Delhi District Court
State vs Prakash Chandra Pandey on 24 November, 2016
IN THE COURT OF SHRI SANJAY SHARMA-I
ADDL. SESSIONS JUDGE - 01 (NORTH-EAST)
KARKARDOOMA COURTS : DELHI
SC No. 44980/2015
FIR No. 1363/2014
PS Khajuri Khas
Under Section 376 IPC & 6 POCSO Act
State Versus Prakash Chandra Pandey
S/o late Ramesh Chandra Pandey
R/o 3/50, Bihari Pur Vistar, Delhi-110094
Date of institution of case : 12.01.2015
Date on which judgment reserved : 11.11.2016
Date of judgment pronounced : 24.11.2016
JUDGMENT:
1. On 11.12.2014, complainant Smt. Anita went to the PS and lodged a complaint that she was residing with her family at H.No.29, Gali No.3, Bihari Pur Extension, Delhi. About one month ago, she had started the tuition of her daughter, the victim, a minor girl aged about 7 years with Prakash Chandra Pandey, residing in her street. On that day i.e. 11.12.2014, the victim told her that on 29.11.2014, at about 5.30pm she had gone for her tuitions and at about 4.45pm, when she had gone for urination after taking permission from her tutor Prakash, he inserted his finger into her urinating organ and threatened that if she disclosed his acts to anyone, he would punish her. On the basis of above complaint, the present case was registered for the offences punishable under Sections 376 IPC and 6 of the POCSO Act.
2. Thereafter, the victim was produced before the Ld. MM where her statement under Section 164 CrPC was recorded. The victim was got medically examined before the doctor. Accused Prakash Chandra Pandey was arrested. He was also subjected to medical examination. After completion of investigation, chargesheet was filed against the accused for the offences punishable under Section 376 IPC and Section SC No.44980/15 - FIR No.1363/2014 State Vs. Prakash Chandra Pandey page 1 of 7 6 of the POCSO Act. Copies were supplied to the accused.
3. After hearing arguments on charge, Ld. Predecessor framed a charge against the accused for the said offences, dated 18.02.2015, to which he pleaded not guilty and claimed trial.
4. In order to establish its case, the prosecution examined nine witnesses in all.
• PW-1 HC Sukhbir Singh was the duty officer. He proved his endorsement on the rukka as Ex.PW1/A and copy of the FIR as Ex.PW1/B. • PW-2 was the victim herself. She deposed about the incident.
• PW-3 Smt. Preeti Pandey was a neighbour of the victim. She deposed that she knew the accused being resident of her gali and did not know anything about this case. She turned hostile and was cross-examined by the Ld. Addl. PP.
• PW-4 Smt. Anita was the mother of the victim and complainant of this case. She deposed about the incident as told to her by the victim and lodging of the complaint with the police.
• PW-5 Sh. Aswani Sharma was the Principal of the school where the victim was studying. He proved the school records of the victim as Ex.PW5/A to Ex.PW5/E. As per their record the date of birth of the victim was 13.08.2007.
• PW-6 HC Sunil had collected the rukka and the copy of the FIR from the duty officer and handed over the same to the IO at the spot.
• PW-7 Ct. Jagpal was a witness to the arrest of the accused and had taken him to the hospital for his medical examination.
• PW-8 SI Veena was the IO and she deposed about the investigation of this case.
• PW-9 Dr. Neelu Singh, proved the MLC of the victim as Ex.PW9/A. SC No.44980/15 - FIR No.1363/2014 State Vs. Prakash Chandra Pandey page 2 of 7
5. Statement of the accused was recorded under Section 313 CrPC and the incriminating evidence was put to him which he denied and claimed that he has been falsely implicated in this case. He took the defence that the mother of the victim had not paid him tuition fee of the victim for the last four months from the date of incident and her husband (father of the victim) had some alterations with his mother on that issue and he had threatened his mother to face dire consequences and thereafter, the case was got registered by the father of the victim, using her.
6. In order to prove his innocence, the accused examined two witnesses in his defence i.e. DW-1 Sh. P.S. Bhandari, grandfather of a child who also used to take tuitions from the accused and DW-2 Smt. Laxmi Pandey, mother of the accused.
7. I have heard Sh. Sukhbeer Singh - Ld. Addl. PP for the State, assisted by Ms. Geeta Bharti - Ld. Counsel for the complainant & Ms. Sandhya Gupta, Ld. Counsel for the accused and have gone through the records.
8. It was argued by the Ld. Counsel for the accused that there had been an inordinate delay of 12 days in lodging of the FIR. Countering the arguments, Ld. Addl. PP submitted that the victim was avoiding the tuition classes after the incident and when she was persistently questioned by her parents, only then she revealed the incident and thereafter, the FIR was lodged and hence, the delay.
9. The present FIR was lodged by the mother of the victim, i.e. PW-4. In the complaint on which the present FIR was recorded, Ex.PW4/A, she simply stated that the victim had been attending tuition classes with the accused about one month before that date and on that day i.e. 11.12.2014, the victim told her about the incident. It is not stated in the said complaint that the victim was not attending the tuition classes or was avoiding them and upon asking the reason for her avoidance, she disclosed about the incident. In her testimony before the Court as PW-4, the victim's mother deposed that on 29.11.2014 at about 05.45pm, the victim after returning to the house from her tuition informed her about the said SC No.44980/15 - FIR No.1363/2014 State Vs. Prakash Chandra Pandey page 3 of 7 incident. It means that the victim informed her about the incident on the same day when it took place. If that is so, why the FIR was lodged after 12 days? However, in her cross-examination this witness deposed that the victim told her about the incident after two-three days. Even if that is accepted, then there is a delay of 10 days which remains unexplained.
10. It is only in the MLC Ex.PW9/A that it is recorded in the history that "the victim informed the alleged history to her parents on 11.12.2014 at about 06.00pm. She had repeatedly avoided to go to tuition after this incident which provoked her parents to find the cause which was revealed by her". The victim was about 7 years of age at the time of alleged incident. The MLC has been proved by PW-9, but she was not the doctor concerned and had simply identified the handwriting and signatures of the doctor who had prepared the MLC, since the concerned doctor had left the services of the hospital and her present whereabouts were not available in the hospital records. A perusal of the said history, as recorded in the MLC, would show that the history was given by the victim's mother, rather than the victim herself, who was accompanying the victim at that time. However, the fact that the victim was avoiding tuitions after the incident, has not been mentioned by PW-4 in her complaint to the police as noted hereinabove, nor she deposed so before this Court.
11. In the cross-examination, PW-4 further admitted that the complaint Ex.PW4/A was not in her handwriting but that of her husband. It would show that her husband was with her when she went to the police station to lodge the report. It would further mean that her husband also knew about the incident, but he was neither cited nor examined as a witness in this case. There appears to be no apparent reason why the father could not have lodged the FIR. Thus, the fact as to when the victim informed her parents about the incident is totally uncertain, but it is clear that there is an unexplained and inordinate delay in lodging of the FIR, which raises suspicion regarding the incident.
12. The defence raised by the accused was that he had been giving tuitions to the SC No.44980/15 - FIR No.1363/2014 State Vs. Prakash Chandra Pandey page 4 of 7 victim for the last four months prior to the incident but her tuition fee remained unpaid and when it was demanded, a quarrel took place and he was falsely implicated in this case. To prove this fact, he examined his mother DW-2 who deposed that she, on behalf of the accused, demanded the tuition fee from the victim's mother saying that she was a cancer patient and the fee was the only source of their income, but she avoided payment and one day took up a quarrel with her. In her cross-examination it is recorded that many children were taking tuitions from the accused. DW-1 examined by the accused also deposed that his grand-daughter used to take tuitions from the accused but she made no complaint against the accused and even deposed that the accused was having a good character. The defence so raised, appears to be plausible.
13. The victim in this case has maintained her version throughout. However, she was also susceptible regarding the date of incident. Her first statement recorded was that under Section 161 CrPC in question-answer form on 11.12.2014 itself when the FIR was registered. In that statement, she gave the date of incident as 29.11.2014. However, when on the next date i.e. on 12.12.2014, her statement was recorded under Section 164 CrPC, she failed to mention the date. Similarly, in her deposition before the Court she could not remember the date. A child who could not remember the date after a day of revealing it to her mother cannot be expected to remember it after 10-12 days of the incident.
14. It is also observed that the victim has given identical statement at every stage whether under Section 161 or 164 of the CrPC or in her deposition before the Court, which is quite surprising for a child of 7 years of age. It can only be possible when a child of such a tender age is tutored. In her cross-examination, she deposed that the accused had not committed any such act before the incident and there were five other students who were taking tuitions when the alleged incident was committed by the accused but explained that they were on the terrace and she had come downstairs. She also deposed in the cross-examination that she told this incident first to her elder brother, who was then studying in class 4 and SC No.44980/15 - FIR No.1363/2014 State Vs. Prakash Chandra Pandey page 5 of 7 then to her mother, on reaching home. It again means that the victim had revealed about the incident to her mother on the same day. If that is so, why there was a delay in lodging of the FIR. No explanation for it has come on record.
15. In State of UP Vs. Ashok Dixit and another, 2000 SCC (Crl.) 579, it was observed by the Hon'ble Apex Court:
"Evidence of a child witness must be evaluated carefully as a child may be swayed by what others tell him and is an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on"
16. There had been no corroboration regarding the incident in this case. According to the victim, five other students were taking tuitions with her at that time but none of the other students was examined during investigation to verify if the victim had gone in between the class to attend the call of nature and if the accused also followed her or whether the victim ever told any of them about the incident, either on that day or subsequently? In my opinion that would have been the best corroborating and independent evidence.
17. The Ld. Addl. PP laid much emphasis on the MLC of the victim proved by PW-9, according to which the hymen of the victim was found torn with congestion around the area of the hymen. The doctor deposed that since the vagina admitted little finger and hymen was found to be congested, therefore, she could say in her opinion that it was a fresh tear. However, she also deposed that since she was not present at the time of the medical examination of the victim, therefore, she could not say if the tear was old or fresh. Thus, it was only her hypothetical opinion. In fact, the medical examination of the victim was conducted after 13 days of the incident, if the date of incident is accepted to be 29.11.2014. Any injury to a hymen is a normal injury which is generally healed within seven days. The healing process in small children is rather fast and therefore, the opinion of the doctor that the tear was fresh cannot be accepted. Even otherwise, it is a settled law that tear of the hymen is no proof of rape in the absence of any other evidence. Similarly, the congestion around the hymen area can also be for varied reasons and more SC No.44980/15 - FIR No.1363/2014 State Vs. Prakash Chandra Pandey page 6 of 7 particularly because of lack of hygiene. Furthermore, there can be many other reasons for the tear of the hymen particularly in small children because of playing, jumping, cycling etc. Hence, this piece of evidence alone is not sufficient to prove the guilt of the accused.
18. The gist of the above discussion would show that the date of incident is not confirmed and if it is accepted as per the prosecution case, then there is an inordinate delay in lodging of the FIR, which has remained unexplained.
19. In Krishnan Vs. State AIR 2003 Supreme Court 2978, it was observed that "the fact that the first information report was given almost immediately, rules out any possibility of deliberation to falsely implicate any person". In Vijay Singh Vs. State of Himachal Pradesh 1995 Crl.J 881 (HP) DV, it was held that "when the delay is not properly explained, it renders the case against the accused unreliable and the accused is entitled to be acquitted". So is there in present case. The delay has remained unexplained, the testimony and the statement of the victim appears to be tutored being a parrot like statements and the medical evidence is unreliable. Hence, in the set of facts and circumstances, explained hereinabove, I am of the opinion that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused Prakash Chandra Pandey is hereby acquitted of the offences punishable under Section 376 IPC and alternatively under Section 6 of the POCSO Act. He is set at liberty. His bail bonds stand discharged.
20. In terms of Section 437-A CrPC the accused is directed to furnish a personal bond in the sum of Rs.10000/- with one surety in the like amount. File be consigned to the Record Room after completion of due formalities.
PRONOUNCED IN OPEN COURT ON 24th day of November 2016 (Sanjay Sharma-I) Addl. Sessions Judge-01 (NE) Karkardooma Courts, Delhi SC No.44980/15 - FIR No.1363/2014 State Vs. Prakash Chandra Pandey page 7 of 7