Delhi District Court
Ad (Delhi) 170 State vs . Jai Hind : on 16 July, 2013
1 IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA, ADDITIONAL SESSIONS JUDGE01 (WEST):DELHI SC No. 74/12 Unique Case I.D. No. 02401R0479852011 FIR No. 264/11 PS Nihal Vihar U/s 376 IPC State Vs. Inderpal S/o Shri Teeka Ram R/o B420, Shani Bazaar Chowk Chandan Vihar, Nihal Vihar, Delhi. Permanent R/o Village Post Pathari Pisawa, Distt. Sitapur UP ... Accused Date of Institution : 16.11.2011 Date of arguments : 24.05.2013 Date of Judgment : 16.07.2013 JUDGMENT
In brief, the case of the prosecution is that on 15.9.11 on receiving of DD No. 12A, ASI Ramesh Chand along with Ct. Vijay went to the spot at H.No. B420, Chandan Vihar, Nihal Vihar, Nangloi, Delhi, Smt. Dropdi, mother of the prosecutrix and prosecutrix were found present there. The SC No. 74/12 Page 1of 13 2 accused Inderpal was also found apprehended at the spot. The statement of Smt. Dropdi was recorded in which it was stated that the prosecutrix was raped by the accused in his rented room at Chandan Vihar. The accused was arrested. The accused and the prosecutrix were sent for their medical examination in Sanjay Gandhi Memorial Hospital. The FIR was registered on the statement of Smt. Dropdi. The statement of the prosecutrix was got recorded U/s 164 Cr.PC.
2. After investigation of the case, the charge sheet has been filed U/s 376 IPC. Charge U/s 376 IPC has been framed against the accused. The accused had pleaded not guilty to the charge.
3. In order to prove its case, the prosecution has examined 13 witnesses. Statement of the accused U/s 313 Cr. P.C. was recorded in which he had denied the case of the prosecution. The accused has not led any evidence in his defence.
4. I have heard the Ld. APP for the state and Ld. counsel for the accused and perused the evidence on record.
PW1 W/H.C. Sudesh has proved the FIR as Ex. PW1/A. PW2 W/Ct. Puja has deposed that on 15.9.11, she got conducted the medical examination of the prosecutrix at Sanjay Gandhi Memorial Hospital and after medical examination doctor has handed over one sealed parcel and one sample seal and she had given the same to the IO vide memo Ex. PW2/A. PW3 the prosecutrix has deposed that she do not know the person SC No. 74/12 Page 2of 13 3 standing in the dock. When she was playing in the street, she was taken by one uncle to a nearby room. That uncle used to reside in that room. No other person was present in that room. That uncle put off her Kachhi, laid her on the floor and thereafter that uncle laid his body upon her body. Except this he did nothing. That uncle gave her an amount of Rs. 20/ in the form of two currency notes of Rs. 10/ denomination and thereafter that uncle stated not to tell about the said occurrence to her parents otherwise her parents would beat him and her as well. Thereafter, that uncle opened the gate of the room and then she came out from the room. She went to her house and stated all the things to her mother. Her mother searched for that uncle but that uncle could not be traced at that time. But on the next day, that uncle met. She identified that uncle. That uncle is present before the court. She do not know his name. Previously, her statement was also recorded which is Ex. PW3/A. She do not know as to on which part of her body she felt pain when that uncle laid upon her.
In cross examination, PW3 has deposed that she has been told by her mother to give her evidence in the court. She has also been told by her mother to say that uncle laid upon her. She do not know that uncle who had taken her from the street.
PW4 ASI Krishna has deposed that on 15.9.11, the investigation of the case was handed over to her. She has arrested the accused vide arrest memo Ex. PW4/B. Smt. Dropti produced two currency notes of the denomination of Rs. 10/ and she had seized the same vide memo as Ex. PW4/D. She has also prepared the site plan Ex. PW4/F. SC No. 74/12 Page 3of 13 4 PW5 Dr. Supriya has deposed that on 15.09.11, Dr. Asha has examined the prosecutrix with the alleged history of sexual assault. After her medical examination, the hymen of the patient was found torn with red and inflamed margins otherwise vitals were stable. No external injury mark was found. She has proved the MLC of the prosecutrix as Ex.PW5/A. PW6 Smt. Dropdi has deposed that the incident is of 14 th September, she do not remember the year. However, the incident is about two year old. At the time of incident, her daughter (the prosecutrix) was aged about 7 years. On the day of incident, she was playing with other children outside her house at about 7 p.m. and she was doing household work inside the house. The prosecutrix came crying to her and narrated to her all the incident. She found two currency notes of Rs. 10/ in the hands of the prosecutrix and also found blood spot on the salwar of the prosecutrix. The private part of the prosecutrix was very much red and was having little blood on it. After sometime at about 9 p.m., her husband came and they searched for the accused. Next day at about 9 a.m., she along with prosecutrix were present outside their house then the accused came on a cycle and the prosecutrix has identified the accused. The accused was apprehended. The police was called and the accused was handed over to the police. The police recorded her statement which is Ex. PW6/A. She has not given the currency notes to the police as she was very much disturbed. She has identified the salwar of the prosecutrix as Ex. P1.
In cross examination, PW6 has deposed that the accused used to reside in her neighbourhood. She along with her husband used to run a gas SC No. 74/12 Page 4of 13 5 shop at their residence. She has searched for the accused at about 7:00 p.m. Call was not made at 100 number in the night as the accused was not traced. She has denied the suggestion that there was a quarrel regarding filling of gas cylinder by the accused at their shop due to which the accused has been falsely implicated in this case.
PW7 Kailash has deposed that the prosecutrix is her daughter and she was aged about 6 years at the time of incident. The incident is of 14.09.2011 and he was away from his house at his work place. He reached home at about 7:30 p.m. and his wife informed him that the accused had done wrong act with the prosecutrix. The accused was searched in that night but he was not traceable. On 15.09.2011, in the morning, the prosecutrix has identified the accused and the accused was apprehended. The police has recorded his statement as Ex.PW7/A. In cross examination, PW7 has deposed that his wife was running gas shop, cooker repair shop in their house. The accused has given a threat to his wife on the issue of filling of gas cylinders, when his wife had refused to re fill the cylinder without payment.
PW8 Daulat has deposed that in the year 2011, at about 4/5 p.m , he went to the house of his brother Kailash and he came to know that someone had committed wrong act with the prosecutrix. On the same day, the accused was apprehended by him and Kailash.
PW9 Smt. Parvati has deposed in her cross examination by Ld. APP that the police had taken away the accused from her house. She has denied SC No. 74/12 Page 5of 13 6 the suggestion that she had seen the accused when he had restrained the prosecutrix in his room and when she cried, he had come there and accused had run away from there.
PW10 Ct. Vijay Kumar has deposed that on 15.9.11, he was on emergency duty with ASI Ramesh Chand. On call, they went to the spot where Smt. Dropdi met them and her statement was recorded. The prosecutrix and the accused were taken for medical examination to SGM Hospital. IO has prepared a tehrir and gave to him, which he took to PS and gave to duty officer for the registration of the case.
In cross examination, PW10 has deposed that the call was received in PS at about 10.30 a.m. They reached at the spot within 15 minutes of the call. IO had not made any enquiry from the any public persons at the spot.
PW11 ASI Ramesh Chand has deposed that on 15.9.11, on receipt of DD No. 12, he along with Ct. Vijay went to the spot where Smt. Dropdi and the prosecutrix met them. Smt. Dropdi told him about the incident. On 15.9.11, the accused was identified by the prosecutrix and was apprehended and the police was called. The prosecutrix and the accused were taken for medical examination to SGM Hospital. Then, they came back at the spot. He recorded the statement of Smt. Dropdi which is Ex. PW6/A and prepared the tehrir Ex.PW11/A and got the case registered.
PW12 Dr. Brijesh Singh has proved the MLC of the accused as Ex. PW12/A. In the MLC, it has been opined that there was nothing to suggest SC No. 74/12 Page 6of 13 7 that the accused cannot perform the act of sexual intercourse. PW12 has also examined the prosecutrix vide MLC Ex. PW12/B has referred the prosecutrix for further Gynae opinion.
PW13 Ms. Harleen Singh, Ld. Metropolitan Magistrate has proved the statement of the prosecutrix recorded U/s 164 Cr.PC as Ex. PW13/B and her certificate to the proceedings as Ex. PW13/C.
5. Ld. counsel for the accused has argued that the accused has been falsely implicated in the case. The prosecutrix has not identified the accused. In the medical report of the prosecutrix, there are no fresh injuries and so it is not proved that the prosecutrix was subjected to rape. There are material contradictions in the testimony of prosecution witnesses. Smt. Dropdi has filed a false complaint against the accused as she has been threatened by the accused when she has refused to refill the gas cylinder of the accused without payment. On these grounds, it is prayed that accused be acquitted.
On the other hand , Ld. APP has argued that the prosecution from its evidence on record has proved its case beyond reasonable doubt against the accused.
6. The prosecutrix has been examined as PW3. PW3 is the material witness of the case. The age of the prosecutrix is about seven years.
It has been observed by Hon'ble High Court of Delhi in 2012 VI AD (Delhi) 170 State Vs. Jai Hind :
31. " The law with regard to the testimony of child witnesses can be summed up thus. The conviction on the sole evidence of a child witness is permissible if such witness is found SC No. 74/12 Page 7of 13 8 competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same. (Ratansinh Dalsukhbai Nayak Vs. State of Gujrat 2004 (1) SCC 64) It should be accepted albeit with circumspection. This decision had accepted the observations Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341) where it was held that:
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
In Pacchi Vs. State of U.P AIR 1998 SC 2726 it was held:
"It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witnes must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring."
36. In the final analysis, the Court has to weigh the testimony of the child witness against the inconsistencies in her statement, the absence of vaginal injury other than the torn hymen, and the inconsistencies in the narratives of the victim's relatives in order to determine whether the accused is guilty or not.
In her testimony, PW3 has deposed that the uncle put off her SC No. 74/12 Page 8of 13 9 Kachhi, laid her on the floor and thereafter that uncle laid his body upon her body. Except this he did nothing. She do not know as to on which part of her body, she felt pain when that uncle laid upon her. In cross examination, PW3 has deposed that she has been told by her mother to say that that uncle laid upon her.
The prosecutrix in her statement recorded U/s 164 Cr.PC which is Ex. PW3/B has stated that the uncle has entered his urinal organ into her urinal organ and she felt pain. However, in her statement recorded in the court, the prosecutrix has not deposed all these facts. The evidence recorded in the court is a substantive piece of evidence. The statement recorded U/s 164 Cr.PC is only a corroborative piece of evidence. From the testimony of PW3, it is not proved that alleged sexual act has been committed upon her.
In cross examination, PW3 has deposed that she has been told by her mother to say that that uncle laid upon her. So, there is also likelihood of being PW3 is a tutored witness.
There are also discrepancies in the testimony of PW3 as to the identity of the accused. PW3 has deposed that in her examination that she do not know the person standing in the dock. She has also deposed in her examination in chief that uncle is present before the court. In cross examination, PW3 has deposed that she do not know that uncle who had taken her from the street.
7. PW6 has deposed that the prosecutrix came to her and narrated to her all the incident. She found two currency notes of Rs. 10/ in the hands of SC No. 74/12 Page 9of 13 10 the prosecutrix and also found blood spot on the salwar of the prosecutrix. The private part of the prosecutrix was very much red and was having a little blood on it.
In the FSL report, it has been opined that blood could not be detected on the salwar and in the vaginal smear of the prosecutrix.
PW6 has also deposed that she has not given the currency notes to the police. However, PW4 ASI Krishna has deposed that PW6 Smt. Dropdi produced two currency notes of Rs. 10/ and she has seized the same vide memo Ex. PW4/D. In view of all these facts, the case of the prosecution becomes doubtful as to the presence of blood on the salwar of the prosecutrix and of giving of Rs. 10/ by the accused to the prosecutrix.
7. In the MLC Ex. PW5/A of the prosecutrix, it has been opined that on medical examination, the hymen of the prosecutrix was found torn with red and inflamed margin.
It has been observed by Hon'ble High Court of Delhi in 2009 (111) DRJ 313 (DB) as under:
25. Medical Jurisprudence (5th Edition) by Dr. R.M. Jhala and V.B. Raju at page 469, opines as under: "In young girl under the age of 12 years the hymen is situated relatively more posteriorly (in backward position) and higher up in a narrow vaginal canal. This prevents the hymen from coming in contact with the male organ in forceful penetration of the organ. This also saves the hymen from bearing the brunt of the blow and thus it escapes injury. Thus absence of injury to SC No. 74/12 Page 10of 13 11 hymen in a girl under 12 years does not rule out the act of rape.
Labiamajora Next to hymen in positive importance but more than that in frequency are the injuries on labia majora. These, viz., labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. In case of girls under 12 years where examination of hymen may not prove useful, examination of labia majora given conclusive evidence. The narrowness of the canal makes it inevitable for the male organ to inflict blunt, forceful blows on the labia. Such blows invariably lead to contusion, because of looseness and vascularity. The interesting feature of such contusion is its vividness especially on the side it forms inner wall of vagina. Against the pink background of the mucous membrane dark red contusion is visible even on initial inspection".
26. We find merit in the last contention urged by learned counsel for the appellant. Indeed, in the light of Medical Jurisprudence on the subject, it is apparent that Kumari 'M' was not subjected to any sexual assault at the time and on the date as claimed by the prosecution. The reason is obvious. Medical Jurisprudence evidences that in adolescent girls the hymen is situated relatively more posteriorly and for said reason there is a possibility of rape being committed without the hymen being torn; the converse whereof would be that if the hymen of an adolescent girl is torn due to rape, the penetration has to be a deep penetration. The Medical Jurisprudence guides that the labia majora are the first to be encountered by the male organ and they are subjected to blunt forceful blows, depending on the vigour and the force used by the accused and counteracted by the victim. The narrowness of the vaginal canal makes it inevitable for the male organ to inflict blunt, forceful blows on the labia and such blows lead to contusion because of looseness and vascularity. The feature of such SC No. 74/12 Page 11of 13 12 contusion is revealed against the pink background of the mucous membrane dark red contusion being evidence to the naked eye. Had Kumari 'M' being raped between 5:00 PM and 7:00 PM and the hymen got torn due to said rape, fresh injuries on the labia majora, vaginal canal and around the hymen would have been evidenced as fresh bleeding injuries, and if not bleeding injuries, in the form of a dark red contusion being visible against the pink background mucous membrane.
Perusal of the MLC Ex. PW5/A shows that there is no observation of the concerned doctor as to the examination of labia majora and vaginal canal of the prosecutrix.
Keeping in view the aforesaid judgment, I am of the opinion that in the absence of evidence of sexual act in the testimony of prosecutrix and in the absence of other corroborative medical and FSL evidence on record, the fact that hymen of the prosecutrix was found torn with red and inflamed margin, does not conclusively prove that the rape was committed with the prosecutrix.
8. PW9 has denied the suggestion of Ld. APP that she has seen the accused when he had restrained the prosecutrix in his room and when she cried, she had come there and the accused run from there. PW9 is the material witness to show the presence of the accused with the prosecutrix but, she has not supported the case of the prosecution.
9. It has been observed by Hon'ble High Court of Delhi in Crl. Appeal No. 214/11 in Mumtaz Vs. State decided on 22.5.13 as follows:
2. "Being conscious of misuse of the provisions of rape and the effect it can have on the accused, in the context of SC No. 74/12 Page 12of 13 13 evaluating the testimony of the rape victim, following observations were made by the Supreme Court in Rajoo & Ors. V. State of Madhya Pradesh AIR 2009 SC 858:
"........It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication..... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
10. In view of the above discussions, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the accused that on 14.9.11, the accused has committed rape upon the prosecutrix. Accordingly, the accused is acquitted of the charge.
Announced in the open court (Rajneesh Kumar Gupta)
today i.e. on 16.07.13 Additional Sessions Judge01/West
Tis Hazari Courts, Delhi
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