Delhi District Court
Ad (Delhi) 170 State vs . Jai Hind : on 19 October, 2013
1 IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA, ADDITIONAL SESSIONS JUDGE01 (WEST):DELHI SC No. 29/13 Unique Case I.D. No. 02401R0592012010 FIR No. 140/10 PS Khayala U/s 376 IPC State Vs. Shankar @ Balaji S/o Shri Dara Singh R/o 5D/15, Vishnu Garden, New Delhi. ... Accused Date of Institution : 17.01.2013 Date of arguments : 05.10.2013 Date of Judgment : 19.10.2013 JUDGMENT
In brief, the case of the prosecution is that on 28.9.10, on receiving of DD No. 49A, SI Dharmpal went to the spot at D82, Dharampuri, Vishnu Garden. At the spot, the prosecutrix and her mother Smt. Rekha met him and told him about the incident. The prosecutrix was taken to the DDU Hospital for her medical examination. After the medical examination, the prosecutrix and her mother were brought to the police station. In the police station, statement of Smt. Rekha was recorded and on the basis of which the SC No. 29/13 Page 1of 14 2 FIR was registered. In the statement, Smt. Rekha has alleged that the prosecutrix has told her that the accused has taken her in his room and committed rape with the prosecutrix. On 28.9.10, at about 10 p.m., the accused was arrested from the platform No. 3 of New Delhi Railway Station on the pointing of Smt. Rekha. The accused was got medically examined from DDU Hospital. The site plan was prepared. The blanket on which the rape is alleged to have committed was seized. The exhibits of the case were sent to the FSL Rohini for examination.
2. After investigation of the case, charge sheet was filed U/s 376 IPC. Charge U/s 376 IPC was framed against the accused. The accused had pleaded not guilty to the charge.
3. In order to prove its case, prosecution has examined 19 witnesses. Statement of the accused U/s 313 Cr. P.C. was recorded in which he had denied the case of the prosecution. The accused has not led any evidence in his defence.
4. I have heard the Ld. APP for the state and Ld. counsel for the accused and perused the evidence on record.
PW1 H.C. Chhat Ram has proved the FIR as Ex. PW1/A and his endorsement on the rukka as Ex. PW1/B and DD No. 49A as Mark P1A.
PW2 H.C. Mast Ram is the MHCM and he has proved the relevant entry in the register No. 19 regarding deposit of exhibits with him and sending the same to FSL Rohini as Ex. PW2/A to Ex. PW2/C. PW3 H.C. Sunita has taken the prosecutrix to the DDU Hospital SC No. 29/13 Page 2of 14 3 for her medical examination.
PW4 Smt. Rekha has deposed that the prosecutrix who is aged about 7 years is her daughter. On 27.9.10, she had gone to take bath at around 2 p.m and when she came out, she could not see the prosecutrix and asked from her other daughter Kareena about the prosecutrix. Kareena told her that some uncle had come and had taken the prosecutrix with him saying that he would give her 'Samosa'. She made enquiries from the neighbours about the prosecutrix. At about 2.30 p.m., she saw the prosecutrix in the gali and she was weeping. The prosecutrix took her to a gali, climbed the staircase of a house and pointed out the room where the uncle had taken the prosecutrix. Prosecutrix knocked at the door and a boy came out and had replied that he had not brought the girl to that place. She brought the prosecutrix and asked from her whether something had happened, the prosecutrix had replied that the boy who had opened the door had taken off her Kachhi and thereafter "USNE MUJKO PELA". The prosecutrix has told her that the boy had given her Rs. 2/. Her husband came back home at around 9 p.m. and she told everything to her husband about the incident. She has identified the accused as the boy who has opened the door. Her husband called at No. 100. Police came there. They went to the railway station and the accused was found sitting there. The accused was brought to the police station. A blanket was seized by the police from the room of the accused. Police has recorded her statement which is Ex. PW4/A. The police prepared the site plan in her presence. She has identified Kambal (blanket) as Ex. P1.
SC No. 29/13 Page 3of 14 4 In cross examination by the accused, PW4 has deposed that there were many rooms in the house, where the accused had a room. She has not met anyone except a lady there. Rs. 2/ coin was not handed over by her to the police. She has denied the suggestion that the accused was friendly with her daughter Ms. Archna and that on being angry for the same, she has falsely implicated the accused in the case. PW4 has been confronted by the accused with her statement Ex. PW4/A. PW5 Shri Rajesh has deposed that on 27.10.10, he returned to home at about 5.30/6 p.m. He called the police at number 100. He has handed over the copy of date of birth certificate of the prosecutrix which was seized vide memo Ex. PW5/A. In cross examination PW5 has deposed that he is using mobile phone No. 9999875533. Normally, his wife used to call him on the mobile once or twice in a day. On that day of alleged incident, his wife had not called him on his mobile phone. He has called the PCR at 6.30 p.m. The local police came to his home at about 7.45 p.m. He has not accompanied his wife to Railway Station.
PW6 W/Ct. Mithlesh has deposed that on 27.10.10 at about 8.38 p.m. a telephone call was received from one Manpreet Singh to the effect that "EK AADMI NE EK LADKI KE SAATH GALAT KAAM KARNE KI KOSHISH KI HAI" This information has recorded by him in Form No. 1 at portion Ex. PW6/A was forwarded to the concerned network of the Districts.
PW7 Ct. Mahavir has taken the exhibits in this case from the SC No. 29/13 Page 4of 14 5 MHCM and has deposited the same in FSL Rohini.
PW8 Ct. Bhim Singh has taken the accused to DDU Hospital for his medical examiantion.
PW9 SI Dharampal has deposed that in the intervening night of 27/28.9.10 at about 8.45 p.m. he received the DD No. 49A and went to the spot i.e. D82, Dharampuri, Delhi. At the spot, the prosecutrix along with her mother met him and told him about the incident. The prosecutrix was taken to the DDU Hospital for her medical examination.
PW11 is the prosecutrix aged about 7 ½ years and she has deposed that she do not remember the date of incident. She was playing with her younger sister. The accused lured her in the afternoon when her mother was having a bath. She met the accused in the Gali. The accused took her to his house on the pretext that he would give her goodies. The accused removed the pajami that she was wearing at that time. The accused put his penis (shushu wali jagah) in her vital part (shushu wali jagah). She felt pain. The accused had closed the door when he was committing rape with her. The accused laid blanket on the floor and she was asked to lay on it when he committed 'Galat Kaam' on her. The accused had asked her not to tell her mother about the incident but she complained to her mother that the accused had done 'Galat Kaam'. The accused left her at the shop of vegetable near her house. IO had enquired about the incident from her and she had narrated all the facts. The doctor had taken her undergarment at the time of her medical examination. She has identified her undergarment as Ex. P1.
SC No. 29/13 Page 5of 14 6 In cross examination by the accused, PW11 has deposed that her mother told her that she had to deposed before the court. Her mother also told her that as to what was required from her to be told to the court. She has stated accordingly to what her mother had instructed. She has deposed as per the statement she has given to the IO on the instruction of her mother. Her mother had instructed to make a deposition in regard to the incident to the police.
PW12 Dharmender Singh, Record Clerk from MCD Office has proved the birth certificate of Baby Geetanjali as Ex. PW5/B and Ex. PW12/A. PW14 Dr. Archna has proved the MLC of the prosecutrix as Ex. PW14/A. PW15 Shri Rajinder Kumar, Ld. MM has deposed that on 28.9.10, an application for recording the statement of the prosecutrix was marked to him which is Ex. PW15/A. The prosecutrix was not capable for giving the statement. The proceedings are Ex. PW15/B and his certificate to the proceedings is Ex. PW15/C. PW16 Dr. Monika Suri has deposed that the prosecutrix has been examined by Dr. Rupali Sharma vide MLC Ex. PW16/A and the copy of the MLC brought by her is Ex. PW16/B. The word 'torn' is not mentioned in the Ex. PW16/B. The word 'absent' and 'torn' is mentioned in Ex. PW16/A. PW17 Amar Deep has deposed that he has given on rent one room in his house No. 5/D15 to the father of the accused. The accused had come to reside with his father in that room about two months prior to the present incident.
SC No. 29/13 Page 6of 14 7 PW18 Dr. Nishu Dhawan has deposed that the accused has been examined by Dr. Rajiv Tyagi vide MLC Ex. PW18/A. As per the opinion in the MLC, there was nothing to suggest that the accused was not capable of performing sexual act.
PW19 SI Bimla is the investigating officer of the case and she has deposed that on 27.09.2010, SI Dharampal has produced before her the prosecutrix and her mother Rekha along with MLC of prosecutrix in the police station. She recorded the statement of the mother of the prosecutrix namely Rekha and got the case registered. She obtained the birth certificate of prosecutrix which were seized vide memo Ex. PW5/A. She prepared the site plan of the place of incident which is Ex. PW4/C. On 28.09.2010, at Platform no. 3 of New Delhi Railway Station, the accused was arrested on the identification of the mother of the prosecutrix vide arrest memo Ex. PW10/A. The accused was medically examined. In the room of the accused, a blanket was seized vide seizure memo Ex. PW19/B. The FSL result is Ex. PW19/D and PW19/D1.
PW10 H.C. Om Parkash and PW13 H.C. Virender Singh has joined the investigation with PW19 and has supported the testimony of PW19.
5. Ld. counsel for the accused has argued that the accused has been falsely implicated in the case by the mother of the prosecutrix as she was angry with the accused for his friendly relation with her another daughter Ms. Archna. The evidence of the prosecutrix is not reliable as she is a tutored witness. The MLC of the prosecutrix also does not support the case of the SC No. 29/13 Page 7of 14 8 prosecution and it is also a manipulated document. From the evidence on record, the prosecution has failed to prove its case that the accused has committed rape with the prosecutrix. On these grounds, it is prayed that the accused be acquitted.
On the other hand, Ld. APP has argued that the prosecution has proved its case beyond reasonable doubt against the accused.
6. As per the case of the prosecution, the prosecutrix was aged about 6 years on the date of alleged incident i.e. 27.9.10.
PW4 Smt. Rekha who is the mother of the prosecutrix has deposed the age of the prosecutrix as 7 years, when she was examined in the court on 1.9.11.
PW5 Shri Rajesh, the father of the prosecutrix has proved the birth certificate of the prosecutrix as Ex. PW5/B. In Ex. PW5/B, the name of the child is mentioned as Geetanjali. PW5 has deposed that prosecutrix and Geetanjali is the one and the same girl. In the Ex. PW5/B, the date of birth of the prosecutrix is mentioned as 25.9.04.
From the evidence of PW4 and the birth certificate Ex. PW5/B, it is proved that the prosecutrix was about 6 years old on the date of alleged commission of offence.
7. The prosecutrix has been examined as PW11. PW11 is the material witness of the case. The age of the prosecutrix is about six years.
It has been observed by Hon'ble High Court of Delhi in 2012 VI AD (Delhi) 170 State Vs. Jai Hind : SC No. 29/13 Page 8of 14 9
31. " The law with regard to the testimony of child witnesses can be summed up thus. The conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same. (Ratansinh Dalsukhbai Nayak Vs. State of Gujrat 2004 (1) SCC 64) It should be accepted albeit with circumspection. This decision had accepted the observations Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341) where it was held that:
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
In Pacchi Vs. State of U.P AIR 1998 SC 2726 it was held:
"It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witnes must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring."
36. In the final analysis, the Court has to weigh the testimony of the child witness against the inconsistencies in her statement, the absence of vaginal injury other than the torn hymen, and the inconsistencies in the narratives of the victim's relatives in order to determine whether the accused is guilty or not.
SC No. 29/13 Page 9of 14 10 PW11 in her examination in chief has deposed that she met the accused in the Gali. The accused took her to his house on the pretext that he would give her goodies. The accused removed the pajami that she was wearing at that time. The accused put his penis (shushu wali jagah) in her vital part (shushu wali jagah). She felt pain. The accused had closed the door when he was committing rape with her. The accused had laid blanket on the foor and she was asked to lay on it when he committed 'Galat Kaam' on her.
In cross examination, PW11 has deposed that her mother told her that she had to deposed before the court. Her mother also told her that as to what was required from her to be told to the court. She has stated accordingly to what her mother had instructed. She has deposed as per the statement she has given to the IO on the instruction of her mother. Her mother had instructed to make a deposition in regard to the incident to the police.
Perusal of the testimony of PW11, shows that in the examination in chief she has supported the case of the prosecution but in crossexamination, she has deposed that she has stated accordingly to what her mother had instructed. The proceedings U/s 164 Cr.PC which are Ex. PW15/A shows that the statement of the PW11 was not recorded U/s 164 Cr.PC as she was not capable for giving the statement.
8. The MLC of the prosecutrix which is Ex. PW16/A shows that on local examination, no abrasion mark or bruises seen, hymen absent (torn). In the copy of MLC of the prosecutrix which is Ex. PW16/B the word 'torn' is not mentioned. It seems that the word 'torn' has been mentioned later on in the SC No. 29/13 Page 10of 14 11 MLC of the prosecutrix which is Ex. PW16/A. There is discrepancy as to the mentioning of word 'torn' in the MLC Ex. PW16/A and of its copy Ex. PW16/B. It has been observed by Hon'ble High Court of Delhi in 2009 (111) DRJ 313 (DB) as under:
25. Medical Jurisprudence (5th Edition) by Dr. R.M. Jhala and V.B. Raju at page 469, opines as under: "In young girl under the age of 12 years the hymen is situated relatively more posteriorly (in backward position) and higher up in a narrow vaginal canal. This prevents the hymen from coming in contact with the male organ in forceful penetration of the organ. This also saves the hymen from bearing the brunt of the blow and thus it escapes injury. Thus absence of injury to hymen in a girl under 12 years does not rule out the act of rape.
Labiamajora Next to hymen in positive importance but more than that in frequency are the injuries on labia majora. These, viz., labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. In case of girls under 12 years where examination of hymen may not prove useful, examination of labia majora given conclusive evidence. The narrowness of the canal makes it inevitable for the male organ to inflict blunt, forceful blows on the labia. Such blows invariably lead to contusion, because of looseness and vascularity. The interesting feature of such contusion is its vividness especially on the side it forms inner wall of vagina. Against the pink background of the mucous membrane dark red contusion is visible even on initial inspection".
26. We find merit in the last contention urged by learned counsel SC No. 29/13 Page 11of 14 12 for the appellant. Indeed, in the light of Medical Jurisprudence on the subject, it is apparent that Kumari 'M' was not subjected to any sexual assault at the time and on the date as claimed by the prosecution. The reason is obvious. Medical Jurisprudence evidences that in adolescent girls the hymen is situated relatively more posteriorly and for said reason there is a possibility of rape being committed without the hymen being torn; the converse whereof would be that if the hymen of an adolescent girl is torn due to rape, the penetration has to be a deep penetration. The Medical Jurisprudence guides that the labia majora are the first to be encountered by the male organ and they are subjected to blunt forceful blows, depending on the vigour and the force used by the accused and counteracted by the victim. The narrowness of the vaginal canal makes it inevitable for the male organ to inflict blunt, forceful blows on the labia and such blows lead to contusion because of looseness and vascularity. The feature of such contusion is revealed against the pink background of the mucous membrane dark red contusion being evidence to the naked eye. Had Kumari 'M' being raped between 5:00 PM and 7:00 PM and the hymen got torn due to said rape, fresh injuries on the labia majora, vaginal canal and around the hymen would have been evidenced as fresh bleeding injuries, and if not bleeding injuries, in the form of a dark red contusion being visible against the pink background mucous membrane.
Perusal of the MLC Ex. PW16/A shows that there is no observation of the concerned doctor as to the examination of labia majora and vaginal canal of the prosecutrix.
As per the case of the prosecution, the blanket Ex. P1 on which the rape is alleged to have been committed by the accused with the prosecutrix is seized at the spot The FSL report which is Ex. PW19/D shows that the blood and semen was not detected on the blanket.
SC No. 29/13 Page 12of 14 13 Keeping in view all these facts that PW11 is a tutored witness and her testimony is also not corroborated by her MLC and FSL report, so I am of the opinion that the prosecution has failed to prove that the accused has committed rape with PW11.
9 PW4 Smt. Rekha has been confronted with her statement Ex. PW4/A on the basis of which the FIR has been registered. She has made improvements from what she has stated in Ex. PW4/A. From the testimony of PW4 Smt. Rekha, it is evident that she came to know about the alleged incident at about 2.30 p.m. but she has informed her husband PW5 around 9 p.m. .
PW5 has deposed that he is using mobile phone. PW4 used to call him on the mobile phone once or twice in a day. On the day of alleged incident, his wife has not made any call on his mobile phone. The conduct of PW4 is not natural as after coming to know about the serious incident, she has waited till 9 p.m. despite the fact that she can call her husband on his mobile or the police.
10. It has been observed by Hon'ble High Court of Delhi in Crl. Appeal No. 214/11 in Mumtaz Vs. State decided on 22.5.13 as follows:
2. "Being conscious of misuse of the provisions of rape and the effect it can have on the accused, in the context of evaluating the testimony of the rape victim, following observations were made by the Supreme Court in Rajoo & Ors. V. State of Madhya Pradesh AIR 2009 SC 858:
"........It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time SC No. 29/13 Page 13of 14 14 a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication..... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
In view of the above discussions, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the accused. Accordingly, the accused is acquitted for the offence punishable U/s 376 IPC.
Announced in the open court (Rajneesh Kumar Gupta)
today i.e. on 19.10.13 Additional Sessions Judge01/West
Tis Hazari Courts, Delhi
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