Delhi High Court
State vs Rahul on 30 April, 2019
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On: 23.04.2019
Judgment Pronounced On: 30.04.2019
CRL.A. 496/2015
STATE ..... Appellant
Through: Mr. Ravi Nayak, APP for State with
W/ASI Santosh Kumar, SHO Raj
Kumar Saha, ASI Suresh Kumar, PS
New Usmanpur.
Versus
RAHUL ..... Respondent
Through: Ms. Manika Tripathy Pandey,
Advocate (DHCLSC).
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The State having been granted leave to appeal vide order dated
22.04.2015 in Crl.L.P.254/2014, assails the impugned judgment dated
20.02.2013 of the learned ASJ-01, North East, KKD Courts, Delhi in Sessions
Case No.16/12 arising out of FIR No.424/11, PS New Usmanpur wherein the
respondent was acquitted qua the offences punishable under Sections
342/376/511 of the Indian Penal Code, 1860.
2. It is the avowed contention of the State that despite the consistent and
corroborated testimonies of the victim Ms.X aged 5 years examined as PW-4
and the complainant Ms.Y examined as PW-5, - in relation to all material
particulars of the wrongful confinement of the minor girl child PW-4 aged 5
years by the respondent/accused herein with the proved intent of the
commission of acts amounting to an attempt in the commission of rape on the
minor child PW-4, the learned Trial Court has drawn an erroneous conclusion
by grant of misplaced benefit of doubt on aspects which are not germane to
the incident in question of the respondent having attempted to rape the minor
child PW-4 after having wrongfully confined her.
3. The prosecution in the instant case is indicated to have been launched
vide the registration of DD No.40A Ex.PW7/A at PS New Usmanpur at 9.48
PM as per information received from the PCR of rape of a girl child near Som
Bazar at Usmanpur at House no.A-230, Gali No.11, on receipt of which the
Investigation Officer, PW-7 SI Vikrant Sharma along with PW-8, Constable
Banwari Lal reached the spot where PW-5 Ms.Y the neighbor of the victim,
the victim PW-4 Ms.X aged 5 years and PW-6 Mr.Z i.e. the father of the minor
girl child met them. The initial Investigation Officer i.e. PW-7 SI Vikrant
Sharma interrogated them and the minor child PW-4 was taken to the GTB
Hospital for her medical examination with the minor child having been
accompanied by PW-5, the complainant i.e. Ms.Y, PW-6 the father of the child
and PW-8 Constable Banwari Lal. The initial Investigation Officer had called
W/ASI Santosh PW-9 around 11.30 PM to the GTB Hospital whereafter PW-
7 SI Vikrant Sharma had entrusted the investigation to W/ASI Santosh as the
investigation related to a minor girl victim in relation to information of
commission of rape.
4. PW-9 W/ASI Santosh recorded the statement of the complainant PW-5
i.e. Ms.Y as Ex.PW5/A and on the basis of which statement she sent the rukka
Ex.PW9/A at about 2.20 AM on 16.12.2011 through PW-8 Constable Banwari
Lal to the police station for the registration of the FIR. The said statement of
the complainant i.e. Ms.Y, Ex.PW5/A which forms the basis of the registration
of the FIR, which FIR was registered at 5.00 AM on 16.12.2011 is to the effect
that on 15.12.2011 PW-5 i.e. Ms.Y/ the complainant aged 19 years was at her
house at A-230, Gali No.11, Kartar Nagar near the Pushta Som Bazar and at
about 3.00 PM, the respondent/accused Rahul who was the friend of PW-6 i.e.
the friend of the father of the victim came and made tea and took the tea to the
terrace, whereafter, after about 5-6 minutes, PW-5 also went upstairs and
found the room of PW-6 i.e. the room of the father of the victim on the upper
floor bolted from within and she PW-5 i.e. Ms.Y thus peeped from the small
jungla (window) and saw the respondent/accused inside with the victim and
saw that the accused/respondent herein had taken of the pyjami of the minor
child and the accused/respondent herein had also taken of his shirt and she
also saw that the chain of his pant was also open and that the
accused/respondent herein was lying adjacent to the minor child and thus, PW-
5 knocked on the door and then the accused/respondent herein wore his shirt,
opened the door and ran away.
5. PW-5, as per her statement Ex.PW5/A stated that she had inquired from
the prosecutrix and she informed her that the accused/respondent herein had
taken of his shirt and had opened the chain of his pant and was lying down
near her and was kissing her. The complainant has further stated through her
complaint Ex.PW5/A that PW-6 i.e. the father of the minor victim was a tenant
in the room next to her room and as his wife had gone to her village, PW-6 i.e.
the father of the minor child had left the minor child at her house. The
complaint made by PW-5 to the police Ex.PW5/A after she saw the incident
and had made inquiries from the minor child and when the father of the minor
child returned, she informed him of the incident and PW-6 i.e. the father of
the minor child had then called on telephone number 100 whereupon, the
police had taken PW-5 Ms.Y, the minor child PW-4 and the father of the minor
child to the GTB Hospital, where the minor child was medically examined
though the father of the minor child had refused to get the internal examination
conducted.
6. As per Ex.PW2/A i.e. the MLC bearing no.282/11 of the medical
examination conducted of the minor child PW4 at GTB Hospital, Shahdara
Delhi, it was recorded by the doctor to the effect:-
"History given by Father.
Alleged H/o attempt of sexual assault to her daughter
(X) by known person Rahul (father's friend) at
victim's house in Som Bazar at 4.00 PM according to
father- he was not at home at the time of incident [ he
was informed by neighbourer -Ms.Y] He was told that
girl was taken upstairs at around 4.00 PM by Rahul
in one room. The neighbor also went upstairs after 2-
3 min suspecting something & found that the girl pant
was removed and was lying down & Rahul shirt was
also off and his pant's zip was also open. As she
arrived at home Rahul ran away. No H/o
bleeding/discharge p/v after that."
7. It was also indicated vide Ex.PW2/A to the effect that there was no
bleeding/discharge and that the labia majora of the minor child and the hymen
were intact and that there was no physical sign of any injury and that the
attendant was not willing for gynealogical examination and thus internal
examination had not been done. PW-6 i.e. the father of the minor child is also
indicated to have signed Ex.PW2/A.
8. After the learned Trial Court was satisfied about the capacity of the
minor child to understand questions and reply to the same, the minor child
victim PW-4 i.e. Ms.X was examined without oath and stated as follows:-
"PW-4, Ms. X, D/o Mr.Z, aged 5 years, R/o Chakkiwali Gali,
Bhajanpura Market, Delhi. This witness has been examined by
this court for ascertaining her knowledge and capacity of
understanding being child witness by putting some questions as
follows:
Q1: What, is your name?
Ans: My name is 'X'.
Q2. What is the name of your mother?
Ans: My mother's name is Ms. A.
Q3: Where you have come today?
Ans: I have come before the court today.
Q4: With whom you have come to the court?
Ans: I have come with my father.
Q5. What |is your father's name?
Ans: My father's name is Mr. Z.
Q6: What is the name of your school?
Ans: My school's name is Jaya Public School, near P.S.
Khajuri Khas.
Q7: In which class do you study?
Ans: I study in LKG.
Q8: Whether a person should speak true or lie?
Ans: A person must speak true.
Q9: Will you speak true today?
Ans: Yes, I will speak truth.
After getting reply this court is satisfied that this child
witness can understand questions and reply the same.
Without Oath
During the days of incident, I was studying in nursery. Earlier,
I used to reside in the area of Som Bazar, Pusta, near the house
of one lady, namely, Y w/o Shakil. Accused Rahul, present in
the court (correctly identified), is the resident of Gali next to my
house. Accused Rahul had taken me in a room at upper floor,
in front of room of Y in the afternoon hours by alluring me that
he will give me one rupee and toffee and he asked me to lay
down, where, he removed my Pyjami and he also removed his
pant and he laid upon me. Accused had bolted the door of room
from inside. When accused was lying on me, in the meantime,
Aunty, Y, came there and knocked the door, immediately,
accused dressed up and opened the door and ran away. I
narrated the entire incident to aunty Y and when my father
came back at house, firstly, I narrated the incident to him and
then aunty Y had also narrated about the Incident/ Accused
had committed wrong act with me. Father's is like 'Daya'.
Police had arrested accused in my presence after reaching at
his house.
XXX deferred as it is 05:00pm.
(This witness is being examined in child witness court room)
PW-4, Ms. X, D/o Sh.Z, called for cross examination in
continuation of 24.07.2012.
Without Oath
xxx by Sh. Rajiv Ranjan, counsel for accused.
I had come with my father in the court on last date of
hearing. My father had told me that we are going to court. My
father had also told me about the facts of the case. I had
deposed before the court whatever my father had told me.
Court Question: Who had told your father about the facts
of incident?
Ans: One Didi, namely, PW Y, had told the facts of
incident to my father who was aware about the same. One
Shakeel had also come to know about the incident through Smt.
Z. It is wrong to suggest that accused had not committed any
wrong act with me, or that I am deposing at the instance of my
father. It is further wrong to suggest that I am deposing
falsely."
9. Just 7 ½ months from the date of incident, the statement of the child
witness PW-4 Ms.X was recorded on 24.07.2012, when the victim stated that
she was 5 years old and was residing at Chakki Wali Gali, Bhajanpura Market,
Delhi and her statement was categorical to the effect that during the days of
the incident she was studying in nursery and on the date of her examination
she was studying in LKG and at the time of the incident she used to reside in
the area of Som Bazar Pushta near the house of a lady i.e. PW-5 Ms.Y. The
minor child has categorically identified the accused/respondent herein as
being the resident of gali next to her house and categorically testified to the
effect that the accused/respondent herein had taken her to a room on the upper
floor in front of the room of PW-5 Ms.Y i.e. the complainant in the afternoon
hours by luring her that he would give her one rupee and a toffee and asked
her to lie down and then he removed her pyjami and also removed his pant
and he laid upon her and he had bolted the door of the room from inside and
whilst he was lying upon her in the meantime PW-5 came there and knocked
the door and the accused immediately dressed up and ran away and she PW-
4 had narrated the entire incident to PW-5 and when the father of the minor
child came back home, then PW-5 had narrated the entire incident to the father
of the victim.
10. PW-4, this child witness has categorically denied that the
accused/respondent herein had not committed any wrong act with her. She
stated that she had come with her father to the Court on 24.07.2012 when she
was first examined in Court and stated that her father told her about the facts
of the case and that they were going to the Court and that she had deposed
before the Court whatever her father had told her, yet she was categorical in
her denial that she had not deposed at the instance of her father and
categorically denied that she had deposed falsely.
11. PW-5 Ms.Y i.e. the complainant through her statement corroborated her
complaint Ex.PW5/A made to the police in relation to all material particulars
and inter alia stated to the effect:-
"On 15.12.2011, at about 03.00 pm, victim was not
present in my room. I made her search and I reached
near room of victim at first floor. At that time that
room was locked from inside. I peeped inside the
room through window and saw accused Rahul,
present in court (correctly identified), lying on floor
with victim and zip of his pant was open. Pyjami of
the victim lying on the floor. When I raised alarm,
immediately, accused stand up and dressed up and
opened the door. Accused ran away. I went to victim
inside the room and asked her what accused Rahul
was doing with you. She told me that he put off her
Pyjami and kissed her.
Sh. Sunny, father of victim, returned to her house in
the evening from his job place. I had told the
aforesaid facts to him. He immediately informed
police at 100 number. Police officials came at our
house they took me and victim to GTB Hospital,
where, victim was medically examined. Police
recorded my statement, Ex.PW5/A in GTB Hospital
which bears my signature at point A.
Accused Rahul was earlier known to me as he
used to visit as friend of Sunny. On following
morning accused Rahul was arrested by the police. I
do not know the other facts of this case.
There was a small window between the kitchen
and room of Sany which is at the hight of three feet
from the floor. Slow voice of victim was coming from
the room through window, but, I could not
understand what she was saying. As soon as I saw
accused and victim in a room through aforesaid
window, immediately, I raised alarm by beating door
of that room. I did try to call any neighbor as accused
immediately had run away from that room after
making unlock the door when I knocked the room. I
was not able to overpower the accused at that time. I
could not stop the accused as he was more powerful
than me. Vol. There was no other person except me
and victim in the house at that time. I had called the
accused and try to stop him but he run away by
opening the door of the room immediately. When I
had seen inside the room through window of kitchen,
I found accused and victim was lying altogether on
floor inside the room. Accused was not lying on the
victim at that time. Nothing special was seen by me at
that time.
It is wrong to suggest that on the day of
incident, accused had come inside the room of Sunny
or that he had not watched the T.V. there or that he
had not served the tea to me and victim or that he had
not taken the victim in a room of Sunny at first floor
or that I had not searched the victim on that day or
that I had not reached in the kitchen of Sunny at first
floor during search of victim or that I had not seen
through window of kitchen inside the room of Sunny
or that I had not seen accused and victim inside the
room of Sunny at first floor or that I had not beaten
the door of room of Sunny or that accused had not
run away after opening the door of that room in my
presence or that accused did not commit wrong act
upon victim inside the aforesaid room. It is further
wrong to suggest that I had not gone to GTB Hospital
along with victim and police officials for medical
examination of victim. It is further wrong to suggest
that I am deposing falsely at the instance of father of
victim."
12. The testimonies thus, of the minor child PW-4/victim and of PW-5/ the
complainant corroborate each other in relation to all material particulars in
relation to the minor child having been taken to the upper floor of the building
at House no.230, Gali No.11, 4 ½ Pushta, Som Bazar, Kartar Nagar, Delhi in
the afternoon of 15.12.2011 at about 3.00 PM. The testimony of PW-4 asserts
that the accused/respondent herein had bolted the door of the room from inside
and the statement of PW-5 Ms.Y i.e. the complainant states to the effect that
when she made the search for the victim on the first floor, she found that the
room was locked from inside. The minor child PW-4 has stated to the effect
that the accused/respondent herein had removed her pyjami and he had also
removed his pant and he had laid upon her. PW-5 Ms.Y has stated that when
she had peeped inside the room of the victim at the first floor through the
window, she found that the accused/respondent herein was lying on the floor
with the victim and the zip of his pant was open and that the pyjami of the
victim was lying on the floor.
13. PW-4 i.e. the minor victim has stated that when PW-5 knocked at the
door, the accused/respondent herein immediately dressed up, opened the door
and ran away. PW-5 Ms.Y has stated that when she raised an alarm, the
accused/respondent herein stood up, dressed up and opened the door and ran
away. The minor child PW-4 has stated that she narrated the entire incident to
PW-5 and thereafter when her father came back home, PW-5 had narrated the
incident to her father. PW-5 Ms.Y i.e. the complainant has stated that she had
asked what the accused had done to the victim who had told her that he had
put of her pyjami and had kissed her.
14. Apparently, as observed hereinabove and as rightly contended on behalf
of the State, the testimony of the minor child and that of PW-5 are both
categorical in relation to the occurrence of the incident and the confinement
of the minor child in a room on the upper floor of the building at House no.A-
230, Gali No.11, 4 ½ Pushta, Som Bazar, Kartar Nagar, Delhi in which
building both the minor child PW-4 and the complainant PW-5 used to live.
The testimonies of PW-4 & PW-5 also corroborate the factum of the
accused/respondent herein having removed the pyjami of the minor child and
also corroborate each other in relation to the respondent/accused herein having
laid himself adjacent to the minor child and bring forth through the statement
of the minor child that the accused also laid himself on the minor child and
had also been kissing her.
15. The learned Trial Court vide the impugned judgment has observed to
the effect that as per the version of the victim, the accused had taken the victim
to the upper floor in a room in front of the room of PW-5 i.e. the complainant
and PW-5 i.e. the complainant in her statement had stated that the
accused/respondent herein had taken the victim to the second floor but as per
the site plan prepared in the instant case, there was no second floor in that
building and that the site plan reflected only a house and did not mention
whether it was first floor or the second floor or the room where the offence
had been committed. The learned Trial Court has further observed to the effect
that the site plan prepared by the Investigating Officer at the instance of PW-
5 was not corroborated neither by the prosecutrix nor by the Investigating
Officer and that the testimony of PW-7 SI Vikrant Sharma was different from
the testimony of PW-9 W/ASI Santosh and that as per the testimony of PW-6
i.e. the father of the minor child, the house was constructed upto the ground
floor and the first floor and thus, there was no question of the second floor and
in the said circumstances and the learned Trial Court thus observed to the
effect:-
"77. Into the facts of present case site plan was prepared by the
LO. at the instance of PW5 Ms.Y but same is not corroborated
either by prosecutrix or by the I.O. and testimony of PW S.I.
Vikrant Sharma is also different from the testimony of PW9
W/ASI Santosh. As per PW6 house was constructed upto
ground floor and first floor. Hence, there was no question of
second floor. Hence, in these circumstances on careful perusal
of record, this court come to the conclusion that merely on
uncorroborated testimony of child victim conviction of accused
in such case may cause miscarriage of justice. It is true that in
a case of rape testimony of victim inspired the confidence then
conviction can be awarded without corroboration but into the
facts and circumstances of the present case, case of prosecution
rest upon different footings. Hence, judgment relied by Ld.
APP for the State is not applicable into the facts and
circumstances of the present case.
78. It is settled law that prosecution must proved its case beyond
reasonable doubt.
79. Considering the evidence available on record and
testimonies of PWs, this court come to the conclusion that
prosecution has been failed to prove its case beyond reasonable
doubt.
80. In these circumstances, in absence of any evidence, this
court acquit accused Rahul from charges u/s 342/376/511 IPC
by giving him benefit of doubt."
16. Inter alia the learned Trial Court also observed to the effect:-
"75. Since version of PW Ms.Y is not corroborated by testimony
of PW victim and there is serious contradictions in the
testimony PW5 Ms.Y and victim."
17. It has been urged on behalf of the State by the learned Additional Public
Prosecutor, Mr. Ravi Nayak that the testimony of the prosecution witnesses
examined in the instant case bring forth the guilt of the accused/respondent
herein in relation to the commission of the offence punishable under Section
342 & 376 read with Section 511 of the Indian Penal Code, 1860 to the hilt
and that the impugned judgment is fallacious in its observations to the effect
that there were serious contradictions in relation to material particulars qua the
commission of the offence of the confinement of the minor child in a room at
the upper floor of the building in which both PW-4 & PW-5 lived and of the
attempt made by the accused/ respondent herein to rape the minor child in as
much as he had taken of the pyjami of the minor child and laid himself on the
top of the minor child and had taken of his own shirt and had been kissing the
minor child.
18. On behalf of the respondent/accused herein, the learned Amicus curiae
Ms. Manika Tripathy Pandey valiantly and strenuously contended that there
was no infirmity whatsoever in the impugned judgment of the learned Trial
Court and that the testimony of the minor child was apparently a tutored
testimony as brought forth through the statement of the minor child herself
when she stated that she had deposed in Court what her father had told her and
that she had come to the Court with her father and that her father had told her
that they were going to Court. It has thus been submitted on behalf of the
respondent that the testimony of the minor child could not be believed and no
conviction can be based on the same in as much as there are material
contradictions in the testimony of PW-4 i.e. the minor child and that of PW-5
i.e. the complainant as also in the testimony of PW-6 i.e. the father of the
minor child in relation to the place of the occurrence and that there also
variations in the testimony of the prosecution witnesses in relation to the place
of arrest of the accused/respondent herein as well.
ANALYSIS
19. On a consideration of the rival submissions, it is essential to observe as
already observed elsewhere hereinabove that the testimonies of PW-4 & PW-
5 are consistent in relation to all material particulars in relation to the incident
and in relation to the manner of the commission of the offence. The variance
in relation to the floor at which the offence was committed is rendered
insignificant by the factum that the minor child has categorically stated that
the incident took place on the upper floor of the building at A-230, Gali No.11,
4 ½ Pushta, Som Bazar, Kartar Nagar, Delhi. Significantly, the statement of
PW-5 is to the effect that she had looked into the room of the victim when she
had found it locked from inside. On being cross examined on behalf of the
State, in her statement dated 06.09.2012, she stated that there were two rooms
in the possession of the victim family, one is on the ground floor and another
is on the second floor and that the accused had taken the victim in the room in
question at the second floor after taking tea. The minor child has also stated
that the accused had taken her to the room at the upper floor in front of the
room of PW-5. As per Ex.PW5/A, PW-5 stated that when she went after 5-6
minutes after the accused/respondent herein had gone up to the terrace and
when she went towards the upper floor, she looked at the room of PW-6 i.e.
of Mr.Z i.e. the father of PW-4 and found that the room was bolted from inside
and thus, she peeped from the small jungla (window) and she saw the victim
PW-4 and the accused/respondent herein and saw that the accused had taken
of the pyjami of the minor child and that the accused had also taken of his shirt
and that the zip of his pant was open and that the accused was lying next to
the minor child and stated that when she knocked the door, the
accused/respondent herein immediately wore his shirt, opened the door and
ran away. The statement of PW-6 i.e. the father of the minor child is also
categorical to the effect that PW-5 had told him that the accused had taken
the victim to his tenanted room on the first floor and had put of her pyjami
and opened the zip of his pant and that she had also told him that the accused
was lying on victim and when PW-5 had knocked the door of the room, the
accused/respondent herein had immediately ran away from there. It is apparent
thus, that the incident had taken place in the tenanted room of PW-5 situated
at the upper floor of the building and that the purported variations in the
testimonies of PW-4, PW-5 & PW-6 in relation to the place of occurrence are
meaningless and that Ex.PW9/B, the site plan prepared by the Investigating
Officer W/ASI Santosh which does not spell out any number of floors, is
wholly insignificant and rather the said site plan Ex.PW9/B which merely
shows the house no.A-227 situated near Sunny Bazar Road, Gali No.11 and
shows the house at point A as being the place where there was an attempt to
rape the minor victim with the occurrence being near the Shastri Park, Pushta
Road, without even giving the number of floors in the building is
inconsequential and the reliance thereon by the learned Trial Court vide para
77 of its verdict is apparently wholly misplaced.
20. As has been laid down by the Hon'ble Supreme Court in "Jagdish Vs.
State of Madhya Pradesh" in Crl.A. No.378/1975 AIR 1981 SC 1167 where
the discrepancies pointed out are comparatively of a minor character and
which do not go to the root of the prosecution story, they need not be given
undue importance.
21. The verdict of the Hon'ble Supreme Court in "Sachin Kumar
Singhraha Vs. State of Madhya Pradesh" 2019 SCC Online SC 363, has laid
down to the effect that justice ought not to become a casualty because of minor
mistakes committed by the Investigating Officer and that the criminal trial is
to be conducted to ascertain the guilt or innocence of an accused arraigned and
that in arriving at a conclusion about the truth, the Courts are required to adopt
a rational approach and to judge the evidence by intrinsic words and the
animus of the witnesses. The observations in Para 18 of the said verdict read
to the effect:-
"18. At this juncture, we would like to recall that it is well
settled that criminal justice should not become a casualty
because of the minor mistakes committed by the Investigating
Officer. We may hasten to add here itself that if the
Investigation Officer suppresses the real incident by creating
certain records to make a new case altogether, the Court would
definitely strongly come against such action of the
Investigation Officer. There cannot be any dispute that the
benefit of doubt arising out of major flaws in the investigation
would create suspicion in the mind of the Court and
consequently such inefficient investigation would accrue to the
benefit of the accused. As observed by this Court in the case
of State of H.P. v. Lekh Raj, (2000) (1) SCC 247, a criminal
trial cannot be equated with a mock scene from a stunt film.
Such trial is conducted to ascertain the guilt or innocence of
the accused arraigned and in arriving at a conclusion about the
truth, the courts are required to adopt a rational approach
and judge the evidence by its intrinsic worth and the animus of
the witnesses. The courts are not obliged to make efforts either
to give latitude to the prosecution or loosely construe the law in
favour of the accused. The traditional dogmatic hypertechnical
approach has to be replaced by a rational, realistic and genuine
approach for administering justice in a criminal trial."
22. It has also been observed vide para 23 of the said verdict to the effect
that justice cannot be made sterile by exaggerated adherence to the rule of
proof, inasmuch as the benefit of doubt given to an accused must always be
reasonable, and not fanciful and that merely because certain discrepancies in
the evidence and procedure lapses have been brought on record, the same
could not warrant giving the benefit of doubt to the accused.
23. The verdict of the Hon'ble High Court of Sikkim in "Damber Singh
Chhettri vs. State of Sikkim" in Crl.A.05/2017 adverts to the verdict of the
Hon'ble Supreme Court in "State of H.P. Vs. Lekh Raj" (2000) 1 SCC 247
wherein it has been observed to the effect:-
"10. The High Court appears to have adopted a technical
approach in disposing of the appeal filed by the respondents.
This Court in State of Punjab v. Jagir Singh [(1974) 3 SCC 277
: 1973 SCC (Cri) 886] held: (SCC pp. 285-86, para 23)
'23. A criminal trial is not like a fairy tale wherein one is
free to give flight to one's imagination and phantasy. It
concerns itself with the question as to whether the
accused arraigned at the trial is guilty of the crime with
which he is charged. Crime is an event in real life and is
the product of interplay of different human emotions. In
arriving at the conclusion about the guilt of the accused
charged with the commission of a crime, the court has to
judge the evidence by the yardstick of probabilities, its
intrinsic worth and the animus of witnesses. Every case
in the final analysis would have to depend upon its own
facts. Although the benefit of every reasonable doubt
should be given to the accused, the courts should not at
the same time reject evidence which is ex facie
trustworthy on grounds which are fanciful or in the
nature of conjectures.'
The criminal trial cannot be equated with a mock scene
from a stunt film. The legal trial is conducted to ascertain the
guilt or innocence of the accused arraigned. In arriving at a
conclusion about the truth, the courts are required to adopt a
rational approach and judge the evidence by its intrinsic worth
and the animus of the witnesses. The hypertechnicalities or
figment of imagination should not be allowed to divest the court
of its responsibility of sifting and weighing the evidence to arrive
at the conclusion regarding the existence or otherwise of a
particular circumstance keeping in view the peculiar facts of
each case, the social position of the victim and the accused, the
larger interests of the society particularly the law and order
problem and degrading values of life inherent in the prevalent
system. The realities of life have to be kept in mind while
appreciating the evidence for arriving at the truth. The courts
are not obliged to make efforts either to give latitude to the
prosecution or loosely construe the law in favour of the accused.
The traditional dogmatic hypertechnical approach has to be
replaced by a rational, realistic and genuine approach for
administering justice in a criminal trial. Criminal jurisprudence
cannot be considered to be a utopian thought but have to be
considered as part and parcel of the human civilisation and the
realities of life. The courts cannot ignore the erosion in values of
life which are a common feature of the present system. Such
erosions cannot be given a bonus in favour of those who are
guilty of polluting society and mankind."
(Emphasis supplied)
24. The verdict of the Hon'ble Supreme Court in "Zahira Habibullah
Sheikh Vs. State of Gujarat" (2006) 3 SCC 374 also lays down to the effect:-
"37. A criminal trial is a judicial examination of the issues in
the case and its purpose is to arrive at a judgment on an issue
as to a fact or relevant facts which may lead to the discovery of
the fact in issue and obtain proof of such facts at which the
prosecution and the accused have arrived by their pleadings;
the controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to convict
the guilty and protect the innocent, the trial should be a search
for the truth and not a bout over technicalities, and must be
conducted under such rules as will protect the innocent, and
punish the guilty. The proof of charge which has to be beyond
reasonable doubt must depend upon judicial evaluation of the
totality of the evidence, oral and circumstantial, and not by an
isolated scrutiny."
25. The verdict of the Hon'ble Supreme Court in "Dhanaj Singh vs. State
of Punjab" (2004) 3 SCC 654 observes categorically to the effect that
defective investigation does not itself suffice to acquit an accused person in as
much as it is for the Court to examine de hors the omissions committed by the
investigation agency to find out whether the evidence put forth is reliable or
not. The observations of the Hon'ble Supreme Court in "Dhanaj Singh vs.
State of Punjab" (supra) are to the effect:-
"5. In the case of a defective investigation the court has to be
circumspect in evaluating the evidence. But it would not be
right in acquitting an accused person solely on account of the
defect; to do so would tantamount to playing into the hands of
the investigating officer if the investigation is designedly
defective. (See Karnel Singh v. State of M.P. [(1995) 5 SCC 518
: 1995 SCC (Cri) 977] )
6. In Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999
SCC (Cri) 104] it was held that if the lapse or omission is
committed by the investigating agency or because of negligence
the prosecution evidence is required to be examined dehors
such omissions to find out whether the said evidence is reliable
or not, the contaminated conduct of officials should not stand
in the way of evaluating the evidence by the courts; otherwise
the designed mischief would be perpetuated and justice would
be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v. State of Bihar
[(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] if primacy is given
to such designed or negligent investigation, to the omission or
lapses by perfunctory investigation or omissions, the faith and
confidence of the people would be shaken not only in the
lawenforcing agency but also in the administration of justice.
The view was again reiterated in Amar Singh v. Balwinder
Singh [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] ."
26. The verdict of the Hon'ble Supreme Court in "Bhagwan Jagannath
Markad vs. State of Maharashtra" (2016) 10 SCC 537 categorically lays
down to the effect that the evidence of a witness has to be appreciated to assess
whether read as a whole and that normal discrepancies do not affect the
credibility of a witness, it is truthful and an exaggeration of the rule of the
benefit of doubt can result into miscarriage of justice and that letting the guilty
escape is not doing justice and that a judge presides over a trial not only to
ensure that no innocent is punished but also to see that the guilty does not
escape. As observed in "Damber Singh Chhettri vs. State of Sikkim" (supra)
vide para 13, which reads to the effect:-
"13. Certain salutary principles of criminal jurisprudence in
appreciating evidence must be noted from the judgments
rendered by the Supreme Court. The Court is mandated to
perform the task of ascertaining the truth from the materials
before it. The Court has to punish the guilty and protect the
innocent. The investigating agency is required to be fair and
efficient. However, any lapse in investigation cannot per se be
a ground to discard the prosecution case when overwhelming
evidence is available to prove the offence. It is vital to examine
evidence keeping in mind the setting of the crime. Appreciation
of deposition of witnesses must be done keeping in mind this
vital aspect. If the scene of crime is rural and the witnesses are
rustics their behavioural pattern and perceptive habits are
required to be judged as such. Very sophisticated approach
based on unreal assumptions about human conduct should not
be encouraged. Discrepancies and minor contradictions in
narrations and embellishments cannot militate against the
veracity of the core of the testimony. However, a trained
judicial mind must seek the truth and conformity to probability
in the substantial fabric of testimony delivered. Overmuch
importance cannot be given to minor discrepancies. Witnesses'
do not all have photographic memory and sometimes, more
often than not, are overtaken by events. A witness may also be
overawed by the Court atmosphere and the piercing cross-
examination. Nervousness due to the alien surroundings may
lead to the witness being confused regarding sequence of
events. Witnesses are also susceptible to filling up details from
imagination sometimes on account of the fear of looking
foolish or being disbelieved activating the psychological
defence mechanism. Quite often improvements are made to the
earlier version during trial in order to give a boost to the
prosecution case. Discrepancies which do not shake the
foundation facts may be discarded. Merely because there are
embellishments to the version of the witness the Court should
not disbelieve the evidence altogether if it is otherwise
trustworthy. It is almost impossible in a criminal trial to prove
all the elements with scientific precision. A Court could be
convinced of the guilt only beyond the range of a reasonable
doubt. Proof beyond a reasonable doubt is the same as proof
which affords moral certainty to the Judge. Doubt to be
reasonable must be of an honest, sensible and fair-minded man
supported by reason with a desire to ascertain the truth. An
honestly entertained doubt of guilt is a reasonable doubt. While
appreciating the evidence of a witness the Court must ascertain
whether the evidence read as a whole appears to be truthful. It
is only when discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the Court
may discard his evidence. Section 155 of the Indian Evidence
Act, 1872 indicates that all inconsistent statements are not
sufficient to impeach the credit of the witness. To contradict a
witness must be to discredit the particular version of a witness.
In arriving at the conclusion about the guilt of the accused the
Court has to judge the evidence by the yardstick of
probabilities, its intrinsic worth and the animus of witnesses.
Even if a major portion of the evidence is deficient, in case the
residue is sufficient to prove guilt of the accused his conviction
can be maintained. It is the duty of the Court to separate the
grain from the chaff. Exaggerating the rule of benefit of doubt
can result in miscarriage of justice. Just because a close
relative is a witness it is not enough to reject her/his testimony
if it is otherwise credible. A relation may not conceal the actual
culprit. The evidence can be closely scrutinized to assess
whether an innocent person is falsely implicated."
27. The verdict of the Hon'ble Supreme Court in "Smt. Shamin vs. State
(GNCT of Delhi" in Crl.A. No.56/2018 decided on 19.09.2018 observes to
the effect:-
"15. Each criminal trial is but a quest for search of the truth.
The duty of a judge presiding over a criminal trial is not merely
to see that no innocent person is punished, but also to see that
a guilty person does not escape. One is as important as the
other. Both are public duties which the Judge has to perform.
The trial court had erred and misappreciated the evidence to
arrive at an erroneous conclusion."
28. It is apparent thus, that in the circumstances of the instant case where
the testimonies of PW-4 & PW-5 are consistent in relation to all material
particulars qua the incident, the discrepancies in relation to the floor on which
the incident occurred is insignificant. The deficiency in the site plan
Ex.PW9/B prepared by W/ASI Santosh and the factum that the Investigating
Officer chose not to record the statement of the minor child under Section 164
of the Cr.P.C., 1973 are insignificant to render the consistent and cogent
corroborated testimonies of PW-4 & PW-5 sterile. Rather the testimonies of
PW-4 & PW-5 clinch the guilt of the accused to the hilt qua the commission
of the offence of wrongful confinement of the minor child PW-4 with an intent
to commit rape on the minor child in as much as all acts had been made by the
accused/respondent herein in furtherance of his intent to commit rape by
taking of the pyjami of the minor child, by taking of his own shirt, by opening
the zip of his pant and by his lying down on the minor child and by kissing the
minor child and lying adjacent to the minor child after having bolted the room
of the minor child on the upper floor of her building.
29. In the circumstances, the refusal of PW-6 i.e. the father of the minor
child for getting the medical examination conducted of the minor child loses
significance, in as much as there had been no commission of rape but rather
there had been an attempt to commit rape on the minor child. As regards the
observations of the learned Trial Court that the testimony of the minor child
could be tutored and could not be relied upon, it is essential to observe that the
testimony of the minor child as PW-4 in her cross-examination categorically
states to the effect:-
"It is wrong to suggest that accused had not committed any
wrong act with me, or that I am deposing at the instance of my
father. It is further wrong to suggest that I am deposing
falsely."
30. Thus, the minor child has categorically refuted the contention raised on
behalf of the accused/respondent herein that she had testified at the behest of
her father and has also denied that she has testified falsely.
31. As regards the observations of the learned Trial Court to the effect that
the testimony of the minor child without corroboration in the circumstances of
the case where there are discrepancies in relation to the floor where the
incident took place and there was an inconsistency and incomplete description
in the site plan Ex.PW9/B and that thus, the accused/respondent herein could
not be convicted for the commission of the offences with which he was
charged and was liable to be acquitted qua the analysis of the testimony of the
child witness, it is undoubtedly true that in terms of Section 118 of the Indian
Evidence Act, 1872, the testimony of the child witness has to be subjected to
the closest scrutiny and can be accepted only when the Court comes to the
conclusion that the child understands the questions put to him/her and is
capable of giving rational answers. In the instant case, the learned Trial Court
itself at the time of examination of the minor child has observed to the effect
that the minor child was capable of understanding questions put to her and the
learned Trial Court had also ascertained the aspect of the understanding of the
minor child to speak the truth before the statement of the minor child was
recorded in the instant case. The minor child has categorically denied the
suggestion put to her that she has deposed at the instance of her father.
The child aged 5 years who is capable of stating that her father had told her
what she had to depose and that she had come with her father to the Court on
the previous date of hearing and who is in a capacity to deny that she had not
deposed as per what was told to her by her father is clearly and evidently a
truthful witness whose testimony cannot be negated on the grounds of grant
of "benefit of doubt" which benefit of doubt is on an erroneous misreading
and mis-appreciation of the evidence on record and certainly does not fall
within the ambit of the grant of 'a reasonable doubt' and as observed by the
Hon'ble Supreme in "State of HP Vs. Lekh Raj" (supra), it is the benefit of
every reasonable doubt which is to be given to an accused but at the same time
the Courts ought not to reject evidence which is ex facie trustworthy on
grounds which are fanciful or in the nature of conjectures.
32. The verdict of the Division Bench of this Court in "Baljeet Singh and
Ors. Vs. State of Delhi & Ors." in Crl.A. Nos.386,486,487 & 1080 of 2011
lays down to the effect that the competency of a child witness to give evidence
is not regulated by the age but by the degree of understanding, he/she appears
to possess. The observations in Paragraphs 88, 89 & 90 of the said verdict read
to the effect:-
"88. We think that, under the circumstances of this case, the
disclosures on the voir dire were sufficient to authorize the
decision that the witness was competent, and therefore, there
was no error in admitting his testimony. Thus the general
principles of appreciating the child witness having regard to
Section 118 of the Evidence Act aptly transpire that the
evidence of a child witness has to be subjected to the closest
scrutiny and can be accepted only if the court comes to the
conclusion that the child understands the questions put to him
and he is capable of giving rational answers.
89. Children are the most vulnerable faction of the society and
by reason of their tender age definitely are considered to be a
pliable witnesses. There is no denying the fact that each child
is different and possesses varied level of interests and intellect.
In today's fast paced world, where children are exposed to
media, one cannot doubt their cognition levels. Not every child
possesses sufficient understanding of nature and the
consequences of his acts, but the same cannot negate the
intellect capabilities of those who can, very well grasp the state
of affairs and maintain a vision of the same in their minds.
90. One of the issues marring the growth of our country is the
evil of child sexual abuse which we hear very often. The
POCSO Act, 2013 was therefore formulated in order to
effectively address the heinous crimes of sexual abuse and
sexual exploitation of children. There lies no iota of doubt that
it takes great amount of grit and courage to distinctly explain
the horrendous incident that a child is made to go through
because of certain ruthless section of the society. A child
however even at a tender age does possess the ability to answer
the questions put to her/ him spontaneously if she/he was
present at the site of crime or if he/ she has been a victim
herself. It is even the courts duty to be sensitive towards the
child as the courtroom proceedings are alien to him and it may
have a more stressful and terrifying effect which may create a
fear in his mind rendering him unable to speak about the
incident. It is for the court to adjudge the grasping abilities of
children, their tendency to fantasise and their susceptibility to
coaching, which are certain factors that need careful
examination on case to case basis. Therefore, the court must be
satisfied that the attendant circumstances do not show that the
child was acting under the influence of someone or was under
a threat or coercion. Careful evaluation of the evidence of a
child witness in the background of facts of each case in context
of other evidence on record is inescapable before the court
decides to rely upon it."
and are germane and relevant to the facts and circumstance of the instant case.
It is essential to observe that in the instant case PW-4, the child witness is
not a mere witness to the incident but is the victim herself. In such
circumstances, it is apparent that her testimony is a vivid recount of
whatever took place with her.
33. The verdict of the Hon'ble Supreme Court in "Nivrutti Pandurang
Kokate and Ors. Vs. State of Maharashtra" AIR 2008 SC 1460 categorically
observes to the effect:-
"8. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997)
5 SCC 341] it was held as follows: (SCC p. 343, para 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 demeanour must be like any other competent
witness and there is no likelihood of being tutored."
The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who
notices his manners, his apparent possession or lack of
intelligence, and the said Judge may resort to any examination
which will tend to disclose his capacity and intelligence as well
as his understanding of the obligation of an oath. The decision
of the trial court may, however, be disturbed by the higher court
if from what is preserved in the records, it is clear that his
conclusion was erroneous. This precaution is necessary
because child witnesses are amenable to tutoring and often live
in a world of make-believe. Though it is an established
principle that child witnesses are dangerous witnesses as they
are pliable and liable to be influenced easily, shaken and
moulded, but it is also an accepted norm that if after careful
scrutiny of their evidence the court comes to the conclusion that
there is an impress of truth in it, there is no obstacle in the way
of accepting the evidence of a child witness."
34. The facts and circumstances of the instant case clearly point out thus, to
the commission of the offence of wrongful confinement of the minor child by
the respondent/accused herein by bolting the room under the tenancy of the
father of the minor child which room was situated on the upper floor of the
building in which the minor child and PW-5 lived, and also points out to the
guilt of the accused in the commission of an attempt to commit rape on the
minor child by the accused/respondent herein having committed acts in
furtherance of the commission of such an attempt in commission of the rape
on the minor child by opening the zip of his pant, by removing the pyjami of
the minor child, by lying himself on the minor child and by kissing the minor
child and by taking of his shirt of any by lying down next to the minor child.
That PW-4 & PW-5, the minor victim and the complainant respectively
are truthful witnesses, is brought forth from the factum that they do not
even attempt to whisper that the accused/respondent herein committed
rape on the minor child and have stopped at stating to the extent that the
incident took place only.
35. The impugned judgment is thus, a total negation in the quest for
search of truth and overlooks the cardinal principle that the duty of a
judge presiding over a criminal trial is not merely to see that no innocent
person is punished but also to see that the guilty person does not escape
and that both the public duties are equally important.
36. As laid down by the Hon'ble Supreme Court in "Smt. Shamin vs. State
(GNCT of Delhi)" (supra) small/ trivial omissions in testimonies of witnesses
do not justify a finding by the Court that the testimonies of the witnesses
cannot be relied upon and that minor discrepancies on trivial matters not
touching the core of the case with a hypertechnical approach by taking
sentences torn out of context here or there from the evidence, attaching
importance to some technical errors without going to the root of the matter
does not permit ordinarily the rejection of the evidence as a whole and rather
what is to be considered is whether those inconsistencies go to the root of the
matter or whether they pertain to insignificant aspects and that though, the
defence may be justified in seeking advantage of incongruities obtaining in
the evidence if they relate to the root of the matter, where they relate to
insignificant aspects, no benefit of doubt is available in relation thereto.
37. The learned Trial Court has observed to the effect that it was improbable
in a city like Delhi that a person would not come on the happening of such an
incident especially with the girl child and that the Investigating Officer could
not prove that her application for medical examination was available on the
record, are the aspects of investigation which in the facts and circumstances
of the instant case do not suffice to negate the guilt of the accused/respondent
herein, which is established through the testimonies of PW-4 & PW-5 to the
hilt. The requirement of corroboration to the testimony of the minor child in
the facts and circumstances of the instant case, which was apparently
considered essential by the learned Trial Court is a misreading and mis-
appreciation of the entire evidence on record and is in fact adding insult to
injury. As laid down by the Hon'ble Supreme Court in "State of Punjab Vs.
Gurmit Singh & Ors." 1996(20) ACR 220(SC), corroboration as a condition
for judicial reliance on the testimony of the prosecutrix is not a requirement of
law but a guidance of prudence under given circumstances and that it cannot
be overlooked that a woman or a girl subjected to sexual assault is not an
accomplice to the crime but is a victim of another person's lust and it is
improper and undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice. It has also been observed
by the Hon'ble Supreme Court herein in the said verdict to the effect that
Courts cannot cling to a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of sex crime strikes the
judicial mind as probable and that inferences had to be drawn from a given set
of facts and circumstances with realistic diversity and not dead uniformity lest
that type of rigidity in the shape of rule of law is introduced through a new
form of testimonial tyranny making justice a casualty.
CONCLUSION
38. In the circumstances thus, the acquittal of the respondent/accused herein
in relation to the commission of the offence punishable under Section 342 &
376 read with Section 511 of the Indian Penal Code, 1860, in relation to FIR
No.424/11, PS New Usmanpur in Sessions Case No.16/12 vide the impugned
judgment 20.02.2013 of the learned ASJ-01, North East, KKD Courts, Delhi
is thus, set aside and the respondent/accused herein is convicted for the proved
commission of the offences punishable under Section 342 & 376 read with
Section 511 of the Indian Penal Code, 1860, and is directed to be taken into
custody.
ANU MALHOTRA, J.
SIDDHARTH MRIDUL, J.
APRIL 30, 2019/NC
