Delhi District Court
Sc No. 190/14 : Fir No. 916/14 : Ps Aman ... vs Miraj @ Imraj on 6 August, 2016
SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 190/14)
Unique Identification No.: 02404R0304692014
State V/s Miraj @ Imraj
FIR No. : 916/14
U/s : 376/354(D)/506 IPC
& 4/12 of POCSO Act
P.S. : Aman Vihar
State V/s Miraj @ Imraj
S/o Mohammad Shahud
R/o B178, Gali no. 5,
Sharda Enclave, 1st
Prem NagarIII, Delhi
Permanent Address
Village Hayaghat, PS
Bilaspur, Distt. Darbhanga,
Bihar.
Date of institution of case : 23.09.2014
Date of arguments : 02.08.2016
Date of pronouncement of judgment : 06.08.2016
Page 1 of 39
SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj
J U D G M E N T:
1.The facts of the case as borne out from the record are that on 24.08.2014 at about 5:55 p.m. a call was made by one Sh. Om Prakash Tripathi at P S Aman Vihar regarding commission of ,' galat kaam' ( rape) upon his 14 ½ years old daughter namely R ( herein after referred to as prosecutrix). The said information was recorded as DD No. 18 A in P.S Aman Vihar and was entrusted for investigation to IO/WSI Neeraj. After making the aforesaid call Sh. Om Prakash Tripathi reached at PS along with prosecutrix and his elder daughter namely Pinki @ Shashibala. IO made inquiries from both the aforesaid girls and got them counselled through a counsellor from an NGO. Thereafter both the girls were sent to SGM Hospital for their medical examination. After the medical examination the girls were brought back to PS where the statement of prosecutrix was recorded wherein she stated that accused Miraj @ Imraj had been working in the same factory where she was working and for some days prior to the incident he had been trying to talk to her and meet her but she had not permitted him for the same. She further stated that had she told about the aforesaid attempt of the accused, to her father then he would have asked her to stop going to the factory. She further stated that on 19.08.2014 she was present at her house alone as she had not been feeling well. At about 99:30 a.m. accused came to her house and bolted the door from inside and he committed penetrative sexual assault upon her at the point of knife. At around that time itself her elder sister Pinki came there and she knocked at the Page 2 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj door. Hearing the knocks the accused threatened her not to tell about anything to the knocker failing which he would liquidate her father and younger brothers. The accused concealed himself beneath the bed. She opened the door but did not tell anything to Pinki but somehow Pinki saw the accused beneath the bed and raised alarm. She immediately went out and bolted the door from outside and got the same opened through a boy, who resided in their neighbourhood. On opening of the door the accused ran away . Since she was frightened she did not communicate about the sexual assault to anybody in her family and told about it to them only on 23.08.2014.
Prosecutrix was got medically examined at SGM Hospital and thereafter, on the basis of statement of the prosecutrix and MLC, present case was registered. Exhibits of the prosecutrix were seized and she was sent to Nari Niketan. Prosecutrix's statement u/s 164 Cr.P.C was got recorded. Prosecutrix was got counseled. Accused was arrested on the identification of prosecutrix and his medical examination was got conducted. At the instance of prosecutrix, site plan was prepared. Statements of prosecutrix and her sister were recorded. Exhibits of the accused were collected, sealed and seized. Exhibits were got sent to FSL and as there was no age proof of the accused, his ossification test was got conducted. Documents with regard to age of the prosecutrix were collected. After conclusion of the investigation, the charge sheet was prepared and filed in the court.
2. After supplying the copies of the charge sheet to accused, arguments on the Page 3 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj point of charge were heard and on 13.02.2015, charges u/s 11 (iv) of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "Act"), punishable u/s 12 of Act, alternatively u/s 354D IPC and u/s 3 (a) of the Act punishable u/s 4 of POCSO Act, alternatively 376 (2) (i) IPC and u/s 506 IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 15 witnesses, whereafter the PE in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the prosecutrix at the instance of her sister and father as there was a love relationship between him and the prosecutrix, but he was from different religion. The accused wished to lead evidence in his defence, but later on, closed D.E without examining any witness.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Sh. Samar Khan, learned counsel for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
5. PW1, HC Bharat Lal was lying posted as duty officer in PS Aman Vihar at the relevant time and he proved the attested copy of DD no. 18A as Ex. PW Page 4 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj 1/A, recorded by him regarding 'galat kaam with complainant's daughter". He also proved computerized copy of FIR as Ex. PW1/B, endorsement made by him on the rukka as Ex. PW1/C, and certificate u/s 65B of Evidence Act as Ex. PW1/D.
6. PW2, Sh. Rajinder Gautam, Lab Assistant, Govt. Girls Sr. Secondary School, JJ Colony, Nangloi, Delhi, has produced on record the documents with regard to the date of birth of prosecutrix, maintained by the school in due course, inter alia mentioning the date of birth of prosecutrix to be 12.12.1999. He has proved the relevant documents in this regard as Ex. PW2/A to Ex. PW2/F. During crossexamination by learned defence counsel, he termed it correct that father of the prosecutrix had not submitted any birth certificate of prosecutrix issued by MCD or any other government authority at the time of her admission in the school. He also termed it correct that no independent inquiry was conducted by the school regarding the date of birth of the prosecutrix mentioned in the affidavit submitted by her father.
7. PW3, Ms. Meenu Kaushik, ld. M.M, in her evidence has proved statement of prosecutrix as Ex. PW3/B, recorded by her under Section 164 Cr.P.C on 25.08.2014.
8. PW4, HC Raj Kumar was working as MHCM at PS Aman Vihar at the relevant period and he proved the entries made by him in register no. 19 and 21 Page 5 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj as Ex. PW4/A to Ex. PW4/D, which were made by him at the time of deposit of case property with him and at the time of sending the same to FSL Rohini and he deposed regarding the same.
9. Prosecutrix in the present case was examined as PW5 and relevant portion of her testimony is as under : "xxx .... Mere papa Udyog Nagar, Nangloi mein security guard ke naukari karte hai. Mein aur meri behen P.. alag alag shoe factory, Nangloi mein kaam karte hai. Meri teesri behen V.... , Kirti Nagar ek factory mein kaam karti hai. Meine 8th class exams ke baad se hi, naukari karni suru kar di thi.
Mein accused Miraj ko jaanti hu kyunki wo pehle ussi factory mein kaam karta tha, jahan mein kaam karti hu. Suru sure mein, accused ne mere saath baat karne ki kosis ki, par mein kuch bolti nahi thi. Aisa kaafi dino tak chalta raha. Jab meri chuti hoti thi to, accused ne mera picha karna suru kar diya. Ye baat maine dar ke karan apne ghar mein kisi ko nahi batai, ki kahin mere papa meri naukari naa chudwa de.
Page 6 of 39SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj 19.08.2014 ko meri tabiyat kharab thi aur meine chuti ki hui thi. Mere papa aur dono behne duty gaye hue the, dono bhai school gaye the aur meri mami gaon mein gayi hui thi, gaon mein mama ke ladke ki shaadi thi. Mein apne ghar par apne darwaze ko bina kundi lagaye band karke leti hui thi. Samay subah karib 9/9.30 baje, accused mere ghar mein gus aaya aur ander se darwaza bandh kar liya. Usne hamare saath galat kaam kiya. Jab mein chilai to usne mujhe chaako dikhaya aur kaha ki wo mere papa aur bhaiyo ko jaan se maar dega.
Q Beta galat kaam se aap kya samjhate ho?
A. Usne (accused) ne, hamara rape kiya.
Phir achanak meri behen P.... ghar par aa gayi.
Uss samay subah ke 10.00 baj rahe the. Usne jab darwaza khat khataya to accused bed ke niche gus gaya aur mujhe dhamki di ki kisi ko bataya to iska anjaam acha nahi hoga. Meine apni behen ko kuch nahi bataya par meri behen ki nazar bed ke niche pad gayi to meri behen jor se chilai, par accused ne meri Page 7 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj behen ko bhi chaku dikha diya aur wo dar ke maare bahar chali gayi aur bahar se kamre ki kundi laga di.
Meri ek behen ne bahar pados se ladko ko bulakar gate khulwaya par accused wahan se bhagne mein kaamyab ho gaya. Meine uss din apne papa aur doosri behen ko kuch nahi bataya, kyunki mein dari hui thi. Meine phir Sunday ko, uss din 24 taarik thi, apne papa aur gharwalo ko sab bata diya aur apni behen aur papa ke saath PS aa gayi. Wahan par police madam ne mere se poochtach ki aur ek madam aur aayi thi jinhone mujhse puchtaach ki thi aur mujhe samjhaya tha.....
xxx"
The witness identified her signatures on her statement Ex. PW5/A, on site plan Ex. PW5/C, on her statement recorded u/s 164 Cr.P.C Ex. PW3/B, on arrest and personal search memos of accused Ex. PW5/D and Ex. PW5/E respectively, on site plan Ex. PW5/F and her thumb impression on her MLC Ex. PW5/B. During crossexamination by learned defence counsel, she stated as under : Page 8 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj "xxx Mein accused se pehle kabhi nahi mili thi (witness meant that she had never talked to the accused).
(On confrontation with a photograph Ex.
PW5/DX1 depicting the prosecutrix and accused in a gleeful mood, she submitted that accused had once taken her to Rajdhani studio where he got the said photograph clicked and it was about 45 days prior to the date of incident in this case. On further confrontation, with one piece Ex. PW5/DX2 of paper having some scribbled message/shero shayari to the witness, she denied the same to be in her hand.) Ye kehna galat h ki mein accused se pyar karti thi aur uss se shaadi karna chahti thi. Ye kehna galat h ki meine Ex.PW5/DX1 khud apni marzi se accused ke saath jakar Single Digital Colour Lab & Studio, Sector7, DDA Market, Rohini pe kichwaya tha. Mere paas kabhi bhi mobile phone nahi raha. Ye kehna galat h ki mere pass mobile phone number 7053809783 tha. Ye kehna galat h ki mein accused Page 9 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj se uske mobile number 7053809795 par baatein kiya karti thi. Mere sabse chota bhai abhi 10 saal ka pura hokar 11wein saal mein laga hai. Mein apne dono bhaiyo ki umar mein kitna gap hai nahi bata sakti. Mujhe nahi pata ki municipality dwara issue kiya gaya mera koi birth certificate hai ya nahi, mere papa iss bare mein bata sakte hai. Ye kehna galat h ki mere pass DOB certificate hai aur meine usse accused ko dikhaya tha, jis ke hisab se ghatna ke din meri umar 18 saal se jyada thi. Police ne mere bayan 23 baar likhe the. Jis factory mein me kaam karti thi wo 8.45 AM par khulti thi. Meri badi behen aur pitaji subah 9.00 baje tak apne apne kaam par chale jate the. Ghatna ke roj mujhe fever tha. Uss roj mujhe ESI se dawa lene jana tha, par mere pitaji ne kaha ki bhai ke aane ke baad jana. Ye baat ki mein ghatna ke din ghar par akeli thi, accused ko factory se pata chali hogi. Ye kehna galat h ki uss din meine accused ko khud phone karke apne ghar par bulaya tha. Meri behen uss samay mujhe ESI Card ke bare mein batane aayi thi. Accused ne meri behen ko chaaku bed ke niche se nikalne ke baad dikhaya.
Page 10 of 39
SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj
Chaaku kitchen knife nahi tha Accused chaku ke
saath hi bhag gaya. Darwaza khulne par maine
dekha ki bahar 34 adosi padosi ikhete ho gaye the.
Meine jo kapde ghatna ke din pehne the wo police ko
nahi diye the. Ghatna ke samay, meri chhuni fat gayi thi. Accused ne rape ke samay mujhe koi chot nahi pahunchai. Ye kehna galat h ki mere father ko ghatna ke baare mein ussi din pata chal gaya tha. Mein accused ke ghar ke pata nahi jaanti. Vol. Mujhe uske ghar ka number maloom nahi hai, par wah mere ghar aur factory ke raaste ke beech mein padta hai, tatha mujhe wah jagah maloom hai. Meine yeh case kisi ke kehne par nahi balki apni marzi se kiya hai. Meine apne judge sahab ko diye gaye bayan mein ye nahi kaha tha ki case mere pitaji ke kehne par kiya tha. Ye kehna galat h ki jab judge sahab mera bayan likh rahe the to mere pitaji kamre mein present the. Ye kehna galat h ki mere private parts par chot accused ki wajah se nahi lagi thi. Ye kehna galat h ki kyunki padisoyon ne mujhe aur accused ko milte aur pyar karte dekh liya tha isliye mere pitaji ne sharm ki wajah se tatha mohalle ke Page 11 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj dabao mein present case karwa diya. Ye kehna galat h ki mein accused se bahut pyar karti thi tatha uss se shaadi karna chahti thi. Ye kehna galat h ki meine apne pariwar walo tatha mohalle walo ke dabao mein accused ke khilaaf joothi gawahi di h.
xxx"
10. PW6 Dr. Shilpi Gupta, SR Gynae, SGM Hospital, had examined the prosecutrix initially vide MLC Ex. PW5/B and then referred her to Ward no. 4 for detailed gynecological examination and she deposed regarding the same.
11. PW7 Dr. Smita Goyal, SR Gynae, SGM Hospital, proved the MLC of prosecutrix as Ex. PW5/B by identifying the handwriting and signatures of Dr. Supriya Parashar and deposed that as per examination, hymen of the patient was found torn and mild tenderness was found present at the perennial region.
During crossexamination by learned defence counsel, she admitted that tearing of hymen could take place on account of some other factors, other than sexual activity. In reply to a court question, the witness stated as under : "xxx Court Question: Please explain to this court the effect of presence of tenderness over perennial region of the victim Page 12 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj in addition to tearing of hymen.
Ans. The tenderness under these circumstances is suggestive of use of force on the private parts.
The tearing of hymen could be on account of self infliction, physiological factors as well as through third person, however, it is quite unlikely that a female child would make endeavour to tear her hymen by self infliction.
xxx"
12. PW8 Dr. Gurdeep Singh, CMO, SGM Hospital, proved the MLC of accused as Ex. PW8/A by identifying the handwriting and signatures of Dr. Mahipal Singh and deposed that as per MLC, after examination, Dr. Mahipal Singh had given opinion regarding potency of the accused.
13. PW9 Pinki is the sister of the prosecutrix and she deposed that she and her sister i.e prosecutrix had been working in different shoes factories at Nangloi and her other sister was working in a factory at Kirti Nagar. She further deposed that accused, who was working in the factory of prosecutrix used to follow them after their duty was over, but she did not pay any heed to this fact. She further deposed that on 19.08.2014, prosecutrix was down with fever and hence, she remained at home and her father, herself and her other sister left home for their respective Page 13 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj work, her both brothers had gone to their school and her mother had gone to attend a marriage of her cousin at her native village. She further deposed that on that day, she had forgotten as to carry ESI Card for fetching medicine for prosecutrix and due to this reason, she had returned home at around 10/11 AM and found the door of her house bolted form inside. She further deposed that on knocking the door, prosecutrix came out in a very perplexed condition and despite asking by her, she could not say a word. She further deposed that when she was searching ESI Card, suddenly she noticed accused lying under the bed and when she raised alarm, he came out of bed and showed her a knife and threatened her and out of fear, she immediately came out of the room and bolted the door from outside. She further deposed that thereafter, she told Bunty, one of her neighbours that someone had entered inside her house and then Bunty had opened the gate and as soon as the gate was opened, accused managed to escape from there. She further deposed that after return of her father in the evening, she narrated entire incident to him and after arrival of her mother and two married elder sisters, they had a talk with each other and then finally decided to lodge a complaint and thereafter, she, her father and prosecutrix went to the PS and a complaint was lodged there and her statement was recorded. She further deposed about counseling of the prosecutrix and about her medical examination.
14. PW10 Ct. Ravinder, had taken the exhibits of the present case to FSL Rohini, vide RC no. 198/21/14 and deposited the same there and deposed regarding Page 14 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj the same.
15. PW11 Ct. Pinki had joined the investigation of the present case on 24.08.2014 with PW15 W/SI Neeraj and deposed that on the directions of IO, she got the prosecutrix medically examined vide MLC Ex. PW5/B and thereafter, IO seized the sealed exhibits of the prosecutrix in her presence vide seizure memo Ex. PW11/A.
16. PW12, Dr. Amitabh Bhasin, is one of the members of the Medical Board which had examined the accused for assessment of his bone age and deposed that after radiological, medical and dental examination of the accused, the Medical Board opined his estimated age to be between 20 to 22 years as on the date examination i.e. 04.09.2014. He proved the said report as Ex.PW12/A.
17. PW13 Sh. Om Parkash Tripathi, father of the prosecutrix, deposed that on 19082014, prosecutrix was not feeling well and did not go to the factory for work and he asked her another daughter Pinki to hand over his ESI card, so that prosecutrix could bring her medicines from the ESI Center after arrival of his sons from their school and thereafter, he left for his duty. He further deposed that during that time, his wife had gone to her native village to attend some marriage function. He further deposed that at about 10.30 a.m., his daughter Pinki called him and communicated that accused had entered in the house with a knife, but as Page 15 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj his employer did not relieve him, he came in the evening hour at home and on inquiry, prosecutrix showed her unawareness about that boy. He further deposed that his daughter Pinki told him that on that day she had forgotten to give ESI card to the prosecutrix and had gone to her duty and on return, when she was in the process of searching the ESI card, she saw that accused was lying under the bed (takhat) with a knife and on seeing this, she immediately came out of the room and bolted the room from outside and after getting opened the door with the help of neighbouring boy, accused ran away from house. He further deposed that he also made inquiry from the prosecutrix, but she could not tell anything to him initially. He further deposed that on 23082014, one of his relatives had visited his house and had a talk with his both daughters and thereafter, he came to know that the accused had threatened them not to disclose anything to anyone otherwise, he would kill him and his sons. He further deposed that on 24082014, his said relative Sh. Krishan Mohan Pandey and he took the prosecutrix and her sister to police station, where police made inquiries from them, got them counseled through NGO counselor and then, medical examination of the prosecutrix was got conducted at SGM Hospital and case FIR was registered. He further deposed about recording of the statement of prosecutrix by one lady judge and about producing her before CWC. He further deposed about arrest and perosnal search of the accused, about pointing out of the place of incident by the accused, about preparation of the site plan by the police and about recording of his statement by the police.
Page 16 of 39SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj During crossexamination by learned defence counsel, he denied having told to the police about he having handed over his ESI Card to PW9 so that prosecutrix could take the same along for her treatment or asking PW9 to hand over his ESI card to his sons after their arrival from their school for taking the prosecutrix to hospital. He volunteered to state that police did not ask him about this. He denied that prosecutrix was using mobile no. 7053809783. He further stated that prosecutrix had attended her first school at his Village Maina Devi, Distt. Gorakhpur at Maina Devi School and had studied their till 8 th class thereafter, she was admitted in school at Nangloi and at the time of her admission, he had not submitted his affidavit in Nangloi school. In reply a question about birth certificate of prosecutrix, the witness stated as under : Q. Do you have birth certificate in respect of your daughter R issued by Municipal Corporation or any other Statutory Authority?
A. No. My daughter R was born at my native village in Distt. Gorakhpur. I am a Brahmin by caste and immediately after the birth of a child, his or her JANAMPATRI is prepared by a trained pandit, who maintains the record thereof. I had reported the date and time of the birth of my daughter R to our pandit Sh.
Rajkumar Mishr Shastri, who had prepared the JANAMPATRI of my daughter R. Today, I have brought Page 17 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj the said JANAMPATRI. The copy of JANAMPATRI is ordered to be taken on record as Ex.PW13/DX1 (OSR) after supplying a copy thereof to Ld. Defence counsel.
He further stated that he had not handed over a copy of Ex.PW13/DX1 to the police as he had not got the same prepared by the time the charge sheet in the matter was filed. He further stated that on 19082014, he had not spoken to any of his neighbourers after coming to know of the incident from his daughters as he felt ashamed (hamare muh par to kalikh put gaya tha, hum jagah jagah jakar batate firte kya). He further stated that he had written the complaint given to the police and same was signed by him and that was the only complaint, he had given to the police. He denied that prosecutrix was above the age of 18 years at the time of incident and he had intentionally concealed this fact. He further denied that prosecutrix was having love affair with the accused and after knowing the same, to teach a lesson to him, he had got registered the present false case against the accused after consulting his relatives. He further denied that prosecutrix and Pinki had given false statement under his pressure. He further denied that no such incident had taken place on 19082014 or he had not prepared false documents related to date of birth of prosecutrix.
18. PW14 Sandeep @ Bunty has been put forth by the prosecution as a public witness and he deposed that on one day (he could not recollect the exact date or Page 18 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj month) in the year , 2014, at about 1010.15 a.m. one girl (PW9), who had been residing just opposite to his house called him and asked him to open the door of her house as there was someone inside the house with her younger sister and he opened the door and found that one boy was present in the room with PW9's younger sister and as soon as, he opened the door the boy fled away from there. However, he could not identify the accused as the same boy, who had entered into the house of PW9 and when accused was specifically pointed out to him, he stated that he was not the said boy.
As he did not depose as per his statement recorded u/s 161 Cr.P.C, he was crossexamined by ld. Addl. PP and during said crossexamination, he stated that it might be correct that the incident had taken place on 19.08.2014 or that name of the girl, who had asked him to open the door might be Pinki. He further denied having stated to the police that when he had opened the door one boy came out from the room and ran away from there, however he could not see whether he was having a knife in his hand or not. He denied that accused was the same person, whom he had seen fleeing from the said room.
During crossexamination by learned defence cousnel, he stated that according to his estimation the age of the prosecutrix, who was inside the room when he had opened the same , must be around 18 years.
19. PW15 W/SI Neeraj, Investigating Officer of the case, deposed that on 24.08.2014, after receipt of DD no. 18A Ex. PW1/A regarding commission of Page 19 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj 'galat kaam' with the prosecutrix aged about 14 ½ years and after production of prosecutrix, her father and her sister before her by the DO, she made inquiry from the prosecutrix in the presence of her family members, got her counseled from NGO counselor and then recorded her statement Ex. PW5/A. She further deposed that she got the prosecutrix medically examined at SGM Hospital through W/Ct. Pinki vide MLC Ex. PW5/B and seized her sealed exhibits vide seizure memo Ex. PW11/A. She further deposed that thereafter, she made her endorsement on Ex. PW1/C, got the prosecutrix sent to Nirmal Chhaya through W/Ct. Pinki and deposited the exhibits in the malkhana. She further deposed about getting the statement of the prosecutrix recorded u/s 164 Cr.P.C vide application Ex. PW3/A and about collecting the copy thereof vide application Ex. PW3/D. She further deposed about producing the prosecutrix before CWC and about restoring her custody to her father vide order Ex. PW15/A. She further deposed about arrest and personal search of the accused vide memos Ex. PW5/D and Ex. PW5/E respectively, about recording of his disclosure statement Ex. PW5/F, about prearation of pointing out memo Ex. PW5/G on the pointing of accused, about medical examination of the accused vide MLC Ex. PW8/A and about preparation of the site plan Ex. PW5/C. She further deposed about recording of the statements of the prosecutrix, her sister and her father u/s 161 CrPC, about seizure of accused's sealed exhibits vide memo Ex. PW 15/B, about deposit of exhibits in the mal khana and about conducting bone age determination test of the accused by the order of the court. She further deposed about sending the exhibits of the Page 20 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj present case to FSL, Rohini through Ct. Ravinder, about collecting the age proof Ex. PW2/A to Ex. PW2/G of the prosecutrix and about its seizure Ex. PW15/C. She further deposed about recording the statement of the witnesses and about filing the charge sheet in the court. She also proved the FSL result as Ex. PX.
During crossexamination by learned defence counsel, she stated that she did not get the accused identified from PW Sandeep. She denied that she did not get the accused identified from him as she had come to know that the prosecutrix had falsely implicated the accused in the matter and he was not there at the spot on the date of incident. She further denied that she had come to know that there were strained relations between prosecutrix and accused in relation to their job in the factory and as such she got him falsely implicated in this case. She further denied that the family members of the accused had tried to hand over Ex. PW 5/DX1 and Ex. PW 5/DX2 but she had not taken the same on record .She further denied that during investigation, she had come to know that the prosecutrix was more than 18 years of age.
Arguments advance at Bar
20. The Ld Addl. P P for the State has very vehemently argued that as on the date of incident the prosecutrix was a child within the meaning of Section 2 (d) of the Act. It is further argued that she has been consistent in her complaint, statement recorded U/S 164 CrPC and her evidence recorded in the court with regard to the manner in which penetrative sexual assault was committed by the Page 21 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj accused upon her. It is further argued that the evidence of prosecutrix finds corroboration from the evidence of her sister Pinki, who has been examined as PW 9 and as such the conviction of the accused for the charged offences has been prayed for.
21. Per contra, Ld counsel for the accused has argued as under: a. that the prosecution has miserably failed in proving the fact that the prosecutrix was a child within the meaning of Section 2 (d) of the Act.
b. that the prosecution has miserably failed in explaining the unreasonable delay of 5 days in reporting the matter to the police.
c. that the prosecutrix is not a trustworthy witness on account of her conduct which she has exhibited in the matter and as such no explicit reliance can be placed upon her testimony and the same cannot be the sole basis of the conviction of accused in the matter and there is no independent corroboration of the version of prosecutrix.
d. that the medical and forensic evidence do not support the prosecution case.
22. My pleawise findings in the matter are as under: Page 22 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj Plea with regard to the age of the prosecutrix:
23. In cases involving sexual assault, the age of the prosecutrix plays a vital role, the question of consent will very much depend upon the age of the prosecutrix. In the present case, to prove the age of prosecutrix the prosecution has relied upon both the Oral as well as Documentary evidence.
24. The prosecution has examined PW2, who produced the record from the school where the prosecutrix had studied. At the time of admission of the prosecutrix in the said school in 6th class, her father had got recorded her date of birth as 12.12.1999, on the basis of an affidavit which is Ex. PW 2/D inter alia stating therein that the prosecutrix had not studied in any Govt./ recognized school and she had studied at home privately upto 5th class. The father of the prosecutrix was examined in the matter as PW13 and he disowned this affidavit and admitted that the prosecutrix had studied at Maina Devi children Academy , Diwan Bazar, Gorakhpur, U.P. upto 8th standard. The application through which PW13 had sought admission of the prosecutrix in the school is Ex. PW 2/C whereby he had communicated to the school that the prosecutrix had not studied in any school and also mentioned about an affidavit ( Ex. PW 2/D) in this regard. There is a transfer certificate of the prosecutrix on record as Ex. PW 2/E which clearly goes on to show that PW13 had sworn a false affidavit with regard to the age of the prosecutrix. In his evidence PW13 has stated that immediately after the birth of Page 23 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj prosecutrix he had got her horoscope ( Janampatri) made but a copy thereof which he placed on record as Ex. PW 3/DX1 goes on to show that the same was got prepared by him after the filing of charge sheet in the matter and he has duly admitted this fact in the later part of his crossexamination. Therefore, the recording of the date of birth of the prosecutrix in the school record by PW13 cannot be taken as an authentic proof of her correct date of birth. In the case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, it has been held that no evidentiary value can be attached to Date of Birth entry in the absence of material on the basis of which, such entry was made.
25. Seeing the matter from another angle will also take us to the same conclusion. Admittedly the prosecutrix has two elder sisters and two younger brothers. The IO should have obtained their documents with regard to age and could have easily compared the ages of all the siblings and then some authenticity could have been lended to the date of birth of the prosecutrix lying mentioned in her school recorded. PW14 Sh. Sandeep @ Bunty who was the neighbour of the prosecutrix and had opened the door of the house on 19.08.2014 has categorically stated that the prosecutrix was around 18 years of age at the time of incident. As per prosecutrix herself she was gainfully employed in a factory where accused was also employed . This fact also goes on to show that the prosecutrix was a major as no employer would run a risk of employing a minor in his factory in the teeth of the stringent Labour Laws. Therefore, the prosecution has not been able to prove Page 24 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj the fact that the prosecutrix was a child within the meaning of Section 2 (d) of the Act.
Plea with regard to delay in reporting the matter to the police.
26. As per prosecutrix, her sister PW9 and father PW13 the accused had entered into the house where the prosecutrix was alone on 19.08.2014 at about 9 9:30 a.m. and remained there with her till 11 a.m. when PW9 had reached there and found out that he had been concealing himself beneath the bed and was having a knife in his hand. As per the prosecutrix she had communicated about the accused having committed penetrative sexual assault upon her during the period from 9 9:30 a.m. till 11 a.m. on the aforesaid date to her sister on 23.08.2014 whereas PW13 has stated that he was communicated about the incident by PW9 at about 10:30 a.m. on 19.08.2014 but he could not get relieved on that day from his job till evening . He has further stated that he had made a call at number 100 to the police but the police did not come to his house on that day. It is a matter of record that the FIR in the matter was recorded on 24.08.2014 at about 10:45 p.m.
27. The Ld. Defence counsel has relied upon the judgment in a case titled as Rajinder Prasad & Anr. vs. State, in Crl. A. 8/2000, decided on 19.05.2014, wherein the Hon'ble High Court of Delhi, has been pleased to hold that : "xxx In criminal trail, one of the cardinal principles is registration of earliest information as FIR. As observed by Hon'ble Page 25 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj Supreme Court in Lalita Kumari V/s Govt. of Uttar Pradesh and Ors., MANU/SC/1166/2013 : (2014) 2 SCC1, the object sought to be achieved by registering the earliest information as FIR in interalia twofold:One, that the criminal process is set into two motion and is well documented from the very start ; and Second, that the earliest information received in relation to the commission of a cognizable offense is recorded so that there cannot be any embellishment, later. In case there is delay in lodging the FIR, the court looks for plausible explanation for the delay in lodging the report. The reason is obvious. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications.
Delay defeats the chance of the unsoiled and untarnished the version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming to the police or before to the court, the court always views the allegation with suspicion and looks for satisfactory explanation. If no such explanation is found, the delay is treated as fatal to the prosecution case.
xxx"
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28. Reliance has also been placed upon in Thulia Kali v. The State of Tamil Nadu, MANU/SC0276/1972: (1972) 3 SCC 393, wherein it was held that the delay in lodging the first information report quite often results embellishment as a result of afterthought. On account of delay the report not only gets bereft of the advantage of the spontaneity, but also danger creeps in, of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation.
29. On the other hand the Ld. Addl. P P for the State has referred to law laid down by the Hon'ble Supreme court in the case of Ramdas & Ors. Vs. State of Maharashtra, (2007) 2 SCC 170, which is reproduced hereunder : "xxx
24. ........... In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may Page 27 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.
xxx"
30. No doubt that the court shall have to bear in mind that different people /witnesses react differently in differently situations, whereas some become speechless, some start wayling, while some other run away from the scene and yet Page 28 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj there are some, who may come forwarded with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction.
31. I have given thoughtful consideration to the judgments referred to by both the sides.
32. Adverting to the facts of the present case. The accused had allegedly entered into the house of prosecutrix and had committed penetrative sexual assault upon her on 19.08.2014 between 99:30 a.m. to 11 a.m. He was still there in the house when PW9 had reached there and knocked at the door whereafter the accused had concealed himself beneath the bed but she managed to notice his presence. She raised alarm, bolted the door from outside and got the attention of the people of neighbourhood invited about the presence of accused in her house. She got the door opened through PW14 Sandeep @ Bunty, however the accused managed to run away from there after the door was opened. PW9 has admitted in her evidence that she had come to know about the commission of penetrative sexual assault upon the prosecutrix by the accused on that very day itself. She has further admitted that she had made a call to her father on his mobile phone regarding the incident but strangely she further says that she did not communicate him about the commission of penetrative sexual assault upon the prosecutrix by the accused because of fear. The explanation which has been offered by PW9 and PW13 in Page 29 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj not reporting the matter to the police from 19.08.2014 till 24.08.2014 are as under: "PW9 xxx I informed him about the incident of entering a boy in our home, but I did not tell the fact of rape to him out of fear. The neighbours were asking my father to lodge a report, but my father had waited for my mother and my two married elder sisters and after their arrival, we all had a talk with each other and then finally decided to lodge a complaint.
xxx"
PW13 "xxx I made inquiry from my daughter R, but she could not tell anything to me initially. On 23.08.2014, one of my relatives had visited my house with whom, I had discussed about the said incident, who had a talk with my both daughters and came to know that the said boy had threatened them not to disclose to anything to anyone, otherwise, he would kill their father and both brothers. On 24.08.2014, it was Page 30 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj Sunday. My said relative Sh. Krishan Mohan Pandey and myself took both my daughters to police station.
xxx"
33. PW9 has stated that although the neighbourers had pressed hard to report the matter to the police but her father wanted his wife and two married elder daughters to come from village and the matter would be reported only after consulting them.
34. Whereas PW13 in his evidence in this regard has stated that on 23.08.2014 one of his relatives namely Sh. Krishan Mohan Pandey had visited his house with whom he had discussed about the incident and thereafter he and his said relative had spoken to the prosecutrix and PW9 and only thereafter he along with both of his daughters had gone to PS on 24.08.2014 at about 6 p.m.
35. It is worth noticing that the prosecutrix in her statement U/S 164 CrPC Ex. PW 5/B had stated that she got the present case registered against the accused at the instance of her father. The stand of the prosecutrix in her evidence is that she had disclosed to PW9 about the commission of penetrative sexual assault upon her by the accused only on 23.08.2014 in the evening, who in turn had communicated the same to PW13, who had thereafter taken both of them to PS on 24.08.2014 and reported the matter.Page 31 of 39
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36. There is a clear contradiction in the explanations for the aforesaid delay offered by prosecutrix , PW9 and PW13. PW9 has not spoken a word about their relative having visited their house and advising them to report the matter to the police. Whereas PW13 has not spoken anything about he having decided that the matter would be reported to the police only after the arrival at home of his wife and two married daughters.
37. Therefore, the prosecution has miserably failed in offering any reasonable explanation for the delay of 5 days in reporting the matter to the police.
Plea with regard to the conduct of the prosecutrix
38. Ld. defence counsel has argued that prosecutrix has been projected as a sterling witness in the matter and if the conviction in the matter is to be based solely upon her evidence then its quality has to be of the standard prescribed by the Hon'ble Supreme Court in case titled as "Rai Sandeep @ Deepu v. State of Delhi, cited as (2012), 8 Supreme Court Cases 21, by laying down the characteristic of a sterling witness" as under : "xxx A "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the versions of such witness should be in a position to accept it for Page 32 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co relation with each and every one of other supporting material such as the recoveries make, the weapons used, the manner of offence committed, the scientific Page 33 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj evidence and the expert opinion . The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumferential evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be hold that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilt can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in the material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
Xxx"Page 34 of 39
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39. Let us analyze the conduct of the prosecutrix to know as to whether her evidence can be categorized to be of that of a sterling witness as expounded by the Hon'ble Supreme Court of India in the above referred judgment.
40. In cases of sexual assault, evidence with respect to consent cannot be obtained by direct evidence but same can be inferred from the surrounding circumstances enveloping the occurrence. Admittedly the accused was known to the prosecutrix as well as PW9 as he had been working in the same factory where the prosecutrix had been working. The prosecutrix in her evidence has leveled allegations of stalking against the accused whereas in her crossexamination in the first line itself she had stated that she did not know the accused and had never talked to him. When she was confronted with a photograph Ex. PW5/DX1 depicting her and accused in an intimate position then she hastened to add that the said photograph was got clicked at Rajdhani Studio about 45 days prior to the date of incident where she had gone along with the accused. She was also confronted with a small love letter Ex. PW 5/DX2 to have been written by her to the accused. She denied the same to be in her handwriting. On the direction of the court she was asked to write two lines, the same is part of record. A bare comparison of the peculiarity of writing of few words which are common in both the aforesaid documents reveals that there is strong possibility that this love letter is in the handwriting of the prosecutrix, however I refrain from concluding that it Page 35 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj is in all probabilities in the handwriting of prosecutrix. She denied the suggestion of the defence that she had been in love with the accused and wanted to get married to him . She further denied the suggestion that on the date of incident she herself had called the accused at her house but on account of PW9 having accidently reached there and finding both of them in the house the accused was falsely implicated in the present matter at the instance of her father. It is relevant to note that on 25.08.2014 the prosecutrix was produced before Child Welfare Committee ( CWC) where she was counseled by the experts in children rights, there she had probably disclosed that she had been having friendship with the accused as in the proceedings of CWC Ex. PW 15/A at the time of her counselling she was advised " to mend her ways and not to keep friendship with the boys" . This coupled with the fact that PW13 remained sitting with her at the time of recording of her statement U/S 164 CrPC probably to make sure that she deposed in a particular fashion makes the deposition of prosecutrix unworthy of credence. In the last line of her aforesaid statement the prosecutrix stated that she had filed this case on the directions of her father. The conduct of the prosecutrix , PW9 and PW13 is shrouded in suspicion in not reporting the matter to the police on 19.08.2014 itself, if it was so serious. Therefore, the possibility of the coloured version of the prosecutrix regarding commission of penetrative sexual assault upon her by the accused cannot be ruled out.
41. I am conscious of the law that the conviction can be based on the sole Page 36 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj testimony of prosecutrix if it inspires the confidence of the court and there is no need for any independent corroboration of her version in that case. I am equally conscious of the law that ,"in a case of rape the evidence of the Prosecutrix must be given predominant consideration but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which governs the appreciation of evidence in a criminal matter(ref.:Tameezuddin@TammuVs. State (NCT of Delhi(2009) 15 SCC566).
42. In this case the sole independent witness PW14 has not supported the case of prosecution with regard to the identity of accused. As far as the allegations of commission of penetrative sexual assault upon her are concerned only prosecutrix could have deposed about it as no one else except her had seen the accused committing the same. PW9, PW13 and PW14 were not present in the room when the alleged incident took place. Therefore, the possibility of the accused and prosecutrix having only spent sometime together with their consent inside the room on the date of incident cannot be ruled out. The prosecutrix has also not offered any explanation as to how she had the knowledge about the address of accused, if she did not have acquaintance with him. Therefore, it is clearly evident that the conduct of the prosecutrix does not satisfy the criteria laid down by the Hon'ble Supreme court in Rai Sandeep @ Deepu (supra).
Plea with regard to medical and forensic evidence.
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43. In the medical examination of the prosecutrix no injury was found upon her person thereby giving an indication that no force was used against her. In her internal gynecological examination only her hymen was found torn. It is common knowledge that in a person who is almost an adult the hymen can get torn on account of playing, cycling , doing vigorous exercises etc. Admittedly the prosecutrix had been working in a shoe factory where she had to work hard and the possibility of her hymen getting torn on account of her work can also be not ruled out. PW7 Dr. Samita Goel, who had conducted the internal gynecological examination of the prosecutrix has also deposed about the hymen in the same fashion. Therefore, merely on account of torn hymen it cannot be presumed that the prosecutrix was subjected to sexual assault. The FSL report totally exonerates the accused.
44. Suspicion, however grave it may be cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for reason that mental distance between "maybe" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, court has duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be"
true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is Page 38 of 39 SC No. 190/14 : FIR No. 916/14 : PS Aman Vihar : State V/s Miraj @ Imraj condemned as a convict, and the basic and golden rule must be applied, in such cases, while keeping in mind the distance between "may be" true and "must be"
true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touch stone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well the quality and credibility of evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of the case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt but a fair doubt that is based upon reason and common sense.
45. In view of the above discussion it shall be highly unsafe to convict the accused in the matter on the basis of such a shaky material. The accused is accordingly granted benefit of doubt and he stands acquitted. He is in judicial custody. He be released forthwith, if not required to be detained in any other case or proceedings.
46. File be consigned to Record Room, after compliance of the provisions of Section 437A Cr.P.C.
Announced in the open Court (Vinod Yadav)
on 06.08.2016 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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