Delhi District Court
Unknown vs . on 13 September, 2017
1
In the court of Ashwani Kumar Sarpal, Addl. Sessions Judge1
cum Presiding Officer of Special Court under POCSO Act,
(East District), Karkardooma Courts, Delhi.
FIR NO.76/14
PSGandhi Nagar
U/S376/506 IPC &
4 of POCSO Act
STATE
VS.
RAKESH
(SC 70/2014)
***************
JUDGMENT: Record shows that accused is in custody since the date of his arrest i.e. 3112014. He was granted bail and even conditions of bail were also relaxed but no bail bond was furnished. The case of the accused was conducted initially by Amicus Curie but thereafter at his request, another counsel from legal aid was provided to him.
On the basis of the prosecution allegations, the charge for offences under section 376/511 and 506 IPC as well as section 10 of the POCSO Act was framed vide order dated 552014. However after 2 conclusion of prosecution evidence and receipt of FSL report, on the basis of an application of the prosecution under section 216 Cr.P.C. and in view of 'no objection' given by the accused, the charge was amended and converted into under section 376, 506 IPC and section 6 of the POCSO Act. Accused did not opt to recall any witness already examined even after amendment of the charge and instead pleaded not guilty to the same.
PROSECUTION ALLEGATIONS: FIR was lodged on 3012014 at 11.45 p.m. by Smt. Shabana Begum, mother of the victim (a girl child aged about 8 years whose identity is not disclosed herewith) with allegations that on 3012014 at about 5 p.m. victim had gone out of house for playing and she came back at about 5.30 p.m. in weeping and feared condition. On inquiry, victim disclosed that accused Rakesh @ Chhole uncle took her to Jhuggi and removed her 'Pajami'. Thereafter he started doing 'Chedchad' with her vagina (Peshab Wali Jagah). Complainant Smt. Shabana Begum found that cloths of victim were wet. She along with victim went to Jhuggi of accused but on seeing them, he ran away from there. Complainant then called the police at 100 number. Police took victim, complainant and her husband Sultan to SDN hospital where medical examination of the victim took place.
IO SI Pooja Pandey on receipt of PCR call vide DD no. 32A firstly reached at the spot of occurrence i.e. Peeli Mitti Jhuggi, near Sayyed Tosir Ali Mazar, Chandra Puri, Gandhi Nagar, Delhi and then to SDN hospital. She collected MLC and sealed exhibits of the victim.
3Mother of the victim gave statement to the IO who got the FIR lodged. Thereafter IO along with victim and her parents came at the spot and prepared site plan and arrested the accused at the instance of the father of the victim. Accused was sent to hospital for medical examination and his exhibits were seized. At the spot of incident, semen sample were also collected from the cot upon which sexual assault took place. Statement of the victim was got recorded from MM concerned on 122014 under section u/s 164 Cr.P.C. The exhibits of both victim and accused were sent to FSL and date of birth proof of the victim was collected. After completion of investigation, charge sheet was filed in the court. However, due to not pleading guilty by accused person, trial started. During pendency of the case, FSL result was also received.
EVIDENCE LED: Prosecution in order to prove its case examined total following 13 witnesses.
Sr. Name of What the witness proved
no. the witness
PW1 Mohd. He is the father of the victim at whose
Sultan instance IO allegedly prepared site plan
and arrested the accused vide arrest memo
Ex. PW1/A and his personal search was
conducted vide Ex. PW1/B. Lateron he
also handed over copy of birth certificate of
the victim to IO which was seized vide
4
memo Ex. PW1/C.
PW2 Smt. She is the mother of the victim and
Shabana complainant as on her complaint Ex.
Begum PW2/A, FIR was registered.
PW3 Victim She proved how and in which manner
(identity is incident of rape, criminal intimidation etc. concealed) took place with her.
PW4 High Court He being posted as MHCM in the police Surender station deposited sealed pullanda containing exhibits of victim and accused in Malkhana respectively on 3012014 and 3112014 and sent to FSL on 172 2014 at the instance of the IO vide entries in the relevant registers Ex. PW4/A to C. PW5 High Court He was working as duty officer and simply Gajender recorded formal FIR Ex. PW5/A on receipt of rukka from IO and made endorsement Ex. PW5/B on the complaint.
PW6 SI Munesh She partly investigated the case and produced the victim before MM concerned for recording her statement u/s 164 Cr.P.C. She also took into possession the photocopy of date of birth certificate of the victim from her father as well as also collected the same from school concerned vide memo Ex. PW6/A in which the victim was studying. The exhibits of victim and 5 accused were also sent to FSL at her directions by MHCM.
PW7 Dr. Neelam She proved MLC of the victim Ex. PW7/A and handed over the exhibits of the victim to police.
PW8 SI C.P. He on receipt of PCR call had reached at Singh the spot of incident and took victim to hospital for medical examination and thereafter handed over investigation to IO SI Pooja Pandey.
PW9 Ct. Vishnu He was posted as duty constable in SDN Kumar hospital and collected exhibits of victim and accused from the doctors concerned and handed over to IO SI Pooja Pandey vide Ex. PW9/A and B. PW10 Ct. Praveena She along with SI C.P. Singh had reached the house of the victim and thereafter accompanied the victim and her parents to hospital. She also took rukka prepared by SI Pooja Pandey to police station for getting the case registered and then came back to spot with copy of FIR and original rukka and handed over to the IO.
PW11 ASI Manoj He had reached at the spot along with Kumar crime team and took photographs Ex.
PW11/A1 to A6 and also produced negatives of the same Ex. PW11/A7 to 6 A12.
PW12 Sh. Naresh He being Sr. Scientific Officer cum Kumar Chemical Examiner proved FSL report and DNA profile reports Ex. PW12/A and PW12/B. PW13 SI Pooja She is the main IO and proved various Pandey aspects of her investigation.
It is important to mention here that accused admitted his MLC Ex. PA1 and school record of the victim Ex. PA2 by giving statement u/s 294 Cr.P.C.
STATEMENT OF ACCUSED U/S 313 CR.P.C. & DEFENCE EVIDENCE: Accused in response to various questions put to him in his statement u/s 313 Cr.P.C. avoided to give any answer and showed ignorance by saying that he does not know. However, he also stated that mother of the victim had run away from her house with one Nasir living in the same street and accused along with her husband had gone to search her. It is also stated that mother of the victim was found in Nizamuddin area but Nasir could not be traced out. Accused had asked the mother of the victim to mend her ways but she threatened him to involve in a false case, which he would remember for whole life. Accused also stated that after 23 months of this incident, father of the victim had shoot Nasir. Accused again asked the mother of the victim not to have any contact with Nasir but she involved him in this false case. According to the accused, victim had also given false statement before MM concerned and even this fact is noted by that MM while recording 7 statement u/s 164 Cr.P.C. However, accused did not opt to lead any evidence in defence.
REASONS FOR DECISION: I have heard Addl. PP for state and counsel for the accused and gone through the record. Following points have arisen during arguments;
(a) There is no dispute about age of the victim: Victim was aged about 8 years when the incident took place. No dispute about the age of the victim was raised during trial on behalf of accused. Due to admission of the accused made in statement under section 294 Cr.P.C. regarding birth record Ex. PA2, it is established on record that minor victim was just 8 years of age at the time of incident. Accordingly, she comes within definition of 'child' as defined under provisions of POCSO Act.
(b) Accused is a potent person: After arrest, the accused was medically examined from the hospital to know about his potency. Accused admitted his own MLC Ex. PA1 in his statement u/s 294 Cr.P.C. which says that he was capable to perform sexual intercourse and was not impotent person. There is reference of collection of blood sample of the accused in this MLC which fact is even not disputed at argument stage.
8(c) MLC of the victim does not fully support the prosecution version: PW7 Dr. Neelam had medically examined the victim in the hospital and she proved her MLC Ex. PW7/A dated 3012014 with alleged history of attempt of sexual assault. Victim was however not able to give any history of incident but the same was reported by her father, though victim was found well oriented to time, place and person at the time of examination according to the contents of this MLC.
MLC shows that victim was brought in the hospital at 8 p.m. After examination, it was found by PW7 that there was no evidence of any external injury/bruise. No bleeding or tear seen and hymen of the victim was found intact. Vulval area and rectal area were found normal. This doctor prepared various exhibits of the victim and handed over to the police after sealing at 11 p.m. It is argued on behalf of the accused that numbers of above facts mentioned in the MLC are going in favour of the accused and rule out any penetration/rape as well as any force used upon the victim while committing alleged sexual assault. According to the counsel, had there been any rape, then hymen of minor girl must have been torned and there must have been swelling or injury marks on the vaginal area because the medical examination was done within 3 hours of the alleged incident. These submissions however, shall be considered along with other evidence lateron.
(d) FSL report confirms penetrative sexual assault/rape: IO PW13 SI Pooja Pandey stated that she had also lifted semen stains found on the cot upon which sexual assault was committed with the help of 9 cotton and even piece of Nylon Strips (Niwar) of the cot was cut and sealed after putting in plastic container vide seizure memo Ex. PW 13/A. After medical examination of the accused vide MLC Ex. PA1 (which accused already admitted in his statement under section 294 Cr.P.C.), his exhibits including blood sample were seized vide memo Ex. PW9/B. These exhibits of the victim and accused were deposited by IO in the malkhana of the police station on 3012014 and 311 2014 respectively and lateron sent to FSL on 1722014 for comparison as proved by PW4. Nothing has come on record from the cross examination of PW4 or PW13 that those exhibits were tempered with at any stage.
PW12 proved FSL report and DNA profile comparison report Ex. 12/A and B. This report clearly says that exhibits were received in duly sealed condition. According to this witness, DNA generated from vaginal secretion of the victim, her Pajami and semen stains found from the Niwar (cloth piece) of the cot at the spot was found matching with the DNA generated from the blood sample of the accused. Semen traces detected from the vaginal secretion of the victim, her Pajami and Niwar of the cot found belonging to the accused. Thus, this FSL and DNA reports clearly indicates that victim was sexually assaulted by the accused and during that process, his semen was ejaculated from his penis which had fallen not only in the vaginal portion of the victim, on her 'Pajami' but also on the cot upon which the sexual assault was committed. Accordingly, it can be said that FSL and DNA report Ex. PW12/A and B fully support the prosecution case and proved that penetrative sexual assault had taken place.
10(e) Defence plea improbable and unacceptable: According to the accused in his statement u/s 313 Cr.P.C., mother of the victim i.e. PW2 was having some relationships with one Nasir with whom she had also run away. Accused and her husband i.e. PW1 had traced her from Nizamudin area and accused had asked PW2 to mend her ways due to which she threatened to implicate him in a false case. It is also stated that father of the victim also shoot that Nasir. However, no evidence is brought on record in this regard. Accused in order to prove this defence story neither examined himself nor any witness or any police record. If PW1 had shoot the Nasir, then there must have been some police report but no such report was produced and instead accused opted not to lead any defence evidence. Even the story as now alleged in statement u/s 313 Cr.P.C. was not exactly put to any witness in his/her cross examination.
PW1 in his cross examination totally denied that Nasir used to come to his house in order to meet his wife and both had run away once. PW1 also denied the suggestion given in cross examination that his wife used to talk with Nasir on phone and used to meet him. Suggestion was given to PW1 that few days prior to the date of incident, a quarrel had taken place between his wife and Nasir and accused being the friend of Nasir intervened and told her that she has children and should not have relations with Nasir due to this reason she got annoyed and falsely implicated the accused in this case. Similarly, PW2 also denied having run away with Nasir though she simply admitted that he was known to her. She also denied meeting him or remaining in contact with him through phone. She also denied 11 taking any financial help from Nasir or had quarreled with him and accused being friend of the Nasir intervened and she due to annoyance threatened him to falsely implicate in a case. Accused by putting these vague defence plea suggestions which are specifically denied failed to prove the same. Neither any witness was examined in defence nor any details were given when, where and in whose presence, alleged threats of false implication were given by PW2. Thus, accused had raised defence plea which is not acceptable and even plausible to show that there existed any chance of false implication, so the same is hereby rejected.
(f) Arrest of the accused in presence of PW1: Accused has not denied his arrest by the police from his own house in the presence of PW1 who specifically stated that he was present at the time of arrest and in his presence arrest memo of the accused Ex. PW1/A was prepared and personal search was conducted vide memo Ex. PW1/B. No doubt, no other public witness was joined by the IO at the time of arrest of the accused but that will not make the arrest as illegal firstly because normally public persons avoids to join the police proceedings and secondly the arrest took place in the midnight at about 1 a.m., so chances of availability of public persons almost becomes nil. Delhi High Court in Ghanshyam @ Raju vs. State 241 (2017) DLT 552 held that public witnesses/ persons are generally reluctant to join police proceedings and court cannot ignore this handicap with which investigating agency has to discharge its duties. In such situation, 12 non joining of any public witness does not invalidate the arrest of the accused.
(g) Evidence of PW2 mother of the victim is not a hearsay evidence: PW2 is the mother of the victim to whom victim just after the incident told while weeping and in scared position that accused had committed wrong act with her. PW2 was told by the victim that accused had taken her to a Jhuggi and there he removed her panty and touched her vagina. PW2 also noticed that the front portion of her salwar was wet and having stains, so she called the PCR which took the victim to hospital. Victim had told her mother some acts of the accused in details regarding sexual assault. This statement of the mother of the victim cannot be treated as simple hearsay evidence especially when no cross examination on the same was done. It is the first version of incident which the victim narrated to her mother just after the incident within a period of ½ hour of commission of offence and thus is a relevant fact forming part of the same transaction being admissible under section 6 of the Evidence Act. Accordingly, the testimony of PW2 cannot be rejected being an inadmissible fact and somehow support the prosecution case.
(h) Statement of minor victim is reliable and trustworthy: The statement of the victim was also recorded by MM concerned under section 164 Cr.P.C. In this statement Ex. PW3/A, victim stated that on one day, she was playing with other children at some distance from her house, then accused Chhole came there who was being called as 13 'Chacha' by her. On the pretext of giving some thing to her, accused took her to a Jhuggi where no other person was present. Accused made the victim lied upon the cot and opened his pant. He opened the chain of his own pant and then removed the 'Pajami' of the victim. He then threatened the victim to kill if she told anything to anyone. Victim stated that she was feeling big fear at that time. Thereafter, accused started touching his penis with her vagina and laid down with her on the cot (Uske Baad Wo Apni Susu Wali Cheej Ko Mere Susu Karne Ki Jagah Par Lagane Laga. Woh Mere Saath Khat Par Leat Gaya). Victim also disclosed that after some time, accused asked her to wear her 'Pajami' which she herself wore. Thereafter, accused left the Jhuggi by leaving her there. Due to fear she did not go to her house and sat on a vehicle. After some time, her brother came to call her, then she went to her house and told about the incident to her mother. Her mother opened her 'Pajami' and saw. Thereafter she told about it to her father who thereafter asked her to call the police.
The above statement of the victim Ex. PW3/A was got recorded under section 164 Cr.P.C. from the Metropolitan Magistrate concerned by the police but that MM is not summoned by the prosecution to prove the fact of recording it. However, statement of victim u/s 164 Cr.P.C. was recorded by the Metropolitan Magistrate in discharge of his official duties under law, so the same can be taken into consideration even without its formal proof by the concerned MM. Otherwise also victim PW3 in her deposition stated that she was produced in the court earlier and she told everything to Judge Sahib. Thus, this statement has to be read in evidence especially when no 14 cross examination was done on the same. Moreover, this statement u/s 164 Cr.P.C. can be treated as a part of the judicial proceedings performed by the judicial officer so is perse admissible in evidence. Hence, no benefit can be given to the accused merely due to non examination of the MM concerned in the court. Accordingly, this statement Ex. PW3/A has to be read for purpose of corroboration and contradiction purposes.
The statement of the victim was recorded in court as PW3. Before recording her statement, the court made inquiry by putting various questions to her and then came to the conclusion that she is a competent witness and her statement can be recorded without oath. At that time, the age of the victim was just 8 years. Most of the evidence of the victim was recorded in question answer form.
Victim PW3 identified the accused in the court. She deposed that on one day, she was playing with her friends outside of her house. Accused told her that he will give her something to eat and took her in a Jhuggi. Thereafter, he removed her underwear and touched his 'Susu Wali Jagah' with her 'Susu Wali Jagah'. She felt pain and started crying. Thereafter, accused went beneath the bridge and she reached home crying. On being asked by her mother, she told everything to her who made a call at 100 number. Police took her and her father to police station. From there she was taken to hospital. After medical examination, they returned to police station. Her mother also reached there. From there they returned back to house. Victim also stated that she was produced in the court earlier and she told everything to Judge Sahib.
15With the permission of the court, Addl. PP was allowed to cross examine the victim on some points. Thereafter, victim also stated that accused is also known as Chhole and she call him 'Chacha'. She also stated that she told the Aunty (i.e. Women Judge who recorded statement u/s 164 Cr.P.C.) that accused made her lie down on a cot, started opening his pant, opened jip of his pant and removed her 'Pajami'. She also stated that she told Aunty that accused threatened to kill her if she told about it to anyone. She also stated that she was scared and thereafter he started touching his 'Susu Wali Cheej' at her 'Susu'. Victim also admitted in cross examination done by Addl. PP that accused also lie down with her and after sometimes, asked her to wear her 'Pajami'. Thereafter she herself wore the 'Pajami' and Chhole left her alone in the Jhuggi and went away and she being scared did not go to her house. However, she denied the fact that she told the MM concerned that she sat on a vehicle and when her brother came there to call her, then she went with him to the house. She also stated that her mother had also checked her 'Pajami'.
Counsel for the accused relied upon case law Samay Singh vs. State 1998 (1) JCC (Delhi) 217 in which it is held that child witness is prone to tutoring, hence the court should look to corroboration particularly when the evidence betrays traces of tutoring. In this case, victim was 6 years of age who was raped. Court found that victim was tutored by her parents to speak against the accused for committing offence. In cross examination she revealed quite contradictory facts to her examination in chief. Medical evidence favours the accused showing no act of rape or any kind of injury to 16 her private parts. There was an old enmity also between accused and parents of the victim.
Accused in his statement u/s 313 Cr.P.C. alleged that victim was telling lie and in this regard, MM concerned also gave observation while recording her statement u/s 164 Cr.P.C. but I did not find any such observation on record. In this regard, plea taken by the accused is totally incorrect and false.
During cross examination of victim PW3, following answers also came on record which were specifically pointed out by counsel in order to show that victim was tutored to speak lie in a particular manner;
Q If your mother had told you what you have to say here? A Yes.
Court Question What your mother told you?
A My mother told me to tell whatever had happened with me.
Q You have told whatever was told by your mother to you? A Witness nodded her head in affirmative.
Q Even when you were produced before Aunty (i.e. MM concerned) earlier your mother told you what you have to say to Aunty?
AYes 17 Q What was told to you by your mother?
A My mother told me to tell whatever had happened with me.
QYou have told today and earlier before the Aunty (i.e. MM concerned) whatever was told to you by your mother? A Witness nodded her head in affirmative.
However, victim specifically denied the suggestions given in cross examination on behalf of the accused that accused had not taken her anywhere, had not done anything with her and she was telling lie on the instance of her mother. If the entire evidence of the victim is taken into consideration, then it can be said that she was not tutored by her mother to depose in a particular manner. She might have been asked by the mother to tell the court but apparently was told only to speak whatever had happened with her. If the above mentioned answers of the victim are taken into consideration in totality, then the possibility of any tutoring is ruled out. Moreover, no question was asked from the victim in cross examination what particular fact has been tutored by her mother which was to be deposed.
Furthermore, testimony of the victim cannot be disbelieved who had no motive to falsely implicate the accused. Delhi High Court in case Hunny vs. State 241 (2017) DLT 346 relied upon the testimony of the victim who was aged about 5 years only and upheld the conviction. The way in which manner the victim deposed in the present case rule out any possibility of any tutoring.
18Counsel for the accused pointed out discrepancies in the MLC of the victim Ex. PW7/A and FSLDNA reports Ex. PW12/A and B. Even if the hymen of the victim was found not torned as per MLC but semen traces of accused were detected from vaginal wash and Salwar of the victim and also on the Nawar of cot. Victim specifically stated that she felt pain and started crying when the accused had removed her underwear and touched his penis with her vagina. From the above evidence and testimony of the victim, the only conclusion thus can be that as and when the accused started doing penetration, then at that time, he discharged his semen and there was no full and complete penetration. Due to incomplete penetration, hymen of the victim was not torned though the process of penetration had already started. Law does not prescribe anywhere that particular degree of penetration should be proved before constituting offence of rape. In present situation, the offence of rape/penetrative sexual assault is fully established. No benefit can be given to the accused in such situation that there was no injury on the viginal area of the victim or hymen was not torned. The MLC of the victim has to be taken into consideration along with oral testimony of the victim read with FSL report.
After going through the statement of the victim, I am of the view that nothing material has come on record from her cross examination to hold that she is either tutored witness or is not correctly deposing. There was no motive on her part to falsely implicate the accused.
19Simple fact that family members of the victim PW3 had accompanied with the victim to court at the time of recording statement u/s 164 Cr.P.C. does not mean that victim was tutored even at that time. Since, the victim was minor child of 8 years of age, so it was natural that her parents accompanied her to court as she alone could not go anywhere. After going through the testimony of the victim, I am of the view that testimony of the child victim is natural and trustworthy.
Delhi High Court in case Tasleem vs. State 2011 (2) JCC 846 held that conviction can be sustained on the evidence of the prosecutrix alone and same does not require corroboration in all cases because it is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It is the quality of the evidence of the prosecutrix which is material. If the evidence is found to be free from blemish and implicitly reliable, the conviction can be recorded even on her sole testimony.
Delhi High Court in Ravi @ Bire vs. State Crl. Appeal no. 227/2017 decided on 1682017 held that in a case of rape or sexual assault on child of tender age, her testimony does not require any corroboration if otherwise it is inspiring confidence. If para no. 14 of this case is taken into consideration and is applied in the present situation, then possibility of false implication of the accused does not survive. High Court held in this paragraph that "otherwise also, the child victim who was 9 years 3 months and 21 days at that 20 time, would not have deposed against the appellant had she not been sexually abused by him. She had hardly any motive to implicate him in such a serious offence wherein she herself had suffered mentally and physically".
Accordingly, after going through the entire testimony of the victim, it is held that there is no ground to disbelieve her regarding committing of penetrative sexual offence against her. The FSL report and the previous statement given to MM concerned under section 164 Cr.P.C. corroborate her version. The testimony of the victim can be accepted as correct in order to sustain conviction of accused.
(i) Contradictions and discrepancies in the statement of witnesses: During arguments, few contradictions and inconsistencies in the statement of some witnesses was pointed out by counsel for the accused but in my view the same are minor and immaterial in nature which does not effect the merits of the case. Otherwise also, normally these inconsistencies are likely to happen due to passage of time and fading of memory. Accordingly, these are liable to be ignored and cannot became base to reject the testimony of inspiring witnesses including the victim. In this regard, reliance can be placed upon Ghanshyam @ Raju vs. State 241 (2017) DLT 552. Even if it is presumed that IO somehow tried to manipulate the small part of the investigation, then that will not affect the prosecution case as a whole, when the testimony of the victim is reliable and acceptable.
21(i) PW1 father of the victim in his examination in chief stated that IO prepared site plan at his instance on 3012014 but in the cross examination, he changed this stand and denied preparation of any site plan in his presence. However, as per IO PW13 she prepared site plan at the instance of father of the victim.
(ii) PW2 mother of the victim stated that police had taken victim and her husband to hospital for medical examination of the victim. She in her cross examination totally denied having gone to hospital. However, as per IO PW13, parents of the victim were present in the hospital where mother of the victim PW2 gave statement which was sent to police station for registration of the FIR.
(iii) As per PW2, her statement was recorded in police station whereas according to IO, it was recorded in hospital.
(iv) PW2 totally denied the fact that after incident she had gone to the Jhuggi of the accused and on seeing them, accused ran away from there. This fact however is stated in her complaint given to police Ex. PW2/A.
(v) PW2 stated in cross examination that she did not know the name of father of the accused nor had told about the same to police but in her complaint Ex. PW2/A, she had mentioned the name of father of the accused as Het Ram.
(vi) IO PW13 in her statement mentioned that she collected the sealed exhibits of the victim vide seizure memo Ex. PW9/A. whereas PW7 doctor stated that she had given the exhibits to 22 lady constable. On the other hand, PW8 SI C.P. Singh stated that doctor handed over the exhibits to IO SI Pooja. However, PW9 Ct. Vishu stated that exhibits were handed over to him and he produced the same before IO SI Pooja Pandey.
(vii) As per IO PW13, she sent rukka from hospital at 11.45 p.m. on the basis of the statement of mother of the victim but this is the time when the FIR was already registered in police station and rukka and copy of FIR was sent back to the IO at the spot by duty officer.
Mere fact that IO PW13 did not remember the exact timings when she reached at the spot, what was the number of the vehicle in which she reached spot, at what time site plan was prepared by her, at what time exhibits were deposited in Malkhana through PW4, when took back her seal etc. are not so relevant to reject the prosecution case. Number of police officials including the IO fully proved various aspects of investigation done in connection with the case from recording the FIR till filing the chargesheet and nothing material has come in their cross examination to dispute the correctness of the proceedings or to show that any material manipulation was done in order to falsely implicate the accused in the case.
In view of the above discussions, it is hereby held that prosecution has fully proved the case beyond doubt and all the charges framed against accused persons are established. The testimony of the victim coupled with FSL/DNA report fully proved that penetrative sexual assault was committed upon victim by the accused though it was of very 23 small in degree. Mere fact that hymen of the victim was found not torned or there was no swelling or bruises on vaginal area itself is not sufficient to hold that offence was not committed. Furthermore, presumptions under section 29 and 30 of POCSO Act are also exists against the accused which he had failed to rebut. Accordingly, the accused is hereby convicted for offence of rape, criminal intimidation punishable under section 376 and 506 IPC along with section 6 of POCSO Act. Let he be heard on point of sentence.
Digitally signed by ASHWANI ASHWANI KUMAR SARPAL
Location: Karkardooma Courts,
KUMAR SARPAL Delhi
Date: 2017.09.13 11:53:46 +0530
Dated1392017. (Ashwani Kumar Sarpal)
Addl. Sessions Judge1.