Delhi District Court
State vs . Mahabir Mehto, on 27 April, 2018
IN THE COURT OF SH. SANJAY GARG, ADDITIONAL SESSIONS JUDGE01,
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440846/2016
State Vs. Mahabir Mehto,
S/o Sh. Triveni Mehto,
R/o Gali No. 8, Gopal Nagar,
Surakhpur Road, Najafgarh,
New Delhi.
FIR No. : 216/2013
Police Station : Baba Haridas Nagar
Under Sections : 376/506 IPC & 6/10 POCSO Act
Date of presentation of charge sheet : 09.12.2013
Date on which judgment was reserved : 16.04.2018
Date on which judgment was pronounced : 27.04.2018
JUDGMENT:
1. Accused Mahabir Mehto is the father of the prosecutrix 'P' (name withheld to protect her identity). He is facing trial for committing repeated penetrative sexual assault on the prosecutrix and intimidating her not to disclose about the same to anyone.
2. Law was set into motion against the accused on the basis of a complaint lodged by his sister on 04.09.2013. In her complaint, the complainant stated that on 02.09.2013, the accused had come to stay with her alongwith his family consisting of his wife, elder daughter (i.e. the prosecutrix) aged 16 years, younger daughter aged 4 years and son aged 8 years. She alleged that on 03.09.2013, when the prosecutrix was Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 1/22 doing household chores, she noticed an unusual bulge in her belly. Upon being inquired, the prosecutrix revealed to her that the accused had been establishing physical relations with her for the last one year by threatening her and that as a result thereof, she had become pregnant. When the complainant confronted the accused about the same, he fled away from the house with his younger daughter. On the basis of the above complaint, FIR under Sections 376/506 IPC was registered against the accused. The prosecutrix was medically examined on the same day. She was found to be having pregnancy of 28 weeks. Her statement under Section 164 Cr.P.C. was recorded on 07.09.2013. In her statement, she supported the contents of FIR and disclosed that she had told about the acts of the accused to her mother but she did not do anything as she was of unsound mind. During the course of investigation, Sections 6 and 10 POCSO Act were added. The accused was arrested on 15.09.2013. After completion of investigation, the charge sheet was filed.
3. It is a matter of record that the prosecutrix gave birth to a male child and that the said child had been given in adoption by the orphanage Sewabharti Matrichhaya.
4. On 08.01.2014, the charge for the commission of offence punishable under Section 6 read with Section 5 (n) POCSO Act and Section 506 IPC was framed by the Ld. Predecessor against the accused to which he pleaded not guilty and claimed trial.
Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 2/22In view of the law laid down in Gaya Prasad Pal @ Mukesh v. State, (2016) 235 DLT 264 (DB), the alternative charge under Section 376 (2)(f), (i) & (n) IPC was framed against the accused on 16.04.2018.
5. The prosecution examined fourteen witnesses in support of its case. 5.1. The prosecutrix was examined as PW1. She proved her statement under Section 164 Cr.P.C. as Ex.PW1/A. 5.2. PW2 is the complainant/paternal aunt (bua) of the prosecutrix. She proved her complaint dated 04.09.2013 lodged with P.S. Baba Haridas Nagar as Ex.PW2/A. 5.3. PW3 HC Sanjeev Kumar is the duty officer. He proved the copy of FIR recorded by him as Ex.PW3/A and the endorsement made by him on the rukka handed over by SI Kavita as Ex.PW3/B. 5.4. PW4 HC Babita had made an entry in the daily dairy register regarding sending of the prosecutrix to RTRM Hospital for her medical examination vide DD No. 23 A. She proved the same as Ex.PW4/A. 5.5. PW5 Dr. Siddhi Sainik had medically examined the prosecutrix and proved her report as Ex.PW5/A. 5.6. PW6 SI Arvind Kumar had got conducted the medical examination of the prosecutrix at RTRM Hospital and handed over the prosecutrix alongwith her MLC to SI Kavita.
5.7. PW7 Constable Keshar Dev had taken the eight sealed pulandas alongwith two sample seals from MHC(M) and deposited the same with FSL, Rohini, Delhi on the instructions of SHO.
5.8. PW8 Constable Suman had accompanied SI Arvind Kumar for Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 3/22 getting the medical examination of the prosecutrix conducted at RTRM Hospital. She deposed that after the medical examination, the doctor had handed over four sealed parcels and one sample seal to her, which were given by her to SI Kavita upon returning the police station. She proved the seizure memo in that regard as Ex.PW8/A. 5.9. PW9 HC Krishan Lal is the MHC(M). He deposed that SI Kavita had handed over to him four sealed parcels each alongwith sample seal on 04.09.2013 and 15.09.2013 respectively and he had deposited the same in the malkhana vide entries at serial Nos. 643 and 657 in the register No. 19. He proved the said entries as Ex.PW9/A and Ex.PW9/B respectively. He further deposed that on the instruction of SHO, he had handed over the entire eight sealed parcels alongwith two sample seals to Constable Keshar for depositing the same with FSL, Rohini vide road certificate No. 134/21/13. He proved the said entry as Ex.PW9/C and the acknowledgment issued by the FSL, Rohini with regard to receipt of sealed pulanda and sample seals as Ex.PW9/D. 5.10. PW10 ASI Savita is the second investigating officer of the case.
She deposed that she had moved an application for getting the potency test of the accused conducted but the same was dismissed by the Ld. MM and that upon completion of investigation, she had filed the charge sheet in the present case.
5.11. PW11 Dr. Arunima Hazra had conducted the medical examination of the accused. She proved the MLC in that regard as Ex.PW11/A. 5.12. PW12 Dr. Rajiv Solanki had appeared on behalf of Dr. Nikhil Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 4/22 and proved the portion from Y to Y on the MLC of the prosecutrix prepared by Dr. Nikhil as already exhibited as Ex.PW5/A. 5.13. PW13 SI Kavita is the first investigating officer of the case. She deposed regarding the investigation conducted by her and proved the rukka as Ex.PW13/A; the arrest and personal search memos of the accused as Ex.PW13/B and Ex.PW13/C respectively; the disclosure statement of the accused recorded by her as Ex.PW13/D and the seizure memo in respect of the exhibits and sample seal handed over to her by the doctor after the medical examination of the accused as Ex.PW13/E. 5.14. PW14 Dr. L.R. Richhele was the head of the medical board constituted for the age determination of the prosecutrix. He proved the report of the medical board as Ex.PW14/A.
6. The statement of the accused under Section 313 Cr.P.C. was recorded on 22.03.2017 wherein all the incriminating evidence was put to him to which his stand was of general denial. The accused pleaded innocence. He stated that the prosecutrix was having affair with a boy living in neighbourhood and that when he reprimanded her for the same, the prosecutrix, at the instigation of the complainant, who had a grudge against him for his refusal to give share to her in the ancestral property, falsely implicated him in the present case.
7. I have heard the Addl. PP for the State and the counsel for the accused.
The material on record has also been perused.
8. The Addl. PP for the State has submitted that from the material on Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 5/22 record and the evidence produced during trial, the prosecution has succeeded in proving its case against the accused. He has stated that the prosecutrix (PW1) as well as the complainant (PW2) have fully supported the case of the prosecution and that their testimonies are corroborated by the medical evidence proved on record. He has argued that since the accused is being prosecuted for the commission of offence of penetrative sexual assault and the prosecutrix was below the age of 18 years at the relevant time, the presumption under Section 29 of the POCSO Act has to be raised against him. He has contended that the accused has not only failed to dent the testimonies of the prosecution witnesses but has also not led any evidence in his defence to rebut the said presumption. He has submitted that since the prosecution has proved the guilt of the accused beyond reasonable doubt, he is liable to be convicted for the charges against him.
9. On the other hand, the counsel for the accused has argued that the accused is innocent and has been falsely implicated by the prosecutrix at the instigation of the complainant. He has submitted that the prosecutrix was having affair with a boy living in the neighbourhood and that when the accused reprimanded her for the same, she held a grudge against him. He has further submitted that the complainant to whom the accused had refused to give any share in the ancestral property took benefit of the situation and instigated the prosecutrix to falsely implicate the accused in the present case. He has argued that the pregnancy of the prosecutrix was the outcome of her said affair and that Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 6/22 nothing has been brought on record by the prosecution to prove that the accused was the biological father of the baby delivered by the prosecutrix. He has contended that the false implication of the accused is evident from the fact that the mother of the prosecutrix, who was admittedly residing with the parties, was neither cited as the prosecution witness nor anything was produced on record to show that she was of unsound mind as alleged by the prosecutrix. He has argued that since the mother of the prosecutrix was a material witness, the failure of the prosecution to examine her is fatal to its case and the conviction of the accused can not be based on the motivated testimony of the prosecutrix. He has further argued that as the prosecution has failed to prove that the prosecutrix was below the age of 18 years at the time of commission of the alleged offence, the presumption under Section 29 POCSO Act would not be attracted. On the above grounds, the acquittal of the accused has been sought.
Age determination of the prosecutrix
10. As determination of the age of the prosecutrix is germane to the decision of the case, it would be apposite to dwell on the said aspect at the outset.
10.1. In the absence of any document issued by any authority regarding the age of the prosecutrix, the prosecution has relied upon the bone age report dated 09.03.2018 (Ex.PW14/A) given by the Medical Board, DDU Hospital on the examination of the prosecutrix. As per the said report, the bone age of the prosecutrix was opined about 2030 years. In Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 7/22 order to prove the said report, the prosecution has examined Dr. L.R. Richhele, the Chairperson of the Medical Board, as PW14. In his testimony, he deposed as under:
".... After detailed examination of the child victim, the age of the child was determined between 20 to 30 years. In the present case, Ischial Tuberosity was found fused, which occurs after the completion of 20 years and therefore, the board had opined that the age of the victim to be more than 20 years on the day of examination. Since, the sacrum was not found to be fused, which occurs after the completion of 30 years, the age of the victim was opined to be between 20 to 30 years. Between 20 to 30 years, no significant changes occur in the bone ossification and thus the exact age in between the said group, can not be opined.
The detailed report is Ex.PW14/A, which bears my signature at point A....."
In his crossexamination, PW14 expressed his inability to state the exact age of the prosecutrix at the time of her examination and stated that he could neither admit nor deny the suggestion that the prosecutrix was 26 years of age at the time of her examination.
10.2. The counsel for the accused contended that since the exact assessment of the age of the prosecutrix could not be made by the Medical Board, the prosecution has failed to prove that the prosecutrix was below the age of 18 years at the time of commission of the alleged offence and therefore, the provisions of the POCSO Act would not apply in the present case.
10.3. Under the POCSO Act, there is no provision prescribing the manner in which the inquiry regarding the determination of the age of victim is to be conducted. In the landmark case of Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, it has been categorically held by the Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 8/22 Hon'ble Apex Court that there is hardly any difference in so far as the issue of minority between a child in conflict with law and a child who is a victim of crime is concerned and therefore, it would be just and appropriate to apply Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short, JJ Rules, 2007) to determine the age of the prosecutrix as well. Subrule (3) of Rule 12 of the JJ Rules, 2007, which prescribes the manner of conducting the age determination inquiry, is reproduced as under :
"12. Procedure to be followed in determination of Age :
(1) xx xx xx
(2) xx xx xx
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),(ii), Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 9/22
(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law".
Rule 12 (3) of the JJ Rules, 2007 lays down the manner of determining the age of a child conclusively. Under the said provision, the age of a child is ascertained by adopting the first available basis, out of a number of options postulated therein. An option expressed in a preceding clause has overriding effect over an option expressed in the subsequent clause. The highest rated option available determines the age of a minor conclusively. If the matriculation or equivalent certificate of the child is available, no other evidence can be relied upon. Only in the absence of such certificate, an entry of date of birth in the record of the school first attended by the child is to be relied upon. When no such entry is available, then the reliance can be placed on a birth certificate issued by a corporation or municipal authority or panchayat. It is only in the absence of any of the aforesaid, that Rule 12 (3) postulates the determination of the age of the child on the basis of medical opinion. 10.4. While considering the scope and nature of the inquiry contemplated under Rule 12 of the JJ Rules, 2007, the Hon'ble Supreme Court has observed in Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750, that the expressions 'prima facie', 'on the basis of physical appearance' or 'documents, if available' used in Rule 12 reemphasize the fact that what is contemplated is only an inquiry following the procedure laid down under the said rule and not an investigation or trial under the Cr.P.C. It was held that while conducting an inquiry, a hyper technical approach should not be adopted and if the assessment of age Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 10/22 could not be done, the benefit would go to the child considering his/her age on lower side within the margin of one year. Paragraph No. 34 of the above judgment, which is relevant, is reproduced as under:
"34. "Age determination inquiry" contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit bur certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year."
10.5. Applying the principles laid down in the above judgments to the facts of the present case, wherein the bone age of the prosecutrix has been opined about 2030 years by the Medical Board, the age of the prosecutrix has to be taken on the lower side i.e. 20 years as on the date of her medical examination conducted on 09.03.2018. Since the offence is alleged to have been committed for one year prior to the lodging of complaint dated 04.09.2013, the age of the prosecutrix at the relevant time comes to about 15 years. Hence, the prosecutrix was a child within the meaning of Section 2 (d) of the POCSO Act at the time of commission of the offence.
10.6. The determination of the age of the prosecutrix as above is also strengthened from the other material on record. The complainant in her Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 11/22 complaint dated 04.09.2013 had specified the age of the prosecutrix as 16 years. In the MLC of the prosecutrix, which was prepared on the same day, her age was also mentioned as 16 years. The statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 07.09.2013, wherein she stated her age as 15 years. The prosecutrix and the complainant have been examined by the prosecution as PW1 and PW2 respectively. In the crossexamination of none of them, the accused had disputed the age of minority of the prosecutrix. Even in his statement under Section 313 Cr.P.C. recorded on 22.03.2017, the accused did not plead that the prosecutrix was not a child at the relevant time. It is a matter of record that at the stage of final arguments, an application for conducting the ossification test of the prosecutrix was preferred by the prosecution, which was allowed on 05.03.2018 and that pursuant thereto, the report dated 09.03.2018 (Ex.PW14/A) of the Medical Board pertaining to the bone age of the prosecutrix was filed. It was only during the crossexamination of PW14 Dr. L.R. Richhele, who was examined by the prosecution to prove the report Ex.PW14/A, that the accused for the first time disputed that the prosecutrix was a child at the relevant time by putting a suggestion to the effect that she was 26 years old at the time of her examination by the Medical Board. Being the father of the prosecutrix, her age was within the special knowledge of the accused. The very fact that the accused neither disputed the age of the prosecutrix during the course of entire trial nor produced any material to dislodge the case of the prosecution that the prosecutrix was a minor at the relevant time goes to show that the challenge to the age Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 12/22 of the prosecutrix at the belated stage was nothing but an afterthought with a view to avoid the rigour of the POCSO Act and take advantage of the wide range of the bone age (i.e. 2030 years) of the prosecutrix opined by the Medical Board.
10.7. Considering the above, the contention of the defence counsel that the provisions of the POCSO Act would not apply to the present case is found to be devoid of any substance.
Legal provisions involved
11. Before the appreciation and evaluation of evidence on record, it would be appropriate to refer to the relevant sections for which the accused is being tried. Though the alternative charge under Section 376 (2)(f), (i) & (n) IPC was also framed but since the prosecutrix has been held to be a child at the relevant time, the discussion shall be confined to the provisions of the POCSO Act and Section 506 IPC.
Section 5 POCSO Act. Aggravated penetrative sexual assault
(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child.
A reading of the above provision shows that the necessary ingredients of the above offence are :
(i) the accused should be a relative of the child;
(ii) he must commit penetrative sexual assault on such child.
'Penetrative sexual assault' has been defined in Section 3 Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 13/22 POCSO Act. It provides that a person is said to commit penetrative sexual assault if
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person;
or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
Section 6 POCSO Act prescribes punishment for aggravated penetrative sexual assault.
Section 506 IPC. Punishment for criminal intimidation - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc. And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Appreciation and evaluation of evidence
12. Admittedly, the accused is the father of the prosecutrix. It is also not in dispute that at the relevant time, the prosecutrix alongwith her mother and younger siblings was residing with the accused. As per the MLC dated 04.09.2013 of the prosecutrix, which has been proved by Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 14/22 PW5 Dr. Siddhi Sainik as Ex.PW5/A, she was having the pregnancy of 28 weeks at the time of her medical examination. Now the question which requires to be adjudicated is whether the accused was responsible for the penetrative sexual assault on the prosecutrix. 12.1. The prosecutrix is the sole witness of the commission of the act of penetrative sexual assault on her. In her testimony recorded on 19.02.2014, the prosecutrix (PW1) deposed that she alongwith her parents and two siblings used to reside in a rented accommodation; that the accused used to work as a mason and that her mother is not mentally sound and is deaf and dumb; that about one year ago, when she was sleeping, the accused tried to force himself upon her; and that she pushed him and went to her mother but the accused came there and after extending threat to kill her, he committed rape on her. She further deposed that after the said incident, the accused used to commit rape on her on every day and that when the landlord came to know about the same, he got the house vacated. The prosecutrix also deposed that they shifted to the house of her paternal aunt (bua) i.e. the complainant and that when her aunt saw her condition, she suspected that some wrong act had been committed with her and took her to RTRM Hospital, where the doctor told that she was having pregnancy of seven months. She further deposed that when her aunt confronted the accused with the same, he denied that he was responsible for it and went away to Bihar alongwith his younger daughter and that thereafter, her aunt made complaint to the police.
12.2. The prosecutrix was crossexamined by the accused. In her cross Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 15/22 examination, she admitted that she did not know the dates or months when the accused committed rape on her and that the complainant had visited her house on several occasions but she did not disclose about the acts of the accused to her during the said visits. However, she denied the suggestions that she was having friendly relations with a boy, who got her pregnant, and that when the accused came to know about the same, he had scolded her and for the said reason, she had named him as the accused.
12.3. The counsel for the accused argued that the failure of the prosecutrix to state the specific dates and months of her alleged sexual assault makes her testimony doubtful. He contended that since the prosecutrix also did not disclose to the complainant about the alleged acts of the accused during her visits to their house, the allegations against the accused appear to be an afterthought and no reliance can be placed on the same. 12.4. The above contentions of the defence counsel are without merits. The prosecutrix is an uneducated girl belonging to the poor strata of the society. In her deposition, she categorically stated that she was being subjected to penetrative sexual assault by the accused on regular basis for a period of about one year. Considering the said assertion of the prosecutrix and taking note of her socioeconomic background, the failure to disclose the specific dates on which she was subjected to penetrative sexual assault by the accused is of no significance. As far as the failure of the prosecutrix to reveal about the acts of the accused to the complainant prior to 03.09.2013 is concerned, one can not loose sight of the fact that at that time, the prosecutrix was residing with the Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 16/22 accused in the tenanted premises and that the accused, being the father and the sole bread earner, was in a position of dominance and command over her. In such a scenario, especially when she did not get any support from her mother, the possibility that she could not muster courage to disclose about the acts of the accused to the complainant, who is the sister of the accused, can not be ruled out. In fact, it can be seen from the deposition of the prosecutrix (PW1) that on 03.09.2013 also, she had revealed about the acts of the accused to the complainant only when the complainant had become suspicious and asked her about her physical condition. Since the prosecutrix was having a pregnancy of about seven months at that time and her pregnancy must have started showing, she had no option but to confide in the complainant. Considering the facts and circumstances, the conduct of the prosecutrix appears to be quite natural.
12.5. The counsel for the accused further contended that the uncorroborated testimony of the prosecutrix can not form the basis for holding the accused guilty. He argued that during the relevant time, the mother of the prosecutrix was also residing in the same house and therefore, she would have been the best witness to throw light on the allegations against the accused. He submitted that the prosecution not only failed to examine her as a witness in support of its case but also did not produce on record any document to show that she was of unsound mind. The counsel for the accused argued that the failure of the prosecution to examine the mother of the prosecutrix is fatal to its case. 12.6. It is now a settled legal proposition that a finding of guilt in a case of Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 17/22 sexual assault can be based on the uncorroborated evidence of the prosecutrix provided it inspires confidence of the Court and is found to be reliable. The very nature of the offence makes it difficult to get direct corroborating evidence. No rule of law or of practice requires corroboration of the testimony of the prosecutrix before it can be accepted and acted upon. In Gugan v. State (Govt. of NCT of Delhi), 2018 (1) RCR (Criminal) 31, it has been held by the Hon'ble Delhi High Court that in a case of rape where the offender is none else but the father, the version of the prosecutrix can be accepted without any corroboration. In the case on hand, the version of the prosecutrix that the accused had committed penetrative sexual assault on her has remained consistent throughout. In her statement under Section 164 Cr.P.C. (Ex.PW1/A) as well as in her deposition in the Court, the prosecutrix has testified against the accused. There is no discrepancy or contradiction in her above statements. The accused has failed to dent the testimony of the prosecutrix or extract anything therefrom. In view of the impeccable and unshattered testimony of the prosecutrix, there appears to be no necessity to look for the corroboration thereof. Even otherwise, the prosecutrix has specifically deposed that her mother is not mentally sound. The above deposition of the prosecutrix has not been controverted by the accused during the course of her crossexamination. The very fact that the accused could force himself upon the prosecutrix despite the presence of her mother in the house and could repeatedly do so lends credence to the version of the prosecutrix. In such circumstances, the prosecution would not have achieved anything by Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 18/22 examining the mother of the prosecutrix. Infact, had the mother of the prosecutrix been of sound mind, the accused would have certainly examined her in his defence to dislodge the allegations of sexual assault made against him.
12.7. The accused has put forth the defence that the prosecutrix was having an affair with a boy living in the neighbourhood, who got her pregnant, and that when he reprimanded her, she falsely implicated him in the present case. The above defence of the accused is completely vacuous in as much as neither the identity of the said boy has been disclosed nor any material has been produced on record to substantiate the same. The accused not only failed to examine his wife from whom he allegedly acquired the knowledge of the said affair of the prosecutrix but also did not lodge any complaint against the said boy for violating the prosecutrix. Infact, the conduct of the accused in fleeing away from the house of the complainant upon being confronted by the complainant regarding the pregnancy of the prosecutrix points towards the guilt of the accused.
12.8. Besides the prosecutrix, the prosecution has examined her paternal aunt (bua) i.e. the complainant as PW2. In her deposition, the complainant has supported the version of the prosecutrix. She has deposed that after the accused had shifted with his family to her house, she noticed the condition of her niece i.e. the prosecutrix and that upon being asked, the prosecutrix started weeping and disclosed that the accused had committed rape on her on several occasions. She further deposed that she took the prosecutrix to the police station and lodged the complaint Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 19/22 against the accused and that after the confirmation of the pregnancy of the prosecutrix, when the police visited her house in search of the accused, he had already fled away.
12.9. The accused tried to impeach the testimony of the complainant on the ground that she held a grudge against him as he had refused to give share to her in the ancestral property. Though the complainant admitted in her crossexamination that her father owned some property in the native village, which has yet not been divided, however, she denied that she had demanded any share in the property from the father or that due to the opposition of the accused to her demand, she had a grudge against him. In order to prove his above defence, the accused could have easily examined his father after he had been dropped from the array of witnesses by the prosecution. The failure of the accused to examine his father to prove the alleged demand of share in the property by the complainant goes to show that the said defence was frivolous and concocted. The very fact that after being asked to vacate the tenanted house by the landlord, the accused alongwith his family took shelter in the house of the complainant brings the falsity of his above defence to the fore.
12.10. The counsel for the accused has lastly argued that since the DNA test report of the baby of the prosecutrix could not be procured, it has not been conclusively proved that the accused had impregnated the prosecutrix and therefore, the benefit of doubt should be given to the accused. The above argument is devoid of any merit. A perusal of the record shows that thought the blood sample of the baby of the Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 20/22 prosecutrix had been sent to the FSL for ascertaining the paternity, however, the test could not be conducted as the sample was found to be putrefied. In the meantime, the baby of the prosecutrix was given in adoption by the orphanage and therefore, the fresh blood sample of the baby could not be obtained. The above lapse on the part of the investigating agency can not wipe off the reliable and trustworthy testimony of the prosecutrix, which has been duly corroborated by the deposition of the complainant.
12.11.In the light of the above discussion, it is evident that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt for the commission of offence punishable under Section 6 read with Section 5 (n) POCSO Act.
12.12.Qua the charge for the offence under Section 506 IPC, the prosecution was required to prove the ingredients of 'criminal intimidation' as defined in Section 503 IPC. The said ingredients are:
(i) A person threatens another to cause injury;
(ii) Threat to cause injury should be :
(a) to his person, reputation or property; or
(b) to the person or reputation of anyone in whom that person is interested;
(iii) Threat should be with the intention to :
(a) cause alarm to that person; or
(b) cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(c) cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
It is essential to make out an offence under Section 506 IPC that Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 21/22 the person extending the threat must be in a position to execute the same and the threat should cause a real alarm to the person to whom it is extended. Hence, the perception of the person threatened is the determining factor for the above offence. In the case on hand, the prosecutrix has categorically deposed that when she had objected to the acts of the accused, he had extended threat to her and thereafter, committed penetrative sexual assault on her. At the time of commission of offence, the prosecutrix was a young girl at the mercy of the accused. From the fact that the accused repeatedly committed penetrative sexual assault on her and she continued to suffer the same for a period of about one year, there can be no doubt that the threat extended by the accused had caused alarm to her. Considering the same, the accused is also liable to be convicted for the commission of offence punishable under Section 506 (Part I) IPC.
Conclusion
13. Resultantly, the accused Mahabir Mehto is hereby convicted for the commission of offences punishable under Section 6 read with Section 5 (n) POCSO Act and Section 506 (Part I) IPC. Let him be heard on the point of sentence on 04.05.2018. Copy of the judgment be supplied to the accused free of cost.
Digitally signedSANJAY by SANJAY GARG GARG Date: 2018.04.27 17:00:40 +0530 Pronounced in the open court. (SANJAY GARG) Dated: 27.04.2018 Additional Sessions Judge01, Dwarka Courts, New Delhi. Sessions Case No. 440846/2016 State Vs. Mahabir Mehto Page No. 22/22