Delhi District Court
State vs . Mukesh Kumar @ Sonu on 14 August, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 107/13
Unique Case ID No.02405R0031782012
State Vs. Mukesh Kumar @ Sonu
s/o Mahesh Kumar,
R/o House No. 1116/15,
Gali No.15, Rajeev Nagar,
Gurgaon, Haryana.
Date of Institution :20.01.2012.
FIR No. 190/11 dated 31.10.2011.
U/s. 376/377/323/342/363/506/201 IPC.
P.S. Kapashera.
Date of reserving judgment/Order :06.08.2013.
Date of pronouncement :14.08.2013.
JUDGMENT
1. The prosecution has charge sheeted the accused for the offences under Section 376/377/323/342/363/506/201 IPC.
2. According to prosecution case, information was received on wireless in Police Station Kapashera from Police Control Room on 31.10.2011 at 1.45 pm to the effect, "caller is at present in front of RML Hospital Emergency. My daughter has been raped by a person named Sonu who resides in Kapashera and runs a medical store". The information was recorded as DD No. 32B and was handed over to WSI Saroj Bala for suitable action. She alongwith constable Harinder reached RML Hospital and collected SC No.107/13 Page 1 of 38 the MLC No. 181291/11 of the prosecutrix/victim girl namely 'S' (real name withheld in order to conceal her identity). She met the mother of 'S' namely Surji Rawat also in the hospital. She got 'S' medically examined and seized the sexual assault evidence kit as well as her clothes in sealed cover, which were handed over to her by the doctor. Thereafter she brought 'S' and her mother to the Police Station. In the Police Station, she recorded the statement of the prosecutrix 'S', which I find necessary to reproduce here under.
" I alongwith my mother and younger brother reside on rent at the house of Ramesh, Gali No.3, Kapashera, New Delhi. I study in 4th class in Great Mission High School, Basai Dhankot, Gurgaon and live in the hostel of the same school. After the death of my father my second father Sonu uncle is taking care of us. During the holidays of Dushera and Diwali I had come to my house and yesterday i.e. 30.10.2011, at about 9 am, Sonu uncle (papa) took me on his motorcycle to drop me at my hostel but in spite of taking me to my school, he took me to a big house saying that it is the house of his friend and we would go after some time. There was nobody in that house. Sonu uncle took me to one of the rooms in the said house and bolted the house. I started weeping that why he has brought me here, upon which Sonu uncle slapped me on my face and bite my left cheek with his teeth. He asked me to keep quite otherwise he would kill me and he took off my clothes, Kaprie, SC No.107/13 Page 2 of 38 top and underwear. I started crying and weeping loudly but he did not leave me. First he put his male organ (susu) into my mouth and thereafter he inserted his male organ into my vagina (susu). When he felt it difficult to insert his male organ into my vagina, he inserted his finger into my vagina. When I started bleeding from my vagina, he wiped off the blood with my underwear and washed off the same in the said house and he also wiped off the blood with my towel and threw the same somewhere. Thereafter when we reached hostel, we were told that there are holidays for five more days. Therefore, Sonu uncle brought me back to my house and threatened me not to disclose anything to mother. I, on account of fear, did not tell my mother anything at that time. When Sonu uncle left our house, I disclosed the incident to my mother and she took me for going to village and we both stayed at the Bus terminal for the whole night. Today my mother took me to the hospital where doctor medically examined me and from the hospital, I alongwith my mother came to the Police Station."
3. On the basis of the aforesaid statement of the prosecutrix, SI Saroj Bala got the FIR registered u/s 363/376/377/323/342/506 IPC and commenced the investigation. She alongwith prosecutrix, her mother and staff of Police Station set out in search of the house in which prosecutrix had been sexually assaulted but the prosecutrix could not identify any such SC No.107/13 Page 3 of 38 house. Thereafter search for accused was started. Accused was arrested on the same day from his house in Rajeev Nagar, Gurgaon at the instance of the prosecutrix and her mother. He is stated to have made a confessional statement admitting his guilt. Accused too could not locate the house in which he had committed the crime. Accused was got medically examined and it was opined that he is competent to perform sexual act. His blood sample was obtained by the doctor and handed over to the IO. The motorcycle used by the accused was seized. The prosecutrix was produced before the concerned ld. Magistrate, who recorded her statement u/s 164 Cr.P.C. Thereafter exhibits of the case were sent to FSL for forensic examination. Prosecutrix produced her school certificate which showed her date of birth as 10.09.1999.
4. After completion of the investigation, SI Saroj Bala prepared charge sheet and submitted the same to the concerned Illaqa Magistrate.
5. Upon committal of the case to the Court of Sessions, the accused was charged with having committed offences u/s 363 IPC, 376 IPC r/w Section 511 IPC, u/s 377 r/w 511 IPC, u/s 342 IPC, u/s 323 IPC, u/s 201 IPC and u/s 506 IPC. Accused abjured his guilt and hence prosecution was called upon to lead its evidence. The prosecution has examined following 17 witnesses to proved the charges against the accused:-
1.PW1 Dr. Kashika : She was present when Dr. Ritika examined the accused in emergency of Safdarjung Hospital and proved SC No.107/13 Page 4 of 38 his MLC as Ex. PW1/A.
2.PW2 Dr. Chetan Kumar: He had conducted potency test of the accused and proved his report as Ex. PW2/A.
3.PW3 Prosecutrix 'S' : Her testimony would be discussed in later part of this judgment.
4.PW4 Smt. Surji Rawat : She is the mother of the prosecutrix.
Her deposition too would be discussed in later part of this judgment.
5. PW5 Sh.Arul Kumar : He is the brother of the accused and owner of motorcycle No.GR26BA-
6824, which was used by accused on the date of incident. He has turned hostile and denied having told Police that accused had used his motor-
cycle on 30.10.11.
6.PW6 ASI Jagdish : He was the duty officer in P.S. Kapashera on 31.10.2011 and had registered FIR Ex. PW6/A on the basis of rukka handed over to him by SI Saroj Bala. He proved his endorsement on rukka as Ex. PW6/B. SC No.107/13 Page 5 of 38
7.PW7 Dr. Geetanjali : She had examined the prosecutrix in casualty of RML Hospital when she was brought there by her mother on 31.10.2011 at 1.45 pm. She had prepared MLC Ex. PW7/A and then referred prosecutrix to Gynae Deptt.
8.PW8 Birender Singh : He is the Head Master of Govt.
Primary School, Bhumia, Akeshwar, Garwal, Utrakhand where the prosecutrix had studied upto class 5th from 02.08.2007 to 09.04.2009.
He proved school records showing her date of birth as 10.09.1999.
9. PW9 HC Narpat Singh: He was the duty officer in PS Kapashera on 31.10.2011 and had recorded DD No. 32B at 1.45 p.m. and DD No. 33B at 1.50 p.m.
10.PW10 Const.Satbir : He was the duty constable at RML Hospital on 31.10.2011, when prosecutrix was brought there by her mother.
11.PW11 Const.Shiv Shankar: He alongwith W SI Nirmala had taken the accused for medical examination and potency test on 01.11.2011. Motorcycle used by the SC No.107/13 Page 6 of 38 accused was also seized by the IO in his presence.
12. PW12 Const.Harneder: He assisted the IO SI Saroj on 31.10.2011. Accused was arrested in his presence from his house.
13. PW13 ASI Nirmala : She alongwith PW11 had taken the accused to Safdarjung Hospital for potency test.
14. PW14 Naresh kumar: He is the friend of PW-5. PW5 had purchased a motorcycle in his name on his identity documents from Hero Honda Showroom. He didn't know the accused except having seen him at the shop of PW5 on one or two occasions.
15.PW15 SI Saroj Bala : The investigating officer of this case.
16.PW16 Sh.Vipin Kharab,: He had recorded the statement u/s the ld. Magistrate 164 Cr.P.C. (Ex.PW16/A) of the prosecutrix.
17.PW17 Dr. Seema Rawat: She had conducted gynecological examination of prosecutrix in RML Hospital and had filled up sexual examination kit Ex. PW17/A. SC No.107/13 Page 7 of 38
6. Besides examining the aforesaid witnesses, the ld. APP also tendered in evidence the FSL results Ex. PA and Ex. PB. Accused was examined u/s 313 Cr.P.C. on 01.06.2013. He denied all the incriminating evidence put to him and claimed false implication. He, however, admitted that he is running a medical store and had got acquainted with Surji, the mother of the prosecutrix. He further stated that he had given job to Surji at his shop in the year 2006 and after three or four months they had sexual intercourse with her consent. He had been paying her money regularly. Then, she stopped coming for job but used to take money from him regularly. In the end of year 2007, he paid her a sum of Rs. 50,000/- and she executed an affidavit that she would not meet him thereafter. However, in the year 2008, she started blackmailing him by demanding more money. He had no option to give her money. She came to his shop two or three days before the day of Diwali in the year 2011 and demanded Rs. 5 lacs from him. On his refusal to pay money to her, she threatened her that she would implicate him in a false criminal case and thus she lodged a false complaint against him.
7. The accused examined two witnesses in his defence. DW1 is his mother and deposed that Police had arrested the accused from his house on 31.10.2011 at 10 pm and also took alongwith them the motorcycle of her younger son. DW2 was an employee of the accused from the year 2007 to 2011. He was residing in a room in Kapashera which was adjacent to the room of Surji Rawat. According to him Surji used to do work of scavenging in the shop of accused. He saw the prosecutrix 'S' with Surji for the first time on the occasion of Diwali in the year 2011, who was SC No.107/13 Page 8 of 38 brought by a person whom Surji referred to as her brother.
8. After the recording of D.E., arguments were heard from both the sides. Ld. APP submitted that the prosecutrix, a little girl aged just 12 years, has been consistent in describing the incident right since her first statement was recorded in the Police Station and she has not made any deviations at any point of time. According to her, the testimony of the prosecutrix is free from any embellishments and hence credible as well as trustworthy. She also submits that testimony of prosecutrix finds corroboration from the testimony of her mother as well as the medical evidence. She argued that injuries were found on the private part, chest and cheeks of the prosecutrix during her medical examination, which was conducted within 24 hours of the sexual assault upon her, conclusively demonstrate that an attempt had been made to rape her and the prosecutrix had clearly deposed that the assailant was the accused, whom she treated as her father. The ld. APP further argued that there was no reason or occasion for the prosecutrix's mother Surji to falsely implicate the accused in this case in the year 2011 as she had come to know in the year 2007 that the accused is a married man and despite that she was having voluntary physical relations with him. According to her, the prosecution has proved the charges against the accused beyond reasonable doubt and the accused is liable to be convicted.
9. Per contra ld. Counsel for the accused strenuously argued for acquittal of the accused as he has been implicated falsely in this case. Firstly, he submitted that offence u/s 363 IPC is not made out at all as the accused had taken the prosecutrix SC No.107/13 Page 9 of 38 alongwith him with the permission of her mother, her guardian. Secondly, according to him there exist various lapses in the prosecution case which point towards the false implication of the accused. The lapses pointed out by the ld. Counsel are unexplained delay of more than a day in lodging FIR; nothing produced to show that prosecutrix was studying in Great Mission School and was to join the school on the date of incident i.e. 30.10.2011; non-identification of the house by the prosecutrix in which the offence is alleged to have been committed; non- recovery of the mobile phone of the accused containing the obscene video clip; contradiction between statements u/s 161 Cr.P.C. and u/s 164 Cr.P.C. of the prosecutrix and the contradictions between the testimony of PW-3 (prosecutrix) and her mother (PW-4). The ld. Counsel submitted that as per the deposition of PW-4, her daughter informed her about the incident on the same day itself in the evening after the accused left their room but she did not try to contact the accused to confront him with what prosecutrix had told her. She was very friendly with the accused and, therefore, it was very natural for her to telephone him to see his response. She also did not try to contact her relative Shanti Negi with whom she was residing initially at Delhi, her sister Laxmi Rawat who also was residing in Delhi, her brother's brother in law Hatender and her brother's co-brother in law Dinesh who also used to reside in Delhi at that time. She did not take the prosecutrix to any doctor or hospital throughout the night despite that she was feeling pain and was bleeding. According to the ld. Counsel, the said conduct of the mother of the prosecutrix creates doubts about the veracity of prosecution case and makes it unbelievable. The ld. Counsel further submitted that PW4 has SC No.107/13 Page 10 of 38 deposed that after her daughter informed her about the incident, she alongwith her children immediately left her room, reached ISBT to catch a bus for Utranchal, spent the night at ISBT, made a call to her brother at Utranchal from the mobile phone of a passerby telling him about the incident and he advised her to take the prosecutrix to a hospital and file a complaint in the Police Station. Ld. Counsel then pointed to the deposition of PW-3 (Prosecutrix) who has not stated all this and has deposed that her mother took her to the Police Station the next day after the incident. According to the ld. Counsel, the mother of the prosecutrix has fabricated a false story and has used her daughter as a pawn. He submitted that infact there is a dispute between her and the accused over some property and she got further infuriated when the accused stopped giving money to her which then lead her to file a false complaint against the accused. He prayed for acquittal of the accused. The ld. Counsel cited Radhu Vs. State of MP (2007)12 SCC 57, Narender Kumar vs. State (NCT of Delhi) (2012) 7 SCC 171, Sadashiv Ramrao Hadbe vs. State of Maharashtra & anr. (2006) 10 SCC 92, Narayan Vs. State of Rajasthan (2007) 6 SCC 465, State of Rajasthan vs. Babu Meena cri. Appeal No. 570 of 2007 decided by Supreme Court on 13.02.2013 and K. Venkateshwarlu Vs. State of A.P. Cri. Appeal No. 500 of 2011 decided by Supreme Court on 17.08.2012 to buttress his submissions that minor injuries found on the body of prosecutrix are not themselves sufficient to establish wrongful confinement, hurt and rape; no conviction can be ordered unless the testimony of the prosecutrix is found worth credence and reliable and that it cannot be said that in no case would a parent persuade an obedient daughter to make a false SC No.107/13 Page 11 of 38 charge of rape either to take revenge or extort money or to get rid of financial liability.
10. In rebuttal, ld. APP submitted that there appears to be some defective investigation in this case in as much as the place of occurrence could not be identified and records from Great Mission School were not obtained but that does not make the accused liable for acquittal when the charges against him have been established beyond doubt by the prosecution with the help of other evidence on record. She relied upon a judgment of the Supreme Court reported as Visveswaran vs. State 2003 (3) RCR (criminal) 1 wherein it has been held that defective investigation by the Police is not a just ground to acquit the accused and in such cases, court only needs to remain extra cautious while analyzing the evidence on record.
11. I have considered the submissions made by ld. APP, ld. Counsel for the accused and have perused the entire oral as well as documentary evidence of record.
12. In cases involving the offence of rape, the testimony of prosecutrix is the most vital and material piece of evidence. Her statement if found to be worthy of credence and reliable, requires no corroboration and court may convict the accused on her sole testimony. A prosecutrix of sex offence cannot be put on par with an accomplice. She is in fact a victim of crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtable and competent witness under section 118 and her evidence must SC No.107/13 Page 12 of 38 receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. In case involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. While evaluating evidence, the court must remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour. At the same time, it is also settled position that if for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in case of an accomplice. If the court of facts finds it difficult to accept the version of the prosecutrix at its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. (See- State of Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658, State of U.P. vs. Pappu @ Yunus and anr., AIR 2005 SC 1248, State of Punjab vs. Gurmit Singh and Ors., AIR 1966 SC 1393).
13. It would also be useful to keep in mind the following observations of the Supreme Court made in Raju vs. State of M.P., (2008) 5 SCC 133 :
"12. Reference has been made in Gurmit Singh's SC No.107/13 Page 13 of 38 case to the amendments in 1983 to section 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that sections 113A and 113B too were inserted in Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
14. It can be aptly said that in cases involving sexual assault upon women, the evidence of the victim should be of sterling quality as the fate of the case depends upon the quality and face value of her testimony. Who can be termed as a 'Sterling Witness' has been dealt with in the case of Rai Sandeep @ Deepu vs. State of NCT of Delhi, 2012 (131) DRJ 3 (SC) wherein the quality of the testimony of the prosecutrix, which can be made as a basis to convict the Appellant, was considered in detail and it was so held:
"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber SC No.107/13 Page 14 of 38 whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of SC No.107/13 Page 15 of 38 circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime, should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
15. Now let me analyze the evidence lead by the parties in this case in the light of legal prepositions laid down in the aforesaid judgments. Before proceeding to note the testimony of the prosecutrix and her mother, I feel it would be pertinent to reproduce herein the statement u/s 164 Cr.P.C. of the prosecutrix which is Ex. PW16/A. The same is as under:-
"I study in a hostel in Gurgaon. I was suffering from eye flue and therefore, I had come home. This Sunday Sonu uncle was going to drop me at my hostel as my eyes were now almost alright. He was taking me on his motorcycle.SC No.107/13 Page 16 of 38
On the way, he stopped his motorcycle in front of a house and told me that it is the house of his friend and they would stop here for some time and thereafter would go. Sonu uncle took out the keys of the house from his pocket and opened the lock of the house. Nobody was present in the house. Thereafter he bolted all the windows and doors of the house and started showing me some obscene things in his mobile phone and told me that I also will have to do the same thing. I denied. On my denial he started slapping me. While slapping me he also bite my left cheek with his teeth. I started weeping loudly. Thereafter he took off his own clothes and started taking off my clothes also. While weeping I was telling him to leave me. Thereafter he tried to insert his male organ into my vagina. He tried to put his male organ into my mouth, into my back and also into my urinating organ. When he could not insert his male organ into my urinating organ, he tried to insert his finger inside. I started bleeding profusely. While weeping I continued to tell him, "papa, leave me". I even told her "papa" but still he did not leave me. Thereafter he left my underwear in the house as it was having blood stains. Thereafter he wiped me off with the paper, which were lying there and with my towel. After clearing, I put on my clothes. After closing the house, he again made me sit on his motorcycle and went on to drop me at hostel. On the way he SC No.107/13 Page 17 of 38 stopped motorcycle and threw away the towel and paper. He threatened me not to disclose anything to anyone otherwise he would kill my mother and brother. He told me that if somebody asked, I should say that due to fall from motorcycle, I got injured.
Thereafter on reaching hostel, he told that there are holidays of four five days more and brought me back home. He left after leaving me at home. After he left, I narrated the whole incident to my mother.
Next day when I was having severe pain in my stomach then my mother took me to the hospital. On reaching the hospital doctor vaccinated me. Thereafter on the asking of doctor, my mother called the police."
16. The prosecutrix has been examined as PW-3. She is a minor girl aged 12 years. It may be noted that before recording her testimony, certain preliminary questions were put to her to ascertain whether she can give rational answers to the questions put to her. It appeared that she understands the questions and can give proper answers. However, it also appears that she did not know the sanctity of oath. Therefore, her deposition has been recorded without oath. She did not remember the exact date of incident but stated that it happened the next day after the last diwali. She was studying in 4th standard in Great Mission High School and used to stay in the hostel attached to the school. She came home during holidays only. On the date of incident, in the morning, she was being taken to the hostel by the accused whom SC No.107/13 Page 18 of 38 she knew already as he used to visit their house. She stated his name to be Sonu. She further deposed that on the way accused told her that they would go to the house of one of his friends. She told him to take her to the hostel but accused said that they would go to hostel later on. He took her to a two storeyed house. They went inside the house and the accused bolted the door of the room from inside. The accused took out his mobile phone and showed an obscene video clip from his phone to her and asked her to do whatever was being done in that video clip. She began to weep and he slapped her. Then the accused took off her clothes and told her to do the obscene act. She was crying. Accused threatened her that if she continued to cry, he would kill her mother and brother. Then he put his male organ on her vagina and tried to insert the same into it. Since he could not insert his male organ into her vagina, he inserted his finger in order to widen her vagina. She started bleeding profusely. There was a piece of paper on the bed and he wiped off the blood with a piece of paper. Then he asked her to put on her underwear and her underwear also got blood stains. He took the underwear to the bathroom and washed it. Then he engaged her in oral sex. She started vomitting. He made her to lick his male organ and she again started vomitting. He took out a towel from her bag and wiped off the blood from it. The towel got soaked in blood. Then she put on her clothes and they left from that house. There was a shop nearby the house on the way and accused bought two black underwears and a towel and gave those to the prosecutrix. He had kept the blood soaked towel in her bag and threw the same on the way. Thereafter when they reached the hostel, they were told that the school is closed for five more days and they returned to SC No.107/13 Page 19 of 38 her home. He remained in her home for a long time. When he left her home, she narrated the incident to her mother and her mother started weeping. Next day, she alongwith her mother went to the police station and reported the matter to the police. Police recorded her statement which she signed. She also wrote her name on the same and also put her thumb impression on the same.
17. In the cross examination, she deposed that before taking admission in Great Mission High School, she had studied in Govt. Primary School, Bhumia, Akeshwar, Pauri up to 5th primary class. After being brought to Delhi by her mother, she was first admitted in Mother Land Pvt. School in 3rd primary class and soon thereafter she took admission in Great Mission School. She further deposed that before the date of incident, she had been staying at home for about one month as she was suffering from eye flu. She was brought from the school by accused Sonu. She could not tell after how much travel from her home, they reached the two storeyed house, where the incident took place. According to her there is one shop on the rear side of the house, a thatched house on the other side and a vacant land on the third side. It was situated on the main road. The accused parked his motorcycle in front of the house in the gali and opened the lock of the house with the keys which he was having. She did not see any person present in the house. The shop on the rear side of the house was a garment shop. She had narrated the incident to her mother after it had become dark. She further deposed that next date, they had reached the police station at about 9 am or 10 am. Her uncle Narender met her when she was being taken for her medical SC No.107/13 Page 20 of 38 examination. Again said he met her in the hospital, as he being employed in Delhi Police and was posted at that hospital. She admitted that she was suffering from eye flu in the beginning of August 2011 and for that reason she had come home. She also admitted that she had not sent any leave application for such long absence from the school. She did not know whether her name was struck off the rolls of the school. She had remained at home for more than about two months. She also deposed that she was taken to the Police Station by the Police officials to point out the two storeyed house where the offence was committed but she could not locate the same. The Police officials enquired from her the colour of the house which she could not tell as she did not recollect the same. She deposed that there was only a bed in the room in which the incident took place and there were some chairs, some packed material in the room opposite to that room and the third room was having nothing in it.
18. If the aforenoted testimony of the prosecutrix is compared with her statements u/s 161 Cr.P.C. and u/s 164 Cr.P.C. (Ex. PW16/A), I do not find any such improvement or embellishments which would discredit the prosecution case. The little girl has described the incident of sexual assault upon her by the accused very vividly in her statements recorded during the course of investigation as well as in her testimony before the Court. In fact, in her deposition before this court, she has left out certain facts like that accused had attempted to commit carnal intercourse also with her which she had mentioned in her statement u/s 164 Cr.P.C. The manner in which she has deposed in the court and described the incident and the way in which she has SC No.107/13 Page 21 of 38 faced cross examination, demonstrates that she is a trustworthy and reliable witness. Her testimony does not suffer from any prevarications or embellishments. It inspires confidence. Nothing contradictory could be elicited in her cross examination. The prosecutrix qualifies as 'sterling' witness and I see nothing wrong in convicting the accused on the basis of her sole testimony.
19. It is true that the prosecutrix could not show to the police officials, the house where she was taken by the accused and sexually assaulted. Nothing serious should be read into it. The prosecutrix was a 12 years hold child and naturally not familiar with the whole area of Kapashera and Gurgaon. She was taken to that house for the first time by the accused and that too on a motorcycle. She was under the impression that accused would take her to the school directly and never knew that she would be taken to that house. It is for these reasons that she may not have remembered the route taken by the accused to reach that house and thus was unable to identify the same. Besides that, she has given a good description of that house in her cross examination. According to her, it was on the main road having a thatched house on one side, vacant land on other side and a garments shop on the rear side. It was a two storeyed house. If the investigating oficer would have made deep inquiries for the prosecutrix regarding the location of that house and made a sincere effort to locate the same, the house would not have remained untraced. It can be taken as inefficiency or lack of investigative techniques on the part of the IO, which in no case would be fatal to the prosecution case. Similarly non seizure of documents relating to the prosecutrix from Great Mission High School, is also a facet of defective SC No.107/13 Page 22 of 38 investigation. The investigating officer SI Saroj Bala appearing as PW-15 has deposed in her cross examination that she visited the school the next day after the incident but the school was closed on account of some holidays and she did not visit the school thereafter on any day. This only shows that the IO did not conduct the investigation with the required sense of responsibility but only in a light hearted manner. It seems that she was not interested in collecting all the material documentary and oral evidence for preparing a sound case on the basis of the statement of the prosecutrix. The Supreme Court has time and again observed in its judgments that, however grave the defects in the investigation, those should not be made a ground for acquittal of the accused when evidence on record establishes his guilt. Acquitting the accused on the basis of defective investigation would tentamount to playing in the hands of the investigating officer. In such cases, the court should remain overcautious in assessing the evidence on record. (See Visveswaran vs. State (2003) 6 SCC 73 and C. Muniappan vs. State of Tamil Nadu (2010) 9 SCC 567).
20. Even otherwise, I may note here, that the accused has nowhere disputed that the prosecutrix was studying in Great Mission High School, Gurgaon and was staying in girls hostel there. Reference in this regard may be placed upon following portion of the cross examination of the prosecutrix,:-
"It is correct that I had not sent any leave application for such a long absence from the school. However, I do not know whether my name was struck off from the rolls of the school. I cannot SC No.107/13 Page 23 of 38 say whether the name of a student is struck off from the rolls of the school in case of absence without leave for a period of ten days or more. It is correct that after my return from the school in the beginning of August, 2011 I remained at home for more than two months. I cannot say whether I was not permitted to enter into the school premises as my name had been struck off from the rolls of the school. It is incorrect to suggest that I had no occasion to go to the school or the hostel on the date of incident as I knew that my name has been struck off from the rolls of the school".
21. No suggestion has been given to the prosecutrix that she was not studying in Great Mission High School. Suggestions have been given only to the effect that on account of her long absence from the school, her name was struck off the rolls of the school. The accused, thus, admits that the prosecutrix was studying in Great Mission High School, Gurgaon. He has not produced any documentary or oral evidence to show that name of prosecutrix had been struck off the rolls of school and there was no occasion for him to take her to the school on 30.10.2011. If he was so certain about this fact, he could have easily produced an official of that school with the records of the school, during the course of DE. He chose not to do so despite that he has examined two witnesses in his defence.
22. There is nothing on record to suggest that the prosecutrix was not studying in Great Mission High School, SC No.107/13 Page 24 of 38 Gurgaon and that she had not come home in the beginning of August, 2011 and that remained at home for more than two months. It also stands established from the unrebutted testimony of prosecutrix that the accused took her alongwith him in the morning of 30.10.2011 on the pretext of dropping her at school but in the way took hr to some house where he attempted to ravish her.
23. The language used by the prosecutrix in describing the incident and the specific words used by her to describe the sex organs (both male and female), rule out the possibility of her being tutored by her mother or anybody else. Ld. Counsel for the accused is right in submitting that instances have come to light where parents have persuaded their obedient daughters to make false charges of rape in order to take revenge or to extort money or to avoid payment of money. However, it cannot be said that it happens in every case where the victim is a child. In every such case the intrinsic worth of the child's deposition has to be seen in light of overall facts and circumstances of the case and the manner in which child has faced the cross examination. A tutored child witness would never withstand the detailed cross examination like the one faced by the prosecutrix in the instant case. A tutored or planted child witness is bound to falter during cross examination and would never stick to what he/she has said in examination in chief. In the present case, as is seen, the prosecutrix has given proper and satisfactory answer to each question put to her in the cross examination. She had stood calm and composed and did not falter even once. This is another reason why she qualifies as 'sterling' witness.
SC No.107/13 Page 25 of 3824. Even though conviction can be based solely on the basis of the testimony of prosecutrix as her testimony is found to be credible, trust worthy and of sterling quality, yet as a rule of caution, let me search for corroboration of her testimony from the other evidence on record.
25. The mother of the prosecutrix has been examined as PW-4. She has deposed that she shifted to Delhi from her native place in Utrakhand in the year 2004 after demise of her husband. The accused was running a medical store in front of the room in which she was staying at Kapashera. She got acquainted with the accused and they started meeting each other. During the course of such meetings, they fell in love with each other and ultimately solemnised marriage in Haridwar in the year 2008. After the marriage, they started residing together as husband and wife and continued to stay like that till the date of incident in this case. Prosecutrix 'S' is the child from the loin of her earlier husband. She has given birth to a son namely Shivam from her wedlock with the accused. He is one year and three months old. She further deposed that her daughter 'S' had been got admitted to a hostel at Basai Dhankot, Daya Vihar, Haryana and she was studying in 4th standard. She used to stay in a hostel and used to come home either on the holidays or when she was sick. She used to be dropped at the hostel and brought therefrom by the accused. The prosecutrix 'S' had come home about 2 or 3 months before the date of incident as she had fallen sick. About 2 or 3 days after the Diwali in the year 2011, perhaps it was 29th day of the month, the accused took her daughter 'S' from their house so as to drop her at the hostel. At about 2 pm or 3 pm, she called the accused on his SC No.107/13 Page 26 of 38 mobile phone No. 9560453944 from the mobile phone of a neighbour and asked him why he did not return home. Accused told her that they have met with an accident and his motorcycle was hit from behind by a maruti car. She became terrified and asked the accused to return home immediately alongwith 'S'. Accused returned home alongwith the prosecutrix at about 4.30 or 4.45 pm. She saw that there was swelling and bite marks on the cheeks of 'S'. Accused told her that it has happened on account of the impact of the accident. She asked him why only 'S' sustained injuries and why not he get injured, upon which accused became angry and told her that he has also sustained injuries on his back. Accused remained at their home for about one hour and thereafter left. After he left, she asked 'S' whether infact accident had taken place or something else had happened. Upon whcih, 'S' started weeping and told her that accused took her to a two storeyed house having three rooms. One of the rooms was decorated with flowers and diwali puja had been performed in that room. 'S' further told her that accused told her that it is the house of his friend and his friend would be coming very soon and thereafter they would proceed towards the hostel. When the friend of the accused did not come, she asked the accused as to where his friend was as she was getting late for the hostel. At this, accused slapped her and asked her to keep quite. Thereafter accused took out a mobile phone and showed some obscene video clips to her and asked her to do what was being done in that video clip. 'S' did with the accused whatever was being done in the obscene video clip.
26. This witness PW-4 further stated that she became SC No.107/13 Page 27 of 38 shocked on hearing the aforesaid from her daughter 'S' She decided to go to her native village being afraid of the accused. She immediately left her room alongwith her children and reached ISBT. Mori Gate. On reaching there prosecutrix 'S' felt some stomach ache. They spent the night at ISBT. In the morning she telephoned her brother who resides in their native village in Utrakhand and on his advice, she took 'S' to RML Hospital where she was examined by the doctor. From the hospital itself she made a telephonic call at telephone No.100. Police reached the hospital and recorded her statement as well as that of 'S'. Thereafter the police officials brought them to PS Kapashera. On the same day, accused was arrested from his house at her instance vide arrest memo Ex. PW4/A. She also identified the clothes of 'S' namely Jeans, underwear and shamiz which had been seized by the Police.
27. During her cross examination, she deposed that she came to Delhi for the first time alongwith her brother and started residing with her relative namely Shanti Negi at Palam Vihar, Delhi. She admitted that she had been on visiting terms with Shanti Negi even after she took up a separate residence at village Doondahera, Gurgaon, Haryana. She denied the suggestion that she was working as an employee at the shop of accused at the monthly salary of Rs. 4000/-. According to her she never worked as an employee at the shop of accused. She deposed that accused had taken her signatures on various documents after extending threats to her in the year 2006-07. The accused had threatened her that in case, she did not sign the documents, he would get her mowed down under a truck. She continued to stay with the accused even thereafter till the accused was arrested in this case SC No.107/13 Page 28 of 38 as the accused was looking after her house hold expenses and used to spend on the daily needs and requirements of the family. She came to know in the year 2007 itself that accused is already married and even thereafter accused continued to visit her and stayed with her. Mr. Prem and Mr. Ganesh were staying in the room adjacent to her room. She also stated that her sister namely Laxmi too stays in Delhi and works in Adventure Sports Company. She had handed over to the Police a photocopy of school leaving certificate of her daughter 'S' issued by Rajkiya Prathmic Vidhyalya, Bhumia, Akeshwar, Pauri which she proved as Ex. PW4/D1. She denied that her daughter 'S' studied in that school in Bhumia till April, 2010. She also denied that name of her daughter 'S' had been stuck off from the rolls of the school in October, 2011 as she had remained absent from the school for about three months. She had received a call from the school informing her that 'S' is sick and she should take her home. She admitted that she alongwith accused had jointly purchased a plot of land in Kotdwar, Utrakhand in the year 2009 and her name has been mentioned as Surbhi in the title documents of that plot. She denied that any plot of land is in her name in Village Salapur Khera, Bijwasan. She further stated that on the date of incident, accused alongwith 'S' had returned to her house at about 5 pm and the accused remained there for about one hour. She did not make any attempt to call PCR or the local police after 'S' informed her about the incident as she became terrified. She also did not talk to her sister Laxmi or to Shanti. She had talked to her brother about two or three hours after they had reached ISBT, Kashmiri Gate and after 'S' had complained about stomach ache. She talked to her brother twice during the night and once in the morning. He advised her to SC No.107/13 Page 29 of 38 go to RML Hospital. Narender Rawat met them at RML Hospital at 11 am or 12 noon. Soon thereafter 'S' was got medically examined. She had made a call at telephone No. 100 from RML Hospital before the medical examination of prosecutrix 'S'. At that time Narender was not with her. She admitted that Narender Rawat is employed in Delhi Police and was posted as duty constable at RML Hospital but he was not on visiting terms with her. During cross examination, an affidavit was shown to her by the ld. Cross examining counsel. She admitted that the affidavit bears her signatures at point X1, X2 and X3. The affidavit is Ex. PW4/D2. She has stated that she did not go through the affidavit at the time of signing the same and is not aware about its contents. She denied that she had tutored her daughter to make a false statement before the ld. Magistrate as well as before this Court. Further she denied all the suggestions put to her by the ld. cross examining counsel.
28. I do not see any significant contradiction between the testimony of PW-4 and her daughter i.e. the prosecutrix (PW-3) which would be fatal to the prosecution case. True it is that PW-3 did not state in her deposition that her mother, herself and her brother left their room immediately when she disclosed the incident to her mother and had spent the night at ISBT. In my opinion the little child PW-3 may have missed out his fact during her testimony in court or did not find it necessary to mention so. In fact she has not said anything in her deposition about where they spent the night. In her cross examination too, nothing with regards this fact was put to her. I think that this discrepancy is too trivial to be given any importance. The realities of life, age of victim and her SC No.107/13 Page 30 of 38 social position has to be kept in mind while assessing her evidence. The court should not adopt a dogmatic hyper technical approach in analyzing the evidence of a victim but a rational, realistic and genuine approach. The Supreme Court in Leela Ram Vs. State of Haryana (1999) & JT (SC) 27 has said:-
"There is bound to be some discrepancies between the narrations of different witnesses when they speak on details and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence..............
The Court shall have to bear in mind that different witnesses react differently under different situations: Whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern SC No.107/13 Page 31 of 38 is unproductive and a pedantic exercise."
29. Similarly in State of Punjab vs. Jagir Singh & Ors. (1974) 3 SCC 277 it was observed by the Supreme Court that :-
"A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to jduge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Court should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
30. I may further note here that discrepancy has to distinguished from contradiction. In order to ascertain as to whether the discrepancy pointed out is minor or amounts to contradiction, regard is required to be had to be circumstances of the case and also keeping in mind the age and social status of the witness. Keeping in view the over all nature of testimony of the SC No.107/13 Page 32 of 38 PW-3 and PW-4 and the age as well as social status of victim PW-3 in the instant case, I feel that the discrepancy noted herein above is very trivial one and ought not affect the prosecution case.
31. So far as the incident of sexual assault upon the prosecutrix PW-3 by the accused is concerned, the deposition of PW3 gets full support and corroboration from that of PW-4.
32. One noteworthy feature which gets established from the examination in chief as well as cross examination of PW-4 is that accused was having an illegal sexual liaison with her and she had given birth to a son from the loin of the accused in February, 2011. (PW-4 has deposed that this child Shibam is one year and three months old as on date when she deposed in court i.e. 17.05.2012 meaning that he must have been born in February, 2011. There is no cross examination of PW-4 in this regard and thus no denial of this fact from the side of the accused.
33. Now the accused contends that he had snapped all his relations with PW-4 in the year 2007 after paying her Rs. 50,000/-. An affidavit purportedly executed by PW-4 in this regard on 06.12.2007 (Ex. PW4/D2) was shown to her during her cross examination and she admitted her signatures on it. This has been done to convince this Court that accused was not having anyreltinos with PW-4 since 2007 and PW-4 had been blackmailing him with more demand of money and the present case also is nothing but blackmailing tactics. However, PW-4 has expressed ignorance about contents of the affidavit saying that she did not go through it before signing it. To the contrary, PW-4 has deposed SC No.107/13 Page 33 of 38 that accused continued to stay with her till the date of incident. The contentions of the accused appear to be patently false for the reason that the fact that PW-4 gave birth to a male child from the loin of accused in February, 2011 demonstrates that accused had sexual relations with her even in the year 2010. The affidavit Ex. PW4/D2 appears to be sham document, got prepared by the accused for some ulterior motives.
34. There is nothing on record to show that the accused was not on visiting terms to PW-4 and was not having any sexual liaison with her till the date of present incident. Undisputed evidence has come on record that accused always used to take PW-3 from her residence to the Great Mission School and also used to bring her back therefrom when required. The testimony of PW-3 and PW-4 also establishes that on the date of incident i.e. 30.10.2011 also accused took the prosecutrix PW-3 from her residence for dropping her at school but instead made an attempt to ravish her in a room on the way. He had also assaulted her and threatened her not to narrate the incident to anybody.
35. The evidence of PW-3 and PW-4 finds corroboration from the medical evidence also. The gynecological examination of the prosecutrix was conducted by PW-17 in RML Hospital. She had filled up the sexual assault kit Ex. PW17/A. At this juncture, it may be noted that PW-3 has deposed that she was slapped by the accused many times and also bitten by him on the cheek. Ex. PW17/A shows that bruises, nail injuries and human bite marks were seen on the face of the prosecutrix, thus corroborating the deposition of PW-3. Ex. PW17/A further reveals that there were SC No.107/13 Page 34 of 38 fresh scratch marks on the breasts and shoulder of prosecutrix and her hymen was torn. There was a superficial tear in posterior commissure, swelling and redness on labia majora, redness in labia minora and she was bleeding from posterior wall of hymen, fourchette and vulva. These finding of gynecological examination clearly demonstrate that an attempt had been made to have sexual intercourse with the prosecutrix. All the injuries including the tear in hymen were fresh. It was argued by ld. Counsel for the accused that tear in hymen of a girl is not always caused by sexual intercourse and can be occasioned by a variety of reasons such a vigorous exercise etc. There is no dispute with the submission of the ld. Counsel but in the present case, the hymen tear appears to have occasioned by insertion of his finger by the accused in the vagina of the prosecutrix, as deposed by her. PW-17 has opined that her findings are consistent with recent sexual intercourse upon the prosecutrix.
36. Further it appears from the kit Ex. PW17/A that the clothes of the prosecutrix had been taken into possession by PW-17. The details of the clothes are not mentioned therein. These were handed over to IO (PW-15) in a pullinda sealed with the seal of CMO Dr. RML Hospital, New Delhi who seized it vide seizure memo Ex. PW10/A. The sealed pullinda was sent to FSL. It was received there as parcel No.2 (As per FSL result Ex. PA) and found containing one underwear, one shameez, one top/baby shirt and one jeans pant having Rs. 33/- in it. The FSL result Ex. PA shows that blood stains were detected on underwear as well as jeans pant.
SC No.107/13 Page 35 of 3837. Hence, the gynecological examination of the accused as well as the FSL result clearly demonstrate that the prosecutrix had been sexually abused. It is not the defence of the accused that all these injuries found on the body of prosecutrix are self inflicted as no such suggestion has been given to either PW3 or PW4 or PW17. Even otherwise also it is very difficult to believe that such type of injuries can be self inflicted. PW17 has clearly mentioned in the kit that these injuries indicate sexual assault upon the prosecutrix. The prosecutrix has specifically deposed that it was the accused who made an attempt to ravish her. What has been done to the prosecutrix is a very serious matter. If it was done by anybody else, I see no reason why the prosecutrix and her mother would leave the real culprit and level false charges upon the accused. The plea of false implication taken by the accused does not appeal to any reason and does not inspire confidence. It gets overshadowed by the clinching evidence of PW-3, PW-4 and PW-17 as well as forensic evidence.
38. The conduct of PW-4 (mother of the prosecutrix) in not reporting the matter to Police immediately after her daughter narrated the incident to her, not informing her sister or neighbourers about the incident, going to ISBT Kashmere Gate and spending night there etc. seems to be not convincing but it goes into the pale of insignificance in view of the credible, convincing and trustworthy testimony of PW3 (the prosecutrix) corroborated by testimony of PW4 herself as well as medical and forensic evidence.
39. The deposition of the witnesses examined by the SC No.107/13 Page 36 of 38 accused in his defence i.e. DW 1 & DW2 seems to be absolutely alien to the present case. These witnesses have neither thrown any light upon the incident of sexual assault nor have spoken about any fact suggesting false implication of the accused in this case. Their evidence deserves to be discarded in toto.
40. It was argued by ld. Counsel for the accused that since as per own case of prosecution, the accused had taken the prosecutrix with him with the permission of her guardian i.e. her mother PW-4, the ingredients of offence u/s 363 IPC are missing and hence accused cannot be held guilty for the same. The argument has been noted only to be rejected. It is true that accused had taken the prosecutrix with the permission of her mother but it is to be kept in mind that permission was for dropping her at school and not for confining her or sexually assaulting her. The accused did not take her directly to the school. He deviated on the way, took her to some other house where he confined her and sexually assaulted her. The accused took the prosecutrix to that house without the consent of her mother and thus has committed the offence of kidnapping as well.
41. However, it is to be noted that prosecutrix has nowhere deposed that accused made any attempt to commit carnal intercourse with her. Hence prosecution has failed to prove charge under Section 377/511 IPC against the accused. The accused is, thus, liable to be acquitted of the said charge. The prosecution has succeeded in proving the charge u/s 363 IPC, u/s 376 read with Section 511 IPC, u/s 342 IPC, u/s 323 IPC, u/s 201 IPC and u/s 506 IPC against the accused beyond any reasonable SC No.107/13 Page 37 of 38 doubt.
42. Resultantly, the accused is acquitted of the charge u/s 377 r/w Section 511 IPC, but is convicted u/s 363 IPC, u/s 376 r/w Sec. 511 IPC, u/s 342 IPC, u/s 323 IPC, u/s 201 IPC and u/s 506 IPC.
Announced in open (VIRENDER BHAT)
Court on 14.08.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.107/13 Page 38 of 38