[CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01: (NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI (Sessions Case No. 42/14) Unique Identification No.: 02404R0053612014 [ENTITY] V/s [ENTITY] FIR No. : 624/13 U/s : 376/363/342/506 [ACT] & u/s 4 of POCSO Act P.S. : Aman Vihar [ENTITY] V/s [ENTITY] S/o Late Sh. Ashok Vij R/o B852, Chandan Park, Prem NagarIII, Delhi. Date of institution of case : 07.02.2014 Date of arguments : 11.03.2016 Date of pronouncement of judgment : 15.03.2016 Page 1 of 31 [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] J U D G M E N T:
1. The facts of the case as borne out from the record are that on 08.12.2013, after receiving information about DD no. 34A, PS Aman Vihar to the effect "Aman Vihar, Prem NagarIII, A45, near Machhi Talab, Parbhat naam ke ladke ne meri beti, umar 12 sal ke sath rape kiya hai" PW15 W/SI [ENTITY] reached at Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi, where she found PW13 SI [ENTITY], L/Ct. [ENTITY], [ENTITY], prosecutrix T (hereinafter referred to as 'prosecutrix') along with her parents and thereafter, medical examination of prosecutrix was got conducted, wherein doctor reported about 'hymen torn' of the prosecutrix. PW15 SI [ENTITY] seized the prosecutrix's exhibits, made inquiries from her, got her counseled and recorded her statement to the effect that on 28.11.2013, in the morning, when she was going to her school, accused, who was residing in her gali and was having a shop of property dealer, met her on the way on his motorcycle near Shani Bazar and offered her lift to her school and as she knew accused, she accepted the offer and went to her school with accused on his motorcycle and the accused left her at her school and also gave a chocolate to her. She further stated that on 29.11.2013, at about 7.00 pm, accused again met her near Shani Bazar and offered lift to her and she accepted the same, but the accused [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] instead of taking her to school, took her to one room and after entering the room, he bolted the door from inside and threatened her by brandishing a knife that in case, she raised alarm, he would kill her and thereafter, he forcibly made physical relations with her after putting a balloon (condom) on his male organ and left her near Shani Bazar, after threatening her that in case, she disclosed about this to any one, he would kill her. She further stated that because of the threat extended to her by the accused, she did not tell anything to anyone and did not go to the school and despite asking by her mother, she did not disclose anything to anyone. She further stated that on 08.12.2013, when her mother returned from shop and asked her gently about the reason of not taking food properly, she narrated the entire incident to her. She further stated that accused after enticing her, had made physical relations with her forcibly without her consent and also threatened her and she requested for legal action against the accused.
On the basis of aforesaid statement of the prosecutrix, the present case was registered. [ENTITY]ment of prosecutrix was got recorded u/[SECTION] [ACT]. [ENTITY] was produced before CWC, where she was got counseled. Accused was arrested at the instance of prosecutrix and his disclosure statement was also recorded. Medical examination of the accused was got conducted and his exhibits were also collected. On 12.12.2013, at the instance of the prosecutrix, site plan of the spot, where she was raped by the accused, was prepared. All the exhibits were sent to the FSL. [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] Age proof of the prosecutrix was got collected from her school. Motorcycle used in the commission of offence was seized. Documents qua the age of accused were also collected. After conclusion of the investigation, the charge sheet was prepared and filed in the court.
2. After supplying the copies of the charge sheet, arguments on the point of charge were heard and on 21.04.2014, charges u/[SECTION] [ACT] and [SECTION] of [ACT] (hereinafter referred to as the "Act"), punishable u/[SECTION] of Act, alternatively u/[SECTION] [ACT] were framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 16 witnesses, whereafter the PE in the matter was closed and statement of accused u/[SECTION] [ACT] was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the police as he could not fulfill their demand of Rs. 3,00,000/ as bribe. Accused wished to lead evidence in his defence and examined himself u/[SECTION] [ACT] as DW1 and his brother [ENTITY] as DW2.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of [ENTITY] and [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] Sh. [ENTITY], ld. Defence counsel for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories :
(a) [ENTITY] and her family members (b) Evidence with regard to the age of the prosecutrix (c) Medical and Forensic Evidence (d) Formal witnesses (e) Evidence of police officials of investigation (a) [ENTITY] and her family members 5. [ENTITY], the star witness of the prosecution in the present case was
examined as PW7, but she did not support the prosecution case and the relevant portion of her testimony is as under : "xxxxx It was either 27/28/29 in the month of November 2013 when the incident took place. On 28.11.2013 I was going to my school in the morning. When accused [ENTITY] met me on my way to school, he was on motorcycle and he offered me to give lift up to my school. He left me at the gate of my school and [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] gave me a chocolate also.
Next day on 29.11.2013 at about 07.00 am when I was going to my school accused [ENTITY] was waiting for me at Shani Bazar Road. He again offered me to give lift to me up to my school. I thought that there was no harm in going to school on the motorcycle of the accused and hence I went with him. The colour of the motorcycle of the accused of orange colour. Accused instead of taking me towards the school, turned his motorcycle to some other road.
Again accused took a turn on his motorcycle towards Shani Bazar Road and dropped me there after about - 1 hour and I came back home thereafter. I informed my mother about this incident. On hearing this, my mother fell ill and she started feeling giddiness. My mother called the police at 100 number. Police came at my home and took me and my mother to SGM Hospital. Accused [ENTITY] was also taken to the hospital by the police. Accused [ENTITY] was kept outside the hospital and polie took me and my mother inside the hospital in a room. Doctor asked my mother for my medical [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] examination to which my mother gave her consent. I was medically examined by the doctor in the hospital. Thereafter police told me that since my mother had called the police at 100 number and due to this reason I should act as per the dictates of the police. Police recorded my statement / complaint.
The prosecutrix identified her signatures on her statement/complaint Ex. PW7/A. As the witness did not depose as per the prosecution case, she was cross examined by ld. Addl. PP at length, but nothing favourable to the prosecution could come on the record. During the said crossexamination, she denied having stated to the police that accused had taken her to a room and bolted the room from inside and on the point of knife, he threatened her and committed repeated rape upon her forcibly or that he had left her at Shani Bazar Road thereafter. She also denied having stated to the police that accused had threatened her not to disclose about the incident to anyone, otherwise he would kill her and her family members or that after returning home, she did not tell anyone about the incident out of fear. She further stated that she had neither shown place of incident to the police nor any site plan was prepared by the IO at her instance, however, her [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] signatures were obtained by the police on one sketch. She also identified her signatures on site plan Ex. PW7/B. She denied that out of pressure of mohalla people, she had not deposed against the accused or in order to save the accused, she had intentionally and deliberately concealed the true facts from the Court. She volunteered to state that 'isne humare sath kuch kiya hi nahi hai'
6. PW12 [ENTITY], mother of the prosecutrix also did not support the prosecution case and deposed that probably, on 08.11.2013, prosecutrix had told her about accused having dropped at her school twice on two different dates and on hearing this, she got scared and called the police at 100 number, whereafter police had made inquiries from her. She further deposed about conducting of her daughter's medical examination vide MLC Ex. PW6/A and about recording of the statement of prosecutrix u/[SECTION] [ACT] by the police and deposed that prosecutrix had made the said statement before the learned MM as per the instructions of the police. She further deposed that prosecutrix had told her that the accused had not done anything wrong with her.
This witness was also crossexamined by learned Addl. PP and during the said crossexamination, she stated that police neither made any inquiry from her, nor recorded her statement. She corrected herself by stating that police had made inquiry from her regarding the present case. She admitted that she had made [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] a call to the police on 08.12.2013 in the late hours of night, however, she denied having stated to the police that on her asking, prosecutrix had told her that accused had taken her on his motorcycle on 29th on the pretext of dropping her at her school, but took her to an unknown place in a room and raped her on the point of knife and also threatened her not to disclose about the incident to anyone, otherwise, he would kill her and her family.
(b) Evidence with regard to age of the prosecutrix
7. The prosecution has examined PW1 Sh. [ENTITY], Teacher of [ENTITY], Nithari no. 11, New Delhi, who produced the school record regarding date of birth of the prosecutrix and deposed that as per the school record, she was admitted in the school in 3rd class, on the basis of admission form Ex. PW1/A, affidavit Ex. PW1/B and test sheet Ex. PW1/C and her date of birth was entered in the school record as 07.02.2000. She also proved the relevant entry in the admission register as Ex.PW1/D. As per the school record, the prosecutrix was aged about 13 years and 9 months, as on the date of incident.
The defence disputed the age of the prosecutrix and crossexamined PW1 and during the said crossexamination, the witness termed it correct that parents of the prosecutrix had not produced her birth certificate at the time of her admission [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] in the school. He further termed it correct that school did not carry out any independent verification of the date of birth of the prosecutrix.
(c) Medical and Forensic evidence
8. PW6 Dr. [ENTITY], SR Gynae, SGM Hospital, has proved the MLC of the prosecutrix as Ex. PW6/A by identifying the handwriting and signatures of Dr. [ENTITY], who had prepared the same and deposed that as per the MLC, hymen was found torn and no fresh external injury was seen on the person of patient.
9. PW10 Dr. [ENTITY], CMO has proved the MLC of the accused as Ex. PW10/A by identifying the handwriting and signatures of Dr. [ENTITY] and deposed that as per the MLC, after examination, Dr. [ENTITY] had given a report about the potency of the accused.
During crossexamiantion by learned defence counsel, the witness termed it correct that accused was not examined in his presence and he had no personal knowledge about the MLC Ex. PW10/A.
10. PW11 Dr. [ENTITY], deposed that on 09.12.2013, prosecutrix was brought to the casualty of the hospital by CATS no. 9 and was medically examined by Dr. [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] Abhinav, the then JR, under her supervision vide MLC Ex. PW6/A and after initial examination, she was referred to [ENTITY] for further examination and opinion.
11. PW16 Ms. [ENTITY], Senior Scientific Asstt. (Biology), FSL, Rohini, had examined the exhibits of the present case and proved the biological report as Ex. PW16/A and Allelic Date Report as Ex. PW16/B. She deposed that on examination, the alleles from the sources of exhibits 2 i.e. blood sample of accused were accounted in the alleles from the source of exhibit '1a' (vaginal swab) and '1b (vaginal slides) of the prosecutrix and thereafter, she opined that the "DNA profiling (STR analysis) performed on the exhibits provided was sufficient to conclude that the DNA profiles from the source of exhibits '2' (Blood sample of accused) and DNA profiles from the source of exhibit '1a' (vaginal swab) and '1b' (vaginal slides) of the prosecutrix were similar."
During crossexamination by learned defence counsel, the witness denied that while doing DNA Profiling, there was chance of a duplicate kit being made available to me. She volunteered to state that those kits were imported from U.S.A., under International Protocols. She admitted that it was not in her knowledge as to when the said kit was imported and under what licence was it imported. She volunteered to state that it was not part of her job to know about it [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] as there was other department, which used to look into it. She further stated that she had not mentioned in her report Ex. PW16/A about making verification with regard to the authenticity and genuineness of the kit before using it. She denied that STR Analysis technique did not always give correct results and same was obsolete technique. She further denied that she had not followed the proper procedure for conducting the DNA profiling.
(d) Evidence of Formal witnesses
12. PW2 Sh. [ENTITY], Lab Assistant of [ENTITY], B3, Paschim Vihar, New Delhi110063 has produced the school record regarding date of birth of the accused and deposed that as per the school record, accused was admitted in the school in 1st class, on the basis of admission form Ex. PW2/A and birth certificate Ex. PW2/B and his date of birth was entered in the school record as 12.08.1994 on the basis of admission form and birth certificate submitted by his mother. He also proved the relevant entry in the admission register as Ex.PW2/D and certificate issued by the school in this regard as Ex. PW2/E. It is relevant to mention here that accused did not dispute his age during the trial.
[CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY]
13. PW3 [ENTITY] was lying posted as Duty Officer in PS Aman Vihar at the relevant time and he proved the endorsement made by him on the rukka as Ex. PW3/A, computerized copy of FIR as Ex. PW3/B and certificate u/[SECTION] of [ACT] as Ex. PW3/C.
14. PW4 Sh. [ENTITY], LDC, Transport Department, Janakpuri, West ZoneI, Delhi produced the record pertaining to registration of motorcycle no. DL4SAX8305 and deposed that as per the record Ex. PW4/A, said motorcycle was registered in the name of [ENTITY] (mother of the accused).
15. PW5 Ct. [ENTITY], had taken the exhibits of the present case to FSL Rohini, vide [CASE NUMBER] and deposited the same there and deposed regarding the same. He also proved the copy of the RC as Ex. PW5/A and copy of the acknowledgment receipt of FSL as Ex. PW5/B.
16. PW8, [ENTITY], was working as MHCM at PS Aman Vihar at the relevant time and he proved the entries made by him in register no. 19 and 21 and copy of acknowledgment slip as Ex. PW8/A to Ex. PW8/D, which were made by him at the time of deposit of case property with him and at the time of sending the [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] same to FSL Rohini. He further deposed that on 17.04.2014, he had received the FSL result, two yellow envelops duly sealed with the seal of FSL and three exhibits through W/SI [ENTITY].
During crossexamination by learned defence counsel, he denied that the seal was not intact on the pullandas at the time of sending the same to FSL.
17. PW9, Sh. [ENTITY], ld. M.M, in his evidence has proved statement of prosecutrix as Ex. PW9/B, recorded by him under [SECTION] [ACT] on 09.12.2013.
(e) Evidence of police officials of investigation
18. PW13 SI [ENTITY], deposed that on 08.12.2013, at about 11:50 PM, after entrustment of DD No.34 A regarding rape, he along with L/Ct. [ENTITY] and [ENTITY] went to the spot i.e. C45, Agar Nagar, Prem NagarIII, Delhi, where he came to know that the prosecutrix and her parents had already been taken to SGM Hospital by CATS Ambulance and thereafter he along with the staff went to SGM Hospital and met the prosecutrix and her mother. He further stated that in the meanwhile, PW15 SI [ENTITY] also reached there and he after briefing her about the facts of the case, left for his duty.
[CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY]
19. PW15, W/SI [ENTITY] is the initial investigating officer of the case and she deposed that on 08.12.2013, after receiving information about DD no. 34A, Ex. PW15/A, she went to SGM Hospital, where she met PW13 SI [ENTITY], L/Ct. [ENTITY], [ENTITY], prosecutrix and her mother. She further deposed about getting medical examination of the prosecutrix conducted, about seizure of her exhibits vide seizure memo Ex. PW15/B, about getting her counseled, about recording the statement Ex. PW7/A of prosecutrix, about preparation of rukka Ex. PW15/C and about getting the case FIR registered through [ENTITY]. She further deposed that after registration of the case, PW14 W/SI [ENTITY] had reached at the hospital and she had handed over all the documents and exhibits of the present case as well as custody of prosecutrix to her.
During crossexamination by the learned defence counsel, the witness stated that she had reached SGM hospital at around 12.30 at night. She denied that accused was present in the hospital with the police at that time or his semen sample was obtained unofficially by the police officials in the hospital in the night of 8/9.12.2013. She further denied that manipulations were done with the sample of the prosecutrix after obtaining semen of the accused. She further denied that she had recorded incorrect statement Ex. PW7/A of the prosecutrix under pressure and obtained thumb impression of her mother on the same by misleading her. [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY]
20. PW14 W/SI [ENTITY] is the subsequent Investigating officer of the present case and she deposed that on 09.12.2013, after assignment of the further investigation of the case, she had gone to SGM Hospital, where she met SI [ENTITY], SI [ENTITY], L/Ct. [ENTITY], prosecutrix and her parents and PW15 SI [ENTITY] narrated the facts of the case to her and handed over the MLC, documents prepared by her as well as custody of prosecutrix to her. She further deposed about deposit of exhibits with the MHCM, about getting the statement Ex. PW9/B of the prosecutrix recorded u/[SECTION] [ACT] vide her application Ex. PW9/A. She further deposed about producing the prosecutrix before CWC, where she was counseled and her custody was handed over to her parents, about recording of statements of the witnesses, about arrest and personal search of the accused vide memos Ex. PW14/A and Ex. PW14/B respectively, about recording of his disclosure staement Ex. PW14/C, about preparation of the pointing out memo Ex. PW14/D of the place of incident at the instance of accused, about getting the accused medically examined, about seizure of the accused's exhibits vide seizure memo Ex. PW14/E and about deposit of exhibits with MHCM.
She further deposed that on 12.12.2013, she had taken the prosecutrix and her mother to House No.4, Ground Floor, A1 Extension, DK Road, Mohan Garden, opposite pillar No.752, Uttam Nagar, New Delhi, where she had prepared the site plan Ex. PW7/B at the instance of prosecutrix. She further deposed about [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] sending the exhibits of the present case to FSL Rohini through Ct. [ENTITY], about collecting the age proof of the prosecutrix from her school, about seizure of the same vide seizure memo Ex. PW14/E, about seizure of the motorcycle bearing no. DL4SAX8305 and its key and RC vide memo Ex. PW14/G, about collecting the age proof of the accused and about its seizure vide memo Ex. PW14/H, about getting verified the RC of the aforesaid motorcycle and about preparation of the charge sheet and filing the same in the court. She further deposed about collecting the FSL result and placing the same on record. She identified the said motorcycle as Ex. P1.
During crossexamination by learned defence counsel, she denied that she had tutored and pressurized the prosecutrix to make incorrect statement Ex.PW9/B before the learned MM. She further denied that accused had already been in police custody in the night of 08/09.12.2013 and was also taken to hospital in the night itself with the victim or she had falsely shown arrest of accused as on 09.12.2013 in the arrest memo. She denied having fabricated the disclosure statement of the accused with the help of witnesses mentioned in the same. She denied having fabricated a false pointing out memo Ex.PW14/D. She further denied that semen of the accused was taken with the help of police officials in the night of 08/09.12.2013 before his actual medical examination was done or [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] manipulations were done with the samples taken from the accused in order to implicate him falsely in the present case. She denied that she had filed a false charge sheet against the accused.
21. The accused examined himself as DW1 u/[SECTION] [ACT] and during his examination, he deposed that on 29.11.2013, at about 8.00 am, he had gone for some work on his motorcycle and on the way, prosecutrix met him and on her request, he dropped her near her school and after doing his work, he returned back to his home. He further deposed that 08.12.2013, in the night around 12.00, some police men came to his house and took him to Sanjay Gandhi Memorial Hospital, where prosecutrix and her mother were also present, outside the SGM hospital. He further deposed that his brother/DW2 also reached the hospital and thereafter, policemen had demanded Rs. 3,00,000/ (Rs. Three lacs only) from him and on his refusal to pay, he was asked by the policemen to give his semen sample in a plastic bottle and on their directions, he gave his semen sample in a plastic bottle and thereafter, the police men had told him that he will have to suffer for not paying bribe to them. He further deposed that he was falsely implicated in this case as he had refused to pay the bribe amount to the police officials, who were hand in glove with the prosecutrix and her mother.
[CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] He was crossexamined by ld. Addl. PP at length, but nothing favourable to the prosecution case could come on the record therefrom. He stated that his medical examination was conduced twice and the prosecutrix, her mother and his brother were present once and at that time, doctor had taken his semen sample.
22. DW2 [ENTITY] is the brother of the accused and he deposed on the line of his brother, about taking of semen sample of his brother by the police and about asking for bribe by the police officials.
Arguments advanced at bar
23. Before adverting to the arguments advanced at bar it would be appropriate to take note of the defence taken by the accused in the matter. The defence of the accused is apparent as disclosed by him in his statement recorded U/[SECTION] [ACT] which is reproduced as under.
Defence of the accused "xxx I am innocent. I have been falsely implicated in this case by the [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] police. This is a false case against me. I have nothing to do with the offence of the present case. [ENTITY] was/is residing near my house and our families were known to each other. On 29th November 2013, at about 8.00 am, I was going for some work, when the prosecutrix met me at Shani Bazar and she wanted me to drop her to school as she was late and thereafter, on her request, I had dropped her to School and I had returned home after doing my work. Thereafter, in the night of 08.12.2013, the police came and took me in a police gypsy to Sanjay Gandhi Hospital, where, I also saw the prosecutrix outside the hospital and she had also seen me outside the hospital. Outside the hospital, the police officials had demanded Rs. 3,00,000/ (Rs. Three lacs only) from me, otherwise, they had threatened me to falsely implicate me in the present case. My brother had also come to the hospital and I had informed him about the demand of Rs. 3,00,000/ by police. I did not agree to their demand as I was innocent. Thereafter, the police officials asked me to give my semen in a plastic bottle, which was given to me by them. I went inside in a room as per their directions and took out my semen in the [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] plastic bottle and handed over the same to them. Thereafter, I was taken to the police station in that night itself around 1.30 am. On 10.12.2013, I was again taken to Sanjay Gandhi Hospital at about 11.00 am and I was got medically examined and thereafter, on the same day, I was sent to Jail after producing in the court. I am totally innocent and I have been implicated falsely by the police by fabricated false statements of prosecutrix and her mother as I failed to pay bribe of Rs. Three lacs to them.
xxxx"
24. The accused has examined himself U/[SECTION] [ACT] and has also examined his brother DW2 Sh. [ENTITY] to the effect that the accused was taken to SGM Hospital along with the accused on 08.12.2013 where the policeman had made him to supply his semen sample to them .
Therefore, in this case it will have to be seen as to whether the accused has been able to prove his defence in the matter or not .
25. The Ld. Addl. P P for the [ENTITY] has very vehemently argued that despite the [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] prosecutrix and her mother having turned hostile to the prosecution case, with regard to the commission of repeated penetrative sexual assault upon the prosecutrix by the accused yet through the scientific evidence i.e. report of FSL Ex. PW 16/A and genotype analysis where from allelic data was generated, it has been conclusively proved that the accused had committed penetrative sexual assault upon the prosecutrix on 29.11.2013. It is further argued that the defence taken by the accused in the matter is an after thought as the accused has failed to establish on record that the biological samples in the matter were tampered with by the IO or any other police official and as such the conviction of the accused for the charged offences has been prayed for.
26. Per contra, the Ld. Defence Counsel Sh. [ENTITY] advocate has argued that the accused has been falsely implicated in this case by the police by manipulating the biological samples, as the IO of the case had a grudge against the accused for having not paid Rs.3 lacs as demanded from the accused for exonerating him from this case. It is further argued that the prosecutrix and her mother have not supported the case of prosecution and as such the accused is liable to be acquitted in the matter. Further argument has been made that there is a huge unexplained delay in recording of FIR in the matter which clearly goes on to establish that the true version of the matter has not come on record. [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY]
27. I have given thoughtful consideration to the arguments advanced at bar and gone through the entire material on record .
Plea regarding delay in recording of FIR
28. The Ld. Defence counsel has very vehemently argued that the alleged incident of penetrative sexual assault upon the prosecutrix had taken place in the morning of 29.11.2013, however the matter was reported to the police on 08.12.2013 at about 11:50 p.m. vide DD No.34 A Ex. PW 15/ A and the FIR in the matter was recorded at 3:30 a.m. on 09.12.2013. The Ld. counsel has emphasised that there is no explanation on record with regard to the aforesaid huge delay in reporting the matter to the police and as such the veracity of the case set up against the accused by the police is in jeopardy. In support of his aforesaid contention he has referred to the judgment titled as Rajinder Prasad & Anr. vs. [ENTITY], in [CASE NUMBER], decided on 19.05.2014, wherein the Hon'ble High Court of Delhi, has been pleased to hold that : "xxx In criminal trail, one of the cardinal principles is registration of earliest information as FIR. As observed by Hon'ble Supreme Court in [PRECEDENT] [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] and Ors., MANU/SC/1166/2013 : (2014) 2 SCC1, the object sought to be achieved by registering the earliest information as FIR in interalia twofold:One, that the criminal process is set into two motion and is well documented from the very start ; and Second, that the earliest information received in relation to the commission of a cognizable offense is recorded so that there cannot be any embellishment, later. In case there is delay in lodging the FIR, the court looks for plausible explanation for the delay in lodging the report. The reason is obvious. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished the version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming to the police or before to the court, the court always views the allegation with suspicion and looks for satisfactory explanation. If no such explanation is found, the delay is treated as fatal to the prosecution case.
[CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY]
29. No doubt that the court shall have to bear in mind that different people /witnesses react differently in differently situations, whereas some become speechless, some start wayling, while some other run away from the scene and yet there are some, who may come forwarded with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction.
30. Per contra, ld. Addl. PP has relied upon the judgment passed by the Hon'ble Supreme court in the case of Ramdas & Ors. Vs. [ENTITY] of Maharashtra, (2007) 2 SCC 170, wherein it has been held : "xxxx
24. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. [ENTITY] of Hyderabad [(1955) 1 SCR 1083 :
AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.
31. I have duly considered the law laid down in the aforesaid judgments. I do not find any justification whatsoever on record for the delay in reporting the matter to the police by the family members of the prosecutrix. There is nothing on record to even remotely suggest that the prosecutrix or her family members were under any kind of stress or threat from the accused in not reporting the matter of police on 29.11.2013 itself.
Plea as to whether the accused can be convicted merely on the basis of scientific evidence when the ocular evidence does not support the prosecution case
32. The Ld. Defence Counsel has taken me through the evidence of DW1 , DW2, PW7 and PW12 and has emphasised that PW7 and PW12 have duly corroborated the evidence of DW1 and DW2 to the effect that the accused was taken to the police station as well as to the hospital by the police in the intervening [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] night of 8/9.12.2013. Whereas the case of the police is that the accused was arrested on 09.12.2013 at about 10:30 p.m. The accused as DW1 and his brother as DW2 have leveled allegations against the unknown police officials of PS Aman Vihar to have forced the accused to give his semen sample to them in the intervening night of 8/9.12.2013, which has been misused by the police in tampering with the biological exhibits in the present case. The Ld. Defence Counsel has very vehemently argued that from 09.12.2013 till 27.12.2013 the biological exhibits of prosecutrix and from 10.12.2013 till 27.12.2013 the biological exhibits of accused were available in the malkhana of PS and tampering therewith by smearing the exhibits of prosecutrix with the semen of the accused cannot be ruled out. The Ld. defence counsel has further argued that the alleged penetrative sexual assault upon the prosecutrix had taken place on 29.11.2013 whereas her biological exhibits were collected by the Doctors on 09.12.2013 and during the aforesaid period the prosecutrix in all probability might have taken bath, washed her private parts and changed clothes and as such the presence of reminisce of the biological fluids of the accused in her private part would have been next to impossible. Per contra, the Ld. Addl. P P for the [ENTITY] has very vehemently argued that PW6 in her evidence has categorically stated that the exhibits of the prosecutrix after obtaining the same from her body were sealed in the hospital itself and the same were handed over to the police as such, the possibility of [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] tampering with the same is not at all there. She has further pointed out contradictions in the evidence of DW1 to the effect that in his examinationinchief he has stated that his semen sample was taken by the police whereas in his cross examination he has stated the same to have been taken by the Doctor. She has further argued that the charge sheet in the matter was filed on 07.02.2014 and the FSL result was received on 17.04.2014 and the copies thereof were supplied to the accused . The accused had come to know of the FSL result being positive and as such under legal advise he has taken a false defence. Had there been any truth in his defence he would have approached the higher police officials or would have filed an application before this court pointing out the conduct of the police officials in forcing him to give his semen sample.
33. I find substance in the argument of the Ld. Defence Counsel that the possibility of the FSL result being positive in the matter would have been negligible particularly after the exhibits of the prosecutrix having been obtained after a period of almost 10 days. The [ENTITY] did not get this aspect clarified from expert PW16 as to whether the traces of the biological fluid of the accused being found in the private parts of the prosecutrix even after a period of almost 10 days was forensically possible . At this stage, the possibility of tampering with the biological exhibits cannot be totally ruled out .
[CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY]
34. There is another aspect of the matter which is very significant. The IO had prepared a spot identification memo Ex. PW 14/B of the place where the accused had taken the prosecutrix and had committed penetrative sexual assault upon her. There is nothing on record to even remotely suggest that the IO had made an endeavour to know as to whether the accused had access to the said place. There is virtually no investigation with regard to the ownership or possession of the said place. There is further no material to suggest that the efforts were made by the IO to recover condom allegedly worn by the accused at the time of incident or the knife with which he had threatened the prosecutrix. Seeing the matter from another angle in Ex. PW 7/A the prosecutrix had categorically stated that at the time of committing penetrative sexual assault upon her by the accused he had used condom . If, that is to be believed even otherwise there would have little chance of the semen of the accused being present at the private parts of the prosecutrix that too when the condom might have burst .
35. Therefore, the possibility of the tampering with the biological exhibits in the matter cannot be ruled out and as such conviction of the accused merely on the basis of forensic evidence would be a dangerous proposition particularly when the prosecutrix and her mother have not at all supported the case of prosecution. The [CASE NUMBER] : FIR No. 624/13 : PS Aman Vihar : [ENTITY] V/s [ENTITY] accused is accordingly held entitled to the benefit of doubt and is acquitted accordingly.
The file be consigned to Record Room after complying with the provision of [SECTION] [ACT].
Announced in the open Court ([ENTITY]) on 15.03.2016 Addl. Sessions Judge01 (NorthWest): Rohini District Courts: New Delhi