Delhi District Court
State vs . Dinesh Tiwari on 10 May, 2016
State Vs. Dinesh Tiwari
IN THE COURT OF SH. ARVIND KUMAR
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 66/13
ID No.: 02401R0159242013
FIR No. 37/13
PS : Prasad Nagar
U/S.: 376 IPC
& 6/8 of POCSO Act
State
Versus
Dinesh Tiwari
S/o Late Sh. Maheshwar Tiwari
R/o H. No. 16/475-H, Hardyan Singh Road,
Bapa Nagar, Karol Bagh,
Delhi.
.......Accused
Date of Institution : 01.04.2013
Date of judgment reserved on : 05.05.2016
Date of judgment : 10.05.2016
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Romil Pathak, Advocate, Ld. Counsel for accused.
JUDGMENT:-
1. Briefly stating the facts of prosecution case are that the complainant (Since the complainant is the mother of victim of alleged SC No. 66/13 Page 1 of 21 State Vs. Dinesh Tiwari penetrative sexual assault, her identity is withheld in order to conceal her identity and hereinafter she will be referred as "the complainant" and her daughter shall be referred as " the victim") lodged a complaint with the police against the accused alleging that accused has committed penetrative sexual assault. It is stated in complaint that complainant is working in a factory and her husband is working in a shop of seat cover. It is stated that on 20.02.2013, husband of complainant had gone at 10.00 a.m. for his work. She further stated that her younger son had gone outside and complainant had gone for her job at about 03.00 p.m., leaving her daughter and son playing in street and had given the key to her neighbour Saloni after locking the door. She further stated that at about 06.30 p.m., accused Dinesh Tiwari called the complainant on her mobile no. 9654703412 and asked when she would return home, on this, complainant told her that she would reach at home after 07.30 p.m., then accused asked for the key of the complainant's home stating that his wife was about to come to complainant's home and the complainant told him that the keys were with a lady residing in her neighbourhood namely Saloni. After some time, accused again called and gave the mobile phone to complainant's son who stated to the complainant that he was beaten by Mousa / accused.
2. Complainant stated that her children used to say "Mousa" to accused. She further stated that after talking to her younger son, she immediately cut the phone and proceeded to her house. The Complainant stated that she reached her home and her husband had already arrived little before. Complainant stated that both of her children were standing and were having some eatables in their hands and her son was weeping and stated that uncle had beaten both of them and because of which there is blood on the skirt of his sister. Complainant checked her daughter and found that there was blood on pant and skirt of her daughter and when she asked her daughter, her daughter told that accused had inserted his penis SC No. 66/13 Page 2 of 21 State Vs. Dinesh Tiwari into the vagina of the victim and because of which she felt pain and blood also came out. Complainant further stated that Victim told her that accused had called them inside the house after showing some eatables and did the aforesaid act with the victim and thereafter scolded / threatened that if the victim would tell her mother and father, she would be beaten. The victim was sent to LHMC Hospital and was medically examined and a case under section 376 IPC and 6/8 of POCSO Act, 2012 was registered. Accused was arrested. Statement of victim under section 164 Cr. P.C. was recorded.
3. After completing investigation, challan was filed for the offences punishable under Section 376 IPC and Section 6/8 of Protection of Children From Sexual Offences Act (in short POCSO Act).
4. After complying with the provisions of Section 207 Cr. P.C., a charge dated 18.04.2013 for the offence punishable under Section 376(f) IPC read with Section 6 of POCSO Act was framed to which accused pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 17 witnesses:-
PW1 Smt. Anita Rani, Principal. She produced documents regarding the date of birth of victim.
PW2/3 Mother of the victim, the complainant.
PW4 The Victim.
PW5 Smt. Saloni, neighbour of the victim.
PW6 HC Brij Mohan. Duty Officer.
PW7 SI Dhan Singh, In-charge, Crime Team. He
inspected the place of occurrence and submitted his report.
SC No. 66/13 Page 3 of 21
State Vs. Dinesh Tiwari
PW8 HC Inderjeet. Photographer, Crime Team. He
had taken the photographs of the place of
incident.
PW9 HC Vijay Singh. He received rukka and
registered the FIR.
PW10 Dr. Deepti Kaur. She conducted medical
examination of victim.
PW11 Dr. Pankaj Kumar. He conducted medical
examination of accused.
PW12 Ct. Anita. She had taken the victim to hospital.
PW13 Ct. Diwakar. He had taken the accused to
hospital.
PW14 SI Rekha. 2nd IO of the case.
PW15 HC Raghunath. He deposited the parcels at
FSL.
PW16 SI Abhishek. First IO of the case.
PW17 Ms. Aditi Garg. DJS. She recorded the
statement of Victim under section 164 Cr. P.C.
6. It is noted that Complainant (Mother of victim) was examined as PW2 and her cross-examination was deferred and during her cross- examination, she was mentioned as PW3.
7. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. The accused denied all the allegations made against him and stated that a false case has been registered. The accused stated that he made a call to PW2, complainant from his home to inquire whether she was at home or not as the wife of accused intended to visit the house of complainant and complainant told SC No. 66/13 Page 4 of 21 State Vs. Dinesh Tiwari him to reach at her home as she was also coming. Accused stated that he again made a call to complainant and at that time the son of complainant also talked to her and complainant told him that she was coming home after taking vegetables. The accused further stated that he went to the house of complainant to take money as complainant had taken a sum of Rs. 1,700/- from the accused as loan and he is innocent.
8. Ld. Counsel for accused contended that as per prosecution case, the accused was caught on the spot immediately after the incident but the DNA sample of the accused is not matching with the DNA sample lifted from the clothes and body of the victim and it clearly shows that the accused has been falsely implicated. It is further contended that mother of the victim has stated that victim had informed her that penis had been inserted into the vagina of the victim but the victim has stated that finger was inserted by the accused. It is submitted that there is gross contradictions in the statement of Complainant and Victim. It is submitted that no public witness has been made witness at the time of arrest of accused. It is also submitted that there was some dispute over Rs. 1,700/- which were borrowed by the mother of the victim from the accused and accused was implicated with the malafide intention not to return the aforesaid amount. It is submitted that the blood present on the clothes of the victim may be because of victim having fallen down. It is also submitted that mother of the victim did not tell to Dr. Dipti about fingering or insertion of penis by the accused. Ld. Counsel for accused lastly contended that police official did not make brother and father of the victim as witnesses. Ld. Counsel for accused also contended that Smt. Saloni, PW5, who was having keys of the house specifically denied to have seen the accused.
9. Contrarily, Ld. Addl. PP submits that non matching of the samples of the DNA, taken from the accused and DNA samples taken from SC No. 66/13 Page 5 of 21 State Vs. Dinesh Tiwari the clothes / body of the victim, does not affect the case of prosecution. Ld. Addl. PP submits that victim is a child of 5 years of age and has deposed before the Court about the incident and her testimony is convincing and cogent and there is no circumstances or facts to discredit the testimony of the victim. Ld. Addl. PP submits that accused was caught on the spot and the victim when met with her mother had blood stains on her clothes. On medical examination, her hymen was found ruptured. It is further submitted that there is some discrepancy in the statement of complainant but the testimony of complainant about incident is hearsay evidence and does not affect the case of prosecution. Ld. Addl. PP for the State further submits that there is presumption of guilt in terms of section 29 and 30 of POCSO Act and the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt.
10. I have gone through the material on record.
11. With regard to the age of the complainant, PW1, Ms. Anita Rani, Principal, Nigam Pratibha Vidyalaya produced the admission form, Ex. PW1/A and certificate issued by the school authority, Ex. PW1/B. It is clear from the testimony of PW1 that date of birth of the Victim is 11.07.2007. Therefore, it is clear that victim was minor as on date of incident being about 6 years and 5 months of age.
12. Now, I turn to the testimony of the victim, PW4. PW 4 victim stated that she knew accused and used to call him Mama and she was playing in the gali with her brother and their house was locked. Victim further stated that accused had taken her upstairs and asked for the key of the room which was with Aunt who was residing on ground floor and after taking keys from Aunt she had given the keys to the accused. Victim stated that accused had taken her upstairs and inserted his finger in her Susu SC No. 66/13 Page 6 of 21 State Vs. Dinesh Tiwari (vagina). Victim further stated that she was wearing pant and accused inserted finger after removing her pant and she started bleeding. Victim stated that none was present at that time and she told the incident to her mother when she returned from factory. Victim identified the accused. During cross-examination she stated that she did not remember the date of incident nor she fell while playing in the gali. The victim denied the suggestion that accused had not taken her upstairs or that she was deposing falsely.
13. PW2 is the mother of the victim and stated that she was working in a jeans factory at Tank Road, Karol Bagh. In the month of February 2013, her husband was not at home and her son had gone to her Mami (Maternal Aunt). PW2 stated that she left for her duty at 10 AM and in the lunch time she came for serving food to her children and at that time her two sons and daughter (victim) were in the house and she locked the house and gave the keys to her neighbour Saloni and her children were playing outside and again said that her elder child did not return from her maternal aunt's house. PW 2 further stated that when she was in factory, accused called her on mobile phone and asked her when she would reach home and she informed that she would be reaching her house after 07:30 PM. Accused told her that her wife is intending to visit PW2's house and she informed that keys were with her neighbour Saloni. PW 2 stated that after sometime accused Dinesh connected the phone and gave to her younger son to talk to her and her son said mummy-mummy and disconnected the phone. She reached her house at about 07:30 PM and her husband was already in house and her daughter and younger son were at the gate of the house and were having some eatables in their hands. Her younger son was weeping and after seeing her, victim also started weeping and she caught hold the accused by Collar. Her son told her that accused is very bad man and had committed Galat Kaam with victim. She checked SC No. 66/13 Page 7 of 21 State Vs. Dinesh Tiwari pant and shirt of victim and found blood stains and she asked from victim and victim told that accused had removed her garments and inserted his susu (penis) in her susu (vagina) and victim further told that accused had taken her from the Gali where she was playing after giving some eatables. PW2 stated that Victim further told that accused had threatened her not to disclose the same to her parents otherwise he would beat her.
PW2 further stated that she made a call to police at 100 number and police reached on the spot. Accused was on the spot as they had apprehended him. PW2 stated that police took her and her daughter to RML Hospital and her statement was recorded by the police in the hospital. PW2 exhibited her statement as Ex.PW2/A and the site plan as Ex.PW2/B. PW2 stated that at the time of incident, her daughter was wearing half nicker and frock. PW2 identified the clothes of the victim. During cross- examination, PW2 stated that her salary was Rs. 5000/- per month and her husband was earning Rs. 5000-6000 per month and they were residing in a rented house at the rent of Rs. 2000/- per month. PW2 stated that accused was the son of maternal uncle of her mother and was residing at Bapa Nagar, Delhi and they used to visit each other's house. PW2 stated that accused used to visit her house once a week and she used to visit accused's house whenever his mother came to him. PW2 also stated that accused has helped her and her family in their bad days and on one occasion accused had taken her daughter to the hospital when she had fallen from the roof. PW2 stated that accused made second call on the day of incident at about 6.30 PM. Again said that first call was made at 6.30 PM, and after 2-3 minutes, he made second call. PW2 stated that at the time of going to her factory, she used to lock her house and used to give the key to her neighbour Saloni but on that day, Saloni was not in the house. Accordingly, she had taken the key with her. PW2 stated that when her elder son used to come back from school, he used to open the house after SC No. 66/13 Page 8 of 21 State Vs. Dinesh Tiwari taking key from Saloni. PW2 stated that at the time of incident accused's wife was living with him. PW2 stated that on the day of incident, accused made call and asked when PW2 would come back and the PW2 told him that she would come back after completing her duty and accused did not ask her to give the key of the house. PW2 stated that she was not present at home and she could not say how the accused had reached her house. It is stated that on the day of incident, PW2's husband returned to the house at about 6.45 PM and PW2 left from the factory at about 7.30 PM and she must have reached the house by 7.45 PM. PW2 stated that when she reached, accused was present there and her husband was also there in the house and she was alone when her daughter had told about the incident. However, her husband was inside the house. PW2 stated that she was weeping and at about 10 PM, when she was seen weeping by her neighbour, the other neighbour also gathered there and thereafter, her another neighbour came. The accused was there even at that time as they had apprehended him. PW2 stated that she was weeping during 8 PM to 10 PM. PW2 stated that her brother reached the house in 10 to 15 minutes and at that time police was already present at her house. PW2 stated that she made call to the police at about 9.30 PM and her statement was recorded in police station. PW2 stated that her daughter must have told to the doctor about the incident.
14. PW5, Smt Saloni, deposed that on the day of incident, victim's mother had given her the keys of her house asking her to give the keys to her children when they return from school and in the evening she gave the keys to the victim and her brother. During cross-examination, PW5 stated that she did not see the accused in the area on that day. PW5 also stated that she did not generally come out from her house.
15. PW10, Dr. Dipti Kaur, SR Gyane Department examined the SC No. 66/13 Page 9 of 21 State Vs. Dinesh Tiwari victim. PW10 deposed that on 21.09.2013 at about 10.15 AM victim was brought to the hospital by her father and mother. On examination finger marks were found on the face of victim. Hymen was found ruptured, blood was found on her clothes and after medical examination 12 biological samples were taken and were handed over to the police. During cross- examination PW10 stated that neither the mother of the victim nor victim told her the reason for delay in bringing the patient to the hospital nor she asked about it. PW-10 stated that finger impression on the face, disappear within one - two hour, again said it might take 4-5 hours in disappearance. PW-10 stated that finger impression were fresh but she could not tell the duration of finger impression. PW-10 stated that neither the victim nor her mother told her whether it was case of insertion of penis or insertion of any other object. PW-10 also stated that, if, finger is inserted resulting in rupture of hymen, the sliva of vagina would appear on finger and nail of the person. PW-10 further stated that in case of insertion of penis resulting in rupture of hymen, there should be some sign of semens on the genital parts of the victim. PW-10 also stated that there was no external injury on the genital parts.
16. Testimony of PW-17 Ms. Aditi Garg is also relevant. PW-17 stated that on 23.02.2013, she was Duty MM, Tis Hazari Court and she had recorded the statement of victim Ex. PW17/B. During the cross- examination, PW-17 stated that at the time of recording of statement of victim, only victim was inside the chamber.
17. The testimonies of PW14 and PW13 are with regard to investigation conducted by the Police.
18. PW-14 SI Rekha deposed that in the intervening night of 20.02.2013 and 21.02.2013, further investigation was assigned to her.
SC No. 66/13 Page 10 of 21State Vs. Dinesh Tiwari After reaching there on the spot, Crime Team visited the spot and inspected the place of occurrence and took photographs and in the meantime, complainant, victim and accused came there and the IO handed over all the documents to her alongwith pulandas. PW-14 stated that thereafter victim was counselled and site plan was prepared on the pointing out of the complainant Ex. PW-2/A. Thereafter, accused was arrested vide memo Ex. PW-13/A. PW-14 stated that after the completion of the investigation, challan was filed. During the cross-examination, PW-14 stated that the place of occurrence was pointed out by the accused after arrest. PW-14 has stated that during inspection of spot, crime team did not find any evidence to show that incident had taken place there. PW-14 stated that site plan was prepared at the instance of mother of the victim.
19. PW-13 Ct. Diwakar deposed that in the intervening night of 20
- 21.02.2013, he joined the investigation with SI Abhishek and they reached at 16/131, I-Block, Hardyan Singh Road where mother of the victim was present. Accused was taken into LHMC and was medically examined. IO recorded the statement of accused and thereafter IO prepared rukka and sent him to lodge the FIR. Duty officer gave him copy of FIR and he met SI Rekha and gave the copy of FIR and rukka to him. During cross- examination by counsel for accused, PW-13 stated that he met the complainant and her daughter and Dinesh Tiwari on the ground floor.
20. I have gone through the material available on record.
21. Perusal of the testimony of the Victim, PW4 shows that she was playing in the Gali with her brother and was called by the accused and accused asked victim to bring the key of room and victim brought the key from her neighbour. The Victim was taken upstairs and accused inserted his finger in her vagina. The victim has clearly stated that she was wearing SC No. 66/13 Page 11 of 21 State Vs. Dinesh Tiwari pant and the accused has inserted his finger after removing her pant and without removing his pant and no one was present there. The victim is 6 years of age. The victim has also stated that she was bleeding from her vagina when the accused had inserted finger. Victim was cross-examined but nothing contrary could be elicited during her cross-examination. The testimony of victim is explicit and the victim has clearly answered to the questions put to her. The victim has identified the accused. In the statement recorded under section 164 Cr. P.C., victim has clearly stated that accused had inserted finger in her vagina and blood started oozing out and she had informed to her mother. The victim has also stated in her statement U/s 164 Cr.P.C. stated that accused did not remove his clothes and had removed the clothes of the victim.
22. Further the medical report also supports the testimony of the victim. The Medical Report, Ex. PW10/A shows that blood was present on the cervix and vagina of victim, blood spots were present on clothes, underwear and her thighs, Hymen was found ruptured. There were finger marks on the face of the victim. The aforesaid report clearly shows that there was bleeding from private parts of the victim. Her clothes were having blood stains. PW10 - Dr. Deepti Kaur has categorically stated about these findings and these findings clearly support the version of the victim. The presence of accused at the place of incident is also not disputed. The accused has also stated in his statement recorded under Section 313 IPC that he went to the house of victim to take money from the mother of the victim as mother of victim has taken a sum of Rs. 1,700/- as loan.
23. Testimony of PW5 also corroborate the testimony of victim. PW5, Victim's neighbour stated that she had given the keys to the victim. The victim has also stated that she had taken the keys from PW5. It also SC No. 66/13 Page 12 of 21 State Vs. Dinesh Tiwari shows that parents of victim were not present at that time. There appears no reason to disbelieve the testimony of the minor girl of 6 years of age.
24. Further, the testimony of victim finds corroboration from the testimony of the PW2, mother of the victim. PW2 has clearly stated that when she reached her home, both her children were at gate and her son had told her that accused is the bad man and done galat kaam with victim and she checked the victim and found the blood stains over the clothes of the victim.
25. In the judgment State of Himachal Pardesh v. Asha Ram, AIR 2006 SC 381, Apex Court held that:
"The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case"
In Sadashiv Ramrao Hadbe v. State of Maharastra (2006) 10 SCC 92, Apex Court held:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix.SC No. 66/13 Page 13 of 21
State Vs. Dinesh Tiwari The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
In Radhu v. State of Madhya Pardesh, AIR 2007 SC 847, it was held that:
"It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrist, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
(emphasis supplied)
26. From the aforesaid judgments it is clear that the testimony of victim is vital and can be relied upon and minor contradictions in the statement of victim cannot be ground to throw out the otherwise reliable SC No. 66/13 Page 14 of 21 State Vs. Dinesh Tiwari testimony. The testimony of victim is reliable and consistent.
27. Now, turning to the arguments of the Ld. Counsel for accused. The DNA sample taken from the accused did not match with the DNA sample lifted from the clothes and body of the victim. Non matching of the DNA sample would not negate the story of prosecution. Further, in the present case, the allegations against accused is that accused had inserted finger in the vagina of the victim, hence, there is no question of semen being there on the body or clothes of the victim. It is also well documented that the slight mistake in taking / preserving the samples may putrify the samples and that DNA samples may not match for number of reasons. The DNA report did not support the prosecution case but it will not affect the case of prosecution when oral testimony is consistent and reliable
28. Next contention of Ld. Counsel for accused is that the mother of the victim has stated that victim had informed her that accused has inserted his penis in her vagina, while, the victim has stated that accused has inserted finger in her vagina. Here, it is noted that victim in her statement given to the Court as well as before Ld. MM has clearly stated that accused has inserted finger in her vagina. Testimony of Victim is reliable and consistent on this aspect. The testimony of mother on this aspect is hearsay and cannot be relied upon.
29. The contention of Counsel for accused is that accused has given Rs. 1,700/- to the mother of the victim and the mother of victim did not want to pay the said money and has falsely implicated the accused, is without any substance. The accused has stated in his statement recorded under section 313 Cr. P.C. that he had dialled to the victim's mother as his wife wanted to meet the victim's mother. Further, no suggestion was put to the PW2, mother of the victim that the parties were not having good SC No. 66/13 Page 15 of 21 State Vs. Dinesh Tiwari relations. The PW2, mother of victim has clearly stated that accused used to visit her house and she also used to visit the house of accused, whenever his mother come at accused's home. Under the aforesaid facts and circumstances, the story propounded by the accused cannot be believed.
30. Ld. Counsel for the accused contended that Victim or her mother did not inform to Dr. Deepti, PW10, who conducted medical examination of victim, that the accused has inserted finger in the private part of the victim. I had gone through the MLC, Ex.PW10/A. The history is given by the mother of the victim and she had stated what she had observed. Admittedly the complainant, mother of victim has not witnessed the incident. There is no abnormality noted in the said statement of the mother of the victim.
31. Another contention of the counsel for the accused is that PW5, Ms, Saloni had stated that she had not seen the accused on that day. I have perused the statement of the PW5. She had handed over the keys of the victim's house to victim. She had although stated that she had seen the accused on that day but at the same time she had stated that she generally does not go out of her home. Further it is noted that accused has himself stated about his visit to victim house on the day of incident in his statement U/s 313 Cr.P.C.
32. So, far as the contradictions in the testimony of PW 2, Mother of victim, is concerned, no doubt there are contradictions in the testimony of PW2, mother of the victim as PW2 on one hand stated that she had taken with her the keys of her house, on the other hand stated that she had handed over the keys to her neighbour Saloni. PW2 has also stated that her elder son did not return from the house of his maternal Aunt (Mami) and SC No. 66/13 Page 16 of 21 State Vs. Dinesh Tiwari also stated that her elder son was present there. The said contradictions are the minor contradictions and does not go to the root of the matter. However, it is seen that the testimony of PW2 was recorded after about 10- 11 months of the incident and some discrepancies are bound to creep in the testimony of the witnesses due to lapse of time.
33. In the judgment Shyamal Ghosh V. State of West Bengal, AIR 2012 SC 3539, Hon'ble Supreme Court observed:
"47. ..........Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements, on contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mer marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where SC No. 66/13 Page 17 of 21 State Vs. Dinesh Tiwari it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
49. ..........Furthermore, whether such omission, variations or discrepancy is a material contradiction or not is again a question of fact which is to be determined with reference to the facts of a given case. The concept of contradiction in evidence under criminal jurisprudence, thus, cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable discretion with the court to determine whether it is a contradiction or material contradiction which renders the entire evidence of the witness untrustworthy and affects the case of the prosecution materially.
(Emphasis Supplied)
34. Applying the aforesaid legal portion it is clear that there is no material contradiction or inconsistencies going to the root of the matter and does not materially affect the case of the prosecution.
35. Now turning to the lapses pointed out by Ld. Counsel for accused in the investigation conducted by the police. Ld. Counsel for accused contended that no public witness has been joined at the time of arrest of the accused and father and brother of the victim were not made witness. Non joining of any independent witness at the time of arrest of accused has hardly has any effect on case of prosecution. PW2 has clearly stated that accused was arrested from their house. The arrest of the accused from the house of victim is also testified by PW14 and PW13. There is nothing on record to cast even a shadow of doubt on arrest of SC No. 66/13 Page 18 of 21 State Vs. Dinesh Tiwari accused from house of victim.
36. The prosecution has not made the brother and father of the victim as witness. No doubt, father and brother of victim could have been made witness. There is lapse on the part of the IO. However for the said lapse on the part of the IO, benefit cannot be given to the accused.
37. As their Lordship of Supreme Court in case DHANAJ SINGH @ Shera and others Vs. State of Punjab (2004) Supreme Court Cases 654 is pleased to hold:
"Even if the investigation is defective, in view of the legal principles set out above, that pales into significance when ocular testimony is found credible and cogent. Further effect of non- examination of weapons of assault or the pellets, etc. in the background of defective investigation has been considered in Amar Singh case (2003) 2 SCC 518. In the case at hand, no crack in the evidence of the vital witnesses can be noticed."
38. And their lordship also relied upon it's own judgment passed in case Kernel Singh Vs. State of MP, 1995(5) SCC 518 wherein it was held:-
"In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
39. In case Paras Yadav Vs. State of Bihar (1999) 2SCC 126, it SC No. 66/13 Page 19 of 21 State Vs. Dinesh Tiwari was held that:-
"if the lapse or omission is committed by the investigating agency or because of negligence, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party".
40. Similarly, in case Ram Bihari Yadav Vs. State of Bihar 1998(4) SCC 517 it was held that :-
"if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law- enforcing agency, but, also in the administration of justice. The view was again reiterated in Amar Singh Vs. Blwinder Singh. As ted in Amar Singh case it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version."
41. The victim and her mother has clearly stated about the incident and has clearly established the case of prosecution. The Investigating Officer has left lacuna in the investigation, but, it would not be proper to give the benefit of such defect in the investigation to the accused.
SC No. 66/13 Page 20 of 2142. "Aggravated Penetrative Sexual Assault" is defined in Section 5 of the POCSO Act. As per the Section 5, whoever commits penetrative sexual assault on child below 12 years of age is said to have committed aggravated penetrative sexual assault. The words "penetrative sexual assault" are defined in Section 3 of POCSO Act. As per Section 3, a person is said to commit "Penetrative Sexual Assault" "if 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 persons". It has clearly emerged from the material on record that accused had inserted finger in the vagina of the victim, therefore, the act of the accused squarely falls withing the definition of penetrative sexual assault and since the victim is less than 12 years of age, the Act of the accused is further covered within the definition of "Aggravated Penetrative sexual Assault" as contained in Section 5 (m) of POCSO Act, the punishment of which is provided under section 6 of POCSO Act. The accused being relative of victim (son of maternal aunt of victim's mother) his case is also covered within the definition of rape as provided under Section 375 IPC and punishable under Section 376(f) IPC.
43. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt of accused beyond the shadow of all reasonable doubts for the offences punishable under Section 376(f) IPC and 6 POCSO Act, thus, I hereby hold the accused Dinesh Tiwari guilty thereunder.
Announced in the open Court
on this 10th day of May, 2016 (ARVIND KUMAR)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI
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