Delhi District Court
State vs . Karan Thapa on 16 January, 2015
State Vs. Karan Thapa
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No : 57/2013
ID No. : 02401R0097402013
FIR No. : 265/12
Police Station : DBG Road
Under Section : 376 IPC &
: 4 & 6 of POCSO Act
State
Versus
Karan Thapa
S/o Bhopal Singh
R/o Jhuggi CN-24, Railway Station,
Sarai Rohilla, Delhi.
.........Accused
Date of Institution : 19.03.2013
Date of judgment reserved on : 09.01.2015
Date of judgment : 16.01.2015
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. Bishan Singh, Advocate, counsel for the accused
SC No. 57/13 Page 1 of 36
State Vs. Karan Thapa
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on December 03, 2012 at about 8.10 PM an anonymous call was received at police station DBG Road that rape had been committed with a girl (victim) in the jhuggi located behind Liberty Cinema and the victim had been taken to Lady Harding Hospital. SHO directed to call SI Lalita Rawat from police station Jama Masjid and in the mean time, he along with ASI Pushpa, constable Kanwar Pal and constable Parveen left for the spot in official vehicle. Said information was recorded vide DD No. 35B (Ex. PW20/A). (Since, the child is a victim of sexual assault/rape, her identity is withheld and she is referred to as victim or daughter of the complainant.)
(i) On receipt of information, SI Lalita Rawat also reached the hospital where ASI Pushpa, constable Renu, constable Vinod along with complainant, her sister and her daughter (victim) met there. Investigating officer obtained the MLC of victim wherein doctor observed that 'hymen torn, clots felt in vagina'. (In order to conceal the identity of victim, identity of her mother (complainant) and identity of sister of complainant is also withheld. Mother of victim is referred to as complainant or mother of victim as the case may be whereas sister of complainant is referred to as sister of complainant or mausi of the victim)
(ii) Complainant (mother of victim) got recorded her statement Ex. PW1/A alleging that she has been residing at the given address for the last 4-5 years and she has two children i.e. son aged about 11 years and daughter i.e. victim aged about 9 years. She was doing menial work as SC No. 57/13 Page 2 of 36 State Vs. Karan Thapa domestic maid in different houses. It was alleged that one boy named Karan Nepali was residing in her neighbourhood on rent in the jhuggi of Laxmi, which was located near her jhuggi. But Karan had vacated the said jhuggi about 5-6 months ago. However, he used to visit the colony.
(iii) It was alleged that on December 3, 2012, she left from her jhuggi in the morning on her work and her son had also gone to his school. It was alleged that when she returned to home at about 3 PM, she saw that victim was lying unconscious on the cot. She found that her jeans pant was drenched in blood and she also noticed blood stains on dari lying on the floor. It was alleged that she had changed the clothes of victim and took her to Ram Medical Hospital at Anand Parbat after leaving blood stains clothes in her jhuggi. It was alleged that doctor asked her to take the victim to government hospital. Accordingly, she took the victim to LHMC hospital in auto. It was alleged that victim told her that Karan uncle had committed galat kaam with her and further informed the complainant that Karan uncle had also gagged her mouth. Victim was medically examined at LHMC. It was alleged that accused Karan had committed rape upon the victim. On her statement, SI Lalita made an endorsement Ex. PW20/B and got registered an FIR for the offence punishable under Section 376 IPC.
(iv) It was alleged that after medical examination, SI Lalita Rawat had collected the sealed parcels from the doctor including sexual assault kit. Thereafter, IO reached the place of occurrence and summoned the crime team. Photographs of the spot were taken. Site plan was prepared. Exhibits were lifted from the spot.
(v) It was further alleged that thereafter, IO left for jhuggis located near Sarai Rohilla in the search of accused and apprehended the SC No. 57/13 Page 3 of 36 State Vs. Karan Thapa accused Karan s/o Bhopal Singh from jhuggi No. CN-24, Railway station Sarai Rohilla, who was identified by the complainant as Karan. It was alleged that complainant also disclosed that victim knew the accused previously. It was revealed that accused liked the complainant and due to that reason, he used to visit her jhuggi frequently. During interrogation, accused confessed his guilt before the police. It was alleged that accused was got medically examined wherein it was observed that accused was capable of performing sexual intercourse. During medical examination, his biological samples and underwear were also seized.
(vi) During investigation, statement of victim under Section 164 Code of Criminal Procedure (in short Cr. P.C.) was got recorded wherein victim alleged that when she returned after attending call of nature, she saw that accused Karan was hiding himself underneath the bed. Thereafter, accused caught hold her and gagged her mouth; he tied her mouth with a saree. Thereafter, he had tied all cash in another saree. Thereafter, accused removed her jeans pant and also put off his pant, then he inserted his penis in her vagina. Since, she was feeling pain, she tried to cry but could not raise alarm as her mouth was gagged. Thereafter, she untied the saree with her teeth and gave teeth biting at his arm. It was alleged that thereafter accused ran away after stealing cash amount. It was further alleged that when her brother came, he untied the saree. She narrated the incident to her brother. In the meantime, her mother also reached there, who took her to the hospital.
(vii) As per the charge-sheet, no teeth biting sign at the arm of accused was found at the time of his arrest. Similarly, the complainant had also not alleged that any amount was stolen from her jhuggi.
SC No. 57/13 Page 4 of 36(viii) It was alleged that since complainant failed to provide any documentary evidence in support of the age of victim, Ossification Test was got conducted and Board of Doctors opined that victim was between 9 to 11 years old. Accordingly, Section 4 & 6 of POCSO Act was also added.
(ix) It was alleged that in the MLC, it was alleged that a stick was inserted in the vagina, however, doctor opined that no injury was seen at the body, thus no medical evidence was found to support the allegation of insertion of stick in the vagina and in the charge-sheet also no reliance has been placed on the above allegation and it was recited that victim had told the factum of stick due to shame.
2. After completing investigation, challan was filed for the offences punishable under Section 376 Indian Penal Code (IPC in short) read with Section 4 & 6 of Protection of Children From Sexual Offences Act (in short POCSO Act).
3. After complying with the provisions of Section 207 Cr. P.C., vide order dated April 03, 2013, a charge for the offence punishable under Section 376 IPC read with Section 6 of POCSO Act was framed to which accused pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following 20 witnesses:-
PW1 Complainant
PW2 Victim
PW3 Sh. Kaushal Sharma, employer of the accused
PW4 Amrit @ Tikku, connecting witness
SC No. 57/13 Page 5 of 36
State Vs. Karan Thapa
PW5 Dr. Parvesh Mehra, proved the Ossification
Test report of victim
PW6 SI Dhan Singh, In-charge of crime team
PW7 Constable Dinesh, photographer
PW8 Constable Renu, formal witness
PW9 Dr. Keerti Patel, proved the MLC of victim
PW10 Dr. Kamini, medical officer, proved the MLC of
accused
PW11 Dr. Vidhu Aggarwal, attended the victim at
private hospital, formal witness
PW12 Constable Vinod, formal witness
PW13 HC Devender, member of investigating team
PW14 HC Brij Pal, duty officer
PW15 Constable Kanwar Pal, formal witness
PW16 HC Ajay Kumar, MHC(M), formal witness
PW17 Constable Lal Chand, deposited the exhibits at
FSL, formal witness
PW18 Constable Chottey Lal, formal witness
PW19 Constable Sunil, formal witness
PW20 SI Lalita Rawat, investigating officer
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he admitted that earlier he was residing in the neighbourhood of complainant but he had vacated the jhuggi about 5-6 months prior to the date of incident and also admitted that complainant and victim knew him previously as he was residing in their neighbourhood. Except these, he denied each and every other incriminating evidence led by prosecution and submitted that he had not made any disclosure statement before the police and alleged that police SC No. 57/13 Page 6 of 36 State Vs. Karan Thapa had obtained his thumb impression and signature on some blank papers forcibly. However, he admitted that he was medically examined. He further submitted that he had been falsely implicated in this case as complainant used to quarrel with him frequently when he was residing in her neighbourhood. It was further stated that since complainant and her son had beaten him and given a blow of brick at his head, he had shifted to Sarai Rohilla, Railway station jhuggi. It was alleged that though he had shifted from the colony of complainant but complainant was developing a grudge against him, consequently, she had falsely named him in this case. It was submitted that one police official came to his house on December 3, 2012 when he was ready to go to his job at about 6 PM and the said police official took him to police station where he was beaten after putting fetters in his legs. It was submitted that at the next day, he was taken to LHMC hospital for medical examination. He expressed his ignorance about the incident that had allegedly taken place at the house of complainant and stated that he did not visit her house on December 3, 2012. however, he refused to lead any evidence in his defence.
6. Learned counsel appearing for the accused sagaciously contended that there are certain circumstances which make the prosecution case doubtful and during trial prosecution failed to produce any scientific evidence which may connect the accused with the alleged incident. It was vigorously contended that even it is not clear who informed the police about the alleged incident. Though generally public persons inform police control room, if they come to know about any incident, but in this case information was given by unknown person to the local police directly. But surprisingly no effort was made to trace out the said person. It was astutely contended that the information was given to the local police at about 8:10 PM whereas the alleged incident had taken place much prior to SC No. 57/13 Page 7 of 36 State Vs. Karan Thapa that. This shows that the record was manipulated to justify the delay in registration of FIR. It was energetically contended that there are certain evidence on record which may show that police was well aware about the commission of offence much prior to 8:10 PM when police purportedly received the intimation of the incident first time vide DD No. 35B. It was further vehemently contended that even there is confusion about the fact who had recorded the statement of complainant as prosecution has set up a case that the statement of complainant was recorded by SI Lalita Rawat whereas witnesses examined by prosecution deposed that same was recorded by ASI Pushpa. But ASI Pushpa was not even examined by the prosecution. It was vigorously argued that though the incident had taken place between 12 noon to 1:30 PM but the FIR was registered at about 11:45 PM, thus there is a considerable delay in registration of FIR and no reasonable explanation has been furnished by the prosecution. This shows that the FIR was registered after due deliberation and consultation. It was urged that in order to justify the said delay, DD No. 35B was fabricated to show that police had received the intimation of the commission of offence first time at 8:10 PM.
(i) It was further perspicaciously contended that as per MLC, the alleged history was given by the sister of complainant but complainant categorically deposed that victim was unconscious when she reached the hospital and she regained consciousness when glucose drip was given to her. It was contended that as per the statement of complainant, victim narrated the incident to the complainant and thereafter she disclosed the alleged history to the doctor. But surprisingly in the alleged history, it was alleged that a wooden stick was inserted in the vagina of victim and no allegation was made about the oral or anal sex. But when during investigation, no evidence was found about the insertion of wooden stick, a SC No. 57/13 Page 8 of 36 State Vs. Karan Thapa new story was propounded that accused had inserted his penis in vagina of the victim. It was vigorously contended that this shows that the complainant and victim had changed their stand as per their convenience.
(ii) It was further contended that prosecution has set up a case that the accused was arrested at the pointing out of complainant and exhibits were also lifted in the presence of complainant but complainant refuted the version of prosecution by categorically deposing that since she was in the hospital, she did not participate in any such proceedings.
(iii) Further, as per prosecution version, the crime team had inspected the place of occurrence in the presence of PW20 SI Lalita Rawat which is otherwise not believable because PW20 deposed that she reached the spot at about 11:45 PM along with the complainant whereas crime team had inspected the spot between 10 PM to 11:15 PM. It was argued that this shows that the facts and circumstances were twisted and fabricated to create false evidence against the accused.
(iv) It was further contended that though certain exhibits were lifted from the spot and biological samples of the accused were also taken but there is no scientific evidence which may connect the accused with the alleged incident.
(v) It was further sagaciously argued that though prosecution has examined as many as 20 witnesses yet prosecution case is based on the sole testimony of victim and to some extent on the statement of complainant. But victim in her deposition admitted that she was tutored before entering the witness box and she deposed that she named the accused as per tutoring, thus no reliance can be placed on her deposition.
SC No. 57/13 Page 9 of 36(vi) It was energetically contended that prosecution has set up a case that complainant and victim knew the accused previously as accused used to visit their house frequently in past. But despite all these victim failed to identify the accused despite repeated opportunities were given by the Court. During the trial, an attempt was made to set up a new case that the victim has some defect in her vision due to which victim is unable to see in upward direction but she can identified the person by his voice and at the request of prosecution, another opportunity was given to the victim to identify the voice of culprit and during the said attempt, the victim identified the accused. It was contended that no reliance can be placed on the said piece of evidence because prosecution had never disclosed before that the victim was unable to identify the accused by face. Even after the arrest, no attempt was made by the investigating officer to get identified the accused by the victim. As per prosecution version, accused was arrested at the pointing out of complainant, which complainant refuted. It was urged that if victim had any problem in her vision, investigating officer should have mentioned the same in the charge- sheet and should have taken appropriate steps to establish the identity of accused but no such step was taken. It was contended that during trial, prosecution has failed to produce any cogent admissible evidence to establish the identity of culprit, thus it was urged that no reliance can be placed on the prosecution case.
7. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that though there are certain lapses in the investigation, yet the said lapses are not fatal to the prosecution case in any manner because victim not only categorically deposed against the accused but also identified him during trial through his voice. It was contended that accused had raped the victim by inserting his penis in her SC No. 57/13 Page 10 of 36 State Vs. Karan Thapa vagina due to which hymen was torn and victim had bleeding profusely. It was further contended that prior to rape the victim, accused had also tied the hands and legs of victim and also gagged her mouth so that she could not scream or raise alarm for help. It was contended that since accused knew the victim, he had frequent visits to their house, thus, he enjoyed the position of trust but accused betrayed the faith of victim by committing rape upon her. It was contended that there was no delay in registration of FIR as the intimation was received to the police first time at 8:10 PM. He further contended that the lapses pointed out by learned defence counsel are trivial in nature, thus the same are not fatal to the prosecution case. It was further contended that no doubt before the doctor it was alleged that a stick was inserted in the vagina, but the same was found false during investigation. Neither any stick was recovered nor the allegations were supported by any medical evidence but a reasonable explanation has been furnished by the complainant that the alleged history was given because of shame. It was contended that there is no requirement of law that prosecution is supposed to produce any corroborative piece of evidence. It was urged that conviction can be recorded on the sole uncorroborated statement of rape victim.
8. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that counsel for both the parties failed to cite any case law in support of their contentions despite sufficient opportunity was given to them.
9. Before coming to the testimony of victim, I deem it appropriate to deal with the surrounding circumstances one by one.
SC No. 57/13 Page 11 of 36(i) Who reported the matter to the police:
10. As per record, police had received the intimation of this incident vide DD No. 35B (Ex. PW20/A). The said intimation was received at 8:10 PM while as per rukka, the alleged incident had taken place between 8 AM to 3 PM. It means that the intimation was given to the police at least after about 5 hours of the alleged incident, if it is presumed that the alleged incident had taken place at 3 PM. According to Ex. PW20/A, the informant knew that the victim had already taken to Lady Harding hospital as he informed the police that victim had been taken to Lady Harding hospital but surprisingly neither the telephone number nor the name of informant was mentioned in the said DD. Admittedly, no intimation was given to the police control room by the informant and the intimation of the incident had been directly conveyed to the police station DBG Road. It is pertinent to state that whenever an ordinary person intends to inform the police about the commission of any offence, such person informs the police at 100 number because ordinarily common persons do not know the land line number of any particular police station. But in the instant case, the informant chose to inform the local police. This shows that the informant knew the local police number very well. But surprisingly no effort was made by the IO to ascertain the identity of the informant. PW20 also admitted in her cross-examination that common person always make a call to the police by dialling at 100 number because public person do not know the land-line number of any particular police station.
11. It is admitted case of the prosecution that victim was medically examined at LHMC at 7 PM but surprisingly even duty officer did not deem it appropriate to inform the local police, who otherwise duty bound to intimate the local police immediately as the victim was got SC No. 57/13 Page 12 of 36 State Vs. Karan Thapa admitted in the hospital with the alleged history of penetrative sexual assault. Even no attempt was made to inquire from the duty officer posted at LHMC, why he had not informed the local police when victim was got admitted in the hospital at 7 PM. As per DD No. 74B, duty head constable Rajbir intimated the local police about the admission of victim at about 10:33 PM. Does it mean that duty head constable was not even aware when victim was brought to the hospital? It is just unbelievable. Even no attempt was made to seek any clarification from the said duty constable about the delay on his part. Needless to say, the purpose of posting duty constable at hospital is to inform the local police immediately as and when any injured is brought in the hospital who sustains injury in the commission of any offence. It is seldom to believe that the duty constable would not come to know about the rape victim when she was brought to hospital at 7 PM.
12. By placing DD No. 35B (Ex. PW13/A), prosecution intends to establish that police came to know about the commission of offence first time at 8:10 PM when an anonymous call was received at police station DBG Road. But this version is not even supported by PW4 and PW13. PW4 Amrit @ Tikku deposed categorically that police official told him that complainant (PW1) had taken her daughter to the hospital and this fact was told to him by the police official between 5 PM to 6 PM. It is pertinent to state that learned Addl. P. P. has strongly placed reliance on the deposition of PW4 to prove the presence of accused at the spot at the relevant time. Even as per the testimony of PW4, police was aware about the commission of offence much prior to 8:10 PM otherwise there was no occasion for police official to inform PW4 that PW1 had taken her daughter to the hospital.
SC No. 57/13 Page 13 of 36(i). PW13 HC Devender was posted at beat no 1 in whose jurisdiction the place of occurrence was located. In his examination-in-chief, he deposed that on December 3, 2012, he reached the spot when he came to know about the incident. In his cross-examination, he clarified that he reached the house of victim between 3 PM to 3.30 PM. He further deposed that though at that time, the gate of the house/jhuggi of the victim was closed but it was not locked and further clarified that he reached the house of victim along with ASI Pushpa and SHO but in his next breathe, he deposed that he reached there alone first and he inquired from the neighbours about the incident. He further deposed that SHO also reached there within 10 minutes along with ASI Pushpa and other staff. He further deposed that mother of the victim also reached there at about 4 PM and remained there till 5 PM and accused was apprehended at about 4.45 PM.
(ii). In other words, PW4 and PW13 even demolished the prosecution version that police came to know about the commission of offence first time at about 8.10 PM. From their testimony, it can safely be culled out that police was well aware about the alleged incident much prior to 8.10 PM.
(iii) In the light of above discussion, the possibility that the DD No. 35B was fabricated or invented to show that police had no information about the commission of offence prior to 8:10 PM appears more plausible.
Delay in registration of FIR :
13. As per rukka Ex.PW20/B, the alleged incident had taken place on December 03, 2012 between 8 AM to 3 PM. Since, the complainant in her statement Ex.PW1/A alleged that she left from her duty SC No. 57/13 Page 14 of 36 State Vs. Karan Thapa at 8 AM and returned to home at 3 PM, investigating officer mentioned in the rukka that the alleged incident had taken place between 8 AM to 3 PM. However during trial victim clarified about the approximate time of incident by deposing that the accused came to her house at about 12 Noon. In her cross-examination, she further deposed that her brother returned to home at 2 PM. It means that the alleged incident had taken place between 12 noon to 2 PM. Admittedly, the FIR had been registered at 11:45 PM, it means that there is a delay of about more than 9 hours in registration of the FIR.
14. Though as per the MLC, victim reached hospital at 7 PM but no intimation was given to the police by duty constable about her admission and even no attempt was made by the investigating officer to seek an explanation from the duty constable why he failed to convey the intimation of the incident to the local police. Perusal of the rukka reveals that there are some overwriting at the time mentioned in the departure of rukka and the endorsement made on the rukka. Even from the naked eyes, it appears that 11.40 PM has been changed into 11:20 PM, consequent changes were made in the timing mentioned in endorsement. But the fact remains that there is a delay of more than 9 hours in lodging the FIR. As already discussed that there are evidence on record to show that police was aware about the alleged incident much prior to 8.10 PM when police had allegedly received the intimation of the incident vide DD No. 35B (Ex.PW20/B). As already discussed that even no attempt was made to ascertain the identity of person who informed the police about the alleged incident at 8.10 PM. In these circumstances, defence version appears more plausible that that DD No. 35B was created in order to justify the delay of more than 9 hours in registration of the FIR.
SC No. 57/13 Page 15 of 3615. As already discussed that victim was medically examined at 7 PM vide MLC Ex .PW9/A but surprisingly, duty officer informed the local police at 10.33 PM vide DD No. 74B. Even no attempt was made to bring duty constable in the witness box to justify the delay on his part in informing the local police. Needless to say that duty constable is posted in every hospital and his duty is to inform the local police immediately as and when any person is brought in the hospital in injured condition with the alleged history of commission of a cognizable offence. There is no explanation on the part of prosecution under which circumstances, duty constable failed to convey the intimation of offence between 7 PM to 10:33 PM. In these circumstances, doubt also arises over the DD No. 74B and the possibility that the same had been manufactured to justify the delay in registration of the FIR cannot be ruled out.
(i) Perusal of the file reveals that there is nothing on record which may suggest when the copy of FIR was sent to learned Illaqua Magistrate under Section 157 Cr. P.C. Needless to say that it is the paramount duty of the investigating agency to send the copy of FIR to the learned Illauqa Magistrate promptly to rule out the possibility of any fabrication in the FIR but in the instant case, prosecution has even failed to show when the copy of said FIR was sent to the learned Illaqua Magistrate. Even there is nothing on record which may suggest whether the copy of FIR was ever sent to learned Illaqua Magistrate or not.
16. In this regard, the observations made by the Apex Court in Bijoy Singh Vs State of Bihar, AIR 2002 SC 1949 are relevant and same are reproduced as under :
Para 7. "Sending the copy of the special report to the SC No. 57/13 Page 16 of 36 State Vs. Karan Thapa Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157, Cr. P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."
(emphasis supplied)
17. Since, there is nothing on record which may show that the copy of FIR was ever sent to learned Illaqua Magistrate in compliance of Section 157 Cr. P.C., thus, it can safely culled out that prosecution failed to establish that the copy of FIR was ever sent to learned Illaqua Magistrate promptly to rule out any fabrication or deliberation. This shows that there was inordinate delay in sending the copy of FIR to the learned Illaqua Magistrate and the said delay remain unexplained during trial. Thus, there is not only delay in registration of the FIR but there is also delay in sending its copy to the learned Illaqua Magistrate and even said delay remained unexplained during trial. In view of the law laid down in Bijoy Singh v. State of Bihar (supra) this Court is required to examine the prosecution case minutely.
SC No. 57/13 Page 17 of 36State Vs. Karan Thapa Who had recorded the statement of complainant:
18. Prosecution has set up a case that the statement of complainant was recorded by PW20 SI Lalita Rawat in the hospital. However, there are certain evidence contrary to this.
(i) As per DD No. 35B (Ex. PW20/A) on receipt of the information of alleged offence, SHO along with ASI Pushpa, constable Kanwar and constable Parveen left for the hospital in official vehicle while as per the instructions of SHO, intimation was also given to police station Jama Masjid to send SI Lalita Rawat.
(ii) PW13 in his examination-in-chief deposed that SHO and ASI Pushpa reached the spot and when they came to know that victim had already taken to hospital, they left for the hospital but he remained at the spot. Even in his cross-examination, he reiterated the fact that SHO and ASI Pushpa reached the spot along with other staff.
19. PW12 constable Vinod Kumar is the person who was sent to the police station to lodge an FIR. In his examination-in-chief, he categorically deposed that ASI Pushpa recorded the statement of complainant and thereafter, she prepared a rukka and sent him to police station to lodge an FIR. He further deposed that after getting registration of FIR, he reached the place of occurrence and handed over the copy of FIR and original rukka to ASI Pushpa. Even prosecution did not challenge the said version of PW12, thus the testimony of PW12 to the extent that the statement of complainant was recorded by ASI Pushpa and rukka was sent by ASI Pushpa through him remained unrebutted on the part of prosecution. In his cross-examination, he further deposed that he collected SC No. 57/13 Page 18 of 36 State Vs. Karan Thapa the rukka between 10:30 PM to 10:45 PM from IO and reached the police station between 11 PM to 11:15 PM and the copy of FIR and original rukka were handed over to him at about 12 mid night and he handed over the same to ASI Puspa at the spot between 12:15 AM to 12:30 AM. Thus, it becomes clear that even PW12 who was a connecting witness does not support the prosecution case that the statement of complainant was recorded by PW20.
20. There is no evidence on record except the statement of PW20 that statement of complainant was recorded by her and not by ASI Pushpa. From the testimony of PW12 and PW13, it becomes abundantly clear that ASI Pushpa also joined the investigation but surprisingly even no attempt was made by PW20 to record the statement of ASI Pushpa. PW20 in her cross-examination deposed that she reached the hospital at about 9:45 PM. From the testimony of PW13 it is proved that SHO and ASI Pushpa reached the spot and hospital much prior to 9:45 PM. It is also admitted case of prosecution that complainant was in the hospital. In these circumstances, it is seldom to believe that no statement of complainant would be recorded prior to 9:45 PM. Even during trial, no attempt was made by the prosecution to summon ASI Pushpa to clarify the fact whether she had recorded the statement of complainant as deposed by PW12 or not. This is another lapse which also caused a dent in the prosecution case.
Who did give alleged history and what was the nature of it :-
21. As per the MLC Ex.PW9/A, victim was accompanied by her Mausi. PW9 Dr. Kirti Patel deposed that the alleged history was given by the Mausi of victim. It is admitted case of prosecution that no incident had taken in the presence of mausi and due to said reason, prosecution even SC No. 57/13 Page 19 of 36 State Vs. Karan Thapa did not deem it appropriate to examine her during trial and learned Additional Public Prosecutor preferred to drop her name. On the contrary, PW1 i.e. complainant in her cross-examination deposed that she had given the alleged history to doctor in the hospital and further clarified that she had given the said alleged history before the victim regained consciousness. Thus, it becomes clear that the alleged history was not given by the victim. Rather, it was given either by Renu or PW1. It is admitted case of prosecution that neither Renu nor PW1 was present at the time of alleged incident. It means that either Renu or PW1 had given the alleged history of their own or they had given alleged history on the basis of information given by the victim. If it was so, question arises as to whether there is any evidence to show that victim had told either of them about the facts as disclosed in alleged history?
(i) PW1 in her examination-in-chief deposed that when she reached hospital, her daughter (victim) told her that Karan uncle had committed galat kaam with her and he had gagged her mouth. In her cross- examination, she clarified that she reached Lady Harding Hospital at 6 PM and her daughter remained unconscious till she reached hospital and further clarified that her daughter regained consciousness after giving drip to her. She further clarified that she had given the alleged history to the doctor before her daughter regained consciousness. From the deposition made by PW1, it can safely be culled out that victim was unconscious when she was taken to the hospital and victim regained consciousness when doctor gave drip to her. However, prior to her regaining consciousness, PW1 had given alleged history to the doctor. It means that the facts mentioned in the alleged history were not told to PW1 by the victim.
22. As per MLC, the alleged history was given as under :
SC No. 57/13 Page 20 of 36State Vs. Karan Thapa "Sexual assault by a neighbour 30 years old man Karan, who works in a restaurant, he came at 1.30 PM when nobody was at their house. He beat the girl with a stick and inserted the stick in her vagina. He closed her mouth and kissed her. He also beat the girl with stick on her external genitalia. There is no history of oral sex or anal sex. Girl was got unconscious. After that her mother at 3 PM found her semi-conscious. She took her to Anand Parbat Hospital from where she was referred to here"
(i) This shows that in the alleged history not only the name but the age and profession of the accused was also disclosed. As per the alleged history, victim was not only beaten by stick but stick was also inserted in her vagina and victim was also beaten with a stick on her external genitalia. It is pertinent to state that no history of oral sex or anal sex was given. Indisputably, as per the MLC, hymen was found torn.
23. PW9 in her cross-examination deposed that she had not noticed any injury mark on the body of patient except that there was swelling on her upper lip. She further clarified that she had not found any injury mark which could have been caused by the stick. She further deposed that if stick is inserted in the vagina of a girl aged about 9 years, there must be some internal injury in her vagina but clarified that no such injury was found in the vagina except hymen was torn. She also explained that hymen could be torn due to several reasons including cycling, running and other physical activities. But swiftly added a caveat by deposing that it is not possible by routine cycling, running and other activities. In other words, no medical evidence was found to corroborate the allegations levelled in the alleged history that victim was beaten by stick or any stick was inserted in her vagina. It is also pertinent to state that even in the charge-sheet, it has been mentioned that no injury mark was seen SC No. 57/13 Page 21 of 36 State Vs. Karan Thapa anywhere on the body of victim and no medical evidence was found to support the allegation of insertion of stick in her vagina. PW20 in her cross- examination fairly conceded that during investigation, the allegations of insertion of wooden stick in the vagina were found false and it has been mentioned in the charge-sheet. Thus, no reliance can be placed on the allegation that accused Karan had inserted wooden stick in the vagina of victim or that he had beaten the victim by the said wooden stick.
(i) Admittedly, there is no allegation of oral or anal sex in the alleged history. Though in the charge-sheet it is recited that victim had not told correct facts before the doctor in the alleged history, but as per the testimony of PW1 and PW9 the alleged history was not given by the victim. It was either given by PW1 or her sister. Thus, there was no question of any shame for the victim while narrating alleged history to the doctor.
(ii) In the atmosphere of uncertainty, the defence version that when no evidence was found to support the allegation of insertion of stick, a new case was propounded in the statement of under Section 164 Cr. P.C that accused had inserted penis in her vagina appears more plausible.
Crime Team Inspection Report:-
24. Prosecution has set up a case that the crime team had inspected the place of occurrence in the presence of PW1 and PW20 and investigating officer had lifted the exhibits in the presence of PW1. In this regard, the testimony of PW1, PW6, PW7 and PW20 are relevant.
25. Inspection report is Ex. PW6/A. As per the said report, place of occurrence was inspected on December 3, 2012 between 10 PM to SC No. 57/13 Page 22 of 36 State Vs. Karan Thapa 11:15 PM. As per Ex. PW6/A, DD No. 35A is mentioned in column No. 3. it means that when the place of occurrence was inspected by crime team, FIR was not registered and due to that reason, DD No. 35A is mentioned in column No. 3 which reads as "FIR/DD number and date".
26. PW6 SI Dhan Singh was in-charge of crime team and he had inspected the place of occurrence along with his team members including PW7. In his examination-in-chief, PW6 deposed that SI Lalita Rawat (PW20) also reached there when he inspected the spot. However, in his cross-examination, he categorically stated that no public person met him at the spot and no family member of the victim was present at the spot during inspection. He further clarified that even no family member met him at any point of time. Thus, as per PW6, PW20 was present when he inspected the place of occurrence but no family member of the victim was present. It means that PW1 i.e. mother of victim was not present when spot was inspected by PW6.
27. PW7 constable Dinesh is the photographer. Perusal of his testimony reveals that he tried to avoid the question about the presence of public persons by deposing that since there was darkness at the spot, he was unable to see public witnesses. But simultaneously he deposed that police officials were present there and further testified that HC Devender and SI Lalita Rawat were present at the spot. The testimony of PW7 to the extent that he was unable to see public witnesses due to darkness does not inspire any confidence. If there was so darkness at the spot that he was unable to see public persons, how was it possible for him to identify police officials?
(i) PW20 in her cross-examination deposed that she must have SC No. 57/13 Page 23 of 36 State Vs. Karan Thapa reached the house of victim after 12 mid night and further deposed that at that time PW1 also accompanied her. She further clarified in her cross- examination that since she had sent rukka at 11:20 PM from the hospital, she can say with certainty that she reached the spot between 11:45 PM to 12 mid night and further deposed that as soon as she reached the spot, crime team also reached there and thereafter, crime team had inspected the place of occurrence in her presence. Thus, PW20 made an attempt to set up a case contrary to Ex. PW6/A that crime team reached the spot between 11:45 PM to 12 mid-night and thereafter, inspected the spot in her presence. When attention of PW20 was drawn towards crime team inspection report Ex. PW6/A, she admitted that the place of occurrence was inspected between 10 PM to 11:15 PM and further admitted that during the said period she was not at the spot. She further deposed that she had mentioned the FIR on the documents at the spot as she had confirmed the FIR number of phone. As per record, the FIR was registered at about 11:45 PM. Had the place of occurrence been inspected after mid-night as deposed by PW20, PW6 would have mentioned FIR number in column no. 3 instead of DD number. In the above circumstances, the testimony of PW20, to the extent that spot was inspected in her presence does not inspire any confidence. However, the presence of PW20 at the spot is possible in one circumstance, if the statement of complainant was recorded by ASI Pushpa in the hospital. In that eventuality PW20 could be at the spot between 10 PM to 11:15 PM when spot was inspected by PW6 otherwise it was not possible for PW20 to be present at the time of inspection. But unfortunately, it is not the prosecution case.
28. PW1 in her cross-examination categorically deposed that since she was in the hospital, she did not accompany with the police official anywhere on that day. She further clarified that on the next day she went to SC No. 57/13 Page 24 of 36 State Vs. Karan Thapa police station and further clarified that she did not visit her jhuggi along with police official on that day and further deposed that even police had not visited her jhuggi in her presence. From the testimony of PW1, it becomes clear that neither she accompanied the police official to her jhuggi nor police official visited her jhuggi in her presence on December 3, 2012. Even PW6 also deposed that during inspection, he had not met with any family member of the victim. Thus, PW6 corroborated the testimony of PW1. In these circumstances, the testimony of PW20 to the extent that PW1 accompanied her to her jhuggi and members of crime team had inspected the place of occurrence in their presence also does not inspire any confidence.
Medical/Scientific Evidence:
29. Prosecution has set up a case that certain exhibits were lifted from the spot and biological samples of the victim and accused were also seized and all the exhibits were sent to FSL for analysis.
30. The DNA report is Ex. PW20/H. As per the report, no male DNA profile was generated from the source of exhibits pertaining to the victim. Consequently, no comparison could be made with the DNA profile generated from the source of blood sample of accused. Thus, the DNA report is not helpful to the prosecution to connect the accused with the alleged incident.
31. No doubt, PW9 in her examination-in-chief deposed that the hymen of victim was torn but in her cross-examination, she admitted that hymen can be torn due to certain other reasons such as cycling, running and any other physical activities but swiftly added that it is not possible by SC No. 57/13 Page 25 of 36 State Vs. Karan Thapa just routine cycling, running and physical activities. Assuming for the sake of arguments that hymen was torn due to some sexual intercourse but this does not prove that accused was the person who is responsible for the same. The testimony of PW9 is totally insufficient to connect the accused with the incident in question. Moreover, it is well settled law that mere fact that hymen is found torn is not ipso-facto sufficient to prove the guilt of accused.
Last seen Evidence:
32. PW4 Amrit Tikku is the vendor and he used to sell eggs on rehri in the said area between 5 PM to 11 PM. In his examination-in-chief, he deposed that he had seen the accused in the area between 2 PM to 3 PM and further deposed that he had also seen PW1 while she was taking the victim to the hospital between 4 PM to 5 PM. It is pertinent to state that the testimony of PW4 is contrary to the prosecution case as PW4 deposed that police officials told him between 5 PM to 6 PM that complainant had taken her daughter to the hospital whereas prosecution case is that police came to know about this incident first time at about 8:10 PM. Assuming for the sake of arguments that PW4 had seen the accused in the area between 2 PM to 3 PM but this fact is also not sufficient to connect the accused with the alleged incident in any manner because victim (PW2) in her examination-in-chief deposed that the accused visited her house at 12 noon. In her cross-examination, she deposed that her younger brother returned to home from his school at 2 PM. It means that the alleged incident had taken place between 12 noon to 2 PM. If the incident had taken place prior to 2 PM, it is immaterial if accused was seen by PW4 in the area between 2 PM to 3 PM. Further, PW4 did not state that he had seen the accused coming out from the house of victim. Nor he deposed SC No. 57/13 Page 26 of 36 State Vs. Karan Thapa whether accused was scared or in hurry at that time. He even did not depose that accused was carrying any saree because victim in her statement under Section 164 Cr. P.C alleged that accused fled away from the spot along with one saree wherein she tied cash amount. Mere fact that he had seen the accused in the colony is not sufficient to draw any adverse inference against the accused.
33. Before analysing the testimony of victim (PW2), I deem it appropriate to refer certain judicial pronouncements pertaining to the child witness.
(i) In case Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 at page 343 wherein it was held:-
The entire prosecution case rested upon the evidence of Sarubai (PW 2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. 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 demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well-settled SC No. 57/13 Page 27 of 36 State Vs. Karan Thapa principle we must proceed to consider the evidence of Sarubai (PW 2).
(emphasis supplied)
(ii) In Panchhi v. State of U.P., (1998) 7 SCC 177 at page 181 Shri R.K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW 1, he being a child witness. According to the learned counsel, the evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. 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 of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.
(emphasis supplied)
(iii) In Hamza v. Muhammedkutty, (2013) 11 SCC 150 at page 161 The learned counsel for the State is right that the consistent version of PW 1 is that A-1 and A-2 have committed murder of the deceased. But the High Court has rightly relied on the observations of this Court in Suresh v. State of U.P. [(1981) 2 SCC 569 : 1981 SCC (Cri) 559] that children mix up what they see and what they like to imagine to have seen. Glanville Williams says in his book The Proof of Guilt, 3rd Edn., published by Stevens & Sons:
"Children are suggestible and sometimes given to living in a world of make-believe. They are egocentric, and only slowly learn the duty of speaking the truth."
Hence, the proposition laid down by the courts that as a rule of practical wisdom, the evidence of child witness must find adequate corroboration. (Panchhi v. State of SC No. 57/13 Page 28 of 36 State Vs. Karan Thapa U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] .
(emphasis supplied)
34. In the light of above said settled proposition of law, testimony of victim (PW2) shall be analysed.
35. PW2 in her cross-examination admitted that police met her outside the Court room when she was examined and cross-examined and also admitted that the police told her what she had to depose in the Court. When a court question was asked what did police aunty tell her, she deposed that police aunty told her to state in the Court that Karan had come and when she went to attend the call of nature, he tied her legs and hands and also committed galat kaam with her. She further deposed that police also told her to tell true facts to the Court. In order to seek clarification from the victim, another question was asked from her as to whether she had deposed in the Court whatever police aunty told her outside the Court room. To this question, she denied and stated that all these happened with her. From her testimony, it becomes clear that the police official had made understood what she had to depose in the Court room. No doubt, PW2 also deposed that she had deposed true facts in the Court and all these happened to her but the fact cannot be also ignored that police had made understood the victim what she had named accused Karan in the Court. No doubt, this itself is not sufficient to hold that victim was completely tutored but it is sufficient to cull out that there is every possibility that victim was tutored. Thus, before placing any reliance on her testimony, Court is required to keep in mind that her version gets some corroboration from any other independent source. But there is no other cogent evidence on record which may corroborate the version of PW2.
SC No. 57/13 Page 29 of 3636. Initially it was alleged that stick was inserted in the vagina of victim by disclosing the same before the doctor. However, no substance was found in the said allegation. It is pertinent to state that doctor specifically mentioned in the MLC that there was no history of oral sex or anal sex. Thereafter, victim made fresh allegations in her statement under Section 164 Cr. P.C, which was recorded only on December 14, 2012 wherein she alleged that accused fled away from the spot after stealing cash amount and before fleeing, he tied the cash amount in a saree and went away along with saree after committing rape upon her. During investigation, the said version of complainant was also found false and in the charge-sheet, it is specifically mentioned that the complainant did not allege any theft of cash amount from her jhuggi. Further, victim in her statement under Section 164 Cr. P.C alleged that she found accused below her bed when she returned after attending call of nature. But she did not depose so in her deposition. This shows that the victim had changed her version from time to time.
Identification of accused
37. When the charge-sheet was filed in the Court, nothing was mentioned therein that victim had any problem in her eye. On the contrary, in the alleged history the name, age and profession of accused was also given. There is nothing on record, which may show that the victim had any difficulty in identifying a person or that she could identify any person by voice only. On the contrary, in her statement under Section 164 Cr.P.C, she vividly described the incident. Even in her examination-in-chief, she identified the case property one by one correctly. She deposed that she was wearing pant (Ex. P1) and T-shirt (Ex. P2) at the time of incident. She further deposed that salwar/legging (Ex. P3) belonged to her; another jeans SC No. 57/13 Page 30 of 36 State Vs. Karan Thapa pant (Ex.P4) belonged to her brother and sarees (Ex. P5 to P7) belonged to her mother. Even in her cross-examination, she deposed that prior to the incident, she was watching T.V and further deposed that she was watching Doremon cartoon on T.V. Thus, there was nothing on record which may show that victim had any defect in her vision.
(i). But surprisingly, when victim was asked to identify the accused, she identified the police official as a culprit who was escorting the accused. At that time, it was pointed out that witness has some problem in her eyes and she cannot see in upward direction. Accordingly, witness was asked to stand on the table and thereafter asked to identify the culprit. Even then she failed to identify the accused and pointed out towards constable Sunil Kumar. Thereafter, another opportunity was given to the victim to identify the accused. As at the time of incident victim was lying on the bed/cot, accordingly victim was asked to lay on the table and accused and police official were asked to stand near the victim but despite that victim failed to identify the accused and again pointed out towards police official. Thus, victim failed to identify the accused despite repeated opportunities were given.
(ii) At that stage, witness stated that she could identify the accused by his voice. Though no such case was set up by the prosecution in the charge-sheet, yet another opportunity was given to the victim to identify the culprit by voice. Accordingly accused and const. Sunl were asked to say one sentence "Me school jaa raha hu", after hearing the same, witness identified the accused Karan.
38. Now question arises as to whether any reliance can be placed on the said piece of evidence?
SC No. 57/13 Page 31 of 3639. Though several opportunities were given to the learned Additional Public Prosecutor and learned defence counsel to assist the Court on this point by citing relevant case law but they did not render their valuable assistance to the Court. Accordingly, Court made a search and able to lay his hand on the judgment State of U.P. vs. Munnoo Lal (2001) 10 Supreme Court Cases 79, wherein it is held:-
4.The only defence adopted by the respondent is that he was not the rapist. The argument advanced in the High Court was that the identity of the rapist was not properly understood by the victim. What appears to have impressed the learned Single Judge of the High Court was that Usha (PW 1) would have identified the rapist only by the voice, that too in the night. Well, if the identification rested entirely on the voice factor, as forcefully argued by the learned counsel for the respondent, we too would have persuaded ourselves not to interfere with the order of acquittal passed by the High Court. But in this case the identification of the rapist was not on the strength of the voice, though PW 1 said in cross-examination that she heard the voice of the rapist and she could understand from the voice as well as to who the person involved was.
5.We must bear in mind that the respondent was known to Usha (PW 1) earlier as the respondent was living in the vicinity of her house. Even at the time when the rapist started the molestation after waking her up she realised that it was the respondent. She had reported it to PW 3 (Lalji Tripathi) on the occasion when PW 3 asked her as to who the person was. She also reported the same thing to her mother around noon when the latter returned home. So, there is no scope for doubt that Usha had identified the respondent as the rapist. The mere fact that she had said in cross-examination that the rapist had uttered some words to her and she could realise that it was the voice of the rapist himself, is not enough for the Court to ignore the other broad aspects regarding the evidence of identity of the rapist.SC No. 57/13 Page 32 of 36
State Vs. Karan Thapa That apart, a very sturdy piece of evidence is the testimony of PW 3 (Lalji Tripathi). He said in court that when he rushed to the house after hearing the commotion he saw the respondent running away from this house. There can be no possibility of doubt that PW 3 (Lalji Tripathi) would not have correctly identified that person who ran away. Even the defence did not dispute the competence of PW 3 (Lalji Tripathi) to identify the accused if the version of PW 3 can be accepted as correct.
(emphasis supplied)
40. Taking cue from the above said case, I am of the view that in the instant case, there is no admissible cogent evidence on record which may connect the accused with the crime in question.
41. It is pertinent to state that victim described the incident vividly in her statement recorded under Section 164 Cr. P.C which was belatedly recorded on December 14, 2012. Bare perusal of said statement makes it clears that there is nothing therein which may suggest that victim had any kind of problem in her vision. In her statement recorded under Section 164 Cr. P.C., she not only identified the accused who hide himself below the bed but she described each and every activity of the culprit. Even in her deposition, she deposed that she was watching the cartoon on the television and further clarified that she was watching Doremon. This shows that she was even able to recognize the characters of cartoon. In these circumstances, it is seldom to believe that she was not in a position to identify a person who allegedly used to visit her house frequently.
(i). Neither victim in her statement under Section 164 Cr.P.C nor before the police nor in her deposition deposed that accused had uttered any word or he talked with the victim at the time of commission of offence.
SC No. 57/13 Page 33 of 36State Vs. Karan Thapa In the absence of any such evidence, it is difficult to hold that she had any opportunity to hear the voice of culprit.
(ii). Though PW2 in her examination-in-chief deposed that she told the doctor that boy had inserted his shoo-shoo in her shoo (vagina) but this is contrary to the record. When the question was asked whether anything else was inserted in her shoo-shoo, she denied the same. This further proves that no stick was inserted in her vagina as recited in the MLC.
(iii). It is pertinent to state that even PW2 when identified the accused by voice, she only stated that he is Karan and she did not testify that he is the person who had ravished her. It is undisputed fact that earlier Karan was residing in the same locality and he used to visit the house of complainant, thus she might know Karan by voice but she did not say that he is the person who had committed rape upon her.
(iv). Though in her examination-in-chief, she identified the case property Ex. P1 to P7. However, during her cross-examination, when her attention was drawn towards slawar (Ex.P3), she deposed that said salwar did not belong to her. Similarly, when her attention was drawn towards jeans pant (Ex. P4), which allegedly belonged to her brother, she deposed that the said pant belonged to her. When her attention was drawn towards jeans pant (Ex. P1) , she deposed that same belonged to her brother and not to her. In these circumstances, there is every possibility that earlier she had identified the case property due to some tutoring.
42. At last, PW2 in her cross-examination further deposed that accused had tied her both legs and she clarified that her both the legs were SC No. 57/13 Page 34 of 36 State Vs. Karan Thapa tied together. Learned counsel sagaciously contended that if it was so then it is even difficult to insert penis in the vagina. To my mind, there is some substance in the submission and in the present facts and circumstances, it cannot be brushed aside altogether.
43. From the deposition of victim (PW2), it can safely be culled out that the possibility of tutoring to the victim can not be ruled out; that she had changed her version from time to time; that no substance was found in the allegation of insertion of stick; that no history of sexual intercourse was disclosed to the doctor; that the version of victim that accused had stolen cash amount and fled away from the spot along with the cash amount after tying the same in a saree found false; that the version of PW2 (victim) is not corroborated by any other independent witness; that PW2 (victim) failed to identify the accused despite repeated opportunities given; that there is nothing on record which may show that culprit had any talk with the victim at the time of commission of offence or that she could identify the culprit through voice; that there was nothing on record to show that victim was unable to identify a person by face due to defect in her vision or that she could identify a person by only voice; that the victim failed to identify the accused in the Court despite repeated opportunities given. No doubt, victim identified the accused in the Court through voice but no reliance can be placed on the said piece of evidence. Moreover, the victim did not depose that Karan Thapa is the person who had committed rape upon her; rather she deposed that it is the voice of Karan only.
44. In these circumstance, I am of the considered opinion that it will not be safe to place any reliance on the uncorroborated testimony of victim (PW2).
SC No. 57/13 Page 35 of 3645. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused beyond all reasonable doubts, thus, I hereby acquit the accused Karan Thapa from all the charges.
Announced in the open Court on this 16th day of January, 2015 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI/sv SC No. 57/13 Page 36 of 36