Delhi District Court
State vs . Pappu on 12 February, 2018
State vs. Pappu
IN THE COURT OF SH PRITAM SINGH: ASJ-04/
DWARKA COURT: NEW DELHI
Sessions Case No. 44113/2016
State vs. Pappu
FIR No. : 400/2013
Police Station : Dabri
Under Sections : 506 IPC and section 6 r/w section 5(l) of
POCSO Act
Date of presentation of charge sheet : 18.09.2013
Date on which judgment was reserved : 08.02.2018
Date on which judgment was pronounced : 12.02.2018
JUDGMENT:
1. In brief, the case of the prosecution is that the child victim aged about 13 years was studying in 8th class. Accused Pappu was residing at the house of his sister and was neighbor of the child victim. The child victim used to addressed the accused as 'Mama'. The accused used to ask the child victim to come near to him but she used to ignore him. On 24.05.2015, when a water tanker came in the street of the child victim and all the people from neighborhood went to take water from the water tanker including the mother and brother of the child victim, the accused Pappu took the child victim to her room despite resistance made by the child victim and he lay down the child victim on the bed and removed her pajami and also took off her clothes. The accused put his private part into the private part of the child victim and after the FIR No. 400/13 P.S. Dabri 1 of 28 State vs. Pappu some time let the child victim go by threatening her that if she disclosed the incident to anyone he would kill the child victim and her parents. Similarly, whenever water tanker came to the street of the child victim, such as on 16.06.2013, 19.06.2013 and 20.06.2013, the accused forcibly raped the child victim and also threatened her not to tell to anyone. On 22.07.2013 the child victim had pain in her stomach and she told about the same to her mother. The mother of the child victim took her to a nearby doctor who gave some medicine but the child victim did not get any relief, therefore, at the night the mother of child victim and her aunt (chachi) took the child victim to DDU Hospital. The child victim was having bleeding. The doctor at DDU hospital informed her that she was pregnant. On this, the mother of the child victim brought the child at home and after reaching at home made a call at 100 number. The police came there. On this complaint, the present case was registered. The child was 8 th weeks pregnant on 22.07.2013 as informed by the doctors at DDU Hospital. On the consent of the parents of child victim, the abortion of the child victim was done. The child victim remained in the hospital and thereafter she was discharged.
2. During the investigation, the statement under section 164 Cr.P.C. of the child victim was recorded. The medical examinations of the child victim and of the accused were conducted. Four samples i.e. products of conception for FIR No. 400/13 P.S. Dabri 2 of 28 State vs. Pappu histo pathology, second sample of conception for DNA, two blood samples of the victim and blood sample of the accused in sealed condition were handed over to the IO and the same were sent to FSL for examination. The statement u/s 161 Cr.P.C of the witnesses were recorded. The record in respect of age of the child victim from her school was obtained. The accused was arrested and sent to jail.
3. After completion of the investigation, the charge-sheet under section 376/506 IPC and Section 6 of POCSO Act was filed against the accused. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr.P.C. On 29.10.2013 charge for offence under section 506 IPC and section 6 r/w section 5(l) of POCSO Act was framed against the accused. The accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove the charge against the accused examined child victim as PW-1, Dr. Rajesh Dudeja, Medical Director was examined as PW-2, mother of child victim as PW-3, father of child victim as PW-4. Sh. Manoj Kumar, Executive (Administration) from school of the child victim was examined as PW-5, Dr. Swati Shree, Emergency Medical Officer, DDU Hospital was examined as PW-6, Dr. Sumana, Senior Resident and Dr. Rishi, Medical Officer from DDU hospital were examined PW-7 and PW-8, respectively. Aunt of child victim was examined as PW-9, Ct. Manoj Kumar FIR No. 400/13 P.S. Dabri 3 of 28 State vs. Pappu was examined as PW-10, WASI Darshna was examined as PW-11. Ms. Manu Vedwan, Ld. Metropolitan Magistrate, Dwarka Courts was examined as PW-12. HC Jai Singhwas examined as PW-13, Ct. Shri Omwas examined as PW-14, HC Raj Singh was examined as PW-15 (inadvertently he was also examined as PW- 18 second time) Smt. Monika Chakravarty, Senior Scientific Assistant/Reporting Officer, FSL, Rohini was examined as PW-16. SI Mukesh Yadav was examined as PW-17, Inspector Nirmal Sharma was examined as PW-
19.
5. The following documents were relied upon by the prosecution during its evidence, as under:
(i) Proceedings u/s 164 Cr.P.C of child victim Ex.PW-1/A
(ii) Statement u/s 161 Cr.P.C. of child victim Ex.PW-1/B
(iii) Prescription Slip dated 21.07.2013 of Ex.PW-1/D1 Rashi Medical Cenre
(iv) Photocopy of relevant page of admission Ex.PW-5/A (OSR) register of child victim in school
(v) Photocopy of admission form of child victim Ex.PW-5/B (OSR) in school
(vi) Photocopy of affidavit regarding date Ex.PW-5/C (OSR) of birth of child victim
(vii) Certificate dated 03.08.2013 Ex.PW-5/D1
(viii) MLC of child victim Ex.PW-6/A
(ix) MLC of accused Ex.PW-8/A FIR No. 400/13 P.S. Dabri 4 of 28 State vs. Pappu
(x) Arrest memo of accused Ex.PW-10/A
(xi) Personal search of accused Ex.PW-10/B
(xii) Computer generated copy of FIR Ex.PW-11/A
(xiii) Endorsement made on rukka Ex.PW-11/B
(xiv) Certificate issued by Ld. MM regarding Ex.PW-12/A Proceeding u/s 164 Cr.P.C of child victim
(xv) Application for supplying copy of statement Ex.PW-12/B recorded u/s 164 Cr.P.C of child victim (xvi) Photocopy of DD No. 6A Ex.PW-13/A (OSR) (xvii) Photocopy of relevant page of Ex.PW-15/A (OSR) register no. 19 (xviii) Photocopy of handing over five pullandas Ex.PW-15/B (OSR) alongwith two sample seals for depositing the same in FSL, Rohini (xix) Photocopy of acknowledgement for Ex.PW-15/C (OSR) depositing pullandas in FSL, Rohini (xx) FSL result of child victim and product of Ex.PW-16/A conception (xxi) DNA profile of child victim and product of Ex.PW-16/B conception (xxii) Application for seeking permission to Ex.PW-17/A record the statement of child victim (xxiii) Seizure memo of one sealed pullanda Ex.PW-17/B alongwith one sample seal (xxiv) Rukka Ex.PW-19/A FIR No. 400/13 P.S. Dabri 5 of 28 State vs. Pappu (xxv) Seizure memo of exhibits of child victim Ex.PW-19/B (xxvi) Disclosure statement of accused Ex.PW-19/C (xxvii) Pointing out memo of place of incident Ex.PW-19/D (xxviii) Site plan Ex.PW-19/E (xxix) Document dated 24.07.2013 Ex.PW-19/D1
6. The statement of accused under section 313 Cr.P.C. was recorded on 11.07.2016. All the incriminating evidence were put to the accused but he replied that he did not know anything and he was wrongly impleaded in the case.
7. The accused led evidence in his defence, thereafter, defence evidence was closed on 05.11.2016.
8. The following documents were relied upon by the accused during his defence evidence, as under:
(i) Attested copy of Log sheet of tanker no. 1163 Ex.DW-1/A (colly.) for the month of May (running into 29 pages)
(ii) Attested copy of Log sheet of tanker no. 1163 Ex.DW-1/B (colly.) for the month of June (running into 28 pages)
9. Final arguments heard. Ld. counsel for the accused also filed written arguments. Entire record perused and considered.
10. Ld. Additional Public Prosecutor submitted that from the deposition of FIR No. 400/13 P.S. Dabri 6 of 28 State vs. Pappu prosecution witnesses and the documents relied upon by the prosecution, the case of the prosecution is dully proved that the accused had committed offence under section 506 IPC and section 6 r/w section 5(l) of POCSO Act. Ld. APP further submitted that the accused had repeatedly made physical relations with the child victim and even the child victim became pregnant. Ld. APP further submitted that if the child victim had not conceived then the accused would have continued to sexually assault the child victim.
11. Ld. counsel for the accused submitted that as per the prosecution story, the accused forcibly made physical relations with the child victim on the days when water tanker from Delhi Jal Board came to the locality of the child victim for supply of water, however, DW-1, Sh. Rakesh Kumar, Junior Engineer from Delhi Jal Board who produced the log sheet of the tanker no. 1163 and from the log sheet Ex.DW-1/A, it was established that the tanker no. 1163 had carried water to the colony of the child victim only on 19.06.2013 at about 11.00 AM. Ld. counsel for accused further submitted that the water tanker from the Delhi Jal Board never supplied water in the locality of the child victim on 24.05.2013, 16.06.2013, 19.06.2013 and 20.06.2013 when the child victim was allegedly sexually assaulted by the accused. Ld. counsel for the accused further submitted that the child victim stated in her statement under section 164 Cr.P.C. that the accused had made relation with her on 24.06.2013 when she was on her FIR No. 400/13 P.S. Dabri 7 of 28 State vs. Pappu periods but as per the MLC of the child victim she was eight weeks pregnant on 21.07.2013, therefore, how the child victim could have periods on 24.06.2013 and it was established that the case of the prosecution was false. Ld. counsel further submitted that there were also contradictions in respect of arrest of the accused. Ld. counsel further submitted that in the MLC of the accused dated 22.07.2013 the time of examination of the accused was given 10.40 AM brought by police personal, however, as per the arrest memo of the accused, the timing of arrest was given 11.05 AM. Ld. counsel further submitted that the accused could not be medically examined before his arrest and it further showed that the accused was falsely implicated in this case. Ld. counsel further submitted that the FSL result was of no help to the prosecution as the blood sample of the accused sent to FSL for its examination was found degraded on two occasions and even on third occasion the DNA profile of accused of no use because DNA profile of the product of conception could not done. Ld. counsel further submitted that PW-1 deposed that she was studying in 3 rd class in Aya Nagar, when her family shifted to her present address. Ld. counsel further submitted that from the deposition of PW-1 it was further proved that she was admitted in school at Aya Nagar and her first attended school was at Aya Nagar and not the school from which date of birth record of the child victim was collected and filed on record.
FIR No. 400/13 P.S. Dabri 8 of 28
State vs. Pappu
12. The charge-sheet was filed under section 6 of the POCSO Act and charges under section 6 of POCSO was also framed against the accused. Therefore, it is necessary to ascertain whether the child victim was below the age of 18 years on the date of incident. The prosecution has examined PW-5, Sh. Manoj Kumar, Executive (Administration) in Jesus & Marry Public School, Vinod Puri, Dabri, Delhi in order to prove the record of the date of birth of the child victim. PW-5 deposed that as per record, the child victim was admitted in class one in the year 2006 in Jesus & Marry Public School. The name of the child victim was mentioned at serial no. 1125 in the admission register. As per record the date of birth of the child victim was mentioned as 19.12.2000. The copy of relevant page of admission register Ex.PW-5/A. PW-5 further deposed that at the time of admission father of the child victim filled up admission form and submitted an affidavit with regard to the date of birth of the child victim. The copy of admission form Ex.PW-5/B and copy of affidavit Ex.PW-5/C. PW- 5 deposed in his cross examination that the affidavit Ex.PW-5/C was attested on 10.03.2004, again said 19.03.2004. PW-5 further deposed that he could not tell the name of the person who made entries in admission register Ex.PW-5/A as he joined the school in 2014. PW-5 admitted the suggestion that in the copy of affidavit Ex.PW-5/C, the date of attestation was shown as 18.03.2006. PW-5 voluntarily deposed someone had manually changed the year 2006 and he did not know about the same. As per the endorsement made on the backside of the FIR No. 400/13 P.S. Dabri 9 of 28 State vs. Pappu original affidavit brought by him that day, it was issued on 18.03.2004. PW-5 further deposed that there was some overwriting in the certificate dated 03.08.2013 Ex.PW-5/D1 issued by his school. PW-5 denied the suggestion that the records of his school pertaining to admission of the child victim are manipulated.
13. From the deposition of PW-5, it is established that the child victim took admission in 1st class in Jesus & Marry Public School, Vinod Puri, Dabri, Delhi in the year 2006 and her date of birth recorded in the admission form on the basis of affidavit is 19.12.2000. The fact that PW-5 deposed that the affidavit Ex.PW-5/C was attested on 10.03.2004 but again said on 19.03.2004 is immaterial because the date of attestation of Ex.PW-5/C is 18.03.2006 and the same was admitted by the PW-5. Even otherwise, it is well established law that to ascertain the age of the child victim, Rule 12 of the Juvenile Justice (Care and Protection of Children) Rule 2007 is applicable. The alleged incident took place in the year 2013 therefore, the Juvenile Justice (Care and Protection of Children) Rule 2007 shall be applicable and not Juvenile Justice (Care and Protection of Children) Rule 2016. Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules 2007 provides as under:
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, FIR No. 400/13 P.S. Dabri 10 of 28 State vs. Pappu as the case may be, the Committee by seeking evidence by obtaining-
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
14. A bare reading of Rule 12 (3) makes it clear that first of all the court will see the matriculation certificate in order to ascertain the date of birth of the child victim. In the absence of matriculation certificate, the certificate issued by the first attended school of the child victim will be considered and in absence of such a certificate from 1st attended school of the child, the birth certificate issued by any Municipal Corporation would be considered. It is further clear from Rule 12 (3) that the date mentioned in the matriculation certificate or in the certificate issued by the school 1st attended by the child would be material and not the basis on which the said date was mentioned in such a certificate. A matriculation certificate or certificate issued by first attended school needs to be proved to the effect that the same was issued by the concerned Board or school and not to prove on what basis the date of birth of the child was mentioned in such certificate. If the court starts examining on what basis date the birth of the FIR No. 400/13 P.S. Dabri 11 of 28 State vs. Pappu child was mentioned in the matriculation certificate or certificate issued by 1 st attended school then the purpose of Rule 12 (3) would be defeated. The contention of Ld. counsel for the accused that PW-1 child victim deposed that she was in 3rd class in school at Aya Nagar when she shifted to her present address is of no consequence because it is dully proved from the deposition of PW-5 and documents Ex.PW-5/A and Ex.PW-5/B that the child victim took admission in 1st class in Jesus & Marry Public school, Vinod Puri, Dabri, Delhi and the said school was her first attended school and her date of birth as per the certificate issued by said school is 19.12.2000. There is no merit in the arguments of the Ld. counsel for the accused that Jesus & Marry Public School, Vinod Puri, Dabri was not the first attended school of the child victim. PW-1 nowhere deposed that she was studying in 3rd class at Aya Nagar. PW-1 merely deposed that she was studying in Primary school alongwith her brother at Aya Nagar. However, PW-3, mother of child victim denied that the child victim was studying in Aya Nagar before shifting to their present address. The mere deposition of PW-1 that she was studying in a primary school at Aya Nagar is not fatal to the prosecution in order to establish the age of the child victim, particularly when the certificate from the first attended school of the child victim has dully proved the age of the child victim and her date of birth is 19.12.2000. The alleged incident firstly occurred on 24.05.2013. Thus, the child victim was 12 years and 5 months on the day of incident. Ld. counsel also FIR No. 400/13 P.S. Dabri 12 of 28 State vs. Pappu submitted that in the MLC of the child victim her age was mentioned 15 years, therefore, the record of first attended school of child victim was not relevant. The age mentioned in the MLC Ex.PW-6/A is of no importance because, as discussed above, the age of child victim has to be ascertained as per Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rule 2007. For the sake of arguments, even if it is assumed that the child victim was 15 years old at the time of incidents, even then she was minor on the day of incidents. Hence, it is established that the child victim was less than 18 years of age at the time of alleged incidents.
15. Now the question arises whether the accused is guilty of committing offence under section 6 r/w Section 5(l) of the POCSO Act?
Section 5(l) of POCSO Act read as under: (l) whoever commits penetrative sexual assault on the child more than once or repeatedly.
Section 6 Punishment for aggravated penetrative sexual assault - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but with may extend to imprisonment for life and shall also be liable to fine.
16. PW-1, child victim deposed that she was studying in 8th class and accused was her neighbor since her childhood as they used to play with each other. She used to call accused as Mama. PW-1 further deposed that when water FIR No. 400/13 P.S. Dabri 13 of 28 State vs. Pappu tanker used to come to her locality, her mother and chachi went to water tanker for taking water, then the accused used to come to her house in their absence. PW-1 further deposed that accused used to gaged her mouth and took her away to his house. Accused made her lay on his bed and removed her pajami and he also removed his pant. Then the accused used to put his urinating part into her vagina. PW-1 further deposed that accused used to threatened her that if she disclosed this fact to anyone, he would kill her. PW-1 further deposed that on 24.06.2013, accused came to her house in the absence of her family member who had gone to take water from water tanker and took her to his house. Thereafter, the accused removed her pajami and he also removed his pant. Then the accused put his male organ into her vagina. PW-1 further deposed that the accused did the same wrong act with her twice or thrice on different occasion. PW-1 further deposed that on 22.07.2013 when she felt pain in her stomach she told her mother about the same. Thereafter, her mother took her to nearby clinic and doctor gave her medicines and they returned back to home. PW-2 further deposed when she felt severe pain in her stomach on the same day, her mother and other family member took her to Deen Dayal Upadhaya Hospital. The doctor checked her and found that she was in the family way (pregnant). Thereafter, she was operated for the same by doctor. PW-1 further deposed that her chacha called the police at 100 number, police came to her house and interrogated her but she did not remember whether her statement was recorded FIR No. 400/13 P.S. Dabri 14 of 28 State vs. Pappu by the police or not. Ld. APP for the State after seeking permission from the court cross examined PW-1 on the ground that she was not stating the entire facts before the court. PW-1 admitted when cross-examined by Ld. APP for the State that police recorded her statement dated 22.07.2013 bearing her signature at point A. PW-1 has also admitted her signature on her statement u/s 164 Cr.P.C, same is Ex.PW-1/B. PW-1 has also identified the accused correctly.
17. PW-1 deposed in her cross examination that her birth place was Aya Nagar, Airforce Station. PW-1 further deposed that she did not know about her age when they shifted to Mahavir Enclave from Aya Nagar but she was student of primary school in Aya Nagar alongwith her brothers. She did not remember whether she was student of 4th class when they shifted to Mahavir Enclave to Aya Nagar. PW-1 admitted the suggestion that when she joined the school, she was 5 years old. PW-1 further admitted the suggestion that her Bua was teacher in Jesus & Marry Public School at Vijay Enclave. PW-1 further admitted that in the prescription slip dated 21.07.2013 Ex.PW-1/D1 her age was shown as 15 years. She did not remember about her date of birth filled in admission form of Jesus & Marry Public School. PW-1 further deposed that she was unconscious when she was taken to DDU Hospital, therefore, she could not tell about who told to the doctor about her age. PW-1 denied the suggestion that at the time of incident she was more than 18 years of age. PW-1 further deposed that it took FIR No. 400/13 P.S. Dabri 15 of 28 State vs. Pappu five minutes from her house to reach her school. Her school timing were 8.00 AM to 2.30 PM. On 24.05.2013, the water tanker had come at about 4.00 PM. PW-1 denied that the suggestion that on 24.05.2013, 16.06.2013 and 20.06.2013, the water tanker never came into her locality. She further denied that on 19.06.2013 the water tanker did not come in her locality in her presence. PW-1 admitted the suggestion that there were so many houses in front of her house and all the people of her neighborhood used to take water from the water tanker. The water tanker parked at 10 minutes walking distance from her house. PW-1 further deposed that there was only one room in the house where accused Pappu used to reside. PW-1 denied the suggestion that her real uncle namely Suresh used to reside with them and she used to talk with him with open heart. PW-1 further deposed that her mother had taken her to DDU hospital at about 9.00 PM or 10.00 PM on 21.07.2013 and she came back to her house after remaining in the hospital for 2-3 days. She had never gone to the room of the accused after returning from the hospital. PW-1 denied the suggestion that accused had never committed rape upon her.
18. PW-3, mother of child victim deposed that on 21.07.2013, her daughter, child victim made complaint to her that she was suffering from pain in stomach, therefore, at about 12.30 - 1.00 PM, she took her to the clinic situated near her house. On that day, after taking first aid from the said doctor she FIR No. 400/13 P.S. Dabri 16 of 28 State vs. Pappu brought the child victim back to their house. PW-3 further deposed that the child victim again complaint on the same day that she was suffering from severe stomach pain, she took her again to the same doctor and the child victim was referred to DDU hospital by the said doctor. PW-3 further deposed that on 21.07.2013 at about 10.00 PM she alongwith her sister-in-law and brother-in- law took the child victim to DDU hospital. After medical examination of the child victim, the doctor told her that child victim was in the family way. From the DDU hospital, they took the child victim back to their house and on reaching the house, her brother-in-law made a call at 100 number. PW-3 further deposed that a PCR van came to their house and the police officials apprehended the accused and took him to the police station. The police officials took the child victim alongwith her and uncle and aunty of child victim to DDU hospital, where the child victim was admitted and operated. About 2-3 days the child victim remained admitted in the hospital.
19. PW-3 deposed in her cross examination that they had shifted to their present address about 10-12 years back and prior to that they were residing at Aya Nagar. PW-3 further deposed that child victim was born at her house. The child victim did not attend any school at Aya Nagar. PW-3 further deposed that her eldest son was about 18 years old and child victim was youngest amongst her children. PW-3 denied the suggestion that the child victim was eldest FIR No. 400/13 P.S. Dabri 17 of 28 State vs. Pappu amongst her children. PW-3 further deposed that whenever water tanker arrived, all the residents of Hanuman Gali used to go to fetch water and after getting water, returned to their houses. PW-3 further deposed that the child victim was conscious when she was taken to DDU hospital. PW-4 father of the child victim and PW-9 aunt of the child victim who had gone with child victim to the hospital, have also supported the case of the prosecution.
20. PW-7 Dr. Sumana deposed that on 21.07.2013, the child victim aged about 15 years was brought in the department of OBS and Gynae by family members with alleged history of excessive menses and abdomen pain. On doing urine pregnancy test, the child victim came out to be pregnant. PW-7 further deposed that she examined the child victim and found that she was almost eight weeks pregnant. Cervical OS was opened, child victim was bleeding through OS (in process of abortion). PW-7 further deposed that the child victim was admitted in the hospital followed by dilatation and evacuation at 6.00 AM on 26.07.2013. PW-7 further deposed that four samples i.e. products of conception for histo pathology, second sample was products of conception for DNA, two blood samples of the child victim was sealed and handed over to the IO. She prepared her report from portion X to X forming part of MLC Ex.PW-6/A bearing her signature at point B and C. PW-7 deposed in her cross examination that the child victim was conscious at the time of her visit on FIR No. 400/13 P.S. Dabri 18 of 28 State vs. Pappu 21.07.2013/22.07.2013 and there were no external injuries observed by her on the child victim.
21. PW-8 Dr. Rishi deposed that he examined accused vide MLC Ex.PW- 8/A bearing his signature at point A and after examination, there was nothing to suggest that the accused was not able to perform sexual act. PW-8 further deposed that on the request of the IO, blood sample of accused was taken and handed over the IO.
22. PW-16 Monika Chakrabarti deposed that on 26.07.2013, five sealed parcels were received which were marked to her for DNA examination. All the parcels were sealed with the seal of CMO, DDU Hospital and detailed report Ex.PW-16/A bearing her signature at point A.
23. PW-19 IO/ Inspector Nirmal Sharma deposed that on 22.07.2013 at around 5.00 AM, on receipt DD No. 7A, he alongwith Ct. Manoj, reached at DDU hospital where SI Mukesh and Lady Ct. Guddi met him. The child victim was also present there. PW-19 further deposed that he recorded the statement of the child victim Ex.PW-1/B bearing his signature at point B. PW-19 further deposed that he prepared rukka Ex.PW-19/A bearing his signature at point A and handed over the same to Ct. Manoj to get the case registered. PW-19 further deposed that he recorded the statement of parents and other relatives of FIR No. 400/13 P.S. Dabri 19 of 28 State vs. Pappu the child victim, who were present in the hospital. PW-19 further deposed that Lady Ct. Guddi handed over the exhibits of child victim to him and the same were taken into possession vide seizure memo Ex.PW-19/B bearing his signature at point A. Thereafter, he alongwith Ct. Manoj and SI Mukesh reached at the spot i.e. House no. RZ-1D, 164 Gali No. 4, Vijay Vihar, Dabri in search of accused Pappu and on reaching there he came to know that the accused used to reside in an adjacent house and the accused was found there. The accused was arrested vide arrest memo Ex.PW-10/A bearing his signature at point B. The personal search of the accused was conducted vide personal search memo Ex.PW-10/B and the disclosure statement of the accused was recorded vide Ex.PW-19/C. PW-19 further deposed that at the pointing out the place of incident by the accused, a pointing out memo Ex.PW-19/D was prepared. From the spot accused was brought to P.S. Dabri and thereafter accused was taken to DDU hospital for his medical examination, where he was medically examined on the same day and doctor handed over him one sealed pullanda and one sample seal which were taken into possession vide memo Ex.PW-17/B bearing his signature at point B. PW-19 further deposed that he prepared site plan Ex.PW-19/E bearing his signature at point A. PW-19 further deposed that on 25.07.2013 child victim was brought to Dwarka Court and her statement was recorded by Ld. MM. PW-19 further deposed that the exhibits of accused and child victim were deposited in Malkhana on 22.07.2013. PW-19 further FIR No. 400/13 P.S. Dabri 20 of 28 State vs. Pappu deposed that he collected the birth certificate of the child victim from her father and the exhibits were sent to FSL, Rohini. PW-19 deposed in his cross examination that father of child victim did not meet him at DDU hospital on 22.07.2013 and only mother of child victim met him. He left the hospital at 10.00 - 10.30 AM for spot. PW-19 further deposed that accused Pappu was not present at his house when he reached there as accused was already taken to the police station by PCR officials. PW-19 further deposed that there was a window in the room of accused Pappu which opened towards the road and in the same building the other tenants were also residing at the ground floor. PW-19 further deposed that father of victim met him in the police station and he recorded the statement of father of child victim, however, he did not remember the date. PW- 19 denied the suggestion that child victim did not point out the room of the accused. He also denied that pointing out memo was prepared in police station or site plan was not prepared by him at the instance of child victim or the child victim has not joined the investigation after recording of her statement in the hospital. PW-19 further deposed that he never visited the school of child victim to verify her date of birth. He voluntarily stated that he sent an application through constable to the school of the child victim. PW-19 further deposed that he did not know that how many times that constable visited the school of child victim and the school staff had given the documents pertaining to the age of the child victim on a single visit or 2nd time. PW-19 denied the suggestion that arrest FIR No. 400/13 P.S. Dabri 21 of 28 State vs. Pappu memo and search memo were prepared by him in police station and not at the spot. PW-19 further deposed that the document dated 24.07.2013 Ex.PW-19/D1 was handed over to him by the father of child victim.
24. From the deposition of PW-1, it is proved beyond reasonable doubt that the accused had made sexual relation with the child victim more than once. PW-1 has categorically deposed that whenever water tanker came to her locality, her mother and chachi used to go to fetch water and accused used to come to her house in their absence and took her away to his house and in his house made her lie on the bed after removing her pajami and his pant, the accused put his urinating part into her vagina. PW-1 further deposed that the accused did the same wrong act with her twice or thrice on different occasions. Further it is proved from the deposition of PW-1, PW-3 and PW-9 that on 22.07.2013 the child victim developed pain in her stomach and she was taken to a nearby doctor but her pain could not reduce therefore, she was taken to DDU hospital where she was examined and it was found that she was eight weeks pregnant. From the deposition of PW-7, Dr. Sumana, it is duly proved that the child victim was eight weeks pregnant when she was taken to DDU hospital on 21.07.2013.
25. PW-2 Dr. Rajesh Dudeja has proved that on 21.07.2013 the child victim came to him having pain in abdomen. PW-2 referred the child victim to DDU hospital vide referral slip Ex.PW-1/D1. PW-6 Dr. Swati has proved that FIR No. 400/13 P.S. Dabri 22 of 28 State vs. Pappu on 22.07.2013, the child victim came to DDU hospital by W/Ct. Guddi and he after examination referred the child victim to department of Gynae for further examination. PW-8 Dr. Rishi has proved the MLC of the accused Ex.PW-8/A that the accused was able to perform sexual act. PW-11 proved the registration of FIR Ex.PW-11/A and endorsement of rukka on FIR Ex.PW-11/B. PW-12 Ms. Manu Vedwan, Ld. Metropolitan Magistrate proved that she recorded the statement of child victim u/s 164 Cr.P.C Ex.PW-1/A.
26. The contention of Ld. counsel for the accused that the tanker no. 1163 had carried water to the colony of child victim only on 19.06.2013 at about 11.00 AM and the said tanker from Delhi Jal Board had not supplied water in the locality of the child victim on 24.05.2013, 16.06.2013, 19.06.2013 and 20.06.2013, which were the dates on which the child victim was allegedly sexually assaulted by the accused, has no substance. Perusal of deposition of DW-1 reveals that he had produced the log sheet of tanker no. 1163 alongwith its details for the month of May and June 2013. However, DW-1 admitted the suggestion in his cross-examination that apart from vehicle no. 1163, other tanker could be sent to the Hanuman Gali (locality of the child victim). It is not case of the prosecution that only tanker no. 1163 had supplied water to the locality of the child victim on 24.05.2013, 16.06.2013, 19.06.2013 and 20.06.2013. The prosecution case is that water tanker used to come to the FIR No. 400/13 P.S. Dabri 23 of 28 State vs. Pappu locality of the child victim for supply of water and the mother of child victim went to fetch water from the water tanker and as no one was present at the house of child victim, the accused used to come and took the child victim to his house and made physical relations with her. The further contention of Ld. counsel for the accused that the child victim stated in her statement u/s 164 Cr.P.C. that the accused had made relation with her on 24.06.2013 when she was on her periods but as per MLC of child victim she was eight weeks pregnant on 21.07.2013, therefore, the child victim could not have periods on 24.06.2013 and her deposition that the accused made relation with her is false. I do not find any substance in this contention because the date i.e. 24.06.2013 is not very much relevant as the child victim was trying to say that the accused had made physical relation with her even on the day when she was having her periods. Further, though there is contradiction about the time of arrest of the accused and the time when he was taken to hospital for his medical examination but the same is very minor contradiction in nature. It is well settled law that minor contradiction have no bearing to the fact of the case when the case of the prosecution is otherwise proved. It has been held in U.P. Vs. M.K. Anthony AIR 1985 SC 48, that minor discrepancies not going to the root of the matter would not permit rejection of evidence. Every honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ from individuals. In Fakira Vs. State AIR 1976 SC 915, FIR No. 400/13 P.S. Dabri 24 of 28 State vs. Pappu it has been held minor discrepancies guarantee that the witnesses are not tutored. In Om Prakash vs. State of U.P. (2006) SC 2214, it was observed by the Hon'ble Supreme Court "The court while dealing with such cases (sexual offences) should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of prosecutrix, which are not of fatal nature to throw out an otherwise reliable prosecution case."
27. The further contention of Ld. counsel for accused that the FSL result is of no use as the blood samples of the accused could not be examined as the same was found degraded on two occasions and the DNA profile of accused done on third occasion was of no help because DNA profile of product of conception could not be done. There is no dispute that DNA profile of the product of conception could not be done as deposed by PW-13 but the report of FSL is not for any help to the accused. The FSL result has not stated that the DNA profile of the accused has not matched with the DNA of the product of conception. The FSL result is a corroborative evidence and not primary evidence. The FSL result has not corroborated the case of the prosecution as the DNA profile of the product of conception could not be done but it has also not caused any doubt to the case of the prosecution. In the absence of FSL result, the case has to be decided on the basis of primary evidence. PW-1, child victim FIR No. 400/13 P.S. Dabri 25 of 28 State vs. Pappu has fully supported the case of prosecution and all other witnesses have also corroborated the case of the prosecution. It is important to mention here that the child victim was pregnant when she was taken to the hospital and it is duly proved from the deposition of doctor. The question arises why did the child victim blame the accused for her pregnancy if he had not made physical relation with her. It has been held in Bhoginbhai Hirjibhai vs. State of Gujrat, AIR 1983 SC 753 "On principle the evidence of victim of sexual assault stands on par with evidence of an injured witness. As she is the best witness and is not likely to exculpate the real offender, so the evidence of victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. In Karnel Singh vs. State of M.P., 1995 SCC (Cr.) 977, it has been held "In case of a rape of a married woman, a laborer by another laborer, the failure of the prosecution to examine independent witness, who could have corroborated her testimony is not fatal, when the victim had absolutely no reason to falsely implicate the accused."
28. Hence, from the deposition of PWs and the documents relied upon by the prosecution, it is proved beyond reasonable doubt that the accused committed penetrative sexual offence more than once and as a result of which the child victim became pregnant and thus, the accused committed the offence under section 6 r/w 5 (l) of POCSO Act.
FIR No. 400/13 P.S. Dabri 26 of 28
State vs. Pappu
29. Whether the accused is guilty of offence under section 506 (II) IPC?
It has been held in Section 506. Punishment for criminal intimidation - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc. - And if the treat be to cause death or grievous hurt, or to cause the destruction of any property by fire, imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both.
30. PW-1 categorically deposed that the accused used to threatened her that if she disclosed this fact to anyone, he would kill her. The child victim in her statement to the police Ex.PW-1/B stated that the accused threatened her that if she disclosed the incident to anyone, he would kill her and her parents. The child victim in her statement under section 164 Cr.P.C Ex.PW-1/A stated that the accused used to threatened her that if she disclosed to anyone, he would kill her entire family. Thus, from beginning till deposing in the court the child victim regularly stated that the accused had threatened her that if she disclosed FIR No. 400/13 P.S. Dabri 27 of 28 State vs. Pappu the incidents to anyone, he would kill her and her parents. The child victim did not tell anyone that she was sexually abused by the accused. The incidents came to the knowledge of the mother of the child victim, when the child victim developed pain in her stomach and she was taken to a nearby doctor but the pain had not receded and the child victim was taken to hospital, where on her medical examination, the doctor came to know about her pregnancy and informed her mother. From this, it is clear that the child victim was under threat and could not reveal the incident to anyone out of fear. There is hardly any contradictions in the deposition of PW-1. Hence, it is duly proved beyond reasonable doubt that the accused threatened the child victim to kill her and her parents, if she had disclosed the incident to anyone.
31. In view of the above discussions, the accused Pappu is found guilty and is convicted for offence under section 6 r/w 5 (l) of POCSO Act and is also convicted under section 506 (II) IPC.
Pronounced in the open court (Pritam Singh)
on 12.02.2018 ASJ-04/Dwarka Courts
New Delhi
FIR No. 400/13 P.S. Dabri 28 of 28