Delhi District Court
State vs Dk on 19 September, 2019
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL SESSIONS JUDGE, NORTHWEST
ROHINI COURT: DELHI.
CNR No. DLNW010020002016
SC No. 53111/16
FIR No. 85/16
PS - Keshav Puram
U/s 377/506 IPC & section 5(m) punishable u/s 6 POCSO Act.
State
Versus
1) DK
.................
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 1 of 92
Date of Institution : 28.04.2016
Date of Arguments : 19.09.2019
Date of Judgment : 19.09.2019
JUDGMENT: BACKGROUND:
1. In this case accused earlier stood convicted by the then Addl. Sessions Judge01 (NW), Special Court POCSO, vide judgment dated 27.03.2018 u/s 6 r/w section 5(m) of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as the Act). Vide same judgment he was acquitted of the offence punishable u/s 506 IPC. Thereafter, vide order on sentence dated 02.04.2018, he was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.5000/. In default of payment of fine, he was further directed to undergo one month simple imprisonment.
2. In Crl. Appeal No. 780/18 before Hon'ble High Court of Delhi, the judgment on conviction and order on State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 2 of 92 sentence dated 02.04.2018 was impugned by accused. In the said appeal before Hon'ble High Court, an application u/s 391 Cr.PC was filed on behalf of accused contending that principles of natural justice have been violated during trial of the case and accused was declined a fair opportunity of being defended and that Amicus Curiae appointed by the learned trial court did not provide requisite assistance to accused.
3. In the hearing of appeal Hon'ble High Court observed that clear failure of justice has occurred on account of complete noneffective crossexamination of the prosecution witnesses and that trial court also erred in not remedying the situation at appropriate stage by appointing another defence counsel to conduct the cross examination of the witnesses.
4. Vide its judgment dated 10.05.2019, Hon'ble High Court of Delhi setaside the impugned judgment and order on sentence and remanded the case back for retrial by the court of Addl. Sessions Judge. Hon'ble High Court further directed that transcript of the evidence already recorded will remain and can be referred to by counsel of State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 3 of 92 either side and that proper opportunity would be given to learned counsel for accused to crossexamine the prosecution witnesses afresh, which would include the right of prosecution to seek reexamination of any of the witnesses in accordance with law. Further the right of accused to lead defence evidence in accordance with law was also reserved by Hon'ble High Court. Hon'ble High Court also appointed Mr. Adit S. Pujari, Advocate on the panel of Delhi High Court Legal Services Committee as Amicus Curiae for accused in trial court. Hon'ble High Court further directed that matter would be listed before learned District & Sessions Judge, NorthWest on 20.05.2019 for being assigned to the court of Addl. Sessions Judge, other than the one who delivered the judgment on conviction and order on sentence. Hon'ble High Court also granted opportunity to accused to engage any other counsel of his choice and directed District & Sessions Judge, NorthWest to provide an option to accused to engage such counsel. Concerned trial court was also directed to expedite the trial and to make endeavour to conclude the case within a period of 04 State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 4 of 92 months from the date of assignment.
5. After remand back of case from Hon'ble High Court, case was assigned to learned ASJ, Special Fast Track Court, NorthWest District vide order dated 21.05.2019 by the then learned District & Sessions Judge, North West. Thereafter, vide order dated 31.05.2019, learned ASJ, Special Fast Track court requested to assign the case to some other court. Thereafter the case was marked by learned District & Sessions Judge, to this court.
FACTS:
6. Brief case of the prosecution as per chargesheet is that:
a) On 29.01.2016 on receipt of DD no.34A PW10 ASI Sanwar Mal along with constable Amit and PW6 W/SI Anita reached at House No. ........................................., where complainant R mother of victim along with her husband and son S (herein after referred as child victim) met to them. R gave her statement to the effect that on 29.01.2016 at about 1.00 pm, child victim came to her and told her that accused State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 5 of 92 who was residing at their lower floor had called child victim in his room. Thereafter, accused removed his own clothes and clothes of child victim and inserted his penis into anal region of child. Child victim suffered lot of pain. Accused told child victim to not to disclose the said incidence to anyone or else he would kill him. She further stated that she checked the anus of child victim and found some blood was oozing out from it. When her husband came in the night at about 11.00 pm, she disclosed the said facts to him. Thereafter police was informed.
b) Accused was apprehended. He represented himself as JCL. Further proceedings were conducted by Juvenile Welfare Officer (JWO) SI Surajpal. Child victim and accused were medically examined separately in the hospital. Exhibits were seized. Site plan was prepared at the instance of complainant. Crime team was called at the spot who inspected the spot and took photographs. Accused was produced before JJBII and thereafter he was sent to OHB. Statement of child victim was got recorded u/s 164 Cr.PC. Exhibits were sent to FSL. Age State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 6 of 92 determination test was got conducted on accused and accused was found to be an adult aged about 2022 years at the time of offence. After completion of investigation, chargesheet was filed in the court.
CHARGE :
7. In view of allegations against accused charges u/s 5
(m) POCSO Act punishable u/s 6 of the Act, alternatively u/s 377 IPC and 506 IPC were framed against accused, to which he pleaded not guilty and claimed trial.
COMPLIANCE OF HON'BLE HIGH COURT ORDER:
8. Prior to remand back of case, prosecution examined 13 witnesses before the then ASJ:01, Sepcial Court, POCSO, Rohini District.
9. After receipt of case file on 31.05.2019, in compliance of order of Hon'ble High Court of Delhi this court issued production warrants for accused for 04.06.2019 as accused was not produced from JC. On production of accused on 04.06.2019 in further State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 7 of 92 compliance of orders of Hon'ble High Court of Delhi, this court had given an opportunity and option to accused to engage any counsel of his choice other than or along with the Amicus Curiae appointed by Hon'ble High Court of Delhi. Court made inquiries from accused and recorded his statement on 04.06.2019, whereby accused stated that he do not intend to engage any other counsel and further wants to continue Sh. Adit S. Punjari, Amicus Curiae as his Advocate.
10. Vide order dated 01.07.2019, copy of order of Hon'ble High Court of Delhi was provided to learned Addl. PP for State to apprise him about the exact directions of Hon'ble High Court of Delhi.
11. Retrial of the case commenced w.e.f. 01.07.2019 and prosecution witnesses were recalled for their cross examination by learned Amicus Curiae Sh. Adit S. Pujari.
12. All the witnesses already examined by prosecution were recalled for their crossexamination by Sh. Adit S. Pujari except PW11 Sh. Dharminder Singh, the then learned MM who recorded the statements u/s 164 Cr.PC State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 8 of 92 of PW3 child victim and his mother PW4.
13. Submissions of learned Sh. Pujari that he do not want to crossexamine PW11 Sh. Dharminder Singh, the then learned MM were recorded vide order dated 01.08.2019.
14. PW13 Dr. Narender, SR Surgery who conducted medical examination of child victim was not initially traceable as he had left the services of the concerned hospital. One Dr. Deepak was sent by hospital on behalf of PW13 and was examined on 25.07.2019. Dr. Deepak stated that he can identify and depose about the documents prepared by PW13. In view of submissions of Dr. Deepak, he was examined as PW13A as he seemed to be an expert witness, PW13 was not traceable and the questions qua medical opinion given by PW13 could have been asked from him as well. In addition thereto efforts to trace and serve PW13 Dr. Narender were continued. Ultimately PW13 Dr. Narender was traced and was crossexamined by learned Amicus Curiae on 30.08.2019.
15. It is rightly submitted by learned Amicus Curiae that in view of appearance of PW13 Dr. Narender, there State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 9 of 92 is no need to consider the testimony of PW13A as that witness did not conduct any proceeding related to this case and appeared only as substitute of PW13. Learned Addl. PP for State has also fairly conceded to the same.
EVIDENCE:
16. Before adverting to the arguments advanced after retrial of the case, let us have a brief scrutiny of evidence recorded in the matter.
17. PW1 HC Hans Ram was working as MHC(M) during the relevant date and time. He proved the entry made by him in register no. 19 as Ex.PW1/A. He also proved RC no. 32/21/16 vide which pullandas and sample seals were deposited in FSL Rohini as Ex.PW1/B.
18. PW2 Dr. Inderpal Yadav, CMO, Babu Jagjeevan Ram Hospital, Jahangirpuri proved the MLC of child victim and accused prepared by Dr. Gaurav under his supervision as Ex.PW2/A and Ex.PW2/B respectively. He testified that on 18.03.2016 accused was again brought for medical examination by police. He proved the MLC of accused prepared by Dr. Gaurav as Ex.PW2/C. State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 10 of 92
19. In his crossexamination attention of this witness was drawn on the confession of accused recorded on his MLC. He admitted that there was no requirement of writing such type of confession on the MLC and that he had not seen such confession on any MLC previously and that the said confession was not recorded in his presence. In further crossexamination during retrial he stated that as per MLC there was no visible external injury on either the victim or on accused and normally in such a case visible external signs such as swelling on the anus, fissures and tears generally occur.
20. PW3 is the child victim in the present case. The relevant portion of his testimony is as under: Q. Beta aap Kahan rehte ho?
Ans. Teesri manzil per.
Q. Beta Deva uncle kahan rehte hain?
Ans. Wo neeche wali manzil per rehte hain. Q. Beta batao kya hua tha?
Ans. Mujhe Deva uncle ne bulaya tha aur mere peeche wale mein apna susu daal diya tha.
Q. Beta fir kya hua tha?
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 11 of 92
Ans. Mera muh daab diya tha. Maine shor nahi machaya.
Q. Beta aapne kisko bataya tha?
Ans. Apni mummy ko.
Q. Beta fir apki mummy ne kya kiya?
Ans. Unhone fir papa ko bata diya aur papa ne police ko phone kar diya.
Q. Beta fir kya hua?
Ans. Police mujhe apne thana le gai.
Q. Beta fir thana le jaa kar kya kiya?
Ans. Fir mujhe hospital le gaye aur fir wahan par mujhe suiya lagai (injections).
Q. Beta kya aap pehle bhi court main aaye the? Ans. Haan (witness is referring to recording of his statement u/s 164 Cr.PC).
Q. Beta kya aap aaj us Deva uncle ko pehchan sakte ho?
Ans. Haan, wo aaj peeche baitha hai.
21. In his crossexamination prior to remand back of case, child victim admitted that his father owned a rickshaw and that said rickshaw remained parked in State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 12 of 92 front of the house of accused. He further admitted that accused was not happy with parking of rickshaw in front of his house and his father and accused had quarreled on that issue.
22. After remand back of case, in his crossexamination by learned Adit S. Pujari, child victim stated that there was only one room in his house at 3 rd floor and that accused had gone to the house of child victim to call him. He further stated that at that time his mother and elder brother Sachin were also in the room as by that time Sachin was not going to school. He stated that when accused had come to call him his mother was washing clothes. He also stated that at the time of accused doing wrong act with him blood came out. He also stated that he was wearing an underwear and jeans pant and that his parents took off those clothes. He stated that at the time of medical examination in hospital he experienced pain in his anus. He also stated that after the incidence he was not taken to the room of accused. He admitted that accused was not living alone and 45 persons were also living along with accused but he denied the State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 13 of 92 suggestion that on the day of incidence also those 45 persons were present along with accused. Learned Sh. Pujari asked him whether there was any quarrel of his parents with accused. He answered in negative but when he was reminded that in his earlier statement he stated that his father had a quarrel with accused on the issue of parking of rickshaw, he admitted the fact. He denied that accused did not commit any alleged incidence against him.
23. PW4 Smt. R is the mother of child victim. She testified that she was residing on rent on 3 rd floor of house along with her family consisting of herself, her husband and her two sons, whereas accused was residing on rent on the second floor of same house. Child victim is her second born child. About 89 months ago in the month of 'Magh' (January) at about 1 or 1.30 pm, she was washing clothes when his son i.e. child victim S had come to her crying. On inquiry child victim told her that he was having pain in his posterior. He further told her that accused had called him in his room while child victim was going to play downstairs. Accused had committed State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 14 of 92 wrong act with him by putting his private part in the anus of the child victim. She checked child victim from back side and found that he was slightly bleeding from there. She got nervous and could not understand what to do. Due to shame she could not inform about the incident to any other neighbour. She waited for her husband who came at 11.00 pm. She informed him about the incident. Her husband had gone to the room of accused who confessed his guilt. Thereafter, her husband had gone downstairs and called one police official who was standing near Chaudhary hotel. Her husband had told the incident to the said police official. Later on some other police officials including lady police also reached there. Firstly, she, child victim and her husband were taken to police station Keshav Puram and thereafter to one hospital at Jahangir Puri. She proved her statement as Ex.PW4/A, site plan as Ex.PW4/B and her statement recorded u/s 164 Cr.PC as Ex.PW4/C.
24. In her crossexamination prior to remand back, she admitted that her husband had a rickshaw. She however denied that her husband used to have quarrel with State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 15 of 92 accused and accused was falsely implicated for that reason.
25. In crossexamination by learned Sh. Adit S. Pujari, she denied the suggestion that during Diwali in the year 2015 there were some altercation between her and accused. She however admitted that around that time her children were making noise and on accused scolding them, she slapped him. She further admitted that after that incidence her relations with accused were strained. She stated that she was residing with her family in one room only and apart from her room there were seven other rooms at third floor which were also occupied by different persons and those rooms were adjacent to each other and were separated by a common wall only. She stated that the lay out plan of the second floor was also same. She admitted that accused used to live with his mausi (maternal aunt) and her family. She however volunteered that at the time of incidence accused was alone. She stated that when child victim returned to her she had seen blood oozing out from his posterior and the same smeared on his clothes. She stated that said clothes State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 16 of 92 were given by her to police and she did not change clothes of victim between the time when victim complained to her about the incidence till police seized them. She stated that as soon as victim told her about the alleged incident she went downstairs and found that room of accused was locked and accused was missing. She further stated that when she told about the incidence to her husband, he went down and brought accused to their room. She stated that she did not remember whether they had locked accused in their room after her husband brought him upstairs and her husband left accused in her custody before going to speak to police. She stated that when police took her to the room of accused on 30.01.2016, her son was not with her. She reiterated this by saying that when proceedings in relation to seizure of hair and blanket through seizure memo Ex.PW10/C and Ex.PW10/D were drawn, victim child was not present. She denied the suggestion that anybody could have entered accused's room from the time when her husband apprehended accused to the time when proceedings in relation to Ex.PW10/C and Ex.PW10/D were drawn. She State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 17 of 92 stated that she could say so because lock was placed on the door of accused's room but she was not aware who placed that lock. She further stated that when police came to accused's room, landlord's munshi (clerk) had given key to open the lock. She admitted that nobody placed lock on accused's room in her presence or in presence of her husband. She denied the suggestion that no lock was placed on accused's room which is why no paper regarding the same was attached with charge sheet. She denied the suggestions that no wrong act was done with child victim and that there was no blood on his clothes and that seizure memos Ex.PW10/C and Ex.PW10/D were falsely prepared to implicate the accused.
26. PW5 Sh. A, is the father of child victim. He has deposed on the lines of his wife PW4. He stated that when his wife PW4 informed him about the incidence he had gone to the room of accused. Accused confessed his guilt. Thereafter he had gone downstairs and called one police official standing near Chaudhary hospital. Later on other police officials also reached there. Thereafter, State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 18 of 92 he, child victim and his wife were taken to PSKeshav Puram and from there to one hospital at Jahangirpuri.
27. In his crossexamination he admitted that he had a rickshaw but denied the suggestion that he used to have quarrel with accused over parking of rickshaw and that accused was falsely implicated due to that reason.
28. In his further crossexamination after remand back of case, he admitted that accused was living in one room with his maternal aunt and her family. He further admitted that he had brought accused upstairs. He stated that when accused was brought by him some people were present. He stated that he had seen blood on the clothes worn by child victim at the spot from where he passed his stool and that he had got those clothes seized by police. He denied the suggestion that he had locked accused in his room, when he went to see police. He stated that accused could not have run away because other people such as landlord, cousin (mausi ka ladka) of accused were present along with accused. He admitted that said cousin of accused lived with accused in the same room. He denied suggestion that no blood stained State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 19 of 92 clothes were worn by child victim nor were handed over to police at any point of time. He further denied that accused was falsely implicated.
29. PW6 W/SI Anita testified that on 30.01.2016, on the directions of SHO she had gone to the spot i.e. .................................. There she found JWO SI Suraj Pal and accused. Accused had claimed juvenility. JWO made inquiries from the accused in her presence.
30. In her crossexamination by learned Sh. Pujari this witness stated that she saw mausi (maternal aunt) of accused at the spot.
31. PW7 Constable Vikas had taken the exhibits of the present case to FSL Rohini vide RC No. 32/21/16 and deposited the same.
32. PW8 HC Deepak Kumar, proved the DD No. 34A recorded by him as Ex.PW8/A.
33. PW9 SI Suraj Pal was posted as JWO (Juvenile Welfare Officer) in police station Keshav Puram during the relevant time. He testified that IO ASI Sawarmal telephonically informed him that both victim and accused were JCL. On this information he reached the spot. He State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 20 of 92 interrogated child victim and accused. Accused stated himself to be of 17 years of age. He also admitted to have committed wrong act with child S. Thereafter he along with IO went to BJRM hospital for medical examination of accused and victim. Accused admitted his guilt before the doctor also. Thereafter, he along with IO, victim and accused returned back to the spot. He searched for known or relative of accused but could not find anyone. Thereafter, IO apprehended the accused after interrogation in his presence. He proved the apprehension memo of accused as Ex.PW9/A, version of the child as Ex.PW9/B and social report of juvenile as Ex.PW9/C.
34. No crossexamination of this witness was conducted by earlier Amicus Curiae for accused. However, after remand back of case learned Sh. Adit S. Pujari conducted detailed crossexamination of this witness. In his cross examination he stated that accused had orally told his age as 17 years and no document was provided by accused in this regard despite asking of police. He stated that normally when documents of age proof are not State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 21 of 92 available, further investigation is made at the residence or village of the person claiming to be juvenile in conflict with law. He further stated that information of apprehension of accused was given to his father because mausi and her children were not available at the spot. He stated that he did not know the details of mauka (spot) or the orientation of room etc. He stated that he accompanied IO to the hospital along with accused and the victim but he did not know how the accused and child victim were taken to hospital. He stated that in social report of JCL Ex.PW9/C, he recorded the family attitude towards juvenile as "not good" because accused had told him so. He further stated that he did not enter the details of the relatives of juvenile at point no. 11 of social report because he could not contact anyone from the family of accused. Similarly, as regards point no. 5 (ii) of social report he did not record the parents version of accused since he could not contact his parents. He stated that he could not say anything about the father having been informed, as written in the apprehension memo Ex.PW9/A since that was done by IO. He admitted that it State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 22 of 92 was his duty to record the parents version if the birth certificate or educational certificate of child was not available. He further admitted the suggestion that he did not investigate all that he was mandated to investigate in respect of age proof of JCL (accused). He volunteered that he did all that he could. He denied the suggestion that Aadhar card of accused was available at the spot.
35. PW10 ASI Sawarmal is the IO of the case. He has deposed on the lines of chargesheet filed by him.
36. In his previous crossexamination IO admitted that place of incidence is a residential area and that he did not record statement of any neighbour and he did not find any person who had seen the victim child entering the room of accused or going away from the same. He denied that blanket was planted upon accused in collusion with parents of child victim and false case was registered upon accused.
37. His detailed further crossexamination was later on conducted by learned Sh. Pujari. In his further cross examination IO stated that he had sent someone to the school of accused to check for documents relating to his State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 23 of 92 age proof but did not cite that person as a witness in the present case since no document was obtained. He denied the suggestion that such person was not cited as witness because nobody was actually sent to the school of accused. He stated that he did not consider it necessary to obtain any other document such as age documents of siblings of accused in relation to his age proof since age estimation report was already obtained. He denied the suggestion that Aadhar card of accused was given to him during the investigation reflecting the date of birth of accused as 01.01.1999. He further denied the suggestion that school leaving certificate and other age related documents of accused were available in his village on the basis of which any estimation of the age of accused could have been made. He admitted that originally he believed that accused was a juvenile and conducted proceedings accordingly. He further stated that firstly statement of witnesses were recorded in this case and thereafter the accused and victim were taken for medical examination. He stated that no blood or blood stained clothes were visible at the spot of occurrence or given to him by any State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 24 of 92 witness. He also stated that seizure of hair at the instance of witnesses was made after medical examination and that the room from which seizure was made was locked prior to their departure for their medical examination since only accused lived in that room. He stated that massi of accused and her children did not reside with him and accused used to live alone. He admitted that when he first reached the spot accused was found in the house of the victim and parents of victim had made him sit down in their house so that he could not leave. He further stated that victim's mother had told him that she had locked the room of accused. He admitted that it was possible that victim and his mother could have together visited the room of accused after the accused had been detained in the house of victim. He did not rule out that the hair of victim could have been placed in the room of accused by the victim's mother if they had gone down. He admitted that as per the statement Ex.PW4/A of the mother of victim blood should have been present on the clothes of victim but he did not see any such blood nor was given any blood stained State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 25 of 92 clothes. He admitted that there were many residents in the building where accused and victim used to reside and all residential units were very close to each other but volunteered that residents of building were of labour class and used to work during the day, therefore even if victim screamed nobody would have heard the same. He denied the suggestion that family members of labour used to be present in their houses during day time and volunteered that they also used to go to work. He stated that he did not record statement of any other resident of building nor made any inquiry from them nor himself verified whether the other residents had gone to work or not. He did not see the nature of injuries on the victim either at the spot or in the hospital. He denied the suggestion that mausi of accused and her children were present intermittently throughout the day in the room of accused. He stated that he did not obtain documents in relation to age of accused since the time he called up the father of accused. He denied the suggestion that accused was apprehended much prior to the time mentioned in apprehension memo and volunteered that apprehension State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 26 of 92 memo is correct.
38. PW11 Sh. Dharminder Singh, the then learned MM proved the statement recorded u/s 164 Cr.PC of child victim as Ex.PW11/B. No crossexamination of this witness was conducted.
39. PW12 ASI Bhujvir, was working as duty officer during the relevant date and time. He stated that on 30.01.2016 at about 3.05 am he received a rukka sent by ASI Sawar Mal through constable Amit and recorded FIR no. 85/2016 through computer operator. He proved the computerized copy of FIR as Ex.PW12/A, endorsement made by him on rukka already exhibited as Ex.PW10/A2 and certificate u/s 65B of Evidence Act as Ex.PW12/B.
40. In his crossexamination by learned Sh. Pujari he admitted that he had mentioned in the FIR that information was received in police station at 2.40 am.
41. PW13 Dr. Narender, SR Surgery had medically examined the child victim. On local examination he found superficial multiple small abrasions present around pere anal region. He advised for proctoscopy. He also found one small tear 05.cm x 0.1 cm present at 6 O' clock State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 27 of 92 region. He found one small superficial abrasion 0.5 x 0.5 cm present at 12 O' clock region. He advised for rectal swab sample. Undergarments of the victim were taken, sealed and handed over to IO.
42. PW13 also examined accused and opined that there is nothing to suggest that accused cannot perform sexual act.
43. In his crossexamination by learned Ms. Surbhi, associate Advocate of learned Amicus Curiae this witness stated that he advised proctoscopy of child victim because internal injuries could not have been seen without such examination. He further stated that he used paediatric proctoscope while conducting examination. He however admitted that he did not write in the MLC that a paediatric procedure was used while conducting proctoscopy. He could not tell the measurements of the difference of size in paediatric proctoscope and a regular proctoscope. He could not admit or deny that there would necessarily be bleeding/mucus/fissures/foreign pubic hair if there is a great disproportion in size between the anal orifice of the victim and the penis of accused. He State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 28 of 92 admitted that nature of injuries visible in child victim could have occurred when a child is constipated. He however denied the suggestion that under normal circumstances there would be any remnant of sperm in a case of history of sexual assault of a child of five years. He further denied the suggestion that nature of injuries present in MLC of child victim could have been caused by the use of a regular proctoscope and volunteered that such injuries could not have been caused due to use of paediatric proctoscope.
STATEMENT OF ACCUSED:
44. Before remand back, entire incriminating evidence was put to accused at the time of recording of his statement u/s 313 Cr.PC. Accused denied incriminating evidence against him and stated that he has been falsely implicated in the present case by the child victim at the instance of his parents because of previous quarrel between him and father of child victim as he used to park his rickshaw in front of his house. No such incident ever took place and the present case is a false case.
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 29 of 92
45. After remand back of case, this court asked the court if he wanted to say anything about the case or the evidence or the witnesses who have deposed against him. Accused stated that he has been falsely implicated because of previous quarrel between him and the parents of victim on parking of rickshaw in front of his house. Court further asked the accused whether he intends to lead defence evidence. Learned counsel for accused after consultation with accused informed the court that accused do not intend to lead defence evidence.
ARGUMENTS:
46. I have heard lengthy arguments advanced by learned Sh. P.K. Ranga, Addl. PP for State and Sh. Adit S. Pujari, learned Amicus Curiae for accused. I have also gone through the material available on record.
47. Learned Sh. Ranga has very vehemently argued that in this matter a minor child aged about 05 years was subjected to aggravated penetrative sexual assault by the accused and the child victim has been consistent throughout the investigation and trial with regard to the State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 30 of 92 act of penetrative sexual assault committed upon him by accused and his testimony finds full corroboration with the medical as well as forensic evidence.
48. Learned Addl. PP for State further argued that incidence took place on 29.01.2016 at about 1.00 pm and the FIR was registered on 30.01.2016 because when the child victim initially informed his mother (PW4) she could not inform anybody due to shame. When the father of child returned home at about 11.00 pm, PW4 shared the incidence with her husband and thereafter information to police was given at about 11.30 pm. Learned Addl. PP has submitted that delay in recording of FIR has been duly explained. It is further argued that the accused has failed to prove his defence in the matter and as such the conviction of accused for the charged offence has been prayed for.
49. Learned Addl. PP for State has also relied upon Section 29 and 30 of POCSO Act, which are reproduced as under:
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 31 of 92 attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
30. Presumption of culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purpose of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
50. Learned Addl. PP therefore argued that in the present case u/s 6 r/w section 5 (m), presumption under section 29 POCSO is squarely applicable and the court is State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 32 of 92 required to presume that accused has committed the alleged offence as the accused has failed to prove his defence.
51. Per contra learned Amicus Curiae Sh. Adit S. Pujari has argued that if the testimony of prosecution witnesses is considered, there are material contradictions. He further argued that incidence as narrated by the witnesses could not have been possible. He further argued that there was no fair investigation in the case and accused has been falsely implicated.
52. Detailed relevant argument of learned Sh. Pujari would be discussed in the later part of the judgment.
POINTS FOR DETERMINATION:
53. From the arguments advanced by parties and evidence and material on record, following points for determination are culled out for decision as per requirement of section 354 (1) (b) Cr.PC:
1) Whether the accused has been able to prove that the spot proceedings including arrest of accused and State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 33 of 92 seizure of hair and blanket is doubtful?
2) Whether the investigation of case is prejudicial against accused?
3) Whether the testimony of PW4 and PW5 is creditworthy?
4) Whether accused has been able to rebut the presumption u/s 29 POCSO Act?
POINTS FOR DETERMINATION:
1) WHETHER THE ACCUSED HAS BEEN
ABLE TO PROVE THAT THE SPOT
PROCEEDINGS INCLUDING ARREST OF
ACCUSED AND SEIZURE OF HAIR AND
BLANKET IS DOUBTFUL:
54. As per chargesheet after being informed and after initial inquiry at the spot, PW10 IO ASI Sawar Mal along with Juvenile Welfare Officer PW9 SI Suraj Pal, PW6 W/SI Anita, child victim and JCL (accused) went to hospital for medical examination of child victim and accused. After medical examination IO PW10 along with State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 34 of 92 PW9 returned back to the spot, sent rukka to the police station for registration of FIR, apprehended the JCL (accused), called crime team on the spot. Crime team inspected and took photographs of the spot, blanket and hairs were seized from the spot.
55. It is rightly submitted by learned Amicus Curiae Sh. Adit S. Pujari that there is ample evidence to suggest that the police team did not return to the spot from the hospital and no proceedings including the sending of rukka, examination of spot, preparation of site plan etc. were done at the spot.
56. First such evidence is the admission of PW10 IO ASI Sawar Mal in his crossexamination dated 01.08.2019 by learned Sh. Pujari in which the witness stated "In the present case, statements of witnesses were recorded first and the case got registered and only then the accused and victim were taken for medical examination." This admission by IO creates doubt in sending of rukka and registration of FIR as mentioned in the chargesheet. As per MLCs of the child victim and accused, they were produced for examination in the State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 35 of 92 hospital at 00:10 am and 00:59 am respectively on 30.01.2016. As per endorsement on rukka same was sent from the spot on 30.01.2016 at 02.40 am. If the statement of witnesses were recorded first and the case got registered and thereafter the accused and victim were taken for medical examination, the rukka should have been sent to the police station prior to the time of production of child victim and accused in the hospital.
57. The admission of IO that firstly the statements of witnesses were got recorded and the case got registered and thereafter child victim and accused were taken for medical examination is corroborated by the testimonies of PW3 child victim, PW4 and PW5 as well. In his examination in chief child victim also stated that after his father made phone call to police, thereafter "police mujhe apne thana le gai." (Police took me to their police station). In reply to next question "beta phir thana le jaa kar kya kia?" (what did they do after taking to police station), child victim stated "phir mujhe hospital le gaye aur phir wahan mujhe suiya laga." (then I was taken to hospital and given injection).
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 36 of 92
58. PW4 mother of child victim also stated in her examination in chief "firstly me, my son and my husband were taken to PSKeshav Puram and from there to one hospital at Jahangirpuri."
59. PW5 father of child victim also stated in his examination in chief "firstly me, my son and my wife were taken to PSKeshav Puram and from there to one hospital at Jahangirpuri."
60. From the examination in chief of PW3, PW4 and PW5 as well as from the admission of PW10 IO ASI Sawar Mal, entire story of prosecution in the charge sheet that from the house of complainant, child victim and accused were directly taken to hospital is destroyed, on the contrary it is proved that the child victim and accused were taken to police station, statements of complainant was taken in police station and thereafter the police team had visited to the hospital. Hence, no rukka was prepared at the spot.
61. The court shall also deal with the alleged remaining proceedings conducted by police after returning to spot from the hospital.
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 37 of 92
62. According to chargesheet after returning from hospital and registration of case thereafter, district crime team was called at the spot who inspected the spot and took photographs.
63. There is not a single photograph of the spot attached along with the chargesheet. No member of district crime team has even been cited in the charge sheet as a witness. No name of any member of the crime team is mentioned in the chargesheet. Even during trial of the case no such person was called nor any photograph or report was proved. In the list of documents filed along with chargesheet, at Sl. No. 8 district crime team report is referred as attached at page no. 15. Court has perused said report. The said report do not pertain to the present case. The said report is purportedly prepared by one SI Manjur Alam, MCT, NorthWest in DD no. 41A dated 18.03.2016 u/s 457/380 IPC. The nature of crime is mentioned in the said report as theft of house by breaking of main gate. Name of the IO in that case is also ASI Sawar Mal. The name of complainant is Mohit Arora S/o Shyam Sunder Arora, R/o C1/143, A Block, Keshav State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 38 of 92 Puram, Delhi.
64. In the facts and circumstances it appears that PW10 ASI Sawar Mal has attached scene of crime visit report of some other case along with chargesheet of this case. In the absence of any report pertaining to this case, absence of photographs of the spot, absence of citing and examination of witnesses, suggest in high probability that no inspection of spot was done by crime team.
65. The visit of the police team to the spot after return from hospital is further belied as PW3, PW4 and PW5 have not stated that the IO or other members of police team had come back to the spot from the hospital. Neither PW4 made any such statement nor it was stated by PW5 nor child victim made any such averment in their respective testimony. Rather the statement of PW9 and PW10 suggest that they had never visited the spot.
66. Child victim PW3, in his crossexamination by learned Sh. Pujari admitted that 45 other persons were living along with accused in his room. PW4 also admitted in her crossexamination by learned Sh. Pujari State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 39 of 92 that accused used to live in his room along with his mausi (maternal aunt) and her family.
67. PW5 also admitted the same fact that accused was living in the same room along with his mausi (maternal aunt) and her family. PW5 further stated in his cross examination "there was no question of DK running away since other people such as the landlord, mausi ka ladka etc. were present. It is correct that this mausi ka ladka lived with DK in his room."
68. Following reply to the question asked from PW6 W/SI Anita, who also visited the spot after the incidence, was recorded: "Question. Since you claimed to have been on the spot. Did you see any of the family members of the accused?
Ans. Yes, I saw the mausi of accused. I did not ask her about any age proof documents of the accused."
69. From the testimony of these witnesses it is abundantly clear that accused was residing in a room along with 45 other persons which i.e. the family members of his maternal aunt. It is also clear that after State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 40 of 92 the alleged incidence when PW5 informed the police at night, maternal aunt of accused and/or her son were also present at the spot but JWO PW9 in his examination in chief stated that he along with IO, victim and offender returned back to the spot. He searched for known or relative of the offender, but could not come across anyone. This statement of witness is contrary to the statement of PW6 W/SI Anita, PW4 and PW5. PW6 categorically stated that mausi of accused was present at the spot. PW5 also stated that son of said mausi was present at the spot. Otherwise also when accused was living along with his mausi and her family, the court do not see any reason, if PW9 had visited the spot and searched for relatives of accused, why he would not meet one. In his crossexamination also this witness stuck to statement that relatives of accused were not present at the spot and he did not meet mausi of accused or her children. If the mausi and her family were living in the same room and the IO and JWO visited the said room in early hours between 2.00 am to 5.00 am, the court sees no reason why they would not be found in or around the State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 41 of 92 room by PW9 and/or PW10, specially when their presence is established by the testimony of other witnesses.
70. PW10 in his crossexamination dated 01.08.2019, stated that only accused lived in the room and mausi of accused and her children did not reside there as the accused used to live alone. As already discussed this statement is all together contrary to the testimony of PW3, PW4, PW5 and PW6 and casts a serious doubt about his visit to the spot. As per the prosecution case even PW9 had accompanied the IO from the spot to the hospital and thereafter directly returned to the spot but in his crossexamination he could not tell the details of the spot or orientation of room etc. Though he stated himself to accompany the IO but he did not know how the accused and JCL were taken to hospital.
71. In the fact and circumstances, entire spot proceedings allegedly done by the IO and his team after return from the hospital are under serious shadow of doubt. Preponderance of probability rather suggest that the IO has not visited the spot from the hospital. IO has State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 42 of 92 not even recorded the complainant's statement at the spot. The admission of IO that statements of witnesses were recorded first and the case got registered and only then the accused and victim were taken for medical examination along with other evidence including testimony of PW3, PW4 and PW5 is sufficient to suggest that statement of complainant was recorded in the police station and then the child victim and accused were taken for medical examination and thereafter the police team did not visit the crime spot. Hence, the seizure of blanket and hair from the spot is under serious shadow of doubt.
72. There is further doubt in such seizure because PW4 in her crossexamination categorically stated "My son child victim S, was not with me when I took the police to DK room on 30.01.2016." In further crossexamination she reiterated "I reiterate that my child victim S was not present at the time when proceedings in relation to Ex.PW10/C and Ex.PW10/D have been drawn." Ex.PW10/C and Ex.PW10/D are the proceedings of seizure of hair and blanket allegedly done on 30.01.2016 State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 43 of 92 after registration of FIR at 3:05 am and prior to alleged arrest/apprehension of accused at 5.00 am. If the accused committed alleged offence at 1.00 pm on 29.01.2016, accused was living along with his mausi and family, the father of child victim informed the police after 11.00 pm, mausi of accused and her son were present at the spot when police arrived, it is naturally presumable that the other members living in the room of accused had arrived. Without the child victim being present with her mother PW4, she could not have identified the exact place in the room of accused, where the alleged 'galat kaam' had taken place. Their must have been other bed/beddings in the room, where the mausi and her family might be sleeping. It was chilling winters in Delhi in January. So family could not be surviving without bedding. Hence, PW4 could not have identified any particular bedding. It is further strange that the IO was able to seize the hairs of the child victim and of the accused though the room was inhabiated with 45 other persons. No hair of mausi of accused or of any other member of her family was found. It is further strange that the child victim, who was State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 44 of 92 aged about 05 years only, shed his hair on the blanket though there was no scuffle between him and accused. Similarly, the accused who was also a young boy dropped his hair but no hair of the woman i.e. mausi of accused, her husband or other members of their family was present.
73. Hence, if the circumstances are seen together as a whole, it appears that the suggestions of learned defence counsel are corroborated that the IO, without visiting the spot, has planted the blanket and hairs in order to implicate the accused.
2) WHETHER THE INVESTIGATION OF CASE IS PREJUDICIAL AGAINST ACCUSED :
74. It is the case of prosecution that initially the accused was considered a juvenile in conflict with law (JCL) and was accordingly produced before the JJB. Thereafter, ossification test of accused was got conducted and he was found major. The case was thus sent for its regular trial from JJB to POCSO Court. After remand back of the case learned Sh. Pujari had crossexamined State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 45 of 92 the IO and JWO on the point of inquiry/investigation regarding juvenility of accused as well.
75. As already discussed JWO PW9 SI Suraj Pal stated in his examination in chief that after return from hospital to the spot along with IO, he searched for known or relative of offender but could not come across anyone. In his crossexamination he also stated that he believed the accused as a JCL because accused orally informed him that his age was 17 years. He admitted "Normally when an accused tell us that he is a juvenile i.e. under 18 years of age, we ask for documents in this regard. Vol. In the present case no document was provided by accused. Normally, if documents are not available in school, further investigation is made at the residence or village of the person claiming to be a JCL." Thus according to PW 9, no document of age proof of accused was found by him. In his crossexamination dated 25.07.2019 by learned Sh. Pujari IO stated "It is wrong to suggest that Aadhar card of the accused was given to me during the time of investigation that showed the date of birth of accused was 01.01.1999."
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 46 of 92
76. Above referred statements of both these witnesses are false as per record. PW10 IO ASI Sawar Mal in his application filed before Principal Magistrate, JJBII, Delhi Gate for keeping the accused (at that time considered JCL) in Reformation Home has mentioned that an Aadhar card was found with accused according to which his age was 17 years. Said original application is available on record. Hence, both PW9 and PW10 gave false statements that no document regarding age proof of accused was found. PW10 despite referring the Aadhar card in his application before the Principal Magistrate, original of which is available on record stated that no Aadhar card was given to him during the time of investigation that showed the date of birth of accused. Court do not understand the reason for this falsehood and for withholding any piece of evidence i.e. the Aadhar card from the court.
77. In the case of State of NCT of Delhi Vs Rakesh and Ors., 2012 (2) JCC 1334, Hon'ble High Court of Delhi in para 6 observed as follows : Failure of the IO to investigate State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 47 of 92 the matter thoroughly makes prosecution version suspect. This Court reiterates that the role of the police is not merely to collect evidence which implicates to a particular suspect but explore and analyse all the materials which come to light during investigation.
Unlike a party to a private litigation, the State is not partisan; the police, its agency, and the prosecutor, its representatives have to be fair, and advance the cause of justice, which ultimately has to prevail, irrespective of whether the material advances its hypothesis or exonerates an accused.
78. Though, there is no challenge to the order of the JJB declaring the accused as adult, however the inquiry conducted by the IO and JWO in respect of that is relevant to consider whether these police officials had since beginning being prejudicial against the accused. As per crossexamination of PW9 "We informed the father of JCL of the apprehension since the mausi and her children were not available at the spot. I do not remember the State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 48 of 92 details of the mauka or the orientation of the room etc." It is already discussed that mausi and her son were available at the spot. Hence, this version of PW9 is not believable, more so when he does not remember the details of mauka or orientation of the room etc. This again suggest that he had not gone on the spot and the apprehension of accused was not done as suggested by police.
79. PW9 purportedly prepared social report of the JCL (accused) Ex.PW9/C. Learned Amicus Curiae had cross examined this witness upon that report. He stated "I could not enter the details of the relatives of the juvenile at point 11 in Ex.PW9/C since we could not contact anyone from his family. In respect of the details at point 5
(iii) on Ex.PW9/C I did not record the parents version since we could not contact the parents. I cannot say anything about the father having been informed on the apprehension memo Ex.PW9/A, since this was done by the IO. It is correct that parent includes father. Vol. Father however was not present."
80. As per apprehension memo father of accused was State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 49 of 92 informed about his arrest. Apprehension of accused was done by PW10 IO ASI Sawar Mal. PW9 has also initialled the said apprehension memo. If cross examination of PW9 is considered that he could not enter the details of the relatives of juvenile at point no. 11 and further could not enter the parents version at point no. 5 (iii) because the parents of accused could not be contacted, there is serious doubt that any intimation was given to the father of accused about his apprehension. Otherwise there was no reason why relatives of accused could not have been verified or the parents version could not have been recorded in the social report of JCL. PW9 JWO who has signed the apprehension memo even stated that he cannot say anything about the father of accused having been informed. Hence, it appears to be rightly submitted learned Amicus Curiae that the investigation has been prejudicial to accused since beginning.
81. Submissions of learned Amicus Curiae further gain strength in view of remaining crossexamination of PW9 and PW10. PW9 further stated "It is correct that it is State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 50 of 92 my duty to record the parents version if the birth certificate or educational certificate is not available. Vol. Father however was not present. It is correct that I did not investigate all that I was mandated to investigate in respect of age proof of JCL, however I did all that I could. It is wrong to suggest that JCL's Aadhar Card was available at the spot." Hence, PW9 despite his duty to record parents version about age of accused, did not do so. He even admitted that he did not investigate what was mandatory to investigate in respect of age of accused. IO PW10 stated " I did not consider it necessary to obtain any other documents such as age documents of siblings of accused in relation to age proof of accused since the age estimation report had already been obtained..... It is wrong to suggest that School Leaving Certificate and other age related documents of the accused's brothers were available in his village on the basis of which an estimation could be made of the age of accused." It is rightly submitted by learned Amicus Curiae that for age estimation of accused and/or to collect any document of age proof, at least an inquiry could have State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 51 of 92 been made from the parents of accused. The date of birth related documents of the siblings of accused could have been also relevant. Even the date of marriage of parents might have suggested that accused could not have been born prior to some particular period. But the police had chosen not to do any such inquiry or investigation, though the accused was first believed to be a JCL. The police rather withheld the document i.e. the Aadhar card of accused from the court record.
82. As per established procedure of determination of age of any JCL under Juvenile Justice Act, the medical examination for age determination is a resort, when the date of birth certificate from the school, or the birth certificate given by a corporation or a municipal authority or a panchayat, is not available. PW9 JWO and PW10 IO, did not make any attempt to collect the documents regarding age determination. Parents of the victim were not inquired to verify where the birth of accused had taken place whether it was in hospital or in their house, whether any record was maintained by the panchayat/hospital/municipality/corporation etc. It is State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 52 of 92 stated by IO "I had sent someone to the school of accused in the present case to check for documents relating to age proof of accused. I have not cited the said person who I had sent to the school of accused as a witness in the present case since no documents were obtained. It is wrong to suggest that I did not cite such person a witness in the present case since nobody was actually sent by me to the school of accused." Court fails to understand by what intuition PW10 determine the school of accused because there is no mention of any school by PW9 JWO in social report of the JCL (accused). If somebody was sent to some school in the home village/district of accused, why no inquiry was made from the parents of accused or from the village/panchayat/corporation etc.? Why no efforts were made to obtain documents relating to age of other siblings of accused.
83. At the cost of repetition it is reiterated that there is no challenge to the findings of learned JJB and the above observations have only been made to consider the investigation in the case since beginning and to consider whether any prejudice could have been caused to State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 53 of 92 accused. Even learned Amicus Curiae appointed by Hon'ble High Court, did not challenge the said findings by JJB during the course of arguments, however he has crossexamined the relevant witnesses at length on this aspect to show prejudicial investigation against accused. Possibly there is no point to accused to raise questions on the findings of JJB to declare him as adult at this stage. However, the court cannot be oblivious of the financial condition and other circumstances of the accused which might incapacitate him to fight a proper legal battle. Hon'ble High Court of Delhi, while reversing the judgment of conviction has also observed that even the legal assistance provided to accused in trial court was not effective. However, this would not absolve the police from performing their mandatory duty under juvenile justice act else entire purpose of the legislature for making special provisions under the JJ Act would be frustrated. This case is a glaring example that police did not give proper assistance to JJB in age related inquiry.
84. Now coming to remaining lacunas in investigation, it has already been discussed that there is high State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 54 of 92 probability that the blanket and hair have been planted against accused. It is also discussed that possibly father of accused was not informed of his arrest and therefore it appears that the arrest of accused was made in violation of the guidelines of Supreme Court in the case of D.K. Basu Vs State of West Bengal, 1997 (1) SCC 416.
85. Apart from this learned Amicus Curiae pointed out that some unusual confession of the accused is recorded in the present case which reflect anxiety of the IO to create evidence against the accused. In support of his arguments learned Sh. Pujari has referred to the statement of PW9 and PW2 Dr. Inderpal Yadav, CMO, BJRM Hospital and has drawn his attention to the MLC of accused. PW9 stated that when the offender was taken to hospital, he admitted his guilt before the doctor also. In the MLC Ex.PW2/B of accused it is recorded "accused confessing of doing sodomy on S (child victim) on 29.10.2016 at about 13:00 pm". Below the said note thumb impression of accused is taken.
86. In his crossexamination PW2 Dr. Inderpal Yadav, admitted that there was no requirement for writing such State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 55 of 92 type of confession on the MLC, during medical examination of patient. This witness stated that he had not seen such type of confession on any MLC previously. He further stated that the confession was not recorded on the MLC in his presence.
87. It appears to be rightly submitted by learned Amicus Curiae that there was no need for recording of this confession in the hospital. Otherwise also accused was produced by police in the hospital. He was already apprehended. Therefore, the confession is hit by section 24 and 26 of the Indian Evidence Act. Even learned Addl. PP has not pressed much upon this confession, but it is rightly submitted by learned Sh. Pujari that recording of this confession appears to be at the instance of the police officials which further reflects that police officials were eager to create evidence against accused. PW2 categorically admitted that he had not seen such type of confession on any other MLC previously. This witness was supervising doctor Gaurav, the then Jr. Resident in the hospital, who prepared the MLC. The MLC bears his signature and seal. Unawareness of this witness about State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 56 of 92 the confession reflects that it was got written from or by Jr. Resident doctor (one year of internship after passing MBBS) without his knowledge.
88. It is rightly submitted by learned Sh. Pujari that if the accused was really willing to make any confession, appropriate application u/s 164 Cr.PC could have been made by the IO before any Metropolitan Magistrate. A number of safeguards are provided u/s 164 for recording confessional statement of accused. Magistrate is not supposed to record confession unless he has reason to believe that the same is being made voluntarily. Magistrate is supposed to issue a certificate to that effect also. If a person refuses to make confessional statement, Magistrate may not authorize detention of such person in police custody.
89. In the present case accused is an illiterate person.
His confession is recorded in MLC in English language. No safeguard ws taken prior to recording of confession. There was no occasion to make such confession. There is nothing to suggest that he was read over his confession in vernacular. In total three thumb impressions of accused State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 57 of 92 appear on MLC out of which one is below the confession. In the facts and circumstances, this court is of the opinion that no weight can be attached to this confession against the accused but this confession prima facie reflects that the same might have been recorded on MLC at the instance of IO/police official and prima facie reflects that the investigation was not fair.
90. The site plan of the spot was also prepared at the instance of the mother of child victim. Child victim has categorically stated that he had not gone to the room of accused after the alleged incidence. Mother of the child victim also admitted that he had not gone to the room of accused after the incidence.
91. PW4 in her crossexamination stated that there were 07 other rooms on her floor apart from her room. She admitted that the second floor, where the accused resided had the same lay out. Therefore, there were 08 rooms on the floor of accused also. These rooms were separated only by a common wall and were adjacent to each other. Labours along with their families were residing in these rooms. In his crossexamination by State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 58 of 92 learned Sh. Pujari, IO PW10 stated that he did not record statement of any other resident of the building nor made any inquiry from any other resident. He did not himself verify whether other residents had gone to work or not. But he stated that even if screams were made by victim nobody would have heard the same because all residents of building were of labour class and used to work during the day. He denied the suggestion that family members of the labour used to be present in the day time and volunteered that they also used to go to work. If the IO had not verified whether other residents had gone to work or not, he could not have claimed so. After all, the accused and victim family also belong to labour class. The mother and brother of victim were present in the house. Accused was also allegedly present in his room. In such circumstances, the IO could not have drawn the conclusion that family members of the labour also used to go to work. This reflects that IO, for the reason best known to him, has not investigated the matter properly and has drawn unreasonable conclusions on his own without any inquiry or investigation. He did State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 59 of 92 not make any attempt to verify from any independent witness whether accused was present in his house and during which period; where were the other occupants of room at that time; whether victim had gone to the room of accused; whether PW4 or PW5 visited the room of accused and if so, when did they? It is already observed in earlier discussion that the acts and omission of IO seem to be prejudicial to accused.
92. In view of aforesaid discussion this court is of the opinion that the investigation is not been fair and proper and has been prejudicial against accused.
3) WHETHER THE TESTIMONY OF PW4 AND PW5 IS CREDITWORTHY :
93. Child victim in his crossexamination dated 22.10.2016 admitted that there was quarrel of his father with the accused on the issue of parking of his father's rickshaw. He also admitted that rickshaw of his father used to be parked in front of the house of accused. PW4 in her crossexamination by learned Sh. Pujari initially denied that there was any altercation between her and State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 60 of 92 accused during Diwali in the year 2015 but in the next question she admitted that around that time accused scolded her children for making noise and she had slapped the accused. She further admitted that her relations with accused were strained after that incidence. PW5 denied that he was having any tension or strained relation with accused on account of parking of his rickshaw or on account of strained relations of accused with his wife.
94. Though PW5 has denied, but it has come on record from the testimony of PW3 and PW4 that relations of victim family with accused were not cordial. There had been quarrel of PW5 and accused. Even PW4 slapped accused. Hence, it appears to be rightly submitted by learned Sh. Pujari that the testimony of these witnesses should be scrutinized with suspicion as motive for false implication cannot be ruled out.
95. Now coming to the incidence, according to PW3 child victim, accused had come to his room to call him. At that time his elder brother and mother were also present in the room. It is rightly submitted by learned Sh. Pujari State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 61 of 92 that under normal circumstances, if the relations of accused were strained with PW4, she could not have permitted her son to go alone alongwith accused or at least could have asked the reason from the accused for calling her son or at least had noticed the accused while calling his son. Her testimony suggest that even the behaviour of accused towards her children was not affectionate as accused had scolded them to the extent that PW4 had to slap the accused. Hence, the child victim also might not be very eager to go with accused.
96. In her crossexamination, PW4 admitted that accused was residing with his maternal aunt and her family but in the next breath volunteered that at the time of incident he was alone. Learned Sh. Pujari submitted that if this witness was not present at the time of incident, she could not have verified whether the accused was alone or not and her voluntarily statement reflects her anxiety to get accused convicted. Sh. Pujari also referred to her further statement in cross examination, where the witness stated that when child victim told her about the alleged incident, she went State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 62 of 92 downstairs to check but found that room of accused was locked and he was no where. This statement is contrary to her complaint on the basis of which FIR was registered. In that statement she stated that when child victim told her about the incidence she could not understand anything and did not tell anything to anybody due to shame and shared this with her husband when he returned home.
97. This witness in her later crossexamination stated that her husband had brought the accused upstairs in their room. She appears to be evasive on the question asked by learned defence counsel that accused was locked in their room after his husband brought him upstairs and stated that she did not remember if that had happened. Similarly, she stated that she did not remember whether her husband had left accused in her custody at the time when he went to call police. In her further cross examination she stated that when proceedings in relation to Ex.PW10/C and Ex.PW10/D were drawn lock was placed on the door of accused's room. She further stated that she was not aware as to who placed the lock but State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 63 of 92 when police came to accused's room, landlord's munshi gave the key to open this lock. She also stated that landlord's munshi would come and lock the accused's room as and when he found it empty. She was suggested by learned Sh. Pujari that no lock was placed and that is why no papers in this regard were prepared or filed with chargesheet.
98. It is rightly argued by learned Sh. Pujari that witness appears to have cooked up this story. This story of lock being placed by landlord's munshi is not supported by any other witness. The court has already observed while deciding point for determination no. 1 that proceedings of seizure of blanket and hair vide Ex.PW10/C and Ex.PW10/D were possibly not drawn at the spot. The explanation offered by PW4 reflects that she was also eager to depose against accused. There is no statement recorded by IO, observation made in proceedings or in chargesheet nor any lock was seized at the time of opening the room to suggest that the room of accused was locked and that the landlord's munshi had provided the key of same. The locking of room does not State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 64 of 92 appear to be possible because the maternal aunt of accused and her family were also residing in the same room. If accused was taken to hospital or police station, naturally the room would be occupied by her maternal aunt and family. PW6 has admitted that mausi of accused was present at the spot when she initially visited the spot on receipt of call. PW5 also admitted that son of mausi was present on spot when police came for the first time.
99. Similarly, the conduct of PW5 in denying quarrel between himself and accused, further denying tension between accused and his family reflects that he was too conscious to give any impression that he or his family had earlier quarrel or tension. Though the truth appears to have come in the testimony of other witnesses but his consciousness to conceal these facts raises doubt on his creditworthiness.
100. In view of the aforesaid discussion this court is of the opinion that testimony of PW4 and PW5 can only be trusted with caution when there is other clinching evidence against accused.
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 65 of 92
4) WHETHER ACCUSED HAS BEEN ABLE
TO REBUT THE PRESUMPTION U/S 29 POCSO ACT:
101. Learned Amicus Curiae has firstly raised the point of delay in lodging FIR. It is argued that the incident took place on 29.01.2016 at about 1.00 pm, but the FIR was recorded on 30.01.2016 at about 03:05 am. It is argued that this gives rise to a possibility that FIR was lodged after due deliberation to falsely implicate the accused.
102. The court is in agreement with the submissions of learned Addl. PP for State that delay in lodging the FIR has been explained in the complaint of the mother of child victim. The child victim was aged about 05 years. After the incident he reported the matter to his mother PW4. It is stated by PW4 in her complaint and deposition before the court that when the incidence was narrated to her she became nervous and could not understand what to do. Due to shame she could not inform about the incidence to any other person and State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 66 of 92 waited for her husband PW5. When PW5 arrived at home she narrated the incidence to him at about 11.00 pm and thereafter PW5 informed the police official who used to stand near Chaudhary Hotel. As per testimony of PW8 HC Deepak Kumar, DD writer information vide DD no. 34A Ex.PW8/A was received in police station at about 11.30 pm. It is thus clear that after return of husband of complainant, matter was reported to police. In the facts and circumstances, this court is of the opinion that delay in lodging of FIR has been properly explained. Court is supported in its opinion by the judgment passed by Hon'ble Supreme Court in the case of Ramdas & Ors. Vs. State of Maharashtra, (2007) 2SCC 170, wherein it was held as under:
24. ........ In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts.
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 67 of 92
There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216].) Thus mere delay in lodging of the report may not by itself be fatal to State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 68 of 92 the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.
103. This court is therefore of the opinion that no adverse inference should be drawn just because there is some delay in lodging FIR. However, other facts and circumstances of the case should be independently analyzed.
104. Learned Addl. PP for State argued that the sole testimony of child victim in the present case is sufficient to bring home the guilt of accused. It is submitted that the testimony of child witness need to be read in the light of section 29 of POCSO Act. He argued that accused has failed to bring any positive defence on record, and hence failed to rebut the presumption of guilt u/s 29 POCSO Act. In support of his arguments learned Addl. PP has relied upon in the case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, wherein it was held : State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 69 of 92 A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
105. Further, the Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, has been pleased to hold that: There is no principle of law that it is inconceivable that a child of tender age would not be able to State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 70 of 92 recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
106. Learned Amicus Curiae has conceded to the submissions of learned Addl. PP for State that section 29 of POCSO Act is applicable in the present case because accused is being prosecuted for committing offence State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 71 of 92 defined u/s 5(m) punishable u/s 6 of the Act. Learned Sh. Pujari has however submitted that u/s 29 accused also has a choice to prove the contrary i.e. to prove that he has not committed the offence. Sh. Pujari has argued that such proof by accused need not be beyond reasonable doubt and the accused is only required to rebut the presumption of guilt against him on the basis of preponderance of probabilities.
107. Learned Sh. Pujari also argued that in catena of judgments Superior Courts have held that the testimony of child witness need to be scrutinized to see if there is any possibility of tutoring of child. He also argued that in the present case the evidence and circumstances sufficiently reflect that there is high probability of tutoring of child victim and that his deposition is not believable. He has relied upon State of Karnataka Vs Shivanaik, Crl. Appeal No. 100219/2014 and 100275/2017 decided on 15.09.2018 by Hon'ble High Court of Karnataka. In the said case the Hon'ble High Court of Karnataka was dealing with an appeal arising from a case u/s 3 & 4 of POCSO Act and u/s 376 IPC. The State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 72 of 92 Hon'ble High Court quoted Hon'ble Supreme Court to the effect that the courts must subject the testimony of a child witness to a close scrutiny and rely upon a testimony if the court were to find such testimony reliable, truthful and corroborated by other evidence on record. Hon'ble High Court quoted from the judgment of the Hon'ble High Supreme Court in Radhey Shyam Vs State of Rajasthan, MANU/SC/0135/2014 : (2014) 5 SCC page 389, referring to earlier decision of Hon'ble Supreme Court in Panchi Vs State of UP, MANU/SC/0530/1998 : (1998) 7 SCC page 177 : "12. ........ This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But is more a rule of wisdom than of law. It is not necessary to refer to other judgments cited by the learned Counsel because they reiterate the same principle. The conclusion which can be deducted from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 73 of 92 possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the Court must find adequate corroboration to the child witness's evidence. If found reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation".
108. Hon'ble High Court further observed as follows:
18. If in the prosecution of an accused for offence/s of sexual assault, the accused can be convicted on the sole testimony of the prosecutrix which is natural and trustworthy and corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination and scientific examination, even in cases of prosecution for sexual assault on a child, the sole testimony of such child/victim should be sufficient if the same is found natural and trustworthy in the broader probabilities of the case and State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 74 of 92 corroborated by medical evidence and circumstantial evidence such as scientific examination. The Courts, in all cases of prosecution of an accused for sexual assault (whether on a child or not), will have to be sensitive to, and conscious of, the social milieu, and in cases of prosecution of accused for sexual assault on children, the Courts' scrutiny of the evidence will also have to coalesce this indubitable obligation to be sensitive in examining any infirmity in a victim's testimony with the need to examine child's testimony with a measure of caution and seek corroboration. This would be necessary to eliminate tutored or influenced testimony because a child witness could be amenable to easy tutoring and influence. The rule of seeking corroboration of a child witness's testimony, as held by the Hon'ble Supreme Court, is more a rule of wisdom that law, and this need to coalesce should also be more a rule of wisdom than law.
109. Learned Amicus Curiae also relied the judgment State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 75 of 92 passed by Hon'ble High Court of Delhi in Crl. Appeal no. 252/2016 decided on 13.11.2018 titled as Amardeep Kujur Vs State. The said appeal was also arising out of a conviction passed by the learned POCSO Court u/s 6 of the Act. Hon'ble High Court of Delhi outlined duty of the court in paragraph 34 to 38 as follows :
34. The task, before this Court in the present case is, therefore, only to determine whether, on the facts of the case and the evidence available on record, the Trial Court was justified in convicting the appellant under Section 6 of the POCSO Act, and sentencing him therefor.
35. Though it often goes unrecognised, it remains a somewhat paradoxical truism that a Court, adjudicating on an alleged criminal offence, and the culpability, or otherwise, of the person accused of having committed the said offence, never really ascertains whether, in fact, the accused is, or is not, guilty, irrespective of how the court may choose to word its verdict. All that the court can do and all that it does is State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 76 of 92 to arrive at the conclusion to which the evidence, available before it, points, and to proceed, on the basis of such conclusion, to pronounce on the innocence, or guilt, of the accused, and to award sentence commensurate therewith.
36. The duty of the court is not, therefore, to determine, for itself far less to satisfy itself whether the accused had committed the crime or not. The duty of the court is to assimilate, analyse and evaluate the evidence available before it, and indicate the conclusion to which such evidence necessarily points. That conclusion, and that conclusion alone, has to guide the decision of the court that follows. Personal perceptions and predilections, regarding the accused, and his involvement, or otherwise, in the perpetration of the offence, have necessarily to take a backseat, if the rule of law is to be allowed to prevail.
37. Penological peregrinations, on the jurisprudential pathway of crime and punishment, travel the entire distance between deterrence and just desserts. On the ultimate goal of punishment and sentencing, State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 77 of 92 the judicial debate has yet to reach its terminus ad quem. The rising incidences of crime, as well as the increasing brutality of crimes as witnessed in recent times, have persuaded courts, lately, to somewhat "read down" the once sanctified theory that it is better to acquit ten guilty persons, than to convict one innocent. The choice, now, is regarded as Hobson's; and rightly the principle, metamorphosed as on date, is that it is as impermissible, to acquit one guilty person, as it is, to convict, ten innocent persons.
38. One principle which has, however, stood the test of time, is that the enormity of the crime cannot be permitted to influence the mind of the court, while evaluating the evidence before it. The court cannot permit itself to be carried away by the theory that allowing serious crimes to go unpunished, is potentially likely to embolden "prospective" criminals, or increase the crime graph in society. As a sociological fact, this may undoubtedly be true. If the commission of ghastly crimes does not result in the conviction of the State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 78 of 92 criminal, the signal that is sent, to likeminded psychosocial deviants, may possibly be adverse to allround societal interest. While such a consequence is not one that any court, on whom the duty to ensure the propagation of a just and equitable social order is cast, can afford to overlook, that cannot permit any authority, which acts judicially, or even quasi judicially, to embark on a quest to find, as it were, the "neck which best fits the noose". Conviction can follow only on a finding of guilt, and a finding of guilt can be arrived at only if the evidence, clearly and unambiguously, points towards it, and nowhere else. The fact that the accused, before it, is the person who may be most likely to have committed the crime, of which the court is sensitised in any particular case, can never be the basis to return a finding of conviction against her, or him. If such a finding has been returned, by a lower judicial authority, it is the bounden duty of the appellate court to reverse it. If, as a consequence, the one person, who was found guilty of having committed the crime, and State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 79 of 92 sentenced therefor, is set free, resulting in the offence going unpunished, so be it. That is the command of the law, and that alone can be the command of the law in a society which purports to be governed by the "rule" thereof. The court cannot, at that point of time, allow itself to be swayed by the possible consequences, sociologically speaking, of its decision. The conviction of the person who was found guilty of committing the crime, and the sentencing of such person, may, undoubtedly act as a deterrent, to others predisposed towards committing such offences; equally, the acquittal of such person, or the reversal of conviction, might "embolden" such possible offenders. That is entirely irrelevant.
110. From the judgments and discussion aforementioned, it is clear that a conviction can be based on the sole testimony of child victim. However, the court has to see that the said testimony is free from possibility of tutoring and is not contradicted by the medical, forensic and circumstantial evidence. Further the mind of State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 80 of 92 court should not be influenced just because the crime alleged in case is considered abhorrent and ghastly.
111. It is rightly submitted by learned Sh. Pujari that the accused is not supposed to prove his defence beyond reasonable doubt. It is sufficient for the accused to rebut a presumption of guilt against him by preponderance of probability. Accused can very well show from the testimony of prosecution witnesses, and the documents brought on record by prosecution that the case against him is false, manipulated and the incriminating evidences have been planted against him. Leading of defence evidence by accused is not necessary as the improbabilities of the prosecution case can always be brought to surface by the crossexamination of the prosecution witnesses and referring to the natural human behaviour and conduct of witnesses.
112. Section 3, interpretation clause of the Indian Evidence Act provides following meaning of "Proved"
"Disproved" and "Not proved": "Proved" A fact is said to be proved when, after considering the matters before it, the Court either believes State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 81 of 92 it to exit, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved" A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
"Not proved" A fact is said not to be proved when it is neither proved nor disproved.
113. Bare reading of the definition of word "Disproved", as defined under Indian Evidence Act suggest that the accused can rebut the presumption of guilt against him, if he is able to show the court that the circumstances and evidence which render the court to believe that the fact alleged against accused could not exist or their non existence is so probable that a prudent man ought, under the circumstances of the case would act upon the supposition that they did not exist.
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 82 of 92
114. Now coming back to the facts and circumstances of the present case, the court is of the opinion that the testimony of child witness is not corroborated with medical and forensic evidence. According to testimony of child victim PW3, during the alleged incidence blood came out from his anus. Further according to his mother PW4 and his father PW5 also blood oozed out from victim's posterior and smeared on victim's clothes. According to PW4 and PW5 those clothes were seized by police. However, no blood of the victim was detected on his clothes by FSL examination. IO also stated that he did not see any blood on the clothes or on the body of child victim. Thus, the testimony of PW3, PW4 and PW 5 that child victim bleeded during or after the incidence and that the blood smeared on his clothes is contradicted by the examination of his clothes.
115. PW2 Dr. Inderpal Yadav admitted that during the examination of child victim there was no visible external injury either on the victim or on the accused. He stated "During such external examination, as was conducted in my presence, we saw the body before us thoroughly State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 83 of 92 including the buttocks. It is correct that normally in medical practice when a young boy 4 to 6 years complains of sodomy there are visible external signs such as swelling on the anus, fissures and tears. It is correct that in the present case no such injuries were visible at the time of examination." This witness further stated that there was no external bleeding recorded in MLC Ex.PW2/A of the child victim.
116. The child victim in the present case was aged 05 years only. Accused is alleged to be a young adult male with normal genitalia. PW2 an expert doctor has stated that normally sodomy with such a child would result into visible external signs such as swelling on the anus, fissure and tears etc. There is no such external sign upon the body of child victim. No bleeding was recorded. PW2 categorically stated that the part where the injury is complained of is specifically looked at. Even after such specific examination by expert doctor, no external visible injury upon the child victim was detected. Similarly, no injury was detected upon the private part of accused.
117. So far as, the internal injury detected during State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 84 of 92 proctoscopic examination of child victim is concerned, PW13 stated in his crossexamination "It is correct that nature of injures visible can also occur when a child is constipated." Apart from this learned Sh. Pujari stated that in his crossexamination child victim has stated that during his medical examination he felt pain. PW13 did not write anywhere that he used paediatric proctoscope. He argues that child might have felt pain during the use of regular proctoscope by PW13. He submits that PW13 was unable to tell the size difference between a regular proctoscope and paediatric proctoscope and internal injury could have been caused by use of regular proctoscope.
118. The court has already dealt with the high possibility of falsely planting the case property i.e. the hairs of the child victim and of accused in the case.
119. According to child victim he could not shout, at the time when accused inserted his penis in the anus of victim, because his mouth was gagged by accused. Victim was in the grip of accused. Nobody was coming for victim's rescue. Though discharge of semen by accused is State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 85 of 92 not necessary for the offence, however the court finds some substance in the submissions of learned Sh. Pujari that if the accused intended to satisfy his carnal lust and the hapless victim was in his control and grip, he could have satisfied the same by discharging his semen but no semen was found either in the room, or in the blanket seized by police or in the clothes of child victim or accused or on any body part of either of them.
120. The testimony of child witness therefore remains uncorroborated in the medical/scientific evidence.
121. Now coming to the question of possibility of tutoring of child victim learned Sh. Pujari submitted that the testimony of child witness reflects that he was under
influence of his parents and attempted to give replies, which would have been suggested by his father or mother.
122. Learned Sh. Pujari referred to the statement of the child victim u/s 164 Cr.PC. The statement was recorded on 05.02.2016. After verifying the capacity of child, learned MM recorded following statement of child victim "Statement of boy S/o State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 86 of 92 Deva ne mera muh daba diya aur apna susu wala meri latrine wali jagah mei daal diya. Mujhe dard hua aur khoon bhi nikla."
123. Learned Sh. Pujari submitted that no question about the incidence was asked from the victim but he started his statement and completed it as if he had been already made to rote his statement.
124. The court would have ignored the submissions of learned Sh. Pujari as the incidence might have impacted the child so much as he would make a two line narration to anybody and no adverse inference could have been drawn, if he had narrated the incidence even without asking anything from him, but if the later testimony of the child victim is seen, the possibility of tutoring by parents cannot be ruled out.
125. As already observed in earlier discussion, in his testimony dated 22.10.2016, child victim admitted that the accused and victim's father quarreled together on the issue of parking of his father's rickshaw. When the witnesses were recalled in compliance of the orders of Hon'ble High Court of Delhi, PW4 and PW5 initially State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 87 of 92 attempted to deny any quarrel or altercation with the accused. However, on further crossexamination PW4 admitted that she had once slapped the accused and her relations with accused were strained. PW5 however denied any strained or tense relations with accused. Child victim PW3, on his recall for crossexamination, was asked the question whether there was any quarrel of his parents with accused. He answered the question in negative. Thereafter, when he was reminded that in his last statement he had narrated that his father and accused had a quarrel, he admitted the same.
126. In the facts and circumstances, it appears to be rightly submitted by learned Amicus Curiae that after the child victim disclosed about the quarrel in his earlier statement dated 22.10.2016, he might have been tutored by his parents and for this reason he initially denied the quarrel in further crossexamination during retrial of case to avoid any possibility of imputation of motive. This stand of child victim was in conformity with the testimonies of his parents who also initially attempted to deny any quarrel or strained relations with accused. This State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 88 of 92 prima facie does not rule out the possibility of tutoring of the witness. If the child victim was tutored for his cross examination in retrial to tune with the testimony of his parents, arguments of learned Sh. Pujari that there is possibility of his tutoring on material aspects, cannot be ignored.
127. In view of the aforesaid discussion, this court is of the opinion that the uncorroborated testimony of child victim is not safe to write conviction of accused in the present case.
128. The court is further of the opinion that the accused has successfully "Disproved" the case against him and has therefore rebutted the presumption u/s 29 POCSO Act for following reasons:
1) It prima facie appears that the incriminating material i.e. hair and blanket were planted.
2) No blood stains, semen, external injury was detected on the body of the victim or accused.
3) No blood stains or semen were detected on clothes of victim or on of accused or on the spot.
4) There was previous enmity and/or strained State Vs DK FIR no. 85/16 PS - Keshav Puram Page no. 89 of 92 relations of the parents of child victim with accused. Father of the victim used to park his rickshaw outside the accused's house, hence he might be interested in the particular outcome of the case.
5) There is high possibility of integrity of place of offence being compromised as PW10 in his cross examination stated "It cannot be ruled out that the hair of victim could have been placed in the room by the mother if they had gone down".
6) Unnatural conduct of mother of child victim in allowing the child to go alongwith accused despite previous strained relation.
7) The conduct of accused in not fleeing away from the spot.
8) Eagerness of the investigators to get recorded extra judicial confession of accused on his MLC.
9) Admission of PW13 that the internal injuries found upon the child victim could have been result of the constipation.
10) Prejudicial investigation against accused as discussed above.
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 90 of 92
11) Non examination of any independent witness despite the place of occurrence being inhabited by many residents and all rooms being adjacent to each other separated by only a common wall.
12) No explanation as to where the other occupants of the room of accused (maternal aunt and family) were on the date of incidence.
CONCLUSION:
129. In the aforesaid facts and circumstances, this court is of the opinion that considering the evidence and material in totality a reasonably prudent man ought, under the circumstances of this case would not consider the allegations as projected by prosecution to be true. The accused has thus successfully come out of the rigors of section 29 POCSO Act and has rebutted the prosecution case against him.
130. Accused is thus acquitted of the charges levelled against him. He be released forthwith if his custody is not required in any other case subject to furnishing personal bond and surety bond in the sum of Rs.20,000/ u/s 437A Cr.PC.
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 91 of 92
131. Articles seized vide seizure memos and personal search memos of accused be released to him against acknowledgment.
132. Case property be confiscated to State and the same may be disposed off as per rules and procedures after the lapse of period of filing of appeal.
133. Before parting with this case this court places its deep appreciation for learned Amicus Curiae Sh. Adit S. Pujari for his efforts, his associate learned Ms. Surabhi Dhar, Advocate who was always ready to assist her senior and court alongwith the file downloaded in her laptop. Court also has deep appreciation for learned Sh. P.K. Ranga, Addl. PP for State for his extreme fairness and able assistance on facts and law.
134. File be consigned to record room.
Digitally Announced in the open court signed by AJAY PANDEY AJAY on the 19th day of September, 2019 PANDEY Date:
2019.09.19 14:43:16 -0500
(Ajay Pandey) Additional Sessions Judge (NW) Rohini Court/Delhi.
Note: The names and other particulars of victim, his parents, accused and spot of occurrence have been concealed from the judgment to not to disclose the identity of either of them. Rest of the judgment is true copy.
State Vs DK
FIR no. 85/16
PS - Keshav Puram Page no. 92 of 92