Delhi District Court
State vs . Harishankar on 15 October, 2012
SC No. 99/11
FIR No.256/11
PS: Najafgarh
State Vs. Harishankar
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 99/11
FIR No. : 256/11
Police Station : Najafgarh
Under Section : 376/506 IPC
Received on assignment : 05.11.2011
Reserved for orders on : 10.10.2012
Judgment announced on : 15.10.2012
State Vs. Hari Shankar Kumar
S/o Sh. Ram Udhar Mehto
R/o Village Tapri Ward No. 109
Mehtotola, PO Rawana Tepri
PS Peetar Distt. Mujjaffarpur, Bihar
J U D G E M E N T
1. The accused has been sent for trial for offence U/S 376/506 IPC.
2. The brief facts in nutshell are that on 28.07.2011, DD No. 24A was assigned to SI Ramdhan wherein it was disclosed that one person had been apprehended from house No. 31 A, Page 1 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar Jamini Park, Nangli Sakrawati, Najafgarh, New Delhi. On receipt of said DD No. 24A, SI Ramdhan alongwith constable Surender reached the spot and found many persons gathered there one Vijay Kumar had apprehended one person Hari Shankar Kumar S/o Ramodhar Mehto, R/o village Tekri, District Mujaffar Pur, Bihar , who was beaten severely by the public and handed over to SI Ramdhan. It is further alleged that Vijay Kumar, father of prosecutrix had stated that his daughter, prosecutrix (name not disclosed as per dicta of superior court) aged about 13 years studying in 6th class used to take tuition from the accused Hari Shankar and on 23.07.2011, accused bolted the door from inside and committed rape upon the prosecutrix. SI recorded the statement of prosecutrix who has stated that she is residing with her parents and studying in 6th class and accused used to teach her as well as her brothers younger to her w.e.f 20.7.2011. The accused had come to give tuition to the prosecutix and her brothers on 23.07.2011 at about 5.30 pm and gave tuition to the prosecutrix and thereafter, the accused asked her brothers to go out of the house and accused asked the prosecutrix to do exercise. In the meantime, accused bolted the door from inside and put off Payjami of prosecutrix and committed rape on her and at that time, parents of the prosecutrix were not present. She further stated that accused threatened her not to disclose Page 2 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar this act to her parents. Accused got frightened and did not disclose anything to anybody.
3. It is further alleged that accused had not visited the house of prosecutrix for three days and on Wednesday, he came to give tuition the prosecutrix told her mother that she will not take tuition from the accused. It is further alleged that when her mother repeatedly asked the prosecutrix as to why she will not take tuition from the accused, then prosecutrix told to her that accused had committed rape on her on Saturday. It is further alleged that on 28.7.2011, accused came at about 5.30 pm and accused was apprehended by the parents of the prosecutrix when he tried to fled away and he was beaten severely and a call was made on No. 100. The prosecutrix requested for her medical examination. FIR U/S 376 IPC was lodged. Rough site plan was prepared and investigation was handed over to W/SI Asha and the exhibits received from RTRM Hospital were got deposited with the MHCM. Accused Hari Shankar was arrested and his medical examination was got conducted from RTRM Hospital. Sealed parcel alongwith sample seal were deposited with MHC(M). During investigation, section 506 IPC was added.
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4. It is further alleged that the statement of prosecutrix was got recorded U/S 164 CrPC where she has stated that on 23.7.2011 i.e on Saturday, accused Hari Shankar whom the prosecutrix call as uncle ji came to her house at about 5.30 pm, in the evening to teach her and her brothers but after some time, the accused had sent her brothers outside the room. It is further stated by the prosecutrix that she was wearing a payajami. Accused Hari Shankar told her that it is now time to do exercise. The prosecutrix was made to sit on the floor and a pillow was kept under her. It is further stated by the prosecutrix that when she was made to do exercise whereby she had to put her knees till her chest. Then the accused forcibly removed her payjami, the prosecutrix tried to scream but accused gagged her mouth. Thereafter accused had opened the zip of his pant and had done wrong act with her i.e "put his penis into her vagina". He had also pressed her breast and kissed her on her both cheeks and lips. He has committed rape upon her. It is further stated that at that time, somebody knocked the door and accused Hari Shankar sternly asked her to stand and put on her payjami. The accused opened the door and friend of the prosecutrix namely Kavita was there and she told that she had come to fetch the prosecutrix to play with her. The accused Hari Shankar told her that prosecutrix was studying. Therefore, she Page 4 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar left and accused told her that, in case, she disclosed this incident, he would kill her. Hari Shankar again came on 28.07.2011 at 5.30 pm. When he came, the prosecutrix told her mother that she would not study from the accused Hari Shankar, whereupon her mother inquired and the prosecutrix told her that Hari Shankar had done the wrong things with her and has raped her. Parents of the prosecutrix caught hold of Hari Shankar and had beaten him. During investigation, statement of the witnesses were recorded. Thereafter chargesheet was filed. Charge was framed against the accused. Accused pleaded not guilty.
5. After supplying copies to the accused as per law, case was committed to the court of sessions.
6. After due deliberation, charge under Section 376/506 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
7. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered 17 witnesses in all in support of its case namely:
Page 5 of 36 SC No. 99/11 FIR No.256/11PS: Najafgarh State Vs. Harishankar PW1 Ms. Kripa Kumari, Principal of MC Primary Adarsh School PW2 Prosecutrix (name withheld as per dictum of Hon'ble Apex Court) PW3 Sh. Vijay Kumar PW4 Smt. Anju Devi PW5 Const. Ajit Singh PW6 HC Karambir Singh PW7 HC Laxmi Narayan PW8 SI Ram Dhan PW9 Sh. Sumit Dass, MM PW10 Master Digvijay PW11 Const.Surender PW12 ASI Raj Singh PW13 Dr. Shruti Joshi Dabral, Gyane Specialist, RTRM Hospital PW14 Dr. Arunima Hajra, Medical Officer, Rao Tula Ram Hospital PW15 Dr. A.S.Yadav, Medical Officer, RTRM hospital PW16 L/Const. Bulkesh PW17 W/SI Asha
8. On completion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. wherein he controverted the entire evidence as false and fabricated and Page 6 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar claimed that he has been falsely implicated in this case by the complainant.
9. Accused has led evidence in his defence in which DW1 Sh. Avdesh stated that he was working as security guard in Ircon International company, Najafgarh and produced the orignal attendance register and deposed that as per record, on 23.07.2011, accused Hari Shankar had marked his entry in the above said company at 8:10 am and he left about 6:00 pm and said entry is Ex. DW1/A. DE closed. Final arguments were advanced.
10. I have gone through the entire records and carefully considered the matter.
11. Before proceedings further, I would like to discuss the evidence led by the prosecution to prove the case.
12. PW1 Ms Kirpa Kumari , Principal of M.C. Primary Adarsh School, Nangli Sakrawati,I. She has deposed that prosecutrix was admitted in school in class Ist vide admission No. 1361 on 26.04.2006. As per record, date of birth of prosecutrix is 15.04.2000 and the relevant entry in the Page 7 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar admission register was made vide entry No. Ex.PW1/A and the undertaking/affidavit given by the mother of the prosecutrix in support of the date of birth of the prosecutrix is ExPW1/B and the certificate was issued by PW1 to the IO is Ex. PW1/C.
13. PW2 is the prosecutrix. She being a child witness, questions were put to her in order to test her understanding of the questions put to her and whether she can answers those questions intelligently and from the questions put to her, this court was of the opinion that the prosecutrix was able to understand the question put to her and she was knowing the meaning of oath and her testimony was recorded on oath. During her deposition, prosecutirix has testified that rape was committed upon her by one Ram Shankar Yadav, although she started with word that she does not know the accused present in the court, yet during cross examination by Ld APP, she admitted that she identifies the accused Hari Shankar as the person who had committed rape with her on the day of incident and she further admitted that out of fear she wrongly named her Tutor as Ram Shankar Yadav, whereas real name of the accused was Hari Shankar, who had committed rape on the prosecutrix. She has further deposed that one day, the accused /tutor came to teach her and her two brothers at about 5 pm. After giving Page 8 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar tuition, he sent her brothers outside the room and asked the prosecutrix to put off her Payjami on the pretext that accused will make her to do some exercise. Prosecutrix further deposed that the accused threatened her to kill if she disclosed about the incident. So prosecutrix did not tell to her parents and after three days, accused again came to her house to give tuition but prosecutrix did not take tuittion and disclosed about the incident to her mother. She has stated that statement of PW2 was recorded by the police and the accused was arrested vide ExPW2/B and his personal search was taken vide ExPW2/C. Prosecutrix further testfied that her statement was recorded u/s 164 CrPC by the Ld Magistrate vide ExPW2/D.
14. PW3 is the complainant , father of the prosecutrix and he deposed on the line of the prosecution and he testified that the accused was known to him one month prior to the date of incident and accused used to give tuition to his children and his wife told him that accused has committed rape on the prosecutrix on 23.7.2011. He called the police and handed over accused to the police.
15. PW4 is the mother of the prosecutrix who has also deposed on the lines of the prosecution.
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16. PW5 constable Ajeet Singh who was posted as constable on 14.10.11 at PS Najafgarh, and has taken 15 exhibits alongwith sample seal to FSL, Rohini vide RC No. 118/21 and after depositing the same, handed over the acknowledgement of the same to the MHC(M).
17. PW6 is HC Karambir who has testified that on 29.7.2011, he was posted as MHC(M) and SI Asha had deposited with her 15 sealed parcels which he received in terms of the entry no. 3688 in register No. 19 and copy of the said entry is ExPW6/A. He further deposed that on 12.8.2011 SI Asha deposited with him sealed parcel containing blood sample alongwith sample seal which PW6 deposited in Malkhana vide entry No. 3710 in register no. 19 which is proved vide ExPW6/B and the said exhibits were sent through constable Ajeet to FSL Rohini vide RC ExP6/C and constable Ajeet handed over receipt vide ExPW6/D
18. PW 7 has deposed that in the intervening night of 28/29711 at about 12.45 he received rukka through constable Surender Singh sent by SI Ramdhan and recorded FIR No. 256/11 vide EPW7/A and made endorsement on the rukka vide Page 10 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar ExPW7/B and handed over original rukka and FIR to the constable Surender.
19. PW8 SI Ramdhan has deposed that on 28.7.2011, on receipt of DD No. 24A he alongwith constable Surender went to the house of complainant where crowd had gathered and PW3 and PW4 produced accused Hari Shankar and told him that accused had committed rape on the prosecutrix He recorded the statement of prosecutrix vide ExPW2/A. He got conducted medical examination of the prosecutrix with the help of lady constable Bulkesh. He further deposed that he sent rukka ExPW8/A for registration of FIR through constable Surender, thereafter he prepared site plan. After registration of case, investigation was marked to W/ASI Asha and this witness prepared site plan ExPW8/B.
20. PW9 is Ld Magistrate who recorded the statement of prosecutrix on 29.7.11 on application ExPW9/A moved by IO SI Asha for recording statement of prosecutrix U/S 164 CrPC. Statement of prosecutrix was recorded. Proceedings regarding recording of statement is ExPW9/B and he supplied copy of statement on the application of the IO (Ex PW9/C).
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21. PW10 is Master Dig Vijay, younger brother of prosecutrix aged 12 years who is a child witness as such questions were put to him in order to test his understanding of the questions put to him whether he can answer the said questions intelligently or not and from the questions put to him, this court was of the opinion that PW10 was able to understand the question put to him and he was knowing the meaning of oath and his testimony was recorded on oath. He has testified that accused Hari Shankar was giving tuition to him as well as her sister prosecutrix and brother Chander Vijay and further deposed that on 23.7.11 accused came to their house at about 5.30 pm for giving tuition and accused after giving tuition sent PW10 and his brother downstairs to play and the prosecutrix remained in the room on the first floor. He further stated that his parents had gone out of home, thereafter accused did not come to give tuition. After few days, his sister/prosecutrix told his mother that she will not take tuition from accused as he committed rape on her. On 28.7.12, accused came there and was handed over to the police..
22. PW11 constable Surender has deposed that he has gone with SI Ramdhan on receipt of DD to the house of complainant alongwith lady constable Bulkesh and he got the Page 12 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar prosecutrix medically examined from RTRM hospital and thereafter he was sent to PS for registration of case alongwith rukka and after that he got conducted medical examination of the accused from the hospital and the doctor has given him three sealed parcels given by the IO vide ExPW3/A. After registration of the case, he alongwith original rukka went to RTRM hospital and gave to W/SI Asha to whom the investigation was marked. Thereafter, statement of the parents as well as prosecutrix was recorded. Accused was arrested.
23. PW13 is Dr. Shruti Joshi Dabral who had examined the prosecutrix vide MLC No. 3050 and the same is ExPW13/A. She has further opined that as per MLC, hymen was not intact.
24. PW14 is Dr. Arunima and she has deposed that on 28.7.2012, she was posted as Casualty Medical Officer and prosecutrix was brought to the hospital . On that day prosecutrix was brought to the hospital with alleged history of sexual assault. She had examined the patient vide MLC No. 3050 ExPW14/A. Thereafter prosecutrix was referred to Gynae Department.
25. PW15 Dr. A.S. Yadav who has examined the accused Page 13 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar vide MLC No. 3336/11 which is ExPW15/A and he was of the opinion that there was nothing to suggest that accused cannot perform sexual intercourse.
26. PW16 is Lady constable Bulkesh who had taken the prosecutrix to RTRM Hospital on the direction of SI Ramdhan and after medical , doctor handed over to him 11 sealed parcels alongwith sample seal which he handed over to IO and IO seized the same vide ExPW16/B.
27. PW17 is W/SI Asha who deposed that on 29.7.11, she was posted as SI at PS Najafgarh. Investigation of the case was assigned to her and she alongwith constable Surender went to RTRM Hospital where Surender handed over copy of rukka and FIR and SI Ramdhan alongwith prosecutrix and Harish was present in the hospital and she seized the sealed parcel from constable constable Bulkesh and thereafter she went to the house of the prosecturix and recorded statement of the parents of the prosecutrix. Accused was arrested and his personal search was taken. Thereafter, statement of prosecutrix was got recorded u/s 164 CrPC. During the course of investigation, she collected FSL report and proved vide Ex PW17/A. In the meantime, she collected documents regarding age of the Page 14 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar prosecutrix from Delhi Nagar Nigam Adarsh school and after return from the hospital, she got deposited the exhibits on 29.7.11 with MHC(M). thereafter PE was closed.
28. On the basis of the evidence and submissions of the ld. PP for the State and that of the learned defence counsel, the following points emerge for decision:
(i) Effect of evidence of interested witnesses and non examination of independent witnesses?
(ii) Value of child witness/sole eyewitness?
(iii) Value of medical evidence and contradiction with the oral testimony?
(iv) Whether the offence of rape is proved?
Point No.(i) (Effect of evidence of interested witnesses and non examination of independent witnesses).
29. Counsel for the accused has contended that interested witnesses namely PW2 prosecutrix, her father PW3 Vijay Kumar, her mother PW4 Smt. Anju and her brother PW10 Master Digvijay are interested witnesses in this case and no person from the place where the occurrence took place was joined or even examined by the prosecution. Thus it was contended that all the witnesses being family members are Page 15 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar interested witnesses and prosecution failed to examine any independent witness. Thus the evidence led by the prosecution does not inspire confidence.
30. On the other hand, Ld. Addl. PP for the State stated that evidentiary value of all the witnesses is on the same footing as that of the independent witnesses.
31. In Sucha Singh and another Vs. State of Punjab, 2003 Criminal Law Journal page 3876 (SC), Their lordships in para Nos. 13 and 16 held as:
"Relationship is not a fact to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. It cannot be said that he witness being a close relative and consequently being a partisan witness Page 16 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar should not be relied upon."
32. In State of A.P. Vs. S.Rayappa & Ors 2006(1) RCR (Crl.) 966 (SC) Their lordships in para No.6 held that:
"Meaning of interested term 'interested witness' postulates that the term person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons. A close relative, who is a very natural witness cannot be termed as an interested witness. The testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness."
33. Now in the light of law laid down in the aforesaid judicial pronouncement, it is to determine whether the testimony of all the above said four prosecution witnesses is required to pass the test of independent corroboration and severe scrutiny. Perusal of the testimony of Page 17 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar complainant/prosecutrix PW2 shows that she has deposed on the same lines as per the prosecution story. There is hardly any material contradictions in her statement. Moreover, all the witnesses have been cross examined at length by the Ld. defence counsel but nothing has come out contrary from their mouth contrary to the main points of the case.
34. The prosecutrix in her statement on the basis of which FIR has been lodged has specifically stated that Hari Shankar uncle (accused) used to teach her as well as her two younger brothers w.e.f 20.07.2011 and on 23.07.2011, accused came to give tuitions to the prosecutrix and her brothers at 5:30 pm and after giving tuitions, brother of the prosecutrix was sent outside the house by the accused and, thereafter, accused committed rape on her. Thereafter, her statement was recorded under section 164 Cr.PC wherein she has stated that she was wearing a pajami. Accused told her that it is now time to do exercise. She was made to sit on the floor and a pillow was kept under her. She was made to do exercise whereby she had to put her knees till his chest. Then accused forcibly removed her pajami. She tried to scream but accused gagged her mouth. Thereafter, accused had opened the zip of his pant and had done wrong act with her i.e 'put his penis into her vagina'. He Page 18 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar had also pressed her breast and kissed her on her both cheeks and lips. He has committed rape upon her.
35. This witness was cross examined by Ld. Addl. PP for the State as she was resiling from her previous statement and during cross, she had admitted that in her complaint, the name of her tutor is Hari Shankar whom she always used to call as uncle. She had further admitted that incident had happened on 23.07.2011. She further admitted that accused Hari Shankar had made her lie on the ground on the pretext of exercise and had committed rape with her. She further admitted that at the time of arrest, police had filled up arrest memo of accused in her presence and she had signed the same. She further admitted that accused had also signed the arrest memo in her presence. She further admitted that before Magistrate, she had told in her statement that accused Hari Shankar was her tutor and he had committed rape with her. She further admitted that accused had pressed her breast and had kissed on her lips and cheeks. She voluntarily stated that accused had bitten near her upper lips. She further admitted that on 28.07.2011, accused had come to her house to give tuition to her but she refused to take classes with him before her mother. She further admitted that her parents had apprehended the accused and handed over to him Page 19 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar to the police. She further admitted that her mother's name is Anju Devi.
36. While deposing in the court, she has reiterated her statement made before the police as well as Ld. MM that accused had committed rape upon her and she had stated that accused used to teach her at her residence and on that fateful day, accused had also come to teach her and her brothers and after giving tuitions, accused sent her brothers out from the room. Thereafter that person asked her to put off her pajami and top on the pretext of exercise. Thereafter that person put off his pant and he committed rape with her. Thereafter he wiped something with handkerchief. Thereafter that person threatened her to kill if she would disclose about the incident to her parents. She did not tell her parents about the incident. After three days said person again come to her house to give tuition to her and her brothers but she did not go to take tuition from that person and she told her mother about the incident. Thereafter her father apprehended said person and informed police. After some time police came and that person was handed over to the police.
37. During cross of this witness, she had admitted that Page 20 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar when the accused was committing rape upon her, her friend Kavita came to ask prosecutrix to accompany her for playing but accused told Kavita that prosecutrix was studying. She further admitted that she had not disclosed this incident to anybody till 28.07.2011. She had further denied the suggestion that accused is not the person who had committed rape upon her. She had further denied the suggestion that her age is about 1617 years. But she volunteered that she is aged about 12 years.
38. In the start of her testimony, she had stated that rape was committed upon her by Ram Shankar. Counsel for the accused contended that accused is not the person who had allegedly committed rape upon the prosecutrix. But this contention appears to be attractive but the same is falacious and is hereby rejected. During her cross examination, the prosecutrix stated that she has been raped by the accused but she was not recollecting the exact date but while cross examined by Ld. Addl PP for the State, she had admitted the entire case of the prosecution and in her cross examination by counsel for the accused, the defence counsel had failed to elicit anything which may demolish the case of the prosecution. Thereafter, accused shown to the witness and she identified the accused Hari Shankar as a person who had committed rape with her on the Page 21 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar day of incident and stated that out of fear she named accused as Ram Shankar instead of Hari Shankar and the said explanation of the prosecutrix, a child witness appears to be natural one and trustworthy.
39. In cross, she had further denied the suggestion that accused is not the person who had committed rape upon her. From the testimony of this witness, it can safely held that accused is the perpetrator of the crime. The testimony of this witness who is a child witness, it can be concluded that the accused is perpetrator of the crime upon the prosecutrix. Apart from testimony of PW3, father of the prosecutrix has testified that accused was known to him one month prior to the date of incident and accused used to give tuitions to his children. On 28.07.2011 PW4, mother of the prosecutrix told to PW3, father of the prosecutrix that accused had committed rape with their daughter on 23.07.2011 and accused was apprehended on the same day and handed over to the police. This testimony is further fortified and corroborated by the testimony of PW4 who had stated that she used to go to work at 8:00 am and used to return at 8:30 pm and accused used to give tuitions to her children and on 28.07.2011, she was present at her house and accused came to give tuitions to prosecutrix but prosecutrix Page 22 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar shows her reluctance to take tuitions from the accused as four days ago, accused had committed rape upon her and threatened to kill her if she disclosed anything to anybody.
40. PW10 master Digvijay is a child witness and he was able to understand the meaning of oath and he also testified that on 23.07.2011, accused came to their house for giving tuitions and after teaching, accused asked PW10 and his brother to go down stairs for play and prosecutrix remained with the accused on the first floor for the purpose of tuitions and parents of this witness were not present at the house and after few days, prosecutrix told to her mother that she will not take tuitions from accused as he had committed (galat kam)/rape with her.
41. From the conjoint reading of the testimonies of all the above said witnesses, the only irresistible conclusion can be drawn that all the witnesses alleged to be interested in the success of the prosecution case are not interested witnesses. There is nothing to doubt the veracity and trustworthiness of these witnesses and their testimonies appear to be natural and trustworthy that the accused had committed rape upon the prosecutrix.
Page 23 of 36 SC No. 99/11 FIR No.256/11PS: Najafgarh State Vs. Harishankar Therefore in these circumstances, the evidentiary value of said witnesses although they are related to each other cannot be lost sight of and their evidence is as good as that of the independent witnesses and this point is answered in favour of the prosecution.
42. Point No.(ii) Value of child witness/sole eye witness.
43. Ld. Defence counsel contended that prosecutrix is the only eye witness and her statement is tutored one and shaky and upon her sole testimony, it will be very risky to convict the accused. It is further submitted that conviction cannot be based upon the sole testimony of the witness.
44. On the other hand, Ld. Addl. PP for the State has contended that the conviction can be sustained on the sole testimony of the prosecutrix. The Ld. Addl. PP for the State has relied upon the judgment of Vishnu @ Undrya Vs. State of Maharashtra, 2006(1) Apex Court Judgments 713 (SC).
45. The prosecutrix who is aged about 12 years has stated that accused person had caught hold her and made her to lay down on the ground then accused did the bad act and Page 24 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar accused also laid upon her and he was bearing pant and shirt at that time.
46. In the judgment of Vishnu @ Undrya Vs. State of Maharashtra (supra) their lordships in para 28 observed as:
"The statement of the prosecutrix, in our view, is quite natural, inspires confidence and merits acceptance. In the traditional nonpermissive bounds of society of India, no girl or woman of self respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle...........It is now a well settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix, if it Page 25 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar inspires confidence."
47. The prosecutrix has identified the accused, understood the question put to her and deposed that she has been ravished by the accused as such her testimony is found to be impeccable. In view of the above discussion that testimony of the child (prosecutrix) is sufficient to convict, point no. (ii) is answered in favour of the prosecution.
48. Point nos. (iii) and (iv) Value of medical evidence and contradictions with the oral testimony.
49. Facing this situation, Ld. Defence counsel contended that there are material contradictions and vital discrepancies in the oral evidence adduced by the prosecution visavis the medical evidence. According to him, alleged rape was said to have been committed in the house of the prosecutrix. However, no injury has been reported by the doctor in the medical report Ex. PW13/A.
50. PW13 Dr. Shruti Joshi Dabral has reported that there was no external injury mark. Ld. Defence counsel has further argued that there was no mark of the violence on the body of the Page 26 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar victim and presence of semen after examination of five days of the alleged rape falsify the prosecution story that the prosecutrix was subjected to rape by the accused as the semen could be present in the vagina only after few hours. Thus it is argued that the ocular evidence produced by the prosecution is at variance with the medical evidence and in these circumstances, the accused is liable to be acquitted. This contention is also appears to be attractive but same is bound to be rejected and is hereby rejected, in view of the fact that semen can be found present in vagina or in the cervix of the vagina for a number of days. In this regard, I found support from the case law Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658 in which it has been held that :
"Spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form. If the prosecutrix washes herself by then, the spermatozoa may not be found. In that case the Court after satisfying itself regarding the presence of semen on the clothes of the prosecutrix held that "the absence of semen Page 27 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar or spermatozoa in hte vaginal smear and slides, cannot cash doubt on the creditworthiness of the prosecutrix".
51. Modi in his Medical Jurisprudence and Toxicology has noted:
"The presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days, and by Morrison (1972) 9 days in vagina and 12 days in the cervix. However, in the vagina of a dead woman, they persist for a longer period."
52. It follows, therefore that the presence of spermatozoa, dead or alive, would differ from person to person and its positive presence depend upon various circumstances. Otherwise also the presence of or absence of spermatozoa is ascertained for the purpose of corroboration of the statement of the prosecutrix. If the prosecutrix is believed to be truthful witness, in her deposition, no further corroboration may be insisted. Corroboration is admittedly only a rule of prudence. The Hon'ble Supreme Court in state of Punjab v. Gurmeet Singh Page 28 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar AIR 1996 SC 1393: took note of the existing rate of crime against the woman and held as under:
"Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it Page 29 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
53. On the other hand, the learned Public Prosecutor for the State has argued that the testimony of the prosecutrix and her mother is sufficient to dispel all the doubts with regard to the discrepancies pointed out by the learned defence counsel.
54. In the judgment of State of Tamil Nadu Vs. Ravi @ Nehru, 2006(2) Apex Court Judgments page 733, it has been held that nonrupture of hymen or absence of injury on the victim's private parts does not belie the testimony of the prosecutrix.
55. In Khambam Raja Reddy & Anr. Vs. State of West Bengal, 2006(4) Recent Criminal Reports, Their Lordships held Page 30 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar that:
"Where there is variance in medical evidence and ocular evidence and if evidence of eyewitnesses is found trustworthy, the same cannot be discarded merely because medical opinion is at variance."
56. In Bhole Swami Vs. State of Punjab, 2011(2) RCR (Criminal) 349(P&H), it was observed that if no external injury mark was present, however, prosecutrix gave detailed statement as to her ravishment by accused then on unblemished testimony of prosecutrix, no further corroboration was required and the conviction was upheld.
57. In view of the above said discussion, this point (iii) is also accordingly answered in favour of the prosecution.
58. The age of the prosecutrix at the time of alleged offence is about 12 years. As per the admission/withdrawal register of the school which is proved by PW1 Ms. Kripa Kumari vide Ex. PW1/A, the age of the prosecutrix was mentioned as 15.04.2000 and this entry in school register has been entered Page 31 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar into the basis of the document/affidavit tendered by PW4, mother of the prosecutrix wherein she has detailed the age of the prosecutrix as 15.04.2000. Entry in the admission and withdrawal register is supported by the affidavit Ex. PW1/B. So prosecutrix is proved to be aged about 12 years on the date of incident. No contrary evidence has been led by the prosecution to show that prosecutrix was aged about more than 16 years at the time of alleged offence. As per medical report Ex. PW5/A, accused was fit to perform sexual act. Moreover the prosecutrix herself clearly stated the each and every detail of the occurrence of offence. Her statement is further corroborated by her mother, father and brother.
59. So far as delay is concerned. The prosecutrix has stated that accused had told her that he was going to his village and will come after 23 days and as and when accused came to the house of the prosecutrix on 28.07.2011, he was apprehended by the father of the prosecutrix and handed over to the police so there was no delay in lodging the FIR. Otherwise also the law regarding delay in lodging the FIR is settled otherwise also the law regarding delay in lodging the FIR, if delay is properly explained by the prosecution such delay is not going to affect the prosecution case.
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60. Delay is not fatal to the story of the prosecution, in case, the said delay is satisfactorily explained otherwise also in case of rape, the reputation of the family is at stake so FIR is lodged after pondering over the matter before taking the decision by the family members whether to report the matter to police or not.
61. It may be noted here that the alleged contradictions and discrepancies are neither material contradictions nor vital discrepancies otherwise there are normal discrepancies which occur on account of passage of time. In this regard, I found support from State of Rajasthan v. N.K. The accused, 2000(2) RCR (Crl.) 471 (SC) : (2000) 5 SCC 30 wherein the observation made in Gurmit Singh's case was reiterated. The Court further observed in paragraph 9 at SCC p. 38 as under :
"Having heard the learned counsel for the parties we are of the opinion that the High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. It is true that the golden thread which runs throughout the Page 33 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal Page 34 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar courts which gives rise to the demand for death sentence to the rapists. The Courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women".
62. DW1 has only proved that the accused was on duty on 23.07.2011 right from 8:10 am to 6:00 pm. But this plea is not sustainable, in view of the fact that the distance between the house of the prosecutrix and place of work of the accused can be covered within ten minutes as the said distance is about of two kilometers; and in view of the corroborative testimony regarding presence of the accused at the house of PW1 for giving tuitions to the prosecutrix , the testimony of DW1 pales into insignificance.
63. In view of the above discussion, the offence of rape has been proved upon the accused and this point (iv) is answered in favour of the prosecution.
64.. In view of the above discussion, it is held that accused had committed rape upon the prosecutrix and Page 35 of 36 SC No. 99/11 FIR No.256/11 PS: Najafgarh State Vs. Harishankar therefore the accused is hereby held guilty for committing offence under section 376 is hereby convicted under section 376 IPC. However, the prosecution has failed to prove the commission of offence under section 506 IPC. Accused is accordingly acquitted of the charge under section 506 IPC. Put up for order on sentence on 26.10.2012.
Announced in the open court (Vijay Kumar Dahiya) On the day of 15th October 2012 ASJ/ Dwarka Courts New Delhi Page 36 of 36