Delhi District Court
State vs . on 31 August, 2017
1
In the court of Ashwani Kumar Sarpal, Addl. Sessions Judge1
cum Presiding Officer of Special Court under POCSO Act,
(East District), Karkardooma Courts, Delhi.
FIR NO.73/12
PSGokal Puri
U/S363/376 (2)/323/
354/366A/377/367/
120B/34 IPC
STATE
VS.
SADDAM & PARVEJ
(SC 28/2013)
***************
JUDGMENT: It has been confirmed through the medical reports called by the court during trial that both the accused are deaf and dumb. During proceeding of this case, help of expert in sign language/ interpretor was taken especially at the stage of framing charge and recording of statement of accused persons u/s 313 Cr.P.C.
Record shows that during investigation and trial, accused Saddam remained in custody from 1232012 to 13112013 whereas accused Parvej remained in custody from 932012 to 13112013. The case of the accused persons was conducted by their own private counsel.
2On the basis of the prosecution allegations, the charge for offences under section 120B, 363 read with 120B, 366A read with 120B, 376(2)(g), 377 and 323 read with 120B IPC was framed against the accused persons to which they pleaded not guilty. They even in their statements recorded u/s 313 Cr.P.C. described themselves as an innocent person and denied committing any offence. My. Ld. Predecessor vide order dated 332015 had also granted interim compensation of Rs. 50,000/ to the victim.
PROSECUTION ALLEGATIONS: Victim, a girl child was aged about 5 years only at the time of incident and her identity is not disclosed herewith. Abdul Gaffar, maternal uncle of the victim lodged complaint with the police on 93 2012 at 9 a.m. with the averments that victim along with her mother had come to his house on 832012 at 5 p.m. While playing outside of the house in the evening, she went missing and they searched her for whole night. When, complainant Abdul Gaffar during search reached near Aksha Masjid, Johripur Nala at about 5.45 a.m. on 932012, then he saw victim coming with a person who run away after seeing him. It is also mentioned in the complaint, that person who had run away is a dumb person and was seen earlier by the complainant roaming in the area and is residing somewhere in the locality of Shiv Vihar. Complainant made inquiries from the victim who stated while weeping that the dumb person had committed wrong act with her. Complainant brought the victim to his house and called the police at number 100. PCR came and took the victim to GTB hospital where her treatment started.
IO ASI Devraj on receipt of DD no. 6A regarding the incident reached hospital along with Ct. Deepak and collected MLC of 3 the victim but she was not fit to give any statement. Thereafter, on the basis of the complaint of Abdul Gaffar, IO got the case registered. Another IO ASI Tejwati also associated in the investigation. Exhibits of the victim were taken into possession and deposited in Malkhana. Accused Parvej was firstly arrested on 932012 at the identification of complainant Abdul Gaffar and 'Pajami' of the victim was recovered at his instance. Subsequently, accused Saddam was arrested on 123 2012. Medical examination of both the accused was got conducted from hospital and their exhibits were seized which ultimately were sent to FSL. Statement of the victim was got recorded from MM concerned under section u/s 164 Cr.P.C. After completion of investigation, charge sheet was filed in the court. However, due to not pleading guilty by accused persons, trial started.
EVIDENCE LED: Prosecution in order to prove its case examined total following 17 witnesses.
Sr. Name of the What the witness proved no. witness PW1 SI Tejwati She being the IO partly investigated the matter and taken over investigation in the hospital from ASI Devraj. She made inquiries from the victim in the hospital, arrested the accused Parvej from his house vide arrest memo Ex. PW1/A, recorded his disclosure statement Ex.
PW1/B, prepared pointing out memo of the site of offence at his instance vide 4 Ex. PW1/C, got him medically examined, seized the exhibits of accused Parvej vide Ex. PW1/D, recovered 'Pajami' of the victim Ex. P1 from the house of the accused Parvej vide memo Ex. PW1/E and deposited the exhibits in malkhana etc. PW2 Abdul Gaffar He is the uncle of the victim as well as complainant upon whose statement Ex.
PW2/A, FIR was registered. At his identification, accused Parvej was arrested as he had seen him coming with the victim in the morning of 93 2012. In his presence, the personal search of the accused Parvej was conducted vide memo Ex. PW2/B. PW3 Victim (whose She proved how and in which manner identity is not incident of kidnapping, rape, beating disclosed) etc. took place with her.
PW4 Shamim He is the person who had seen the Ahmed victim taking away by the accused Saddam in the evening of 832012 when she had gone missing.
PW5 Mohd. He is the father of the victim who Mukhtar reached hospital and victim told about the manner of incident and names of culprits to him after she was able to tell.
PW6 HC Surender He is MHCM and deposited sealed Singh pullanda given by IO in Malkhana on 9 32012 and 1232012 respectively and thereafter sent the same to FSL on 15 5 2012 vide relevant entries in the registers of the police station which are Ex. PW6/A to D. PW7 HC Ashok Pal He associated with the IO ASI Devraj at the time of arrest of the accused Saddam on 1232012. He is the witness of the arrest memo of the accused Saddam, his disclosure statement, personal search memo Ex.
PW7/A to C. He took the accused Saddam to hospital for his medical examination, handed over the exhibits of the accused to IO vide memo Ex.
PW7/D. The accused Saddam also pointed out the place of occurrence in his presence vide memo Ex. PW7/E. PW8 Ms. Bhawani She recorded statement u/s 164 Cr.P.C.
Sharma, MM of the victim Ex. PW3/A on 342012
and gave copy of the same to IO vide Ex.
PW8/A.
PW9 Dr. He proved MLC of the victim Ex. PW9/A
Parmeshwar which shows number of injuries in her
Ram private parts as well as on different
parts of body.
PW10 ASI Rajender He being the duty officer simply Prasad recorded formal FIR Ex. PW10/A on the basis of rukka prepared by the IO on the complaint of Abdul Gaffar and also proved his endorsement Ex. PW10/B on the rukka.
PW11 SI Rano Devi She did nothing except filing of 6 chargesheet in the court as investigation was already complete.
PW12 Dr. Mohd. He medically examined the accused Parwej Parvej to ascertain his potency and gave his report Ex. PW12/A. PW13 SI Desraj He is the IO of the case whose statement was recorded partly in examination in chief which was deferred as he was unwell. But thereafter he expired and now his part statement cannot be read in evidence.
PW14 HC Vimla She got the victim medically examined from gynecologist in the GTB hospital at the instructions of the IO ASI Desraj and collected sealed exhibits of the victim from doctor and lateron handed over to IO vide memo Ex. PW13/B. PW15 Ct. Deepak He had reached hospital with the IO ASI Desraj, took rukka from the IO and handed over the same to duty officer and then came back to hospital and gave FIR and rukka to ASI Tejwati. He was also present when the accused Parvej was arrested as well as when 'Pajami' of the victim was recovered from his house on 932012.
PW16 Ct. Ravinder He took accused Parvej to hospital for his medical examination, took his sealed exhibits from the doctor and handed over the same to IO vide Ex.
PW1/D. 7 PW17 Ct. Anand He took sealed pullandas from MHCM Kumar and deposited the same in FSL only.
It is important to mention here that accused persons did not dispute the age of the victim as is revealed from the order sheet dated 88 2013. Accused Saddam also admitted that he was medically examined in order to assess his potency by giving statement u/s 294 Cr.P.C.
STATEMENT OF ACCUSED U/S 313 CR.P.C. & DEFENCE EVIDENCE: Accused persons in their respective statements u/s 313 Cr.P.C. got recorded through expert in sign language/interpretor totally denied the allegations of prosecution and alleged that they were falsely implicated in this case and had not done anything wrong with the victim. They even denied being friends or knowing each other. Accused Parvej also denied recovery of any 'Pajami' of the victim from him. Both accused showed ignorance why the case was registered against them. They did not utter any word in their statements giving any reasons or motive on the part of the prosecution witnesses for their alleged false implication. However, except simply claiming innocence, they did not opt to lead any evidence in defence.
REASONS FOR DECISION: I have heard Addl. PP for state and counsel for the accused and gone through the record. Following points have arisen during arguments;
(a) There is no dispute about age of the victim: Victim was aged about 5 years when the incident took place and when she was examined in the court, she was just 6½ years of age. No dispute about 8 the age of the victim was raised during trial on behalf of accused persons so vide order dated 882013, the court dropped the witness from the hospital in which she was born to prove her birth record. Thus, it is established on record that minor victim was just 5 years of age at the time of incident. It is a judicial noticeable fact that minor child of the age of 5 years does not understand what rape means nor can be treated as physically or mentally fit in any circumstances to enter into any sexual relations.
(b) Both accused are potent persons: After arrest both the accused persons were medically examined from the hospital to know about their potency. Accused Saddam admitted his MLC Ex. PA1 by giving statement u/s 294 Cr.P.C. whereas MLC of accused Parvej Ex. PW12/A was proved by PW12 Dr. Mohd. Parwej. MLC of both the accused persons says that they were capable to perform sexual intercourse and were not potent persons. This fact is even not disputed at argument stage.
(c) Medical record of the victim supports the prosecution version: PW9 Dr. Parmeshwar Ram proved MLC of the victim Ex. PW9/A dated 932012 prepared at 7.45 a.m. Victim was brought to hospital by PCR.
This MLC was infact prepared by one Dr. Munish but he had left the hospital and his present whereabouts were not known. However, Dr. Munish was working under PW9 who identified his handwriting and signatures on the MLC. He specifically denied suggestion in his cross examination that this MLC was not prepared in his presence. PW9 is thus not only competent person to prove the MLC being acquaintance with the handwriting and signatures of Dr. 9 Munish but also the same was prepared in his presence. Accordingly, it can be said this MLC Ex. PW9/A is fully proved on record by the prosecution. In this regard reliance can be placed upon the decision Pale Ram vs. NCT of Delhi, Cr. A. no. 609/1999 decided by Delhi High Court on 7112002, in which it is held that where concerned doctor is not available due to leaving of hospital and his present whereabouts are not known, then any other doctor can be called to prove the medical reports by invoking provisions of section 45 of the Evidence Act.
The MLC Ex. PW9/A shows that victim had suffered multiple bruises and abrasions over back, swelling over left eye and both lips, abrasions over cheeks etc. MLC also point out that Anal tear was present and bruises were present over vaginal area. A fresh hymnal tear was also there. According to surgical opinion, her injuries were found grievous in nature. At first examination, she was not fit for statement but lateron became fit. Medical history appearing on the MLC also says that she went missing on 832012 at 6 p.m. and was found on 932012 at 5.45 a.m. This MLC Ex. PW9/A on the face of it clearly point out that victim was sexually assaulted forcibly and penetration was done not only in her vagina but also in her anus. She was also given severe beatings and brutally tortured during forcible sexual assault. It is a clear case where minor victim aged about 5 years was subjected to forcible rape and unnatural sex, according to the medical condition. Mere fact that FSL report received (which is perse admissible in evidence) is not helping the prosecution in any manner because the DNA profiles could not be generated from the exhibits of the victim due to its degradation and thus no comparison could be made with her exhibits and blood samples of both the accused is of no 10 consequences when MLC itself fully prove that rape and unnatural sex was committed with the minor victim and during this process she was also mercilessly beaten. Prosecution also has failed to examine the concerned doctor who gave final opinion regarding nature of injuries as grievous in nature, so in such situation, the injuries have to be treated as simple.
(d) Recovery of 'Pajami' of the victim: According to the prosecution allegations, accused Parvej after arrest got recovered 'Pajami' Ex. P1 belonging to victim from his house on 932012 vide recovery memo Ex. PW1/E. In their testimonies, PW1 ASI Tejwati and PW15 Ct. Deepak proved the recovery of this 'Pajami' allegedly belonging to the victim. Mere fact that such type of 'Pajami' is easily available in the market itself is not sufficient to hold that the same was planted upon the accused. However, this 'Pajami' Ex. P1 was not shown to the victim or to her father or uncle for their identification and thus the prosecution has failed to prove that infact this recovered 'Pajami' belonged to the victim only and none else. Hence, no benefit of this recovery can be given to the prosecution which otherwise also was not sent to FSL for any comparison.
(e) Identity of the accused persons being culprits is fully established: Both the accused did not dispute their arrest made by the police in their respective statements u/s 313 Cr.P.C. As per prosecution case, accused Parvej was arrested from his house on 93 2012 at 9 p.m. and accused Saddam was arrested on 1232012 at 10.30 p.m. from Ganda Nala near Aksha Masjid. Both the accused persons were arrested by the police on the basis of secret information. Admittedly, no public person has witnessed the arrest proceedings.
11PW1 second IO admitted in her cross examination that near the park which is a place of incident, residential area is there. She tried to join public persons at the time of preparation of pointing out meme but no one came forward. IO did not tell the names and addresses of those public persons which were contacted. However non joining of any public witness itself is not fatal to prosecution case because it is fact after taking into consideration the natural act and behaviour of general people that they do not easily agree to join the police proceedings due to apprehension of going to police station or court, fear of accused or to maintain good relations with the accused and to avoid any confrontation with him etc. Public persons are ready to watch the 'Tamasha' at the spot by standing at some distance but do not become ready to cooperate with the police. Delhi High Court in Ghanshyam @ Raju vs. State 241 (2017) DLT 552 held that public witnesses/persons are generally reluctant to join police proceedings and court cannot ignore this handicap with which investigating agency has to discharge its duties. Otherwise also, in the present case, the arrests of the accused persons was made in the night and availability of public at the spot might have become thin during such hours. In such situation, non joining of any public witness does not invalidate the arrest of the accused persons.
PW2 while searching the missing victim when had reached near drain of Shiv Vihar on 932012 at about 5.45 a.m., then he saw the accused Parvej coming with the victim and on seeing him, he ran away after leaving the victim there. PW2 also stated that accused Parvej was arrested at his instance by the police from his house. According to PW2, the accused had been seen by him roaming around the colony and is a dumb person and residing somewhere in Shiv Vihar area though he was not acquainted with him. This fact 12 deposed by PW2 was not disputed at all in his cross examination done on behalf of accused persons. Thus, it shows that PW2 had seen the accused Parvej earlier also prior to 932012 and knew him atleast by face and through some particulars, though was not acquainted with him. Police officials PW1 and PW15 both deposed that accused Parvej was arrested from his house on the basis of secret information and at that time PW2, uncle of the victim was present. Accused Parvej also admitted in his statement u/s 313 Cr.P.C. that he was arrested from his house and he did not deny the fact that his arrest took place at the pointing out of PW2. Victim PW3 had also correctly identified the accused Parvej in the court and according to her he is the same person who was brought back to her uncle's house but in the way ran away after seeing her uncle. Hence, identity of the accused Parvej who was seen coming with the victim after commission of rape etc. and being one of the culprits is proved and is not disputable.
It is important to mention here that IO had moved an application for conducting TIP of the accused Parvej on 2442012 but it was withdrawn lateron on 2642012 on the ground that there is no need for TIP as the accused was arrested at the identification of the complainant. Otherwise also fact deposed by PW2 in his statement that accused Parvej was seen by him earlier also in the locality was not disputed at all. In such situation, there was no requirement of holding TIP of the accused Parvej and withdrawl of the application for TIP by the IO is not going in favour of this accused.
So far the identity of the accused Saddam is concerned, PW3 victim in her statement u/s 164 Cr.P.C. stated that she knew Saddam as he was coming for job work with some person who was doing wood work. Even in the court, victim stated that accused Saddam used to reside near her maternal grandmother's house so he 13 was known to her. PW2 also stated that accused Saddam had resided in his neighbourhood. The suggestion given to this witness on behalf of the accused persons that a quarrel had taken place between PW2 and mother of the accused Saddam also point out that he was known to the family of victim. PW5 also knew the accused Saddam being living in the locality where his brother in law Abdul Gaffar was residing. Thus, there was no dispute about the identity of the accused Saddam. Since, the accused Saddam was already known to the victim prior to the date of incident, so no question arose for the prosecution for holding his TIP also.
PW4 Shamim Ahmed also stated in his statement that on 832011 at about 66.15 p.m, he had seen the accused Saddam taking the victim who was known to her being the niece of his friend Abdul Gaffar. Since, he had to go somewhere so did not inquire from the accused why he was taking the girl with him. He also stated that he did not notice properly as to why accused was taking victim with him as he was in hurry. He also stated that next day he came to know that victim had been raped. Thus, from his testimony, the fact is proved that accused Saddam had kidnapped the victim. No doubt, this witness repeatedly mentioned the year 2011 instead of 2012 in his statement but he appears to be under confusion in this regard. The incident actually had happened in the year 2012 so telling the year of incident as 2011 by this witness can be treated as his simple mistake or confusion of mind when he was correctly giving date and month. Mere fact that PW4 Shamim Ahmed who was also associated with the IO in the capacity of private interpretor/person having knowledge of sign language and was called by the police just after arrest of the accused persons had turned hostile and denied joining the police at the time of making inquiries from the accused persons is not sufficient 14 to hold that they were falsely implicated in the case. Atleast his testimony in respect of taking of victim by the accused Saddam is reliable and convincing when no cross examination on this aspect was done and even no suggestion to contrary in this regard was put.
Thus, in above situations, there was no requirement to hold TIP of any of the accused. The argument advanced on behalf of accused by their counsel that due to non holding of TIP, the prosecution case has to be rejected is liable to be discarded. Supreme Court in case Dastagir Sab vs. State of Karnataka 2004 (4) Criminal Reported Judgments 541 held that no law states that non holding of TIP would by itself disprove the prosecution case. To what extent and if at all the same would adversely affect the prosecution case, would depend upon the facts and circumstances of each case.
No doubt, the victim PW3 has stated in testimony that there was darkness at the spot where she was taken and public was also moving but she also deposed that her mouth was closed and she could not raise alarm. When it is established on record that victim was kidnapped by the accused Saddam in the evening of 832012 and she was found bringing back by the accused Parvej in the next morning at 5.45 a.m., then the circumstance of last seen and suffering of various injuries by the victim including on her private parts gave strength to the prosecution case. In such situation, some responsibility also lies upon the accused persons to explain under what circumstances, the victim became subjected to sexual assault and different types of injuries when she was with them for whole night. Non explanation of these circumstances point out towards guilt of the accused.
(f) Evidence of PW5 is not a hearsay evidence: PW5 is the father of the victim who reached hospital after coming to know about her 15 admission there on 932012 through information given by Abdul Gaffar on the mobile phone of his friend. According to PW5, when he reached hospital, victim was found admitted there and for some time she was not in a position to tell anything. After 23 hours, when she was able to tell, then she informed him how and in which manner the entire incident took place. Victim had also told her father about the acts of the accused persons in details in giving her beatings and committing her rape etc. besides telling him their names.
This statement of the father of the victim cannot be treated as simple hearsay evidence. It is the first version of incident which the victim narrated to her father when she became in a position to tell in the hospital and thus is a relevant fact forming part of the same transaction being admissible under section 6 of the Evidence Act. Accordingly, the testimony of PW5 cannot be rejected and somehow support the prosecution case.
(g) Statement of minor victim is reliable and trustworthy: The statement of the victim was also recorded by MM concerned Ms. Bhawani Sharma PW8 under section 164 Cr.P.C. In this statement Ex. PW3/A, victim stated that on Holi day, she had gone to her Mama's house. She was playing outside in the evening where accused Saddam came and took her forcibly by closing her mouth. There was one more person along with him. Both thereafter gave bites on her lips, cheeks and chest. Both thereafter one by one started inserting their 'cheez' (penis) in her vagina and anus. ("Woh ek ek kar meri peshab wali jagah aur tatti karne wali jagah par apni cheej jor jor se dard karke ghusa rahe the"). Victim also stated in this statement that both were dumb. She also stated that she was feeling lot of pain and was weeping. When Saddam was doing wrong act, then another 16 person was standing. Thereafter, both gave her beatings and thrown her in the Nala. She also stated that blood started coming from her vagina portion and she was having wounds on mouth, cheeks and chest.
The statement of the victim was recorded in court as PW3. Before recording her statement, the court made inquiry by putting various questions to her and then came to the conclusion that she is a competent witness and her statement can be recorded. At that time, the age of the victim was just 6½ years. Most of the evidence of the victim was recorded in question answer form.
Victim PW3 deposed that it was a day of Holi. She had gone to her maternal grandmother's house and was playing in the street in the evening, then accused Saddam took her from there to the drain where she was handed over to another boy namely Parvej. Victim had correctly identified both the accused in the court. She also deposed that both had beaten her and thereafter she became unconscious. Both the accused had given teeth bites on her stomach, waist, cheeks, lips and other parts of the body. They also did 'Batameeje' with her.
When the meaning of 'Batameeje' was asked from the victim, then she felt starting shy and kept on murmuring in the mouth which was not audible. Witness was asked repeatedly but she did not speak and kept on murmuring something. This demeanor of the victim was recorded by the court and in order to give rest to the witness, 5 minutes break was taken.
After the statement of the victim was resumed, then she stated, "Parvej Ney Apni Susu Meri Susu Mein Daali Thi." She also stated that she was brought before Judge Sahib by the police and her statement was recorded. Victim also repeated in the court what she 17 had told to the MM concerned. According to the version of the victim, both the accused one by one forcibly entered their penis (described as cheez) into her vagina and anus and she was feeling lot of pain and was weeping. She also stated that when accused Saddam was doing ''Galat Kaam'' with her then other accused was standing there.
When victim was asked whether she raised alarm then she replied that her mouth was closed ("Mera Muh Bheech Diya Tha"). Victim had also stated that there was darkness at the spot of incident. Though public persons were moving near spot but if they had not noticed the incident due to darkness or night time and the victim could not raise alarm as her mouth was closed, then in such situation, the testimony of the victim cannot be disbelieved who had no motive to falsely implicate the accused persons. Delhi High Court in case Hunny vs. State 241 (2017) DLT 346 relied upon the testimony of the victim who was aged about 5 years only and upheld the conviction. The manner in which victim gave statement in the present case is almost similar as given by victim of the above cited case decided by High Court. Hence, even if at one initial stage, the victim was reluctant to answer embarrassing question about the meaning of 'Batameeje' and started murmuring in her mouth, then it cannot be held that after getting 5 minutes break she became intelligent in order to falsely implicate the accused persons. The court can understand shyness of tender aged girl to answer dirty or vulgar questions.
In the cross examination, victim stated that she had also gone unconscious on that day but it is not got clarified from her when and at what stage of the sexual assault, she became unconscious. It was also natural for the victim to answer in negative who was standing in front of her and who was standing in her behind when she became 18 unconscious. According to victim, she became conscious on next morning. It means that before becoming unconscious, victim had already seen and noticed what was happing with her and in which manner and who was doing the same.
Victim was also thrown in the drain by the accused persons as alleged by her. Her cloths got mud stains and became wet due to throwing in the drain. She also stated that her cloths were not wet when she was taken to hospital. The possibility cannot be ruled out that after coming back to house, her cloths were changed by family members before taking to hospital or those cloths had naturally dried up. Witness was in bad condition at that time due to various injuries on different parts of her body and even was declared unfit for statement at first instance, then it cannot be expected to know from her whether her cloths were taken in possession by the doctor or not.
Victim also stated that in the morning, his Mama (Uncle Abdul Gaffar @ Pappu) brought her back to house from drain. According to her none of the accused was present there. However, in the later part of the statement, she stated that accused Parvej was taking her to the house of her uncle and on the way, uncle met and the accused after seeing him ran away. This contradiction itself is not sufficient to disbelieve the victim. Victim had specifically denied that she was giving false statement at the instance of her maternal uncle Abdul Gaffar who is also known as Pappu. She also stated that she had told the truth. The way in which manner the victim deposed, rule out any possibility of any tutoring.
Victim was already suffered lot of trauma and grievous injuries at the hands of the accused persons. She was feeling lot of pain when sexual assault was committed upon her. Even if the victim had not complained to anyone in the way when she was bringing back 19 to her house by the accused Parvej then it cannot be said that she is now telling lie in this court. It cannot be expected from the child of 5 years of age who was subjected to various injuries and sexual assault to stop the peoples in the way and to make complaint to passersby and inform about the incident.
PW3 Victim correctly stated that she did not go to police station after she came back to her maternal uncle's house because as per record, she was taken to hospital by PCR after receipt of call at 100 number made by her uncle.
Victim also stated in her testimony that she did not make any statement to police on the day accused Parvej left her. This fact is not correct because PW1 ASI Tejwati told that victim had informed her how the incident took place. This contradictory fact is not sufficient to reject her testimony. After going through the statement of the victim, I am of the view that nothing material has come on record from her cross examination to hold that she is either tutored witness or is not correctly deposing. There was no motive on her part to falsely implicate the accused persons.
Simple fact that family members of the victim PW3 had accompanied with the victim to court at the time of recording statement u/s 164 Cr.P.C. does not mean that victim was tutored. Since, the victim was minor child of 5 years of age, so it was natural that her parents accompanied her to court as she alone could not go anywhere. Victim in her statement also totally ruled out and denied any tutoring given to her and stated that she deposed truth, so I am of the view that testimony of the child victim is natural and trustworthy.
Counsel for the accused cited case law State vs. Vinay Kumar 2013 (4) JCC 2891 and argued that statement of the victim cannot be accepted as correct. The facts of this cited case are that a 20 victim was small child of 12 years of age when was kidnapped by showing knife and was forcibly taken on a motorcycle by the accused by physical lifting her to a hotel where rape was committed upon her. However, evidence came on record that victim neither raised any hue and cry nor tried to jumped from motorcycle at any stage. She made various improvements in the statement given in court. She gave statement to police by alleging attempt to rape but in the court while deposing alleged that rape took place. She had also not given any history of sexual assault committed upon her to the doctor at the time of medical examination as her hymen was found intact and there were no injuries found on her body. High Court held that acquittal of the accused is justified in the present situation. However, this case law is totally distinguishable from the facts and circumstances of the present case.
Delhi High Court in case Tasleem vs. State 2011 (2) JCC 846 held that conviction can be sustained on the evidence of the prosecutrix alone and same does not require corroboration in all cases because it is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It is the quality of the evidence of the prosecutrix which is material. If the evidence is found to be free from blemish and implicitly reliable, the conviction can be recorded even on her sole testimony.
Delhi High Court in Ravi @ Bire vs. State Crl. Appeal no. 227/2017 decided on 1682017 held that in a case of rape or sexual assault on child of tender age, her testimony does not require any corroboration if otherwise it is inspiring confidence. If para no. 14 of this case is taken into consideration and is applied in the present situation, then possibility of false implication of the accused does not survive. High Court held in this paragraph that "otherwise also, the 21 child victim who was 9 years 3 months and 21 days at that time, would not have deposed against the appellant had she not been sexually abused by him. She had hardly any motive to implicate him in such a serious offence wherein she herself had suffered mentally and physically. There is no medical evidence to even remotely suggest that the nature of injuries suffered by the child victim in her private parts could have been caused due to fall while running."
Accordingly, after going through the entire testimony of the victim, it is held that there is no ground to disbelieve her regarding committing of sexual and unnatural offence against her after kidnapping and was given various injuries. The MLC of the victim and the previous statements given to police and to MM concerned corroborate her version. The testimony of the victim can be accepted as correct in order to sustain conviction of accused persons.
(h) Defence of accused persons regarding false implication is not even plausible: In their statements u/s 313 Cr.P.C., while claiming innocence, both the accused persons showed ignorance why the case was made against them. No allegation of any bad or ulterior motive was alleged against any of the prosecution witnesses for their false involvement in statements u/s 313 Cr.P.C. However, when PW2 was being examined, a suggestion was given to him that he had a quarrel with the mother of the accused Saddam when she was residing in his neighbourhood and PW2 had threatened her to involve her in the false case. Another suggestion was given to this witness on behalf of the accused persons that PW2 used to demand money from both the accused and their families and when they refused to meet his demand, then he lodged false complaint against both. A suggestion was also given to PW5 that he was deposing falsely at the instance of his 22 brother in law Abdul Gaffar. PW5 totally denied the suggestion given that Abdul Gaffar used to demand money from parents of the accused Saddam and on refusal, the accused Saddam has been falsely implicated in the case.
However, accused persons except by putting this vague defence plea suggestions which are denied, failed to prove the same. Neither any witness was examined in defence nor any details were given when and where or in whose presence, alleged quarrel between PW2 and mother of Saddam took place. It is also not disclosed what amount was demanded by PW2 from the accused and their families as well as on which date and place it was demanded and on what account. Thus, accused persons had raised defence plea which is not acceptable and even plausible to show that there existed any chance of false implication.
(i) Contradictions in the statement of witnesses: During arguments, few contradictions and inconsistencies in the statement of some witnesses was pointed out by counsel for the accused but in my view the same are minor and immaterial in nature which does not effect the merits of the case. Otherwise also, normally these inconsistencies are likely to happen due to passage of time and fading of memory. Accordingly, these are liable to be ignored and cannot became base to reject the testimony of inspiring witnesses including the victim. In this regard, reliance can be placed upon Ghanshyam @ Raju vs. State 241 (2017) DLT 552.
Counsel for accused pointed out that as per PW2, his statement was recorded in police station. PW4 also stated that Abdul Gaffar was also present in police station when he reached there and FIR was registered in his presence but as per testimony of PW15, it 23 was recorded in the hospital and from there, he went to police station to get the FIR registered. This, discrepancy is not sufficient to reject the prosecution case and testimony of the minor victim. Even if for the sake of arguments, it is held that IO of the case tried to make some manipulation by showing recording of the statement of the complainant in the hospital instead of police station, then for that act and conduct of the IO, it can not be presumed that complainant had given a false complaint or the victim has deposed wrongly.
PW2 stated in his statement that a complaint regarding missing of victim was lodged in the police station on 832012 which has not been placed on record by the prosecution. However, I am of the view that it does not affect the genuineness of the case especially when no request was made on behalf of the accused persons to call the said report either through this witness or through any other witness.
(j) Investigation aspects fully proved by police witnesses: Number of police officials including the second IO PW1 fully proved various aspects of investigation done in connection with the case from recording the FIR till filing the chargesheet and nothing has come in their cross examination to dispute the correctness of the proceedings or to show that any material manipulation was done in order to falsely implicate the accused in the case. Mere fact that incomplete statement of IO PW13 cannot be read in evidence as he expired before his statement could be completed itself is not sufficient to reject the prosecution case because whatever he had done was virtually proved by other police witnesses who associated with him.
24It is a fact that conspiracy is hatched in secrecy and no direct evidence of the same can be easily collected and established. However, from the facts and circumstances of the case, it is fully proved that both the accused persons conspired with each other in kidnapping the minor victim aged about 5 years for the purpose of having illicit sexual intercourse. Thereafter, they committed rape and unnatural sex upon her and in the process also gave her different injuries on different parts of her body. The victim was so young that she could not even save herself and to resist the attackers.
In view of the above discussions, it is hereby held that prosecution has fully proved the case beyond doubt and all the charges framed against accused persons are established. Accordingly, both the accused persons are hereby convicted for offence of hatching criminal conspiracy to commit rape and unnatural offence after kidnapping victim under section 120B. Accused persons are also convicted for offences under sections 323, 363 & 366A read with section 120B IPC. They are also convicted under sections 376(2)(g) and 377 IPC. Let they be heard on point of sentence.
ASHWANI Digitally signed by ASHWANI
KUMAR SARPAL
KUMAR Location: Karkardooma Courts,
Delhi
SARPAL Date: 2017.09.01 10:51:36 +0530
Dated3182017. (Ashwani Kumar Sarpal)
Addl. Sessions Judge1.