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Section 451 in The Indian Penal Code
Section 376 in The Indian Penal Code
Section 323 in The Indian Penal Code
Section 34 in The Indian Penal Code
Section 506 in The Indian Penal Code

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Delhi District Court
State vs Sarvjeet Jaswal And Others. -:: ... on 22 November, 2013
Author: Ms. Nivedita Sharma
                                                -:: 1 ::-



           IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
                   ADDITIONAL SESSIONS JUDGE
                 (SPECIAL FAST TRACK COURT)-01,
                 WEST, TIS HAZARI COURTS, DELHI


Sessions Case Number                                           : 58 of 2013.
Unique Case ID Number                                          : 02401R0428652012.


State
                                 Versus
1. Mr.Sarvjeet Jaswal
   Son of Mr.Mahavir Singh,
   Resident of H.No.72, Gali No.3, Vikas Nagar, Delhi.

2. Mr.Surender,
   Son of late Mr. Mangal,
   Resident of H.No.72, Gali No.3, Vikas Nagar, Delhi.

3. Ms. Darshana Devi,
   Wife of Mr. Sarvjeet Jaswal,
   Resident of H.No.72, Gali No.3, Vikas Nagar, Delhi.


First Information Report Number : 155/2012
Police Station Ranhola,
Under sections 376, 511, 506, 451, 323 and 34 of the Indian Penal Code.


Date of filing of the charge sheet before                               : 10.09.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal                                 : 06.10.2012.
in the Sessions Court
Date of transfer of the file to this Court                              : 16.01.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on                                                  : 22.11.2013.
Date of judgment                                                        : 22.11.2013.
Sessions Case Number : 58 of 2013.
Unique Case ID Number : 02401R0428652012.
FIR No. 155/2012, Police Station Ranhola,
Under sections 376/511/506/451/323 and 34 of the Indian Penal Code.
State versus Sarvjeet Jaswal and others.                                    -:: Page 1 of 67 ::-
                                                 -:: 2 ::-




Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
            State.
            Accused Mr.Sarvjeet Jaswal and Mr.Surender have been
            produced from judicial custody.
            Accused Ms.Darshana Devi on bail.
             Mr. Vikas Padora, Advocate, Amicus Curiae for all the
             accused persons.
            Ms.Shubra Mehndiratta, counsel for the Delhi Commission
            for Women.
************************************************************

JUDGMENT

"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.

1. This is a case which shocks one's sensibilities, not because the prosecutrix is a young girl but because two of the accused persons are senior citizens of advanced age of about 62 years who apparently suffer from several age related problems besides joint diseases and it becomes an onerous task of the Court to decide who is the victim.

2. In the present matter, considering the advanced age of the accused Mr.Sarvjeet Jaswal and Ms.Darshana Devi, a sincere endeavour has been made to dispose off the case expeditiously.

Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 2 of 67 ::-

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3. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim who is allegedly subjected to unwanted physical contact by a perverted male, known to her.

4. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 3 of 67 ::-

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v. Gangula Satya Murthy, JT 1996 (10) SC 550.

PROSECUTION CASE

5. Mr. Sarvjeet Jaswal, Mr.Surender and Ms.Darshana Devi, all the accused persons, have been charge sheeted by Police Station Ranhola, Delhi for the offences under sections 376, 511, 506, 451, 323 and 34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 10.07.2012 at about 6.45pm to 7.00am at H. No.A-34 B, Vikas Vihar, Vikas Nagar, Gali No.3, near Pioneer Convent School, Uttam Nagar, Delhi within the jurisdiction of Police Station Ranhola, all the accused persons in furtherance of their common intention committed house tress pass in order to commit an offence and also gave beating to complainant/prosecutrix (name withheld to protect her identity) and voluntarily caused simple injuries upon her and also threatened her to kill and accused Mr.Sarvjeet Jaswal attempted to commit rape upon prosecutrix.

CHARGE SHEET AND COMMITTAL

6. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 10.09.2012 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 06.10.2012 of the learned Sessions Judge, Delhi. Subsequently, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 16.01.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.

Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 4 of 67 ::-

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CHARGE

7. After hearing arguments, charge for offence under sections 451, 323, 506 and 34 of the IPC was framed against all the accused persons and the charge under sections 376 and 511 of the IPC was framed against accused Mr.Sarvjeet Jaswal vide order dated 16.01.2013.

CASE          OF       THE          PROSECUTION,                      ALLEGATIONS            AND
DOCUMENTS

8. The prosecution story unveils with the DD No.6A dated 10.07.2012 (Ex.PW10/A) being made regarding a quarrel on which SI Amit Dutt Sharma (PW10) with Ct.Ram Kishan (not examined by the prosecution) going to the house of the prosecutrix. On 10.07.2012, the prosecutrix (PW5) gave complaint (Ex.PW5/A) in her own handwriting to IO/SI Savita. Rukka (Ex. PW14/A) was prepared and was handed over to ASI Pradeep Kumar (PW1) for lodging of the FIR. The FIR (Ex. PW1/A) was lodged by ASI Paradeep Kumar (PW1) and IO/SI Savita made endorsement on the same. The prosecutrix pointed out the place of occurrence and site plan (Ex PW14/B) was prepared at her instance. On identification of the prosecutrix, accused Mr. Sarvjeet and Mr.Surender were arrested on 10.07.2012 from their house Vikas Nagar vide arrest memo (Ex. PW3/A and Ex PW3/C) and accused Ms.Darshana Devi was arrested on 11.07.2012 vide arrest memo (Ex. PW5/B). The personal search of accused Mr.Sarvjeet was taken vide personal search memo (Ex PW3/B) and disclosure statement (Ex. PW3/E) was recorded. They were sent to SGM hospital for medical examination where they were medically Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 5 of 67 ::-

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examined vide MLC (Ex. PW2/A). The exhibits pertaining to accused Mr.Sarvjeet and Mr.Surender were seized vide seizure memo (Ex.PW14/E and Ex. PW4/A). On 10.07.2012 IO/SI Savita (PW14) deposited one sealed pullanda and one sample seal vide serial no. 192 in register no. 19 (Ex.PW9/A) and on 11.07.2012 W/SI Savita had deposited three sealed pullandas and one sample seal pertaining to accused Mr.Surender and two sealed pullandas along with one sample pertaining to accused Mr.Sarvjeet vide serial no. 193 in register no. 19 (Ex.PW9/B). On 16.07.2012, the entire case property along with sample seals were taken from the malkhana by Ct. Manish (PW8) vide RC no. 142/21/12 (Ex. PW9/C) and deposited in the office of FSL. The exhibits of this case were examined by the FSL expert (PW 13) Mr. V.Sankaranryanan, Senior Scientific Officer vide his detailed FSL reports (Ex.PW13/A) and allelic data (Ex.PW13/B).

9. The allegations against the accused persons are that on 10.07.2012 at about 6.45 p.m to 7.00 a.m at house no. A-34 B, Vikas Vihar, Vikas Nagar, Gali no. 3 near Pioneer Convent School Uttam Nagar, all of them committed house trespass in order to commit an offence and also gave beating to complainant /prosecutrix and caused simple injuries upon her and threatened to kill her. Accused Mr.Sarvjeet Jaswal attempted to committed rape upon prosecutrix. On 10.07.2012 at 7.00 a.m, when prosecutrix (PW5) was sleeping in her room, the accused had threatened and blackmailed the prosecutrix and her family members as they wanted the family of the prosecutrix to vacate the house purchased by family of the prosecutrix in the name of her brother Mr. Pradeep Kumar from one Mr. H.S Dill. All the accused entered in the room of the prosecutrix and accused Ms.Darshana Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 6 of 67 ::-

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Devi bit on right hand of the prosecutrix and there were nail marks on the hand and back of the prosecutrix which had been made by accused Mr.Sarvjeet Jaswal. Accused Mr.Sarvjeet Jaswal along with co-accused (Darshna Devi) and another man forcibly tried to remove her salwar but they were not successful and prosecutrix tried to shout to her father for help but could not as the man who was holding her hands had also put his hand on her mouth. The prosecutrix (PW5) was able to kick accused Mr.Sarvjeet Jaswal on his private parts while trying to escape and her father came inside and tried to save her.

PROSECUTION EVIDENCE

10. In order to prove its case, the prosecution has examined as many as 15 witnesses i.e. ASI Pradeep Kumar, the Duty Officer who had recorded the formal FIR of the case, as PW1; Dr. Bina, who had medically examined the accused Mr.Sarvjeet Jaswal and Mr.Surinder, as PW2; Ct. Jai Singh, who is witness of investigation, as PW3; HC Ram Gopal, who had taken the accused Mr.Surender to Sanjay Gandhi Memorial Hospital for medical examination, as PW4; prosecutrix, as PW5; Mr.Prem Sagar, father of the prosecutrix, as PW6; Ct. Surender, who had taken the accused Mr.Sarvjeet Jaswal to Sanjay Gandhi Memorial Hospital for medical examination, as PW7; Ct. Manish, who deposited the case property to the office of FSL, as PW8; HC Devender, MHCM of the present case, as PW9; SI Amit Dutt Sharma, who a witness of investigation, as PW10; Dr. Rajesh, who had medically examined the prosecutrix, PW11; ASI Savita, who had taken the prosecutrix to Sanjay Gandhi Memorial Hospital for her medical examination and also called the counsellor for counselling of the Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 7 of 67 ::-

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prosecutrix, as PW12; Mr. V. Sankaranaryanan, FSL expert, as PW13; SI Savita, the investigation officer of the present case, as PW14; and Dr. Asha, medical officer, who had medically examined the prosecutrix, as PW15.

11. The accused have preferred not to cross examine PWs 1, 2, 3, 4, 7, 8, 9, 13 and 15 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by all the accused persons.

STATEMENTS OF ALL THE ACCUSED PERSONS UNDER SECTION 313 OF THE CR.P.C. AND DEFENCE EVIDENCE

12. In their respective statements under section 313 of the Cr.P.C., all the accused persons have controverted and rebutted the entire evidence against them submitting that they are innocent and have been falsely implicated in this case.

13. Accused Mr.Sarvjeet Jaswal has stated that on 10.7.2012, he met Mr. Prem Sagar around 7.00 a.m in morning and had verbal altercation with him over the property. Mr. Prem Sagar is living in said property which was in name of his wife Ms.Darshana Devi and was fraudulently taken from them by Mr. H.S.Dill and given to Mr. Prem Sagar. He had verbal arguments with Mr. Prem Sagar and prosecutrix was also along with him who said " tum laungo ne dukhi kar rakha hai, ab tumhe maja chakhati huin". Hearing the noise, someone called PCR and PCR officials took him and Mr. Prem Sagar to the Police Station. The prosecutrix also came there and started shouting that accused Mr.Sarvjeet Jaswal is troubling her father Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 8 of 67 ::-

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again and again on property. Since the matter was of property, police didn't pay much attention. At this stage, prosecutrix started abusing him and said that he has raped her. On her allegation, she was sent to medical examination. In evening, one lady constable told IO of this case that there is no rape. On insistence of the prosecutrix, IO prepared a case of attempt to rape. Police officials called his wife. Accused Ms.Darshana Devi and accused Mr.Surender came to Police Station. His wife and son were made to sit in Police Station all night. Prosecutrix and her father were allowed to go last evening itself. Due to the property dispute, the prosecutrix has falsely implicated him, his wife and his son in this false case, as he had intended to prosecute Mr. Prem Sagar for cheating and fraud. His wife had also given complaint regarding this to the police on 03.06.2011.

14. Accused Ms.Darshna Devi and Mr.Surender have also similarly stated in their respective statements.

15. All the accused persons have preferred to lead evidence in their defence and have examined Ms.Darshana Devi as DW1.

ARGUMENTS

16. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the accused persons.

Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 9 of 67 ::-

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17. The Additional Public Prosecutor for the State has requested for convicting all the accused persons for having committed the offences under sections 451/323/506/34 of the IPC and for convicting accused Mr.Satrvjeet Jaswal for the offence under section 376/511 of the IPC, submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.

18. The amicus curiae for all the accused persons, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. The accused There is an unexplained delay in the lodging of FIR. There is no medical or forensic evidence against the accused. The complaint made by the prosecutrix is concocted as it was given at 6.30 pm after due deliberation. The prosecutrix has given false evidence. The clothes of the prosecutrix worn by her at the time of alleged incident were not produced in evidence but some other clothes were produced. The T-shirt/top was cut with scissors and not torn. The evidence of the prosecutrix as well as other prosecution witnesses is unreliable as it suffers from various contradictions and inconsistencies. The investigation has not been properly conducted.

DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

19. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 10 of 67 ::-

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made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.

20. Under this sphere, I now proceed to test the submissions of both the sides.

Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 11 of 67 ::-

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TESTIMONIES OF THE PROSECUTION WITNESSES

21. It is necessary to discuss and analyse the testimony of the witnesses of the prosecution.

Material Witness-Prosecutrix

22. PW5, the prosecutrix has deposed that earlier she was residing at A-34/B, Vikas Nagar, Gali No. 3, Near Poineer Convent School, Uttam Nagar, New Delhi along with her family members. On 10.07.2012 at 07.00 a.m. she was present in her room. She was sleeping. Suddenly 4-5 persons entered in her room. She knew only two persons namely Mr.Sarvjeet Jaswal and his wife Ms.Darshna Devi. They had come to her house four times earlier and threatened and blackmailed her and her family as they wanted them to vacate the house which has been purchased by them in the name of her brother Mr. Pradeep Kumar from one Mr. H.S. Dill. Some persons were holding her hands and accused Mr.Sarvjeet Jaswal and his wife were standing in front of her. She was still lying down on the bed as she had been sleeping when these people entered into her room. Accused Ms.Darshna Devi bit on her right hand. She had nail marks on her hand and back which had been made by accused Mr.Sarvjeet Jaswal. Accused Mr.Sarvjeet Jaswal his wife Ms.Darshna Devi and another man forcibly tried to remove her salwar but they were not successful. She tried to shout to her father for help but could not as the man who was holding her hands had also put his hand on her mouth. She was able to kick accused Mr.Sarvjeet Jaswal on his private parts while trying to escape. Her father came inside and tried to save her. There were some persons with her father when he came inside and they Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 12 of 67 ::-

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were trying to beat her father. As the man who had put his hand on her mouth had taken his hand off and she managed to shout, then all the neighbours came to her house. In the meanwhile, some of the miscreants ran away. Accused Mr.Sarvjeet Jaswal, his wife and one more person remained behind. Someone called the police on which the police had arrived but did nothing. She has identified all of them by face and has stated that she knows the names only of accused Mr.Sarvjeet Jaswal and Ms.Darshna Devi. She did not know the name of the third accused Mr.Surender. She had already given three complaints against accused Mr.Sarvjeet Jaswal and Ms.Darshna Devi to the police but they had not done anything. The police took her to a hospital, but she did not remember the name where she was medically examined. Her statement was recorded by the police but she did not know the place where it was recorded as she was taken into jeep. The police had recorded her two statements. The second one was recorded in Police Station. Her complaint to the police is Ex. PW-5/A.

23. She has been cross examined by the Additional Public Prosecutor for the State as she was hostile wherein she has deposed that it is correct that she had told the police in her statement that after they had purchased the house in November, 2011, accused Ms.Darshna with her husband and some other persons used to come to her house and threatened the entire family. She has also admitted that on 06.11.2011, 01.2.2011 and 04.03.2012 they got lodged different DD entries in PS in this regard. She has admitted that she had also told the police on 10.07.2011 accused Mr.Sarvjeet Jaswal his wife and some others had forcibly entered into the Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 13 of 67 ::-

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house and had beaten her. She has admitted that she had told to the police when accused Mr.Sarvjeet Jaswal had tried to rape her, her clothes were torn in the process. She has denied that she had told the police that there was one person by the name of Surender who had also beaten her. (She was confronted with portion A to A of Ex. PW-5/A where it is so recorded). The police had told the name of Mr.Surender to her. She has admitted that she had told the police that after the incident all the accused persons are threatened to kill her. She has admitted that she had told the Doctor that she suffered from migraine and had taken medicine for the same due to which she was drowsy and this fact could not be told to the police. As she was having her exams at that time, she had studied till late in the night and thereafter she had taken her medicine and slept. She has admitted that she had told the doctor in the history that she had undergone a sexual and physical assault. She has admitted that the doctor had taken her clothes and other samples at the time of her examination. She has admitted that due to lapse of time and as she was drowsy at the time of incident, she could not tell about the above facts. She has admitted that all the three accused persons were arrested by the police in her presence. The arrest memos of accused Mr.Sarvjeet (Ex.PW3/A), accused Mr.Surender (Ex.PW3/C) and accused Ms.Darshana (Ex.PW5/B) were prepared in her presence. She has admitted that due to lapse of time she had forgotten certain facts and did not depose about the same in the Court on 16.02.2013. She can identify her clothes which were taken by the doctor at the time of her medical examination, if shown to her. The prosecutrix identified one ladies underwear, pajama and one top (Ex.P1, P2 and P3 respectively) to be same which she was wearing at the time of incident and which had been Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 14 of 67 ::-

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seized by the doctor. (The stitching of the Pajama Ex.P2 at the base where both the legs joined has come off and the top Ex.P3 is torn from the front as well as the back side. The defence counsel has submitted that it is not torn but it has been cut with scissors.) She has been cross examined at length on behalf of the accused.

Public Witness

24. PW6, Mr. Prem Sagar, has deposed that earlier he was residing at 34-B, Vikas Vihar, Vikas Nagar along with his family. He had purchased the said house from H.S Dill in the name of his son Mr. Pradeep Kumar in the year November, 2011. He had put lock on the said house on 06.11.2011 and went to Santoshi Mata Mandir along with his family. Accused Mr.Sarvjeet Jaswal entered into the said after breaking the locks. He came to know this fact when he returned from the temple and he found accused Mr.Sarvjeet Jaswal and his wife present inside his house along with one Rikshapullar. They had bolted the door from the inside. He called the police and when police came accused went on the roof of the same house. Police official went to the roof of the said house by using a ladder and open the door from inside. Accused Mr.Sarvjeet Jaswal and Rikshapullar fled away from the roof. His wife was apprehended by the police. Accused Ms.Darshna Devi wife of accused Mr.Sarvjeet Jaswal was brought the Police Station. He was also taken away by the police to the Police Station. After completing some writing work possession of the said house was restored to him by the police. During 28-30.01.2012 accused Mr.Sarvjeet Jaswal along with his wife and some other persons came to his house and his moustache was pulled out by one Mr.Rahul, Property Dealer who was Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

FIR No. 155/2012, Police Station Ranhola, Under sections 376/511/506/451/323 and 34 of the Indian Penal Code. State versus Sarvjeet Jaswal and others. -:: Page 15 of 67 ::-

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accompanying the accused in the presence of police. Police official again took him to the Police Station and they lodged his report. Accused was also called by the police but he did not turn up.

25. On 10.07.2012 at about 06.30 - 07.00 a.m. he was present at his house with his family. All the accused persons i.e. Mr.Sarvjeet Jaswal, his wife Ms.Darshna and the rikshawala along with 15-20 persons forcibly entered into his house. He has identified all the three accused persons i.e. Mr.Sarvjeet Jaswal, his wife Ms.Darshna and the rikshawala (accused Mr.Sarvjeet Jaswal, Ms.Darshna Devi by their names and faces and the third accused (Surender) as rikshawala and stated that he does not know his name.) Accused persons along with 15-20 persons forcibly entered into his house. The persons accompanying the accused caught hold of his neck and pressed it. All the three accused persons entered into the room of his daughter (prosecutrix). He escaped from those persons and raised alarm. Some persons of the locality came to his house. The persons accompanying the accused had fled away but all the three remained in their house. When he went inside the room of his daughter, he found that she was bleeding from her hand and her clothes were found torn. His daughter told that she was given teeth bite by accused Ms.Darshna. She was bleeding from her left upper arm. She told me that the rikshawala (Mr.Surender) had tried to rape her while accused Mr.Sarvjeet Jaswal and Ms.Darshan Devi had held her. His daughter was taken by the police to some office and also to the hospital for medical examination. He had narrated the whole facts to the police which he has deposed today.

Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

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26. He has been cross examined by Additional Public Prosecutor for the State as he was hostile wherein he has admitted that he had told the police in his statement that since the date of purchase of aforesaid house, accused Mr.Sarvjeet Jaswal along with his wife and some other persons used to visit their house and threatened them to vacate the said house and given them money. He has admitted that he had told the police in his statement (Ex.PW6/A) that prior to the present incident accused had visited their house along with his wife and other persons and threatened him to vacate the premises and pay money to them and he had made several complaints in this regard in Police Station. He has denied that when he entered in the room of his daughter, he found accused without lungee and he was clinging to his daughter. (He was confronted with portion A to A of Ex. PW-6/A where it is so recorded). He has admitted that he had told the police that the clothes including the salwar of my daughter were torn. He has denied that he had told the police that he had pushed accused Mr.Sarvjeet Jaswal away from his daughter and told him that he should be ashamed as he tried to rape his daughter. (He was confronted with portion B to B from Ex. PW-6/A where it is so recorded.). It was the Rikshawala (Mr.Surender) who had tried to rape his daughter. He has denied that all the three accused person had been apprehended by the police in his house The rikshawala had run away. Accused Mr.Sarvjeet Jaswal and his wife Ms.Darshna Devi were apprehended at the spot by the police. He has admitted that he had forgotten the aforesaid facts due to lapse of time. He has been cross examined at length on behalf of the accused.

Medical And Forensic Evidence Sessions Case Number : 58 of 2013.

Unique Case ID Number : 02401R0428652012.

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27. PW2, Dr. Bina, Medical Officer had deposed that she had medically examined the accused Mr.Sarvjeet Jaswal vide MLC (Ex.PW2/A) and accused Mr.Surender vide MLC (Ex.PW2/B).

28. PW11, Dr. Rajesh, Medical Officer had deposed that he had medically examined the prosecutrix vide MLC (Ex.PW11/A) and thereafter referred her to Gyanae Department for further examination.

29. PW15, Dr. Asha, SR Obs & Gynae in SGM Hospital had deposed that she had medically examined the prosecutrix vide MLC (Ex.PW11/A) but inadvertently she had not put her signatures in the MLC.

30. PW13, Mr.V.Sankaranaryanan, Senior Scientific Officer (Biology) had deposed that he had examined six sealed parcels and prepared the detailed report (Ex.PW13/A) and the allelic data is (Ex.PW13/B).

Police Witnesses-Formal

31. PW1, ASI Pradeep Kumar is the Duty officer who had recorded the FIR (Ex.PW1/A) on the basis of rukka. After registration, the original rukka and copy of FIR were given to SI Savita for investigation

32. PW4, HC Ram Gopal, had deposed that he had taken the accused Surender to SGM Hospital for his medical examination. After his medical examination, the doctor handed over him three sealed pulandas and one sample seal from the hospital, same were handed over to IO, who seized the same vide seizure memo (Ex.PW4/A).

Sessions Case Number : 58 of 2013.

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33. PW7, Ct Surender, had deposed that he had taken the accused Mr.Sarvjeet Jaswal to SGM Hospital for his medical examination. After his medical examination, the doctor handed over him MLC, two sealed pulandas and one sample seal, same were handed over to IO, who seized the same vide seizure memo (Ex.PW7/A).

34. PW8, Ct. Manish, had deposed that he had taken the FSL form, RC and sealed pulendas from MHCM to the FSL to deposited the same in the office of FSL. Thereafter, he received copy of RC and FSL slip, same were handed over to MHCM.

35. PW9, HC Devender Singh is the MHC (M) in the present case. He had proved the relevant entries in Register no.19 and 21 as (Ex.PW9/A to Ex.PW9/C).

36. PW12, ASI Sarita had deposed that on the direction of SI Amit she went to the spot i.e. A-34, Vikas Nagar from where she had taken the prosecutrix to SGM hospital for her medical examination. After her medical examination, doctor handed over a copy of the MLC, exhibits and sample seal , the same was handed over to IO, who prepared the seizure memo (Ex.PW12/A). She also called counsellor Ms. Magdleen Marin from NGO to PS and got prosecutrix counseled by her. The counselling report given by Ms. Magdleen Marin handed over to IO SI Savita. Thereafter, her statement under section 161 of the Cr.P.C. was recorded.

Sessions Case Number : 58 of 2013.

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Police Witnesses-Material

37. PW10, SI Amit Dutt had deposed that on 10.07.2013 he had received one DD No.6A dated 10.07.2013 regarding quarrel at about 7.00 am marked to him. He along with Ct. Ram Nishan went to A-34 B, Vikas Vihar, Vikas Nagar near Pioneer Convent School. One girl/Prosecutrix met him and told that one Mr.Sarvjeet had tried to rape her and two other persons including wife of Mr.Sarvjeet and other man had giving her beatings. Prosecutrix had given a written complaint (Ex.PW5/A) to him. He telephoned in PS Ranhola and requested to send woman police official at the PS. After sometime WASI Sarita came to the spot to whom he handed over the complaint and DD No.6A (Ex.PW10/A).

38. PW3, Ct. Jai Singh has deposed that on 10.07.2012, he alongwith SI Savita went to H. No.34-B, Vikas Vihar, Vikas Nagar, Delhi along with prosecutrix and thereafter they went to H. No.72, Gali No.3, Vikas Nagar. Accused Mr.Sarvjeet son of Mr.Mahavir met the police team at the said house and he was interrogated. On the pointing out of prosecutrix, accused Mr.Sarvjeet was apprehended and arrested in the present case. The arrest memo of accused Sarvjeet (Ex.PW3/A) and personal search memo (Ex.PW3/B) were prepared. Thereafter, other accused Mr.Surender son of Mr.Mangal was also arrested and his arrest memo (Ex.PW3/C) and personal search memo (Ex.PW3/D) were prepared. IO also recorded the disclosure statements of both the accused (Ex.PW3/E and Ex.PW3/F). Thereafter, both the accused were taken to Sanjay Gandhi Hospital for their medical examination. After medical examination, IO received certain pulendas and sample seal. Thereafter both the accused Sessions Case Number : 58 of 2013.

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persons were brought to Police Station and put into lock up.

39. PW14, SI Savita, the Investigation Officer of the present case, has deposed that on 10.07.2012 as per the instructions of SHO, PS Ranhola, was handed over DD no. 6A, MLC of prosecutrix and sealed exhibits were handed over to her by ASI Sarita. At that time she was in PS Ranhola and prosecutrix was also produced before her. Prosecutrix gave her a complaint (Ex. PW5/A) which is in her own handwriting. She made endorsement on the same and prepared rukka (Ex. PW14/A). She handed over rukka to duty officer and got the case registered. After registration of case, the seizure memo of the exhibits produced by ASI Sarita before her was prepared (Ex. PW12/A). The exhibits were deposited by her in malkhana, PS Ranhola. Thereafter, she along with prosecutrix and Ct. Jai Singh reached the spot i.e. house no A-34, Vikas Vihar, Vikas Nagar and she prepared site plan (Ex. PW14/B) at the instance of the prosecutrix. Thereafter she along with Ct. Jai Singh, prosecutrix and her father went to the house of accused persons at Vikas Nagar where all the accused persons namely Mr.Sarvjeet, Mr.Surender and Ms.Darshna Devi were present. They all were identified by the prosecutrix. She arrested accused Mr.Sarvjeet and Mr.Surender on the same day i.e. 10.07.2012 but since it had become quite dark being night time so she did not arrest accused Ms.Darshna Devi and had arrested her on next day i.e. 11.07.2012. The arrest memos of accused Mr.Sarvjeet, Mr.Surender and Ms.Darshna Devi (Ex. PW3/A, Ex PW3/C and Ex. PW5/B respectively) and personal search memos (Ex. PW3/B, Ex. PW3/D and Ex. PW14/C respectively) were prepared. She recorded disclosure statements of all the three accused persons (Ex. PW3/E, Sessions Case Number : 58 of 2013.

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Ex.PW3/F and Ex. PW14/D). All the three accused persons have been correctly identified. All the three accused persons were sent to SGM hospital for their medical examination. After the medical examination of these accused persons, they were brought back to Police Station Ranhola and she seized the exhibits pertaining to accused Mr.Sarvjeet and Mr.Surender produced before her by Ct. Surender and HC Ram Gopal and prepared the seizure memos (Ex. PW14/E and Ex. PW4/A). She deposited the case property in malkhana, Police Station Ranhola. She recorded the statement of all the witnesses including the statement of prosecutrix and her father under section 161 of the Cr.P.C. Next day, all the accused persons were produced in the Court and sent to judicial custody. On 13.07.2012, the exhibits of the case were received from malkhana and deposited by here in the office of FSL, Rohini. She collected photocopy of three documents as the age proof of prosecutrix (Mark A, mark B and mark C). In the complaint, the prosecutrix had alleged that she had earlier made one complaint against accused Mr.Sarvjeet and Darshana Devi dated 06.11.2011 regarding incident of quarrel happened with her. She had collected photocopy of the said complaint from her which was made by her brother Mr. Pardeep Kumar to SHO PS Ranhola (Mark D). During investigation, complainant and her brother Mr. Pardeep Kumar had submitted photocopy of few more complaints against accused persons made to the police (Mark E, mark F and mark G). After completing the investigation, chargesheet was prepared and filed before the Court. The FSL result running into three pages was collected during the pendency of the case and the same is Ex.PW14/F (all the accused and their Amicus Curiae admitted the FSL report and did not have any objection to an exhibit being put on it). She has Sessions Case Number : 58 of 2013.

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been cross examined at length on behalf of the accused.

TESTIMONIES OF THE DEFENCE WITNESSES

40. It is important to elaborate the evidence of the defence witness also.

41. DW1, Ms. Darshana Devi had deposed that prior to the abovesaid address she used to stay at House no. 34 B, Vikas Nagar, Delhi with her husband Mr.Sarvjeet Jaiswal and their adopted son Mr. Surender. The said property was purchased in her name from one Mr. Nand Kishore Tyagi on 06.09.1993. She had brought the original general power of attorney dated 06.09.1993, photocopy of the same was Mark-DW1/X. She had also brought original agreement to sell and purchase along with affidavit and receipt. Photocopies of the same are Ex.DW1/A, DW1/X1 and mark DW1/X2. The said property was fraudulently taken from her by her real sister Ms. Prabha in connivance with one Mr. H.S Dill. The said property was sold to one Mr. Prem Sagar by her sister Ms. Prabha and Mr. H.S Dill. Regarding the abovesaid matter, she had made complaint to the Police Station Ranhola but not action was taken by the police on her complaint (mark DW1/X3). They had several times spoken to Mr. Prem Sagar regarding the said property but he insisted that he has purchased from Mr. H.S Dill legally and there used to be quarrel and tensions between her husband Sarvjeet Jaiswal and Mr. Prem Sagar. It is because of this reason that the daughter of Mr. Prem Sagar has implicated them in this false case, as her husband intended to prosecute Mr. Prem Sagar for cheating and fraud. She has been cross examined at length by the Additional Public Sessions Case Number : 58 of 2013.

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Prosecutor for the State.

IMPORTANT ISSUES

42. The important issues and the points in dispute are being discussed hereinafter.

IDENTITY OF THE ACCUSED

43. There is no dispute regarding the identity of all the accused persons who has been identified by the prosecutrix. It is also not in dispute that they were known to each other prior to the lodging of the FIR. They are also named in the FIR. All the accused persons have been identified in the Court by the prosecutrix (PW5), her father (PW6) as well the police witnesses of investigation.

44. Therefore, the identity of accused Mr.Sarvjeet Jaswal, Ms.Darshana Devi and Mr.Surender stands established.

AGE OF THE PROSECUTRIX

45. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint (Ex.PW5/A) she has not furnished her age. In her evidence before the Court, the prosecutrix has stated her age as 20 years.

46. Therefore, it is clear that the prosecutrix was above 18 years of age (major) at the time of the alleged incident.

Sessions Case Number : 58 of 2013.

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VIRILITY OF THE ACCUSED MR.SARVJEET JASWAL AND MR.SURENDER

47. Accused Mr.Sarvjeet Jaswal and Mr.Surender had been medically examined by Dr.Bina (PW2) vide MLC (Ex.PW2/A and Ex.PW2/B) wherein it is opined that "There is nothing to suggest that this person is not capable of performing the act of sexual intercourse"

48. These reports indicate that accused Mr.Sarvjeet Jaswal and Mr.Surender are virile and are capable of performing sexual act and are capable of committing the act of rape.

MLC OF THE PROSECUTRIX-INJURIES

49. The MLC of the prosecutrix (Ex.PW11/A) which is dated 10.07.2012 shows that "hymen torn (old). The prosecutrix was conscious and oriented. She had abrasion on her right arm, linear abrasion over right arm and no other fresh external injury was seen.

50. In the history, the prosecutrix had told the doctor that "sexual and physical assault by four persons at her own home, early in the morning around 7:00 A.M. on 10/7/12. Acc. to patient she took medicine for migraine at night & early morning (4:00 am) & she was under effect of those drugs & doesn't know what happened. She started having bleeding 2-3 hrs after that. Acc. to the patient she knows one of those persons named Sarabjeet Jaiswal."

51. The prosecutrix, as PW5, has deposed that accused Ms.Darshna Sessions Case Number : 58 of 2013.

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Devi bit on her right hand. She had nail marks on her hand and back which had been made by accused Mr.Sarvjeet Jaswal. However, as per her MLC, none of these injuries have been found on her body by the doctor.

52. In fact, Dr.Rajesh (PW11) who had examined her has deposed regarding the abrasions that "It is possible that the same were caused due to grazing against a wall. It is possible that the same could be self inflicted." Absence of bite marks and nail marks shows that the claim of the prosecutrix regarding accused assaulting her is false which is further proved by the evidence of PW11 who has deposed that the abrasions could be self inflicted. She also did not have any fresh injury which also indicates that the alleged incident never occurred.

53. The father of the prosecutrix (PW6) has deposed that she was bleeding from her hand. His daughter told that she was given teeth bite by accused Ms.Darshna. She was bleeding from her left upper arm. However, the MLC (Ex.PW11/A) shows otherwise. The prosecutrix, as per the MLC, does not have any teeth bite, any bleeding from her left hand and left upper arm. In fact, she does not any injury on her left arm and hand.

54. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 Sessions Case Number : 58 of 2013.

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wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no fresh injury on the body of the prosecutrix (as is clear from her MLC-Ex.PW11/A), the probability is that rape or assault were not committed.

55. Further, the prosecutrix, in her cross examination by the Additional Public Prosecutor, has deposed that she had told the Doctor that she suffered from migraine and had taken medicine for the same due to which she was drowsy. However, even this part of her evidence is falsified by the evidence of Dr.Rajesh (PW11) and Dr.Asha (PW15) who have mentioned in her MLC (Ex.PW11/A) that she was conscious and oriented.

56. The prosecutrix has also not given the names of the medicines prescribed to her for migraine nor the prescription nor the name of the treating doctor and these facts also falsify her version of taking medicines for migraine at night or being under their effect or being drowsy when the alleged incident was committed.

57. These facts indicate that the prosecution version regarding the prosecutrix being assaulted and beaten are false MLCS OF THE ACCUSED MR.SARVJEET JASWAL AND MR.SURENDER-ABSENCE OF INJURIES

58. The prosecutrix has deposed that she had kicked accused Mr.Sarvjeet Jaswal at the time of the alleged incident. Also when she was Sessions Case Number : 58 of 2013.

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allegedly assaulted, the accused should also have received some injuries. However, the MLCs of accused Mr.Sarvjeet Jaswal and Mr.Surender (Ex.PW2/A and Ex.PW2/B) do not show that they any injury. The MLC of accused Ms.Darshan Devi although is not proved by the prosecution, but even it finds mention that there is no fresh injury seen.

59. If the prosecutrix was assaulted by the accused persons and she had tried to resist, then even the accused should have suffered some injuries, maybe minor.

60. Absence of any injury on the bodies of all the accused persons indicates that no incident, as alleged by the prosecution, ever occurred.

FSL REPORTS

61. The FSL expert (PW13) has proved the FSL reports (Ex.PW13/A and Ex.PW13/B) which show as follows:

"RESULTS Alleles drom Exhibit "2B' i.e. blood stained gauze cloth piece (of Surender), Exhibit '3A' i.e. blood stained gauze cloth piece (of Sarvjeet) were not accounted in Exhibit '1i' i.e. underwear (of prosecutrix-name mentioned but withheld to protect her identity) CONCLUSIONS The STR analysis performed on the source of exhibits '2B' i.e. blood stained gauze cloth piece (of Surender), Exhibit '3A' i.e. blood stained gauze cloth piece (of Sarvjeet) are not accounted in the exhibit '1i' i.e. underwear (of prosecutrix-name mentioned but withheld to protect her identity)"

62. It is clear from the FSL reports that the blood of accused Sessions Case Number : 58 of 2013.

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Mr.Sarvjeet Jaswal and Mr.Surender was not found on the underwear of the prosecutrix. There was absence of any human semen on the underwear of the prosecutrix. These facts indicate that no case of attempted rape is established against the accused since the semen and blood of the accused was not detected on the exhibits pertaining to the prosecutrix. It further indicates that there was no rape attempt on the prosecutrix, as claimed by her.

DELAY IN FIR

63. The contention of the amicus curiae for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.

64. It is claimed by the accused that the FIR has been lodged on 10.07.2012 at 18:35 hours while the allegations made by the prosecutrix are that she was assaulted and raped on 10.07.2012 at about 7 am. The delay in lodging of the FIR has been not explained by the prosecution.

65. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible.

66. As per the complaint, Ex.PW5/A which is made on 10.07.2012, the time of the alleged incident is not mentioned. However, in the rukka (Ex.PW14/A) the time is mentioned as 6.45 am to 7.00 am. DD No.6A (Ex.PW10/A) mentions the time of receipt of information as 6.52 am. Sessions Case Number : 58 of 2013.

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67. Here it may be mentioned that PW5, the prosecutrix, has deposed that when she had made her first complaint, all the accused persons were already apprehended. PW6, father of prosecutrix, has admitted that the first complaint was given around 6 PM at PS. PW10, SI Amit Dutt Sharma, has deposed that on receipt of DD No.6A (Ex.PW10/A) he had gone to the spot of incident and the prosecutrix had given the written complaint (Ex.PW5/A) to him. PW12, ASI Sarita, who had got the prosecutrix medically examined, has deposed that the prosecutrix did not give her any written complaint. PW14, SI Savita, has deposed that the prosecutrix had given her the written complaint.

68. It appears from the above that when SI Savita came into the picture, the MLC of the prosecutrix was already prepared on which time of medical examination is mentioned as 3.25 pm. If the written complaint (Ex.PW5/A) was given to PW14, it must have been after the prosecutrix was brought to the Police Station after her medical examination, and the time may be evening, which is also deposed as 6 pm by the father of the prosecutrix. From the FIR (Ex.PW1/A), it becomes apparent that the complaint (Ex.PW5/A) was made at 6.35 pm.

69. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be Sessions Case Number : 58 of 2013.

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satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.

70. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:

"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.

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71. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.

72. The Hon'ble Apex Court in the judgment reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.

73. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:

"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."

74. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:

"No doubt delay in lodging the FIR in sexual assault cannot Sessions Case Number : 58 of 2013.

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normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"

75. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:

"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"

76. I find on perusal of the record that indeed the criminal action was swung into motion after about 11 hours of the incident as the incident occurred at 6.45 am to 7.00 am while the complaint was made at 6.00 pm (as per evidence of PW6) and at 6.35 pm (as per FIR-Ex.PW1/A). The MLC of the prosecutrix was prepared at 3.25 pm. No explanation is coming forth from the prosecution as to why the FIR was not lodged at the earliest. It indicates that there was a possibility of deliberation and consultation before finally the written complaint (Ex.PW5/A) was made to the police. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.

Sessions Case Number : 58 of 2013.

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77. Therefore, it can be said that the FIR was lodged after a considerable delay which is unexplained and is fatal to the prosecution story.

ASSAULT AND ATTEMPT OF RAPE OR QUARREL

78. DD No.6A (Ex.PW10/A), which is the earliest information, at 6.52 am, given to the police, clearly mentions that it was about a jhagra (quarrel). However, the written complaint (Ex.PW5/A) mentions about trespass, assault, beating and attempt of rape. There is no whisper of the fact as to how the "attempt to rape" complaint, if given at 7 AM, did not reach police station all day and reached only PS at 6.30 PM when FIR registered and the other offences were added. No explanation is coming from the prosecution regarding the discrepancies about the alleged offences in the two informations (Ex.PW10/A and Ex.PW5/A). No explanation is coming forth from the prosecution why the allegation of rape was not mentioned in DD No.6A when rape is much more serious offence than that of quarrel.

79. These facts indicate that the version of the prosecutrix is doubtful regarding the alleged offences being committed by the accused persons.

NAMES AND NUMBER OF THE CULPRITS

80. The names and numbers of the culprits are not mentioned in DD No.6A (Ex.PW10/A). In the MLC of the prosecutrix (Ex.PW11/A), it is mentioned that she had told in the history that four persons entered in her house and attempted rape. She knew only Saravjeet by name. In her Sessions Case Number : 58 of 2013.

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complaint (Ex.PW5/A), it is mentioned that Ms.Darshana Devi, Mr.Sarvjeet and Mr.Surender with few musclemen (kuch gunde) entered her house. In her evidence before the Court, the prosecutrix as PW5, has deposed that 4-5 persons entered her room out of which she knew Mr.Sarvjeet Jaswal and his wife Ms.Darshana Devi and she identified Mr.Surender by face as rickshawalla. PW6, father of the prosecutrix, has deposed that Mr.Sarvjeet Jaswal, Ms.Darshana Devi, and Mr.Surender along with 15-20 persons entered his house.

81. Here it may also be mentioned that the prosecutrix (PW5) has deposed that even on the date of her evidence before the Court, she did not know the name of accused Mr.Surender. In the circumstances, as the name of accused Mr.Surender is mentioned in her complaint (Ex.PW5/A) the same shows that there has been some manipulation in adding his name.

82. It becomes clear from the MLC (at 3.25 pm) that she knew only one name i.e. of accused Mr.Sarvjeet. However, in her complaint (Ex.PW5/A) at 6.35 pm, the prosecutrix has she given the names accused Ms.Darshana Devi and Mr.Surender also. It is certain that if she had known the names of all the accused persons, she would have mentioned them in the history in her MLC. There is no whisper of the fact as to how the attempt to rape complaint, if given at 7 AM, did not reach police station all day and reached only PS at 6.30 PM when FIR was registered. It is clear that the complaint was given only after prosecutrix came from hospital to PS at 6.30 PM Sessions Case Number : 58 of 2013.

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83. The discrepancies in the names and numbers of the culprits indicate that the false prosecution of all the accused persons cannot be ruled out.

WHETHER THERE IS PROPRTY DISPUTE

84. The prosecutrix and her father have deposed about a history of property dispute regarding A-34/B, Vikas Nagar, Gali No.3, Uttam Nagar, New Delhi between the family of the prosecutrix and the family of the accused. The prosecutrix and her father have claimed to have purchased the property in question from Mr.H.S.Dill. The accused have claimed that the said property was in the name of accused Ms.Darshana Devi and had been fraudulently taken by her sister Ms.Prabha and Mr.H.S.Dill. The family of the prosecutrix had made complaints (Mark A to D) against the accused earlier also regarding this property. Accused Ms.Darshana Devi had also made complaint (Ex.DW1/X3) to the police.

85. However, it is clear that it is an admitted fact by defence and prosecution that the property where prosecutrix is presently residing with her family was earlier resided by accused persons. Accused Darshana Devi had produced original papers of said property to show that they used to reside there. The prosecution has admittedly not produced any sale papers of said property (from Darshana Devi to Prem Sagar or his family). It is also clear that since the property of accused persons was now in possession of family of prosecutrix, there was verbal dispute going always going on between them earlier. Even IO of the case has admitted in her evidence that there is property dispute between parties.

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86. Therefore, it is clear that indeed there was a property dispute going on between the family of the prosecutrix and the accused which further indicates that the possibility of false prosecution of the accused persons cannot be ruled out.

THE OFFENCES UNDER SECTIONS 451/323/506/34 OF THE IPC

87. It is clear from the evidence of the Dr.Rajesh (PW11) that it is possible that the injuries of the prosecutrix are self inflicted. The abrasions could be caused due to grazing against a wall. There were no fresh injuries (MLC and evidence of PW11 discussed in detail above).

88. It is also clear from the evidence of Dr.Bina (PW2) and the MLCs of accused Mr.Sarvjeet Jaswal and Mr.Surender (Ex.PW2/A and Ex.PW2/B) that they did not have any fresh injuries, infact they do not have any injuries.

89. The site plan (Ex.PW14/B) prepared by the IO SI Savita (PW14) at the instance of the prosecutrix that the same is not of the spot of incident but is of the area of where the house of the prosecutrix is situated. It is not even signed by the prosecutrix. Moreover, so as to prove the spot of incident the IO has not prepared the site-plan of the room. IO has made site- plan of road outside house, which is of no relevance. PW14 has admitted in her evidence that she did not prepare the site plan of the room where the alleged offence was committed. In absence of site-plan of the room, the Sessions Case Number : 58 of 2013.

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place of incident stands not proved.

90. PW5 has not deposed anything about the accused persons threatening to kill her.

91. PW6 has deposed in his cross examination that "It is correct that whenever I had a quarreled with accused Sarvjeet Jaswal it was always a verbal arguments." and this part of the deposition clearly proves that there was no trespass, nor assault nor threat.

92. All these facts point that when neither the prosecutrix nor the accused had any injuries, there was no trespass by the accused into the house of the prosecutrix nor there was any assault on her due to which she was given beatings and consequently there was no question of any threat being extended by the accused to the prosecutrix.

ALLEGATION OF SECTION 376/511 OF THE IPC

93. The prosecutrix, in her complaint (Ex.PW5/A) has stated that accused Mr.Sarvjeet Jaswal attempted to rape her.

94. In her MLC (Ex.PW11/A) the prosecutrix had told the doctor that she had been sexually and physically assaulted and one of the culprits was accused Mr.Sarvjeet.

95. As PW5, the prosecutrix has deposed that accused Mr.Sarvjeet Jaswal his wife Ms.Darshna Devi and another man forcibly tried to remove Sessions Case Number : 58 of 2013.

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her salwar but they were not successful. She was able to kick accused Mr.Sarvjeet Jaswal on his private parts while trying to escape. She does not even mention about any attempt of rape by accused Mr.Sarvjeet Jaswal.

96. In her cross examination by the Additional Public Prosecutor (she was declared hostile), she has admitted that she had told to the police when accused Mr.Sarvjeet Jaswal had tried to rape her, her clothes were torn in the process.

97. PW5, in her cross examination by the accused, has deposed that in her first complaint she had not mentioned that accused Mr.Sarvjeet had opened his lungi and come over her.

98. PW6, father of the prosecutrix, has deposed that his daughter (prosecutrix) had told him that the rikshawala (Mr.Surender) had tried to rape her while accused Mr.Sarvjeet Jaswal and Ms.Darshan Devi had held her. He was declared hostile and in his cross examination by the Additional Public Prosecutor, he has denied the suggestion that he had told the police that he had pushed accused Mr.Sarvjeet Jaswal away from his daughter and told him that he should be ashamed as he tried to rape his daughter. (He was confronted with portion B to B from Ex. PW-6/A where it is so recorded.). It was the Rikshawala (Mr.Surender) who had tried to rape his daughter. It is also pertinent to mention here that he has denied making any statement to the police.

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99. It has already been discussed above that there is no medical or forensic evidence against the accused persons. Neither the prosecutrix nor the accused have any injuries to indicate that the alleged offence was ever committed. The blood samples of the accused were not matching with those found on the underwear of the prosecutrix. Semen was not detected on any of the exhibits of the prosecutrix.

100. The contradiction in the name of the culprit who had allegedly attempted to rape the prosecutrix (accused Mr.Sarvjeet jaswal or Mr.Surender) in the evidence of PWs 5 and 6 has not been explained at all by the prosecution which is a fatal blow to the prosecution version.

101. All these facts indicate that the alleged offence of attempted rape never occurred.

DELAY IN MLC OF PROSECUTRIX

102. The information regarding the incident was given to the police at 6.52 am on 10.07.2012 vide DD No.6A (Ex.PW10/A0 on which SI Amit Dutt Sharma (PW10) reached the spot and sent the prosecutrix for her medical examination with ASI Sarita (PW12). The MLC of the prosecutrix (Ex.PW11/A) has been prepared at 3.25 pm.

103. When the prosecutrix was sent early in the morning at about 7 am for her medical examination, there is no justification shown by the prosecution why she was not medically examined till 3.23 pm. Sessions Case Number : 58 of 2013.

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104. The delay in the medical examination of the prosecutrix only makes the prosecution story suspicious and doubtful and the possibility of manipulation cannot be ruled out.

ARREST MEMOS OF ACCUSED

105. The prosecutrix (PW5) has deposed that accused Mr.Sarvjeet Jaswal, his wife Ms.Darshana Devi and one more person remained behind after the incident.

106. The father of the prosecutrix (PW6) has deposed that the persons accompanying the accused fled away but all the three accused remained in his house after the incident.

107. The prosecutrix has stated in her statement to the police that accused persons were arrested at 11.30 pm on 10.07.2012 and she also signed arrest memos, whereas in the Court in evidence both PEs 5 and 6 have deposed that the accused persons were arrested at spot.

108. On perusal of the arrest memo of accused Mr.Sarvjeet Jaswal (Ex.PW3/A), it transpires that his arrest is shown at 11.40 pm on 10.07.2012.

109. On perusal of the arrest memo of accused Mr.Surender (Ex.PW3/C), it transpires that his arrest is shown at 11.30 pm on 11.07.2012. There is an overwriting at the date which is not initialed or signed by the IO.

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110. On perusal of the arrest memo of accused Ms.Darshana Devi (Ex.PW5/B), it transpires that her arrest is shown at 11.10 am on 11.07.2012. There is an overwriting at the date which is not initialed or signed by the IO.

111. PW3, Ct. Jai Singh has deposed that on 10.07.2012, he alongwith SI Savita went to H. NO.34-B, Vikas Vihar, Vikas Nagar, Delhi along with prosecutrix and thereafter they went to H. No.72, Gali No.3, Vikas Nagar. Accused Mr.Sarvjeet son of Mr.Mahavir met the police team at the said house and he was interrogated. On the pointing out of prosecutrix, accused Mr.Sarvjeet was apprehended and arrested in the present case vide arrest memo (Ex.PW3/A). Thereafter, other accused Mr.Surender son of Mr.Mangal was also arrested vide arrest memo (Ex.PW3/C).

112 PW14, IO SI Savita has deposed that she along with Ct. Jai Singh, prosecutrix and her father went to the house of accused persons at Vikas Nagar where all the accused persons namely Mr.Sarvjeet, Mr.Surender and Ms.Darshna Devi were present. They all were identified by the prosecutrix. She arrested accused Mr.Sarvjeet and Mr.Surender on the same day i.e. 10.07.2012 but since it had become quite dark being night time so she did not arrest accused Ms.Darshna Devi and had arrested her on next day i.e. 11.07.2012. The arrest memos of accused Mr.Sarvjeet, Mr.Surender and Ms.Darshna Devi (Ex. PW3/A, Ex PW3/C and Ex. PW5/B respectively) and personal search memos (Ex. PW3/B, Ex. Sessions Case Number : 58 of 2013.

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PW3/D and Ex. PW14/C respectively) were prepared.

113. All these above facts clearly show that something wrong has been done regarding the arrest of the accused persons and in making the documents of their arrest and there have been some manipulations which remain unjustified and unexplained by the prosecution.

NEIGHBOURS / MEDIA PERSONS/ PUBLIC WITNESSES NOT EXAMINED

114. The prosecutrix has deposed in her evidence that the neighbours had gathered at the spot. The IO has also admitted the same further deposing that the media persons had also come there.

115. However, during investigation neither any enquiry was made by the police from the neighbours and the media persons nor their statements were recorded.

116. Even the mother and the brother of the prosecutrix, who were available at the time of alleged incident, were not associated in the investigation.

117. Also, Ct Ram Nishan who had accompanied SI Amit Dutt Sharma (PW10) to the spot of incident on receipt of DD No.6A (Ex.PW10/A) has neither been cited nor examined by the prosecution.

118. The prosecution has failed to examine some very material Sessions Case Number : 58 of 2013.

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witnesses i.e. the neighbours, the media person, the mother and brother of the prosecutrix and Ct.Ram Nishan. They could have thrown some light on the facts of the case which could have facilitated the Court in adjudicating the matter. However, they were neither cited as witnesses in the list of witnesses of the prosecution nor produced nor examined by the prosecution.

CLOTHES OF THE PROSECUTRIX

119. The prosecutrix (PW5) has deposed that her accused had tried to remove her salwar. She has identified one ladies underwear (Ex.P1), pajama (Ex.P2) and top/T-shirt (Ex.P3). In her cross examination, she has deposed that "I had mentioned to the police that my salwar was torn but I do not know whether it was mentioned in my first complaint or not. There is a difference between a salwar and Pajama. Ex.P2, Pajama was worn by me at the time of incident. I do not know whether I had mentioned in my first complaint that my clothes were torn."

120. PW6 has deposed that the clothes of his daughter were torn and she was bleeding. In his cross examination, PW6 has deposed that "It is correct that I had not seen any one tearing the clothes of my daughter. Vol. I had seen that the clothes of my daughter were torned. (Witness has touched his arms and chest to show that the clothes of his daughter were torned from this place.)..... At the time of incident my daughter was wearing white coloured salwar and kameez. I know the difference between salwar-kameez, pent- shirt, chudidaar- kameez etc."

121. The clothes of the prosecutrix which she has identified before Sessions Case Number : 58 of 2013.

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the Court are one ladies underwear (Ex.P1), pajama (Ex.P2) and top/T-shirt (Ex.P3) and not white coloured salwar and kameez. How the prosecutrix has identified one ladies underwear (Ex.P1), pajama (Ex.P2) and top/T- shirt (Ex.P3) when she was wearing a salwar (rather white coloured salwar and kameez) at the time of incident has not been logically explained by the prosecution.

122. The clothes of the prosecutrix were produced in the Court at the time of final arguments on 13.11.2013 and were a black coloured T- shirt/top, grayish black pajama and a brown coloured ladies underwear. Photographs of the same were also taken in the Court room and retained on the record as there was a submission of the amicus curiae for the accused that the T-shirt/top was not torn but it was cut with scissors. It was also observed that besides the three cuts/tears, there were several very small sized holes in the T-shirt/top (Ex.P3) which perhaps had been caused due to pulling or being eaten by insects due to lapse of time. When the T-shirt/top was held by the shoulders, the small hole/tear on the front side was corresponding with the small hole on the rear side.

123. It may be mentioned here that the biggest tear/cut on the front side of the T-shirt/top (Ex.P3) as is clear in photographs (now exhibited in the judgment as Ex.X1 and X2) clearly show that it is not a tear but a cut made vertically and then a tear has been made on the left side. The cut has clear and neat separation of the cloth while the tear has some pull/stretch indications.

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124. From the biggest cut and the fact that there are corresponding small holes on the front and rear side of the T-shirt/top, it becomes abundantly clear that the same has been cut with a conscious effort and has not been torn in any incident.

125. Therefore, it is clear that even the clothes which were produced in the Court i.e. one ladies underwear (Ex.P1), pajama (Ex.P2) and top/T- shirt (Ex.P3) do not support the prosecution case considering the evidence of the prosecutrix and her father.

EVIDENCE OF PROSECUTRIX

126. The prosecutrix, in her complaint (Ex.PW5/A) has stated that on 10.07.2012, Ms.Darshana Devi with some musclemen (kuch gunde) had beaten her and attempted rape with her. Her clothes were torn and she received injury on her right hand. Mr.Sarvjet Jaswal attempted to rape her. Mr.Surender had beaten her. All of them had threatened to kill her.

127. In her evidence before the Court, the prosecutrix has deposed that on 10.07.2012 at 07.00 a.m. when she was sleeping, suddenly 4-5 persons entered in her room. She knew only two persons namely Mr.Sarvjeet Jaswal and his wife Ms.Darshna Devi. Some persons were holding her hands and accused Mr.Sarvjeet Jaswal and his wife were standing in front of her. She was still lying down on the bed as she had been sleeping when these people entered into her room. Accused Ms.Darshna Devi bit on her right hand. She had nail marks on her hand and back which had been made by accused Mr.Sarvjeet Jaswal. Accused Mr.Sarvjeet Jaswal Sessions Case Number : 58 of 2013.

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his wife Ms.Darshna Devi and another man forcibly tried to remove her salwar but they were not successful. She tried to shout to her father for help but could not as the man who was holding her hands had also put his hand on her mouth. She was able to kick accused Mr.Sarvjeet Jaswal on his private parts while trying to escape. Her father came inside and tried to save her. There were some persons with her father when he came inside and they were trying to beat her father. As the man who had put his hand on her mouth had taken his hand off and she managed to shout, then all the neighbours came to her house. In the meanwhile, some of the miscreants ran away. Accused Mr.Sarvjeet Jaswal, his wife and one more person remained behind.

128. There is no medical and forensic evidence to prove the allegations of attempt to rape or hurt, and therefore only statements of prosecutrix and her father needs to be examined carefully to see if the statements are corroborating and believable at all.

129. The prosecutrix has made several discrepancies, contradictions and improvements in her evidence before the Court.

130. In MLC (Ex.PW11/A) at 3.25 pm, the prosecutrix stated that four persons entered in room and she knew only accused Mr.Sarvjeet. In the first complaint at 7 am, she has named accused Mr.Sarvjeet Jaswal, Ms.Darshana Devi and Mr.Surender, and some other gundas. Accused Mr.Sarvjeet Jaswal attempted to rape her. Accused Mr.Surender gave beating to her. Accused Ms.Darshana Devi had bitten her. In evidence, the Sessions Case Number : 58 of 2013.

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prosecutrix has deposed that 4-5 persons came and she knew only accused Mr.Sarvjeet and Ms.Darshana. She was injured and bleeding (However, there is medical or forensic evidence to corroborate her version). The others fled from spot while accused Mr.Sarvjeet Jaswal, Ms.Darshana Devi and Mr.Surender remained and were arrested by police on spot itself (Arrest memos show otherwise). She was declared hostile by the Additional Public Prosecutor. In her cross-examination on behalf of the accused, the prosecutrix has deposed that her salwar-kameez were torn (however, pyjama and T-shirt/top have been handed over to doctor and even the t-shirt is cut with scissors).

131. It is clear that evidence of prosecutrix is not even substantiating her complaint and statement to police and which indicates that there is a possibility of false prosecution of the accused persons.

132. There are some material contradictions and improvements in her complaint and evidence regarding her telling the name of accused Mr.Surender, her not knowing his name earlier, etc which have not been explained and they are too material to be ignored.

133. Further, the evidence of the prosecutrix appears to be unreliable and unbelievable as discussed earlier while discussing the other issues involved.

134. The prosecutrix has not given any explanation as to how the name of accused Mr.Surender figures in the complaint (Ex.PW5/A) when it Sessions Case Number : 58 of 2013.

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is missing in her MLC (Ex.PW11/A) and even on the date of her evidence she was not aware about his name.

135. She has also has given contradictory evidence regarding her clothes which she was wearing at time of incident. She said in her statement to the police that she was wearing salwar and kameez, while she had handed over pyjama and t-shirt/top to doctor at the time of her medical examination. Needless to mention here that the t-shirt/top was deliberately cut with scissors.

136. The prosecutrix has made contradictions about place and time of arrest of the accused persons. She stated to the police that accused persons were arrested at 11.30 pm on 10.07.2012 while in evidence, both the prosecutrix her father have deposed that the accused persons were arrested at spot.

137. Her evidence about her injuries, her bleeding because of attempt to rape and bite by accused Ms.Darshana Devi is also not believable as no fresh injury was found on her body and in view of the evidence of Dr.Rajesh (PW11).

138. She has also made contradictions in her different statements regarding number of persons involved in offence.

139. There is discrepancy regarding time of the prosecutrix making the complaint as she has deposed that her first complaint was given in Sessions Case Number : 58 of 2013.

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morning at 7 am while PW6 (her father) has deposed that the complaint was given in evening.

140. There are several unexplained contradictions in the evidence of the prosecutrix and the evidence of her father regarding the number of culprits, role of each culprit, who had attempted rape upon the prosecutrix, time of complaint, arrest of accused, injuries of the prosecutrix, clothes worn by the prosecutrix at the time of alleged incident, etc. She has deposed that there is no history of memory loss in her family. The incident allegedly occurred on 10.07.2012 and the prosecutrix gave her evidence before the Court on 16.02.2013 i.e. after about seven and a quarter months of the incident. It does not appear believable that a young girl aged 20 years who is doing MCA would forget about such a serious incident in such a short time.

141. The prosecution has failed to furnish any explanation in respect of the contradiction, discrepancies and improvements in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that the present rape case was lodged probably for some extraneous reasons.

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142. It can be seen from the evidence of the prosecutrix that the allegations leveled by her of trespass, simple hurt, threat and attempted rape by the accused are false and unbelievable. It appears that she has not been raped by the accused as no such incident ever occurred. It also cannot be ignored that the prosecutrix (PW5) and her father (PW6) were hostile to the prosecution case and had to be cross examined by the Additional Public Prosecutor to elicit certain facts which also throw a doubt on their version. PW6 has even denied making any statement to the police during investigation.

143. The prosecutrix has deposed that she was threatened to be killed by the accused. However, the effect of the alleged threat, has not been disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that nothing wrong has happened to her.

144. In the light of the aforesaid nature of deposition of the prosecutrix, PW5, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:

"Where witness make two inconsistent statements in their evidence Sessions Case Number : 58 of 2013.

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either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."

145. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases

487.

146. Consequently, no inference can be drawn that the accused persons are guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.

147. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been Sessions Case Number : 58 of 2013.

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committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).

148. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).

149. It is a case of heinous crime of rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that the of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.

150. If one integral part of the story put forth by witness was not believable, then the entire case fails. It is settled law that where witness makes two inconsistencies statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstance; no conviction can be based on the evidence of said witness.

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151. As has been held by Apex Court in a catena of judgments that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).

152. Consequently, no inference can be drawn that the accused Mr.Sarvjeet Jaswal, Ms.Darshana Devi and Mr.Surender are guilty of the charged offences under sections 451/323/506/34 of the IPC and accused Mr.Sarvjeet Jaswal is guilty of the charged offence under section 376/511 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that any offence was committed against the prosecutrix by the accused.

153. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Sessions Case Number : 58 of 2013.

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Supreme Court of India as under:-

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"

154. This brings me to the final question as to whether it was she beaten and threatened by all the accused when they trespassed into her house and whether accused Mr.Sarvjeet attempted to rape her. In this regard it is no doubt true that in her statement before this Court she has stated that the accused committed the said offences but there are several contradictions, inconsistencies and discrepancies in her statements which remain unexplained and indicate that no such offence was ever committed by the accused.

155. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.

156. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at Sessions Case Number : 58 of 2013.

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two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.

157. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.

158. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence of trespass, simple hurt, threat and attempted rape and all the accused merit to be acquitted.

MENS REA / MOTIVE

159. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

160. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the Sessions Case Number : 58 of 2013.

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prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and un-nameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

161. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

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162. In the present case, it is an admitted fact that there was a property dispute between the family of the prosecutrix and the accused. Accused Mr.Sarvjeet had verbal altercation with the father of the accused (as admitted by PW6). In such a situation, there was no reason why the accused would commit any of the alleged offences when they had earlier never done so.

163. There does not appear to be any criminal intention and mens rea on the part of the accused persons.

DEFENCE OF THE ACCUSED

164. The prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused. The prosecution cannot take advantage of the weakness of the defence of the accused.

165. In their respective statements under section 313 of the Cr.P.C., all the accused have stated that they are innocent and have been falsely implicated in this case by the prosecutrix as there was a property dispute between the family of the prosecutrix and the accused.

166. Suggestions to the same effect have been put to the prosecutrix which of course have been denied by her. However, as mentioned above, the evidence of the prosecutrix is neither reliable nor believable nor trustworthy. The accused also have examined Ms.Darshana Devi as DW1 to Sessions Case Number : 58 of 2013.

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substantiate their stand. DW1 has deposed in her cross examination that "I had made a complaint to PS Ranhola which is already marked as Mark DW1/X3 but police had not taken action on the same. I or my family member had not approached the senior police officers or the Court as we had been arrested in this case. ...I or my family member have not filed any civil case against my sister Ms. Prabha or Mr. H.S.Dill or the family of Mr. Prem Sagar. ....No criminal case of cheating or similar nature was ever filed by me or my family in any Court against my sister Ms. Prabha or Mr. H.S.Dill with regard to the above said property. Vol. I had moved the applications before the police but no action was taken by the police on the same...."

167. Further, considering the advanced age of accused Mr.Sarvjeet Jaswal and Ms.Darshana Devi (who are senior citizens aged about 62 years) it cannot be said that they would be in a condition to attack and injure a young girl aged about 20 years and also attempt to rape her.

168. The defence of the accused that due to the property dispute they have been falsely implicated in this case appears to be probable as the version of the prosecutrix and the prosecution cannot be relied upon, as discussed above.

LAPSES IN INVESTIGATION

169. There are some clear lapses made by the police in the investigation of the present case. As already mentioned above, there appears to some manipulation in the arrest of the accused persons and in making the Sessions Case Number : 58 of 2013.

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documents of their arrest.

170. Further, the site plan of the spot of incident has not been prepared (as also admitted by the IO SI Savita, PW14). IO has made site- plan of road outside house, which is of no relevance. In absence of site-plan of the room, the place of incident stands not proved. IO has not called the crime-team at spot to photograph the room to show any signs of struggle or anything else. The IO did not make any attempt to lift any hair-strands, pubic hair or any other forensic evidence from said room to at least show that incident took place there.

171. The prosecutrix was not got immediately medically examined despite the information being received vide DD No.6A (Ex.PW10/A) at 6.52 am and her MLC was prepared at 3.25 pm.

172. Investigation regarding the other persons along with the three accused persons who had allegedly entered into the house of the prosecutrix has also not been made.

173. IO (PW14) has admitted in her cross examination regarding the lapses made by her by deposing that "It is correct that I have not made any efforts to arrest the fourth person .....It is correct that I have not recorded statement of Mr. H.S Dill. It is correct that I did not check the ownership proof of the property of father of the prosecutrix i.e A-34, Vikas Vihar, Vikas Nagar during investigation. I did not record the statement of Mr. Pardeep Kumar in this case. ......On 10.07.2012 when I Sessions Case Number : 58 of 2013.

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visited the spot many public persons were collected there. Even the Media persons were also present. But no public person came forward to give their statements regarding the incident. .......It is correct that I did not record the statement of mother and brother of the prosecutrix in this case. .....It is correct that I did not call the crime team to inspect the scene of crime. It is correct that I did not prepare the site plan of the room where the alleged offence was committed Vol. I have prepared the site plan of the house. The bedsheet, pillow cases were not seized by me as it was only a case of attempted rape and not of rape. It is correct that I did not get Mr. Prem Sagar father of the prosecutrix medically examined. I did not take opinion from an Expert whether the clothes of the prosecutrix had been torn by hand or cut with scissors. .....I did not seize the medicines and the prescription from the prosecutrix..."

174. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case.

175. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important. Inversely, when the version of the prosecutrix is unreliable and unbelievable, then the investigation is not too material.

176. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation Sessions Case Number : 58 of 2013.

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conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.

177. All the above facts clearly show that the investigation of the present case has not been conducted properly and fairly which is over and above the fact that the evidence of the prosecutrix is not reliable.

CONCLUSION

178. Since the prosecutrix as PW5 is neither reliable nor believable as there are overwhelming contradictions in her different statements, contradictions in the evidence of PWs 5 and 6, MLC of the prosecutrix as well as the MLCs of the accused not substantiating the allegations, no medical and forensic evidence, discrepancy in the clothes of the prosecutrix, etc. the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against all the accused persons. The prosecution story does not inspire confidence and is not worthy of credence.

179. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish rape of the prosecutrix by the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other Sessions Case Number : 58 of 2013.

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circumstances make it highly improbable that such an incident ever took place.

180. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

181. Applying the above principles of law to the facts of present case, it is evident that the identity of all the accused Mr.Sunder Singh stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor.

182. It is also clear that there is an inordinate unexplained and unjustified delay in making the complaint and in lodging the FIR as well the medical examination of the prosecutrix. It also stands established that Sessions Case Number : 58 of 2013.

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accused Mr.Sarvjeet Jaswal had not attempted to rape the prosecutrix. There is no medical or forensic or circumstantial evidence to show that such an offence has ever been committed. The injuries (abrasions) suffered by the prosecutrix do not correspond to her allegations and the doctor has opined that the same could be self inflicted. There is unexplained discrepancy in the clothes of the prosecutrix. There is no incriminating evidence against all the accused persons. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.

183. Therefore, there is no force is the contention of the Additional Public Prosecutor that all the accused persons trespassed into the house of the prosecutrix, had beaten her and threatened to kill her and that accused Mr.Sarvjeet Jaswal has attempted to rape her.

184. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has miserably failed to bring home the charge against all the accused persons.

185. Accordingly, Mr.Sarvjeet Jaswal, Ms.Darshana Devi and Mr.Surender, all the accused persons, are hereby acquitted of the charge of the offences punishable under sections 451/323/506/34 of the IPC and accused Mr.Sarvjeet Jaswal, accused, is hereby acquitted of the charge of the offences punishable under section 376 of the IPC. Sessions Case Number : 58 of 2013.

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COMPLAINCE OF SECTION 437-AOF THE CR.P.C.

186. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.

187. Accused Mr.Sarvjeet Jaswal and Mr.Surender are in judicial custody. They be set at liberty, if not required in any other case.

SOME OBSERVATIONS REGARDING THE RAPE CASES

188. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and not worthy of credence, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.

189. Under these circumstances, the task of both the Investigating Agency and the Court becomes onerous so as to ensure that on one hand the existing penal provisions are not abused so as to implicate innocent persons whereas on the other hand, to ensure that no guilty is left scot free.

190. This case is just one of the many cases in this Court where the Sessions Case Number : 58 of 2013.

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evidence of the prosecutrix is not reliable due to which three innocent persons had to undergo the rigours of investigation and trial before they were declared innocent holding that the allegations against them are false. In my considered view, it is time that we as a Civil Society stand up not to only protect, shelter and rehabilitate a victim of rape but also to protect and shelter an accused against whom false allegations of rape have been levelled.

ADDITIONAL PUBLIC PROSECUTOR AND AMICUS CURIAE

191. Before parting, I would also like to observe that Ms.Neelam Narang, Additional Public Prosecutor for the State and Mr.Vikas Padora, advocate, who has been appointed as amicus curiae in this case made very sincere and laborious efforts in this case with their very able assistance and regular appearance, thereby enabling the Court to dispose the matter expeditiously.

SOME FORMALITIES

192. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.

193. One copy of the judgment be given to the Additional Public Prosecutor, as requested.

194. After the expiry of the period of limitation for appeal, the file be consigned to record room.

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Announced in the open Court on (NIVEDITA ANIL SHARMA) this 22nd day of November, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.

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