Delhi District Court
State vs Dharmender on 16 February, 2010
1
IN THE COURT OF DR. SUDHIR KUMAR JAIN: ASJ-01 (OUTER), ROHINI : DELHI
FIR No: 374/07
PS: S.P. Badli
Under Section: 376 (2)(f)/452 IPC
Sessions Case No: 108/2007
Date of Institution: 29.08.2007
Date of Decision: 16.02.2010
State
Versus
Dharmender,
S/o Rama Nand,
R/o 365, B Block,
Sector-18, Suraj Park,
Delhi.
... Accused
JUDGMENT
Vinod Kumar was residing at jhuggi no. 662, B Block, JJ Camp, Suraj Park, Khadda Basti, Sector-18 Rohini. He was working in a steel factory situated at Badli Industrial Area and his duty hours were from 9 pm to 9 am. Baby 'S' is the daughter of Vinod Kumar. Wife of Vinod Kumar along with her son had gone to native village prior to 1.5.2007. Sudha and Murti Devi sisters in law of Vinod Kumar were also residing in the same locality. Vinod Kumar as and when used to go for duty, he left Baby 'S' at the residence of Sudha. Vinod Kumar had left for the job on 1.5.2007 at about 9 pm. Baby 'S' was present inside the jhuggi as the Sudha had not come to take Baby S along with her. Baby 'S' had 2 bolted the door of the jhuggi from inside and thereafter Vinod Kumar left for his work place. Murti Devi and Sudha in the intervening night of 1/2.5.2007 at about 12.30 am had gone to the jhuggi of Vinod Kumar to take Baby 'S'. Dharmender met them near jhuggi and informed them that Baby 'S' was sleeping in jhuggi and he would be taking care of her. Murti Devi and Sudha on the assurance of Dharmender came back to their jhuggies.
1. Dharmender in the night entered inside the jhuggi of Vinod Kumar after breaking the door. Baby 'S' was sleeping inside the jhuggi on a takht (bed). Dharmender bite on the cheeks, forehead and nose and also put his finger on the mouth of Baby 'S'. Dharamender removed underwear of the Baby 'S' and put his genital organ inside the genital organ of Baby 'S'. The blood was started to ooz out form the private parts of Baby S. Dharamender ran away from the jhuggi.
2. Janak Dulari, residing near the jhuggi of Vinod Yadav, at about 8 am noticed that the door of the jhuggi of Vinod Yadadv was partly broken. Janak Dulari went inside the jhuggi and found Baby S was lying on the bed and at that time Baby S was in naked condition. The information was immediately given to Murti Devi and Sudha. Murti Devi and Sudha reached at the jhuggi of Vinod Kumar. They found that Baby 'S' was lying on a takht (bed) inside the jhuggi and was unconscious. 3 There was no undergarment on the body of Baby S and that time her wearings with blood stains were lying near her. Murti Devi and Sudha checked and Baby 'S' and noticed that sexual intercourse was committed with Baby 'S'. Baby 'S' also informed them that the Dharmender had committed sexual intercourse with her. Vinod Yadav was also called and reached at his jhuggi. The blood was also noticed on the bed (takht).
3. ASI Jai Parkash along with Ct. Suresh after receipt of DD no.18B reached at the spot and by that time, Baby 'S' was already removed to BSA Hospital by PCR officials. ASI Anita Sharma along with other police officials also reached at the spot and left for BSA Hospital along with Ct. Suresh. Baby 'S' (hereinafter referred to as "
prosecutrix") was medically examined and also sent for gynaecological examination. The Crime Team was also called at the spot. The photographs of the spot were taken. Exhibits were collected. ASI Anita Sharma (hereinafter referred to as " Investigating Officer" ) recorded the statement of Vinod Kumar. Rukka was prepared and sent to Police Station for registration of case. FIR bearing no.374/07 u/s 376/452 IPC was got registered at PS S.P. Badli. Dharmender was apprehended from DDA Market, Sector-16 on the pointing out of Vinod Kumar Yadav.
Dharmender was arrested (hereinafter referred to as " the accused").4
Disclosure statement of the accused was recorded. The accused was sent for medical examination. The statement of prosecutrix u/s 164 Cr.P.C. was recorded. The school record of the prosecutrix was also called. The accused after completion of investigation was charge sheeted for the offences punishable u/s 376 (2) (f)/452 IPC and sent to the court of concerned Metropolitan Magistrate.
4. The accused was supplied with the copies of charge sheet and annexed documents in compliance with section 207 Cr.P.C. Vide order dated 25.8.2007, the case was committed to the Court of Sessions and assigned to this court for trial in accordance with law.
5. Vide order dated 20.11.2007, the charge for the offences punishable u/s 457/376 (2) (f)/506 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
6. The prosecution examined Murti Devi as PW-1; prosecutrix as PW-2; HC Anup Singh as PW-3; Sudha as PW-4; Ct. Kishan Chand as PW-5; Ct. Suresh as PW-6; Vinod Kumar, father of prosecutrix as PW-7; ASI Jai Parkash as PW-8; Hari Mohan Jha as PW-9; Janak Dulari as PW-10; Ct. Dalbir Singh as PW-11 ; Dr. Raj Mohan Trivedi, CMO, BSA Hospital as PW-12; Dr. Dilip Kumar Dass, as PW-13; Balraj Bhardwaj, Principal, Nigam Co-educational Vidyalayla, Sector-18, Rohini as PW- 14; Dr. Mamta, S.R. Gynae, BSA Hospital as PW-15; Ms. Barkha 5 Gupta, ASJ, Rohini as PW-16; Investigating Officer ASI Anita Sharma as PW-17; Ms. Anita Chhari, Senior Scientific Officer, FSL, Rohini as PW-18; and HC Chander Mohan as PW-19.
PW-2 is the prosecutrix. PW-7 Vinod Kumar Yadav is the father of the prosecutrix. PW-1 Murti Devi and PW-4 Sudha used to take care of PW-2 prosecutrix in the absence of her mother. PW-3 recorded the FIR bearing no.374/07 on the basis of rukka produced by Ct. Suresh and made endorsement on rukka. PW-5 Ct. Kishan Chand deposited the exhibits to FSL, Rohini vide road certificate No.215/21. PW-6 Ct. Suresh and PW-8 ASI Jai Parkash after reciept of DD no.18B went to the jhuggi of Vinod Yadav bearing no.662, Khadda Basti, Suraj Park, Badli Industrial Area where they conducted initial investigation. PW-6 Ct. Suresh also went to Police Station for the registration of the case. PW-9 Hari Mohan Jha went to the work place of PW-7 Vinod Kumar to inform about the incident. PW-10 Janak Dulari went to the jhuggi of PW-7 Vinod Kumar on 2.5.2007 and noticed that the door of the jhuggi was partly broken. Plw-11 Ct. Dalbir Singh took the photographs of the spot from different angles on the instructions of Investigating Officer ASI Anita Sharma. PW-12 Dr. Raj Mohan Trivedi medically examined prosecutrix and referred her to Senior Resident (O&G) for further examination and management of sexual abuse. PW-13 medically examined the accused, 6 took blood sample, and seized the under garment of the accused. PW- 14 Balraj Bhardwaj produced the school record of the prosecutrix. PW- 15 Dr. Mamta, S.R. Gynae, BSA Hospital deposed about the gynaelogical report/opinion given by Dr. Neelam Kumari in respect of the prosecutrix. PW-16 Ms. Barkha Gupta, then Metropolitan Magistrate recorded the statement of prosecutrix u/s 164 Cr.P.C. on 11.7.2007. PW-17 ASI Anita Sharma, the Investigating Officer, conducted the investigation. PW-18 Anita Chhari examined the exhibits collected during the investigation. PW-19 HC Chander Mohan was entrusted with the case property/exhibits collected during the investigation.
7. The prosecution proved copy of FIR bearing no.374/07 as ExPW 3/A; endorsement made by PW-3 HC Anup Singh as ExPW 3/B; arrest memo of accused as ExPW 6/A, personal search memo as ExPW 6/B; seizure memos of exhibits collected by the concerned doctor after medical examination of accused as ExPW 6/C and ExPW 6/D; complaint made by PW-7 Vinod Kumar as ExPW 7/A; Copy of DD no.18B as ExPW 8/A; Negatives as ExPW 11/A1 to ExPW 11/A12 and positives as ExPW 11/B1 to ExPW 11/B20; MLC of prosecutrix as ExPW 12/A; MLC of accused as ExPW 13/A; school record of prosecutrix as ExPW 14/A to ExPW 14/C; the application filed by Investigating Officer for recording of statement u/s 164 Cr.P.C. as ExPW 7 16/A; statement of prosecutrix u/s 164 Cr.P.C. as ExPW 16/B; certificate of correctness as ExPW 16/C; application filed by the Investigating Officer for supply of carbon copy of statement u/s 164 Cr.P.C. as ExPW 16/D; rukka as ExPW 17/A; site plan as ExPW 17/B; seizure memo of exhibits collected from the spot as ExPW17/C; disclosure statement of the accused as ExPW 17/D; pointing out memo of the place of occurrence prepared at the instance of accused as ExPW 17/E; FSL Reports as ExPW 17/G and ExPW 17/H; the relevant entries made by PW-19 HC Chander Mohan being MHC(M) in Register no.19 and copies of road certificate as ExPW 19/A to ExPW 19/E. The prosecution evidence was closed vide order dated 29.1.2010.
8. The statement of accused u/s 313 Cr.P.C. was recorded wherein the accused pleaded innocence and denied the incriminating evidence. The accused stated that he never entered inside the jhuggi of Vinod Kumar and due to previous enmity with Vindo Kumar he was implicated in the case. The accused preferred not to lead defence evidence.
9. Shri Atul Kumar Gupta, CPP for the State and Ms. Sadhna Bhatia, Amicus Curie heard. Record perused.
10. Section 375 IPC defines the rape. It provides that a man is said to commit rape who has sexual intercourse with a woman under 8 circumstances as described in section itself. Section 375 IPC reads as under :--
375.Rape -A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :--
First -Against her will.
Secondly --Without her consent.
Thirdly -With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly -With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly -With or without her consent, when she is under sixteen years of age.
Explanation. --Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception -Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.9
11. Section 376 IPC prescribed punishment for rape. As per Section 376 (2)(f) IPC whoever commits the rape on a woman when she is under 12 years of age shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. The court for "adequate and special reasons" to be mentioned in the judgment may impose sentence of imprisonment for a term of less than ten years.
12. Section 457 IPC deals with the lurking house-trespass or house- breaking by night in order to commit offence punishable with imprisonment. Section 457 reads as under :--
Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
13. Section 506 IPC deals with punishment for criminal intimidation. Section 506 IPC reads as under :--
506. Punishment for criminal intimidation:--
Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or 10 with both;
If threat be to cause death or grievous hurt, etc. -- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment either description for a term which may extend to seven years, or with fine, or with both.
14. In the adversarial system, every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt that all the ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply. There is no burden laid on the accused to prove his innocence and it is sufficient for him to raise a doubt, as to his guilt. The courts should judge the prosecution case on the basis of totality of the evidence.
15. The prosecution case is primarily resting upon the testimony of PW-2 prosecutrix who was aged about seven years at the time of incident. PW-2 supported the case of the prosecution. This court after being satisfied that the witness is able to understand the questions and can give answers recorded the deposition of PW-2 prosecutrix. PW-2 prosecutrix deposed that on the date of incident her mother had gone to 11 the native village and in the absence of her mother PW-1 Murti Devi and PW-4 Sudha used to take care her. PW-2 prosecutrix deposed that on the date of incident she was sleeping alone in her jhuggi after bolting the door from inside and she was alone in the jhuggi. Accused, correctly identified by PW-2, residing in the neighbourhood entered inside the jhuggi after breaking the door. The testimony of PW-2 reflects that accused bite on the cheeks, forehead and nose and put his finger in the mouth of prosecutrix. The accused removed his underwear and thereafter penetrated his genital organ into the vagina of PW-2 prosecutrix. PW-2 prosecutrix deposed that "Dharmender ne apni susu wali cheej meri susu wali jagah me daal di". PW-2 prosecutrix further deposed that blood had started to ooz from her private parts and she felt severe pain. The accused managed to escape from the jhuggi of PW-2 prosecutrix. PW-1 Murti Devi and PW-4 Sudha also reached at the spot.
16. The prosecution to corroborate the testimony of PW-2 prosecutrix examined PW-7 Vinod Kumar, father of PW-2 prosecutrix. PW-7 Vinod Kumar deposed that in the year 2007 he was working in the Steel Factory situated at Badli Industrial Area and his duty hours were from 9 pm to 9 am. It is reflected from the testimony of PW-7 Vinod Kumar that the wife of PW-7 Vinod Kumar had gone to native village and 12 whenever he used to go to his work place in the night then his sister in law i.e PW-4 Sudha used to take care of his daughter i.e PW-2 prosecutrix. PW-7 Vinod Kumar further deposed that on 1.5.2007 he left his house for the duty at about 9 pm and by that time, the PW-4 Sudha had not come. PW-7 Vinod Kumar further deposed that PW-2 prosecutrix had bolted the door of jhuggi from inside and thereafter he left his jhuggi. PW-7 Vinod Kumar was informed by PW-9 Hari Mohan Jha about the incident on the next day at about 8 am at his work place and thereafter he came back to his jhuggi. PW-7 noticed that his daughter PW-2 prosecutrix was lying on the takht and blood was oozing from her private parts. PW-4 Sudha was also found present. The police was called. The PW-2 prosecutrix told PW-7 Vinod Kumar that the accused Dharmender had committed "galat Kaam" i.e sexual intercourse in the night. The statement ExPW 7/A of PW-7 Vinod Kumar was also recorded. The accused was arrested at the instance of PW-7 Vinod Kumar on 2.5.2007 from DDA Market, Sector -18, Rohinit vide arrest memo ExPW 6/A and personal search memo ExPW 6/B. The prosecution also examined PW-1 Murti Devi and PW-4 Sudha to corroborate the testimony of PW-2 prosecutrix and PW-7 Vinod Kumar. PW-4 Sudha deposed that her sister Shobha, mother of PW-2 prosecutrix and wife of PW-7 Vinod Kumar, had gone to native village to 13 attend a marriage and the PW-2 prosecutrix and PW-7 Vinod Kumar stayed back at their jhuggi. PW-4 Sudha further deposed that PW-7 Vinod Kumar was working in Steel Factory situated at Badli Industrial Area and used to go for his work at about 9 pm. The testimony of PW-4 Sudha reflects that she used to take PW-2 prosecutrix from the jhuggi of PW-7 Vinod Kumar to her jhuggi in the absence of mother of PW-2 prosecutrix. PW-4 further deposed that on 1.5.2007 at about 12.30 am she along with PW-1 Murti Devi had gone to the jhuggi of PW-7 Vinod Kumar to take PW-2 prosecutrix along with them and when they reached at the jhuggi of PW-7 Vinod Kumar then accused, who was residing in the neighbourhood area, met them and informed that he would take care of PW-2 prosecutrix and PW-2 prosecutrix was sleeping inside the jhuggi after bolting the door from inside. PW-1 Murti Dev and PW-4 Sudha on the assurance of accused came back to their respective jhuggi. PW-1 Murti Devi and PW4 Sudha in the morning of 2.5.2007 informed by one lady that the PW-2 was lying unconscious in the jhuggi. Thereafter PW1 Murti Devi and PW-4 Sudha reached at the jhuggi of PW-7 Vinod Kumar and found that prosecutrix was lying on a takht inside the jhuggi and was unconscious. PW-1 Murti Devi and PW-4 Sudha also noticed that there was no underwear on the body of PW-2 prosecutrix. They also noticed that some one had committed sexual intercourse with PW-2 prosecutrix. 14 PW-1 Murti Devi and PW-4 Sudha also noticed blood on the takht where PW-2 prosecutrix was lying.
17. The prosecution examined Hari Mohan Jha as PW-9 who had gone to the work place of PW-7 Vinod Kumar to inform him about the incident and thereafter PW-7 Vinod Kumar came back at his jhuggi. The prosecution examined Janak Duari as PW-10 who was residing in the jhuggi situated near to the jhuggi of PW-7 Vinod Kumar. PW-10 Janak Dulari on 2.5.2007 at about 8 am went to the jhuggi of PW-7 and found that the door of the jhuggi was partly broken. PW-10 Janak Dulari opened the door of the jhuggi and went inside where she noticed that the prosecutrix was lying on the takhat (bed) inside the jhuggi. PW-10 Janak Dulari also noticed the blood on the mouth and ear of PW-2 prosecutrix. The blood was also noticed on the thighs of prosecutrix. PW-10 Janak Dulari found that prosecutrix was naked at that time. PW- 10 Janak Dulari went to the jhuggi of PW-9 Hari Mohan Jha.
18. The prosecutrix was aged about 7 years at the time of incident. PW-7 Vinod Kumar deposed that PW-2 prosecutrix was studying in 2nd class in MC Primary School at the time of incident. The prosecution to prove the date of birth of the prosecutrix examined Balraj Bhardwaj, Principal, Nigam Co-education Vidyalaya, Sector-18 Rohini as PW-14 who brought the school record pertaining to PW-2 prosecutrix. The 15 testimony of PW-14 reflects that the date of birth of the PW-2 prosecutrix was 12.8.1999.
19. The respective testimonies of PW-2 prosecutrix, PW-4 Sudha, PW-7 Vinod Kumar , PW-1 Murti Devi, PW-9 Hari Mohan Jha and PW- 10 Janak Dulari proved the following facts :--
i. PW-7 Vinod Kumar was residing in jhuggi bearing no.662 situated at B Block, JJ Camp, Suraj Park, Khadda Basti, Sector-18, Rohini, Delhi. PW-2 prosecutrix is the daughter of PW-7 Vinod Kumar. PW-2 prosecutrix was aged about 7 years at the time of incident.
ii. The wife of PW-7 Vinod Kumar and mother of PW-2 prosecutrix namely Shobha had gone to native village along with son to attend marriage. PW-7 Vinod Kumar and PW-2 prosecutrix stayed back in their jhuggi and did not go to native village.
iii. PW-7 Vinod Kumar was working in a Steel Factory situated at Badli Industrial Area and his duty hours were from 9 pm to 9am.
iv.PW-4 Sudha used to take care of PW-2 prosecutrix in the absence of her mother Shobha and in the night used to take PW-2 prosecutrix to her jhuggi situated in the same locality.16
v. On 1.5.2007 PW-7 Vinod Kumar had gone to his work place situated at Badli Industrial Area leaving PW-2 prosecutrix alone at the jhuggi. PW-2 bolted the door of the jhuggi from inside when PW-7 Vinod Kumar left for his work place as PW-4 Sudha by that time did not come to take the prosecutrix along with her to her jhuggi.
vi.PW-4 Sudha along with PW-1 Murti Devi in the intervening night of 01/02.05.2007 at about 12.30 am had gone to jhuggi of PW-7 Vinod Kumar Yadav to take along with them the prosecutrix and noticed that PW-2 prosecutrix was sleeping inside the jhuggi after bolting the door from inside.
vii.PW-1 Murti Devi and PW-4 Sudha also met with accused at about 12.30 am when they reached at the jhuggi of PW-7 Vinod Kumar Yadav. The accused informed them that he would take care of PW-2 prosecutrix. Thereafter PW-1 Murti Devi and PW-4 Sudha on assurance of accused had left the prosecutrix alone in the jhuggi of PW-7 Vinod Kumar Yadav.
viii.PW-2 prosecutrix was sleeping inside the jhuggi. The accused broke the door of the jhuggi and entered inside the jhuggi of PW-7 Vinod Kumar. The accused bite the 17 forehead, cheeks and nose of the PW-2 prosecutrix and put a finger on her mouth. The accused also pressed the mouth of PW2 prosecutrix.
ix.The accused removed his underwear and thereafter committed sexual intercourse with the PW-2 prosecutrix.
x. The blood was started to ooz out from the private parts of PW-2 prosecutrix. The accused ran away from the jhuggi of PW-7 Vinod Kumar.
xi.PW-10 Janak Dulari on the next day i.e on 2.5.2007 at about 8 am reached at the jhuggi of PW-7 Vinod Kumar and found that door was partly broken. PW-10 Janak Dulari also went inside the jhuggi of PW-7 Vinod Kumar and found the PW-2 prosecutrix was lying on the bed. PW-10 Janak Dulari also noticed blood on the mouth, ear and thighs of PW-2 prosecutrix and PW-2 prosecutrix was lying naked.
xii.PW-10 Janak Dulari went to the jhuggi of PW-9 Hari Mohan Jha to inform about the incident. PW-9 Hari Mohan Jha went to the work place of PW-7 Vinod Kumar situated at Badli Industrial Area for calling PW-7 Vinod Kumar. PW-7 Vinod Kumar came back to his jhuggi with PW-9 Hari Mohan Jha.18
xiii.The police came at the spot and statement of PW-7 Vinod Kumar ExPW 7/A was recorded.
20. The defence counsel argued that testimony of PW-2 prosecutrix can not relied upon to determine the guilt of accused. It is argued that PW-2 had deposed under influence of PW-7 Vinod Kumar and PW-4 Sudha who are father and maternal aunt (mausi) of the PW-2 prosecutrix; the testimony of PW-2 prosecutrix is not corroborated by any other evidence; PW-2 prosecutrix was lacking intelligence and not a competent witness for deposition. The defence counsel argued that testimony of PW-2 prosecutrix cannot be basis of conviction of the accused. the CPP argued that the accused can be convicted on basis of testimony of PW-2 prosecutrix.
21. Section 118 of the Indian Evidence Act, 1872 seeks to exclude evidence of those who may suffer from intellectual weaknesses. It reads as under :--
Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.19
22. The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease - whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness cannot be rejected per se.
The court should as a rule of prudence consider such evidence with close scrutiny. The court after being satisfied about the quality of such evidence can relied upon to record conviction.
23. In Datto Ramrao Sakhare V State of Maharashtra, 1997 (3) RCR (Criminal) 227, it was held as under : -
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 20 child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.
24. In Panchhi V State of U.P., (1998) 7 SCC 177 it was held that the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon as the rule of corroboration is of practical wisdom than of law. This proposition of law was again reasserted in State of U.P. V Ashok Dixit, (2000) 3 SCC 70.
25. In Suryanarayana V State of Karnataka, AIR 2001 SC 482 (1), it was held :--
The evidence of the child witness cannot be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of child witness.
Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made 21 the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witnesses, the Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.
26. In Nivrutti Pandurang Kokate and Ors. V State of Maharashtra, AIR 2008 SC 1460, it was observed :--
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child 22 witness.
27. The prosecution to corroborate the oral testimony of the material witness i.e PW-2 prosecutrix relied upon the scientific as well as medical evidence. the prosecution has also examined Ct. Dalbir Singh as PW-11 Ct. Dalbir Singh who took the photographs of the spot on 2.5.2007 at the instance of Investigating Officer. PW-11 proved the negatives as ExPW 11/A (1 to 12) and photographs as ExPW 11/B (1 to 20). The perusal of photographs ExPW 11/B (1 to 20) reflect that there were blood stains on the clothes worn by the PW-2 prosecutrix as well as the blood was also detected on the takht where the PW-2 was sleeping in the night. The photographs ExPW 11/B (1 to 12) corroborate the oral testimony of PW2 prosecutrix who deposed that after committal of sexual intercourse by the accused with her, the blood was started to ooz out from her private parts. PW-1 Murti Devi and PW-4 Sudha also noticed blood on the takht where PW-2 prosecutrix was sleeping. The prosecution has also examined Dr. Raj Mohan Trivedi, CMO, BSA Hospital as PW-12 who medically examined PW-2 prosecutrix vide MLC ExPW 12/A. PW-12 Dr. Raj Mohan Trivedi also found the prosecutrix conscious/oriented but was frightened. PW-12 Dr. Raj Mohan Trivedi referred the PW-2 prosecutrix to gynaecological expert for examination and management of sexual 23 abuse. PW-2 prosecutrix was examined by Dr. Neelam Kumari who had already left the hospital and the report of gynaecological examination given by Dr. Neelam Kumari was proved by PW-15 Dr. Mamta. PW-15 Dr. Mamta deposed that PW-2 prosecutrix was brought to hospital by CATS Ambulance with alleged history of sexual assault. The relevant portion of the observation after local examination made by Dr. Neelam Kumar on MLC ExPW 12/A is reproduced as under :--
Face, Garment and Local part were blood stained, face and lips were swollen. 2.5 cm abrasion of teeth bite present at nose, blood clots present in left nostril.
Bruise of size 4.4. cm present at right cheek.
Multiple bruise and abrasion on face and neck.
Multiple nail scratch mark present at face, neck and upper part of the body.
No undergarment present (left at home).
Blood stained discharge present.
Hymen ruptured and 2.5 cm laceration present at the right side of labia majora and perinium extended in mid line upto anus.
The opinion given on MLC ExPW 12/A by Dr. Neelam Kumari clearly reflects that there were blood stains on the local parts of PW-2 prosecutrix and her face and lips were found to be swollen. There was 2.5 cm abrasion of teeth bite present at nose, blood clots were present in left nostril. The bruise of 4.4 cm was also found present on the right cheek and there are multiple bruise and abrasion on face, neck and 24 nail scratches were also present on the face, neck and upper part of the body. Dr. Neelam Kumari also noticed blood stained discharge, hymen was found ruptured; and there was 2.5 cm laceration present at the right side of labia majora and perinium extended. All these facts are sufficient to constitute the sexual assault/intercourse with the PW-2 prosecutrix.
28. The statement u/s 164 Cr.P.C. ExPW 16/B of PW-2 prosecutrix was also recorded. The perusal of statement ExPW 16/B also reflects that accused entered into the jhuggi of PW-7 Vinod Kumar after breaking the door and also removed underwear of PW-2 prosecutrix and thereafter caused injuries to her private parts.
29. The accused after arrest was sent for medical examination to BJRM Hospital through Ct. Suresh. The prosecution also examined Dr. Dilip Kumar Dass as PW-13, who medically examined the accused. PW-13 Dr. Dilip Kumar Dass opined that the accused was capable to perform sexual intercourse. PW-13 Dr. Dilip Kumar Dass took the blood samples and seized the undergarment of the accused which were handed over to the Investigating Officer. PW-13 Dr. Dilip Kumar Dass also proved the MLC ExPW 13/A. The undergarment of the accused was sent to FSL, Rohini for analysis and examination. PW-18 Anita Chhari, Senior Scientific Officer, FSL, Rohini vide Reports ExPW 17/G and ExPW 17/H analyzed and examined the undergarment of the 25 accused and noticed semen on the underwear. The Reports given by PW-18 Anita Chhari also corroborated the case of the prosecution about the sexual intercourse committed by the accused coupled with the ejaculation.
30. The prosecution has also examined PW-8 ASI Jai Parkash who along with PW-6 Ct. Suresh went to the spot after receipt of DD no.18B ExPW 8/A. PW-17 Investigating Officer also reached at the spot and conducted the investigation. PW-17 Investigating Officer deposed that she prepared the rukka ExPW 17/A and sent PW-6 Ct. Suresh to the Police Station for registration of the case, arrested the accused and got recorded the statement of PW-2 prosecutrix u/s 164 Cr.P.C. The exhibits were deposited in malkhana and sent to FSL for analysis and examination. PW-17 conducted all the formalities of the investigation.
31. The testimony of PW-2 prosecutrix was recorded within one year of incident. This court before recording testimony of PW-2 prosecutrix satisfied about ability of PW-2 prosecutrix to understand questions and to give answers. The testimony of PW-2 prosecutrix is corroborated by medical and scientific evidences. The testimony of PW2 prosecutrix on close scrutiny was found reliable, credible and is not suffering from any infirmity. The testimony of PW-2 prosecutrix is natural and narrative of all facts. The testimony of PW-2 prosecutrix does not 26 appear to be under influence of PW-7 Vinod Kumar and PW-4 Sudha. PW-2 prosecutrix is not a tutored witness and is not suffering from any intellect infirmity. The testimony of PW-2 prosecutrix can be basis of conviction of accused.
32. It is well settled that in rape cases the conviction can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the Court. The victim is not treated as accomplice, but could only be characterised as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material.
33. It was held in the case Madho Ram and another V The State of U.P., AIR 1973 SC 469 as under :--
[T] the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule 27 of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
34. It was held in case Karnel Singh V State of M.P., (1995) 5 SCC 518 as under :--
A woman who is a victim of sexual assault is not an accomplice to the crime but is a victim of another person's lust and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. She is not in the category of a child witness or an accomplice and therefore the rule of prudence that her evidence must be corroborated in material particulars has no application; at the most the court may look for some evidence which lends assurance.
35. This legal proposition was also reasserted in case Dinesh @ Buddha V State of Rajasthan, AIR 2006 SC 1267 (1).
36. The respective testimonies of other PWs examined by the prosecution are consistent, cogent and narrative of all the facts and appears to be natural. There is no reason to disbelieve the testimony of any of the prosecution witnesses. The prosecution has been able to prove that the accused in the intervening night of 01/02.5.2007 entered into the jhuggi of PW-7 Vinod Kumar and committed the rape with PW-2 prosecutrix. However, there is no evidence to prove that the accused 28 has extended the threats to the PW-2 prosecutrix .
37. Accordingly the accused is convicted for the offences punishable u/s 457/376 (2)(f) IPC and acquitted for offence punishable u/s 506 IPC.
Announced in open court (Dr.Sudhir Kumar Jain) on 16.2.2010 ASJ-01 (Outer) Rohini, Delhi.