Delhi District Court
State vs . Ganga Ram on 2 December, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 91/12)
Unique ID case No. 02404R0328302012
State Vs. Ganga Ram
FIR No. : 272/12
U/s : u/s. 363/376 (2) (f) IPC
P.S. : Shahbad Dairy
State Vs. Ganga Ram
S/o Late Sh. Sarju,
R/o Ramdev Master Ka Makan,
Village Sanoth, Delhi.
Permanent r/o :
Village Barhwasini, P.S. Banlea,
PO Tentaria, District Bank, Bihar.
Date of institution of case - 28.11.2012
Date on which, judgment has been reserved 27.11.2014
Date of pronouncement of judgment - 02.12.2014
JUDGMENT :
1 Briefly stated the case of the prosecution is that victim M, aged about 10 years, went missing from her house on 11.08.2012 at about 8:00 AM. Initially the parents of the victim made efforts to search for her of their SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 1 of 35 2 own but when there was no clue about the whereabouts of victim M, her father went to PS Shahbad Dairy on 12.08.2012 and gave his complaint Ex.PW16/A and requested police to search for his daughter. 2 On this complaint a case FIR u/s. 363 IPC was registered against an unknown person at PS Shahbad Dairy and investigations of the case were marked to HC Surgyan. During the course of investigation, IO made efforts to search for the victim and got WT message flashed to all SSPs and DCPs in India and all SHOs in Delhi regarding the missing girl. Information was also sent to NCRB, CBI, Doordarshan and Newspaper to effect publication qua the missing girl.
3 On 18.08.2012 a PCR call was received at PS Narela that a missing girl had been found at village Sannoth. The said information was registered vide DD No.19A and was marked to ASI Inderjeet, who reached Village Sannoth, Delhi, and recovered the missing girl. He also came to know that present case i.e. FIR No.272/12 u/s. 363 IPC had already been registered at PS Shahbad Dairy in respect of said victim child M. Accordingly, ASI Inderjeet took the victim child to PP Metro Vihar and handed over victim child M to HC Surgyan. The victim child M was got counseled through NGO, in presence of her parents and after her general medical examination, was produced before learned MM for her statement u/s. 164 CrPC. In her statement u/s. 164 CrPC dated 18.08.2012 , the victim child M merely stated that she had gone to the house of her friend Aanchal, a few days ago, and thereafter she lost her way. She stayed at the house of SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 2 of 35 3 Aanchal for two days after which her father (father of Aanchal) gave a call to the police, who came there, took the victim child with them and handed over the victim to her parents.
4 On 21.08.2012, victim was produced before concerned CWC from where she was handed over in custody of her parents. 5 On 18.09.2012, Sh. Dalip Kumar, father of the victim, again gave a call to the police alleging that his daughter victim M had been sexually assaulted by one Ganga Ram s/o Late Sarju r/o Village Sannoth (i.e. the accused). This information was reduced to writing vide DD No.28A and investigations of the case were reopened. The parents of the victim informed the police that their daughter (victim M) had told them that during the period she had been missing, she had been taken by accused Ganga Ram to his room in the village Sannoth and had been raped by him and that the child had been unable to reveal these facts earlier because of fear. 6 The victim and her parents were again got counseled through NGO. Victim was also taken for her medical examination and was got examined again. Search was commenced for accused Ganga Ram and he was arrested upon identification of the victim. Accused was got medically examined at hospital and samples taken from him by the concerned doctor were seized by the IO. The victim was again produced for her statement u/s. 164 CrPC and thereafter taken to concerned CWC from where she was handed over in custody of her parents.
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 3 of 35 4 7 During the course of further investigations, the exhibits of the case were sent to FSL Rohini. The IO also collected the certificate from the school of the victim child, as per particulars given by her parents. As per school certificate the date of birth of the victim M was 15.07.2002. 8 After completing investigations, charge sheet was prepared and was filed in the Court through SHO concerned.
9 After hearing arguments, charge for the offence under Section 363/376 (2)(f) IPC was framed against the accused. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
10 In order to prove its case prosecution has examined 23 witnesses.
11 The PW3, HC Naresh Kumar, was posted as Duty Officer at PS Shahbad Dairy at the relevant time. He deposed that on 18.09.2012 at about 06:25 PM, complainant Dalip Singh handed over one written complaint to him and that he made entry regarding the same vide DD No.28A. He proved the copy of complaint as Ex.PW3/A and the true copy of DD No.28A as Ex.PW3/B. 12 The PW2, HC Rakesh Kumar, was posted as Duty Officer at SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 4 of 35 5 P.S. Shahbad Dairy on 12.08.2012. He deposed about registration of FIR of the present case. He proved the endorsement made by him on rukka as Ex.PW2/A and copy of FIR as Ex.PW2/B. 13 The PW8, Sh. Dal Chand, is the owner of house bearing No.C103, at village Sannoth. He deposed that his tenants were residing in the said house and that he used to go to his house daily, in the morning as well as in the evening, to check the house. He then deposed that on 18.08.2012 at about 8:30 AM, when he went to his house, his tenants Vinod and Abdul Zaffar met him and told him that one girl, who was disclosing her name as "M" and who was also known to child A daughter of Vinod, met child A in the evening of 17.08.2012 and that the said girl "M" was brought by child A to tenanted house, where A was residing with her family. He further deposed that Abdul Zaffar and Vinod told him that one week prior to 17.08.2012 the mother of the said girl came at their house with the photograph of the girl as the girl was missing and that because of this reason they had kept the girl with them. Thereafter Abdul Zaffar called the police and the police officials of PS Narela came and took the girl along with them. 14 The PW9, Ms. Manju, and the PW10, Sh. Vinod, are the parents of the child A. They deposed that on 1782012 their daughter A went to purchase some articles from some nearby shop where she met her classmate 'M' and brought her (classmate 'M') to their house and that the said girl 'M' stayed in their house at night. They then deposed that about one week prior to 17.08.2012 the mother of the said girl (girl 'M') had come to SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 5 of 35 6 their house with photograph of her daughter and told PW9 that her daughter was missing and that she also asked them to inform her in case they found her daughter. They further deposed that victim 'M' told them (PW9 & PW10) that she had forgotten her address and that earlier she had been residing in village Sannoth.
15 They further deposed that on 1882012 when their landlord Sh. Dalchand came in the morning, they informed him that Abdul Zaffar, one of the tenants, had informed the police and that the police came there, took the said girl alongwith them (police).
16 The PW20, Abdul Jabbar is also one of the tenants of PW8 Dal Chand. He deposed that on the 17th day of a month in the year 2012, he came back from his duty and came to know that one minor girl, aged about 9
- 10 years, was found in the gali, and that the said girl had been brought by his neighbour's daughter to her house and the said neighbour was also residing with his family in the house of Dal Chand. He then deposed that on the next day in the morning, their landlord came to the house and they informed him about the recovery of the said girl child and that PW20 also came to know that the mother of the girl had been coming to their village Sannoth, in search of her daughter, with the photograph of the child and that his landlord (PW8 Dal Chand) asked him (PW20) to call the police at 100 number and that he (PW20) called the police and that the police reached there and the girl was taken by the police.
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 6 of 35 7 17 The PW21, M is the victim child. Her testimony shall be discussed at length in the following paragraphs. 18 The PW11, HC Vinod, was posted as Duty Officer at PS Narela at the relevant time. He deposed that on 18.08.2012 at about 09:14 AM, he received information from wireless operator that a female child, aged about 8 years, was sitting abandoned near Public School, CBlock, Main Road, Village Sanoth, and that he reduced this information into writing in DD register vide DD No.19A. He proved the true copy of DD No.19A as Ex.PW11/A. 19 The PW16, Sh. Dalip Kumar, is the father of the victim child M. He deposed that victim M was his third born child and was aged about 9 - 10 years at the time of the incident. He further deposed that on 10 / 11 th day of 8th month, prior to Diwali and year before the witness appeared to depose in the Court, his daughter M went missing from their house at Metro Vihar and that he made efforts to search for her but with no success and thereafter he filed complaint Ex.PW16/A. The PW16 then deposed that the victim was found at village Sannot on 18.08.2012 and that information about it was given to the police by the person who had seen the victim and that on receiving information PW16 also went to the PS. He further deposed about the medical examination of his daughter M and about recording of her statement u/s. 164 CrPC. He also deposed that his daughter M had told her mother what had happened with her and who had taken her along with him. The PW16 proved the memo vide which custody of victim M had been SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 7 of 35 8 handed over to him and his wife by the police as Ex.PW4/B. 20 During his further examination, PW16 deposed that his daughter M had been medically examined twice and that at the time of her first medical examination, her gynecological examination was not conducted but after she (victim M) was brought back to their house, his wife (wife of PW16) made inquiry from victim M, after seeing her clothes, and informed PW16 that victim M had been sexually assaulted by someone. The PW16 expressed his lack of knowledge about the person who had sexually assaulted victim M. From the further examination of the PW16, it is brought out that at that time (when PW16 appeared to depose before the Court) he was residing with three of his children and that his wife Pooja had left him sometimes prior to Diwali in the year 2012 and had gone away with two other children including the victim child. He further deposed that he was not aware of the whereabouts of his wife and two children, who had been taken away by his wife, and that he had gone to PS as well as Police Post to lodge a missing report but his complaint was not registered by the police. The PW16 stated that he was not much literate but he could read Hindi language and that he was not aware why police officials had not registered his complaint.
21 Since, this witness failed to depose as per the case of the prosecution, he was crossexamined at length by the learned Additional PP. During his said crossexamination, PW16 identified his signatures on complaint Ex.PW3/A. He termed it correct that at the time of the incident, he SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 8 of 35 9 was residing in village Sannot and that accused Ganga Ram was also resident of village Sannot. He also termed it correct that there was shop of Radhey Baniya at village Sannot. The PW16 denied that complaint Ex.PW3/A was in his handwriting and further stated that he had neither gone through its contents nor was the same read over to him by the police when he signed the same. He also stated that when PW3/A was written, his wife had a talk with the police officials and thereafter PW3/A had been written by one of the police officials present in the PS. The PW16 identified his signatures on Ex.PW4/C i.e. the arrest memo of accused and stated that accused had been arrested in his presence. The PW16, however, denied that he had told the police that on inquiry by him and his wife, his daughter M had told them that accused Ganga Ram r/o Village Sannot had taken her from the shop of Radhey Bhaiya and had thereafter sexually assaulted her and that out of fear she did not disclose this fact to him and his wife. 22 The PW19, Smt. Puja, is the mother of the victim child M. She deposed that she was working as labourer and had five children and that victim M was her third born child and that the victim was aged about 9 / 10 years when she went missing on day after Janamashtmi in the year prior to the year she had appeared to depose. She further deposed that though they tried to search victim M they could not trace her out and thereafter a complaint was filed with the police. She also deposed that 6 / 7 days after the incident when she went to village Sannot, she was informed by the villagers that her daughter M had been seen in the village and had been taken to PS by the police. The PW19 also deposed that earlier she and her SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 9 of 35 10 family were residing at village Sannot and that when she went home on that day, she found her daughter M at their house but she was not wearing the same underwear which she was wearing when she had gone missing. The PW19 further deposed that initially she did not suspect anything but later she saw blood stains on the underwear of her daughter M and that when she tried to take off clothes of her daughter M to give her bath, child M did not allow her to do so and started crying and appeared to be scared. The PW19 stated that after 10 / 15 days of the incident, her daughter told her that accused Ganga Ram, who was also resident of village Sannoth, had taken her with him to his house, from the shop of Radhey Baniya on pretext of giving some eatables to her, and had committed rape upon her and that she informed about this fact to her husband as well as Madam from Nav Shristi and that thereafter a complaint Ex.PW3/A was lodged by her and her husband. The PW19 identified her thumb impression on the complaint and further deposed that victim M had not told her about these facts earlier out of fear and that she then requested for another medical examination of her daughter which was got done at Ambedkar Hospital and that the doctor, who examined the victim M, confirmed that she had been raped. 23 During her crossexamination, PW19 deposed that she was illiterate and that she could not recollect as to who had written complaint Ex.PW3/A. The PW19 then volunteered to state that the said complaint had been written by her husband and that there was nobody else except her husband and police officials. The PW19 showed her lack of awareness about the contents of complaint Ex.PW3/A. The PW19 denied that at the SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 10 of 35 11 time of incident, her daughter M had gone to visit her friend A. 24 From further crossexamination of PW19 it is brought out that she had not mentioned the fact that victim M was wearing a different underwear and that she had noted blood on the underwear of victim M to the police in her statement u/s. 161 CrPC i.e. Ex.PW19/A. The PW19 denied that accused had been falsely implicated in the case on account of monitary transaction between her husband and the accused. 25 The PW1, Smt. Ramwati, Principal, produced original record from M.C. Primary Girls School, Sannot Village, Delhi, wherein the victim child M had been admitted in fourth class on the basis of admission form and affidavit submitted by mother of the child. She proved the copy of the said admission form and affidavit as Ex.PW1/A and Ex.PW1/B respectively ; the photocopy of relevant entry in the admission register was proved as Ex.PW1/C and the certificate issued by the school regarding the date of birth of prosecutrix, wherein her date of birth was mentioned as 15.07.2002, was proved as Ex.PW1/D. 26 The PW18, HC Surgyan, is the initial investigating officer of the case. He deposed that on 11.08.2012 at about 11:30 PM, complainant Dalip Kumar reached at the police post and got his statement Ex.PW16/A regarding the missing of his daughter recorded and that on the basis of said statement, he prepared rukka Ex.PW2/A and handed it over to Ct. Ram Kishore for getting the case registered at PS. He further deposed that SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 11 of 35 12 thereafter he went to the spot with the complainant and made inquiry from the persons of the locality but could not get any clue about the victim child and that Ct. Ram Kishore also reached the spot with the copy of FIR and original rukka and handed over the same to PW18. He further deposed that he sent message(s) on wireless vide Ex.PW18/A to CBI ; vide Ex.PW18/B to NCRB R.K. Puram ; vide Ex.PW18/C and Ex.PW18/D respectively, to Prashar Bharti Doordarshan Kendra.
27 The PW18 further deposed that on 18.08.2012, ASI Inderjeet of PS Narela came to the police post with the victim child and DD No.19A i.e. Ex.PW11/A and informed him (PW18) that he had received a call regarding an abandoned girl sitting at Village Sannot Main Road and that PW18 called the complainant Dalip Kumar to police post, who identified the victim M as his daughter and that Lady Ct. Sarita was also called from PS. 28 The PW18 further deposed that NGO Sristi was called and the victim child was got counseled from her and that L/Ct. Sarita and the said NGO made inquiries from the child and that the statement of the child Ex.PW18/E was recorded wherein the victim child did not disclose anything regarding sexual assault and that thereafter the victim child was taken to MV Hospital, Puthkhurd, by him along with L/Ct. Sarita and NGO member for her medical examination which was then conducted vide MLC Ex.PW5/B. He then deposed that thereafter the victim child was brought to Rohini Court where her statement u/s.164 CrPC was got recorded and thereafter the victim child was handed over to her father in presence of L/Ct. Sarita and SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 12 of 35 13 NGO member vide receipt Ex.PW7/A. 29 The PW18 further deposed that on 21.08.2012, the victim child was produced before CWC Avantika along with NGO member Sristi Singh, and that the child was counseled and thereafter the custody of the child was given to her father vide order of CWC i.e. Ex.PW4/N, on his application Ex.PW18/F. The PW18 then deposed that after sometime father of the victim child came and lodged a complaint wherein he has alleged that his daughter had been sexually assaulted by accused Ganga Ram r/o Village Sanaut and that after receiving the said complaint, the case was marked to SI Anju Dahiya by SHO and hence, he (PW18) also handed over all the documents of present case to SI Anju Dahiya. 30 During the crossexamination by learned amicus curie, the PW18 admitted that the victim child did not state anything against accused before him (PW18) or NGO member and that the victim child had told the NGO member that she had gone missing while playing in the area. 31 The PW17, Ct. Ram Kishore, had joined the investigation of the case with IO PW18 HC Surgyan on 12.08.2012 and had further got case FIR registered on his directions and deposed regarding the same. 32 The PW7, L/Ct. Sarita, deposed that on 18.08.2012 she went to PP Metro Vihar, Kolambikalan where prosecutrix and her father met her and that she made inquiry from the prosecutrix whether she was induced by SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 13 of 35 14 anyone and whether she was sexually assaulted to which the prosecutrix replied in negative. She then deposed that she along with HC Surgyan took the victim and her father to MV hospital for her medical examination where she was medically examined and thereafter produced the victim before the concerned Court for her statement u/s.164 CrPC and thereafter the custody of the prosecutrix was handed over to her father vide memo Ex.PW7/A. 33 The PW12, ASI Inderjeet Singh, was marked inquiry of DD No. 19A i.e. Ex.PW11/A and he deposed that after receiving the information about abandoned girl, he along with one Constable reached the informed place and found public persons and a girl present there. He then deposed that on inquiry the name of the girl was found 'M' and she told him that she had forgotten the address of her house and that on persistent inquiry the victim disclosed that her house was at Metro Vihar. He further deposed that he took the victim child to the said area where she identified her house with difficulty and that her parents were not found available there and that the persons from the neighbourhood told him (PW12) that a missing report had already been lodged by the parents of the child at the PS. The PW12 further deposed that he took the victim child to the PP Metro Vihar where HC Surgyam met him and told him that a case had already been registered regarding the victim child and that he (HC Surgyan) was the IO of the case and that he (PW12) handed over the custody of the child to HC Surgyan and mentioned the same in DD register vide DD No. 70B. He proved the true copy of DD No.70B as Ex.PW12/A. SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 14 of 35 15 34 The PW4, SI Anju, is the part investigating officer in the present case. She deposed that on 18.09.2012, complaint Ex.PW3/A of Sh. Dalip s/o Sh. Suresh Rai was marked to her and that after receiving the said complaints, he made inquiry from the victim, who was 10 years of age, and her parents and recorded their statements u/s.161 CrPC and that she also recorded the statement of victim in question answer form wherein the victim disclosed that one uncle residing in her neighbourhood at Sannot had committed wrong act with her. The PW4 then deposed that she took the victim to BSA Hospital for her medical examination with her parents and one Lady Constable and got the victim medically examined and that after her medical examination, the concerned doctor had handed over samples taken from the victim and one sample seal to PW4 which were taken into possession by her vide memo Ex.PW4/A and that thereafter the victim was handed over to her parents vide handing over memo Ex.PW4/B. The PW4 further deposed that since the complainant had shifted his residence, after the incident, from Village Sannot to Metro Vihar, she took the victim and her parents to Village Sannot on the night intervening 18 / 19.09.2012 to search for the accused and that the prosecutrix led them to the house of accused Ganga Ram where he was found sleeping and that the prosecutrix pointed towards the accused and told her (PW4) that he was 'takloo uncle' as at the time of incident the accused was bald (without hair). The PW4 then deposed that the accused was arrested vide arrest memo Ex.PW4/C and his personal search was also conducted vide personal search memo Ex.PW4/D and that the accused made his disclosure statement vide Ex.PW4/E and that pursuant to his disclosure statement, the SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 15 of 35 16 accused pointed out the place near shop of Radhey Baniya from where he had recovered victim, vide pointing out memo Ex.PW4/F and that thereafter he also pointed out the place of incident, i.e. where he had committed rape upon the victim, vide pointing out memo Ex.PW4/G and that the PW4 also prepared site plan Ex.PW4/H at the instance of prosecutrix. The PW4 further deposed that thereafter accused was got medically examined at Maharishi Balmiki Hospital and after his medical examination, the concerned doctor had handed over blood sample of accused and one sample seal to her which were taken into possession by her vide seizure memo Ex.PW4/J and that thereafter accused was brought back to PS and put inside the lock up.
The PW4 further deposed that on the same day, she moved an application Ex.PW4/K for recording the statement of prosecutrix u/s.164 CrPC before learned MM and that she obtained the copy of the statement of prosecutrix u/s.164 CrPC i.e. Ex.PW4/L vide her application Ex.PW4/M and that she deposited the exhibits with the MHCM and that the same were sent to FSL Rohini later on. The witness also deposed that she produced the victim before CWC wherein the victim was counseled vide report of CWC Ex.PW4/N and that after completion of investigation, she prepared the chargesheet and filed the same before the concerned Court through SHO concerned.
35 During the crossexamination by learned amicus curie, the PW4 denied that the accused had been falsely implicated in the present case at the instance of parents of prosecutrix. She admitted that the prosecutrix had SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 16 of 35 17 not stated anything against the accused in her statement u/s.164 CrPC. She volunteered to state that prosecutrix was not very fluent in speaking and that she appeared to be having some speech problem and spoke with gaps between her words and sentences. The PW4 further deposed that the prosecutrix was handed over by CWC to her parents vide restoration form No.9 i.e. Ex.PW4/DA wherein the father of the prosecutrix had written that he had received his daughter i.e. prosecutrix in good and proper condition and that the said written statement of father of prosecutrix was on the back page of Ex.PW4/DA from point "X" to "X".
36 The PW15, L/Ct. Sudesh, had joined the investigation of the case with IO W/SI Anju and had got the victim medically examined at BSA Hospital and deposed regarding the same.
37 The PW13, Ct. Rajender Singh, had deposited the exhibits of the present case with FSL, Rohini, vide RC No.188/21/12 and deposed regarding the same. He proved the copy of RC and original acknowledgment receipt as Ex.PW13/A and Ex.PW13/B respectively. 38 The PW14, HC Murari Lal, was posted as MHCM at PS Shahbad Dairy at the relevant time. He produced the original register Nos. 19 and 21 and proved the relevant entry regarding deposit of the case property as Ex.PW14/A and the copy of RC and acknowledgment receipt as Ex.PW13/A and Ex.PW13/B respectively.
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 17 of 35 18 39 The PW22, Ms. Meenu Kaushik, learned MM, had conducted the proceedings u/s.164 CrPC on 18.08.2012 and proved the same as Ex.PW22/A to Ex.PW22/D i.e. the application filed by IO for recording of statement of victim child u/s.164 Cr.P.C as Ex.PW22/A ; statement of victim child u/s.164 CrPC as Ex.PW22/B ; the certificate given by PW22 as Ex.PW22/C and application for supply of copy of said statement, filed by IO, as Ex. PW22/D. 40 The PW23, Sh. Ajay Nagar, learned MM, had conducted the proceedings u/s.164 CrPC on 19.09.2012 and proved the same as Ex.PW23/A to Ex.PW23/D i.e. the application filed by IO for recording of statement of victim child u/s.164 Cr.P.C as Ex.PW23/A ; statement of victim child u/s.164 CrPC as Ex.PW23/B ; the certificate given by PW23 as Ex.PW23/C and application for supply of copy of said statement, filed by IO, as Ex.PW23/D. 41 The PW5, Dr. Amit Shokeen, was working as Medical Officer on 19.09.2012 and he deposed that on that day, patient - accused was examined by him vide MLC Ex.PW5/A. He further deposed that on the basis of examination, he opined that on physical examination of genital organs there was nothing to suggest that patient is not capable of sexual intercourse.
He further deposed that on 18.08.2012, patient - victim M was also examined by him vide MLC Ex.PW5/B. SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 18 of 35 19 42 The PW6, Dr. Nidhi, SR Gyne, deposed that on 18.09.2012 patient - victim M was examined by Dr. Pooja, then SR Gyne. She proved the MLC of the victim M as Ex.PW6/A by identifying handwriting and signatures of Dr. Pooja thereupon. She further deposed that as per observations on MLC Ex.PW6/A, Dr. Pooja found abrasions on right labia majora of the patient and that hymen of the patient was also ruptured. 43 After closing of prosecution evidence, statement of accused Ganga Ram was recorded u/s 313 Cr.P.C. Accused stated that he was innocent and had been falsely implicated in this case by the prosecutrix/victim as well as her parents. He further stated that he had nothing to do with the offence of the present case. The accused declined to lead evidence in his defence.
44 Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State. 45 Learned Additional PP has contended that the prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has prayed that accused be convicted for the charged offences. 46 On the other hand, learned amicus curie for accused has contended that accused is innocent and has been falsely implicated in the present case. It is further submitted that the victim was neither recovered from the possession of the accused nor had she stated against the accused SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 19 of 35 20 in the first instance. In this regard he has relied upon the MLC dated 18.08.2012 and the statement of the victim u/s. 164 CrPC dated 18.08.2012. It is further contended that the present case has been filed after due deliberation by the parents of the victim as the father of the victim had taken loan from the accused which he did not want to repay and that with this intention a fresh complaint was made by the mother of the victim and another MLC dated 18.09.2012 was got prepared and statement of victim u/s. 164 CrPC dated 19.09.2012 was got recorded to falsely implicate the accused in the present case. It is stated that the delay in naming the accused does not stand explained by the prosecution. It is further contended that there are material discrepancies in the statement of the parents of the victim in as much as Sh. Dilip Kumar, father of the victim, has not stated anything against the accused. It is thus contended that the prosecution has miserably failed to prove its case against accused and it is prayed that the accused be acquitted of the charged offence.
47 I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
48 In the present case, accused is alleged to have kidnapped a minor girl, aged about 10 years, and further of having taken her to his house at Village Sannoth, where he committed rape upon her between 11.08.2012 to 18.08.2012.
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 20 of 35 21
49. The first issue which arises for consideration is that whether the victim M was a "minor" as on the initial date of commission of the offence. In the present case, the age of the victim child M has not been disputed by the learned defence counsel. Even otherwise, in order to prove that the victim was less than 18 years of age as on the date of offence, the prosecution has examined Smt. Ramwati, Principal, MC Primary Girls School, Sannoth Village, who produced the school record of the victim child M, as PW1. In the record Ex. PW1/A to Ex. PW1/D produced by PW1, the date of birth of victim mentioned as 15.07.2002. No tampering or manipulation was seen in record produced by PW1. Thus, from the record produced by PW1, prosecution has succeeded in proving that victim 'M' was a child aged about 10 years at the time of commission of offence.
50. The next issue which arises for consideration is whether, accused had kidnapped the victim child and violated her sexually. The instant case was registered on 12.08.2012 on complaint made by father of the victim, who reported that his daughter M had been missing since 8:00 AM on 11.08.2012. In the said complaint, father of the victim M did not express suspicion on any one for kidnapping his daughter. As per the case of the prosecution, the victim was found abandoned on 18.08.2012 and was recovered from village Sannoth on information given vide DD No.19A to PS Narela. After being recovered statement of victim was recorded u/s. 161 CrPC on 18.08.2012 itself, wherein she deposed that : SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 21 of 35 22 "Mein pata uprokat par apne mata pita ke sath rehti hu aur kaksha panchvi me padati hu aur dinak 11.08.2012 ko subah ghar ke pas park me khel rahi thi toh khelte khelte gaon Sannot ki taraf chali gayi aur wapas aane ke liye rasta bhul gayi aur Sannot gaon me ghumti rahi aur raat ko ek aunti thi jiske pas so jati thi. Mein Sannot gaon me fourth kaksha tak padi hu jo mujhe mere sath ki kaksha ke bachhe pehchan gaye unke sath din me khelti thi aur aaj dinak 18.08.2012 ko policewale mujhe lekar aaye mujhe koi behla fuslakar nahi le gaya, mein swayam him khelte khelte rasta bhul gayi thi."
51. The victim was also taken for her medical examination and was examined vide MLC Ex.PW5/B, wherein no external injury was recorded by the concerned doctor. The victim was produced for her statement u/s. 164 Cr.P.C. i.e. Ex.PW22/B on 18.08.2012, wherein she deposed as under : "Mein kuch din pehle apni dost A... ke ghar gayi thi, waha mein rasta bhul gayi thi. A... schol se aage rehti hai. Mein do din kho gayi thi. Mein do din A... ke ghar rahi. A... ke papa ne police ko phone ki toh Police aa gayi. Police ke sath mere papa bhi aaye the. Aaj subah mujhe papa police ke sath lene aaye the."
52. On 18.09.2012, the father of the victim made further complaint alleging that during the period the victim had gone missing from the house, she had been kidnapped by the accused, who also committed rape upon her. SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 22 of 35 23 Pursuant to said complaint Ex.PW3/A, the statement of victim was recorded u/s. 161 CrPC, in which she stated as under : Q. Apka naam kya hai ?
Ans. M....
Q. Apke pitaji ka naam kya hai ?
Ans. Dilip Kumar.
Q. Apki mataji ka naam kya hai ?
Ans. Pooja Devi.
Q. Aap kaha rehte ho ?
Ans. Metro Vihar.
Q. Kitne saal ke ho ?
Ans. 10 saal.
Q. Kaun si kaksha me padte ho ?
Ans. Panchvi.
Q. Apko kaun lekar gaya tha ?
Ans. Taklu uncle.
Q. Kaha lekar gaya tha ?
Ans. Apne ghar lekar gaya tha.
Q. Apke sath kya kiya ?
Ans. Mere sath galat kam kiya.
Q. Aap wapas kaise aaye ?
Ans. Uncle ne dhamkakar ghar se nikal diya.
Q. Phir aap kaha gaye ?
Ans. A.... ke sath uske ghar chali gayi."
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 23 of 35 24 Thereafter the victim was got medically examined again on 18.09.2012 vide MLC Ex.PW6/A. The said MLC revealed abrasion on the right labia majora of the victim. Her hymen was also found ruptured.
53. On 19.09.2012, the victim was also produced for her statement u/s.164 Cr.P.C. In the said statement recorded on 19.09.2012 i.e. Ex.PW23/B, the victim deposed as under : "Q. Aap beta apne ghar se achanak gayab ho gaye the, kaha gaye the ?
Ans. Park me khelne ke liye gaye the.
Q. Kiske sath gaye the ?
Ans. Akele.
Q. Beta fir kya hus tha ?
Ans. Dukan par woh budha khada tha.
Q. Phir kya hua ?
Ans. Woh budha ration lekar aaya tha.
Q. Phir kya hua beta ?
Ans. Phir woh buddah apne ghar le gaya.
Q. Woh Budha kaun tha ?
Ans. Police ne pakad liya.
Q. Woh samne aa jaye to beta kya aap pehchan loge ?
Ans. Woh takla tha. Safed ganji pehnate the. Dadi nahi tha. Muchhe nahi thi. Lambe baal nahi the.
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 24 of 35 25 Q. Uss budhe takle uncle ko apne pehle bhi kabhi dekha tha ?
Ans. Nahi.
Q. Taklu uncle kaha lekar gaye tha ?
Ans. Apne ghar.
Q. Phir usne kya kiya ?
Ans. Phir usne kachhi kholi. Phir 10 baje ghar se bhaga diya.
Q. Phir usne kya kiya ?
Ans. Apna peth suta raha tha (Peth par sula raha tha).
Q. Beta kya usne apke sath koi ganda kaam kiya ?
Ans. Ha.
Q. Phir kya hua ?
Ans. Phir woh mujhe bechne ke liye gaya.
Q. Beta uss budhe uncle ne apke sath ganda kaam kiya tha yah nahi ?
Ans. Ha, bus itna hi chhuti kar do meri."
Q. Beta kaun le gaya tha apko ?
Ans. Woh budha.
Q. Aap beta ghar kiske sath jaoge ?
Ans. Mummy ke sath.
Q. Apko uss taklu uncle ka naam pata hai ?
Ans. Nahi pata.
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 25 of 35 26 Q. Agar wah taklu budha uncle samne aa jaye toh kya aap pehchan loge ?
Ans. ha."
54. The victim appeared to depose before the Court on 19.08.2013. Perusal of record shows that initially the victim M as well as her parents were reported to be untraceable. Sh. Dilip Kumar, father of the victim, was produced before the Court for examination on 07.06.2013 and in his testimony he stated that he was unaware about the whereabouts of victim as well as his wife as his wife had left him along with two children, including the victim M. On the same day, HC Surgyan, the IO of the case was examined. He submitted that mother of the victim had taken all her five children, including the victim child, with her and that Sh.Dilip Kumar had gone and brought back three children from her. It was apparent that Sh. Dilip Kumar was concealing the correct whereabouts of the victim child and his wife and IO HC Surgyan had also failed to keep a track of the victim child though he knew that the victim child and her mother had left their previous address. Accordingly, directions were issued to DCP Outer District to have the witnesses traced out and to produce them before the Court. Pursuant to the order dated 07.06.2013 passed by the Court Smt. Pooja, mother of the victim, appeared to depose on 28.06.2013 and also produced the victim for deposition on 19.08.2013. The victim M was produced before this court and was examined as PW21. In the relevant portion of her testimony, victim child M has deposed as under : SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 26 of 35 27 Q. Kya hua tha ?
Ans. Me pehle Holambikalan me rehti thi, me park me khelne gayi thi.
Q. aap ke sath aur bhi koi gaya tha ?
Ans. Nahi.
Q. Phir kya hua ?
Ans. Phir dukan par bhudha mila.
Q. Phir kya hua ?
Ans. Usne chij dilayi aur apne ghar le gaya.
Q. Phir kya hua ?
Ans. Phir usne meri pant uttari mujhe behosh kar diya.
Q. Kaise behosh kiya ?
Ans. Pata nahi.
Q. Phir kya hua ?
Ans. Phir patanahi mujhe dard hua.
At this stage, the witness hesitated in answering where she felt pain. On being coaxed, she pointed towards her private parts and stated that she felt pain there.
Q. Phir kya hua ?
Ans. Budha ne ghar me band kar diya.
Q. Phir kaise aap bahar nikale ?
Ans. Budha ne baga diya.
Q. Budhe ne kapade pahne the ?
Ans. Usne kapde pehne the.
Q. Apke kapde kaha the ?
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 27 of 35
28
Ans. Usne mere kapde jala diye.
Q. Apne kya kya pehna tha ?
Ans. Maine kali pant pehni thi (the witness has pointed
towards her legging and states that she was wearing a new black legging on that day) aur hari frock, woh bhi nai thi. Papa laye the. Aur kachhi bhi pehni thi.
Q. Uske baad kya hua ?
Ans. Police aa gayi thi.
Q. Police kaha par aayi thi ?
Ans. Aanchal ke ghar me.
Q. Aap Aanchal ke ghar me kaise gayi ?
Ans. Jab Budha ne chhod diya toh me Aanchal ke ghar
chali gayi.
Q. Waha se kaha gaye ?
Ans. Police chowki gayi.
Q. Phir kaha gaye ?
Ans. Aspatal (hospital) gayi.
Q. Aap pehle kabhi court me aaye ho ?
Ans. Ha aayi thi, aunty se mili thi.
Q. Unn aunty ko apne sab bata diya tha ?
Ans. Ha.
The witness identified her name on her statements u/s 164 Cr.P.C dated 18.08.2012 and 19.09.2012 i.e. Ex. PW4/Land Ex. PW23/A, respectively. She further identified the accused in the court. SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 28 of 35 29
55. During her crossexamination by learned Amicus Curie, the PW21 deposed as under : Q. Kya police ne aapse pucha tha iss sab ke bare me ?
Ans. Ha.
Q. Kya police ko apne sari baat jaise aaj batayi hai,
bata di thi ?
Ans. Ha.
Q. Kya jab pehle court me aaye the tab bhi sari baat
batadi thi ?
Ans. Ha.
Q. Kya aap Budha ko pehle se jante ho ?
Ans. Ha. Woh Sannot me rehta hai.
Q. Aap Anchal ke ghar gayi thi toh waha par apne
Aanchal ko yah uski mummy ko kuch bataya tha ?
Ans. Ha, Aanchal ki mummy ko bataya tha.
Q. Kya apne apni mummy aur papa ko milne ke bad
bhi sari baat batayi thi ?
Ans. Mummy ko batayi thi.
Q. Kya aap Budha ka ghar bata sakte ho ?
Ans. Ha.
Q. Uske ghar kaisa tha ?
Ans. Uska kaunewala ghar tha,
Q. Apne jo bhi aaj bataya hai woh apko aaj mummy ne
bataya hai ?
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 29 of 35
30
Ans. Nahi, apne aap bata rahi hu.
Q. Kya apko aaj policewale ne bataya hai ki aaj kya
bolana hai ?
Ans. Nahi.
56. In the present case, as already observed hereinabove, the victim went missing on 11.08.2012 and was traced out on 18.08.2012. As is evident from her MLC Ex. PW5/B, no injuries were observed on the person of the prosecutrix on 18.08.2012. The complaint regarding rape having been committed upon the victim was made after about one month of her recovery i.e. on 18.09.2012. The MLC Ex. PW6/A of the victim, which was prepared on 18.09.2012 reflects that the victim was having abrasions on her right labia majora and her hymen was also found ruptured.
57. In order to explain the delay in reporting of rape to the police, it has been contended by learned Addl. PP that the victim was unable to disclose about the matter to any one out of fear. However, the conduct of the mother of the victim does not justify the delay in reporting the matter to the police. From the statement of PW19, mother of the victim, it is brought out that when she had taken the victim home on 18.08.2014, she had observed that victim was not wearing the same underwear, which she was wearing, when she had gone missing. She (PW19) has also deposed that she had found some blood stains on the underwear of the victim and that when she tried to take off the clothes of the victim to give her bath, her daughter i.e. the victim did not allow her to do so and started crying and SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 30 of 35 31 appeared to be scared. It is not clear from the testimony of PW19 as to when, she observed blood stains on the underwear of the victim for the first time and when she gave bath to the victim, for the first time, after taking the victim back to home, with her on 18.08.2012. If the observations of injuries made by the concerned doctor on the MLC Ex. PW6/A of victim prepared on 18.09.2012, is correct, then it would mean that the victim continued to have injuries on her person/private parts even one month after the incident and a natural logical conclusion arising therefrom would be that she must have had noticeable injuries on her private parts, when she was taken for her initial medical examination on 18.08.2012. However, neither the doctor who prepared her MLC Ex. PW5/B (on 18.08.2012), nor the police officials and the parents of the victim observed any unusual behaviour discomfort or injury on the person of the victim on 18.08.2012. If the victim continued to have bleeding during period intervening 18.08.2012 (day she was recovered) and 18.09.2012 (the day rape was reported), then other persons would have also noted traces of said bleeding and this includes PW9 Smt. Manju and PW10 Vinod (parents of child A) with whom, the victim had stayed over night, before being reported abandoned on 18.08.2012, and PW20 Abdul Jabar, who had given information about victim to PS Narela. It was for the prosecution to prove that the victim had sustained injuries to her private parts on account of sexual assault committed on her between 11.08.2012 and 18.08.2012 and that she continued to bear traces of said injuries till 18.09.2012 by adducing relevant medical and ocular evidence, but the prosecution has failed to do so. Considering that there was a gap of about one month between the first MLC Ex. PW5/B dated 18.08.2012 and second SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 31 of 35 32 MLC Ex. PW6/A dated 18.09.2012, the possibility of victim having been sexually assaulted by some one, during period intervening 18.08.2012 and 18.092012, cannot be ruled out. In these circumstances, the fact that there is no witness, who had seen the accused kidnapping the victim child and/or having the victim child in his custody/possession between 11.08.2012 to 18.08.2012 becomes very relevant. None of the neighbours of the accused have been examined to establish that the victim was seen near about the house of the accused, let alone in the house of the accused during the relevant period. Even, Radhey Baniya, to whose shop, victim is stated to have gone on 11.08.2012 has not been put forth as a witness to establish the link between the accused and the victim.
58. Ld. Addl. PP has contended that the victim has leveled specific allegations against the accused in her statement u/s 164 Cr.P.C dated 19.09.2012 i.e. Ex. PW23/B as well as her deposition before the court as PW21 and that there is no reason for victim to have deposed against the accused. It is true that the testimony of child witness is as reliable as that of any other witness. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his/her deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 32 of 35 33 However, it is also equally necessary that the testimony of a child witness be appreciated in light of the other evidence adduced on record as well as the facts and circumstances of the case. In the present case, the delay of one month in reporting the rape does not stand explained satisfactorily by the prosecution. In fact, PW19 Smt. Pooja, mother of the victim has stated in her deposition that she had been told by the victim after about 10/15 days that accused Ganga Ram had committed rape upon her. The fact that the PW19 Smt. Pooja had been disclosed about the factum of rape by the victim child and she herself claims to have noticed unusual behaviour of victim, while she (PW19) tried to give her bath as also blood stains on her underwear, makes the conduct of PW19 in reporting the matter to the police, after lapse of further period of 15/20 days, does not stand explained. In these circumstances, the possibility of victim child, who was aged only about 10 years being tutored can also not be ruled out.
59. It is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, " A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 33 of 35 34 able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
60. In case of Pancchi Vs. State of U.P., AIR 1998 SC 2726, it was further held : "It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring."
61. In the present case, after assessing the evidence of child witness M, in the light of attendant facts and circumstances, it is difficult to rely upon the testimony of child M/PW21 alone to draw a conclusion abut the guilt of the accused.
62. The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has failed to prove its case against SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 34 of 35 35 the accused, beyond the reasonable doubts. Accordingly, I acquit the accused Ganga Ram from the charged offence, giving him benefit of doubt.
63. File be consigned to Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 02.12.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 91/12 : State Vs. Ganga Ram : Page Nos. 35 of 35