Delhi District Court
State vs Sunil on 13 September, 2007
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 83/2 dated 15/12/2006
Date of Decision: 13th of September, 2007
State
Versus
1. SUNIL
S/o Prehlad
R/o L-694, Mangol Puri,
Delhi.
FIR No. 458-2003
PS Mangol Puri
U/s. 376 read with section 511 IPC
JUDGMENT
In this case Sunil (accused) has been facing trial for an offence punishable u/s 376 IPC read with section 511 IPC. Accusation levelled against the accused is that on 17/08/2003 in between 7-8 p.m. at L-1106, Mangol Puri, Delhi, he attempted to commit rape on the person of a female -:2:- child, aged 9 years (whose identity has not been disclosed herein in view of the directions issued by Hon'ble Supreme Court). Case of prosecution is that the accused is maternal uncle of the prosecutrix.
Present case was registered on the statement made by mother of the prosecutrix and sister of the accused. Mother of the prosecutrix stated in her statement made before the police that during days of occurrence accused used to live in the adjoining house and that on 17/08/2003 at about 6 p.m., the accused came to her house when her daughter (the prosecutrix) was at home and she herself left to pay installment of cooler. At about 8 p.m. when she reached home, her daughter (the prosecutrix), was found weeping. When the complainant enquired from the prosecutrix as to what had happened, the prosecutrix disclosed her about the attempt made by the accused to commit rape on her and that when she raised alarm he ran away from there. Matter was brought to the notice of police of Police Station Mangol Puri, SI Uday Veer Singh reached the spot and recorded statement of mother of the prosecutrix. The accused was apprehended. Prosecutrix and the accused were got medico legally examined. Statement of the prosecutrix and other witnesses -:3:- were also recorded. Rough site plan of the place of occurrence was prepared. The medical exhibits handed over by the doctor were seized. On completion of investigation, challan was put in court.
After compliance with provisions of section 207 Cr.P.C., case came to be committed to the Hon'ble Court of Session. Prima facie case for an offence u/s 376 IPC read with section 511 IPC was framed against the accused on 20/11/2003. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. Prosecution Evidence To prove its case, prosecution has examined following eleven witnesses:
Prosecutrix has stepped into witness box as PW1; Smt. Mamta, mother of the prosecutrix, has stepped into witness box as PW-7.
Medical evidence is available in the statement of PW-2 Dr. Chetna Chauhan and PW-6 Dr. Parul Gupta.
PW-3 Sh. J. K. Dabas is the Head Master of Primary School, Mangol Puri, who has been examined to prove the date of birth i.e. 13/02/1995, of the prosecutrix, as per school record.-:4:-
PW-4 Ct. Ashok Kumar, PW-5 Head Ct. Murti Devi, PW-8 Constable Surender, PW-9 ASI Dharam Pal Yadav, PW-11 SI Uday Veer have deposed about investigation part of prosecution story.
PW-10 Ms. Rajrani Mitra, learned judicial officer has been examined to prove statement of prosecutrix recorded u/s 164 Cr.P.C.
Defence Evidence
When examined u/s 313 Cr.P.C., accused
admitted his relationship with the prosecutrix and that his
sister PW-3 had gone to pay the installment of the cooler and that he was at home with the prosecutrix. However, he denied all other incriminating circumstances appearing in evidence against him.
Arguments heard. File perused.
Main stay of prosecution was on the statements of the prosecutrix and her mother. Prosecutrix has appeared in court as PW1 whereas her mother has appeared as PW7. According to the prosecutrix, during summer, her mother went to pay installment of the cooler, while her maternal uncle Sunil (accused) was present at their house. The prosecutrix further stated that the accused was drunk and he lay upon her as a -:5:- result whereof she got scared. When her mother returned from market, she told her that the accused lay upon her. She further stated that her mother reported the matter to the police. The prosecutrix also identified her signatures on Ex. PW1/A, her statement made before the learned Judicial Magistrate, during investigation.
A perusal of the above statement of the prosecutrix would reveal that she did not level any allegation of any attempt made by her maternal uncle to commit rape on her. She even did not state that the accused removed her undergarments or his own undergarments or took any further step to commit rape. However, in view of the version made available by the prosecutrix to the police and learned judicial officer, learned Additional Public Prosecutor sought permission from the court to put her leading questions on the ground that she was not making statement in consonance with her previous statement. It was thereupon the witness admitted to have told learned Judicial Officer that she entered the house when her maternal uncle called her inside and that he made her to lie on a bed and thereafter he lay upon her. However, the witness categorically denied that the accused removed her undergarments. She further denied that the -:6:- accused removed his pant. However, lateron, when further leading questions were put to the witness by learned Additional Public Prosecutor, the witness once again twisted her version and stated to have told the police that the accused had removed her undergarments and his own pant and then attempted to lie upon her. She further admitted to have told the police that she started weeping and the accused placed his hand over her mouth. She also admitted that the accused asked her not to tell the incident to anyone, otherwise she would be done to death. She further admitted to have told the police that while she was weeping, the accused ran away. However, when the witness was examined by learned defence counsel, she again twisted her stand. She admitted in her cross examination that the accused had not removed her underwear or his own underwear. She further admitted that the accused did not lie on her. It is in her statement that she had told a lie in anger as her mother did not like behaviour of her maternal uncle because he used to take liquor and then come to their house. She further admitted that the accused did not commit any offence against her on the aforesaid date or on any other day. She also admitted that accused did not give beatings or press -:7:- her mouth or even threaten her to give her beatings with a belt in case she opted to disclose anything to her mother or anyone else. She went on to state that she made wrong statement before learned Judicial Official only on the ground that the accused used to beat her mother.
Court question was put by my learned Predecessor to the prosecutrix and thereupon she replied that on 09.02.2004, she made her statement in chief examination as she was angry with the accused on the ground that he used to quarrel with her mother. She further stated that the accused then stopped quarreling with her mother, and as such, she told the truth in court i.e. 04.09.2006, when her cross examination was recorded. She further admitted that the accused did not attempt to rape her. She categorically stated that whatever she stated in her cross examination was the correct version. In this way, the prosecutrix has explained as to under what circumstances she made her previous statement before learned Judicial Officer U/s. 164 CrPC.
In view of the above waivering statement made by the prosecutrix from time to time and that she at last did not raise any accusing finger against the accused, in reply to the questions put in cross examination and also in reply to the -:8:- questions put by learned Judge. The fact remains that the prosecutrix has not supported the case of prosecution that on any day, the accused attempted to commit rape on her.
Then, there is statement of PW7-mother of the prosecutrix. She was not present on the given date, time and place of occurrence. She deposed only what she was told by the prosecutrix. PW7 deposed in court that when she returned from the market, her daughter (the prosecutrix) told her that accused had been quarreling after consuming liquor and that he had given her beatings. When the witness did not make statement in consonance with her statement made before the police, learned Additional Public Prosecutor put leading questions to her after seeking permission from the court and it was only then the witness stated that her daughter told her about removal of her underwear and of his own underwear by the accused and that the accused had tried to lie upon her. But, the fact remains that the prosecutrix, as discussed above, has not levelled any accusing finger against the accused and in her chief examination, even PW7 did not level any allegation of commission of any offence by the accused against her daughter. Statements of all other witnesses are formal in character. When the prosecutrix has -:9:- not levelled any allegation against the accused and has put forth different stands at different time, her testimony can safely be said to be wholly unreliable.
Conclusion:
In view of the above discussion, this court comes to the conclusion that prosecution has failed to substantiate the accusation levelled against the accused. Consequently, Sunil (accused) is acquitted in this case.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room. Announced in Open Court on Dated: 13th of September, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi