's Dayawati R/o 50 Kushak No. 1, Delhi 36 at Serial No. 330 dated 06/10/1998. As per their record, the date of birth of child is 04/10/1998. The information was given in their office by Tejpal, Father of the child. The copy of the relevant record is Ex. PW6/A (OSR). The Birth Certificate Ex. PW6/B was issued from their Office.
During his crossexamination PW6 - Amit has deposed that 18 of 33 19 FIR No. 123/12 PS - Swaroop Nagar he has not made entry in the register.
There is nothing in the crossexamination of PW6 - Amit so as to impeach his creditworthiness nor any evidence to the contrary has been produced or proved on record.
In the circumstances, it stands proved on the record that the date of birth of the prosecutrix is 04/10/1998.
As the date of alleged incident is 12/07/2012 and the date of birth of the prosecutrix is 04/10/1998 on simple arithmetical calculation, the age of prosecutrix comes to 13 years, 09 months and 08 days as on the date of incident on 12/07/2012.
In view of above and in the circumstances, it stands established on record that PW4 prosecutrix was aged 13 years, 09 months and 08 days as on the date of alleged incident on 12/07/2012. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW3 - Dr. Rahul Singh, CMO BJRM Hospital, Delhi who deposed that he has seen MLC No. 44024 of prosecutrix (name withheld) D/o Tej Pal aged 14 years female who was brought to Hospital 19 of 33 20 FIR No. 123/12 PS - Swaroop Nagar on 13/07/2012 with the alleged history of missing from home from 12/07/2012 morning 9:00 a.m. and found at 10:00 a.m. on 13/07/2012 as told by her uncle (Daya Chand). The patient was initially examined by Dr. Azia Manzoor, Junior Resident on duty under his (PW3) supervision as he was posted as CMO on duty. As per MLC, on local examination no fresh external injuries were seen at the time of examination and thereafter the patient was referred to S. R. Gynae. The MLC was prepared by Dr. Azia Manzoor and at present Dr. Azia Manzoor is not working in the Hospital and her 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 duty. The MLC prepared by Dr. Azia Manzoor is Ex. PW3/A, bearing signatures of Dr. Azia Manzoor at point 'A'.
During his crossexamination, PW3 - Dr. Rahul Singh has admitted it to be correct that he has no personal knowledge of this case.
There is nothing in the crossexamination of PW3 Dr. Rahul Singh so as to impeach his creditworthiness as he has proved the MLC of the prosecutrix prepared by Dr. Azia Manjoor Ex. PW3/A bearing signature of Dr. Azia Manzoor at point 'A' being acquainted with 20 of 33 21 FIR No. 123/12 PS - Swaroop Nagar her handwriting and signatures as he had seen her while writing and signing during the course of his duty.
PW12 - Dr. Latika, S. R. Gynae, BJRM Hospital, Delhi who deposed that she has been deputed in this case by the MS of the Hospital to depose on behalf of Dr. Poonam Pandey before the Court. She has seen the MLC No. 44024 of prosecutrix (name withheld) D/o Tej Pal, Age 14 years who was brought to Hospital on 13/07/2012. The patient was initially examined by the CMO on duty and thereafter, she was referred to S. R. Gynae whereupon, the patient was examined by Dr. Poonam Pandey. As per MLC there is alleged H/o missing from home from yesterday 9:00 a.m. and found today at 10:00 a.m. 13/07/2012 as told by her uncle (Dayanand), H/o sexual assault. On examination : vitals stable, chest CVS normal, P/A soft non tender. Local examination : hymen broken, no external injury seen, P/V examination : normal. UPT was negative. Relevant samples were collected and handed over in SAFE Kit to concerned Police Officer. At present Dr. Poonam Pandey is not working in their Hospital and her present whereabouts are not known as per record. She is acquainted 21 of 33 22 FIR No. 123/12 PS - Swaroop Nagar with the handwriting of Dr. Poonam Pandey as she has seen her while writing and signing during the course of her duties. The examination of Dr. Poonam Pandey is at point 'X' to 'X' on the MLC and the same is Ex. PW12/A. Despite grant of opportunity, PW12 - Dr. Latika was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical and the gynaecological examination of PW4 - prosecutrix vide MLC Ex. PW3/A and Ex. PW12/A respectively stands proved on the record.
VIRILITY OF THE ACCUSED
15. It is to be mentioned that on 23/11/2012, accused made a statement before the Learned Transferor Court and had admitted his MLCs dated 13/07/2012 bearing no. 44023 and dated 17/09/2012 bearing no. 47427 prepared by Dr. Vineet under the supervision of Dr. Rahul, Ex. PX5 and Ex. PX6 respectively and had stated he has no objection if Dr. Vinit and Dr. Rahul are (not) examined as witnesses in the Court.
Perusal of the MLC of accused Raj Mohan Ex. PX6 22 of 33 23 FIR No. 123/12 PS - Swaroop Nagar indicates that the Doctor has opined that there is nothing to suggest that the patient cannot perform sexual intercourse.
In view of above and in the circumstances, it stands proved on the record that accused Raj Mohan was capable of performing sexual intercourse.
DNA FINGER PRINTING EVIDENCE
16. PW10 - Ms. Seema Nain, Senior Scientific Officer (Biology DNA), FSL, Rohini, Delhi who deposed that she is M.Sc. (Bio Chemistry) and having about 15 years of experience in examining the exhibits. On 23/08/2012, two sealed parcels were received in their office in connection with the present case. The same were marked to her for DNA Examination and after examination, she gave her report Ex. PW10/A, bearing her signature at point 'A'.
As per the FSL Report Ex. PW10/A the description of articles contained in parcel and DNA Examination reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "MS BJRM J.PURI, DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', 23 of 33 24 FIR No. 123/12 PS - Swaroop Nagar '1f', '1g', '1h', '1i', '1j1', '1j2', '1k1', '1k2', '1l1', '1l2', '1m1', '1m2' each kept in a separate paper envelope stated to be of prosecutrix. Exhibit '1a' : One Cotton wool swab on stick, kept in tube described as 'Body fluid collection'.
Exhibit '1b' : One Cotton wool swab on stick, kept in tube described as 'In between fingers'.
Exhibit '1c' : A few dirty nail clippings with nail cutter described as 'nail scrapping'.
Exhibit '1d' : One Cotton wool swab on stick, kept in tube described as 'Breast Swab'.
Exhibit '1e' : A small bunch of hairs alongwith scissors described as 'clipping of pubic hair'.
Exhibit '1f' : One Cotton wool swab on stick, kept in tube described as 'Cervical Mucus collection'.
Exhibit '1g' : Two microslides having faint smear described as 'Vaginal Secretion'.
Exhibit '1h' : One Cotton wool swab on stick, kept in tube described as 'Culture'.
Exhibit '1i' : Dirty liquid kept in syringe described as 'Washing from Vagina'.
Exhibit '1j1' : One Cotton wool swab on stick, kept in tube described as 'Rectal Examination'.
Exhibit '1j2' : Two microslides having faint smear described as 'Rectal Examination'.
Exhibit '1k1' : One Cotton wool swab on stick, kept in tube described as 'Oral Swab'.
Exhibit '1k2' : Two microslides having faint smear described as 'Oral Examination'.
24 of 33 25 FIR No. 123/12 PS - Swaroop Nagar Exhibit '1l1' & : Dark Brown foul smelling liquid kept in a tube '1l2' described as 'Blood sample of victim'. Exhibit '1m1' : Dark brown foul smelling liquid kept in tube described as 'Blood sample of victim'.
Exhibit '1m2' : Dirty liquid kept in plastic container described as 'Urine sample'.
Parcel '2' : One sealed cloth parcel sealed with the seal of "MS BJRM J.PURI, DELHI" containing exhibit '2a', '2b', '2c' each kept in a separate plastic container stated to be of accused. Exhibit '2a' : Gauze cloth piece having brown stains described as blood sample.
Exhibit '2b' : Dark brown foul smelling liquid kept in a tube described as Blood sample.
Exhibit'2c' : A few black strands of hair described as Pubic hair.
DNA EXAMINATION Exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j1', '1j2', '1k1', '1k2', '1m2' were subjected to DNA isolation. No DNA profile could be generated in exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j1', '1j2', '1k1', '1k2', '1m2'. Identifiler plus amplification kit and Gene Mapper IDx software was used for analysis.
NOTE :
1. Exhibits '2a', '2b', '2c' are returned without examination as no
25 of 33 26 FIR No. 123/12 PS - Swaroop Nagar profile could be generate from the exhibits of the victim.
2. Remnants of the exhibits have been sealed with the seal of 'S.Nn FSL DELHI'.
As per the FSL Report Ex. PW10/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW5/E dated 13/07/2012 and parcel no. 2 belongs to accused Raj Mohan which was seized vide seizure memo Ex. 5/D dated 13/07/2012.
On careful perusal and analysis of the forensic evidence, it clearly shows that exhibits '1a' (Body fluid collection of the prosecutrix), '1b' (In between fingers of the prosecutrix), '1c' (Nail scrappings of the prosecutrix), '1d' (Breast Swab of the prosecutrix), '1e' (Clipping of pubic hair of the prosecutrix), '1f' (Cervical mucus collection of the prosecutrix), '1g' (Vaginal Secretion of the prosecutrix), '1h' (Culture of the prosecutrix), '1i' (Washing from Vagina of the prosecutrix), '1j1' (Rectal Examination of the prosecutrix), '1j2' (Rectal Examination of the prosecutrix), '1k1' (Oral Swab of the prosecutrix), '1k2' (Oral Examination of the prosecutrix), '1m2' (Urine sample of the 26 of 33 27 FIR No. 123/12 PS - Swaroop Nagar prosecutrix) were subjected to DNA isolation but no DNA profile could be generated in exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j1', '1j2', '1k1', '1k2', '1m2'.
17. Now let the testimony of PW4 Prosecutrix be perused and analysed.
PW4 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I know accused Raj Mohan. I can identify him, if shown to me.
At this stage, wooden partition is partially removed. The witness identified the accused Raj Mohan correctly. The wooden partition is restored to its original position.
I know accused Raj Mohan as he was working just opposite our house. On 12/07/2012 at around 6:00/6:30 a.m. I was simply going out of my house and when I reached near Chotta School, accused Raj Mohan alongwith one more boy Sachin met me, they made me to board an auto telling me to take me to show a movie. They took me to Shahbad in a room and we remained there for the whole night. They had not done anything with me. Next day at around 2:00/3:00 p.m., police came alongwith the owner under whom Ram Mohan used to work. Thereafter, Police apprehended me, Raj Mohan and Sachin."
27 of 33 28 FIR No. 123/12 PS - Swaroop Nagar PW4 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement. The crossexamination as conducted by the Learned Addl. PP for the State reads as under : "It is correct that I was studying in Govt. Girls Senior Secondary School in Class 9th. I used to go to School at 7:00 a.m. It is correct that my statement was recorded u/s 164 Cr.P.C. before the Learned MM.
(At this stage, statement of the prosecutrix recorded u/s 164 Cr.P.C. which is already exhibited as Ex. PX3 is read over to the witness and she affirmed it as correct and stated that the said statement bears my signature at point 'A').
It is correct that I was taken to hospital by the Police for medical examination. It is wrong to suggest that due to the fear of the accused I have deposed in my examinationinchief that nothing was done with me by accused Raj Mohan and Sachin. It is wrong to suggest that I am deposing falsely in this regard."
During her crossexamination by the Learned Counsel for the accused PW4 prosecutrix has deposed that : "I was knowing Raj Mohan for the last one or two months prior to the incident. I used to talk with accused Raj Mohan. I had stated to the Police in my statement that I had simply gone out of my house on 12/07/2012. (Confronted with statement Mark PW4/DA where it is mentioned that I had come out of the house to go to School). I 28 of 33 29 FIR No. 123/12 PS - Swaroop Nagar willingly had gone in Auto with accused Raj Mohan. The place at Shahbad where we had gone was surrounded by many houses in the vicinity. No food was taken there. We had reached there at about 11:00 a.m. Many persons were present outside, in the gali also. It is correct that we remained sitting and kept talking. I had prepared the tea and all the house hold articles were there in that place. In the meal rice was prepared by me. Raj Mohan and Sachin had the food but I did not. I had stated in my statement U/s 164 Cr.P.C., what I have deposed today in the Court. It is correct that no Galat Kaam was committed with me by accused Raj Mohan. No physical relation was established by Raj Mohan with me. I did not raise any alarm. Vol. As there was no reason for raising the same.
From the aforesaid narration of PW4 - prosecutrix, it is clearly indicated that she has specifically deposed that she willingly had gone in auto with accused Raj Mohan. Accused Raj Mohan and Sachin (Juvenile) had not done anything with her. She did not support the prosecution on the statement made by her u/s 164 Cr.P.C. Ex. PX3 when she had deposed during her crossexamination by the Learned Counsel for the accused, "I had stated in my statement u/s 164 Cr.P.C. what I have deposed today in the Court." She negated the suggestions as were put to her by the Learned Addl. PP that due to the fear of the accused she has deposed in her examinationinchief that nothing was done with her 29 of 33 30 FIR No. 123/12 PS - Swaroop Nagar by accused Raj Mohan and Sachin or that she is deposing falsely in this regard. During the crossexamination of PW4 - prosecutrix by the Learned Counsel for the accused, she specifically deposed that, "It is correct that no Galat Kaam was committed with me by accused Raj Mohan. No physical relation was established by Raj Mohan with me. I did not raise any alarm. Vol. As there was no reason for raising the same."
As discussed hereinabove, although, PW4 - prosecutrix was found to be aged about 14 years (to be exact 13 years, 09 months and 08 days), as on the date of alleged incident on 12/07/2012, yet from the testimony of PW4 - prosecutrix nothing is being indicated that she was taken or enticed from the lawful guardianship of her parents by accused Raj Mohan with intent to seduce her to illicit intercourse or to compel her for marriage or that he took her to a rented room and got married with her and made physical relations with her.
Even the FSL Report Ex. PW10/A, as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
30 of 33 31 FIR No. 123/12 PS - Swaroop Nagar Now, let the testimony of PW7 - Harender Kumar, brother of the prosecutrix be perused and analysed.
PW7 - Harender Kumar, in his examinationinchief has deposed which is reproduced and reads as under : "Prosecutrix (name withheld) is my younger sister. On 12/07/2012 she has left the house at about 6:30 a.m. in the morning for going to Govt. school where she was studying. She did not return the house till 1:30 p.m. They searched my sister till evening. I went to PS and reported the matter to the Police. I suspected that Sachin has kidnapped my sister. Sachin was working in a factory opposite to our house and he used to stair towards my sister. Sachin was working with Raj Mohan, present in the Court today. The copy of FIR is already Ex. PW1/A."
During his crossexamination by the learned Counsel for the accused, PW7 - Harender Kumar negated the suggestion that his sister left the house on her own.
On careful perusal and analysis of the testimony PW7 - Harender Kumar, brother of the prosecutrix, it is indicated that nothing material has come out in his testimony so as to advance the case of the prosecution on the core spectrum of the crime.
31 of 33 32 FIR No. 123/12 PS - Swaroop Nagar
18. On careful perusal and analysis of the entire evidence on record, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Raj Mohan. The hostility of PW4 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that on 12/07/2012 at about 6:30 a.m., accused Raj Mohan kidnapped the prosecutrix (name withheld), aged about 14 years (to be exact 13 years, 09 months and 08 days) from near her School, out of the lawful guardianship of her parents, with intent to seduce her to illicit intercourse or to compel her for marriage and he got married and that he took her to Shahbad in a rented room and got married with her and made physical relations with her.
I, accordingly, acquit accused Raj Mohan for the offences punishable u/s 363/366/376 IPC.
19. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Raj Mohan in the commission of the offences u/s 363/366/376 IPC is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the 32 of 33 33 FIR No. 123/12 PS - Swaroop Nagar ultimate analysis the prosecution has failed to bring the guilt home to the accused Raj Mohan beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Raj Mohan. I, therefore acquit accused Raj Mohan for the offences punishable u/s 363/366/376 IPC after giving him the benefit of doubt. Accused Raj Mohan is in JC. He be released forthwith, if not wanted in any other case. However, on his release accused Raj Mohan shall appear in the Court and shall execute a bail bond in the sum of Rs. 20,000/ under section 437A Cr.P.C.
Announced in the open Court (MAHESH CHANDER GUPTA) on 28th Day of February, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 33 of 33