IN THE COURT OF SH. VIRENDER BHAT, A.S.J.
(SPECIAL FAST TRACK COURT),
DWARKA COURTS, NEW DELHI.
Unique Case ID No.02405R0068862013.
State Vs. Sunder Shyam,
S/o Sh. Hari Chand,
R/o H. No.N/199, Raghubir Nagar,
Date of Institution : 08.3.2013.
FIR No.27 dated 09.1.2013.
U/s. 376/506 IPC.
Date of reserving judgment/Order : 27.1.2014.
Date of pronouncement : 29.1.2014.
1. The above named accused has been facing trial for having committed the offences punishable u/s.376/506 IPC.
2. The case of the prosecution, in brief, is that the prosecutrix namely ‘R’ (real name withheld in order to conceal her identity) alongwith her parents have been residing as a tenant in one room on the second floor of House No.P-24, Chankya Place Part-II, New Delhi, owned by the accused. The prosecutrix was studying in 6th Class. Her father works as a driver and her mother is a housewife. On 03.11.2012 the prosecutrix had gone to the house of a neighbouring aunt to participate in religious prayer (Kirtan). When she returned home at about 5.30 p.m. or 6 p.m., she met the landlord i.e. the accused near the room on the ground floor. Since she proceeded towards her room, the accused caught hold of her from behind, gagged her mouth with one hand and took her to a room on the right side of the ground floor. Accused laid her on a cot, closed the door and took off her Salwar forcibly. The prosecutrix raised alarm in order to save herself but the accused threatened her that in case she made noise, he would kill her. The accused took off his pant and inserted his urinary organ (Peshab Wali Jagah) into her urinary organ (Peshab Wali Jagah) forcibly. He then threatened her that in case she narrated the incident to anybody, he would kill her as well as her family. The prosecutrix was terrified and as such she did not tell her mother anything about the incident. She narrated the incident to her mother on 04.1.2013. On hearing this, her mother gave her some medicines, on consuming which prosecutrix felt intense pain in her abdomen. The condition of the prosecutrix worsened on 06.1.2013 and she started bleeding. This continued on 07.1.2013 also. The mother of the prosecutrix took her to DDU Hospital on 09.1.2013 where she was admitted and she came to know later on that her pregnancy was aborted.
3. It is further case of the prosecution that on 09.1.2013 Duty Constable at DDU Hospital had conveyed information to the police station that a girl named ‘R’, who has been raped by her landlord and was brought to the hospital by her mother, was admitted vide MLC No.567/13 and her pregnancy was terminated and the fetus had been preserved. The information was recorded as DD NO.36B and was marked to SI Gaje Singh for suitable action. Accordingly, SI Gaje Singh alongwith Const. Virender reached DDU Hospital and found the prosecutrix under treatment there. Later on, the information about the incident was also conveyed to SI Kusum Lata, on the directions of the SHO and she also reached DDU Hospital. SI Kusum Lata recorded the statement of the prosecutrix in the presence of her mother in DDU Hospital and got the FIR registered. The exhibits received from the doctor were seized by SI Kusum Lata and then deposited in the Malkhana. She recorded the statement of the witnesses u/s.161 Cr.PC. Accused came to be arrested on 10.1.2013. He made disclosure statement admitting that he had sexually assaulted the prosecutrix. The accused was got medically examined in DDU Hospital and the exhibits handed over by the doctor alongwith sample seal were seized. All the exhibits were then sent to FSL Rohini for forensic examination as well as DNA profiling. The prosecutrix was produced before the concerned Magistrate on 04.2.2013, who recorded her statement u/s.164 Cr.PC. Documents regarding the date of birth of the prosecutrix were obtained from her school which revealed her date of birth as 28.8.2000.
4. After completion of the investigation, Charge Sheet was prepared and laid before the concerned court.
5. Upon committal of the case to the court of Sessions, Charges u/s.376 IPC and u/s.506 IPC were framed against the accused on 03.4.2013. Accused pleaded not guilty to these charges and accordingly trial was held.
6. The prosecution has examined 15 witnesses to establish the guilt of the accused. Ld. APP also tendered in evidence the DNA report Ex.PA. The accused was examined u/s.
313 Cr.PC on 13.12.2013 wherein he admitted that the prosecutrix alongwith her family is residing as a tenant in his house but denied that he had sexually assaulted the prosecutrix and claimed false implication. The accused chose not to lead any evidence in defence.
7. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire record.
8. Ld. APP submitted that the prosecutrix has fully supported the case of the prosecution and her testimony is corroborated by her mother and is consistent with her statements recorded during the course of investigation. She further submits that there remains no doubt that the prosecutrix was raped by the accused and therefore, he is liable to convicted.
9. On the other hand, Ld. Counsel for the accused pointed out various discrepancies in the testimony of the prosecutrix and improvements made by her upon her earlier statements and submitted that her testimony does not inspire any confidence. According to him, no trust can be placed upon the deposition of the prosecutrix and same deserves to be rejected. He further submitted that scientific evidence in the nature of DNA report also does not support the case of the prosecution as it has been found that the DNA extracted from the fetus of the prosecutrix does not match with the DNA of the accused. The Ld. Counsel argued that the prosecution has thus failed to prove the charges against the accused beyond doubt and accused is liable to be acquitted.
10. The prosecutrix has been examined as PW3. She deposed that on 03.11.2012 an aunty residing in the neighbourhood, in whose house her father was employed as a driver, had called her for some work. After finishing the work, when she reached the gate of their home at about 5 p.m. their landlord i.e. the accused was standing there. The accused caught hold of her from behind. She tried to shout but he gagged her mouth and took her to his room on the right side of the ground floor of the house. The accused then took off her Salwar and committed rape upon her. She cried a lot but nobody heard her cries as nobody was present on the ground floor and at the first floor. She deposed that it was the third day of her menstrual period. Accused then threatened her that in case she disclosed the incident to anybody, he would beat her and implicate her father in a case. She came out of the room and remained at the ground floor for about five months as she had become terrorised. Then she went to her room on the second floor of the house but as she was deeply frightened, she could not disclose the incident to her mother. When the accused used to come upstairs to turn on the water tap etc., he used to stare upon her, as a result of which, she used to become terrorized and was not in a position to narrate the incident to her parents. Ultimately, after about one month, she mustered courage and narrated the incident to her mother. However, her mother was unable to narrate the incident to her father on account of fear of the accused. Thereafter on 07.12.2012 she felt pain in abdomen and told her mother about the same, who got some tablets from a medical shop, which she consumed. From the next day, she started bleeding from her private part. Her abdomen had got swollen and her mother took her to DDU Hospital on 08.12.2012 or 09.12.2012 where her abortion was conducted. She remained in the hospital for one night. Police had made inquiries from her in the hospital and also recorded her statement Ex.PW3/A. She further deposed that after about one month, she was produced before a Ld. Magistrate, who recorded her statement which she proved as Ex.PW3/B. In answer to a leading question put to her by the Ld. APP with the permission of this court, she clarified that she had narrated the incident to her mother in the month of January, 2013 i.e. after about two months of the incident.
11. In the cross examination, PW3 admitted that the house in which they live is open from two sides. She admitted that all the tenants of the house use the gate on the back side of the house towards 40 ft. gali. She also admitted that immediately on entering the gate, there are stairs on the right side leading to upper floor. She further deposed that she had bled from her private part at the time she was being raped by the accused and her Salwar had got blood stains. There was a bedsheet on the bed but blood did not fell on the bedsheet as her Salwar was beneath her. She further denied the suggestions put by the Counsel for the accused.
12. The mother of the prosecutrix has been examined as PW5. She deposed that on 03.11.2012 at about 5 p.m. her daughter left home saying that she is going to meet Pradhan aunty in their neighbourhood. According to her, prosecutrix returned about 7 p.m. and did not tell her anything. She deposed that the prosecutrix did not tell anything to anybody till 04.1.2013, on which date she felt intense pain in her abdomen and was bleeding from her private part. She went to a nearby medical shop and bought some medicines for the prosecutrix, which the prosecutrix consumed. However, the prosecutrix did not get any relief till 4 or 5 days and then she took her to DDU Hospital on 09.1.2013. After examination of the prosecutrix in the hospital, she was told that prosecutrix is carrying 2½ months old fetus in her womb. The doctor conducted abortion of the prosecutrix. Police was informed by the doctor. Police officials reached the hospital and recorded the statement of the prosecutrix. She asked the prosecutrix how it had happened and the prosecutrix told her that she was raped by their landlord. In the cross examination, she deposed that they are residing on the second floor of the house belonging to the accused for the last two years. The switch of the water motor is situated at the ground floor and is operated by the landlord. She deposed that the landlord comes to the second floor of the house to receive rent from them. She further deposed that on 04.1.2013 the prosecutrix had started bleeding from her private part before she administered medicines to her. She denied the suggestion having been mentioned to the police in her statement that the prosecutrix had started bleeding after consuming medicine. She did not recollect the name of the shop from where she had brought medicine. The shopkeeper had not given him any bill. She had not handed over those tablets to the police official. She further deposed that the prosecutrix had told her on 04.11.2012 that the accused had raped her but she did not say so to her husband. She also did not lodge any complaint to the police as she did not know what to do. She did not talk about this to any person in the neighbourhood. She did not ask her daughter (prosecutrix) from 03.11.2012 to 04.1.2013 as to whether she was having regular menstrual period. She further deposed that she had taken the prosecutrix to a private doctor when she felt pain in the abdomen. She apprised her husband about the rape incident in the hospital on the day when the prosecutrix was admitted there.
13. PW9 is the father of the prosecutrix. According to him, he was told by his wife on 10th day of March, 2013 that their daughter has been raped by their landlord about three months ago. He did not recollect the name of the landlord.
14. The prosecution case is that the prosecutrix had become so frightened from the accused on account of his threats that she could not disclose the incident of rape to her parents till 04.1.2013. Prosecutrix has deposed that the accused had threatened her not to disclose the incident to anybody or else he would beat her and implicate her father in a case. She further deposed that the accused used to stare upon her whenever he came upstairs to turn on the water tap, as a result of which she continued to remain terrorized and not in a position to narrate the incident to her parents. However, her mother (PW5) has deposed in her cross examination that the switch of the water motor is situated on the ground floor, which is operated by the landlord and the landlord used to come to the second floor of the house only to receive rent from them. This is a major contradiction between the testimony of the two star witnesses. Therefore, it becomes highly improbable that the prosecutrix would have remained terrorized from the accused for complete two months after the date of incident. As per the case of the prosecution itself, she was 16 years of age at that time and hence not of a tender age.
15. As per the statement of PW5 in her examination in chief, she came to know for the first time on 09.1.2013 in DDU Hospital, when the doctor, after examining the prosecutrix told her that the prosecutrix is carrying on 2½ months old fetus in her womb. However, in her cross examination, she has contradicted herself by stating that the prosecutrix had told her on 04.11.2012 that the accused had raped her and she did not say so to her husband or any person in the neighbourhood and also did not lodge any complaint. The conduct of PW5, the mother of the prosecutrix, is highly unnatural and indicates that there is something more in the story of the prosecution than what meets the eye. It is thus evident that she had come to know about the incident of rape, which had taken place with her daughter, on the next day of the incident only but she did not take any action on the same and maintained an errie silence. Evidently, she was not under any threat from the accused. Therefore, I see no reason for her silence and not reporting the matter to the police and not apprising her husband about the same. PW5 further says that when the prosecutrix felt pain in her abdomen and started bleeding from her private part on 04.1.2013, she bought from some medicines from a nearby shop and administered the same to the prosecutrix. It indicates that she was aware about the pregnancy of the prosecutrix and she had administered medicines to her for the termination of the pregnancy, as a result of which the prosecutrix had started bleeding. The said conduct of the mother of the prosecutrix casts serious doubts on the whole prosecution case.
16. The case of the prosecution, as noted herein-above, is that the prosecutrix had become pregnant on account of forcible sexual intercourse by the accused on 03.11.2012 and ultimately her pregnancy was aborted in DDU Hospital on 09.1.2013. The fact that the prosecutrix had become pregnant and was carrying 6 to 8 weeks old fetus in her womb, is not disputed from the side of the accused. The testimony of the prosecutrix would reveal that she had become pregnant only on account of the forcible sexual intercourse by the accused as she does not state anywhere that she engaged in sexual intercourse with anybody else also even before the incident of rape or thereafter. However, the DNA report Ex.PA contradicts the case of the prosecution. It is the case of the prosecution itself that the blood sample of the accused as well as the fetal tissue of the fetus carried by the prosecutrix in her womb was sent to FSL Rohini for DNA profiling and comparison. The aforesaid DNA report clearly shows that the DNA isolated from the fetal tissue did not match in any manner with the DNA isolated from the blood sample of the accused. Therefore, as per DNA report, the accused had not fathered the child carried by the prosecutrix in her womb. It is probable that somebody else was having sexual relations with the prosecutrix.
17. It cannot be disputed that in the past 20 years, DNA typing has enhanced the ability of the forensic scientists to characterize biological evidence and has greatly influenced the way the law enforcement community conducts criminal investigations. DNA plays an important role in modern forensic science. Today, DNA fingerprinting has become one of the primary methods of identifying people and solving crimes. DNA stands for Deoxyribonucleic Acid. It is the genetic material of a human cell. It can also be described as the blueprint of an organism. DNA is contained in blood, semen, skin cells, tissues, organs, muscle, brain cells, bone, teeth, hair, saliva, mucus, perspiration, fingernails, urine, feces etc.
18. The chemical structure of everyone’s DNA is the same. The only difference between people is the order of base pairs. There are so many millions of base pairs in each person’s DNA that every person has a different sequence. From these sequences every person could be identified solely by the sequence of their base pairs. Instead, scientists are able to use a shorter method due to repeating patterns in DNA. These patterns do not, however, give an individual “fingerprint” but they are able to determine whether two DNA samples are from the same person, related people, or non related people. This is called DNA fingerprinting or profiling.
19. The DNA report is a very strong and reliable piece of evidence in a criminal case. The DNA profiling is used world wide for identification of criminals, more particularly in rape and murder cases. In view of the unique characteristics of human DNA, the conviction of an accused or his acquittal can be based exclusively upon the DNA report, even if conclusions reached therein are contrary to the occular testimony of the witnesses. Unlike conventional finger prints that occur only on the finger tips and can be altered by a surgery, the DNA finger print is the same for every tissue and organ of a person. It cannot be altered by any known treatment. The Supreme Court also has in Santosh Kumar Vs. State (2010) 9 SCC 747 accepted DNA report as being scientifically accurate and an exact science.
20. I find it difficult to ignore the DNA report Ex.PA, which totally exculpates the accused. The report throws in probability that the prosecutrix was having sexual intercourse with somebody else and it is that person, who impregnated her and she, for the reasons best known to her, concealed these facts. It is also evident from the testimony of the mother of the prosecutrix that she was aware about the pregnancy of the prosecutrix and probably about the identity of the real person responsible for the same and for some ulterior motive, she concealed the said fact from her husband even.
21. The aforesaid inconsistencies in the testimony of the prosecutrix, contradictions between her testimony and that of her mother, the unnatural conduct of her mother and the findings contained in DNA report point only towards the innocence of the accused.
22. In view of the aforesaid discussion, the accused is liable to be acquitted and is hereby acquitted as such.
Announced in open (VIRENDER BHAT)
Court on 29.1.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.