Delhi High Court

Gajadhar vs State on 14 October, 2009

Author: Mool Chand Garg

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Crl.App. 466/2007
%                                    Date of Reserve: 07.10.2009
                                     Date of Decision: 14.10.2009

#       GAJADHAR                                    ....Appellant
!                        Through:    Mr.Rajesh Mahajan, Adv.


                            Versus


$       STATE                                       ..... Respondent

^                        Through:    Mr. Navin Sharma, APP.

        CORAM:
        HON'BLE MR. JUSTICE MOOL CHAND GARG

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

: MOOL CHAND GARG,J

1. This order shall dispose of the aforesaid appeal filed by the

appellant under Section 374 Cr.P.C. against the judgment of

conviction and order of sentence dated 17.04.2007 passed by

Additional Sessions Judge, New Delhi in S.C no. 149/2006 arising

out of FIR No. 625/2006 registered under sections 376/201 IPC at P.S.

Najafgarh, whereby the Ld. ASJ held the appellant guilty by

imposing a punishment of R.I for a period of 8 years and also to pay

fine of Rs. 1000/- and in default of payment of fine to further

undergo S.I. for One month. Benefit of Section 428 of Cr.pc has also

been extended to the appellant.

2. Briefly stated, the case of the prosecution is that the appellant

was sent for trial on the basis of the statement of Smt. Sunita Devi

(PW2), the complainant, Ex.PW2/A to the duty officer of Police

Station Najafgarh alleging commission of rape by the appellant on

the prosecutrix/her daughter who was hardly of 9/10 years.

3. In her statement made to police Ex.PW2/A, she had stated that

on 29.06.2006 prosecutrix (PW3) went to play in the house of the

Gajadhar (appellant). At about 7.00pm when complainant (PW2)

went to call the prosecutrix from the house of the appellant, she

found her sitting on the gate of the house of appellant weeping.

Complainant also found that the blood was flowing on her thighs

and legs and she was not able to stand properly due to pain.

Complainant then called her husaband and nieghbour and took the

prosecutrix to government hospital Jafarpur. The complainant

observed that the blood was coming out from the vagina of the

prosecutrix. The prosecutrix told her that she was raped by the

appellant.

4. On the basis of the above statement FIR was registered at Police

Station, Najafgarh against the appellant, who was later taken into

custody in this case. During the course of investigation, the statement

of prosecutrix under section 164 CrPC was recorded on 01.07.2006 by

the Ld. MM, which is Ex.PW4/M. This statement was recorded by

the Magistrate after satisfying himself about the competence of the

child witness to give/make a statement. For the aforesaid purpose

following questions were asked by the Magistrate which she replied

as under:

(1) aapko apne pitaji ka naam maaloom hein? a. Mahender (2) Aap kahan rehti ho?

a. Shyam Nagar mein (3) Aapka kya naam Hein ?

a. Reena (4) AAp kuch batana chahti ho?

a. The child has only noded her head.

5. Looking at the tender age of the prosecutrix I have not asked her any further questions she appears to be frightened &traumatic. I have recorded her statement w/o administering any oath to her.

(1) Aapke sath kuch hua?

a. Haan (2) Kya hua hein?

a. Gajadhar ne bahut gandha kaam kiya mere sath (3) Kab aur kahan?

a. Mein geeta ke sath khel rahi thi tab Gajdhar ne mere sath ganda kaam kiya. Mera khoon baha tha Doctoe ne davai lagai.

The prosecutrix is not ready to say anything else.

MM-1.7.07

5. After the completion of investigation, the challan was filed by

the police, which was committed to the court of Ld. ASJ, who vide

order dated 05.02.2007 framed charge against the appellant under

section 376 IPC, to which the appellant pleaded not guilty and

claimed trial.

6. The prosecution in order to prove its case has examined four

witnesses. PW1 Dr. Suman, Sr. Resident. PW2 Smt Sunita Devi who

is the mother of the prosecutrix. PW3 Ms. Reena is the prosecutrix

herself and PW4 is SI Richpal Singh who was the IO of the case. In his

statement under section 313 CrPC appellant denied all the allegations

against him. He state that he is innocent and has been falsely

implicated in this case. Appellant did not prefer to lead any defence

evidence.

7. The prosecutrix was also medically examined vide MLC

Ex.PW4/F was prepared. The MLC of the prosecutrix was proved by

Dr. Suman, who examined the prosecutrix and deposed in court as

PW1. In her deposition she has stated:

On 20.06.06, I was posted at RTRM hospital as Sr. Resident Gynae. Reena D/o Mahender aged about 9 yars female was examined by me. On general examination , I found on both legs trickle marks of clotted blood seen. On local examination blood clots were present in vagina covering the hymen. On removal of clot, hymen of the patient was founf ruptured.

Posterior vaginal tear seen below hymen around 2x2 cm was not bleeding at that time because the blood had already clotted. Two vaginal swab slides were prepared and seen. Blood sample was taken and sealed. Nail Clippings and under garments of the patient were taken by me and were

sealed with the seal of the hospital. The MLC Ex.PW1/A is in my own handwriting which I prepared after examination of the patient and the same bears my signature at point A.

8. The prosecutrix also appeared as PW3 before the ASJ and

deposed as under:

Q Do you know the accused present in court? (I have pointed out the accused to her. She is standing by my side on the Dias, however, she does not look at the accused. Rahter there are tears in her eyes.) Q Can you tell me the name of the accused present in the court?

A Gajadhar Q where does he reside?

A In front of our house Q Do you go to his house?

A Yes Q Why do you go to his house?

A Does not Answer. But tears are flowing out of her eyes. Q why do you go to his house?

A To play with Geeta.

Q Was some ―Galat kaam‖ happened with you? A Yes Q Who did it ?

A This fellow (i.e. the accused ) Q Where this Galat kaam done by him?

A In the room.

Q How this was done?

A I was caught by the accused forcibly and did it with me. Q What happened thereafter?

A I came out of room somehow. I was Bleeding. My mother took me to hospital.

9. Based upon the evidence which came on record, the learned

ASJ convicted the appellant for having committed an offence under

Section 376 and punished him to undergo R.I. for a period of 8 years

besides directing him to pay fine of Rs.1,000/- and in default of

payment of fine to further undergo S.I. for one month.

10. While assailing the impugned judgment and the order on

sentence, it has been stated by the appellant that:

i) The Ld. Trial judge failed to appreciate the vital facts,

which makes the case of the prosecution doubtful. The

incident took place on 29.06.06 , prosecutrix deposed

before the ld. ASJ on 01.07.06, it is submitted that the

complainant stated that she had informed her husband

and nieghbour Urmila but none of them has been

examined by the trial court, the only testimony of the

prosecutrix which was cryptic as per the observation of

the trial court could not become the sole basis of the

conviction particularly when the circumstances on record

goes to show that it is impossible for anybody to commit

any such offence in the presence of her own wife.

Therefore the probability factor was brushed aside by the

Ld. Trial judge who admitted it as a strong point but did

not given any credence to it.

ii) That the investigation of the case is dismal because

neither the wife of the accused has been examined nor the

husband of the complainant was examined. Similarly the

neighbor Urmila was not examined and even the ld MM

who recorded the statement of the prosecutrix under

section 164 was also not examined which shows complete

non - application of mind by the ld Trial Judge who acted

emotionally rather than to be judicious in assessing the

case of the appellant.

iii) That the statement made by the prosecutrix was a tutored

one inasmuch as the victim was only a girl of Nine years

at the time of the alleged incident and therefore was a

child witness. It is submitted that while giving the

statement after two days in the court the prosecutrix was

only crying while present in the court and repeated the

words of her mother. The statement was given in the

presence of mother and police and the delay of two days

in recording the statement was never explained by the

prosecution.

iv) That the story of prosecution is full of serious

discrepancies because nothing was corroborated in

furtherance to the bald statement made by the

complainant or prosecutrix as it was not clear as to how

and why the victim reached the house of the appellant

during Odd Hours when the appellant and her wife and

daughter was sleeping. The Complainant also not

deposed anything about the fact that when she reached

the house of the appellant, whether she found the door

locked or open and who all were there in house. It is also

state that if the statement of Urmila was recorded than it

would have been a different story at all and this shows

incurable lapse on part of the IO.

v) That the Ld trial Judge failed to appreciates that the

witnesses produced were the interested witnesses and

that nobody has supported the claim of prosecutirx that

she was raped except her mother. The Police story that

appellant confessed his totally wrong. The statement of

the prosecutrix recorded later than the arrest of the

appellant and therefore obviously is a tutored one. It is

submitted that the rulings of Supreme Court on which the

Ld. Trial Judge has relied upon are not applicable to facts

of the present case.

vi) Regarding the medical evidence it is submitted by the

appellant that it is nowhere stated that the injuries on the

private parts of the prosecutrix can only be outcome of

rape. The Ld. Trial Judge failed in not appreciating the

fact that external injuries may have been caused for

various reasons with any blunt/sharp object and she

might have hurt herself while playing. It is also

submitted that the direct evidence against the appellant is

tutored one and doubtful. The reliance by the solely on

one child witness in the present case is also not justified.

The fact that the gamcha was recovered or the underwear

of victim having stains of human semen has neither been

substantiated by the prosecution nor was there any

material even to form evidence.

11. The counsel for the appellant also submitted that possibility of

a lesser offence is also supported by the medical evidence of the

appellant, who had no injuries on his male organ. In case rape was

committed by a fully grown man on a minor girl having her hymen

intact, it is likely that male organ would not bear some injury marks.

Reliance in this regard has been placed upon the judgment delivered

by Apex Court in Rahim Beg V. State of U.P AIR 1973 SC 343. Lastly

it is submitted that the prosecution has been failed to prove its case

beyond reasonable doubt and the conviction and sentence are equally

arbitrary and illegal and therefore liable to be set aside.

12. On the other hand Ld. APP for the State has supported the

impugned judgment by relying upon the deposition of the

prosecutrix, who has reiterated her statement under section 164

CrPC. It is stated that the incident took place on 29.06.06 and the FIR

was registered on the basis of the statement of the complainant PW 2,

who has fully supported the case of prosecution. It is also submitted

that PW3 Kumari Reena fully supported the case of prosecution

before Trial Court. PW1 Dr. Suman proved the MLC of the

Prosecutrix which is Ex.PW1/A. PW4 medically examined the

accused and found appellant capable of committing sexual

intercourse. MLC of appellant was proved as Ex.PW4/F. It is also

submitted by LD. APP for the state that a Bone Age Test of the

prosecutrix was conducted wherein age of prosecutrix was asserted

9-10 years which is proved on record vide Ex.PW4/O. FSL reports

also proved the case of prosecution which is EX.PW4/P. It is

therefore submitted that prosecution has proved its case beyond any

reasonable shadow of doubt by the testimonies of prosecution

witnesses and the appeal filed by appellant has no merit and liable to

be dismissed.

13. I have considered the submissions made by learned counsel for

the appellant and the learned APP for the State and have also

scrutinized the evidence available on record.

14. It is well settled that competency of a child witness is to be

examined on the basis of his/her preliminary examination when it

has to be seen that whether he/she is capable of understanding

questions and giving the rational answers. A perusal of the answers

given by the prosecutrix goes to show that she had replied the

questions to her best and was not tutored by anyone. Reference can

be made to a judgment delivered by Apex Court in Nirutti Pandurag

kokate Vs. State of Maharashtra, 2008 (12) SCC 565, where it has been

held:

10. ―6. ... The Evidence Act, 1872 (in short ‗the Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease--whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States 40 LED 244. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. Suryanarayana Vs. State of Karnataka 2001(9)SCC 129.

7. In Dattu Ramrao Sakhare v. State of Maharashtra 1997(5) SCC 341 it was held as follows:

‗5. ... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even

in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored.'

15. Taking into consideration the statement made by the

prosecutrix under Section 164 Cr.P.C. as also before the learned ASJ

where she reiterated her statement, it is clear that prosecutrix was

subjected to rape by the appellant who has sexually assaulted her for

his lust. In this regard, reliance placed by the Magistrate on the

testimony of the mother of the prosecutrix and the medical evidence

also justifies the impugned judgment. Even otherwise, there is no

reason to disbelieve the statement made by the prosecutrix as being a

child witness as she had categorically stated about the role of

appellant in commission of rape on her. As far as other submissions

made by counsel for the appellant are concerned, they are of no

consequence. Similarly, the judgment delivered by the Apex Court in