Delhi District Court
State vs . Mohd. Parvez on 11 July, 2013
State Vs. Mohd. Parvez
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 32/11
ID No. 02401R0721092007
FIR No. : 236/2006
Police Station : Nabi Karim
Under Section : 354/325/341/377/376 IPC
State
Versus
Mohd. Parvez
S/o Aman Ullah
R/o A-694, Prem Nagar,
Nabi Karim, Delhi
..........Accused
Date of Institution : 26.07.2007
Date of Committal : 16.08.2011
Date of Judgment reserved : 02.07.2013
Date of judgment : 11.07.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. G.A Madni Advocate, counsel for the accused
SC No. 32/11 Page 1 of 22
State Vs. Mohd. Parvez
JUDGMENT:
1. Briefly stated facts of prosecution case are that on August 11, 2006 at about 10.22 PM, an intimation was received at police station Nabi Karim that galat-kam had been committed with a girl aged about three years old near H. No. A694 Sita Ram Mandir. The said information was recorded vide DD No.37 A (Ex. PW4/A) which was assigned to SI Rajbir Singh, who along with Const. Rishi Kumar left for the place of occurrence.
(i) On reaching there, it was revealed that the victim had already been taken to the hospital by PCR van. Accordingly, SI Rajbir Singh along with constable reached Lady Harding hospital and collected the MLC of victim whereupon doctor endorsed that hymen was found ruptured. (since girl is a victim of rape, her identity is withheld and hereinafter she is referred to as victim). Father of victim also met in the hospital and got recorded his statement (Ex.PW2/A) to the investigating officer (in order to conceal the identity of rape victim, the name of father of victim is also withheld and hereinafter he is referred to as complainant)
(ii) Complainant (PW2) in his statement alleged that on August 11, 2006 at about 10 PM while he was present at his house, his daughter i.e. victim aged about 4 years came to the house while weeping and on being asked victim told that one boy had lifted her in his lap and kissed her and she also complained pain in her vagina. Consequently, he checked the under-wear of his daughter (victim) and found that it was wet but could not ascertain about its cause as the colour of under-wear was black.
Accordingly, he asked his wife (PW4) (since she is mother of victim, in SC No. 32/11 Page 2 of 22 State Vs. Mohd. Parvez order to conceal the identity of victim, her name is also withheld and hereinafter she is referred to as mother of victim or wife of complainant) and after checking, PW4 told him that 'galat-kam' had been committed with their daughter. It was alleged that on being asked, victim told them that one boy had inserted his finger in her vagina and that boy was wearing black & white shirt and black pant. Accordingly, they took the victim near Sita Ram Mandir where Ashu (PW7) met them and told that Parvez had committed 'galat-kam' with the victim and he was residing in a house opposite to the temple. PW7 further told them that Parvez was kissing the victim while sitting on the stairs of temple. Accordingly, complainant made a call to the police on 100 number. Consequently, PCR van reached there and took the victim to the hospital.
(iii) During investigation, investigating officer had seized the exhibits, arrested the accused and sent the exhibits to the FSL.
2. After completing the investigation, challan was filed for the offence punishable under Section 354/325/341 IPC. Accordingly, Court of learned Metropolitan Magistrate proceeded with the matter in accordance with law and framed a charge against the accused for the offence punishable under Section 354/377/323 IPC to which accused pleaded not guilty and claimed trial.
3. During the trial, parents of the victim were also appeared in the witness box and they were examined as PW4 and PW5 wherein they deposed that their girl was raped by the accused. Accordingly, vide order dated August 8, 2011 learned Metropolitan Magistrate took the cognizance for the offence punishable under Section 376 IPC also and committed the SC No. 32/11 Page 3 of 22 State Vs. Mohd. Parvez case to the Court of Sessions. Thereafter, the case was assigned to this Court on August 16, 2011. Accordingly, case was registered as SC No. 32/2011.
4. Vide order dated September 19, 2011, a charge for the offence punishable under Section 376 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 11 witnesses:-
PW1 HC Sant Ram, duty officer, proved the FIR
PW2 Complainant, father of victim, material witness
PW3 Const. Rishi Kumar, joined the investigation with IO
PW4 SI (Retired) Ram Kewal Singh, formal witness, proved
DD No. 37A
PW4 Wife of complainant and mother of victim, material
witness
PW5 Brother of complainant (his identity is withheld being
the relative of victim)
PW6 Gaurav Kumar, material witness but turned hostile
PW7 Ashu, material witness
PW8 Vishal Aggarwal, material witness
PW9 Vijender Singh, formal witness
PW10 Victim
PW11 SI Rajbir Singh (Retired), investigating officer
6. On culmination of prosecution evidence, accused was examined SC No. 32/11 Page 4 of 22 State Vs. Mohd. Parvez under Section 313 Cr.P.C wherein he denied all the evidence led by the prosecution and submitted that he has been falsely implicated in this case. However, he refused to lead evidence in his defence.
7. Learned counsel appearing for accused astutely contended that there is no iota of evidence to prove the culpability of accused for the offence punishable under Section 376 IPC as the victim did not depose that accused had committed any rape upon her. It was argued that victim had only deposed that accused had inserted his finger in her vagina, thus it was argued that the act of accused does not attract the provisions of Section 376 IPC. It was further contended that the parents of the victim and other witnesses have made substantial improvements in their deposition, thus no reliance can be placed on their testimony. It was further contended that though victim had identified the accused but no reliance can be placed on her testimony as victim was just 3-4 years old in the year 2006 at the time of incident whereas her testimony was recorded in the Court in the year 2013, thus it is highly improvable that the victim could identify the accused after such a long period. It was submitted that the possibility that the victim was tutored by her parents cannot be ruled out. It was further contended that there are no cogent evidence on record to establish the identity of accused, thus accused is entitled for benefit of doubts.
8. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing sagaciously that though victim had not deposed that she was raped by the accused but her testimony is sufficient to prove the culpability of the accused for the offence punishable under Section 354 IPC. It was further contended that since the accused had lifted the victim in his lap it amounts kidnapping, thus accused is also liable for the offence SC No. 32/11 Page 5 of 22 State Vs. Mohd. Parvez punishable under Section 363 IPC. It was further contended that since the victim and the other witnesses at whose instance accused was arrested have categorically identified the accused during the trial, there is no reason to disbelieve their testimony. Accordingly, learned Additional Public Prosecutor submitted that prosecution has succeeded to prove the guilt of accused for the offence punishable under Section 354/363 IPC.
9. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that counsel for both the parties failed to cite any case law in support of their contentions.
10. First question emerges as to whether the act of offender fulfils the requirement of Section 375 IPC or not?
11. Though learned Additional Public Prosecutor fairly conceded that that the act of offender does not fall within the four corners of Section 375 IPC yet, I proceed to examine this issue in detail.
12. 'Rape' is defined under Section 375 IPC and same reads as under:-
375. Rape.-- A man is said to commit" rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is SC No. 32/11 Page 6 of 22 State Vs. Mohd. Parvez interested in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age.
Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
13. Bare perusal of Section 375 IPC reveals that to constitute the rape, there must be sexual inter-course between male and female. Though the word 'sexual inter-course' has not been defined under the Penal Code, yet in common parlance, it means there must be contact between a male organ and a female organ. As per Section 375 IPC, mere penetration is sufficient to constitute the sexual inter-course.
14. Section 377 IPC prescribes the punishment for unnatural offence and same reads as under:
"377. Unnatural offences.-- Whoever voluntarily has SC No. 32/11 Page 7 of 22 State Vs. Mohd. Parvez carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."
15. The dictionary meaning of carnal is fleshly; sensual unspritual bodily sexual murderess and flesh eating.
16. To make out a case under Section 377 IPC, the carnal inter- course should be against the order of nature with any man, woman or any one. Thus, if a male inserts any alien object in the female organ, it would amounts carnal inter-course against the order of nature.
17. Now coming to the fact of the present case.
18. PW10 (victim) is the star witness of the prosecution case. Though prosecution case was that accused had committed rape upon PW10, yet PW10 did not support the prosecution case on this count as she categorically deposed that the wrongdoer put his finger in her shoo-shoo (vagina). The said testimony is not even disputed by the prosecution as the learned Additional Public Prosecutor did not cross-examine the witness on this point. Thus, prosecution admits the testimony of PW10 to the extent that the wrongdoer i.e. accused had only put his finger in the vagina of victim and had not committed rape upon her. Putting of finger in the vagina is not sufficient to attract the provisions of Section 375 IPC. However, the SC No. 32/11 Page 8 of 22 State Vs. Mohd. Parvez said act is sufficient to attract the provisions of Section 377 IPC as it amounts carnal inter-course against the order of nature.
19. As per Section 377 IPC, penetration is sufficient to constitute a carnal inter-course. Thus, as soon as the wrongdoer inserted his finger in the vagina of PW10 (victim), it amounts unnatural offence, which is punishable under Section 377 IPC. Moreover, the testimony of PW10 gets strength from the MLC of the victim wherein it is recited that the hymen was found ruptured. The said MLC was not disputed by the learned defence counsel during the trial. On April 1, 2013, counsel appearing for accused made a statement that he admitted the MLC of victim and he shall not dispute the genuineness and admissibility of MLC during the trial. On the basis of said statement, learned Additional Public Prosecutor did not examine the doctor who prepared the said MLC. Thus, from the testimony of PW10 and MLC, it is established beyond the shadow of doubt that the wrongdoer had inserted his finger in the vagina of victim and due to that reason her hymen was ruptured.
20. PW2 and PW4 are the parents of victim and they attempted to establish that rape was committed upon their daughter. PW2, in his examination-in-chief deposed that the victim told him that a boy had lifted her in his lap and he had also opened the zip of his pant and thereafter, pushed her downward; when she raised the alarm, boy had pressed her mouth. He further deposed that victim did not tell him that that boy had inserted his finger in her private parts. Similarly, PW4 deposed that the boy took the victim in his lap and started kissing her. Thereafter, that boy had taken out his penis after opening the zip of his pant and also removed the undergarment of victim. She further deposed that the victim told her that SC No. 32/11 Page 9 of 22 State Vs. Mohd. Parvez when the boy had inserted something in her vagina, she had a lot of pain. However, during the cross-examination, their testimony to that extent was got duly confronted. PW2 in his cross-examination deposed that he had stated to the police in his statement Ex. PW2/A that on asking, victim told him that boy had opened the zip of his pant and pushed her downward and when she raised the alarm that boy had pressed her mouth. But same was not mentioned therein. Similarly, PW4, in her cross-examination deposed that she had stated to the police in her statement Ex. PW4/DA that victim told her that the boy had taken out his penis after opening the zip of his pant and also removed her undergarment and when that boy inserted something in her vagina, she had a lot of pain. But the said part of testimony was not mentioned in her statement Ex. PW4/DA. Thus, from the testimony of PW2 and PW4, it becomes abundantly clear that they had made substantial improvements in their testimony to bring home the act of wrongdoer within the definition of Section 375 IPC. Neither the said fact is mentioned in their previous statements made to the police; nor victim corroborated their testimony. Thus to my mind, no reliance can be placed on their testimony to the extent that that boy had taken out his penis after opening the zip of his pant and ups-down the victim in his lap.
21. PW7 & PW8 are also star witnesses of the prosecution case. PW7 in his examination-in-chief deposed that accused was doing ups and down the victim in his lap and and at that time, accused had removed his pant half and also down the salwar of the victim. Similarly, PW8 in his examination-in-chief deposed that accused was kissing the victim and caressing the girl (victim) and further deposed that accused had removed the penty of the girl. However, in their cross-examination, the said testimony was got duly confronted. PW7 in his cross-examination deposed SC No. 32/11 Page 10 of 22 State Vs. Mohd. Parvez that police had recorded his statement and he did not state to the police that accused had put down the salwar of the girl and accused had put down his pant half and further deposed that he had not stated to the police that accused was doing the girl ups and down in his lap. Thus, it becomes clear that PW7 had made substantial improvements in his deposition. Similarly, PW8 in his cross-examination deposed that police had recorded his statement Ex. PW8/DA and he had stated to the police that accused had removed the penty of the girl but the same is not recited in his statement Ex. PW8/DA, thus it becomes clear that he had also made substantial improvements in his deposition.
22. From the testimony of PW2, PW4, PW7 and PW8, it becomes clear that they had made substantial improvements in their deposition when entering the witness box. But they failed to give any reasonable explanation about the said improvements. Since, the said improvements affects the core of prosecution case, thus I am of the view that no reliance can be placed on their said testimony. Moreover, their testimony also did not get support from the victim who only deposed that the wrongdoer had inserted his finger in her vagina and not the penis. Similarly, their testimony also does not get support from the FSL report as no semen was found on the exhibits of the victim.
23. In the light of above discussion, I am of the considered opinion that no reliance can be placed on the testimony of PW2, PW4, PW7 and PW8 wherein they made an attempt to bring the act of wrongdoer within the four corners of Section 375 IPC.
24. Now coming to the contentions raised by leaned Additional SC No. 32/11 Page 11 of 22 State Vs. Mohd. Parvez Public Prosecutor that the act of accused is sufficient to attract the provisions of Section 363 IPC.
25. Kidnapping is defined under Section 361 IPC and same reads as under:-
361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under [ sixteen] years of age if a male, or under [ eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.- The words" lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
26. Indisputably, the investigating agency had not filed the charge- sheet for the offence punishable under Section 363 IPC. Thus, it is admitted case of the prosecution that there was no allegation against the accused for the offence punishable under Section 363 IPC. Despite that learned Additional Public Prosecutor vigorously contended that accused had committed the offence punishable under Section 363 IPC.
27. Though the prosecution has examined as many as 11 witnesses, yet prosecution case is based on the testimony of PW10 who in her testimony deposed that she could not reach the house as one person met her near Mandir and further deposed that that person lifted her in his arm. In her entire deposition, she nowhere deposed that the said person SC No. 32/11 Page 12 of 22 State Vs. Mohd. Parvez had taken her away any other place. Learned Additional Public Prosecutor contended that since the accused had lifted the victim in his lap; it amounts taking away the victim from the lawful guardianship of the victim. As already stated victim in her entire deposition nowhere deposed that the said person had taken away her anywhere. Though as per prosecution version, the alleged incident had taken place in the presence of PW8 & PW9 but their testimony is not helpful to the prosecution to prove the culpability of accused for the offence under Section 363 IPC. Both the witnesses in their testimony no where deposed that they had seen the accused taking the victim anywhere. They only deposed that they saw the accused with the victim. PW7 deposed that accused and victim were sitting at the stairs of the temple whereas PW8 deposed that they were sitting on the chabutra near the temple.
28. To prove the culpability of accused under Section 363 IPC, prosecution is duty bound to establish beyond the shadow of doubt that accused had taken the victim or enticed the victim out of the keeping of the lawful guardianship of the victim. No doubt PW10 deposed that the said boy had lifted her in his lap but question is mere lifting a girl in the lap amounts taking the victim out of the keeping of lawful guardianship of the girl?
29. To my mind "taking" is something more than lifting a minor girl in the lap. If we stretch the 'taking' to such an extent. In that eventuality if a person innocently lifts a minor child just due to affection, love etc. and thereafter leave the child even in that eventuality, the said person can be held liable for the offence kidnapping. In the instant case, as per the prosecution version while the victim was coming back to her home, SC No. 32/11 Page 13 of 22 State Vs. Mohd. Parvez accused met her on the way and he had outraged her modesty. It may amount that accused had wrongfully restrained the victim but by no stretch of imagination the said act can fall within the four corners of kidnapping. Though learned Additional Public Prosecutor sought time to produce the case lase in support of his contention that mere lifting a minor child in the arm amounts kidnapping but he failed to produce any such case law. Further, PW10 in her testimony nowhere deposed that that boy had taken her even at a distance of 1-2 paces. In the absence of any cogent evidence, I am of the opinion that mere lifting of a minor child in arm without any further evidence is not sufficient to bring home the act of a person within the four corners of Section 363 IPC.
30. Now coming to the identity of the wrongdoer?
31. The prosecution case is that when the victim narrated the incident to her parents, they reached the place of occurrence where PW7 Ashu met them and he disclosed the name of wrongdoer to them. Accordingly, police arrested the accused at the pointing out of PW7.
32. PW2 in his examination-in-chief deposed that victim told him that the said incident had taken place near Sita Ram Mandir, consequently PW2 along with his wife, his brother and victim reached the said place where Ashu (PW7) met them. He further deposed that PW7 corroborated the version of victim and categorically deposed that Ashu (PW7) did not tell the name of that boy i.e. wrongdoer. However, he deposed that when police apprehended the accused, Ashu (PW7) had identified the accused.
SC No. 32/11 Page 14 of 2233. PW4 deposed that her daughter (PW10) did not tell the name of said boy but she had narrated the description of that boy. She further deposed that name of accused was told by the boys who were playing there but she did not know who had told the name of accused. Even her testimony is contrary to the testimony of PW2 who categorically deposed that PW7 had not told the name of accused. Indisputably, as per prosecution case, Ashu (PW7) was playing near the place of incident.
34. PW5 brother of PW2 deposed that Ashu (PW7) had told them that they had seen the victim with one boy named Mohd. Parvez near the stairs of Mandir. Thus, the testimony of PW5 is contrary to the testimony of PW2 and PW4. Moreover, the testimony of PW5 to the extent that Ashu (PW7) told them that he had seen the victim with one boy named Mohd. Parvez was got duly confronted during the cross-examination. It means that PW5 had made substantial improvement in his deposition to that extent.
35. PW7 Ashu (PW7) in his examination-in-chief deposed that on August 11, 2006 at about 9.30 PM, he along with Vishal and others was playing near Sita Ram Mandir and he had seen that accused was sitting on the stairs of temple and victim was in the lap of accused and he was kissing her. He further deposed that he asked the accused what he was doing, accused told him that victim was his daughter and he had no business. Accordingly, PW7 left from there. He further deposed that when again he went there accused abused him, consequently he went to the house of victim.
36. In his cross-examination, PW7 deposed that when accused abused him he raised alarm, consequently numerous persons gathered SC No. 32/11 Page 15 of 22 State Vs. Mohd. Parvez there and after seeing the crowd accused ran way from the spot but in the next breath, he deposed that when accused abused him, he went to the house of victim and intimated the mother of victim and thereafter he went away to roam but did not recollect where he went away as he was child at that time. He categorically deposed that thereafter he did not go to the temple. But he deposed that police officials came to his house and interrogated him. He further deposed that he had seen the accused first time on the day of incident and he did not know him previously. He further deposed that after the incident he had seen the accused first time in the Court. In his entire deposition he no where deposed that either accused had apprehended at his pointing out or he identified the accused when he was apprehended. Thus, the testimony of PW2 to the extent that Ashu (PW7) had identified the accused after his arrest is not corroborated by PW7, thus, same does not inspire any confidence.
37. PW8 in his cross-examination deposed that due to the darkness, accused was not visible, he saw the accused first time when their kanche went towards the accused side and Ashu went there to fetch the kanche. He further deposed that Ashu (PW7) had called him and other boys stating that he would show one thing to them. At that time, they asked the accused what he was doing, accused abused them and asked them to go. He further deposed that he did not know the accused previously and he saw the accused first time. He further deposed that he had seen the accused thereafter first time in the Court but quickly added that he had seen the accused when he got him apprehended. He further deposed that accused was got apprehended from the nearby houses of PW2. The testimony of PW8 to the extent that he got apprehended the accused is contrary to the prosecution case because prosecution case is that accused SC No. 32/11 Page 16 of 22 State Vs. Mohd. Parvez was apprehended at the pointing out of Ashu. Moreover, the prosecution case is that accused was apprehended from near by the houses of PW5 i.e. brother of PW2 whereas PW8 deposed that accused was apprehended from the nearby house of PW2. In this regard, the testimony of PW11 SI Rajbir Singh is also relevant. PW11 in his cross-examination admitted that accused was arrested in the presence of PW2 and PW5 and further admitted that the said two persons had not witnessed the incident. He further added that he had not mentioned the name of persons at whose instance he had apprehended the accused. It means that PW11 no where deposed that accused was either apprehended at the pointing out of PW7 or PW8. Though as per prosecution version accused was apprehended at the pointing out of PW2 or PW5, but since they had not witnessed the incident, they were not in a position to identify the accused before the investigating officer. Moreover, there is a material contradiction between the testimony of PW8 and PW11 as PW8 deposed that when accused was apprehended, he was wearing T-shirt having lines and black colour pant. Though prima-facie the said contradiction appears to be insignificant, but in the instant case, it is not so because witnesses are trying to establish the identity of accused on the basis of colour of the clothes wearing by the accused. PW8 in his cross-examination deposed that when he saw the accused with the victim, he was wearing black colour shirt having white lines and black colour pant but when he was apprehended he was wearing T-shirt and pant. Thus, as per the testimony of PW8 accused might have changed his clothes after reaching his house. PW8 in his cross- examination further deposed that when accused was apprehended, black colour shirt was also lying there and he asked the police to seize the shirt but police did not seize the same. On the converse, PW11 categorically deposed that when accused was apprehended, he was wearing black SC No. 32/11 Page 17 of 22 State Vs. Mohd. Parvez colour shirt having white lines. Thus, it is not clear whether accused was wearing T-shirt as deposed by PW8 or he was wearing black colour shirt with white lines as deposed by PW11. PW10 is silent about the colour of clothes wearing by the accused at the time of incident.
38. PW10 in her deposition deposed that she did not know the accused previously. However, she deposed that he was residing in the same gali. It means that accused was residing in the gali where PW2 & PW4 were residing but her testimony to that extent is contrary to the prosecution case. As prosecution case is that house of accused was located near the house of PW5. PW10 deposed that the house of her uncle i.e. PW5 was located after one gali from her house. Thus, as per PW10 there was one gali between her house and house of PW5. If it was so, the testimony of PW10 to the extent that wrongdoer was residing in the same gali becomes doubtful. Even PW8 also deposed that accused was apprehended from the house located near the house of PW2, which is contrary to the prosecution case. The address of PW2 is A-632, Prem Nagar whereas address of PW5 is A-694. As per the arrest memo, accused was arrested from A-695. It means that the house of accused was located adjacent to the house of PW5. If it was so, the testimony of PW8 and PW10 to that extent does not inspire confidence.
39. As per prosecution version, PW7, PW8 and PW10 are the witnesses who had seen the accused at the time of commission of offence but they did not know the accused previously and they had seen the accused first time at the time of commission of crime and thereafter in the Court. It is pertinent to point out that all of them were children at the time of commission of offence. PW10 was merely four years old, PW8 was about SC No. 32/11 Page 18 of 22 State Vs. Mohd. Parvez 8-9 years old and similarly, PW7 was about 11-12 years old. They had not identified the accused in any previous Test Identification Parade; nor accused was apprehended at their pointing out. Though PW9 claimed that he got apprehended the accused but in the absence of any corroborative evidence his testimony to that extent is not reliable. In these circumstances Court has to scrutinize their testimony carefully as being the child, they are susceptible to tutoring. There is also material contradictions among the testimony of PW7 & PW8. PW7 in his cross-examination deposed that there was street light near the place of incident whereas PW8 deposed that there was darkness and the face of accused was not visible due to darkness. In the Site plan, no electricity pole has been shown, thus, the testimony of PW7 to the extent that there was a street light does not get corroboration from the site plan. Thus, the mistake in identifying the accused also cannot be ruled out.
40. Though accused was apprehended from address A-695 Prem Nagar but is not clear what was the status of the accused in the said house; whether he was tenant or worker. Indisputably, the said house did not belong to the accused. PW11 deposed that he did not know to whom the said house belonged to. He further deposed that accused was employed in a factory. Admittedly, no person was asked to join the investigation at that time from the said factory. Even factory owner was not examined to prove that accused was working there.
41. Though PW7 claimed that he knew the victim previously, yet his testimony in this regard is paradox. PW7 in his examination-in-chief deposed that he knew the victim previously as she was residing in the same locality. However, in his cross-examination he deposed that he saw SC No. 32/11 Page 19 of 22 State Vs. Mohd. Parvez the victim on that day first time and he could not recognize her as he did not know her previously. However, he swiftly added that he knew the elder sister of the victim but also deposed that he did not know her sister by name but added that he knew her sister by face as she used to deliver the goods near his house. But there is no evidence that sister of victim used to go near the house of PW7 to deliver the goods. Thus, it is not clear whether he knew the victim previously or not.
42. PW7 in his examination-in-chief deposed that he went to the house of victim and informed her father. However, in the next breath he further deposed that her father did not meet him at the house and further deposed that her father did not meet him on that fateful day. But in the next breath he again deposed that after sometime, her father also reached there. In his cross-examination he deposed that when he went to the house of victim, her father did not meet him, but her mother met him and he explained the facts to her mother, consequently, she rushed to the spot. But in the next breath he deposed that when accused abused him, he raised alarm, consequently, numerous persons gathered there and after seeing the crowd, accused fled away but again changed his testimony by deposing that when accused abused him, he went to the house of victim and informed the mother of the victim and further deposed that after intimating her mother he went away to roam and stated that being child at that time he did not recollect where he went to roam, but deposed that he did not go to the temple thereafter. Thus, as per the deposition of PW7, when accused abused him, he went to the house of victim where her mother met him and he narrated all the incident, consequently, mother of the victim rushed to the spot and informed the police. But his testimony is contrary to the testimony of PW2 and PW4. Neither PW2 nor PW4 deposed that PW7 SC No. 32/11 Page 20 of 22 State Vs. Mohd. Parvez came to their house and informed them about the incident. On the contrary, they deposed that their daughter informed about the incident and not PW7. On the converse, as per the testimony of PW2 and PW4, when they reached the place of occurrence, PW7 met them and told them about the incident. But as per PW7, PW2 and PW4 never met him at the spot as he went away to roam after intimating about the incident to the mother of victim. In these circumstances, the testimony of PW7 to the extent that he went to the house of victim and informed the mother of victim about the incident or that her mother rushed to the spot and informed the police does not inspire any confidence.
43. Similarly, PW8 in his cross-examination deposed that he did not know the victim but deposed that he knew the father of the victim. But also deposed that he did not know who was the father of the victim. If PW8 did not know who was the father of victim and he did not know the victim, it is not clear how he came to know that who was the father of victim. Moreover, PW8 admitted that he did not go to the house of victim as he went to his house. PW2 and PW4 did not depose that PW8 met them at the spot; nor PW8 deposed that parents of the victim met him at the spot. In these circumstances, it is not clear how he appeared at the spot on arrival of the police. Though PW8 deposed that he identified the accused when he got the accused apprehended, yet it is not the prosecution case that accused was apprehended at the pointing out of PW8. On the contrary prosecution case is that when the parents of victim reached the place of spot, PW7 told them the name of accused but PW7 did not depose so.
44. At last but not least that PW7 and PW8 were children at the time of incident as PW7 was just 11 years old whereas PW8 was just 9 SC No. 32/11 Page 21 of 22 State Vs. Mohd. Parvez years old and PW7 deposed in his cross-examination that he did not recollect where he went to roam after intimating the incident to the mother of victim as he was child at that time. Admittedly, he did not know the accused previously and there is no evidence that accused was arrested at their pointing out. They appeared in the witness box after long seven years of the incident.
45. Taking into account the aforesaid discussion, I am of the opinion that the testimony of witnesses examined by the prosecution is not sufficient to prove the identity of the wrongdoer, thus, prosecution has failed to establish beyond the shadow of all reasonable doubts that accused was the person who lifted the victim in his arm and inserted finger in her vagina.
46. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of the accused beyond the shadow of all reasonable doubts, thus, I hereby acquit the accused from all the charges.
Announced in the open court
on this 11th day of July, 2013 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI.
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