Delhi District Court
State vs . Vinod @ Litra on 30 November, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.11/2013)
Unique ID case No. 02404R0019582013
State Vs. Vinod @ Litra
FIR No. : 258/12
U/s : 376(2)(f)/511 IPC
P.S. : Bharat Nagar
State Vs. Vinod @ Litra
s/o Sh. Kartar Singh
r/o N17C/189 Jhuggi,
Patharwala Bagh,
J.J. Colony, Wazirpur,
Delhi.
Date of institution of case 17.01.2013
Date on which, judgment has been reserved 30.11.2013
Date of pronouncement of Judgment - 30.11.2013
JUDGMENT:
1 Case of the prosecution is that on 21.11.2012 at unknown time SC No.11/2013 State Vs. Vinod @ Litra Page No. 1 of 17 2 accused Vinod @ Litra attempted to commit rape upon prosecutrix G, a child aged about 3 ½ years, at his house at N17C/189 Jhuggi, Patharwala Bagh, J.J. Colony, Wazirpur, Delhi. On the fateful day victim child G (name of the victim child is mentioned in the charge sheet and the charge, however the same has not been mentioned in the judgment to protect the identity of the victim child) had gone to house of accused at N17C/189 Jhuggi, Patharwala Bagh, J.J. Colony, Wazirpur, Delhi, to play and it is alleged that accused took victim child inside his jhuggi and attempted to commit rape upon her. The victim child G, came home and informed her mother, who went to the jhuggi of accused but could not find him there. Later on father of victim child G also reached there and informed the police. On receiving information initially SI Vijay Kumar went to the spot and thereafter the investigations were taken over by W/SI Rajesh. During the course of investigations, victim child G as well as accused were got medically examined at BJRM Hospital. IO recorded statement of witnesses. After completing investigations, charge sheet was prepared and filed in the Court through SHO concerned. 2 Upon committal of this case to the court of Sessions, charge for the offence under Section 376 (2)(f)/511 IPC was framed against the accused Vinod @ Litra. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 3 In order to prove its case prosecution has examined 12 SC No.11/2013 State Vs. Vinod @ Litra Page No. 2 of 17 3 witnesses : 4 The PW1, Ms. Vandana, learned MM, had conducted the proceedings u/s.164 CrPC. She proved application moved before her for recording the statement of victim child, as Ex.PW1/A ; statement of the victim child u/s 164 Cr.P.C as Ex. PW1/B, certificate appended to the statement as Ex.PW1/C and the application of IO for supply of copies as Ex.PW1/D. 5 The PW2, HC Veer Singh, was posted as duty officer at PS Bharat Nagar at the relevant time. He proved the computerized copy of FIR, which was got registered by him through computer operator, as Ex.PW2/A and the endorsement made by him on rukka as Ex.PW2/B. The PW2 also produced the original DD register and identified handwriting and signatures of Ct. Satender, who had recorded DD No.56B, on receipt of call from Sh. Satish Kumar, father of the victim child G, regarding commission of rape upon victim child by the accused. The copy of the said DD was placed on record and proved as Ex.PW2/C. 6 The PW3 Dr, Prem Bishnoi, had conducted general medical examination of the victim child vide MLC Ex.PW3/A and referred her for gynecological examination and deposed regarding the same. He further deposed that on 22.11.2012 accused Vinod @ Litra was brought for medical SC No.11/2013 State Vs. Vinod @ Litra Page No. 3 of 17 4 examination by Ct. Puran to BJRM Hospital and was examined by Dr. Nandeep vide MLC Ex.PW3/B and then referred to Surgery Department for opinion regarding his sexual capability and was examined by Dr. Jasmeet, who opined that "on clinical examination, there is no evidence suggesting that patient cannot perform sexual act". The PW3 stated that Dr. Nandeep and Dr. Jasmeet had left the services of the hospital, however, he identified handwriting and signatures of both the doctors on the MLC of the accused. 7 The PW4, is the victim child in the present case. Her statement was recorded in presence of her mother and counsel from DCW, who were permitted to join the proceedings as support persons. As the victim child G was a tender aged child of 4 years, some preliminary questions were asked from her to be satisfied regarding her capability to speak the truth and her capacity to understand the questions put to her and to answer them reasonably. After being so satisfied with her capacity and capability and her competence to depose as a witness, her statement was recorded in question answer form. The witness, however, did not say anything incriminating against the accused and only stated that accused had called her to his house and offered her food.
8 The PW5, Smt. Mithlesh, is the mother of the victim child G. She deposed that victim child was her third born child and was aged about 4 years. She further stated that about 8 - 9 months, prior to the date when she SC No.11/2013 State Vs. Vinod @ Litra Page No. 4 of 17 5 came to the Court to depose, she returned back from her work at about 2:00
- 2:30 PM and found victim child G at home and that victim child G did not tell her anything. She further stated that children in the gali were raising alarm that accused had misbehaved with her daughter in his jhuggi and out of panic she lodged her complaint Ex.PW5/A. She also stated that since nothing came in the medical examination of her daughter, she did not want to say anything further against the accused.
9 This witness was declared hostile and was crossexamined at length by the learned Additional PP during which contents of her complaint Ex.PW5/A were put in details to the witness. The witness termed the contents of her complaint Ex.PW5/A to be correct. She also stated that accused was her neighbour and that she and her husband had been asked by her neighbours to patch up the matter with the accused and not to depose against him. She identified the accused in the Court. 10 The PW8, Sh. Satish Kumar, is the father of the victim child G. He too deposed on the lines of PW5. He further deposed that on returning home, he had made inquiry from his daughter and that she had told him that while she was playing in gali with other children, accused had called her inside the jhuggi and offered food to her and annoyed by this, he had called police at 100 number.
SC No.11/2013 State Vs. Vinod @ Litra Page No. 5 of 17 6 11 This witness was also declared hostile by learned Additional PP and was crossexamined at length. During his crossexamination, PW8 stated that he had got annoyed as he had been informed by children that accused had misbehaved with his daughter (gandi baat karne ki koshish kari). He denied having stated in his statement u/s.161 CrPC, Ex.PW8/A, that he had been told by his daughter that she was taken by accused in his jhuggi and thereafter accused removed her knicker, made her lie down on the bed and he too laid upon her. During his further crossexamination, PW8 termed it correct that accused Vinod @ Litra belonged to his community and that he (PW8) had been advised by community people that since nothing serious had happened with his daughter, he should not depose against the accused. He termed it correct that no harm had been caused to his daughter.
12 The PW10, Ct. Sandeep, was posted at PCR and had recorded the call received from PW8 Sh. Satish Kumar and forwarded the same to concerned PS and deposed regarding the same.
13 The PW9 SI Vijay Kumar, was entrusted DD No.56B i.e. Ex.PW9/A (also exhibited as Ex.PW2/C) for investigation and he along with PW6 Ct. Puran Chand had gone to jhuggi of accused at N17C/189 Jhuggi, Patharwala Bagh, J.J. Colony, Wazirpur, Delhi, and deposed regarding the same. He further stated that on reaching the said place, he had met SC No.11/2013 State Vs. Vinod @ Litra Page No. 6 of 17 7 complainant Mithlesh, her husband Satish Kumar and the victim child G and on coming to know that the case pertained to rape of a minor child, he had informed these facts to the SHO, who then deputed W/SI Rajesh for further investigations and that when W/SI Rajesh came to the spot, he entrusted the victim child G and her parents to her and left the spot. 14 The PW11 W/SI Rajesh, is the main IO of the case and she deposed regarding the investigations carried out by her and the documents prepared by her during the course of investigations. She deposed that on reaching the spot, she recorded the statement of PW5 Mithlesh and thereafter sent the victim child G along with her mother Smt. Mithlesh for medical examination to BJRM Hospital along with L/Ct. Meena and that after medical examination of victim child, L/Ct. Meena brought back the victim child and her mother to the spot and handed over MLC of victim child to her. She further deposed that PW5 also produced the nicker of the victim child and that the same was seized by her vide seizure memo Ex.PW6/X and that thereafter she prepared rukka Ex.PW11/A and sent it through PW6 Ct. Puran Chand for registration of case FIR. She then deposed that in the meantime she got victim child counseled through NGO and also went in search of accused and that accused was arrested from his jhuggi at pointing out of the victim child. She proved the arrest and personal search memos of accused as Ex.PW6/A and Ex.PW6/B and his disclosure statement as Ex.PW6/C. She further proved the site plan of place of occurrence, which SC No.11/2013 State Vs. Vinod @ Litra Page No. 7 of 17 8 was prepared by her, at the pointing out of victim child, as Ex.PW11/B. The PW11 also deposed about medical examination of the accused which was got done by her through Ct. Puran Chand at BJRM Hospital. She further deposed that she had got recorded the statement of victim child u/s.164 CrPC from the learned MM and had also produced the victim child before concerned CWC from where she was sent with her mother. The PW11 also stated that she had asked the mother of the victim child for her birth certificate but the mother of the child could not produce any such certificate. After recording the statement of witnesses, PW11 prepared the charge sheet and filed the same in the Court.
15 The PW6, Ct. Puran Chand, had joined investigations of the present case with PW9 SI Vijay Kumar and thereafter with PW11 W/SI Rajesh and deposed regarding the same.
16 The PW7, HC Meena, had got medical examination of victim child G conducted at BJRM Hospital on the instructions of IO and deposed regarding the same.
17 The PW12, Sh. Dharambir, is the landlord of the jhuggi where the accused was residing at the time of the incident. Though this witness deposed about accused being his tenant at the relevant time, he denied that the victim child G used to come to jhuggi of accused to play with other SC No.11/2013 State Vs. Vinod @ Litra Page No. 8 of 17 9 children or that on the day of incident, accused had attempted to commit rape upon the victim child G. 18 After closing of prosecution evidence, statement of accused Vinod @ Litra was recorded u/s 313 Cr.P.C., wherein he stated that he is innocent and has been falsely implicated in the case after obtaining his signatures on blank papers by the Police. He did not lead any evidence in his defence.
19 Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State. 20 Learned Additional PP has contended that though the victim child G and her parents have failed to support the prosecution case, from the crossexamination of PW5 Smt. Mithlesh and PW8 Satish Kumar, it is clearly brought that the witnesses have deposed under pressure of the community people and that they have so deposed since no major mishappening had taken place with the victim child G. It is accordingly prayed that accused Vinod @ Litra be convicted u/s.376 (2)(f)/511 IPC. 21 Learned counsel for accused on the other hand has contended that accused is innocent and has been falsely implicated in the present case. It is further submitted that since all the material witnesses examined by the SC No.11/2013 State Vs. Vinod @ Litra Page No. 9 of 17 10 prosecution, including the victim child G, have failed to support the prosecution case and hence, accused is entitled to be acquitted of charges in the present case and it is prayed accordingly.
22 I have heard the arguments put forward by ld. Addl. PP and learned counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
23 In the present case, accused is alleged to have committed an attempt to rape a 3 ½ years old victim child G. As per case of the prosecution, the victim child G had gone to play at the house of the accused. The accused, who was alone in the house, came there and took victim child G to his jhuggi where he removed her nicker and attempted to commit rape upon her. The victim child came home and informed her mother PW5 Smt. Mithlesh, who went to the house of accused to confront him but accused was not found present in his house. The PW5 returned back to his house and told her brother Deepak about the entire incident and said Deepak in turn, informed PW8 Sh. Satish Kumar, father of the victim child G, who rushed back home. He too made inquiry from the victim child G and thereafter gave a call at 100 number. The case was registered on complaint Ex.PW5/A made by PW5 mother of the victim child.
SC No.11/2013 State Vs. Vinod @ Litra Page No. 10 of 17 11 24 The statement of victim child G was recorded by IO u/s.161 CrPC wherein she is claimed to have stated that accused had taken her inside his jhuggi and committed wrong act with her by laying down on her and that thereafter victim had called her mother. This statement is undated. 25 The IO got statement of victim child G recorded u/s.164 CrPC Ex.PW1/B on 23.11.2012 wherein the victim child stated that she was playing on the roof of the house of accused Litra (Litra uncle ki chhat par khel rahi thi) and that accused committed wrong act with her. When the learned MM asked as to what wrong act had committed by the accused, child G stated that accused removed her underwear and lay down on her and that she had asked accused to let go of her but he did not allow her to go and that after sometime when he left her, she returned back with her friend to her home and informed her mother.
26 The statement of victim child G was recorded before the Court as PW4, however, she failed to support the prosecution case as is reflected from her testimony reproduced here under : "Q. Sanno kaun hai ?
Ans. Meri dost.
Q. Aap Sanno ke sath khelte ho ?
Ans. Ha.
SC No.11/2013 State Vs. Vinod @ Litra Page No. 11 of 17
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Q. Kaha par ?
Ans. Nahar par.
Q. Litra uncle ko jante ho ?
Ans. Ha.
Q. Unka ghar kaha par hai ?
Ans. Park ke waha par.
Q. Litra uncle kaise hai ?
Ans. Gande hai.
Q. Litra uncle ne kya kiya ?
Ans. Kuch nahi.
Q. Kya Litra uncle ne kuch aisa kiya jo aapko acha
nahi laga ?
Ans. Nahi, kuch nahi kiya."
27 Since the victim child / PW4 could not give any details
regarding the alleged incident, the learned Additional PP prayed for permission to ask leading question from the witness, which was granted to her, considering the tender age of the witness. In response to said leading question, the witness deposed as under : "Q. Litra uncle gandi baat karte hai ?
Ans. Nahi.
Q. Aaj mummy ne kaha tha ki kisi ko kuch nahi
SC No.11/2013 State Vs. Vinod @ Litra Page No. 12 of 17
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batana hai ?
Ans. Nahi.
Q. Aaj mummy ne kaha tha ki Litra uncle ke bare
me kuch nahi batana ?
Ans. Nahi.
Q. Aur kya batana hai ?
Ans. Litra uncle ne khana khane ke liye bulaya tha.
Q. Aur kaun tha ?
Ans. Koi nahi.
Q. Litra uncle ne tumhari kachhi uttar di thi ?
Ans. Nahi.
Q. Litra uncle ne kuch gandakam kiya ?
Ans. Nahi.
Q. Aaj tumari mummy ke sath kaun aaya hai ?
Ans. Mein aayi hu.
Q. aur bhi aunty aur uncle aaye hai ?
Ans. Ha.
Q. Woh aapke sath aaye hai ?
Ans. Nahi.
Q. Woh wahi rehte hai jaha aap rehte ho ?
Ans. Nahi.
Q. Tumne apni mummy ko kuch bataya tha Litra
uncle ke bare me ?
SC No.11/2013 State Vs. Vinod @ Litra Page No. 13 of 17
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Ans. Ha.
Q. Kya bataya tha ?
Ans. Kuch nahi bataya tha.
Q. Police apke ghar par aayi thi ?
Ans. Ha.
Q. Apne policewali aunty ko kya bataya tha ?
Ans. Kuch nahi bataya tha.
Q. Policewali aunty kaha lekar gayi thi apko ?
Ans. Waha pe.
Q. Kaha par ?
Ans. Waha pe.
Q. Doctor aunty ke ?
Ans. ha.
Q. Aap pehle bhi court me aaye the ?
Ans. Ha.
Q. Apne unhey sab bataya tha ?
Ans. ha.
Q. Woh uncle the yah aunty thi ?
Ans. Uncle the.
The statement of witness u/s.164 CrPC has been recorded by Ms. Vandana, learned MM."
28 From the abovesaid testimony of the victim child, it is clearly SC No.11/2013 State Vs. Vinod @ Litra Page No. 14 of 17 15 brought out that contrary to case put forth by prosecution, according to the victim child, accused neither removed her nicker / underwear nor did he misbehave with her in any manner. He had merely offered food to the victim child.
29 The PW5, Smt. Mithlesh, mother of the victim child, and PW8 Sh. Satish Kumar, father of the victim child, have also failed to support the case of the prosecution. In fact PW5 categorically stated that nothing had happened with her daughter and that she (victim G) had not told PW5 anything and that she had filed her complaint Ex.PW5/A out of panic when children in gali raised alarm that accused had misbehaved with victim child G in his jhuggi. During her crossexamination, PW5 termed the contents of her complaint Ex.PW5/A to be correct. The PW8 too failed to support the prosecution case. Learned Additional PP has contended that both PW5 and PW8 have admitted in their crossexamination by the State that they had been asked by people of community not to depose against the accused as nothing serious had happened with their daughter i.e. victim child G and thus prosecution has succeeded in proving its case against the accused, however, the contention of learned Additional PP cannot be sustained for two reasons. Firstly, the victim child herself does not support the case of the prosecution regarding the allegations against the accused of attempting to rape her. Secondly, the medical evidence on record also does not support the case of the prosecution. The PW3 Dr. Prem Singh Bisnoi, who conducted general SC No.11/2013 State Vs. Vinod @ Litra Page No. 15 of 17 16 medical examination of victim child G, did not find any external injury. Further examination of the victim G could not be conducted as the mother of the victim child had refused for her gynecological examination. 30 It is also seen from record that the IO had seized nicker of the victim child and also got accused examined for his sexual capability but no samples were taken from the accused nor were any sent to FSL for analysis along with the nicker / underwear which the victim child is alleged to be wearing at the time of the incident. Thus there is no biological evidence / FSL result to support the allegations of attempt to rape against the accused. Moreover the children, with whom the victim child is stated to have been playing, specially her friend Sanno, on the day of incident, were not joined as witnesses by the IO. It is noteworthy that PW5 Smt. Mithlesh and PW8 Sh. Satish Kumar, parents of the victim child G, are not eye witnesses to the incident and their testimony is based on whatever was told to them by the children in the gali, with whom child G was playing, or the victim child G herself. Since the victim child G has failed to support the prosecution case and the other children have not been cited as witness, the testimony of PW5 Smt. Mithlesh and PW8 Sh. Satish Kumar cannot be relied upon to form basis for conviction of the accused when no other evidence could be brought on record by the prosecution.
31 The nutshell of foregoing discussion is that from the testimony SC No.11/2013 State Vs. Vinod @ Litra Page No. 16 of 17 17 of the victim child G as well as other material witnesses examined by it, the prosecution has failed to prove that accused had attempted to commit rape upon the victim child G on 21.11.2012 at his house i.e. N17C/189 Jhuggi, Patharwala Bagh, J.J. Colony, Wazirpur, Delhi. Accordingly, I acquit accused Vinod @ Litra of the charged offence, giving him benefit of doubt for the offence u/s. 376 (2)(f)/511 IPC.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 30.11.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No.11/2013 State Vs. Vinod @ Litra Page No. 17 of 17
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FIR No. 258/12
P.S. Bharat Nagar
30.11.2013
Present: Ld. Substitute Addl. PP for the State.
Accused on bail with counsels Sh. Vijay Kumar and Ms. Nidhi Kalia.
PW10 Ct. Sandeep, PW11 W/SI Rajesh and PW12 Sh.
Dharambir are present. They are examined, crossexamined and discharged.
All PWs stand examined, hence, PE closed.
Be listed at 2:00 PM for SA.
ASJ/NW01
Rohini/Delhi
30.11.2013
At 2:10 PM
Present: As before.
Statement of accused u/s.313 CrPC recorded. Accused does not want to lead evidence in his defence.
Final arguments heard.
Judgment shall be passed during the course of the day.
ASJ/NW01 Rohini/Delhi 30.11.2013 SC No.11/2013 State Vs. Vinod @ Litra Page No. 18 of 17 19 At 4:30 PM Present: As before.
Vide separate judgment, announced today in the open Court, accused Vinod @ Litra has been acquitted of the charged offence.
Accused requests that his previously furnished bail bond may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bond of the accused is extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 30.11.2013 SC No.11/2013 State Vs. Vinod @ Litra Page No. 19 of 17