Delhi District Court
Ad (Delhi) 170 State vs . Jai Hind : on 13 September, 2013
1 IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA, ADDITIONAL SESSIONS JUDGE01 (WEST):DELHI SC No. 06/12 Unique Case I.D. No. 02401R0612132011 FIR No. 504/11 PS Uttam Nagar U/s 363/376/506 IPC State Vs. Sunil Kumar S/o Shri Kishan Chand R/o E16, Om Vihar, PhaseV, Uttam Nagar New Delhi. ... Accused Date of Institution : 12.01.2012 Date of arguments : 11.09.2013 Date of Judgment : 13.09.2013 JUDGMENT
In brief, the case of the prosecution is that on 18.10.11, complainant Shri Vijay Kumar lodged the missing report of her daughter (prosecutrix) aged about 7 years as she has been missing since 9.30 p.m. on 17.10.11. On this information, FIR was registered. The complainant along with prosecutrix and other relatives came to the police station and alleged that the prosecutrix has been raped by the accused Sunil. The prosecutrix was got SC No. 06/12 Page 1of 14 2 medically examined from DDU Hospital. The accused was arrested from Dwarka More Metro Station and he was medically examined from DDU Hospital. The statement of the prosecutrix was got recorded U/s 164 Cr.PC in which the prosecutrix has stated that accused has taken her to a lonely place and had raped her. The accused has also threatened the prosecutrix with threat to her life.
2. After investigation of the case, the charge sheet has been filed U/s 363/376/506 IPC. Charge U/s 363/376/506 IPC has been framed against the accused. The accused has pleaded not guilty to the charge.
3. In order to prove its case, the prosecution has examined 13 witnesses. Statement of the accused U/s 313 Cr. P.C. was recorded in which he had denied the case of the prosecution. The accused has not led any evidence in his defence.
4. I have heard the Ld. APP for the state and Ld. counsel for the accused and perused the evidence on record.
PW1 ASI Mahendra Pal has proved the FIR as Ex. PW1/A and DD No. 15A as Ex. PW1/C. PW2 Vijay Kumar has deposed that he had sent the prosecutrix aged about 8 years to the house of his inlaws since she was aged about 1/1½ years. In the intervening night of 17/18.10.11, the prosecutrix went missing and he was informed about the missing by the maternal uncle of the prosecutrix at about 10.00 pm on telephone. He went to the house of his in laws and searched for the prosecutrix. At about 11.00, pm missing report of the SC No. 06/12 Page 2of 14 3 prosecutrix which is Ex.PW1/C was lodged in the police station. On 18.10.11, at about 6 a.m. the prosecutrix returned home in perplexed condition and she was half naked. On repeated asking, the prosecutrix told them about the incident. He immediately made a call to the police at No. 100 and there was no response. He took the prosecutrix at police station at about 7.00 am and the prosecutrix was got medically examined at DDU hospital. After the medical examination, they returned to the spot as told by the prosecutrix. Crime team had also reached at the spot. They, then went to the house of the accused but the accused was not found there. They searched for the accused and when they reached at the Dwarka Mode near Metro Station the accused was apprehended on the pointing out of the prosecutrix. The accused was arrested vide memo Ex.PW2/A. The underwear and two pairs of Chappals out of which one pair of chappal was of the prosecutrix was also lying at the place of occurrence. The underwear of the prosecutrix was seized vide seizure memo Ex.PW2/E. Two pairs of Chappals were seized vide seizure memo Ex.PW2/F. The witness identified the nicker of the prosecutrix as Ex.P1 and pair of Chappal of the prosecutrix as Ex.P2 and another pair of gents Chappal as Ex.P3 which were lying at the spot.
In cross examination, PW2 has deposed that he had visited the PS for about 23 times. He do not know the accused personally. The place of occurrence is at a distance of about 400 meters from the house of his inlaws. There were thorny bushes at the spot and it was dark place. The accused was arrested at 5.00 pm. He has denied the suggestion that the accused has been SC No. 06/12 Page 3of 14 4 falsely implicated in this case at the instance of his brother in law namely Surender.
PW3, the prosecutrix aged about 8 years has deposed that at the time of incident, she was living in the house of her maternal uncles and her maternal grandfather and was studying in class 2nd. On the day of incident, her maternal uncle Surender has sent her to bring curd by giving her Rs. 5/ or Rs. 10/. She went to the dairy outside the gali where the house of her maternal uncle is situated. That dairy was closed at that time. When she was returning towards the house of her maternal uncle, the accused met her on the way. She knew the accused and his name as she used to see him in the gali, where the house of her maternal uncle is situated and the accused had told his name to her on the date of incident. He asked about the name of her parents. He said that he would give her Rs. 100/. Thereafter, he told her to go. When she was proceedings towards the house of her maternal uncle, he again called her and told her that he would give her a lolypop. The accused took her to a place where there was thorns. One boy and girl were sitting there and nobody else was present there at that time. The accused again told her that he would give her a lolypop. Thereafter the accused removed her underwear and also removed his own underwear. When she told him no to do so, the accused gave her fist blows in her stomach and also pulled her hair and also threatened her that if she wept or shouted, he would stab her with a knife. Thereafter, the accused put his urinating part into her urinating part. He felt severe pain in her urinating part and she had started bleeding and her hands and legs were got SC No. 06/12 Page 4of 14 5 smeared with blood. She became semi conscious. She was feeling pain due to pricking of thorns of her body also. When she got up, she saw the accused sitting beside her and she was also feeling cold. The accused had put his shirt on her body. When she tried to weep, the accused gave her fist blows. In the morning, she went back to her house on her own. She told the whole incident to her mother. She was taken to the police station. Police recorded her statement. She was taken to the hospital. Her clothes were taken by the doctor. Her statement was recorded in the court which is Ex. PW3/A. She has not identified the nicker but has identified her pair of chappal as Ex. P2.
In cross examination, PW3 has deposed that the accused is the friend of her maternal uncle namely Surender. She do not know where the accused was residing and the she do not know the accused prior to the alleged incident. There are so many houses in the gali of her residence. She do not remember the colour of the clothes which she was wearing at the time of incident. However, she was wearing nicker and T. Shirt. The place where the accused had taken her falls in another gali. When she was crying, the accused had threatened to kill her with knife. She has denied the suggestion that she was tutored by her parents as well as her maternal uncle who had enmity with the accused for the last several years.
PW4 ASI Ajit Singh is the Incharge of the crime team and has visited the spot on 18.10.11. PW4 has deposed that at the spot, an underwear of a girl and two pairs of chappal were found and all these were seized by the IO. He proved the crime team report as Ex. PW4/A. SC No. 06/12 Page 5of 14 6 PW6 Bahadur Singh has deposed that the prosecutrix is the daughter of his daughter. She has been residing along with them since the time when she was one year old. In the intervening night of 17/18.10.11, at about 9.30 pm, he gave an amount of Rs.10/ to the prosecutrix to bring curd. After about 15 minutes, when the prosecutrix did not return, he went for the search of the prosecutrix. On 18.10.11 at about 6.00 am, the prosecutrix returned and there was no single cloth on her body. The prosecutrix told them about the incident. The prosecutrix was taken to the police station and was got medically examined from DDU Hospital. Police officials inspected the place of occurrence and prepared the site plan and has also seized the clothes and Chappals lying at the spot. The accused was apprehended near Dwarka more Metro Station. He has identified the case property.
PW7 H.C. Rattan Lal is the MHCM and he has proved the relevant entry in the register No. 19 regarding the deposit of pulandas with him and handing over the same for depositing in the FSL Rohini as Ex. PW7/A. PW8 Dixit Kumar, Additional Teacher, Supreme Model School, Uttam Nagar has deposed that the prosecutrix was admitted in their school on 22.7.10 and her date of birth is 4.6.04. He has proved the school record as Ex. PW8/A, copy of affidavit as Ex. PW8/C and certificate as to the date of birth of the prosecutrix as Ex. PW8/D. PW9 Lady Ct. Suchitra has deposed that she had taken the prosecutrix for medical examination to the DDU Hospital.
PW10 Dr. Deepshikha has deposed that on 18.10.11,she had SC No. 06/12 Page 6of 14 7 examined the prosecutrix and has referred the patient to Gynae/Surgery Department and has proved the MLC of the prosecutrix as Ex. PW10/A . On 18.10.11, the prosecutrix was examined by Dr. Nakul who has left the services of the hospital. As per local examination of the prosecutrix, there was redness around the hymen and the hymen torn, no active bleeding or injury present. The MLC prepared by Dr. Nakul Ex. PW10/B. The accused Sunil Kumar was examined by Dr. Alok who has left the services of the hospital and has proved the MLC of the accused as Ex. PW10/C. As per MLC, there is nothing to suggest that the accused cannot perform sexual act.
PW10 H.C. Anil Kumar is the photographer and has taken the photographs of the spot and has proved the photographs as Ex. PW10/A to Ex. PW10/F and its negative as Ex. PW10/1 to Ex. PW10/6.
PW11 Shri Rajinder Kumar, Ld. MM has proved the statement of the prosecutrix recorded U/s 164 Cr.PC as Ex. PW3/A and his certificate as Ex PW11/A. PW13 ASI Sushma is the Investigating Officer of the case and she has deposed that on 18.10.11, the investigation of the case was marked to her and they tried to trace the prosecutrix. In the same evening, the parents of the prosecutrix informed that the girl had been traced. The prosecutrix was brought to the PS and was sent to hospital for medical examination. She along with other staff left for the spot. Crime team was also called at the spot. One underwear of green and Mehroon colour of prosecutrix was found lying at the spot which was seized vide memo Ex. PW2/A. One pair of chappal belonging SC No. 06/12 Page 7of 14 8 to the prosecutrix and one pair of chappal belonging to the accused were also recovered from the spot and same were seized vide memo Ex. PW2/F. The prosecutrix was also brought at the spot by Ct. Suchitra and who had handed over me the sealed exhibits which she seized vide memo Ex. PW9/A. She prepared site plan Ex. PW13/A. The accused was apprehended at the instance of the prosecutrix near Dwarka More, Metro Station. The accused was arrested vide memo Ex. PW2/A. The accused was taken to hospital for his medical examination. The statement of the prosecutrix was got recorded U/s 164 Cr.PC. She has identified the case property.
In cross examination by Ld. defence counsel, PW13 has deposed that at about 34 p.m. the parents of the prosecutrix has informed her that the girl had been traced. She do not remember at what time they reached at the spot. They remained at the spot for half an hour and they left the spot at about 5.30 p.m. All the writing work was done by her at the spot. The accused was apprehended at about 6.30 p.m. PW5 H.C. Parveen Kumar and PW12 Ct. Nawal has joined the investigation with PW13 and has supported the testimony of PW13.
5. Ld. Counsel for the accused has argued that the accused has been falsely implicated in the case. The prosecutrix is a tutored witness as she has deposed under the influence of her maternal uncle namely Surender as Surender has enmity with the accused. The testimony of the prosecutrix is not reliable. From the evidence on record, the prosecution has failed to prove its case against the accused. On these grounds, it is prayed that the accused be SC No. 06/12 Page 8of 14 9 acquitted.
On the other hand, Ld. APP has argued that from the evidence on record, the prosecution has proved its case beyond reasonable doubt against the accused.
6. PW2 is the father of the prosecutrix and has deposed that the age of the prosecutrix was about 8 years at the time of incident. PW3, the prosecutrix has deposed her age as 8 years, when she was examined in the court on 30.10.12. PW8 has proved the school record and has deposed that as per the school record, the date of birth of the prosecutrix is 4.6.04. The date of alleged commission of offence is 17.10.11. After considering this date of birth, the age of the prosecutrix come to about 7 years four months on 17.10.11.
Ld. counsel for the accused has argued that the evidence of the prosecutrix is not reliable due to her tender age and being tutored by her maternal uncle namely Surender.
It has been observed by Hon'ble High Court of Delhi in 2012 VI AD (Delhi) 170 State Vs. Jai Hind :
31. " The law with regard to the testimony of child witnesses can be summed up thus. The conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same. (Ratansinh Dalsukhbai Nayak Vs. State of Gujrat 2004 (1) SCC 64) It should be accepted albeit with circumspection. This decision had accepted the observations Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341) where it was held that:
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of SC No. 06/12 Page 9of 14 10 conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
In Pacchi Vs. State of U.P AIR 1998 SC 2726 it was held:
"It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring."
It has been observed by Hon'ble High Court of Delhi in 2013 VI AD (Delhi) 743: "In view of the legal proposition enunciated above, a child witness is a competent witness provided statement of such witness is reliable and truthful. A conviction can be based on the sole testimony of a child witness. The only precaution, which the Court should bear in mind while assessing evidence of a child witness is that witness must be a reliable one and his demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule of practice that in every case evidence of such a witness be corroborated by other evidence before a conviction could be allowed to stand, but as a rule of prudence, court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record."
SC No. 06/12 Page 10of 14 11 PW3 has supported the case of the prosecution. PW3 has deposed that when she was proceedings towards the house of her maternal uncle, the accused met her on the way and told her that he would give her a lolypop and took her to a place where there were thorns. The accused gave her fist blows on her stomach and also pulled her hair and also threatened her that if she wept or shouted, he would stab her with a knife. The accused removed her underwear and also removed his own underwear. The accused put his urinating part into her urinating part. The testimony of PW3 is also corroborated by her MLC Ex. PW10/B which shows redness around her hymen and her hymen torn.
7. PW2 has deposed that after medical examination of the prosecutrix, they returned to the spot as told by the prosecutrix. At the spot, the underwear of the prosecutrix which is Ex. P1, pair of chappal of the prosecutrix which is Ex. P2 and another pair of gents chappal which is Ex. P3 were lying at the spot.
PW4 ASI Ajit Singh who is the Incharge of the Crime Team and PW13 ASI Sushma who is the Investigating Officer of the case has also corroborated the testimony of PW2 that these articles were found lying at the spot. The site plan of the spot of incident has been proved as Ex. PW13/A. From the evidence on record, the prosecution has proved the spot of incident i.e. Vacant Plot, Village Nawada, Uttam Nagar.
8. The defence of the accused that the accused has been falsely implicated in the case as the maternal uncle namely Surender of the prosecutrix SC No. 06/12 Page 11of 14 12 has an enmity with the accused. PW2, PW3 and PW6 has been crossexamined by the accused, but no such material has been come on record to prove the defence of the accused. The accused has also not led any evidence in his defence.
Ld. counsel for the accused has pointed out the contradictions in the testimony of the prosecution witnesses as to the time when the accused was apprehended and as to the time, when the prosecutrix was produced in the PS, but in my view these contradictions are minor in nature and they do not affect the case of the prosecution on merits.
9. It has been observed by the Hon'ble Supreme Court in AIR 2004 Supreme Court 1497 as follows:
"It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice."
It has been observed by Hon'ble Supreme Court in 2005 VIII AD (S.C.) 328 as follows:
"A plethora of decisions by this Court as referred to above would show that once the statement of the prosecutrix inspires confidence and is accepted by the courts as such, SC No. 06/12 Page 12of 14 13 conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Nonexamination of doctor and nonproduction of doctor's report would not be fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence."
It has been observed by the Hon'ble Supreme Court in 1996 2 SCC 384 as follows:
"If evidence of the prosecutrix inspires confidence, it must be relief upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice."
PW3 has been crossexamined by the accused, but no such material has been come on record to disbelieve her testimony. Moreover, the testimony of PW3 is also corroborated by her MLC Ex. PW10/B and by her statement recorded U/s 164 Cr.PC which is Ex. PW3/A. The testimony of PW3 is reliable and inspire confidence.
10. In view of the above discussions, the prosecution has proved its case beyond reasonable doubt against the accused that he has kidnapped the prosecutrix and has committed rape upon her and has threatened her with threat to her life. Accordingly, the accused is convicted for the offences punishable SC No. 06/12 Page 13of 14 14 U/s 363/376/506 IPC.
Announced in the open court (Rajneesh Kumar Gupta)
today i.e. on 13.09.13 Additional Sessions Judge01/West
Tis Hazari Courts, Delhi
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