Delhi District Court
State vs . Ashok S/O Tallu Yadav, R/O A4, Gali ... on 10 December, 2010
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IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 36/10
Unique Case ID No. 02402R0083092010
State Vs. Ashok S/o Tallu Yadav, R/o A4, Gali No.1, 1st Pusta, New
Usmanpur, Delhi.
FIR No. 431/09
PS New Usmanpur
U/s 363/376 IPC.
Date of Institution : 20.04.2010
Date of reserving the Judgement : 01.12.2010
Date of Pronouncement : 07.12.2010
J U D G E M E N T : Prosecution's case emanates from the fact that on 17.12.09 at about 1pm, Rehnuma was preparing food at her house. Her daughter, Nagma (name changed), aged about 8 years was playing outside the house. Nagma went missing all of a sudden. After about four or five hours, she came back to her house. She was not feeling well and was haunted with fear and shock. When her mother asked her, she did not reply. On 26.12.09, her health deteriorated. When her mother asked her again, she told her mother that on 17.12.09 one rickshaw puller took her on his rickshaw on the pretext of giving her sweets. That rickshaw S.C. No. 36/10 Page 1/37 2 puller took her to a park and committed rape upon her. She further told that due to fear she did not muster courage to narrate the incident before her mother. Thereafter, Nagma and her mother Rehnuma went to police station. On the way, Nagma saw accused Ashok, the rickshaw puller, who committed rape upon her and told her mother about him. Thereupon, her mother caught hold of accused Ashok and took him to police station. In the police station, statement of Rehnuma was recorded by police, which became bedrock of the case. Investigation was taken up by SI C.P. Singh. During the course of investigation, prosecutrix was got medically examined. Accused Ashok was arrested in the case. Investigation culminated into a charge sheet against him.
2. Charge for offences punishable under sections 363 and 376 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Constable Sunita (PW1), HC Jagbir Singh (PW2), Nagma (PW3), ASI Sheela (PW4), Constable Bachu Singh (PW5), Rehnuma Khatoon (PW6), Constable Raj Kumar (PW7), Mohd. Sajid (PW8), Dr. Shuchi Agarwal (PW9), SI Chander Pal (PW10), SI Ratnu Oran (PW11) and Dr. P. Ram (PW12) in the case.
4. Constable Sunita (PW1) took prosecutrix Nagma to GTB Hospital and got her medically examined. At the hospital doctor gave her two sealed parcels sealed with the seal of GTB Hospital and one sample seal S.C. No. 36/10 Page 2/37 3 and she gave the same to investigating officer SI C.P. Singh, who took the same into possession vide memo Ex.PW1/A. HC Jagbir Singh (PW2) was working as MHC(M) on 26.12.09. Five sealed parcels and two sample seals were deposited with him by SI C.P. Singh. He made an entry to this effect in store room register at serial No. 2010. He proved photocopy of the same as Ex.PW2/A. Nagma is the victim and star witness of the case.
ASI Sheela (PW4) recorded formal FIR and proved copy of the same as Ex.PW4/A. Constable Bachu Singh (PW5) took accused Ashok to GTB Hospital and got him medically examined. Doctor gave him three parcels, sealed with seal of GTB Hospital and one sample seal and he gave the same to investigating officer, who took the same into possession vide memo Ex.PW5/A. Rehnuma Khatoon (PW6) is the mother of prosecutrix Nagma and is author of FIR.
Constable Raj Kumar (PW7) deposited five sealed parcels and two sample seal at FSL, Rohini, vide R.C. No. 16/21/10.
Mohd. Sajid (PW8) is uncle of Nagma and deposed facts on the same lines as deposed by Rehnuma Khatoon, his sisterinlaw (Bhabhi).
Dr. Shuchi Agarwal (PW9) medically examined prosecutrix Nagma. S.C. No. 36/10 Page 3/37
4 She proved her detailed report as Ex.PW9/A. SI Chander Pal (PW10) conducted investigation of the case. He deposed that on 26.12.09 at about 11am, complainant Rehnuma Khatoon along with her daughter Nagma and brotherinlaw Sajid came in PS. They produced accused Ashok before him. Rehnuma Khatoon narrated entire incident him. Prosecutrix was sent to GTB Hospital for her medical examination. He recorded statement of Rehnuma and made endorsement on the same Ex.PW10/A. He prepared rukka and produced the same before duty officer for getting the case registered. He also got accused medically examined. He deposited the case property with malkhana moharrer. He also recorded disclosure statement of accused vide Ex.PW10/B. He arrested the accused and also prepared the site plan. He recorded statement of witnesses. On 31.12.09, investigation of the case was handed over to Ratnu Oran.
SI Ratnu Oran (PW11) was handed over investigation of the case on 08.01.2010. On 18.02.2010, exhibits of the case were sent to FSL Rohini through Ct. Raj Kumar. Thereafter, he filed the challan in the Court.
Dr. P. Ram (PW12) prepared MLC of accused Ashok and proved the same as Ex.PW12/A.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 S.C. No. 36/10 Page 4/37 5 Cr.P.C. Except the fact that he is rickshaw puller, he was apprehended by mother of Nagma and he was got medically examined by Constable Bachu Singh, he denied all the allegations levelled against him. His case has been of denial simplicitor. He pleads his innocence. He projected that he was lifted from the main gate of Jag Parvesh Hospital, where he was waiting for passengers and was falsely implicated in the case. However, he opted not to lead any evidence in his defence.
6. I have heard Sh. Ravinder Khandelwal, ld. Prosecutor and Sh. Dharmender Kumar Advocate, for the accused, and have perused the record.
7. It was submitted by ld. Counsel for the accused that in the instant ase, although the incident is alleged to have taken place on 17.12.09, however no report was lodged with police till 26.12.09. Delay in lodging the FIR has not been satisfactorily explained. As per testimony of prosecutrix herself, she had disclosed to her grand mother regarding the incident, yet there is no explanation as to why FIR was not lodged on that day and immediately thereafter. He further submitted that there is discrepancy, inasmuch as, as per statement of Rehnuma Khatoon Ex.PW6/A, she was disclosed about commission of offence by her daughter on 26.12.09 and when she was taking her to the police station, at that time on the way accused was noticed by prosecutrix and then S.C. No. 36/10 Page 5/37 6 accused was taken to police station. However, in her statement prosecutrix and her mother have deposed that when they were taking prosecutrix to hospital for medical examination, at that time on the way prosecutrix noticed the accused and told them about the incident and then accused was apprehended and taken to police station. Moreover, according to prosecutrix, besides her she has two brothers, whereas her mother deposed that she has two children only. The doctor who examined prosecutrix deposed that she had prepared two slides, whereas as per FSL report four slides were received in FSL. It was submitted that accused is innocent and no offence was committed by him. At the most, it was the case of mistaken identity, and as such accused is entitled to be acquitted.
8. Rebutting the submissions of ld. Counsel for accused, it was submitted by ld. Prosecutor that it has come in the testimony of mother of prosecutrix that when prosecutrix returned home, at that time she was quite afraid and perplexed. Although she tried her level best to inquire about blood on her salwar, but she did not tell anything to her. The grand mother of prosecutrix was also unwell may be due to same and to protect honour of the family might not have disclosed the incident to the parents of prosecutrix, and on 26.12.09 when prosecutrix was being taken to hospital for medical examination, accused was noticed and at that juncture she S.C. No. 36/10 Page 6/37 7 informed about the incident to her mother and uncle and then he was taken to police station. Under these circumstances, it was submitted that delay, if any, is not fatal to the case of prosecution. As regards the discrepancy in initial FIR and the statement of prosecutrix is concerned, it was submitted that this is only a minor discrepancy, which does not go to the root of the matter. There is no reason to disbelieve testimony of prosecutrix or her mother. As regards identity of the accused is concerned, he referred to the statement of prosecutrix, who has categorically deposed in the Court that although there were many rickshaw pullers present near the hospital, but she pointed out only towards the accused since he had committed rape upon her. Moreover, accused is not alleging any enmity or illwill against the prosecutrix or her parents for which reason they would falsely implicate him in this case. The medical evidence supports the case of prosecution. Under these circumstances, it was submitted that this is very heinous crime committed by the accused by committing rape upon a small girl aged about 8 years. As such accused is liable to be convicted of the offence alleged against him.
9. I have carefully gone through the respective submissions of the ld. Counsels for the parties and have perused the record. S.C. No. 36/10 Page 7/37
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10. The most material witness is the prosecutrix herself. She was aged about 8 years, as such before recording her statement, various quessions were put to her in order to ascertain her competence and ability to understand the questions and answer them. After satisfying that she was able to understand the questions properly and answer them, her statement was recorded, without oath, wherein she unfolded that it was Juma Raat, date was 17th, during winter days, when she had gone out of her house in order to have sun basking. Accused Ashok took her in a rickshaw by inducing her to give sweets. He himself was plying rickshaw. He, however, did not give her any sweets, but took her to some unknown place where she was made to lay down. Thereafter, he also laid down upon her, shut her mouth and committed wrong acts with her. Blood came out of her vagina. She felt pain on her anal side and was not able to sit. She was made to lie on the grass. Thereafter, he left her in the rickshaw to the same place from where he had taken her. Since her condition deteriorated, she went to doctor, who gave medicines to her. Her condition did not improve. After eight days, her mother took her to the hospital. Accused was standing along with his rickshaw. She pointed out towards the accused and informed her mother. Thereupon her mother asked the accused as to why he had committed wrong acts with her. Thereafter, accused was taken to police station. From police station, she was sent to S.C. No. 36/10 Page 8/37 9 hospital with her mother and uncle. Accused had threatened her to kill, if she would narrate the incident to anybody. This witness was subjected to lengthy crossexamination by ld. Defence counsel. In crossexamination, she deposed that place where she had gone for sun basking was not very far from her house. Usually, she used to play with children in the street itself, but since on the day of incident, sun did not come there, she had to go for sun basking. Accused had taken her to bushes. She did not raise alarm since there was no house near the place from where she was taken by the accused and nobody was passing through that way at that time. Accused was wearing Tshirt and pyjama. Her salwar, jumper and underwear were stained with blood. She wept on the way when accused took her to the place from where he had taken her. On the way, he gave several slaps to her. She went on stating that on the date of incident, she did not narrate the incident to her mother, but informed her grand mother. She did not narrate the incident to private doctors also. Doctor had checked her stomach only and gave medicines. She was not able to walk properly and accused left her in the rickshaw to the place from where he had taken her. When she went to her house, many rickshaw pullers were standing, but since accused had committed wrong act with her, therefore she identified him amongst other rickshaw pullers. She did not narrate the incident to her mother as accused had threatened her to kill, if she S.C. No. 36/10 Page 9/37 10 narrated the same to anybody. She denied the suggestion that she was falsely implicating the accused at the instance of her mother and uncle or that she was taken away by some other person and allegedly raped, and due to mistaken identity and feeble memory and at the instance of her mother and uncle she was wrongly identifying the accused.
11. PW6 Rehnuma Khatoon is the mother of prosecutrix. She has testified that her daughter Nagma was aged about 8 years. On 17.12.09. She helped her daughter for taking bath at about 10am. Thereafter, she went outside for sun basking. At one o'clock, she did not find her daughter and searched for her. Nagma came at home at about 4pm. At that time she was quite afraid and perplexed and was not in a position to say anything. She tried her level best to ask regarding the blood stains on her salwar, but she did not tell anything due to fear. Her condition deteriorated and therefore she got medicine from private doctor. On 19 th day, she had taken her daughter to Jagparvesh Hospital and since her condition was deteriorating, she again took her to hospital on 26th day. At that time, her brotherinlaw Mohd. Sajid also accompanied her to the hospital. When they reached near Jagpravesh Hospital, Shastri Park, her daughter pointed out towards one rickshaw wala and stated that that rickshaw wala is the person, who had taken her and committed wrong acts with her. They overpowered that rickshaw wala and took him to police station. S.C. No. 36/10 Page 10/37
11 Name of that rickshaw wala was revealed as Ashok. She narrated entire facts to the police officials, who recorded her statement Ex.PW6/A. Accused was produced before police officials. Thereafter, one lady police official took her daughter to GTB Hospital for medical examination. She along with her dewar Mohd. Sajid also accompanied them. In the hospital, her daughter was medically examined. Doctor prepared some pullandas and took the same into possession, vide memo Ex.PW1/A. Accused pointed out the place where he committed wrong things with her daughter and memo Ex.PW6/B was prepared by the investigating officer of the case. Accused was arrested and she identified her signatures on the arest memo and personal search memo Ex.PW6/C and Ex.PW6/D. At the time of pointing towards accused, her daughter stated that he had taken her in rickshaw on the pretext of giving toffee to her.
12. PW8 Mohd. Sajid is brotherinlaw of Rehnuma Khatoon and is the uncle of prosecutrix Nagma. He has deposed that on 26.12.09, he along with his sisterinlaw Rehnuma Khatoon and niece Nagma were going to a government hospital situated at Shastri Park. When they reached near the gate of hospital, Nagma identified accused Ashok and told him that accused had taken her in his rickshaw, after alluring her to give sweets and took her in a park situated near Shastri Park and committed rape upon her adjacent to the wall of the park. Accused threatened her not to S.C. No. 36/10 Page 11/37 12 disclose facts to anyone, failing which he would kill her. He apprehended the accused and police reached there. After that, police officials took them and accused to police station, where accused was arrested vide arrest memo Ex.PW6/B and his personal search was taken vide memo Ex.PW6/C. His niece was taken to GTB Hospital for medical examination, where she was medically examined. Doctor handed over two sealed parcels and one sample seal to a lady Constable, which were taken into possession by the investigating officer vide seizure memo Ex.PW1/A.
13. Perusal of testimony of prosecutrix goes to show that witness has given a clear and vivid narration of the incident, which had taken place with her. She was subjected to lengthy crossexamination by ld. Defence counsel and she stood the test of crossexamination. Her statement was recorded by me and I had occasion to see demeanour of the witness and the same reflected that she was truthful witness, which is also reflected from some of the answers given by the witness. It was put to the witness that when she had gone to the place for sun basking and many rickshaw pullers keeps on coming, the witness promptly replied "but nobody takes children". Thereafter, when question of identification of the accused came, the witness admitted that many rickshaw pullers were standing but went on stating that since accused had committed wrong act with her, therefore she identified him amongst other rickshaw pullers. She admitted S.C. No. 36/10 Page 12/37 13 that she met private counsel engaged by her parents, but went on stating that she was not tutored by him and went on stating that she was not tutored by anybody, including her parents and uncle. The deposition of the prosecutrix, her mother Rehnuma Khatoon and uncle Mohd. Sajid is firm and convincing. There is no reason as to why the child of her age, that is, prosecutrix would get an innocent person named for offence, which was committed by the accused. From the suggestions given by ld. Defence counsel, it was not disputed by him that offence of rape was committed with child but he had only taken the plea that it was the case of mistaken identity. In this regard, it is pertinent to note that there is no reason to falsely implicate the accused by naming him as the person responsible for committing such heinous crime with her. Crime was perpetrated in broad day light. The prosecutrix had sufficient opportunity to see accused, who had committed rape upon her. Before committing rape, she was allured by the accused to give sweets to her, and she was taken in his rickshaw and thereafter rape was committed upon her. She was threatened by him and it was the accused only, who had lifted her in his rickshaw from the place where he had taken her. All this must have taken time and as such prosecutrix had sufficient opportunity to see the accused. She also had reason to remember the face of accused as heinous crime was committed upon her.
S.C. No. 36/10 Page 13/37
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14. Substantially identical facts were in 2003 Cr.L.J. 3535, Malkhan Singh and others vs. State of Madhya Pradesh. It was a case of gang rape and criminal intimidation to a tribal woman. Trial Court and High Court convicted them. The matte went to Hon'ble Apex Court and plea was taken that accused were not put to identification parade. It was observed by Hon'ble Apex Court that there were concurrent finding of the Trial Court and Hon'ble High Court that evidence of the prosecutrix, the victim of gang rape, was reliable and therefore there was no need for corroboration of her evidence in the Court as she was found to be implicitly reliable. There was no error in this reasoning of the Court below. The facts of the case showed that prosecutrix did not even know the appellants and did not make any efforts to falsely implicate them by naming them at any stage. The crime was perpetrated in broad day light. Prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before rape was committed, she was threatened and intimidated by the appellants. After rape was committed, she was again threatened and intimidated by them. All this must have taken time. It is not a case where identifying witness had only fleeting glimpse of the appellants on a dark night. She also had reason to remember their faces as they had committed heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their S.C. No. 36/10 Page 14/37 15 features. In fact, on account of traumatic and tragic experience, the faces of appellants must have got imprinted in her memory and there was no chance of her making a mistake about their identity. The occurrence had taken place on 04.03.1992 and she deposed in the Court on 27.08.1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as perpetrators of the crime, if they had not actually committed the offence. Under these circumstances, it was observed that identification of the appellants by the prosecutrix in the Court does not require further corroboration.
15. These observations applies with full force to the facts of the case in hand, inasmuch as, as discussed above, the incident had taken place when prosecutrix had gone for sun basking from her house at about 10am. She returned home at about 4pm. Therefore, the incident had taken place through day time, when there was sufficient light. Prosecutrix had sufficient opportunity to see the accused as it was he, who had induced her to give sweets and thereafter took her in his rickshaw and then took her near a tree and committed rape upon her. Thereafter, he himself left her in his rickshaw to the place from where he had taken her, and also threatened her not to narrate the incident to anybody otherwise she would be killed. The child could not have forgotten the traumatic experience. S.C. No. 36/10 Page 15/37
16 Moreover, the incident had taken place on 17.12.09 and she appeared in the witness box on 01.06.2010, and as such it cannot be said that during this short span, her memory would have faded or that she would wrongly identify the accused. In fact, as stated above, the witness was categorical enough in stating that although many rickshaw pullers were standing near the Jagpravesh Hospital, but she pointed out towards the accused only because it was he only, who had committed rape upon her. Under these circumstances, identity of the accused as perpetrator of the crime stands established.
16. As discussed above, testimony of prosecutrix was cogent, coherent and truthful. Her testimony remains totally unimpeached during examination and that by itself is sufficient to prove the guilt attributed to the accused. It is settled proposition of law that conviction for offence under section 376 IPC can be based on the solitary testimony of rape victim, if evidence of prosecutrix is found to be creditable and convincing. In State of Rajathan vs. Om Prakash, III (2002) SLT 484 = II (2002) CCR 184 (SC)=(2002) 5 SCC 745, at page 753, it was observed : "13. The conviction for offence under Section 376, IPC can be based on the sole testimony of a rape victim is wellsettled proposition. In State of Punjab v. Gurmit Singh, referring to State ofMaharashtra v. Chandraprakash Kewalchand Jain, Hon'ble Apex Court held that it must S.C. No. 36/10 Page 16/37 17 not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has also been observed in the said decision by Dr. Justice A.S. Anand (as His Lordship then was), speaking for the Court that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.
17. In Panchhi v. State of U.P., VII (1998) SLT 41 = III (1998) CCR 21 (SC) = (1998) 7 SCC 177, it was observed by Hon'ble Apex Court that the evidence of a child witness cannot be rejected outrightly but the evidence must be evaluated carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. The Court has to assess as to whether the statement of the victim before the Court is the voluntary expression of S.C. No. 36/10 Page 17/37 18 the victim and that she was not under the influence of others.
18. Relying on the aforesaid decisions, in Mohd. Kalam vs. State of Bihar, (2008) 7 SCC 257 and in State of H.P. vs. Suresh Kumar @ DC, V (2009) SLT 329, Hon'ble Apex Court has observed that the evidence of a child cannot be rejected ourtrightly and the same must be evaluated with great circumspection.
19. It is by now settled proposition of law by a catena of decisions of the Hon'ble Supreme Court, including "Rqfiq vs. State of UP"
MANU/SC/0196/1980 : 1980 Cr.L.J. 1344 and "Bhoginbhai Hirjibhai v. State of Gujarat" MANU/SC/0090/1983 : AIR 1983 SC 753, "State v. Chandra Prakash" MANU/SC/0122/1990 : AIR 1990 SC 658, and also the decision in the case of Radhu v. State of Madhya Pradesh, (2007) 12 SCC 57, that conviction in a case of rape can be based solely upon the uncorroborated evidence of the prosecutrix, which should not be rejected on the basis of minor discrepancies and contradictions, unless there are such facts and circumstances present in a particular case which would persuade the Court to look for corroboration for her testimony. In the present case, there are no such circumstances as would justify looking for the corroboration of the testimony of the prosecutrix. The Court cannot treat the testimony of the prosecutrix in a rape at par with that of an accomplice in a crime which S.C. No. 36/10 Page 18/37 19 requires corroboration and no infirmity is attached to the testimony of a victim of such a heinous crime. In fact, it would only be adding insult to the injury if the Court insists on corroboration of her testimony, even in the absence of circumstances which would warrant adoption of such a course of action.
20. When evidence of prosecutrix and her mother and her uncle is taken into consideration, it becomes quite clear that accusations made by them in their depositions are cogent, credible and had grain of truth. Moreover, as discussed by Hon'ble High Court in Hari Om vs. State, 2010 Cr.L.J. 1281, it is unbelievable that a child of this age, even if tutored would make allegations of rape and then repeat those allegations before police, Magistrate and then doctor and during trial.
21. Moreover, occular testimony of prosecutrix that she was subjected to rape by the accused finds corroboration from medical evidence, inasmuch as, when she was sent to hospital, she was examined by Dr. Shuchi Agarwal (PW9), who prepared her MLC Ex.Pw9/A. The alleged history at portion 'A to A' was given by the child herself and perusal of this history goes to show that it was disclosed by prosecutrix that she was subjected to sexual assault 10 days back, had bleeding after that for two days and was having pain in abdomen. On medical examination, although there was no external injury mark, but hymen was found ruptured. The S.C. No. 36/10 Page 19/37 20 prosecutrix being a girl aged about 8 years, at the time of commission of crime and her hymen having been found ruptured, when she was examined by Dr. Shuchi Agarwal, this reflects that she has been subjected to rape. Hari Om (supra) was substantially similar case, where prosecutrix was aged about 89 years at the time of incident and her hymen was found to be torn. It was observed by Hon'ble High Court that her hymen having been found torn is drawing expression of the fact that she had been subjected to rape.
22. ld. Defence counsel has referred to certain contradictions/variations appeared in the testimony of witnesses by submitting that although in initial report Ex.PW6/A, Rehnuma Khatoon had stated that when she was taking her daughter to hospital at that time she informed her that one rickshaw puller allured her to give sweets and took her in his rickshaw, and thereafter took her in a park and committed rape upon her and thereafter he lifted her. Since she was scared, hence she did not disclose facts earlier. On coming to know these facts when she along with prosecutrix and her uncle were coming to police station, then her daughter identified rickshaw puller standing near Jagpravesh Hospital and they had brought him to police station. However, in the Court she deposed that when they were going to Jagpravesh Hospital, at that time she identified rickshaw puller and narrated incident and then rickshaw puller was taken S.C. No. 36/10 Page 20/37 21 to police station. It was further submitted that there is also discrepancy to whom prosecutrix narrated incident whether to her mother or her uncle and as such it was submitted that this contradiction create doubt in the prosecution story. The contradictions pointed out by the ld. Defence counsel are not on material aspect and these contradictions are on peripheral issues, which do not constitute core of the matter, and as such cannot be said to be material and not much emphasis can be attached to these minor discrepancies, which are otherwise bound to come in the case of a truthful witness. Contradictions pointed out by the ld. Defence counsel does not go to the substratum of the case and there are catena of decisions to the effect that minor discrepancies which do not affect merits of the case cannot be given undue importance and it is duty of the Court to separate grain from chaff. In Hari Om (supra) also certain contradictions were pointed out and it was observed by Hon'ble High Court that everyone cannot recollect minor details of a past incident with complete accuracy and he, while replying to such questions, gives an answer based upon his recollection of the event at that point of time. Therefore, minor contradictions on such peripheral issues which do not constitute the core of the matter, cannot be said to be material and no much importance can be attached to these minor discrepancies which are otherwise bound to come in the case of truthful witnesses. Since everyone S.C. No. 36/10 Page 21/37 22 does not have equal power of observation, retention and reproduction, which varies from individual to individual, there is bound to be some difference while giving details unnrelated to the main incident. The approach of the Court while evaluating the testimony of a witness should be to see whether his/her evidence, when examined as a whole, appears to be true, or not. If the impression formed by the Court is that the witness appears to be truthful and trustworthy, his/her evidence need to be scrutinized taking into consideration the discrepancies and infirmities pointed out in his/her evidence and the Court should then evaluate the testimony of the witness, to decide whether the evidence given by him/his in the Court stands impeached or shaken, rendering him/her unworthy of reliance, in the light of the discrepancies or infirmities pointed out in his/her testimony. This is more so, when the witness comes from a lower strata of the society and, therefore, does not have the temperament or the capacity to match the skills and training of an experienced lawyer who crossexamined him/her in the Court. Minor discrepancies in the testimony of such witness, which are not related to the core issue involved in the case, need not be given much importance and the testimony of such witnesses shold not be discarded on account of such minor discrepancies or infirmities.
S.C. No. 36/10 Page 22/37
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23. In 2009 IX AD (Delhi) 71, Ahmed Ali Sardar vs. State, it was held by hon'ble High Court that unless exaggerated facts deposed are of serious nature, same has to be ignored as embellishment. Hon'ble High Court relied upon following observations made by Supreme Court in the decision reported as Bharwada Bhogini Hirjibhai vs. State of Gujrat AIR 1983 SC 753 : "Over much importance cannot be attached to minor discrepancies. The reasons are obvious :
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen :
(2) Ordinarily it is so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and S.C. No. 36/10 Page 23/37 24 reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the timesense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest S.C. No. 36/10 Page 24/37 25 account of the occurrence witnessed by himperhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilitiesfactor" echoes in favour of the version narrated by the witnesses."
24. In Krishna Mochi Vs. State of Bihar, (2002) 6 SCC 81, it was observed by hon'ble Apex Court as under : "If a whole body of the testimony is to be rejected because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stage. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be satisfied with care. One hardly comes across a witness, whose evidence does not contain a grain of untruth or at any rate S.C. No. 36/10 Page 25/37 26 exaggeration, embroidery or embellishments. An attempt has to be made to separate the grain from the chaff."
Yet at another place, it was observed : ''Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the Court should tread upon it, but if the same are boulders, the Court should not make an attempt to jump over the same. "Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower...."
25. The principles that can be culled out from the aforesaid decisions are minor discrepancies and inconsistencies cannot give (sic) importance. The Court has to see whether inconsistencies can go to the root of the matter and affect the truthfulness of the witnesses while keeping in view that discrepancies are inevitable in case of evidence of rustic and illiterate villagers, who speak them after long lapse of time. In the instant case also, infirmities pointed out by ld. Defence counsel does not go to the root of the matter and affect the truthfulness of their versions.
26. In the instant case also, prosecutrix and her mother comes from lower strata of society and are illiterate person, and therefore even if some S.C. No. 36/10 Page 26/37 27 minor discrepancies have crept in their testimony the same is not sufficient to discredit, otherwise the trustworthy testimony of prosecutrix, which finds corroboration from medical record.
27. Much emphasis was also laid down by ld. Defence counsel for delay in lodging the FIR by stating that although the incident had taken place on 17.12.09, the FIR was registered only on 26.12.09. Although this delay has occurred, however, same has been sufficiently explained by the witnesses, inasmuch as, as regards prosecutrix herself is concerned, she stated that she did not disclose incident to her mother and other member members except her grand mother, since accused had threatened her to kill, if she would narrate the incident to anybody. The mother of prosecutrix has deposed that when prosecutrix returned to the house, at that time she was quite afraid and perplexed and was not in a position to say anything. She tried her level best to inquire from her regarding blood stains on her salwar, but she did not tell her anything due to fear. Then, subsequently, she tried to inquired from her but she did not narrate anything to her. It was only on 26.12.09, when she was taking her to hospital, and on seeing accused she pointed out towards the accused and then narrated the incident and then immediately accused was taken to police station, and report was lodged. It was quite natural for a child of 8 years to be scared due to threats given by the accused and get perplexed as to what has S.C. No. 36/10 Page 27/37 28 happened with her. In fact such child is not even aware as to what heinous act was committed upon her by the accused. Under these circumstances, if she did not disclose the incident to her mother, then no adverse inference can be drawn. As regards narration of the incident to her grand mother is concerned, it is quite probable that keeping in mind that honour of the family would ruin, if she would have disclosed about said act to her son and daughterinlaw and matter is reported to police, she might not have disclosed the facts to them. The prosecutrix was a young girl, aged about 8 years at the time of incident. Grand mother must be conscious of the fact that in case such matter is reported to police, prosecutrix and her family members were bound to be exposed and the prosecutrix would be subjected to scrutiny and she would be questioned not only by police, but also by the Court and by their near relatives and neighbours too. They could not have been ignorant of the fact that they may have difficulty in finding suitable match for their daughter once it is known that she has been subjected to rape in her childhood. That may be the reason that grand mother might have restrained herself from reporting the incident to her parents let the grand child not face consequences on account of incident becoming public. But as and when the matter came to the light, her mother and uncle immediately reported to police. S.C. No. 36/10 Page 28/37
29
28. As such delay in lodging the report is not fatal. It was also submitted by counsel for the accused that no evidence has come on record that prosecutrix was initially treated by a private doctor or thereafter she was taken to Jagpravesh Hospital on 19.12.09 and thereafter on 26.12.09. In this regard it may be mentioned that Rehnuma Khatoon has deposed that she had given medical papers of Jagpravesh Hospital to the investigating officer, if the investigation officer did not choose to place those document on record or to investigate the matter further from hospital that at the most can be treated as lapse on the part of the investigating agency, but it is not sufficient to cast a doubt on the testimony of prosecutrix or her mother. For holding this view, I am fortified by (1999) 8 SCC 715, State of Karnataka vs. K. Yarrapareddy, where it was held that even if investigation is illegal or even suspicious, the rest of the evidence must be scrutinized independently on the merits of it. Otherwise, the criminal trial will plummet to the level of investigating officer ruling the roost.... Criminal Jurisprudence should not be made a casualty for the wrongs committed by the investigating officer in the case. In other words, if Court is convinced that testimony of a witness to the occurrence is true, the Court is free to act on it albeit the investigating officer's suspicion role in the case. Similar view was taken in 2010 (IV) AD (SC) 645 Abdul Takiyar and other vs. State represented by Inspector Police Tamilnadu. S.C. No. 36/10 Page 29/37
30
29. In view of these authoritative pronouncements, if the investigating officer did not choose to make any investigation regarding treatment taken by the prosecutrix earlier, same is not fatal.
30. Coming to the defence of the accused, he has simply pleaded his innocence and claimed false implication in this case. At the outset, it may be mentioned that accused was not known to prosecutrix from before. He is not alleging any enmity, illwill or grudge or animosity either against the prosecutrix or her family members or police officials, for which reason he would be falsely implicated in such serious and heinous crime. On the other hand, as discussed above, testimony of prosecutrix is truthful, reliable, cogent and coherent and the same finds corroboration from medical record also.
31. Under these circumstances, I hold that prosecution has been able to establish beyond reasonable doubt that on 17.12.09, during day time, accused took Nagma, a girl aged about 8 years, by inducing her to give sweets to a lonely place. Needless to say, she was under lawful guardianship of her parents and was taken by the accused without their consent. As such offence under section 363 IPC stands proved. It further stands proved that after kidnapping prosecutrix, accused committed rape upon her, as such even offence under section 376 IPC is duly proved against the accused. On the other hand, accused has failed to raise even S.C. No. 36/10 Page 30/37 31 an iota of doubt in the instant case. Under these circumstances, he is held guilty and convicted for offences punishable under sections 363 and 376 IPC.
Announced in the Open Court (Sunita Gupta) On this 7th day of December, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 36/10 Page 31/37 32 IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :S.C. No. 36/10
Unique Case ID No. 02402R0083092010 State Vs. Ashok S/o Tallu Yadav R/o A4, Gali no.1, 1st Pusta, New Usmanpur, Delhi53. FIR No. 431/09 PS New Usmanpur U/s 363/376 IPC Date of Institution : 20.04.2010 Date of reserving the Order : 07.12.2010 Date of pronouncement : 10.12.2010 ORDER ON THE POINT OF SENTENCE : Leniency in punishment has been claimed for convict pleading that he is not previous convict nor facing trial in any other case. As such, he be awarded minima punishment than maximum provided in the statute.
2. On the other hand, ld. Prosecutor submits that offence committed by the convict is not only heinous but also will haunt the prosecutrix throughout her life.
The convict has put an indelible mark on the person of prosecutrix by his ignoble act. The convict does not deserve any leniency in punishment. He may be awarded the maxima punishment prescribed in the statute. S.C. No. 36/10 Page 32/37
33 Section 376 (2) IPC reads thus:
"376. Punishment for rape - (1) ** (2) Whoever,
(a) - (e) * * * *
(f) commits rape on a woman when she is under twelve years of age; or
(g) * * * * * * shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be or life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term of less than ten years."
3. The age of the prosecutrix in the instant case was 8 years at the relevant time. Normal sentence u/s 376 (2) IPC in a case where rape is committed on a child below 12 years of age, is 'not less than 10 years RI'. The court is thus obliged to respect the legislative mandate when the case falls under the proviso. The proviso to Section 376 (2) IPC, however, lays down that in exceptional cases, 'for special and adequate reasons', sentence of less than 10 years RI may also be awarded in a given case. The proviso would come into play only when there are 'adequate and special reasons' available in a case. The reasons disclosed by ld. Counsel for the convict does not falls in the category of 'special or adequate reasons'. Hon'ble Supreme Court in Madan Gopal Kakkad vs. S.C. No. 36/10 Page 33/37 34 Naval Dubey & Anr. 1992 (2) pointed out with deep concern that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.
4. Hon'ble Supreme Court has given repeated directions to the Courts to be sensitive in cases involving crime against women. In State of A.P. v. Bedem Sundara Rao, 1995 (6) SCC 230, Hon'ble Apex Court said:
" In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court's verdict in the measure of punishment. The courts must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while S.C. No. 36/10 Page 34/37 35 considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 year old girl shakes our judicial conscience. The offence was inhumane."
Again, in case of State of Karnataka V. Krishnappa, 2000 (4) SCC 75, Hon'ble Apex Court pointed out that rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and Courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity. Referring to imposition of punishment in such cases, it was opined:
"The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socioeconomic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
5. Similar view was taken in 2000 (3) RCR (Criminal) 732. State of A.P. Vs. S.C. No. 36/10 Page 35/37 36 Palamala Raju @ Raja Rao where rape was committed on a girl of 5 years. Trial court awarded a sentence of 10 years RI and a fine of Rs.10/. On appeal hon'ble High Court reduced the sentence to 5 years RI. State filed appeal against reduction in sentence. Hon'ble Supreme Court observed that to show mercy in a case like this, would be travesty of justice and there are no reason, much less sufficient and adequate reasons to impose lessor sentence than the prescribed minimum.
6. In view of these authoritative pronouncements referred above and considering the facts and circumstances detailed above, coupled with the aggravating factor that a gruesome act was committed by the convict, by which he had not only defiled the body of prosecutrix, but also put an indelible mark on her person which shall haunt her throughout her life that she is a rape victim, the convict does not deserve any leniency in punishment, however keeping in view the mitigating circumstances that he is not a previous convict, he is sentenced to undergo RI for a period of 3 years and to pay a fine of Rs.1000/ for offence u/s 363 IPC. In default of payment of fine, he would further undergo RI for two months. He is further sentenced to undergo RI for ten years and to pay a fine of Rs.5,000/ for offence of rape. In default of payment of fine, he would further undergo RI for six months.
7. Fine, if recovered, be paid as a token of compensation to the prosecutrix. Convict shall get the benefit of period already undergone in detention during S.C. No. 36/10 Page 36/37 37 investigation and trial of the case.
8. A copy of judgement and order on sentence be supplied to him free of cost.
Announced in the Open Court (Sunita Gupta)
th
On this 10 day of December, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 36/10 Page 37/37