Dinesh vs The State
2012 Latest Caselaw 4369 Del

$~R-11
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl. A. No. 930/2010

%                               Decided on: 24th July, 2012

       DINESH                                     ..... Appellant
                         Through:      Mr. Tanvir A. Mir, Mr.
                                       Manish Kaushik, Mr. Dhruv
                                       Gupta and Mr. F. Shah,
                                       Advs.
                   Versus

       THE STATE                                  ...... Respondent
                         Through:      Mr. Mukesh Gupta, APP

A.K. PATHAK, J. (Oral)

1. Appellant has been convicted under Sections 376/366 of the

Indian Penal Code, 1860 (for short „IPC‟), by the Trial Court;

sentenced to undergo rigorous imprisonment of 10 years with fine

of `2000/- and in default of payment of fine to undergo simple

imprisonment for 3 months for the offence punishable under

Section 376 IPC; rigorous imprisonment of 5 years with fine of

`2,000/- in default of payment of fine to undergo simple

imprisonment of 3 months for the offence punishable under Section

366 IPC. Both the sentences have been directed to run concurrently.

Benefit of Section 428 of the Code of Criminal Procedure, 1973 has

also been accorded to the appellant.

2. Aggrieved by his conviction as also the sentences handed

down to him, appellant has preferred this appeal.

3. Prosecution story, as unfolded, is that the prosecutrix aged

about six years was present in her mother‟s tea stall near National

Dharam Kanta on 21st August, 2007. At about 8:30 pm prosecutrix

told her mother that she wanted to go out to ease herself. Her

mother instructed her not to go too far. Prosecutrix did not return

for quite some time thus her mother got worried. She searched the

prosecutrix here and there. One Lal Chand met her and she

informed him that prosecutrix was missing and requested him to

find her daughter. At about 11 pm Lal Chand saw the prosecutrix

coming from the X-Block side. She was bleeding per vagina. On

enquiry, prosecutrix informed that one person had taken her with

him forcibly in a park near a factory and had raped her. She further

informed that said person used to roam around their shop

occasionally. Police was informed. Prosecutrix was taken to All

India Institute of Medical Sciences (AIIMS) for her medical

examination. Her vaginal swab, frock and panty were sealed and

handed over to Investigating Officer and later sent to FSL and its

report was obtained.

4. On 29th September, 2007 one Jagdev informed that the

person, who had taken the prosecutrix with him on 21st August,

2007, was present near Kalyan. Thereafter, on the pointing of

Jagdev appellant was apprehended by SI Kiran Sood (Investigating

Officer). Prosecutrix identified the appellant as the same person

who had taken away her with him on 21st August, 2007 and had

committed rape upon her. Appellant was examined in AIIMS and

doctor opined that there was nothing to suggest that he was

incapable of performing sexual intercourse. Blood of the appellant

in a gauze was collected, sealed and handed over to the

Investigating Officer.

5. Prosecutrix was examined as PW1 before the trial court. Her

mother Smt. Kiran was examined as PW2. Jagdev has been

examined as PW4. Lal Chand was examined as PW5. Smt. Suman

teacher of the school where the prosecutrix had been studying was

examined as PW6. HC Naeem Ahmed and Const. Nahar Singh

were examined as PW8 and PW9 respectively with regard to the

arrest of appellant. Dr. Susheel Sharma and Dr.Aprajita Singh were

examined as PW-13 and PW-16 respectively. Shri A.K.Srivastava,

Assistant Director, FSL was examined as PW-20. SI Kiran Sood

(Investigating Officer) was examined as PW19. These are the

material witnesses. Other witnesses are formal being police officials

who had joined the investigation on one point or the other.

6. As regards identity of the appellant is concerned, Trial Court

has found testimony of the prosecutrix and Jagdev to be trustworthy

and reliable so as to conclude that it is the appellant who had taken

the prosecutrix with him and committed rape upon her in a park

near the factory situated at Okhla Phase II. It was further observed

that the medical evidence adduced on record corroborated that the

prosecutrix had been raped. MLC of prosecutrix was proved by Dr.

Aparajita Singh as PW16/A. She has deposed that she had worked

with Dr. Bhaswati Ghosh who had conducted the medical

examination of the prosecutrix. On local examination of victim,

hymen appeared torn (posteriorly) not bleeding actively but fresh

tear present. Vagina admits one finger. Undergarments were

strained with old blood. On the basis of examination there is

evidence of sexual intercourse and as such possibility of rape

cannot be ruled out. Statement of PW1 coupled with the medical

evidence has been found sufficient to conclude that the prosecutrix

was raped by the Appellant.

7. I have carefully perused the entire trial court record and in

my view, for the reasons recorded hereinafter, prosecution has

failed to prove beyond shadow of reasonable doubt that it is the

Appellant, who had committed rape upon the prosecutrix. A close

scrutiny of her testimony indicates that she had been tutored to

identify the appellant who was even shown to her in the police

station. PW-1 is a child of tender age, thus, her testimony is to be

scrutinized with great caution to rule out any tutoring. In Chhagan

Dame versus State of Gujarat 1995 SCC (Crl.) 182, Supreme

Court has held thus, "in the case of a child witness, the court has to

carefully consider whether the child was under the influence of any

tutoring". In State Vs. Anwar Hussain, 2010 (3) AD (Delhi) 503

a Division Bench of this court has held as under:-

The prosecutrix was an innocent child witness; her testimony is to be perused with great care and caution. In the case of State of Assam Vs. Mafizuddin Ahmed, 1983 CR.L.J. 426, the Supreme Court observed that "the evidence of a child witness is always dangerous, unless it is available after the occurrence and before there were any possibility of coaching and tutoring." It is well settled that a child witness is prone to tutoring and hence the court should look for corroboration by any independent evidence before placing implicit faith and reliance on it.

8. In the case in hand answers given by the PW-1 in her cross-

examination clearly indicate that she was tutored. Her testimony

also creates a doubt that she could have identified the appellant, in

view of the fact that it was dark as has been admitted by her.

9. While deposing in court PW1 has stated that she was playing

near the tea shop run by her father. It was dark and people had left

the shop. One person had taken her with him to a park where the

said person had inserted his organ in her private parts. She

described this by making gesture from her hands. She further

deposed that blood came out from her private part. She pointed

towards the appellant as the same person who had committed wrong

act with her. However, in her cross-examination she has deposed

that she could not see the face of the person who had done wrong

act with her as it was dark. Police had shown the appellant in the

police station and told her that he was the same person who had

done wrong acts with her. She again said that she had also told the

police that he is the same person. She further stated that her mother

told her to depose in this way. She also admitted that she was

shown appellant‟s photograph by the police. PW1 has categorically

stated since it was dark she could not identify the person who had

committed wrong act with her. From overall reading of statement of

PW-1 creates a serious doubt about the identity of appellant as the

preparator of crime.

10. There is yet another lacuna in the prosecution story. In her

statement under Section 164 Cr.P.C., PW1 had stated that the

person who had taken her with him used to visit the shop. However,

in her cross-examination she has stated that she had not seen the

appellant before the incident near her shop or in the area. PW2 has

deposed that her daughter (prosecutrix) had told her that the person

who had taken her with him used to visit their tea shop and she can

identify him. At the same time, PW2 in her cross-examination has

stated that she had seen the appellant in the police station for the

first time. She never saw the appellant near her shop before the

incident. PW4 Jagdev has claimed that he had seen the prosecutrix

going with the appellant on the fateful day as also the fact that he

came to know about the rape of prosecutrix the very next day.

However, he did not tell anyone almost for two-three months that

he had seen the person who had taken the prosecutrix with him and

can identify him. In his cross-examination, he has deposed that he

did not take any action when he came to know that prosecutrix was

raped. He did not go to police station. He met the police officials

only after two-three months of the incident; meaning thereby that he

met the police officials first time in the month of November, 2007.

If that is so, then appellant could not have been arrested on the

pointing of PW4 on 29th September, 2007. PW4 has not deposed

about the apprehension of the appellant on his pointing. He is silent

on this aspect. As against this, PW9 H.C. Nahar Singh has deposed

that on 29th September, 2007 he along with Const. Naeem Ahmed

(PW8) was on patrolling duty when on the pointing of Jagdev

(PW4), appellant was apprehended. As against this, PW8 HC

Naeem Ahmed has not supported this version. According to him,

he along with SI Kiran Sood (PW19) reached near the factory

Okhla Phase II where HC Nahar Singh was already present along

with the appellant. The discrepancies, as noted above, create a

serious doubt about the involvement of appellant in the crime.

11. In my view, above discrepancies have lost sight of Trial

Court resulting in conviction of appellant.

12. There is no other circumstantial evidence available on record

to indicate the guilt of appellant. Blood sample of appellant was

taken but the same was not sent to FSL for serological examination.

PW20 A.K. Srivastava, Assistant Director has deposed that the

blood sample of appellant was not sent, thus, no report was obtained

regarding blood group of appellant. As per PW20, semen was

found on the underwear, frock and vaginal swab of the prosecutrix,

but same cannot be connected with that of appellant since neither

the semen nor blood of appellant was sent to FSL nor its report was

obtained.

13. For the foregoing reasons, in my view, prosecution has failed

to prove beyond the shadow of reasonable doubt that it is the

appellant who had taken the prosecutrix with him to a park near a

factory in Okhla Phase II and committed rape upon her.

Accordingly, appeal is allowed and conviction of the appellant is set

aside. Appellant is acquitted of the charges under Sections 376/366

IPC. He be released forthwith, if not wanted in any other case.

A.K. PATHAK, J.

JULY 24, 2012 ga