Delhi District Court
State vs Om Parkash. -:: Page 24 Of 24 ::- on 13 April, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL JUDGE UNDER THE PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 55912/2016.
Old Sessions Case Number : 67/12.
State
versus
Mr. Om Parkash
Son of Mr. Arjun Singh,
Resident of Sukar Bazar, Vikas Nagar,
Gali No.7, Uttam Nagar, Delhi.
Permanent Address : Village Are, PO Jonepur, PS Gora,
Basapur, Uttar Pradesh.
First Information Report Number : 167/2012.
Police Station Ranhola.
Under sections 376 and 511 of the Indian Penal Code.
Date of filing of the charge sheet before the : 21.09.2012
Court of learned Metropolitan Magistrate
Date of receipt of file after the committal : 29.09.2012.
of the case to the Court of Sessions
Arguments concluded on : 12.04.2018.
Date of judgment : 13.04.2018.
Appearances:Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms.Shradha Vaid, counsel for the Delhi Commission for
Women.
Accused has been produced from judicial custody.
Mr. R.R. Jha, Amicus Curiae for accused.
**********************************************************
New Sessions Case Number : 55912 of 2016.
Old Sessions Case Number 67 of 2012
FIR No.167/12, Police Station Ranhola,
Under sections 376 and 511 of the Indian Penal Code.
State versus Om Parkash. -:: Page 24 of 24 ::-
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JUDGMENT
1. At the outset, it may be mentioned that this case is one of the oldest cases pending in this Court. It is listed at serial number eleven (11) in the list of twenty oldest cases pending in this Court. This case is also listed at serial number ten (10) in the list of more than five years old cases. A sincere endeavor has been made to dispose the same expeditiously. This case pertains to the alleged offences committed by the accused in the year 2012 regarding which the First Information Report (hereinafter referred to as the FIR) 167 of 2012 was registered in Police Station Ranhola.
2. Mr. Om Parkash, the accused, has been charge sheeted by Police Station Ranhola for the offences under sections 376 and 511 of the Indian Penal Code (hereinafter referred to as the IPC).
3. Accused Mr. Om Parkash has been prosecuted on the allegations that on 25.07.2012 at about 01:45 pm on the roof of house of the prosecutrix (address mentioned in file and withheld to protect the identity of the prosecutrix), he had attempted to commit rape upon the prosecutrix (who is a minor girl aged about 03 years).
4. The name, age and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her. Her parents are New Sessions Case Number : 55912 of 2016.
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addressed as Ms.Y and Mr.Z, fictitious identities given to them to protect the identity of the prosecutrix.
CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 21.09.2012 and was committed to the Court of Sessions vide order dated 25.09.2012 of the learned Metropolitan Magistrate. Vide order dated 28.09.2012 of the learned District and Sessions Judge, West, Tis Hazari Courts, the file was assigned to the Court of the learned predecessor of this Court for 29.09.2012.
CHARGE
6. After hearing arguments, charge for offences under section 376 and 511 of the IPC framed against accused Mr. Om Parkash vide order dated 17.10.2012 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined as many as 15 witnesses i.e. ASI Pradeep Kumar, duty officer who had recorded the DD No.29A, as PW1; HC Dal Chand, the duty officer of the present case, who had lodged the FIR of the present case as PW2; Ct.Surender Kumar, the MHCM of the present case, as PW3; Mr. Ravin, the complainant of the case, as PW4; Mr. Z, father minor New Sessions Case Number : 55912 of 2016.
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victim girl, as PW5; Ms.Y, mother of minor victim girl, as PW6; Ct. Mandeep, witness of investigation, as PW7; HC Devender Singh, MHCM of the present case, as PW8; Dr. Gurdeep Singh, who had medically examined accused Mr.Om Parkash, as PW9; Dr. Deepali Taneja, who had medically examined the minor victim girl, as PW10; Ms. Renu Mann, Sub Registrar (Birth and Death), as PW11; Dr. Monika Suri, who has been deposed on behalf of Dr. Richi and Dr. Dhara, who have medically examined the minor victim girl, PW12; HC Balwan Singh, the first Investigation Officer of the case, as PW13; SI Savita, the second Investigation Officer of the case, as PW14; and the prosecutrix Ms.X, as PW15.
8. The accused and his legal aid counsel have preferred not to cross examine PWs 1, 2, 8, 9, 10 and 11 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
9. In his statement under section 313 of the Cr.P.C., recorded on 15.11.2017, the accused has controverted and rebutted the entire evidence against him submitting that he has been falsely implicated in the present case. He is innocent and he has not committed any offence. A quarrel had occurred prior to this incident where he was working as Mason (Raaj Mistri) and due to this reason they have New Sessions Case Number : 55912 of 2016.
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falsely implicated him in this case.
ARGUMENTS
10.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
11.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under section 376 and 511 of IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
12.The legal aid counsel for the accused has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is a delay in lodging of the FIR which remains unexplained. There are several contradictions in the statements of the prosecutrix (PW15) and her mother Ms.Y (PW6) as well as Mr.Ravin (PW4). It was not possible for Mr.Ravin (PW4) to see from his house the place of incident and he could not have seen whether or not the lower innerwear (panty) of the prosectrix was removed or that he was committing the alleged offence. The prosecutrix has not deposed about Mr.Ravin (PW4) coming to the New Sessions Case Number : 55912 of 2016.
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spot but has deposed that only her "Didi" who is wife of Mr.Ravin (PW4) had come there. The presence of Mr.Ravin (PW4) and Ms.Y, mother of the prosecutrix (PW6) is projected to falsely implicate the accused.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
13.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing New Sessions Case Number : 55912 of 2016.
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the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
14.Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
15.The prosecution story unveils when Ms.Y, mother of the prosecutrix, (PW6) made a call at number 100 on 25.07.2012 and at 01:07 pm, duty officer ASI Pradeep Kumar (PW1) had recorded DD no 29A (PW1/A) regarding a boy being apprehended who was teasing (ched chad kar raha hai). Police came to the spot and the minor victim (PW15) was taken to the DDU hospital for her medical examination and Dr.Anurag (who had left the services of the hospital) had examined the prosecutrix (PW15) under the supervision of Dr. Deepali Taneja (PW10) vide MLC (Ex.PW10/A) and the patient was New Sessions Case Number : 55912 of 2016.
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referred to Gynae for further management, examination and expert opinion. Dr. Monika Suri (PW12) CMO, DDU hospital who has been deputed to depose in place of Dr.Richi and Dr. Dhara (who had left the services of the hospital) had identified the handwriting and signatures of Dr. Richi and Dr. Dhara has deposed that as per Dr. Richi, no perineal tear or injury marks seen, hymen intact, sample taken and handed over to the police officials on duty. Accused was apprehended by the police and police recorded the statement (Ex.PW4/A) of Mr.Ravin (PW4) on 26.07.2012 and the panty of the prosecutrix (PW15) was seized. Mr. Ravin (PW4) had accompanied the police to the place of occurrence and police prepared the site plan (Ex.PW14/C) at his instance. Ct.Mandeep (PW7) produced the rukka before HC Dal Chand (PW2). On the basis of the same, HC Dal Chand, duty officer (PW2) registered FIR no. 167/12 (Ex.PW2/A), issued certificate under section 65 B of the Evidence Act (Ex.PW2/B) and also made endorsement on the rukka (Ex.PW2/C). Accused was arrested vide arrest memo (Ex.PW4/B), his personal search was taken vide personal search memo (Ex.PW7/A) and he confessed his crime vide disclosure memo (Ex.PW7/B). Accused was medically examined by Dr. Gurdeep Singh Arora (PW9) vide MLC (Ex.PW9/A). Ms. Renu Mann (PW11) Sub Registrar (Birth and Death) had proved the record of birth of female child and the entry was made on record on 01.03.2009 and the verified copies as per online computer record of the office (Ex.PW11/A) and birth certificate (Ex.PW11/B) were New Sessions Case Number : 55912 of 2016.
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produced by her in the Court. ASI Sarita handed over copy of DD entry no. 29 A (PW1) to IO/SI Savita (PW14) and she also produced the prosecutrix (PW15), her parents and the complainant (PW4) before her. ASI Sarita also handed over sealed pullandas and MLC to her and she recorded the statement of complainant (Ex.PW1/A) and made an endorsement on the same and prepared rukka (Ex.PW14/A) and handed over the same to duty officer for the registration of the FIR. IO/SI Savita (PW14) seized the pullandas alsong with sample seal handed over to her by ASI Sarita vide seizure memo (Ex.PW14/B). IO along with the complainant, prosecutrix and her parents went to the spot i.e. A-45, Sainik Enclave, Vikas Nagar there and inspected the site and prepared the site plan (Ex.PW14/C) at the instance of the complainant. Ct. Mandeep (PW7) came at the spot and handed over copy of FIR and original rukka to her. Accused was arrested from Friday's Market, Vikas Nagar on the identification of the complainant (PW4) vide arrest memo (Ex.PW4/B), personal search memo (Ex.PW7/A) and disclosure statement (Ex.PW7/B). IO/SI Savita (PW14) got the accused medically examined at SGM hospital and after his medical examination, Ct.Mandeep (PW7) handed over sealed pullandas along with sample seal to her which she seized vide seizure memo (Ex.PW7/C). Accused was produced before the concerned Court and was remanded to judicial custody and IO/SI Savita (PW14) recorded the statement of the prosecutrix and her parents under section 161 of the Cr.P.C. and of other PWs i.e. Mr. Ashok Sharma (PW5) and HC Balwan Singh (PW13). IO/SI New Sessions Case Number : 55912 of 2016.
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Savita (PW14) collected the birth certificate of the prosecutrix (Ex.PW11/B) from her mother and placed the same on file. On 26.07.2012, IO/SI Savita (PW14) had deposited with HC Devender Singh (PW8) the case property along with seals and had made entry in register no. 19 regarding the same vide entry no. 221 (Ex.PW8/A).
On 27.07.2012, the seven sealed parcels along with two sample seals were sent to FSL, Rohini through Ct. Surender Singh (PW3) vide RC no. 147/21/12 (Ex.PW8/B) and photocopy of the receipt of FSL (Ex.PW8/C). The original register no. 19 containing entry no.3127 is (Ex.PW4/A). HC Devender Singh (PW8) has further stated that as long as the case property remained with him nobody had tampered with it. IO/SI Savita (PW14) recorded the statements of MHC(M) (PW8) and Ct. Surender (PW3) and completed the investigation and handed over the chargesheet to the SHO for filing the same in the Court.
16.The prosecution case is that on 25.07.2012 at about 01:00 pm, Mr. Ravin (PW4) relative of the prosecutrix (PW1), rushed to the house of the prosecutrix and directly went upstairs and his wife Ms.Anita also followed him. By the time they reached there, the accused had taken on his trousers and made the prosecutrix wear her panty. Mother of the prosecutrix, who also went upstairs, saw that the accused was closing the zip of his pant and minor victim girl/prosecutrix was wearing her panty and she was scared. Mr.Ravin (PW4) told Ms.Y, mother of the prosecutrix, that the accused was New Sessions Case Number : 55912 of 2016.
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doing the wrong act with the prosecutrix. Ms.Y, mother of the prosecutrix(PW6) took Ms.X, her daughter/prosecutrix, in her lap and before that she slapped the accused. The police was called.
PROSECUTION EVIDENCE
17. It is very important to reproduce and analyse the evidence of Ms.X (PW15), minor prosecutrix.
18.Ms. X, the minor prosecutrix (PW15) has deposed in her examina-
tion in chief as follows:
"Q.What did this accused do with you? Ans. ISNE APNI PANT KI CHAIN KHOLI THI AUR MERI PANT UTAARI THI. Q. What did this accused do with you after removing your clothes and opening of his zip of pant? Ans. USKE BAAD DIDI AA GAYI THI. USNE JO KI MU- JHE AAJ TV SCREEN PAR DIKHAYA GAYA HAI, KUCHH NAHI KIYA. Q. Whether accused person had taken you in his lap? Ans. Yes. He had taken me in his lap."
19.In her cross examination, Ms.X (PW15) has deposed that "Q. Why did you go on the roof of your house on the date and time of the alleged occurrence ?
Ans. MAIN MISTRI KO PAANI DENE CHHAT PAR GAYI AUR YE WOHI MISTRI HAI JISKO MUJHE AAJ DIKHAYA HAI.....
Q. Who had come first after the alleged occurrence ? Ans. MERI BADI MAAMI KI LADKI SABSE PEHLE AAYI THI.
Q. Do you remember the name of the daughter of your badi maami, who had come first after the alleged occurrence ? New Sessions Case Number : 55912 of 2016.
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Ans. Her name is Reeta.
Q. Who had come after arrival of Reeta on the date of al- leged occurrence on the spot ?
Ans. KOI NAHI.
Q. Do you know Ravin ?
Ans. Yes.
Q. Who is Ravin ?
Ans. Ravin is my jeejaji.
Q. Where does Ravin live ?
Ans.Ravin lives in Etah.
Q. Is it correct that at the time of alleged occurrence, Ravin was living in Etah ?
Ans. NAHI. TAB WO HAMARE GHAR KE, EK GHAR CHHOD KAR REHTA THA..."
20.Ms.X (PW15) has denied the various suggestions given to her that the accused did not commit the offence.
21.Mr. Ravin (PW4), complainant has deposed that "...I have been liv-
ing at the above mentioned address on rent at third floor. On 25.07.2012 at about 12:45 pm, I was taking water from the tap in front of a room at third floor of our house. The house of my aunt (Bua) i.e. mother of prosecutrix situated adjacent to our house and same is quite visible from the house where I am living. When I was taking water from the tap, I saw that accused present in a room un- der construction on the first floor of my Bua who had removed his pant which he was wearing and made sit the daughter of my Bua i.e. prosecutrix between his legs. The underwear of prosecutrix had been removed by the accused and accused was trying to insert his New Sessions Case Number : 55912 of 2016.
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male organ into the vagina of prosecutrix. Prosecutrix was aged about 03 years. Accused was working as a Raj Mistri at the house of my Bua (name deposed and withheld) as one room in her house was under construction. As soon as I saw the incident, I shouted from there saying that "HARAMZADE ABHI RUK MAI AATA HUN". I immediately rushed to the house of my aunt and my wife also chased me. By the time I reached the spot, accused had taken on his trousers and had also made prosecutrix wear her underwear. My Bua i.e. mother of prosecutrix and my wife also reached there and my Bua picked up prosecutrix in her lap. I brought the ac- cused downstairs and narrated the entire incident to my Bua. I im- mediately telephoned the police at number 100. After sometime po- lice reached at the spot. I told the police that accused was trying to rape prosecutrix....."
22.In his cross examination, Mr.Ravin (PW4) has deposed that "...On 25.07.2012, it was Wednesday and it was my holiday. The measure-
ment of our accommodation is 8x10 ft. There was an open bath- room in my accommodation on the same floor on which I was re- siding. At that time my wife was also present in the house. After seeing the incident, I immediately rushed to the house of the pros- ecutrix even I had not called my wife or anybody. I reached the place of incident firstly and thereafter my Bua and my wife reached there.....There was no sufficient time to inform any one and I my- self rushed to the place of incident on seeing the incident, so I had New Sessions Case Number : 55912 of 2016.
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not told about the incident to anybody immediately....".
23.Ms.Y, (PW6) mother of the prosecutrix has deposed that "On 23.07.2012 accused was doing masonary work (Raaj Mistri) and also continued on 24.07.2012 and 25.07.2012. At about 01:00 pm on 25.07.2012 asked for water and I was in a process to go upstairs for giving him the bottle of water meanwhile the prosecutrix asked me that she will take the water for Om Parkash and I handed over the bottle to her and remained on the ground floor. After sometimes our relative Ravin rushed to our house and directly went upstairs.
Anita wife of Ravin also followed him and she rushed upstairs. On seeing this, I also went upstairs. I saw accused Omparkash was closing the zip of his pant and my daughter was wearing her panty and she was scared. Ravin told me that he saw the accused was do- ing the wrong act with the prosecutrix. He told me that he had seen the same from his house...."
24.In her cross examination, Ms.Y (PW6), mother of the prosecutrix has deposed that "...The house of Robin was situated a house ahead from my house. It is correct that the house of Robin was not situ- ated in front of my house. The accused was doing the construction work at the first floor and he has started the work just one day prior to the alleged incident. The accused had asked for water and the prosecutrix took the water for the accused. I do not know after how much time, Robin and father of the prosecutrix had gone up- stairs after the prosecutrix has taken the water for the accused. I New Sessions Case Number : 55912 of 2016.
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along with Robin and his wife went upstairs firstly. I do not know the exact position of tap from where the Robin had seen the inci- dent. The wife of Robin is a house wife. It is correct that I had not seen any incident. Vol. I saw accused was closing the zip of his pant and my daughter was wearing her panty. Rabin had told me about the incident. It is correct that the Rabin had given abusive lan- guage from the third floor of his residence when he seen the inci- dent. It is correct that he also told that I am coming. Rabin came within five minutes. The said incident was seen by the Rabin only not even by his wife...."
25.It is crystal clear from the evidence of Ms.X (PW15), the minor pros-
ecutrix, Mr.Ravin (PW4) and Ms.Y (PW6), mother of the pros- ecutrix that the prosecutrix had gone up to the room of the accused to give him water and then he had committed the offence of attempted rape by removing his pant and the underwear of the prosecutrix, making her sit on his lap between his legs and the accused was trying to insert his male organ into the vagina of prosecutrix. Mr.Ravin (PW4) saw the accused committing the offence and he shouted out to the accused, abused him and immediately rushed to the spot. The ac- cused had put on his pants and the underwear of the prosecutrix was also put when Mr.Ravin, Ms.Y and wife of Mr.Ravin reached the spot. The prosecutrix was in a frightened condition and was consoled by her mother.
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26.The evidence of Ms.X (PW15), the minor prosecutrix, Mr.Ravin (PW4) and Ms.Y (PW6), mother of the prosecutrix is consistent and corroborative. The identity of the accused is not in dispute. All the three star witnesses of the prosecution i.e. Ms.X (PW15), the minor prosecutrix, Mr.Ravin (PW4) and Ms.Y (PW6), mother of the pros- ecutrix have identified the accused as the culprit and assigned a clear criminal role to him by deposing about the details in the manner in which the offence was committed by the accused against the pros- ecutrix.
27.The contention made on behalf of the accused does not appear to be tenable that it was not possible for Mr.Ravin (PW4) to see from his house the place of incident and he could not have seen whether or not the lower innerwear (panty) of the prosectrix was removed or that he was committing the alleged offence. Mr.Ravin (PW4) has very cate- gorically deposed in his cross examination that "...The measure- ment of our accommodation is 8x10 ft. There was an open bath- room in my accommodation on the same floor on which I was re- siding. At that time my wife was also present in the house. After seeing the incident, I immediately rushed to the house of the pros- ecutrix even I had not called my wife or anybody...." His presence at his house and the visibility of the spot of incident from his house is clearly proved in the evidence of Mr.Ravin (PW4).
28.The accused has not disputed the age of the prosecutrix that she was New Sessions Case Number : 55912 of 2016.
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about 03 years at the time of commission of the offence. Her date of birth as 28.02.2009 as mentioned in her birth certificate (Ex.PW11/A and Ex.PW11/B) has been proved by Ms.Renu Mann (PW11), Sub Registrar (Birth and Death). The offence was committed on 25.07.2012 which makes the age of the prosecutrix 03 years and 05 months.
29.Ms.X (PW15) who was aged only about three and a half years when the offence was committed and was aged about 06 years when she appeared in the Court for her evidence (on 06.02.2017) has very cate- gorically described the details and the manner in which the accused conducted himself and committed the offence against her. She has deposed that "....ISNE APNI PANT KI CHAIN KHOLI THI AUR MERI PANT UTAARI THI....He had taken me in his lap...." De- spite being of such tender years, the minor has given a clear and ar- ticulate description of the manner and sequence of events whereby the offence was committed against her by the accused.
30.Although as per the evidence of Mr.Ravin (PW4) and Ms.Y (PW6), Mr.Ravin (PW4) had reached the spot first of all followed by his wife and Ms.Y and as per the evidence of Ms.X (PW15), wife of Mr.Ravin had reached first, this contradiction is immaterial as the point to be determined in this case is whether or not the accused com- mitted any offence and not who reached the spot firstly after the commission of the offence.
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31.The medical evidence especially of Dr.Monika Suri (PW12) and Dr.Deepali Taneja (PW10) who proved the MLC of the prosecutrix (Ex.PW10/A) shows that the prosecutrix was not raped and she did not have any injury on her person. The fact that an attempt to rape the prosecutrix was made has been deposed by Ms.X (PW15), the minor prosecutrix, Mr.Ravin (PW4) and Ms.Y (PW6), mother of the pros- ecutrix.
32.It is also revealed from the evidence of Mr.Ravin (PW4) that had he not seen the accused committing the offence and had he not rushed immediately to the spot, the offence of rape would have been com- mitted by the accused. Mr.Ravin (PW4) has deposed that "....ac- cused was trying to insert his male organ into the vagina of pros- ecutrix.....By the time I reached the spot, accused had taken on his trousers and had also made prosecutrix wear her underwear...." Ms.Y (PW6) mother of the prosecutrix has deposed that "...I saw accused Omparkash was closing the zip of his pant and my daugh- ter was wearing her panty and she was scared. Ravin told me that he saw the accused was doing the wrong act with the prosecutrix....." It is crystal clear that the offence of attempt to rape the prosecutrix was committed by the accused.
MENS REA AND DEFENCE OF ACCUSED
33.The accused has taken different stands in his defence. In his state-
ment under section 313 of the Cr.P.C., the accused has stated that a quarrel had occurred prior to this incident where he was working as New Sessions Case Number : 55912 of 2016.
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Mason (Raaj Mistri) and due to this reason they have falsely impli- cated him in this case while the suggestions given on his behalf of Ms.Y are that "It is wrong to suggest that the Rabin has threatened the accused not to do construction work at the house of Mr.Z (PW5) (father of the prosecutrix and his name is withheld to pro-
tect the identity of the prosecutrix) and when he refused, he was falsely implicated by the Rabin in this case. It is wrong to suggest that I am deposing falsely at the instance of the Rabin. The sugges- tions given to Mr.Ravin are that "It is wrong to say that I had in- structed the accused not to do the work at the house of Mr.Z and for that reason I had falsely implicated the accused in the present case." However, the accused has not led any evidence in his defence. He has also not been able to bring anything material for his defence in the lengthy cross examination of the prosecution witnesses espe- cially Ms.X (PW15), the minor prosecutrix, Mr.Ravin (PW4) and Ms.Y (PW6), mother of the prosecutrix which could indicate that he has been falsely implicated in the present case. The fact that the ac- cused has taken different stands in his defence in the cross examina- tion of the prosecution witnesses and in his statement under section 313 of the Cr.P.C. as well as the fact that he has failed to lead any ev- idence in his defence, indicate towards the guilt of the accused.
34.Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily dis- New Sessions Case Number : 55912 of 2016.
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credit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial ev- idence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his in- nocence.
35.The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of cir- cumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be suffi- cient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been com- mitted for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
36.In the present case there is sufficient evidence on record to show that the accused did have the motive to commit the offence. The mens rea or the criminal mind of the accused is also revealed from his own conduct as he was trying to rape the minor prosecutrix by removing his pant and the underwear of the prosecutrix, making her sit on his lap and trying to insert his male organ in her private part and when New Sessions Case Number : 55912 of 2016.
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Mr.Ravin (PW4) saw him, he immediately put the underwear of the prosecutrix on her and was in the process of putting on and zipping his pant, when he was caught. The prosecutrix, who was aged only about 03 years at that time, would have been an easy and soft target for the accused.
37.A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the ac- cused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an in- nocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent per- son against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of rela- tionship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of pru- dence. There is no such general rule. Each case must be limited to and be governed by its own facts.
38.In the present case, a story has been projected that the accused had committed an attempt to rape upon the prosecutrix, who was aged 03 years. The accused has failed to show that he has no concern with the offence. The prosecution has been able to show that he has commit- New Sessions Case Number : 55912 of 2016.
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ted the offence.
39.There does appear to be criminal intention and mens rea on the part of the accused and he has not been able to prove his defence.
INVESTIGATION
40.The investigation conducted in the present case has been deposed by police witnesses and they have proved the relevant documents. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
41.The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses in- cluding the IO. There is nothing on the record to show that their testi- monies are false or not reliable.
42.It is the actual crime which is important than the investigation.
Where the actual crime is being elaborated and proved in the evi- dence of the prosecutrix and other material witnesses, then the inves- tigation becomes less important as prosecutrix has not only deposed regarding the manner of commission of the crime but has also elabo- rated all the details and has assigned a clear and specific role to the accused.
43.There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation New Sessions Case Number : 55912 of 2016.
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conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logi- cally in the negative as any lapse on the part of the investigation does not negate the offence.
44.Therefore, the investigation conducted in the present case ap-
pears to be fair, proper and legal.
CONCLUSION
45.The conscience of this Court is completely satisfied that the prosecu-
tion has been able to successfully bring home the charge against the accused. The prosecution story inspires confidence and is worthy of credence.
46.From the above discussion, it is clear that the evidence of the prose-
cution is fully reliable and believable. It is trustworthy regarding the veracity of the prosecution case and the prosecution has been able to establish the offence of attempt to rape by the accused upon the mi- nor prosecutrix aged 03 years. There are no gaps in the prosecution evidence nor any discrepancies in the evidence and other circum- stances make it highly probable that such an incident did take place.
47.In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as New Sessions Case Number : 55912 of 2016.
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under:
a. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
b. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
c. The circumstances should be of conclusive nature and tendency;
d. They should exclude every possible hypothesis except the one to be proved; and e. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
48.Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Om Prakash as the culprit stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was a minor. Therefore, there is no force is the contention of the legal aid counsel for the accused that he has not committed any offence.
49.In view of above discussion, the conscience of this Court is com-
pletely satisfied that the prosecution has successfully brought home the charge against the accused Mr.Om Prakash. It has been proved that on 25.07.2012 at about 01:45 pm on the roof of house of the prosecutrix (address mentioned in file and withheld to protect the New Sessions Case Number : 55912 of 2016.
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identity of the prosecutrix), he had attempted to commit rape upon the prosecutrix (who is a minor girl aged about 03 years) and com- mitted an offence punishable under sections 376 /511 of the IPC.
50.Accordingly, Mr.Om Prakash, the accused, is hereby convicted of the charge for the offence punishable under sections 376 / 511 of the IPC.
51.Let him be heard on the quantum of sentence and the report be called regarding the economic status and paying capacity of the convict to the purpose of granting compensation to the prosecutrix.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 13th day of April, 2018. Additional Sessions Judge -01, West, Special Court under the POCSO Act, West, Tis Hazari Courts, Delhi.
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