Nandu Sahani vs The State (Govt. Of Nct) Delhi
2015 Latest Caselaw 1890 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 3rd FEBRUARY, 2015
                             DECIDED ON : 4th MARCH, 2015

+                        CRL.A. 96/2012

      NANDU SAHANI                                ..... Appellant

                         Through :   Mr.Chetan Lokur, Advocate.


                               VERSUS

      THE STATE (GOVT. OF NCT) DELHI              ..... Respondent

                         Through :   Mr.Navin K. Jha, APP.


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

S.P.GARG, J.

1. The appellant - Nandu Sahani impugns the legality,

correctness and propriety of a judgment dated 26.09.2011 of learned Addl.

Sessions Judge in Sessions Case No. 49/2010 emanating from FIR

No.77/2010 PS Nabi Karim by which he was held guilty for committing

offences under Sections 363/354/376 IPC. By a sentence order dated

26.09.2011, he was awarded various prison terms with fine.

2. Briefly stated, the prosecution case as projected in the

charge-sheet was that on 06.07.2010, the appellant after kidnapping „X‟

(assumed name) aged about 10 years outraged her modesty and sexually

assaulted her. On 06.07.2010, Const.Darvesh Singh produced „X‟ and the

accused - Nandu Sahani before ASI Ashwani Kumar of PS Nabi Karim,

who was on patrolling duty in the area. On enquiry, „X‟ disclosed that she

had accompanied with her father from her village to attend marriage in

Delhi. On the way, her father got down at a station to bring water. The

train started leaving him behind.

3. „X‟ in her statement (Ex.PW-1/B) before Child Welfare

Committee implicated the accused for committing rape upon her. FIR was

subsequently lodged against the appellant and he was arrested. „X‟ was

medically examined; she recorded her 164 Cr.P.C. statement. Exhibits

were sent to Forensic Science Laboratory for examination. Statements of

the relevant witnesses were recorded. After completion of investigation, a

charge-sheet was filed against the appellant in the Court. To bring home

appellant‟s guilt, the prosecution examined fourteen witnesses. In 313

Cr.P.C. statement, the appellant denied his complicity in the crime and

pleaded false implication. The trial resulted in his conviction. Being

aggrieved and dissatisfied, he has preferred the appeal.

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

examined the record. Appellant‟s conviction is primarily based upon the

sole testimony of „X‟. Undoubtedly, conviction can be based upon the

sole testimony of the prosecutrix provided it lends assurance of her

testimony. However, in case the Court has reason not to accept the version

of the prosecutrix on its face value, it may look for corroboration. In the

instant case, inherent defects emerge in the evidence adduced by the

prosecution to establish the appellant‟s guilt. Police machinery came into

motion when Daily Diary (DD) No.12A at PS Nabi Karim was recorded

at 07.30 A.M. by ASI Ashwani Kumar. It records that an individual who

had produced „X‟ informed that she had separated from her family while

travelling in a train. ASI Ashwani Kumar and Const.Sonu took „X‟ to

Lady Harding Medical College, where she was medically examined.

Efforts were made to locate the house where „X‟ intended to go at Sunder

Nagri. However, she could not locate it. Since the police was unaware of

the family members and their place of residence, „X‟ was produced before

Child Welfare Committee. Daily Diary (DD) No.12A does not record that

„‟X‟ was in the appellant‟s company at the time of her recovery. „X‟ did

not disclose any foul play to the police that time. Record further reveals

that the appellant and „X‟ were brought at the police station and after

necessary enquiries when PW-9 (ASI Ashwani Kumar) did not find

anything wrong, freed the appellant.

5. Before CWC, Mayur Vihar, „X‟ was examined by PW-2

(Ms.Mamta Sahai). She directed to conduct her medical examination vide

order dated 07.07.2010 (Ex.PW-2/A). Her statement (Ex.PW-1/B),

disclosed that she was resident of F-Block, Sunder Nagri and had come to

Delhi along with her father to attend the marriage of her Mausi‟s

daughter. On the way, when her father got down at Motihari Railway

Station to bring water, the train started and left him behind. In the train,

she met an individual who promised to take her to her house after five

days. However, the said person took her to his residence and did "Gandi

Harkat"; he urinated in her mouth and gagged it. Thereafter, he did

something after putting off her pant and she felt pain. It is significant to

note that in her statement (Ex.PW-PW-1/B), „X‟ did not specifically name

the appellant for outraging her modesty or committing rape upon her.

6. In her statement under Section 164 Cr.P.C., „X‟ improved her

initial version and disclosed that that day, she was to come in a train with

her father from Lucknow. When her father went to take water, she

remained in the train and her father was left behind at the railway station.

An individual who met her at Lucknow told him to accompany him as she

had lost her father; she went with him. When they got down at New Delhi,

the said man took her to a nearby house where none else was present at

around 10.00 A.M. She further disclosed that the said person urinated in

her mouth. She shouted but nobody came for her help. Two ladies were

going from the said house that time. She was sexually assaulted by the

said man twice and was not provided with any food. Thereafter, the said

person took her outside to drop her at her house. On the road, a person

selling water asked the accused as to whose girl she was and where he was

taking her. The accused ran away. Someone informed the police. Police

took her to the police station. She took the police at the house of the

accused from where he was arrested.

7. The version narrated by „X‟ in her 164 Cr.P.C. statement

(Ex.PW-1/A) is in conflict with the prosecution case as well as her

statement given before CWC (Ex.PW-1/B). In 164 Cr.P.C. statement, she

disclosed that her father had gone to bring water at Lucknow itself and the

individual who had brought her to Delhi met her at that railway station.

She did not adhere to her earlier version that her father had got down at

Motihari Railway Station and they were to come to Delhi to attend the

marriage of her Mausi‟s daughter from Bihar. It further belies the

prosecution case that both the appellant and the prosecutrix were found

together at the time of recovery of the child. She made vital improvements

regarding sexual assault committed on her person which did not find

mention in the statement given to CWC. She did not name the accused.

8. In her Court statement (PW-1), she informed that her mother

was residing with her „Nakli Papa‟ (step-father) at Durga Puri chowk. Her

natural father was in Tihar jail. She introduced a new story and disclosed

that she used to live with her „Nani‟ in Bihar. On that day, she was

scolded by her and was not given food for two days. She ran away from

the house and came to Mehersi Railway Station in Bihar. She travelled to

Delhi alone by train. When she got down at Delhi Railway Station, the

accused met her; offered to leave her at her house after five days and took

her to his house. „X‟ did not adhere to her earlier version that she had

accompanied with her father from Lucknow or Bihar to attend the

marriage of her Mausi‟s daughter or that at Lucknow or Motihari Railway

Station, her father had gone to bring water. She did not state that the

accused had met her in the train and had brought her to Delhi. These

infirmities have remained unexplained.

9. She further stated after sexual assault, next morning the

accused had taken unsuccessfully to Durga Puri Chowk to locate her

house. When she was brought back to the house, a paniwale uncle

(waterman) on her disclosure that she was not related to the appellant,

made a telephone call to the police and they took them to the police

station. It is significant to note that identity of „paniwale uncle‟

(waterman) has not been established. He was not cited a witness and was

not examined. Nothing has come in the statements of the police witnesses

if any information about the child with the appellant was given by the said

„waterman‟ on phone. Again, „X‟s assertion to have been taken to police

station with the appellant is at variance with her 164 Cr.P.C. statement.

10. In the cross-examination, she reiterated that she performed

the journey from her village Mehersi to Delhi alone after leaving the

house without informing her „Nani‟. She admitted that her father was not

with her that time. She did not offer any compelling reason to allege

earlier that her father had missed the train at Motihari Station. She further

admitted that there were many residents at the place where the appellant

lived. She further disclosed that her mother did not keep her though she

had come to meet her.

11. On appraisal of the statement of the child witness, it

transpires that she has narrated conflicting and inconsistent version as to

how and under what circumstances she arrived at Delhi; whether she was

alone or was accompanied by her father from the destination point;

whether the appellant met her on the way in the train or at the railway

station; whether she was apprehended along with the appellant or was

alone that time. Initially, when „X‟ was recovered on 06.07.2010, she did

not lodge any complaint with the police for committing rape on her person

by the appellant. At the time of her medical examination at Lady Harding

Medical College nothing was revealed to the doctor regarding sexual

assault. The accused was even taken to police station and after necessary

enquiries when no wrong was noticed, he was permitted to go. The

appellant did not abscond and was apprehended from his house the next

day after „X‟ recorded her statement before the Child Welfare Committee.

The prosecutrix has made vital improvements in her statement under

Section 164 Cr.P.C. as well as Court statement.

12. X‟s statement has remained uncorroborated. Nothing

incriminating was recovered at the residence of the accused. No witness

from the neighbourhood was examined to find out if „X‟ had stayed at the

appellant‟s house during that night or any unusual activity was noticed

there. „X‟ did not raise alarm or hue and cry at any stage. On the next day

on 07.07.2010, the prosecutrix was with the appellant without any fear.

The waterman, a crucial witness, was not examined. It has come on record

that attempts were made by the appellant to take „X‟ at her residence at

Sunder Nagri but the house could not be located. Had there been guilty

conscious of the appellant, he would not have taken her there.

13. „X‟ was medically examined after lodging of the FIR at Lady

Harding Medical College vide MLC Ex.PW.10/B on 07.07.2010 at 06.00

P.M. PW-10 (Rajesh Meena), Record Clerk proved the MLC prepared by

Dr.Priya. As per MLC (Ex.PW-10/B), no external injuries were found on

her body. The hymen was intact (one-little finger). Apparently, there is

complete variance between the ocular and medical evidence which does

not support „X‟s version that she was sexually assaulted twice.

14. X‟s frock and underwear recovered during investigation were

not shown to her for identification. FSL reports (Ex.PW-9/C & Ex.PW-

9/D) do not incriminate the appellant. No blood was detected on any

exhibits including Ex.1a (One dirty frock), Ex.1b (One dirty underwear),

sent for forensic examination. Similarly, no semen could be detected on

any such exhibit. The accused was also medically examined and no

injuries were found on his body.

15. No independent public witness was joined from the

appellant‟s neighbourhood. Police investigation does not record at which

place „X‟ met the appellant and under what circumstances, he allegedly

brought her to his residence.

16. In the light of above discussion, it would not be safe to rely

upon the statement of „X‟, a child witness, who has deviated from her

version at different stages of the proceedings. Her conflicting statement

has not been corroborated by any other ocular, medical or scientific

evidence. In „State of Rajasthan vs. Om Prakash‟, 2002 (5) SCC 745,

Supreme Court held : "The evidence of a child witness is required to be

evaluated carefully as the child may be swayed by what others may tell

him or her as the child is an easy prey to tutoring. Wisdom requires that

the evidence of a child witness must find adequate corroboration before it

is relied on.....". The appellant deserves benefit of doubt.

17. The appeal is allowed. Conviction and sentence awarded by

the Trial Court are set aside giving benefit of doubt. The appellant shall be

released forthwith if not required to be detained in any other case. Trial

Court record be sent back immediately with the copy of the order. A copy

of the order be sent to the Superintendent Jail for compliance.

(S.P.GARG) JUDGE MARCH 04, 2015 / tr