Delhi District Court
State vs :- Jugeshwar, on 12 March, 2008
IN THE COURT OF SH. BHARAT PARASHAR:ASJ:FTC:ROHINI:DELHI.
S.C. NO. 18/2007
STATE VERSUS :- JUGESHWAR,
S/O SH. DOMAN MISHRA,
R/O GAON & PO-HEMPUR,
DISTT. SAHARSA,
B I H A R.
FIR NO. :- 769/06
U/S :- 376/511 IPC, R/W SECTION 342 IPC
PS :- SHALIMAR BAGH.
JUDGMENT
On 19-10-2006 a complaint was lodged with WSI Shashi Lata of PS Shalimar Bagh by one Munni stating that she resides in H.No.H-196, Gali No.9 Shalimar Village, Shalimar Bagh and that in a nearby house i.e in H.No.104B, Gali No.9, Shalimar Bagh her sister Renu resides along with her husband and children including a minor daughter "A" (name of the prosecutrix has been concealed as it is a case U/S 376 IPC), aged about 4 years. She further stated that when her sister Renu and her husband are away for their work then their mother Rashmi looks-after the children of Renu. She also stated that when on 19-10-06 at about 10am she had gone to the house of her sister Renu to meet her mother then she did not find "A" over there. Upon inquiry her mother Renu stated that she is playing in the courtyard with one Jugeshwar, who was a tenant in an adjacent room. Munni accordingly went to the room of Jugeshwar and found the door closed. Upon giving a push to the door it suddenly 1 opened and she saw "A" lying on the floor with her shorts down. Accused Jugeshwar was lying upon "A" with his pant and shorts down. Jugeshwar had further pressed the mouth of "A" but upon seeing this Munni immediately raised hue and cry. Her mother Rashmi thus also rushed to the room of Jugeshwar. In the meantime Jugeshwar put on his clothes and ran away from there. Munni immediately rang up the police at no.100. One SI Ravinder Singh went to the spot and he thereafter sent the prosecutrix along with her aunty Munni Devi to BJRM Hospital along with lady Ct. Veena for her medical examination. In the meantime SI Shashi Lata went to BJRM Hospital and where she recorded statement of Munni and prepared a rukka and got a case registered at PS Shalimar Bagh for the offence U/S 376/511 IPC. She thereafter recorded statement of the witnesses. Prosecutrix was also produced before the ld. MM to get her statement recorded U/S 164 Cr.PC but, the ld. MM did not record her statement as she was found to be too minor to depose. Efforts were made in the meantime to trace out the accused and finally accused Jugeshwar was arrested from Om Nagar Mitha Pur, near Badarpur, Delhi on the pointing out of complaint Munni and mother Renu of the prosecutrix on 19-10-06 itself. He was accordingly arrested in this case and he too was got medically examined at BJRM Hospital. SI Shashi Lata thereafter visited the spot and prepared site plan. The doctors in the meantime had collected the shorts of the prosecutrix. Thereafter the 2 various exhibits as were collected by the doctors upon the examination of the accused and the prosecutrix were sent to FSL. Upon completion of necessary further investigation, challan was prepared and was filed in the court against the accused for the offence U/S 376/511 IPC read with Section 342 IPC.
Upon committal of the case to the court of sessions, charge for the offence U/S 376/511 IPC read with Section 342 IPC was framed against the accused Jugeshwar to which he pleaded not guilty and claimed trial.
Prosecution thereafter in order to prove its case examined twelve witnesses. Accused was thereafter examined U/S 313 Cr.PC. He however refused to lead any evidence in his defence.
PW1 was the prosecutrix herself whose testimony being that of a minor child was recorded by the court in "question answer" form. She in her brief answers reiterated the prosecution story which I shall be discussing and analyzing at a subsequent stage of my judgment.
PW2 Smt. Munni was the aunty (mausi) of the prosecutrix, who upon finding her to be missing had gone to the room of accused Jugeshwar to look for her and found Jugeshwar sexually assaulting the prosecutrix. She also stated that she along with her mother Rashmi had thereafter caught hold of the accused.
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PW3 Smt. Rashmi was the mother of PW2 Smt. Munni and the nani of the prosecutrix. She too corroborated the testimony of PW2 Smt. Munni in material particulars while reiterating the prosecution story in her deposition.
PW4 Ct. Jitender Kumar was the DD writer, PS Shalimar Bagh, who received the initial information about the incident vide DD No.27B on 19-10-06 at around 10.45am. He thereafter conveyed the information to ASI Ravinder Singh.
PW5 Dr. Shipra Rampal had conducted the bone age x-ray examination of the prosecutrix and found her age to be about three/four years.
PW6 Renu was the mother of the prosecutrix, who had come to know about the incident later on. She thus deposed to this effect in her deposition.
PW8 Dr. Anjali Gupta had medically examined the prosecutrix at BJRM Hospital vide MLC Ex.PW8/A. PW9 HC Govind Singh was the duty officer, PS Shalimar Bagh, who recorded FIR Ex.PW9/A. PW10 Ct. Raj Kumar had taken the sealed pullandas from MHC(M), PS Shalimar Bagh to FSL, Rohini vide RC No.150/21/06.
PW11 HC Lalaram was the MHC(M), PS Shalimar Bagh with whom the various case property articles were deposited with. 4
PW12 SI Ravinder Singh had initially gone to the spot upon receipt of information about the incident. After reaching the spot he sent the prosecutrix to BJRM Hospital through L.Ct. Veena for medical examination. Subsequent investigation in the matter was however taken up by WSI Shashi Lata.
PW7 SI Shashi Lata was the main IO of the case. In her deposition, she reiterated the investigation carried out by her besides proving the various documents/memos prepared by her during the course of investigation.
Accused in his statement u/S 313 Cr.P.C. stated that he has been falsely implicated in this case at the instance of mother of prosecutrix as she had borrowed a sum of Rs.3,500/- from him and when he asked her to return it then she first quarrelled with him and then got him falsely implicated in this case.
I have heard Ld. APP as well as Ld. Counsel/Amicus Curiae Ms. Dhaneshwari for accused at length.
It was submitted by learned defence counsel that the accused has been falsely implicated in this case by the mother and other relatives of the prosecutrix in order to avoid the liability of the mother of prosecutrix to repay back the loan amount of Rs.3,500/- taken by her from the accused. It was submitted that a number of contradictions have come up on record as regards the place from where accused was arrested in as 5 much as PW2 Munni stated that accused was locked by her inside the room but, both IOs PW12-SI Ravinder Singh and PW7-SI Shashi Lata stated that accused was later on apprehended from some other place and was not found by them present at the spot. It was further stated that even the medical examination report or the FSL report does not support the case of the prosecution. The prosecution was thus stated to have miserably failed in proving its case against the accused. Accused was thus stated to be innocent and was thus prayed to be acquitted.
On the other hand Ld. APP strongly opposed the contentions of learned defence counsel stating that the testimony of prosecutrix coupled with the corroboration it obtained from the testimony of PW2 Munni and PW3 Renu clearly proves the case of the prosecution beyond shadows of all reasonable doubts against accused Jugeshwar. Accused Jugeshwar was thus prayed to be convicted.
I have carefully perused the record.
The present prosecution case solely relies upon the testimony of prosecutrix and that of her aunty (mausi) i.e PW2 Smt. Munni and PW3 Smt. Rashmi, the 'nani' of the prosecutrix. The prosecutrix is a small child, aged about four years and thus her testimony being that of a child witness has to be considered with due care and caution. No-doubt, evidence of a child witness ought not to be discarded on the basis of contradictions of minor character but where there are serious infirmities, 6 he must be disbelieved. It has also been said that a witness, who by reasons of his immature understanding was not administered oath and who was privileged, by reason of his years, not to make his answers in an intelligible and coherent manner is unsafe to be trusted wholesale.
Thus, the testimony of a child witness has to be approached with great care and caution. The court has to be careful to see that a child witness is a witness of truth and not witness of imagination as most of the children of that age generally are. Thus, while the court thus look for corroboration to the testimony of a child witness while being on its guard to place reliance upon his testimony but, at the same time the evidence of a child witness is not required to be rejected per-se by the court. As a rule of prudence, the court consider such evidence with close scrutiny and only upon being convinced about the quality of such evidence and itself reliability, basis the conviction by accepting the deposition of the child witness.
It is in the light of the aforesaid well settled principles governing the testimony of a child witness that the evidence of the prosecutrix in the present case has to be seen and analyzed. Thereafter, it has to be further seen as to whether the testimony of the prosecutrix obtains any corroboration from the deposition of her aunty (PW2 Smt. Munni) and mother (PW3 Smt. Rashmi) besides the medical evidence led on record by the prosecution.
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The deposition of the prosecutrix, who was not administered Oath by the court on account of her tender age was recorded in question answer form. In her deposition, she stated that accused had taken off her underwear but, she specifically denied that accused had taken-off his own clothes. She though stated that accused had done "gandi baat" with her. However, upon being asked to explain the "gandi baat", she merely stated that accused had bolted the door from inside and had said to her "aaja-aaja". She also stated that she was rescued from the room of accused by her 'nani' i.e PW3 Smt. Rashmi. She specifically stated that no one else had come along with her 'nani' to the room of accused. She also stated that after she was rescued from over there then accused had run away from the spot.
Thus, if we further consider and analyze the aforesaid answers given by the prosecutrix vis-à-vis the deposition of her aunty (PW2 Smt. Munni), nani (PW3 Smt. Rashmi) and the medical evidence led on record then we find that the prosecution case does not stand substantiated qua the charges framed against the accused.
PW2 Smt. Munni stated that after she found the prosecutrix missing then she went to the room of accused Jugeshwar which was bolted from inside but got open when she gave a push to it. She further stated that she found the prosecutrix lying on the floor in the room with her shorts down and accused Jugeshwar was lying upon her and he too 8 had removed his undergarments. She further stated that her mother Smt. Rashmi (PW3) had also reached over there and after they took out prosecutrix from inside the room of accused then accused was bolted inside the room itself. She further stated that thereafter the matter was reported to police at number 100 and police took away the accused from inside the said room. On similar lines was the deposition of PW3 Smt. Rashmi vis-à-vis the status of the clothes of accused at the time of incident and he having been locked inside his room by them after prosecutrix was rescued from over there.
Thus, it is clear that the deposition of prosecutrix in this regard was clearly contrary to that of her aunty PW2 Smt. Munni and PW3 Smt. Rashmi. In fact, prosecutrix denied about the very presence of her aunty Smt. Munni (PW2). The falsity in the deposition of PW2 Smt. Munni and PW3 Smt. Rashmi further emerges out when PW12 SI Ravinder Singh, who had initially reached the spot upon coming to know about the incident specifically stated that accused was not presented before him over there by anyone. PW7 W.SI Shashi Lata also did not state anything about presence of accused at the spot. She rather stated that accused Jugeshwar was later on arrested by her from the house of one of her relative i.e at Om Nagar, Mithapur, near Badarpur. In fact, as per the IO, accused at the time of his arrest was identified by PW2 Smt. Munni and Vikram, the father of the prosecutrix. It has completely remained 9 unexplained as to how the IO came to know about the presence of accused at Om Nagar, Mithapur, near Badarpur, Delhi. If the accused had run away from the spot then, he would have made every effort to escape away from the clutches of law and thus the apprehension of accused Jugeshwar on the day of incident itself from Mithapur, Badarpur appears to be quite strange.
Apart from the aforesaid major discrepancy in the prosecution story if we see the medical examination report of prosecutrix then, we find that the doctors at BJRM Hospital did not find any external injury over her body. This again seems to be quite strange, if a small child, aged about three/four years is laid down on the floor and thereafter a person, aged about 45 years or so as accused Jugeshwar is lies upon him with an intention to outrage her modesty or in order to commit rape upon her then some or the other injuries would have occurred on the person of the prosecutrix. Thus, the absence of any such injuries also raises grave shadows of doubts as to the veracity of the prosecution case. Moreover, prosecutrix was taken to hospital at around 2.50pm i.e after a gap of about five hours of the incident despite the claim of PW2 Smt. Munni that police was immediately informed about the incident. This fact also raises doubts as to the veracity of the prosecution case.
The investigating officer also failed to join any public independent witness in his proceedings. Thus, in the absence of 10 corroboration from any public independent witness, the prosecution story does not inspires confidence.
On the other hand, accused Jugeshwar has put forth his plea of defence that a quarrel took place between him and the mother of prosecutrix as they had not returned back Rs.3,500/- which were borrowed from him by them. No-doubt, accused has not been able to prove his said plea of defence by way of any other evidence but, if the same is seen and analyzed in the light of overall facts & circumstances of the present case, coupled with the contradictory nature of deposition of the prosecution witnesses then the same appears to be a probable plea of defence.
It was observed by Hon'ble SC in the Case AIR 1956 SC 217 that:
"there are two important factors in a criminal trial that weigh heavily in favour of the accused persons. One is that the accused is entitled to benefit of every reasonable doubt and the other an offshoot of the same principle that whenever an accused offers a reasonable explanation of his conduct, even though he cannot prove his assertion, the same should ordinarily be accepted unless the circumstances of the case indicate otherwise".
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In view of my aforesaid discussion, I am thus of the considered opinion that it will not be safe to rely upon the testimony of the child witness viz the prosecutrix in order to base a conviction upon the same. The prosecution has thus miserably failed in proving its case against accused Jugeshwar beyond shadows of all reasonable doubts.
I accordingly hereby giving benefit of doubt to accused Jugeshwar, acquit him of the offence U/S 376/511 IPC, r/W Section 342 IPC.
Accused Jugeshwar be released from JC, if not required in any other case.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 12-3-2008.
(BHARAT PARASHAR)
ASJ:FTC:ROHINI:DELHI
12
FIR NO. :- 769/06
U/S :- 376/511 IPC, R/W SECTION 342 IPC
PS :- SHALIMAR BAGH.
12-3-2008
Pr. Addl. PP for the State.
Accused is present in JC.
Vide my separate detailed judgment dated 12-3-08 accused Jugeshwar has been acquitted of the offence U/S 376/511 IPC, r/W Section 342 IPC.
Accused Jugeshwar be released from JC, if not required in any other case.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 12-3-2008.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI 13