State vs Brij Dev Tiwari @ Pandit
2015 Latest Caselaw 9120 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 23rd SEPTEMBER, 2015
                             DECIDED ON : 8th DECEMBER, 2015

+                         CRL.A.314/2015

      STATE                                                ..... Appellant

                          Through :    Mr.Amit Gupta, APP.


                          versus



      BRIJ DEV TIWARI @ PANDIT                             ..... Respondent

                          Through :    Mr.Ritesh Khare, Advocate with
                                       Mr.Sumit R.Sharma, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 29.08.2011 of learned Addl.

Sessions Judge in Sessions Case No.09/11 arising out of FIR No.443/10

PS Dabri by which the respondent - Brij Dev Tiwari @ Pandit was

acquitted of the charges, State has preferred the instant appeal. It is

contested by the respondent.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 18.12.2010 at 10.00 p.m. at House No.A-83, ground

floor, gali No.19, Bharat Vihar, New Delhi, the respondent committed

rape upon the prosecutrix 'X' (assumed name) aged around eight years

and criminally intimidated her brother Rajesh Kumar. The incident was

reported to the police on 20.12.2010 and Daily Diary (DD) No.10A

(Ex.PW-12/A) came into existence at 09.30 a.m. The investigation was

assigned to SI Anil Kumar who with Const.Mahender Singh went to the

spot. After recording statement of the victim's brother - Rajesh Kumar

(Ex.PW-8/A), the Investigating Officer lodged First Information Report.

'X' was medically examined; she recorded her 164 Cr.P.C. statement.

Exhibits collected during investigation were sent to Forensic Science

Laboratory for examination. The accused was arrested and medically

examined. Upon completion of investigation, a charge-sheet was filed

against the respondent for commission of offences punishable under

Sections 376/506 IPC. The prosecution examined twelve witnesses to

establish respondent's guilt. In 313 Cr.P.C. statement, the respondent

denied his involvement in the crime and pleaded false implication. The

trial resulted in his acquittal. Being aggrieved and dissatisfied, the State

has come in appeal.

3. I have heard the learned counsel for the parties and have

examined the file. In the complaint (Ex.PW-8/A) the complainant -

Rajesh Kumar informed that on 18.12.2010 at around 10.00 p.m. when he

returned to his house and went up-stairs, he heard X's voice from inside

the respondent's room on the ground floor. The room was half-closed.

When he saw inside the room, he found that the accused was attempting to

commit rape upon 'X'. On seeing him, the respondent became perplexed,

put 'on' clothes and fled the spot. He brought 'X' up-stairs and informed

about the incident to his wife Manju. After some time, the respondent

returned and threatened to kill him. Due to fear, he did not lodge report

that day. In his Court statement, the complainant as PW-8 introduced a

new version quite inconsistent and contradictory to the initial statement

(Ex.PW-8/A) given to the police. He deposed that on 18.12.2010 at about

10.00 / 10.15 p.m., when he returned from his place of work and went to

his room, he did not find 'X' there. On enquiry from his wife, he came to

know that she might have gone to toilet. However, 'X' was not there in

the toilet. He came down-stairs and made enquiries from Seema, a tenant

on the ground floor. Her son aged around 4 - 5 years informed him that

'X' was in the respondent's room. He knocked at the respondent's room

for about 15 - 20 minutes and when it was opened he found the

prosecutrix in his room. He brought her up-stairs and she informed him

that the respondent had committed rape upon her. He asked his wife to

check the prosecutrix after removing her panty. After examining the

prosecutrix, she informed him that there was 'blood' on her panty. He

came down-stairs and informed Seema about the incident. Next morning,

his landlord came at around 08.00 a.m. and he apprised him of the

occurrence. He assured to get the room vacated from the respondent. At

about 06.00 p.m. next-day, Manoj, his landlord's son on mobile

threatened him to kill if he reported the incident to anyone. As the witness

had made vital improvements, the learned Addl. Public Prosecutor cross-

examined him after seeking Court's permission. He was confronted with

the statement (Ex.PW-8/A) on various facts which were not stated that

time. The witness did not explain as to why all these facts stated in the

examination-in-chief were omitted to be recorded in his initial complaint

(Ex.PW-8/A). About X's panty, he informed that it was left in the Indica

car of his brother-in-law - Kamal on return from the police station.

4. PW-5 (Manju), Rajesh's wife also gave inconsistent and

conflicting statement. In her deposition before the Court, she disclosed

that 'X' had gone to watch TV at Seema's house on the ground floor. At

around 10.00 p.m., she accompanied her husband to search 'X' but she

could not be located. Seema's son told her husband that 'X' was sitting in

respondent's house. It was knocked for about 15 - 20 minutes but the

respondent did not open it. Seema's younger son switched off the

electricity connection. After the respondent opened the door, 'X' was

found inside the room. She again said that 'X' had come out of the house

and was in normal condition. She was taken up-stairs. 'X' told her that the

respondent had committed rape upon her after removing his pant. She saw

blood on X's panty. She and her husband came down-stairs and apprised

Seema about the incident. She advised them not to raise the issue and she

will inform the landlord who would talk to the respondent. When the

landlord did not get the room vacated, they lodged the report with the

police. She was also cross-examined by learned Addl. Public Prosecutor

as she did not support the prosecution in its entirety. She was confronted

with her statement (Ex.PW-2/DA).

5. Initially, on PW-8, Rajesh's statement (Ex.PW-8/A), the

police had registered a case for 'attempt to commit rape'. Rajesh had

claimed to have witnessed the incident while going up-stairs to his room.

Subsequently, upon completion of investigation, the respondent was

charged for committing 'rape' upon the prosecutrix 'X'. PW-5 (Manju)

and PW-8 (Rajesh) in their Court statements did not claim if at first

instance 'X' was seen in the respondent's room or he was found

attempting to commit rape upon her. The prosecution has not offered any

plausible explanation for material and vital deviation from the initial

version.

6. The prosecutrix 'X' is a child witness. Her age has been

described as eight years on the day of incident. The Investigating Agency,

however, did not collect any document whatsoever to ascertain her age.

Her ossification test was also not conducted to find out the approximate

age. The Trial Court while recording her Court statement noted that she

appeared to be aged around 5 - 6 years. Her statement was recorded in

question and answer form. Initially, she was reluctant to disclose

anything. After PW-5 (Manju) was called to provide her moral support,

she answered queries of the Court. Her statement is inconsistent. At some

stages, she has informed that certain facts were tutored to her by her

brother Rajesh. At one stage, she merely deposed that she was taken to his

room by the respondent and was confined there. She was made to lie and

her 'kachhi' was taken off. Then her brother arrived there and the

respondent put a piece of cloth in her mouth. Her brother took her up-

stairs and saw that there was blood on the 'kachhi'. At other stage, she

was categorical to state that the respondent has inserted his organ meant

for urinal in her female organ. Settled position is that the Court must be

extremely cautious and careful in placing reliance on the testimony of

a child witness. A child witness is prone to tutoring and hence the Court

should look for corroboration particularly when the evidence betrays

traces of tutoring. In the instant case, testimony of the baby gives a clear

impression that she was coached and tutored before she gave the

statement and it is clear from the number of questions she had answered in

the cross-examination. Her statement has not been corroborated by any

other independent source. Medical evidence also proves the respondent's

innocence. 'X' was medically examined vide MLC (Ex.PW-9/A) on

20.12.2010. PW-10 (Dr.Parul Mehra)'s statement is crucial. She deposed

that at the time of her medical examination, there were no external injuries

on X's body. She did not find any external injuries on her vulva and

thighs. Her hymen was torn, however, her hole was very small that even a

little finger could not be allowed inside. There was no bleeding at that

time. In an answer to a Court question, she was of the view that it did not

appear to be case of 'rape' as there were no external injuries. She revealed

that in case a minor child of the said age is raped, the injuries suffered

would take a week's time to heal. The reason of small hole in the hymen

could be that the child was active in playing. The hole did not appear to be

a fresh injury. Apparently, the evidence of 'penetration' in the instant case

is lacking. PW-8 (Rajesh) in his initial version given to the police merely

complained of 'attempt to commit rape'.

7. FSL report Ex.PX is of no relevance as human semen

detected on Ex.1a (Cotton wool swab on a stick kept in a test tube),

Ex.1b1 & 1b2 (Two micro slides having whitish smear), could not be

ascertained to be of 'A' group of the respondent.

8. Delay in lodging the FIR has remained unexplained. PW-5

(Manju) did not support her husband if any threat was ever extended by

the respondent not to lodge the report with the police. She informed that

the threat extended was by the landlord or his son. The prosecution

examined PW-6 (Satpal), the landlord. He did not reveal if any threat was

extended by him or his son Manoj to X's brother to not lodge the report.

In the cross-examination, he disclosed that only from the police, he came

to know about the incident. Material prosecution witnesses were not

examined or associated. Manoj against whom there was specific allegation

of criminal intimidation was not joined during investigation or was

produced as a witness. Seema and her son were not examined to

corroborate the prosecution version that they had intervened and advised

the complainant not to lodge the report. They were material witness to

prove if the prosecutrix was last seen at the respondent's residence or on

the information given by Seema's son, the complainant had gone to the

respondent's house. Relatives with whom the complainant had discussed

to lodge the report on 20.12.2010 have also not been examined.

Contradictory statements have emerged as to the circumstances and

manner in which the respondent was arrested. Apparently, he did not

abscond from the spot. The Trial Court has discussed all the evidence on

record minutely. Though the defence does not inspire confidence

regarding false implication for non-payment of `12,000/-, the prosecution

cannot take advantage of it. The onus to establish its case beyond the

reasonable doubt is upon the prosecution.

9. Settled legal preposition is that the appellate court has to be

more cautious while dealing with the judgment of acquittal. Under the

Indian criminal jurisprudence, the accused has two fundamental

protections available to him in a criminal trial or investigation. Firstly, he

is presumed to be innocent till prove guilty and secondly, that he is

entitled to a fair trial. Both these facts attain even greater significance

where the accused has a judgment of acquittal in his favour. A judgment

of acquittal enhances the presumption of the innocence of the accused.

The appellate court would be justified in interfering with the judgment of

acquittal only when there are very substantial and compelling reasons to

discard the verdict of court below. In the instant case, the State has not

been able to make out that the Court below has completely fallen in error

of law or that the judgment in relation to the respondent was palpably

erroneous, perverse or untenable.

10. In the light of above discussion, the appeal preferred by the

State against the respondent's acquittal is devoid of merits and is

dismissed. Trial Court record be sent back immediately with the copy of

the order.

(S.P.GARG) JUDGE DECEMBER 08, 2015 / tr