Delhi District Court
State vs . Pradeep @ Nihal on 20 March, 2010
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE03,NORTH, DELHI.
FIR No.: 230/2008
PS: Sadar Bazar
U/s: 363/ 366/376 (2) (f) IPC
S.C. No.: 06/2009
In the matter of:
State Vs. Pradeep @ Nihal
S/o Sh. Nihal Singh
R/o House no. 11034, Gali Pipal Wali
Motia Khan, Sadar Bazar, Delhi
Date of receiving in Sessions Court: 17.01.2009
Arguments Heard: 12.03.2010
Date of Judgment: 20.03.2010
J U D G M E N T
Case of the prosecution:
1. Case of the prosecution is that on 26.08.2008, the complainant Mohd. Taiyab alongwith his wife Nazrana Khatun and his minor daughter, the prosecutrix (name withheld to keep her identity confidential) aged two and half years came at PP Ahata Kidara having suspicion of rape with the minor child on which DD no.2 was registered at the Police Post. SI Arun Kumar alongwith Constable Vishram and W/Constable Swati took the S.C. No.: 06/2009 1/19 minor child prosecutrix alongwith her parents to Hindu Rao Hospital where the victim was got medically examined and was treated. SI Arun Kumar recorded the statement of Mohd. Taiyab and on the basis of statement of the complainant Mohd. Taiyab and report of Gynaecologist, prima facie case U/s 363/376/511 IPC was made out. SI Arun Kumar endorsed the statement and sent the rukka through Constable Vishram and got the case registered at P.S. Sadar Bazar and conducted the investigation himself.
During the course of investigation, SI Arun Kumar seized the sealed pullandas containing the undergarments and vaginal slides of the prosecutrix, recorded the statement of Gudia, the sister of Prosecutrix, prepared the site plan on the pointing out of Gudia and complainant Mohd. Taiyab. The IO of the case also seized the case property and recorded the statement of witnesses. On 28.08.2008, accused Pradeep @ Nihal was arrested from Idgah Park, Sadar Bazar at the instance of witness Gudia in the presence of complainant and accused Pradeep pointed out the place where he had committed sexual assault on the victim and pointing out memo was prepared by the IO. After recording the statement of witnesses U/s 161 Cr.P.C. accused Pradeep was got medically examined in Hindu Rao Hospital and his blood samples and clothes were seized by the doctors. During the course of investigation, section 376 IPC was replaced with section 376 (2) (f) of IPC as the victim was less than 12 years of age and also section 511 IPC was removed as the report of examining Gynaecologist mentions bleedings and injuries in sexual organs and reports a strong suspicion of sexual assault. The exhibits were sent to FSL, Rohini for expert opinion. Statement of prosecutrix u/s 164 Cr.P.C. was S.C. No.: 06/2009 2/19 recorded on 18.10.08 by the concerned MM and after completion of investigation, charge sheet U/s 363/376 (2) (f) IPC was filed in the court.
2. Since the offence U/s 376 IPC is exclusively triable by the court of sessions, therefore, after the supply of the documents, Ld. MM committed the case to court of Sessions.
Charge Against Accused:
3. Prima faice case U/s 363/366/376 (2) (f) IPC was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 20 witnesses in all.
5. The brief summary of deposition of the prosecution witnesses is as under:
Formal Witnesses:
6. PW7 is Sh. J.P. Nahar, MM who recorded the statement of prosecutrix U/s 164 Cr.P.C. with the assistance of child psychologist and proved the same as Ex. PW7/B.
7. PW8 is Head Constable Madan Lal who was working as duty officer on 26.8.2008 and had registered the FIR Ex. PW8/A.
8. PW14 is Dr. Rajender Kumar, Assistant Director, from FSL, Rohini who examined the case property and proved his report as Ex. PW14/A and Ex. PW14/B.
9. PW15 is Constable Ram Khiladi who was working as DD writer on 26.8.2008 and recorded the information and version of complainant Mohd. S.C. No.: 06/2009 3/19 Taiyab vide DD Ex. PW15/A. He further stated that at about 2.20 a.m. Lady Constable Swati came to the police post and she took the child victim to Hindu Rao Hospital alongwith her parents and he recorded their departure entry vide DD Ex. PW15/B.
10. PW 17 is Ms. Neelu Sharma, Programme Officer from Prtidhi NGO, Shakarpur Police Station, Delhi who on behalf of her NGO looks after the North District cases of rape victims. She on receipt of information regarding the case, reached at Hindu Rao Hospital and met the prosecutrix and her mother there. She also made enquiries from the prosecutrix regarding the incident and was present with the prosecutrix while her statement U/s 164 Cr.P.C. was being recorded by the Ld. MM.
11. PW18 is ASI Sukhdev Singh who was posted as ASI at PP Ahata Kedara, P.S. Sadar Bazar on 5.11.2008 and on the instructions of the IO, took the sealed parcels to FSL, Rohini alongwith the forwarding letter and other documents and deposited the sealed parcels there. He further stated that till the samples remained in his custody, nobody tampered with the same.
12. PW19 is Head Constable Rajiv Kumar who was posted as MHC (M) at police station Sadar Bazar on 26.08.2008. He deposed that on 26.8.2008, SI Arun Tyagi had deposited with him two sealed parcels alongwith the sample seal and one another sealed parcel. He further deposed that on 28.8.2008, SI Arun Kumar Tyagi had again deposited with him two sealed parcles alongwith the sample seal, personal search articles of the accused and a copy of seizure memo of abovesaid sealed parcels and personal search memo of accused. He further deposed that on 5.11.2008, all the abovesaid sealed parcels were sent to FSL office, Rohini vide R/C no. S.C. No.: 06/2009 4/19 73/21 for expert opinion and the result of the parcels were received on 20.8.2009 and he handed over the result to the IO of the case. He duly proved all the entries in Malkhana Register.
Material Witnesses:
13. PW3 is Manzoor Alam who is the employer of complainant Mohd.
Taiyab and stated that on 28.8.2008, the IO of the case had joined him in the investigation of this case along with Gudia, the sister of prosecutrix, her father Mohd. Taiyab and other police staff. During investigation, they started the search of the accused and when they reached at Idgah park road, the main gate of the park remained closed and beside that there were stair cases and on the same the accused present in the court was sitting. He was identified by Gudia, the sister of prosecutrix and on her pointing out the accused was over called by the police. He further stated that on interrogation, the accused confessed his guilt and he was arrested by the police vide arrest memo Ex. PW3/A and his personal search was taken vide Ex. PW3/B . The accused had pointed out the place of occurrence and police had prepared the pointing out memo Ex. PW3/C. Thereafter, the police recorded his statement and he was discharged.
14. PW4 is Mohd. Taiyab who is the complainant as well as the father of prosecutrix. He stated that on 25.8.08, he was residing in Delhi alongwith his family and used to work on a dhaba of Manzoor Alam on Chamelian Road, Sadar Bazar, Delhi. On that day, his daughter Gudia came to take meal (roti) alongwith his younger daughter i.e. the prosecutrix aged about two and half years at about 10.00PM. They received the meal (roti) and started going to their house. After about two minutes his daughter Gudia returned to him S.C. No.: 06/2009 5/19 and told that during the way a boy met them and he had given her two rupees and asked her to bring Gutka from a shop and he took the prosecutrix in his lap. He was further told by his daughter Gudia that when she returned, that boy was missing from the street alongwith his younger daughter i.e. the prosecutrix. Thereafter he immediately rushed in that street alongwith his daughter Gudia and started searching his younger daughter. When they reached near round about (Golechakkar) Chamelian and Idgah road, he found his younger daughter, the prosecutrix weeping there. He took her to the house and went to his work place and returned back with Roti. Thereafter, he took her to the house and at that time the prosecutrix was lying unconscious. His wife had removed the wearing clothes of prosecutrix, her clothes were smeared with blood and blood was oozing from her vagina. Thereafter, he and his wife took their younger daughter i.e. the prosecutrix to police post and two police officers accompanied them to Hindu Rao Hospital and got the prosecutrix admitted in the hospital. He had handed over the blood smeared clothes of his younger daughter to police and police had taken the same into possession. He suspected that the boy who took his younger daughter in his lap in the street and had sent his elder daughter Gudia to take Gutka had done illegal act due to which blood started oozing from the vagina of his younger daughter and the police had recorded his statement in this regard. He further stated that the police had also made enquiries from his wife and had also recorded her statement. His daughter Gudia had shown the place to police from where Chandni was taken away and the police prepared the site plan. Thereafter on 28.8.2008, he alongwith his employer Manzoor Alam, his daughter Gudia and police staff went in search of the accused and when they S.C. No.: 06/2009 6/19 reached near Idgah Park, one person was sitting on the stairs of park and his daughter Gudia pointed out that person to be the same who had taken away Chandni and that person whose name was revealed later on as Pradeep Kumar was interrogated and arrested by the police.
15. PW5 is the Prosecutrix who has duly supported the case of prosecution and has also identified the accused in the court.
16. It may be mentioned that inadvertently Constable Ramesh Kumar has also been examined as PW5 who was present with the IO, complainant Mohd. Taiyab, his daughter Gudia and Manzoor Alam on 28.8.2008 and the accused was apprehended in his presence. He has also deposed on the lines of PW 3 and PW4 regarding the arrest of accused.
17. PW6 is Constable Vishram who was posted as constable at Police Post Ahata Kedara of Police Station Station Sadar Bazar, Delhi during the intervening night of 25.8.2008 and 26.8.2008. He stated that on that day, one public person Mohd. Taiyab alongwith his wife and daughter Chandni aged about two and half years came to the Police Post and told to SI Arun Kumar Tyagi that someone has committed wrong act with his daughter, the prosecutrix. On this information, the SI had organized a raiding party consisting of abovesaid Taiyab, his wife, the prosecutrix, lady constable Swati and himself. Thereafter they took the prosecutrix to Hindu Rao Hospital and produced her before the concerned doctor who had examined her and prepared her MLC. The IO of the case SI Arun Kumar Tyagi had received the copy of MLC of the prosecutrix and had recorded the statement of Mohd. Taiyab and made endorsement thereon and as per direction of the IO of the case, he took the rukka to police station and produced the same before the S.C. No.: 06/2009 7/19 Duty Officer who had recorded formal FIR No.230/08 on the basis of the rukka. The duty officer handed over a copy of FIR and rukka to him and he returned to Gali Beriwali, where the IO of the case and lady constable Swati and above public persons were present. He handed over the copy of the FIR and original rukka to the IO of the case. He further stated that the prosecutrix had pointed out the place in the street from where she was picked up by the unknown person and the IO of the case prepared the pointing out memo. Accused was tried to be traced but he could not be traced out. Thereafter they returned to the police post and his statement was recorded by the IO of the case.
18. PW9 is Constable Ikramuddin who alongwith the IO, complainant Mohd. Taiyab and PW Gudia had apprehended the accused on 28.8.2008. He has also deposed on the lines of PW 3, PW4 and PW5 Constable Ramesh Kumar. He further took the accused to Hindu Rao Hospital and got him medically examined there.
19. PW11 is Nazrana Khatun, mother of the prosecutrix who has deposed on the lines of PW4, the complainant.
20. PW12 is Gudia, sister of the prosecutrix who stated that before about one year, she alongwith her younger sister i.e. the prosecutrix was going to take Roti at about 9.00 p.m. at the Dhaba of her father and when they were coming back to their house, accused present in the court (to which she correctly identified) met them on the way and he lifted her younger sister in his lap and gave her two rupees for bringing the Tiranga Gutka. When she came back with Gutka, she found that her younger sister was not there and the person who had given her two rupees was also not present there. S.C. No.: 06/2009 8/19 Thereafter she reached at her house and asked her mother about her sister but she replied that her sister was not there. She further stated that she had shown the place to police from where her sister went missing and had told the police about the accused when police was searching the accused with her and police had apprehended him.
21. PW13 is Lady Constable Swati Yadav who stated that on 26.8.2008, she was posted as Constable at P.S. Sadar Bazar. On that day, the duty officer had directed her to reach at PP Ahata Kidara as medical examination of a child/victim was to be got done. Accordingly she went there and the incharge of Police post SI Arun Tyagi met her. Public person Mohd. Taiyab alongwith his wife Nazma Khatun and child/victim Chandni were also present in the police post. Mohd. Taiyab and his wife had told her that their daughter i.e the prosecutrix, aged about two and half years has been raped and on the direction of IO of the case/Incharge Police post, she took the abovesaid child prosecutrix alongwith her parents to Hindu Rao Hospital and produced her before the concerned doctor who had medically examined her. The concerned doctor had sealed the undergarments of child victim and had also sealed a slide with the seal of hospital HRH and handed over the same to her alongwith the sample seal. She also received the MLC of child victim. Thereafter they returned to the police post and she handed over the sealed parcels, sample seal and the MLC of the child victim to SI Arun Tyagi, the IO of the case who had taken the same into possession. She further stated that IO of the case had joined her in the investigation of this case and during investigation, they went to Ahata Kidara. The elder sister of child victim alongwith her parents were also joined in the investigation of the case and S.C. No.: 06/2009 9/19 she had pointed out the place of occurrence to the IO of the case who had prepared site plan on her pointing out and Mohd. Taiyab, the father of child victim had produced a blue colour jeans pant and orange colour top of the child victim and told them that the child victim was wearing the said clothes at the time of occurrence. The IO of the case had sealed the said clothes in a parcel and took the same into possession. She further stated that the IO of the case had recorded her statement in this regard and she was discharged.
22. PW20 is SI Arun Kumar, IO of the case who conducted the investigation of the case, got the medical examination of prosecutrix done and arrested the accused on the pointing out of PW Gudia. He duly proved all the memos and case property.
Medical Witnesses:
23. PW1 is Dr. Mukta Seth, SR (OBG) Hindu Rao Hospital who conducted the gynaecological examination of the prosecutrix and proved her report as Ex. PW1/A.
24. PW 2 is Dr. R.K. Sharma, Medical Officer from Hindu Rao Hospital who had examined the prosecutrix on 26.8.2008 in casualty and thereafter referred her to EMO (Gynae). He proved the MLC as Ex. PW2/A.
25. PW10 is Dr. Sanjoy Dass, SMO from Hindu Rao Hospital who conducted medical examination of accused Pradeep on 28.8.2008 and proved the MLC as Ex. PW10/A.
26. PW16 is Dr. M.K. Panigrahi, CMO, Department of Forensic Medicine who stated that on 28.8.2008 Dr. John Verghese had examined accused Pradeep for potency test and proved the report in this regard as Ex. PW16/A. S.C. No.: 06/2009 10/19
27. Statement of accused U/s 313 Cr.P.C. was recorded wherein accused denied the case of prosecution and stated that the police has falsely implicated him in the present case as they were unable to search out the real culprit or they wanted to save someone else.
28. I have heard the Ld. Amicus Curiae for accused as well as Ld. APP for the State and have carefully perused the record.
29. PW1 is Dr. Mukta Seth who had examined the prosecutrix. She stated that on examination the child was irritable, crying badly, vital stable and there were no signs of injury anywhere on the body except genital areas. She stated that on perineal examination, bleeding was present and slow trickle of dark red colour were there on the undergarments. The undergarment was of cream colour and there were stains of blood, labia minora was congested and bruised and was angry red in colour. The incident in this case is stated to be of the night of 25.08.2008 at about 9.45 to 10.00 P.M. and thereafter the prosecutrix was examined on 26.08.2008 and even at that time, as per the doctor, there was bleeding and slow trickle of dark red colour stains were there on the undergarments. From the testimony of PW1 and MLC Ex. PW1/A, it stands proved that the child was sexually assaulted and there were injury signs on her vaginal areas with labia minora congested and bruised and also angry red in colour.
30. PW1 has been asked only a single question in her cross that whether she can tell about the depth of penetration. In this case, the prosecutrix is a small child of about 3 years when she was produced in the court and at the time of incident, she was only about two and half years old and how much the vaginal organs or the private parts of a child of two and S.C. No.: 06/2009 11/19 half years would have developed at that time, by examination of which the doctor can tell about depth of penetration is a big question, and the doctor has not been examined on this aspect also.
31. PW2 is Dr. R. K. Sharma. He only examined the patient in casualty and thereafter referred her to EMO ( Gynae).
32. PW4 is the father of prosecutrix. He stated that on 25.8.08, he was residing in Delhi alongwith his family and used to work on a dhaba of Manzoor Alam. On that day, his daughter Gudia came to take roti alongwith his younger daughter i.e. the prosecutrix aged about two and half years at about 10.00PM. They received the meal (roti) and started going to their house. After about two minutes his daughter Gudia returned to him and told that during the way a boy met them and he had given her two rupees and asked her to bring Gutka from a shop and he took her sister i.e.the prosecutrix in his lap and when Gudia returned, that boy was missing from the street alongwith his younger daughter i.e. prosecutrix. Thereafter he immediately rushed in that street alongwith his daughter Gudia and started searching his younger daughter, the prosecutrix. When they reached near round about (Golechakkar) Chamelian and Idgah road, he found his younger daughter weeping there. He took her to the house and went to his work place. Thereafter, he took her to the house and at that time his younger daughter, the prosecutrix was lying unconscious. Thereafter his wife had removed the wearing clothes of prosecutrix and her clothes were smeared with blood and blood was oozing from her vagina. Thereafter, he and his wife took the prosecutrix to police post and two police officers accompanied them to Hindu Rao Hospital and blood smeared clothes of the prosecutrix were S.C. No.: 06/2009 12/19 handed over to the police.
33. Ld. counsel for the accused argued that there are discrepancies in the chief and cross examination of PW4 which casts a shadow of doubt on the case of prosecution. I have carefully perused the testimony of PW4. PW4 in his examination has stated that he used to work on the Dhaba of Manzoor Alam and similarly this fact has been mentioned by him in his cross also. In his cross, he has admitted that his Dhaba was near his residence across the road and his wife used to remain with his children for the whole time. He has further stated that his children occasionally used to come at his work place i.e. the Dhaba two or three times in a day and on the day of incident both of his daughters came at his dhaba at about 10.0 P.M. and went back towards their home. So far as the time is concerned, then nobody can be expected to remember each and every minute of the incident. If in the chief examination PW4 has given the time as 10 P.M. and thereafter in his cross examination, he has stated that his daughters had come to his dhaba at about 10.30 p.m., then for this no adverse inference can be drawn. Rather the total inference of the testimony of PW4 is that the incident happened at the night time at around 10 p.m. PW4 though has not stated in chief that a boy Saddam told him that his daughter is missing with some person but for this no adverse inference cane be drawn as the net result of the chief examination and cross examination of PW4 is that the prosecutrix i.e. the younger daughter of PW4 went missing after taking Roti from Dhaba. PW4 has further stated in his cross that he does not know who left his daughter at their residence whereas in his examination in chief he has stated that he found his daughter in unconscious condition at the area of GolChakkar. The witnesses do forget S.C. No.: 06/2009 13/19 after the lapse of time and in the present case, chief examination and cross examination of PW4 was even not recorded on the same day and it was recorded after a gap of six months as the FSL result was not received in the court. PW4 has duly identified the clothes worn by his daughter i.e. the prosecutrix at the time of incident and has also given the colour of clothes worn by his daughter. PW4 has stated that his other daughter Gudia was with them who identified the accused and similarly PW3 who is the owner of Dhaba where PW4 was working has also stated that the other daughter Gudia of PW4 was with them when the police apprehended the accused.
34. PW3 is the another witness of the prosecution who joined the investigation of this case alongwith the father and sister of prosecutrix and the other police staff. He has also stated that the accused was arrested on the pointing out of Gudia. Nothing material has come out of the cross examination of this witness. Rather this witness seems to be a truthful witness as he has stated that he does not remember the name of police officials to whom he dictated his statement . Nobody can be expected to remember each and every name and therefore the testimony of PW3 also inspires confidence.
35. PW5 is the prosecutrix. The testimony of prosecutrix was recorded in Chamber so as to provide a shield from the accused and the accused was brought in the chamber and the prosecutrix after seeing him pointed out towards him and stated that " Isne muje gira diya aur ganda baat kiya" and thereafter the prosecutrix pointed out towards her private parts. Again she stated that " Isne Mera muh dba diya. Isne muje thappad mara. Ha Muje ghar ke paas se le gya tha. Thappad muh pe mare the. Raste me Mara tha. Mai phle bhi aai thi aur ek uncle ji ko saari bate batai thi". Even the accused was S.C. No.: 06/2009 14/19 again produced in the chamber and the prosecutrix submitted that "Isne laal kapde phne the aur ye mujhe le gya tha. Ye mujhe Kuttu park le gya tha. Isne mere sath ganda baat kra tha". The prosecutrix in this case is a child of 3 years but still she has duly supported the case of prosecution. She has duly identified the accused and she also pointed out towards her private parts while saying that accused had committed wrong act with her. She has further stated that she had told these facts to a uncle also. In this case the statement of prosecutrix U/s 164 Cr.P.C. was recorded by PW7 Sh. J.P. Nahar. M.M. who took the assistance of child psychologist in recording the statement of prosecutrix and has proved the report as Ex. PW7/A and Ex. PW7/B. In Ex. PW7/B also, the prosecutrix has stated that she had been sexually assaulted. Though she has not taken the name of accused but she has stated that her all the clothes were removed and thereafter that person urinated over her and she also indicated towards her private part to show that the person had done his urine there and from this the only inference that can be drawn is that the child was of such a small age that when the accused penetrated his penis in his vagina portion, then the child took it as if accused has urinated over her. In the statement U/s 164 Cr.P.C. also, she has stated that she had cried a lot and her this testimony is corroborated by PW1, the doctor who has also stated that the child was crying a lot.
36. In this case the child is very small and therefore, great caution is required in evaluating her evidence as there is every possibility of her being tutored. Perusal of the testimony of prosecutrix PW5 shows that every time, the accused in the present case was called in the chamber, the prosecutrix has not only identified him but also started weeping and pointing out towards S.C. No.: 06/2009 15/19 her private parts where the accused assaulted her. She has repeated only one thing again and again that "Isne muje gira diya aur ganda baat kiya" and her testimony is corroborated by her MLC Ex. PW1/A which fortifies the case of prosecution that the prosecutrix is not lying or not a tutored witness.
37. Ld. APP for the state argued that if the prosecutrix would have been tutored then, she would have taken the name of accused but in the present case she has not taken the name of accused, and therefore there is no possibility that she is tutored witness.
38. In my view, the submissions of Ld. APP for the state bears force.
39. Reliance is placed upon (2008) 12 SCC 565 titled as Nivrutti Pandurang Kokate and Others vs. State of Maharashtra, wherein it was observed that" "Section 118 of the Evidence Act envisages that all persons shall be competent to testify unless the court thinks otherwise. In summing up the various judgments on this issues, this is what this Court had to say:
" The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of makebelieve. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no S.C. No.: 06/2009 16/19 obstacle in the way of accepting the evidence of a child witness".
40. PW11 is the mother of prosecutrix and PW12 is the sister of prosecutrix. From the statement of PW11 who is the mother of prosecutrix, it is clear that the prosecutrix was sexually assaulted and it was the mother of prosecutix i.e. PW11 who for the first time noticed while changing the clothes of her daughter that there was bleeding in her vagina and she got suspicious and thereafter took her daughter to the police station. Nothing material has come out of the cross examination of PW11. PW11 has stated that the incident happened about one year back and she is not able to tell about the month or date . People do forget after the lapse of time and therefore for this no adverse inference can be drawn. Though there are again discrepancies regarding the time of incident in the statement of PW11 but as stated earlier from their testimony, it stands proved that the incident is of night time. PW11 has further stated that her daughter i.e. the prosecutrix was unconscious and regained her consciousness on the next day. Though in the MLC Ex. PW2/A, the patient was conscious oriented as per the doctors but it may be mentioned that it was only in the night time after 3 a.m. which is also the next day that the child was taken to the hospital for her medical examination.
41. PW12 is Gudia, the child and sister of prosecutrix who was going with the prosecutrix to take Roti from Dhaba where her father was working. This witness has also duly identified the accused in the court and stated that the accused met them on the way and he lifted her sister i.e. the prosecutrix in his lap and gave her two rupees for bringing the Tiranga Gutka. When she came back with Gutka, she found that her younger sister was not there and S.C. No.: 06/2009 17/19 the person who had given her two rupees was also not present there. Thereafter she reached at her house and asked her mother about her sister but she replied that her sister was not there. She also stated that she showed the place to police from where her sister went missing and the accused was apprehended on her pointing out. This witness has stated that it was summer time when they had gone to take Roti from the Dhaba. This incident is of August 2008 and now a days, during the month of JulyAugust, generally there is summer time in Delhi. This witness has also been cross examined on the clothes of accused and she stated that the accused was wearing shirt and pant. Nothing material has come out of the cross examination of this witness also.
42. From the statement of PW16 also, it stands proved that the accused Pradeep is well capable to performing sexual intercourse. This fact duly stands proved by the MLC of accused Ex. PW16/A.
43. PW17 is Ms. Neelu Sharma, Programme Officer from Pritdhi NGO who on behalf of her NGO looks after the North District cases of rape victims and in this case also, she met the prosecutrix and her mother and gave the management and counseling to prosecutrix and her parents. She has also been cross examined but nothing material has come out of her cross examination. This witness has stated that whenever the child victim/prosecutrix was not able to understand the questions, then she helped/facilitate her to understand the same.
44. PW18 is ASI Sukhdev Singh who took the samples to FSL, Rohini. FSL report has been proved on record as Ex. PW14/A by Dr. Rajender Kumar. From Ex. PW14/A, it also stands proved that on exhibit 1 S.C. No.: 06/2009 18/19 containing dirty nikkar or the undergarments of the prosecutrix, human semen was detected. Though the blood sample got putrified and, therefore no opinion could be given by doctors whether the blood group of the accused matched with that of the blood sample of semen found on the undergarments of prosecutrix. But in the present case, the victim is a small child of 3 years and, therefore, there is no possibility that she was habitual to sexual intercourse or was sexually assaulted previously also. In such circumstances, the presence of semen on the undergarments of prosecutrix further corroborates the case of prosecution. Though semen could not be detected on the micro slides i.e. slides of vaginal swab, but there is every possibility that when the prosecutrix reached at her house and her undergarments were removed by her mother, then she was also washed away by her mother.
45. So far as the testimony of police officials or the IO are concerned, then though there are slight discrepancies in their testimonies but these discrepancies does not go to the root of the case and fully establish the case of prosecution. As such, the prosecution has been fully able to prove its case against the accused beyond the shadow of doubt. Accused, is therefore, convicted for the offence U/s 363/366/376 (2)( f) of IPC.
(MADHU JAIN) Additional Sessions Judge3 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 20.03.2010.
S.C. No.: 06/2009 19/19