Delhi District Court
Fir No. 391/13 : State vs Gurucharan Singh @ Kaku : Ps Shalimar ... on 6 June, 2015
FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE:
(NORTHWEST)01: ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 10/14)
Unique ID case No.02404R0379232013
State Vs. Gurucharan Singh @ Kaku
FIR No. : 391/13
U/s : 354/342 IPC and 10 of POCSO Act
P.S. : Shalimar Bagh
State Vs. Gurucharan Singh @ Kaku
S/o Sh. Jitender Singh
R/o House no. 357, Police Colony,
Shalimar Bagh, Delhi
Date of institution of case 06.01.2014
Date of arguments : 29.05.2015
Date of pronouncement of judgment : 06.06.2015
J U D G M E N T:
Facts of the case
1. The facts of the case as born out from the record are that on 09.10.2013, at about 10.55 pm, an information through intercom was received at Police Station Shalimar Bagh regarding confinement of a five year old girl child at House no. 357 in a room. The said information was reduced into writing as Page 1 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 DD no. 61A and investigation thereof was assigned to ASI Babu Lal, however it appears that subsequently the investigation of the aforesaid DD entry was marked to W/SI Sarita, who went to the spot along with L/Ct. Vinod. At the spot, child victim and her mother Smt. Sanju met them. The child victim was taken to BJRM Hospital, for her medical examination and her MLC was collected. However, the mother of child victim refused to make any statement in the matter. Thereafter, on 12.10.2013, the mother of the child victim called up the SHO of PS Shalimar Bagh and offered to get her statement recorded. The SHO accordingly directed W/SI Sarita to go to the residence of child victim. W/SI Sarita along with lady Ct. Suman went to the house of child victim, where the mother of child victim handed over a hand written compliant to W/SI Sarita, to the effect that on 09.10.2013, at about 4.30 pm, her daughter i.e. child victim aged about 6 years, had gone downstairs to play with her friends. After some time, when she called the child victim from balcony, she did not respond. She herself went downstairs in search of her daughter by calling out her name, but she could not find her anywhere. While she was going back to her house situated at third floor, she found her standing in front of flat no. 357, at the second floor and was visibly looking scared. She made inquires from her, but she did not tell her anything. In the meantime, she saw accused Gurucharan Singh @ Kaku standing in front of her house bearing flat no. 357. He was wearing only half pant. She made inquiries from him as to whether, her daughter had come to his house, which he denied. She noticed that during her aforesaid inquiry, even the Page 2 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 accused was looking scared. She became suspicious that the accused might have done something wrong with her daughter. She took her daughter to her house and again came downstairs and inquired from the accused as to what had he done with her daughter. The accused told her that she was under some kind of misunderstanding and he pleaded that he had not done anything wrong with her daughter. Thereafter, she again went upstairs to her flat and this time, accused also followed her upto her house and repeated the same thing with his folded hands. Thereafter, finding her daughter to be under some kind of shock, she did not make further inquiries from her and after Sunset, she took her to nearby Ramleela Ground and made her comfortable by making her to enjoy swings and thereafter, finding the child victim to be normal, she again asked her as to what had happened with her. This time, child victim told her that while she was going for playing, accused called her inside his house on the pretext of giving her biscuit and showing her cartoons. The moment, child victim went inside his house, he made her to lie on the bed and thereafter placed himself over her body. In the meantime, the accused heard her callings (of the mother of child victim) and thereafter, he opened the door and asked the child victim to go out. Thereafter, she made call at number 100, pursuant whereto, IO and L/Ct. Vinod reached at her residence and from there, the child victim was taken to hospital for her medical examination. IO called a counselor from an NGO, who counseled the child victim, but she could not tell anything to the counselor. Even, she (the mother) could not make any statement to the IO about the incident out of Page 3 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 fear. Even, she gave a letter in writing to the IO that she did not want any action in the matter and as such, the IO had no alternative but to return back to the police station. However, later on, she changed her mind as she had a lurking apprehension that the accused may repeat similar kind of act with her daughter in future, therefore, she wanted an action against him.
On the basis of aforesaid statement of the mother of the child victim, the case FIR in the matter was registered. This time also the IO called a counselor from NGO Sampurna, who counseled the child victim and this time, the child victim got her statement recorded in questionanswer form. Thereafter, the IO collected the age proof of the child victim and on the next day, got the statements of child victim and her mother recorded u/s 164 Cr.P.C. The accused was arrested in the matter. After completion of the investigation, the charge sheet in the matter was filed.
Court proceedings
2. After committal of the case, arguments on the point of charge were heard and on 27.03.2014, charges u/s 363/342 and 9 (m) of Prevention of Children from Sexual Offences Act, 2012, (hereinafter referred to as "POCSO Act"), punishable u/s 10 of Act, alternatively u/s 354 IPC were framed against the accused, to which, he pleaded not guilty and claimed trial.
3. In order to bring home the guilt of the accused, the prosecution examined as many as 11 witnesses, whereafter, the P.E in the matter was Page 4 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 closed and statement of accused u/s 313 Cr.P.C was recorded, wherein, he claimed himself to be innocent and having been falsely implicated in the case at the instance of PW6 Smt. Sanju, mother of child victim, who was a habitual litigant, with a view to extort money from him. The accused wished to lead evidence in his defence and examined DW1 Sh. Kanwar Pal Singh.
4. DW1 Sh. Kanwar Pal Singh, in his evidence has deposed that on 10.10.2013, he received a phone call from Harvinder Singh, the brother of accused Gurucharan Singh, who told him "uncle, teenchar din pehle, kaku ki aur Sanju ki apas me kahasuni ho gai thi, jo Sanju ne aaj PCR va local police ko bula rakha hai. Aur Kaku pe ilzam laga rahi hai ki Kaku ne uski beti ke saath galat kaam kiya hai" and as he knew both the parties very well, he immediately reached at the residence of Sanju (mother of the child victim), situated at Shalimar Bagh, where Sanju, her daughter (child victim), one lady SubInspector Sarita, one police constable, Harvinder Singh and his mother Joginder Kaur were already present. He further deposed that Sanju, mother of the child victim told that in aggression, she lodged a false complaint and thereafter, a compromise took place between the parties then and there and at that time, Sanju also gave a compromise letter address to SHO, PS Shalimar Bagh and he put his signatures as a witness on the said compromise letter. (MarkA). He further deposed that later on, he came to know that Sanju had lodged an FIR against ASI Subhash at PS Ashok Vihar, vide FIR no. 453/13, u/s 354 IPC and in the said FIR, Smt. Sanju had compromised the case with Page 5 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 ASI Subhash after receiving money from him and thereafter, the FIR (Mark B) was quashed by the Hon'ble High Court of Delhi, vide order. (MarkC running into five pages) During crossexamination by ld. Addl. PP, the witness termed it correct that compromise letter Mark A did not bear any date, however, he volunteered to state that it was prepared after 10.10.2013.
Evidence recorded in the matter
5. I have heard arguments advanced at Bar by the learned Addl. PP and the learned defence counsel Sh. Gajraj Singh Advocate and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter. The evidence in the matter can be broadly classified into the following categories :
(a) evidence of child victim and her family members
(b) Medical evidence
(c) Formal evidence
(d) Evidence of Investigation officials
(a) The evidence of child victim and her family members
6. Child victim has been examined as PW5, whereas her mother Smt. Sanju has been examined as PW6.
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7. PW5, child victim in her evidence, has deposed as under : xxxxxx Q. Beta batao kya hua tha ?
Ans. Mein jine me khadi khadi awaz laga rahi thi toh Kaku ne mujhe andar kamare me bandh kar diya.
Q. Phir kya hua beta ?
Ans. Unke dono gate bandh the.
Q. Phir kya hua ?
Ans. Mujhe itna hi yaad hai.
Q. Beta kamare me Kaku uncle ne kya kiya apke
sath ?
Ans. Kaku uncle ne kaha tha ki woh mujhe biscuit
denge par unhone biscuit nahi diya aur mere dosto ko bhi apne ghar le jate the.
Q. Beta Kaku uncle ne aur kya kiya tha ?
Ans. Kaku uncle mere uppar late gaye the.
Q. Phir kya hua ?
Ans. Mujhe aur kuch yaad nahi hai.
Q. Beta aap Kaku uncle ko pehchan sakte ho ?
Ans. Maine dekhe huye hai par abhi dekhna nahi hai.
Q. Beta yeh batao ki aap Kaku uncle ko kyu dekhna
nahi chahte ho ?
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FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015
Ans. Woh mujhe achhe nahi lagate hai.
xxxxx
8. During crossexamination by learned defence counsel, the PW5 stated as under : xxxxx Q. Beta batao aap Kaku uncle ke kamare se bahar kaise aaye the?
Ans. Mumma (mummy) awaz laga rahi thi toh phir usne mujhe khada kar diya aur phir mummy aa kar le gayi.
Q. Beta batao mummy ne Kaku ko kuch kaha tha ?
Ans. Kaha tha par mujhe yaad nahi hai.
xxxxx
9. PW6, Smt. Sanju, mother of the child victim deposed that she was working as a Constable in Delhi Police. She further deposed that either 9th or 10th October, 2013 at about 4:30 PM, her daughter went downstairs to play with other children as usual and after sometime, on her calling her daughter i.e. child victim did not respond, on which, she went downstairs to search for her by calling out her name, but she was not found anywhere. She further deposed that while she was returning back to her home and going upstairs, she found her daughter standing between Quarter No.357 and 353 and at that time, her daughter was quite scared and on inquiry about her whereabouts, she did not tell anything to her. She further stated that in the meanwhile, Page 8 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 accused Gurucharan Singh, (who was known as Kaku) came on his door and on inquiry, he denied that her daughter had come in his house and at that time, accused was wearing vest and a short, which he generally used to wear. She further deposed that during the conversation with the accused, the accused got scared, due to which, she became suspicious that he (accused) might have done something wrong with her daughter. She further stated that thereafter, she left her daughter in the house and again came downstairs and made inquiry from accused as to what he had said and done to her daughter, on which, the accused replied 'nahi bhabhi apko galat fahmi huyi hai, aisa kuch nahi hua hai'. She further deposed that thereafter, she went upstairs to her house and accused followed her upto her house and again repeated the same words and he folded his hands before her and asked her not to disclose about this to anyone as he was not such type of person. She further deposed that thereafter, she gently made inquiries from her daughter/child victim S, who told her that accused had taken her inside his house and thereafter she (child victim) did not tell more. She further deposed that thereafter, she took child victim to Ram Leela and got certain toys for her and made her ride on swings and while riding on swings, she again gently asked her (child victim) as to what had happened, on which, her daughter told her that while she was going to play, accused called her inside his house on the pretext of giving biscuit and showing cartoons and she was made to lie on the bed by accused and thereafter he laid down upon her and at that time, he did not allow her to respond to her (PW6) calls. Page 9 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 She further deposed that on hearing this, she brought her daughter back to home from Ram Leela and called the police at 100 number and police arrived and took her and her daughter to BJRM Hospital where medical examination of her daughter was conducted vide MLC Ex. PW6/A, however, she refused for her daughter's internal gynecological examination. She further deposed that at that time, due to tiredness, her daughter went to sleep and she also did not give her statement to the police at that time as at that time, her husband was not living with her and moreover accused had apologized and at that time, she was not in a position to take decision as to what to do. She further deposed that after thinking about her daughter and conduct of accused, after two days her concious pricked her at the thought that something worst could have happened with her daughter and thereafter, she gave a written complaint Ex. PW6/A to SHO, PS Shalimar Bagh in her handwriting, on which case was registered. She further deposed about counseling of her and her daughter by the NGO official, about preparation of the site plan of the place of incident, about recording of her statement as well as of her daughter u/s 164 Cr.P.C by Ld. M.M. She further deposed about arrest of the accused on 13.10.2013 vide arrest memo Ex.PW6/C and about personal search of the accused vide memo Ex. PW6/B. During crossexamination, she termed it correct that she had good relation with the family of accused being neighbours. The witness showed her unawareness about the fact as to whether the accused was Page 10 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 mentally disturbed and was under treatment. She admitted that a complaint of 'chedchad' had been filed by her against one Subhash Chander r/o Police Colony, Shalimar Bagh and on her complaint, FIR No.453/13 was registered at PS Ashok Vihar. (copy of the said FIR is proved as Ex. PW6/DA). She further termed it correct that her daughter had been going in the house of accused and used to play there. However, she volunteered to state that she (child victim) used to play with the other children of neighborhood in the house of accused and in the stairs as well. She further termed it correct that she had no complaint against the accused prior to the present case. She further stated that it took only five to ten minutes when her daughter went missing and was found.
(b) Medical evidence
10. PW7, Dr. Mohit Tiwari has proved the MLC of the child victim as Ex. PW7/A, inter alia stating that she was examined by Dr. Inder Bhushan Verma, the then JR, under his supervision and thereafter she was referred to Gynecology Department for detailed gynecological examination. He has also proved the MLC of the accused dated 10.10.2013 as Ex. PW7/B.
11. PW8, Dr. Vaibhav Gulati has also proved the MLC of the accused dated 13.10.2013 as Ex. PW8/A, inter alia stating that accused was medically examined by Dr. Nitin Mukesh, the then JR under his supervision on 13.10.2013.
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12. PW9, Dr. Mallika Rani, SR Gynae, has proved the MLC of the child victim as Ex. PW6/A, inter alia stating that child victim was medically examined by Dr. Smita Pathak, SR Gynae and as per the nothings on the MLC, mother of the child victim had refused for detailed gynecological examination of her daughter.
(c) Formal witnesses
13. In this category, the evidence of PW1, PW2, PW3 comes.
14. PW1, Ms. Rajani Ranga, ld.M.M, has proved the statement u/s 164 Cr.P.C of the mother of the child victim as Ex. PW1/B and of the child victim as Ex. PW1/D.
15. PW2, Ms. Harjeet Kaur, Asstt. Teacher (Admission Incharge), produced original record from S.K.V, BL Block, Shalimar Bagh, Delhi, wherein the child victim was admitted in KG class. She proved photocopy of MCD Birth certificate and admission form of the child, as Ex.PW2/A and Ex.PW2/B respectively and the photocopy of the relevant entry in the admission register as Ex. PW2/C. As per record produced by this witness, the date of birth of child victim is 16.12.2007.
16. PW3 HC Pawan Kumar was lying posted as duty officer in Page 12 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 Police Station Shalimar Bagh on 04.08.2014. He has proved the computerized copy of FIR as Ex. PW3/A, endorsement made by him on the rukka as Ex. PW3/B and certificate u/s 65B of Evidence Act as Ex. PW3/C.
(e) Witnesses of investigation In this category, the evidence of PW4 Ct. Suman, PW10 Ct. Rajender and PW11 W/SI Sarita, is there.
17. PW4, W/Ct. Suman deposed that she joined the investigation of the present case with PW11 W/SI Sarita on 12.10.2013 and on that day, she along with PW11 went to quarter no. 354, Third Floor, Police Colony, where they met complainant/PW6 Smt. Sanju, who gave her complaint in writing to the IO. She further deposed that IO also recorded the statement of the child victim, in questionanswer form in the presence of a counselor and thereafter, they returned to the PS, where IO handed over the statement of the complainant to the duty officer.
18. PW10 Ct. Rajender joined the investigation of the present case with PW11 W/SI Sarita on 13.10.2013 (date was led to the witness by ld. Addl. PP), at the time of arrest and personal search of the accused and deposed regarding the same. He further deposed that on that day, he also got the accused medically examined at BJRM Hospital.
Page 13 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 19, PW11 W/SI Sarita, is the Investigating Officer of the case and she, in her evidence has deposed that on 09.10.2013, at about 11:00 PM, on receipt of information of DD no. 61A Ex. PW11/A, regarding confinement of a small girl aged about 5 years in house No.357, Police Colony, Shalimar Bagh, she immediately reached at the PS and after receipt of copy of said DD, she along with L/Ct. Vinod reached the house of the victim i.e. House No.354, Police Colony, Shalimar Bagh, where they met complainant/PW6 Smt. Sanju and her daughter i.e. child victim. She further deposed that after making inquiry, she got the child victim medically examined at BJRM Hospital vide MLC and thereafter, she asked complainant to give her statement, but she refused to give her statement on that day. She further deposed that thereafter, on 12.10.2013, on the instructions of SHO, she along with L/Ct. Suman again reached at the house of the complainant, where they met complainant and her daughter and the complainant gave her handwritten complaint Ex. PW6/A to her. She further deposed that after getting counseled, the child victim through Smt. Taruna, counsellor, she prepared rukka Ex. PW11/A on the basis of the statement of the complainant and got the FIR in the case registered. She further deposed about preparation of the site plan Ex. PW6/B at the instance of complainant. She further deposed that on 13.10.2013, accused Gurucharan Singh @ Kaku was apprehended and arrested vide arrest memo Ex.PW6/C and was personally searched vide personal search memo Ex.PW6/D. She further deposed about getting the accused medically examined and about getting the statement of child victim u/s 164 Cr.P.C Page 14 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 recorded through the learned MM. She further deposed about collecting the age proof of the child victim from the concerned school, about preparation the charge sheet and filing the same in the court.
During crossexamination by learned defence counsel, the PW11 termed it correct that complainant was posted in the same police station where she was posted prior to the incident. She further stated that she had not taken the statement of any public witness on 09.10.2013 as it was late night hours and no one was available there at that time. She further stated that she had mentioned on the endorsement that the complainant had refused to give any statement on 09.10.2013. The witness admitted having knowledge about the compromise, which was arrived at between the complainant and the accused and stated that a letter was written by the complainant to this effect that she did not want to proceed with the complaint against the accused, but she had not placed on record the said compromise letter. The witness failed to give any specific reason for not placing the same on judicial file. However, the witness showed her unawareness about filing of another case u/s 354 IPC by the complainant against one other person or about any compromise in the said case by the complainant. She further stated that the complainant never contacted police between the intervening night of 09/10.10.2013 to 12.10.2013. She further stated that the complainant had given in writing on 09.10.2013 that she did not want to proceed with the case against the accused, to her, but she did not place the same on record. The witness failed to give any specific reason for the same. Page 15 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 Arguments
20. The learned Addl. PP has very vehemently argued that the evidence of child victim is consistent with her statement recorded by the IO. Even, the mother of child victim is consistent in her statements Ex. PW6/A, Ex. PW1/B and in her deposition in court. It is next argued that the accused has taken a false defense in the matter and he has not been able to substantiate the same in accordance with Section 30 of Act.
21. Per contra, the learned defence counsel has raised following arguments in the matter :
(a) that there is an unexplained delay in recording of FIR in the matter, which is fatal to the prosecution case ;
(b) that the accused has been falsely implicated in the case ;
(a) delay in recording of FIR in the matter
22. It is very vehemently argued by the learned defence counsel that as per the prosecution case, the sexual assault upon the child victim was committed by the accused on 09.10.2013 at about 4.30 pm, but the FIR in the matter was registered on 12.10.2013 at about 08.30 pm. It is further argued that there is no explanation on record for the aforesaid delay.
23. Per contra, the learned Addl. PP has argued that different people react differently under different situation, whereas some become speechless, some Page 16 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 start wailing while some others go to shock. As a matter of fact, it depends upon individual and individual and there cannot be a set pattern or uniform rule of human reaction. There are cases where the victims have chosen to suffer the ignominy rather than to disclose the true facts to even the near and dears available around. In this case, when the offence was committed upon the child victim, he was alone and as soon as, he met with his elder brother, he reported the matter to him, who further reported the matter to the police.
24. The learned defence counsel has cited following judgments in support of his contention.
25. In case titled as Rajinder Prasad & Anr. vs. State, in Crl. A. 8/2000, decided on 19.05.2004, the Hon'ble High Court of Delhi, has been pleased to hold that : In criminal trail, one of the cardinal principles is registration of earliest information as FIR. As observed by Hon'ble Supreme Court in Lalita Kumari V/s Govt. of Uttar Pradesh and Ors., MANU/SC/1166/2013 :
(2014) 2 SCC1, the object sought to be achieved by registering the earliest information as FIR in interalia twofold:One, that the criminal process is set into two motion and is well documented from the very start ;
and Second, that the earliest information received in Page 17 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 relation to the commission of a cognizable offense is recorded so that there cannot be any embellishment, later. In case there is delay in lodging the FIR, the court looks for plausible explanation for the delay in lodging the report. The reason is obvious. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished the version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming to the police or before to the court, the court always views the allegation with suspicion and looks for satisfactory explanation. If no such explanation is found, the delay is treated as fatal to the prosecution case.
26. In Thulia Kali v. The State of Tamil Nadu, MANU/SC0276/1972:
(1972) 3 SCC 393, it was held that the delay in lodging the first information report quite often results embellishment as a result of afterthought. On account of delay the report not only gets bereft of the advantage of the spontaneity, but also danger creeps in, of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and Page 18 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 consultation.
27. In Ram Jag and Ors. V. The State of UP, MANU/SC/0150/1973 :
(1974) 4 SCC 201, the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case.
Even a long delay can be condoned if the witnesses have no motive for implication of the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution.
28. In the case of Jai Prakash Singh V/s State of Bihar & Anr., MANU/SC/0224/2012: (2012) 4SCC 379, the Hon'ble Supreme Court has been pleased to hold that :
"The FIR in criminal case is vital and valuable piece of evidence thought may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstance in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eyewitnesses present at thte scene of occurrence. If there is a delay in lodging the FIR, it losses the advantage Page 19 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the Fir is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question.
29. Per contra, ld. Addl. PP has relied upon the law as laid down by the Hon'ble Supreme court in the case of Ramdas & Ors. Vs. State of Maharashtra, (2007) 2 SCC 170, which is reproduced hereunder : "24. ........... In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good Page 20 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."
30. Adverting to the facts of the present case, as per the testimony of PW6, she had come to know of the sexual assault committed upon child victim in the evening of 09.10.2013 itself and she had even called the police by calling at number 100 and the information which she had got recorded and Page 21 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 is depicted in DD no. 61A (Ex. PW11/A) is "paanch saal ki ladki ko makan number 357 ke kamre me subah se band kar rakha hai'. Admittedly, this call was made by PW6 herself, which is contrary to her statement recorded by the police on 12.10.2012 (Ex. PW6/A). There is no explanation whatsoever as to why, she did not make any statement to the police on 09.10.2012 itself, particularly, when the child victim had already been medically examined and the counselor had made an attempt to elicit truth from her as well as the child victim. That was the earliest opportunity with PW6 and the child victim, when the pain of the incident was still fresh in their memories. It is evident that both these witnesses did not say a word against the accused on the said day. In Ex. PW6/A, PW6 has gone on record to say that she had given in writing to the IO that she did not want any action in the matter. IO PW11 has duly endorsed the aforesaid stand of PW6.
31. The some semblance of explanation for delay in approaching the police by PW6 for getting her statement recorded has come in her cross examination, wherein she stated that about 15 days prior to the incident, she had heard that the accused had also misbehaved with his maid servant and his own sisterinlaw (bhabhi). What kind of misbehaviour was it, has not been specified by her. This explanation does not appear bonafide as it was not after the incident that she came to know of the same. This knowledge about the misbehaviour of the accused was certainly there, when the police had reached her house on 09.10.2013 and she should have been naturally agitated about the Page 22 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 behaviour of accused at that time. But it is evident that she did not want any action in the matter at that time and as per her own saying, she gave it in writing to the IO that she did not want any action against the accused in the matter. This on the face of it, appears to be unnatural conduct. Therefore, this court is of the firm belief that the prosecution has not offered any reasonable explanation for delay in recording of FIR in the matter and as such, the version of child victim to be tutored and of that of PW6 being coloured cannot be ruled out.
(b) False Implication of the accused
32. The learned defence counsel has very vehemently argued that no credence can be given to the evidence of child victim as well as her mother PW6 as the child victim being of tender age and gullible, could be easily tutored by PW6 to depose in a particular fashion, so as to rope in the accused for some extraneous reasons. It is further argued that PW6 is in the habit of making complaints of sexual harassment against other persons. To butterous this argument, reliance has been placed upon one another case FIR bearing no. 453/2013, u/s 354/406 IPC registered at the instance of PW6 in police station Ashok Vihar against her colleague ASI Subhash Chnader. (Ex. PW6/DA) The FIR in the said matter was quashed by the Hon'ble High Court vide judgment dated 25.07.2014 in Criminal Misc. Case no. 3103/2014, titled as Sh. Subhash Chander vs. State & Anr. (mark C). Both these documents have not been denied by PW6. On the basis of the aforesaid two Page 23 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 documents, it is contended that PW6 had made a false complaint against her colleague ASI Subhash Chander and later on, settled the same with him for the considerations best known to her.
33. It is next contended that after reporting the matter to the police, even in this case, on 09.10.2013, she had herself settled the matter with accused on 10.10.2013, as admitted by her in her statement Ex. PW6/A. This factum has been admitted by IO PW11. The relevant part of the testimony of IO in this regard is as under : " xxxxxxx I had mentioned on the endorsement that the complainant had refused to give any statement on 09.10.2013. I am aware that a compromise was arrived at between the complainant and the accused and a handwritten letter was written by the complainant to this effect that she does not want to proceed the complaint against the accused. I was given the copy of the said compromise letter. I had not placed on record the said compromise letter. I had no specific reason to place the same on judicial file. I had not even mentioned the said fact in the charge sheet. It is correct that even the SHO was aware of the said facts.
xxxxx"
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FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 "xxxxxxx The complainant never contacted us between the intervening night of 09/10.10.2013 to 12.10.2013. The complainant had given in writing on 09.10.2013 that she does not want to proceed with the case against the accused, to me.
xxxxx"
34. The said letter in writing given by PW6 to SHO of PS Shalimar Bagh, is on record, as mark A, which is reproduced as under : "xxxxxx Savinya Nivedan is prakar hai ki maine kisi shaq ke aadhar par PCR ko ek call ki thi ki mere neeche rehne wale QTR. No. 357 ek ladke jiska naam kaku ne meri beti Sunaina umer 5 saal ko apne ghar bulakar kuch badtamiji ki hai jo maine gusse mein aakar call ki thi, jo maine apni beti se iss bare mein poocha jisne bataya ki kaku ne mujhe khane ke liye biscuit diye the, ye sab meri galat fehmi ki wajah se ho gaya hai. Ab koi karyawahi nahi chahati hai. Yeh sab maine apne pati va gharwalon se pooch kar va bina dabav ke likh rahi hoon.
Sd/ Sanju Kumari xxxxxxx"
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FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015
35. The defence has also examined DW1 ASI Kanwar Pal Singh to prove the aforesaid letter of PW6. On the strength of aforesaid facts, it is contended by the learned defence counsel that the possibility of PW6 having tutored the child victim to depose about sexual assault upon her, against the accused cannot be ruled out. The learned defence counsel has placed reliance in the law as laid down in the following judgments.
36. In the case of Atender Yadav vs. State (Govt. of NCT of Delhi), decided on 29.10.2013 having Crl. A. 1340/2010, the Hon'ble Delhi High Court has been pleased to hold that : "xxxxxxx We cannot shut our eyes from the fact that the prosecutrix is a child and more often the children can be easily swayed away and are prone to tutoring, therefore the statement of the child witness should always be scrutinized with great care and caution, more particularly in a case where there is a serious hostility between the husband and wife and there are fair chances for the child to act at the behest of one such party in his/her pursuit of settling scores against the other party. In such cases, not only the court has to search for reliable corroborative evidence either oral or documentary, as a matter of prudence, but must also feel satisfied that such a child is not playing in the hands and dictation of any family member or other person who may be in a better position to have a command and dominance over the child and who has Page 26 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 some sinister agenda of settling scores with the other party named as accused in the commission of any crime. This precaution is necessary because child witness is amenable to tutoring and often lives in the world of makebelieve. The cases of false implication in rape cases are not uncommon and in some cases parents do persuade gullible or obedient daughter to make false charge of rape either to take revenge or for wreaking vengeance on the accused. We are not here suggesting that in every case the testimony of child witness should be looked upon with suspicion, but before the same is believed as a reliable and truthful statement, due care and caution should be taken looking into all the facts and circumstances of the case especially where the accused happens to be a member of the family and there is another member in a commanding and dominating position to influence and tutor the child in getting the case registered against the other for settling his own scores and vendetta.
xxxxx."
37. In the case of Samey Singh vs. State, 1998 [1], JCC [Delhi) 217, the Hon'ble Delhi High Court has been further pleased to hold that : "xxxxxxx It is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring. We, therefore, think that appellant 1 was entitled to a benefit of doubt.
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13. Ms. Thakur also placed reliance on Division Bench judgment of this Court Vijay Kumar Vs. State, ILR(1981) II Delhi, 449. In this case, the well settled principle of law has been reiterated. The court observed that if a person is to be convicted on the testimony of a child, it has to be ensured that the child had not been tutored and there is some corroboration available. Ms. Thakur submitted that this case also had great bearing on the facts of this case because in the instant case, the prosecutrix has been coached and tutored and there is no corroboration of her testimony. The entire conviction is based solely on the testimony of this minor girl Sunita.
14. I have heard the learned counsel appearing for the appellant and I find considerable force in the submission of the learned amices curiae. The learned counsel for the State could not support the prosecution story. The testimony of baby Sunita gives a clear impression that she was coached and tutored before she gave the statement and it is also clear from the number of the questions she had answered in the crossexamination. Her crossexamination runs counter to her examinationin chief. The medical evidence also proves the innocence of the accused. There is not plausible explanation for undue delay in filing the first information report in this case. On consideration of all these factors, the benefit of doubt must go to the accused. The appeal is accordingly allowed and disposed of. The appellant is acquitted of all the charges. The bail bonds are cancelled."
xxxxxxx:"
38. If the law laid down in the aforesaid judgments is applied to the facts and circumstances of the present case, then the false implication of the Page 28 of 29 FIR No. 391/13 : State V/s Gurucharan Singh @ Kaku : PS Shalimar Bagh DOD: 06.06.2015 accused in the matter by PW6 by using child victim as a tool cannot be ruled out.
39. The learned defence counsel has in the end argued that it is well settled law that if, two views are possible on the basis of evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, then view favourable to the accused should be adopted. Moreover, if reasonable doubt arises regarding guilt of accused, then benefit cannot be withheld fro the accused. (Ref. Kali Ram Vs. State of Himachal Pradesh, AIR 1973, SC 2773)
40. In view of the aforesaid discussion, there is a reasonable doubt about the genuineness of the case of the prosecution against the accused. The accused is accordingly accorded benefit of doubt in the matter and he stands acquitted from the charges. Bail bond in compliance of Section 437A furnished and accpeted.
41. File be consigned to Record Room.
(Announced in the open ) (Vinod Yadav)
(Court on 06.06.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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