Delhi High Court
State vs Amar Pal on 9 December, 2019
#2
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered On: 09.12.2019
CRL.A.1309/2013
STATE ..... Appellant
Versus
AMAR PAL ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ashish Dutta, APP with Inspector Vikram Singh, Police Station -
Sangam Vihar
For the Respondent : Mr. Kedar Yadav, Mr. Harkaran Singh and Mr. Sanjeev Kumar
Baisoya, Advocates
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE I.S. MEHTA
JUDGMENT
SIDDHARTH MRIDUL, J. (OPEN COURT)
1. The State having been granted leave to appeal in CRL.L.P.304/2012
vide order dated 09.10.2013, assails the impugned judgment dated
18.07.2011, rendered by the learned Additional Sessions Judge-01,
Designated Judge : TADA/POTA/MCOCA, Saket Courts, New Delhi in
Sessions Case No.13/09, titled as 'State vs. Amar Pal' arising out of FIR
No.560/08, Police Station- Sangam Vihar, whereby the solitary accused
(hereinafter referred to as the 'respondent'), was acquitted qua the
commission of offences punishable under Sections 376/506 of the Indian
Penal Code, 1860 (hereinafter referred to as 'IPC').
2. It is the case of the prosecution that on a report, at about 12:05 AM, on
the night intervening 8/9.10.2008 --- recorded by S-50 through wireless set
--- an information of a quarrel at C-10, Lal Kuan was received, which was
registered as DD No.38 (Ex.PW.7/A) at Police Post Pul Prahladpur Police
Station- Sangam Vihar; and on the basis of which FIR No.560/2008 dated
09.10.2008, under Sections 376/506 IPC was subsequently registered at the
Police Station Sangam Vihar.
3. Head Constable Prahlad Singh PW-12 testified that on 09.10.2008,
when he was posted at Police Post Pul Prahladpur, Police Station - Sangam
Vihar, on receipt of the said DD No.38 Ex.PW.7/A, he along with Constable
Sanjay Kumar PW-13 went to the spot at C-18/B, Lal Kuan, Chungi No.13,
New Delhi. The minor prosecutrix X PW-1, aged about 11 years, along with
her father Upender Yadav PW-2 and mother Sunita Devi PW-6, met him at
the spot, where several public persons had also gathered. The father and the
public persons handed over to the police, the respondent Amar Pal, son of
Chanda Ram, who had been beaten up by them; and whose name was
revealed upon sustained enquiry. Upender Yadav PW-2, the father of the
minor victim X simultaneously gave a complaint to the effect that, the
respondent Amar Pal had committed rape upon his minor daughter,
prosecutrix X. On this complaint, Head Constable Prahlad Singh PW-12,
informed the In-charge of Police Post Pul Prahladpur, Sub-Inspector Nirbhay
Kumar; and thereafter took the minor victim X along with her parents, as
well as, the respondent to All India Institute of Medical Sciences (hereinafter
referred to as 'AIIMS') for their medical examination. Head Constable
Prahlad Singh PW-12 was accompanied by Constable Sanjay Kumar PW-13,
at that time.
4. The minor victim X was medically examined at the AIIMS vide MLC
Ex.PW.14/A, by Dr. Ajit Singh PW-14. The respondent Amar Pal was also
medically examined vide MLC Ex.PW.11/A by Dr. Akhilesh Raj PW-11.
All the exhibits, including the underwear of the minor victim X, her vaginal
swab, as well as, the underwear of the respondent Amar Pal and his blood
sample in gauze with penile swab, given by the examining doctors, were
seized by W/SI Satish Bhati, Investigating Officer PW-16. W/SI Satish
Bhati PW-16 recorded the statement of the minor victim X and prepared the
rukka Ex.PW.16/A, which was sent to Police Station Sangam Vihar through
Constable Sanjay Kumar PW-13 for the registration of the subject FIR.
5. The respondent was also sent to the Police Station along with Head
Constable Prahlad; and the minor victim X was taken to the scene of crime,
where the site plan Ex.PW.16/B was prepared.
6. The subject rukka , which was exhibited as Ex.PW.16/A recorded the
complaint of the victim as follows:-
"बयान अजाने 'minor victim X' (sic) d/o ` Ʌġ यादव R/o C-10 B चग
ुं ी न.
3 लाल कुआँ नई Ǒã ȣ ȡ` Ĩ 11 साल बयान ͩ ȡ ͩ ɇपता ` ȪÈ पर
अपने माता ͪ ȡके साथ रहती हूँ और पांचवी ¢ ȡ Ʌपढ़ती हूँ। आज Ǒ ȡȲ
8/9.10.2008 को ȯȣमाता जी मझ
ु े व ȯȣ Ȫȣबहन ȡͪğȢ को अपने घर Ʌ
सोता हुआ छोड़ कर बाहर से ǕÖȢलगा कर मेरे ͪ ȡ Ȣजो ͩ परचन
ू ȧदक
ु ान
करते ¡ ɇउनके पास ȣगयी थी जो समय ȣ 11.30 बजे रात जब हम Ȫ ɉ
¡ Ʌअपने कमरे Ʌपलंग पर सोई हुई थी तो एक लड़का मेरे कमरे Ʌदरवाजा
खोलकर आया व मझ ु े दस
ू रे कमरे Ʌले गया व पलंग पर डाल Ǒ ȡ और कहने
लगा ͩ तू जीना चाहती है ͩ मरना चाहती है तो ɇ ȯकहा ͩ ɇजीना चाहती हूं
तो उसने मेरे ȣ पर पहने हुए कपडे को è Ȣउतार Ǒ ȡव ȯȣमुंह अपने
हाथ से दबाकर बंद कर Ǒ ȡव अपने ǕÜ ȡȲ को ȯȣ ȪǓ Ʌडाल Ǒ ȡतथा मेरे
मँह
ु को जोर से बंद कर Ǒ ȡिजसके कारण ɇशोर ¡ ȣȲमचा ȧ@िजसने मेरे
ȸके ͨ ȡ è Ȣमेरे साथ ȡ× ȡ ͩ ȡ(करता रहा) जो इतनी दे र
Ʌ¡ ȣ मेरे माता ͪ ȡ आ गए व बाहर से दरवाजा खटखटाने लगे। तो वह मुझे
ǒ è पर ¡ ȣ छोड़कर दरवाजा खोलने चला गया। जो मेरे माता ͪ ȡ ने उसे
पकड़ ͧ ȡव शोर मचा Ǒ ȡ िजससे पडोसी भी आ गए ǔ Û¡ ɉ ȯउस लड़के को
मारा पीटा िजसका नाम पता अब अमर पाल s/o चंदा राम r/o गाँव अनंगपुर
िजला ¡ ǐ ȡ ȡ मालूम हुआ है िजसने मेरे घर Ʌघुस कर ȯȣ ȸ के ͨ ȡ
मेरे साथ è Ȣ ȡ× ȡ ͩ ȡ है , इसके ͨ ȡ कानूनी ȡ [ ȡ¡ ȣ ȧ
जाये।
Į Ȣ ȡ Duty Officer, PS Sangam Vihar, New Delhi बकार सरकार Ǔ ȯ है
ͩ इमरोज़ समय ȣ 12.30 बजे रात मन SI को ǐ ȡTele Mobile IC PP
Ĥ Ȣ × न.D-3630 ने ȡ¡ ǕÈ SHO संगम ͪ¡ ȡ ^× ȡ ȣ ͩ ȫ ȧ
पुल Ĥé ȡ पुर H.NO.C-10/B चग ुं ी न.3, लाल कुआँ नई Ǒã ȣ Ʌएक minor
° ȧके साथ ȡ× ȡ ͩ ȡगया है जो ° ȧव Ǖǔã« ` ȪÈ को लेकर
HC Ĥé ȡ न.577/SD व Ct. संजय कुमार न.848/SD गए ¡ ɇजो ^× ȡͧ ȯ
पर मन SI AIIMS, New Delhi पहुंची जहाँ पर victim 'prosecutrix X' (sic)
d/o ` Ʌġ यादव r/o C-10/B, चग
ुं ी न.3 लाल कुआँ नई Ǒã ȣ Ǖ ȡͩ हुए िजसका
बयान ¡ ȡͧ ͩ ȡ गया व MLC No.CS 89425/08 पर victim ` ȪÈ का
medical examination कराया गया व alleged person अमर पाल s/o चंदा r/o
गाँव अनंगपुर ȣȡ ȡ, ¡ ǐ ȡ ȡ का भी medical examination MLC
No.CS89426/08 पर कराया व exhibits ¡ ȡͧ ͩ ȯगए। जो बयान Ǖè हजा
व मुलायजा MLC से ȯ è सूरत Ǖ [u/s 376/506 IPC का सरज़द होना पाया
जाता है ͧ ¡ ȡ ȡ ¡ ȣ हजा बगरे ज़ कायमी मुक़दमा è Ct. संजय न.
848/SD अरसाल थाना है । मुक़दमा [ ǔ è करके नंबर ` ȪÈ से
^× ȡȣजाये। मन SI रवाना मौका का होती हूँ।
ता. È वकुआ : 08.10.08 at about 11.30 a.m.
जाय वाकुआ : H.NO.C-10 B, चुंगी न. 3, लाल कुआँ, नई Ǒã ȣ
ता व È रवानगी ¡ ȣ : 4.30 a.m. dt. 09.10.08.
Satish Bhati, SI
No.D-1221
PIS No.28850055
Dt. 09.10.08
DD No.38A at 05.15 a.m.
FIR 560/08 u/s 376/506 IPC
Sd/-
ASI/DO
PS Sangam Vihar
Dt. 09.01.08."
7. W/SI Saitsh Bhati PW-16 then went to Police Station and arrested the
respondent vide arrest memo Ex.PW.1/B dated 09.10.2008. On the very
next day i.e. the 10.10.2008, the statement of the minor victim X, under
Section 164 Cr.P.C., was recorded by the learned Metropolitan Magistrate,
Patiala House Courts, New Delhi vide Ex.PW.5/A, which reads as follows:-
"Statement of 'minor victim' X (sic) d/o Upender Yadav, r/o
Lal Kuan, Chungi No.3, Sangam Vihar, Delhi.
08.10.2008 बुधवार रात 11.30 बजे ȯȣमाँ मुझे व ȯȣबहन को खाना
ͨ ȡ व सुलाकर दक
ु ान पर मेरे ͪ ȡ Ȣके पास, बहार से ǕÖȢलगा
कर गयी थी। ͩ अंदर एक आदमी घुस गया। वह मुझे उठा कर दस
ू रे
कमरे Ʌले गया। उस आदमी ͩ कहा लड़के ने मेरा मँह
ु बंद कर Ǒ ȡ@
उसने मुझे कहा ͩ तू जीना चाहती है तो अपनी Í Ȥ(Under Wear)
खोल। उस लड़के ने ȯȣ Í Ȥ è Ȣ खोल ȣ@ͩ उसने अपने
पेशाब करने ȡ ȣचीज़ ȯȣ ȪǓ Ʌडाल ȣ@मुझे खून Ǔ ȯलगा।
इतनी दे र Ʌमेरे à Ȣपापा आ गए। मेरे पापा ने दरवाजा खटखटाया।
थोड़ी दे र बाद उस लड़के ने दरवाजा खोला। मेरे à Ȣपापा ने उस लड़के
को पकड़ ͧ ȡ@ हमारे पडोसी भी आ गए ǔ Û¡ ɉ ȯउस लड़के को मारा।
मझ
ु े बाद Ʌलड़के का नाम ͧǕ ȫ ȧ Ʌपता लगा। उस लड़के का
नाम अमर पाल है जो मझ
ु े ͧǕ ȫ ȧ Ʌपता लगा। उसी लड़के ने मेरे
साथ गलत काम ͩ ȡहै ।
Certified that the statement of 'minor victim' (sic) has been
recorded by me in my own handwriting. The same is true and
correct account of statement made by 'the minor victim' (sic)
d/o Upender voluntarily to me. Nothing has been added or
substracted by me in recording the statement of 'the minor
victim' (sic).
Sd/-
M.M.
10.10.08
The record of the proceedings be sent to the court concern in
a sealed cover bearing the seal of N.K.
Sd/-
M.M.
10.10.08
8. The exhibits qua the respondent and the minor victim X were sent to
the Forensic Science Laboratory and results therefrom were obtained vide
Ex.PW.10/A and Ex.PW.10/B respectively. W/SI Satish Bhati also had the
bone age x-ray of the minor victim X conducted at the AIIMS and the results
thereto were obtained vide Ex.PW.4/A.
9. The birth certificate qua the minor victim X, was also obtained from
the school first attended by her i.e. Municipal Corporation Primary School,
Lal Kuan Gaon Chungi No.2 --- Girls, vide seizure memo Ex.PW.2/A,
accompanied by the certified school certificate Ex.PW.2/B, issued by the
Principal of the said school.
10. After recording the statement of the witnesses and completion of the
investigation, charge sheet for the commission of the offences under
Sections 376/506 IPC was prepared and filed against the respondent, by the
prosecution.
11. The trial court vide its order dated 18.03.2009, framed charges against
the respondent for the commission of offences under the provisions of
Sections 376/506 IPC, to which the latter pleaded not guilty and claimed
trial.
12. In order to establish its case against the respondent beyond doubt, the
prosecution examined 16 witnesses, in all.
13. The statement of the respondent under Section 313 Cr.P.C. was
recorded thereafter, wherein he denied the case of the prosecution in toto and
stated that he has been falsely implicated in this case.
14. It was the admitted case of the respondent that, although he was
present at the spot where the commission of the offence is stated to have
occurred, he was there owing to a quarrel between him and a local person at
about 11:00 p.m. on 08.10.2008; and that he had suffered injury on his
person, as opined vide MLC Ex.PW.11/A, as a consequence thereof.
15. The respondent, chose to examine DW-1 Smt. Meera Devi on his
behalf in his defence, who testified as follows:-
"17.03.2011/DW.1
DW-1 : Statement of Smt. Meera Devi w/o Sh. Rambilas
Shah, Aged about 40 years, R/0 C-18, Near Chungi No.3, Lal
Kuan, New Delhi, Education: Illiterate, Profession: House
wife.
On SA.
On 08.10.2018 at about 11.00 pm. I was standing at the door
of my above house. A young boy in a drunken condition
came from Chungi no. 03 and pass through our Gali as he
reached at the edge of Gali, an altercation took place in
between some local boy standing at the edge of the Gali with
the drunken person, the accused present in the court today.
The altercation turned into a quarrel and beating meanwhile,
some local residents also joined the fray. In the quarrel, the
said drunken person sustained injury on his person. Someone
made a call to the police. The police personnel arrived at the
spot C-18, near Chungi No.3, Lal Kuan, New Delhi, took the
injured person to the police chowki. Later on, some local
resident also went to the police chowki. Since, the liquor shop
situated at Chungi No. 3, Lal Kuan, nearby the locality, such
type of quarrel frequently took place between the local
resident and drunken persons.
XXXX by Sh. S.K. Raghuvanshi, Ld. Addl. Public Prosecutor
for State.
It is correct that although quarrel used to take place frequently
but no case of this type ever registered after quarrel.
Sd/-
ASJ/17.03.2011
30.03.2011
DW: Statement of Smt. Meera Devi recalled for cross-
examination in continuation of testimony recorded on
17.03.2011.
On SA.
XXX by Sh. S.K. Raghuvanshi, Ld. Addl. Public Prosecutor
for State.
It is correct that although quarrel used to take place frequently
but no case of this type ever registered after quarrel.
Sd/-
ASJ/30.03.2011"
16. The learned trial court having considered the evidence on record and
heard learned counsel appearing on behalf of the parties, opined that the
minor victim X appeared to be tutored witness and resultantly, it was not
safe to rely on her testimony. The trial court, therefore, held that the
prosecution had failed to prove its case against the respondent beyond
reasonable doubt and acquitted the latter of both the charges framed against
him under Sections 376/506 IPC, as aforementioned.
17. The State, aggrieved by the impugned judgment, assails the
irregularity, legality and correctness thereof, inter alia, on the following
grounds:-
A. That the impugned judgment/order passed by the
Ld. Trial Court is contrary to law and facts
established on record. The Ld. Trial Court did not
properly appreciate the evidence on record and
erred in acquitting the respondent of the offences
under Section 376/506 IPC although clear and
cogent evidence was brought on record to prove
that offence was committed by respondent.
B. That the impugned judgment is erroneous as the
same is based on surmises and conjectures without
any cogent evidence that prosecutrix's statement is
not reliable and she has been tutored without there
being any material before the Hon'ble Court for
drawing such conclusion.
C. That the finding in the impugned judgment that the
identification of accused by prosecutrix on
04.11.2009 was not reliable as she had not
identified him on 21.05.2009, is bad in law
particularly when on 04.11.2009, she fully
explained the reason for not identifying accused on
21.05.2009. The reason advanced by her in detail
was that the relatives of accused who were present
outside court on 21.05.2009 had threatened to kill
her if she identified the accused in court. This
explanation of the prosecutrix appears to be most
reasonable and appeals to prudence. In fact the
Trial Judge ought to have considered the full
testimony of the prosecutrix and also the other
facts that accused was arrested from the spot and
that the other prosecution witnesses PW2 and PW6
have supported the case of the prosecution that
they had seen accused committing rape and he was
apprehended at the spot.
D. The Ld. Judge failed to appreciate the testimony of
PW-10, Dr. Dhruv Sharma, Senior Scientific
Officer (Biology), FSL, Rohini, who proved the
FSL reports Ex.PW.10/A and Ex.PW.10/B.
E. The Ld. Judge failed to appreciate the testimony of
PW-12 HC Prahlad Singh who deposed that on
receipt of DD No.38, he proceed to the spot where
he met the prosecutrix and her parents who
explained the commission of rape and the accused
was handed over to the police. The crowd from
neighbourhood was also gathered there and they
had also given beatings to accused. The accused
as well as the prosecutrix were then taken to
AIIMS where the samples for medical examination
were taken by the doctors and MLC of both was
prepared.
F. The Ld. Judge failed to appreciate that accused
was caught red handed from the spot i.e. house of
the prosecutrix which was the place of occurrence.
G. The Ld. Judge failed to appreciate that PW-2
father of prosecutrix, while giving his testimony in
Court on 24.08.2009, also moved an application
for protection as constant threats were being given
by uncle of accused namely Rajender @ Raja
Gujjar for long time that the case against accused
be withdrawn.
H. The Ld. Judge failed to appreciate the testimony of
PW-1, the prosecutrix, whose testimony was
cogent, coherent, reliable and truthful.
I. The Ld. Judge failed to appreciate that accused
could not offer any valid explanation, enemity or
feud with the father of prosecutrix which could
have lead to falsely implicating respondent. The
respondent was a total stranger for them. The Ld.
Trial Judge ought to have considered that since
there is no enemity between prosecutrix who was
barely eleven years old and the accused or his any
other family member, of the nature so as to falsely
implicate the accused and let the real culprit go
scot-free particularly when it is established in the
MLC of prosecutrix Ex.PW.14/A that rape was
committed on her and hymen was ruptured.
J. The Ld. Judge failed to appreciate that respondent
was seen committing rape by father of prosecutrix
PW-2, who was an eye witness, through the gap in
the door and on his repeatedly knocking the door,
the respondent opened the door and was
apprehended at the spot by the parents of the
prosecutrix and prosecutrix at the same time
identified the accused as well as the offence
whereupon the police was called and samples for
medical examination of both were lifted.
K. The Ld. Judge failed to appreciate that medical
evidence on record totally supported the
commission of offence and the accused being
offender. FSL report Ex.PW.10/A and
Ex.PW.10/B as well as MLC Ex.PW.14/A proved
beyond reasonable doubt commission of rape.
L. The Ld. Judge totally overlooked the well
established principle of law that in a case like the
present one, unrebutted and reliable testimony of
prosecutrix duly supported by medical evidence
could be solely relied upon as the basis of
conviction.
M. The Ld. Judge failed to appreciate the testimony of
PW-5, Sh. Naresh Kumar Malhotra, MM, who
recorded statement of prosecutrix and that in her
statement recorded u/s 164 Cr.P.C. on 10.10.2008
she had specifically named the respondent having
committed rape on her and her statement was duly
proved as Ex.PW.5/A and Ex.PW.5/B.
N. The Ld. Judge erred in drawing adverse conclusion
on account of PW-6, mother of prosecutrix, not
accompanying her to the police station and
hospital along with the father without appreciating
that there was another minor daughter with her
aged about 9 years to be looked after at home and
that she specifically deposed that the trauma was
such that she herself became unconscious and in
these circumstances it was her husband alone who
accompanied the prosecutrix to the police station
as well as the hospital.
O. The Ld. Judge failed to place reliance upon
testimony of PW-1 without any cogent reason and
drew wrong conclusion about her being a tutored
witness although the incident of threat was fully
explained by her on 04.11.2009.
18. Mr. Ashish Dutta, learned APP appearing on behalf of the State would
invite our attention to the testimony of the minor victim X PW-1, as well as,
that of her parents Upender Yadav PW-2 (father) and Sunita Devi PW-6
(mother), to urge that the same is reliable and trustworthy and clearly
establishes both the commission of rape on the minor victim X, as well as,
identification and culpability of the respondent, as the perpetrator of the
subject sexual offence. It would also be urged, by relying on the testimony
of PW-12 Constable Prahlad Singh, PW-13 Constable Sanjay Kumar and
W/SI Satish Bhati, the Investigating Officer that, the respondent had been
apprehended by Upender Yadav PW-2 and Sunita Devi PW-6, the parents of
the minor victim X, during the commission of the offence itself and handed
over to the police immediately thereafter. Mr. Ashish Dutta, learned APP
for the State would emphasize that upon a conjoint reading of the aforesaid
testimonies, it was proved beyond reasonable doubt that none other than the
respondent was guilty of having committed sexual assault upon the minor
victim X.
19. In this behalf, it would also urged that, the medical evidence on
record, including the FSL report Ex.PW.10/A and Ex.PW.10/B, as well as,
the MLC Ex.PW.14/A, totally supported the case of the prosecution, qua the
commission of the sexual offence on the minor victim X, and the respondent
as being indubitably the perpetrator thereof.
20. Per contra Mr. Kedar Yadav, learned counsel appearing on behalf of
the respondent would canvass before us the findings arrived at by the trial
court to urge that the same are cogent and did not warrant any interference
by this court in appeal. It would be urged on behalf of the respondent that
the learned trial court came to a conclusion that the minor victim X had been
completely unable to identify the accused initially and did so later, under the
tutoring of the prosecution at a subsequent stage of the trial. Learned
counsel appearing on behalf of the respondent would also allude to the major
contradictions found by the learned trial court in the testimony Upender
Yadav PW-2 and Sunita Devi PW-6 in relation to the occurrence of the rape.
Our attention was invited by defence counsel, to the following paragraphs of
the impugned judgment dated 18.07.2011, in order to buttress this
contention:-
"32. PW-1 Baby X in her statement recorded on
21.05.2009, though narrated the incident but not
identified the accused. She is not disputing the
incident, however, as far as identity of accused is
concerned, she has failed to identify the accused. She
has stated that she do not know the name of that
person. She did not know him earlier, therefore, she
did not tell the name of that person to the police. She
did not see the face of that person because the light
was switched off. She came to know the name of that
person when he was arrested by the police.
33. PW-1 Baby X was further examined on
08.06.2009, but that day also she did not utter even a
single word about any threat etc., if any extended by
to her. On 21.05.2009 as well as 08.06.2009 her
statement was deferred for want of case property,
which was sent to FSL. It is pertinent to mention that
on 09.11.2009, after receipt of FSL result/case
property from FSL, when again her statement was
recorded, she has identified the accused. Ms.
Madhulika Mohta, Advocate from Delhi Commission
for Women was also standing besides her. On that
day, PW-1 Baby X has stated that "MAINE PICHLI
TARIK PAR ACCUSED UNCLE KO ISLIYE NAHI
PEHCHANA THAT KYUNKI INKE RISHTEDAR
JO COURT KE BAHAR THE, UNHONE MANA
KIYA THA, UNHONE KAHA THA KI TUM
ANDAR JAKE BOLNA KI VO NAHI HAI
DOOSRA HAI'. On that day, the court had asked the
following questions:-
"Court Question:- How do you know that, that
person was relative of accused? Did you know
his name?
Answer:- No. VO HONGE SHAYAD.
Court Question:- Whether the same relative is
present today outside the court room also?
Answer:- ITNA NAHI MUJHE PATA.
Court Question:- What was the reason as to
why did not you apprise the court about that
relative of accused, who had as per you asked
you not to identify the accused, in the court
earlier?
Answer:- UNHONE DARAYA THA OR
KAHA THA KI JAAN SE MAAR DENGE.
Court Question:- Did you tell about threat to
your life by that relative of accused to anyone?
Answer:- No. MERE PAPA BHI MERE
SATH HI THE."
34. PW-1 Baby X has denied the suggestion that
she had identified the accused on 09.11.2009 at the
instance of her father because he had been asked by
the enemies of the accused to falsely implicate him.
She has also denied the suggestion that earlier she had
not identified the accused and at that time she did not
have any threat. It is pertinent to mention that a
perusal of record shows that on 14.05.2009 PW-2
Upender Yadav, the father of victim Baby X had
appeared along with Women Sub-Inspector Satish
Bhati, the investigating officer of this case and moved
an application mentioning the fact that in the morning
when he left for the court, the persns of accused party
did not permit his daughter to appear in the court. He
also undertook to produce her daughter Baby X in the
court on 21.05.2009. investigating officer was
directed to do the needful in order to ensure the
protection/security of the victim as well as other
public witness. By that time, the accused had already
been sent to the judicial custody and the matter was
adjourned for the date fixed, i.e. 21.05.32009 and
25.05.2009. on 21.05.2009 Women Sub-inspector
Satish Bhati. PW-2 Baby X was present with her
father PW2 Upender Yadav. PW1 Baby X was partky
recorded. Order dated 21.05.2009 clearly shows that
the court had referred to the application which was
moved on 14.05.2009 and it was submitted before the
court by PW2 Sh. Upender Yadav that they did not
have any kind of threat and pressure and they had
come to the court on their own. He had also submitted
before the court that his daughter PW1 Baby X also
did not have any kind of pressure. He did not have
any objection for recording of testimony of her
daughter PW1 Baby X on 21.05.2009 in the court.
After recording these submissions, the statement of
PW1 Baby X was recorded. Now, dspite unequivocal
statement of PW2 Sh. Updender Yadav on 21.05.2009
before this court, his daughter PW1 Baby X has stated
before the court on 09.11.2009 that the relatives of the
accused had asked her not to identify the court.
35. The court question put to PW1 Baby X on
09.11.2009 also clearly show that this witness on
09.11.2009 was under some influence to identify the
accused, who is not certain about the relatives of the
accused. She did not know whether on09.11.2009 the
relatives of the accused were present outside the court
room or not. She had even gone to the extent stating
that they had threatened to kill her. She has admitted
that her father was with her.
36. considering the court record, especially the order
dated 14.05.2009 and 21.05.2009, it is clear that on
21.05.2009 when the accused was not identified by
PW1 Baby X, her father PW2 SH. Upender Yadav
had clearly submitted before the court that they did
not have any kind of threat or pressure. They had
come on their own. His daughter PW1 Baby X did not
have any kind of threat and he did not have objection
in case the testimony of PW1 Baby X be recorded on
21.05.2009. PW2 Sh. Upender Yadav had moved an
application on 14.05.2009 submitting that accused
party did not permit him to appear in the court and on
21.05.2009 he had submitted that they do not have
any kind of pressure or threat. It is not clear why PW1
Baby X has taken summersault on 09.11.2009 while
identifying the accused. On one day she has not
identified and on other day she had identified giving
explanation of threat and coercion which is not
believable in the facts and circumstances of this case
as court had specifically asked on 21.05.2009 about
any threat or coercion, reason being that on
14.05.2009 an application in this regard was moved.
Even Women Sub-Inspector Satish Bhati,
Investigating Officer was directed to do the needful in
order to ensure the protection/security of the victim as
well as other public witness. No such threat or
coercion was brought before the court extended on
09.11.2009 when this statement of PW1 Baby X was
recorded.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
40. As regards the testimony of PW-2 Sh. Upender
Yadav is concerned, it is not trustworthy. This
witness has deposed that on 08.10.2008 at about
10:30 PM he came back home along with his wife, the
door of the house was locked from inside but it was
not bolted from outside. There was space in the door
in which one could see through the gap. He peeped
inside from the gap and saw one boy was committing
rape upon her daughter Baby X. He saw that one boy
was lying over her daughter Baby X and committing
rape. The light of the room was on. He started
knocking the door. He knocked several times and
after sometime, the door was opened and he saw the
accused was inside. There were only Baby X and
accused in that room when he saw them inside the
room. He apprehended the accused at spot with the
help of his wife and informed the police on 100
number.
41. During the course of his cross-examination PW-
2 Sh. Upender Yadav has deposed that the distance
between his house and shop may be covered within
five minutes on foot. He could not tell the exact
distance in meters or kilometers. He has admitted that
number of people are living in his neighbourhood and
so many people gathered there but they refused to join
as witness. He has also admitted that his neighbours
Hori Lal and Ashok Sharma, who lives on right and
left side of his house, their families were available but
no one joined the investigation. He has deposed that
he did not call the Pradhan of the colony.
42. PW-6 Smt. Sunita, the mother of PW-1 Baby X
has deposed that on the day of the incident, she was at
the shop of her husband leaving her daughters at
home. It was winter season. On the day of incident at
about 10:00 PM/10:30 PM, she left her daughters at
home and went to shop to call her husband. Her
husband closed the shop and came to the house on his
bicycle and she came on foot. As per the testimony of
her husband PW-2 Sh. Upender Yadav he has
deposed that he came back home with his wife.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
44. As regards the commission of rape is
concerned, this witness (PW6) is hear say, as she has
deposed that her daughter PW-1 Baby X had told that
she was raped by accused.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
47. PW-6 Smt. Sunita has deposed that it took total
fifteen minutes for her to leave the house and reach
her husband's shop and return home, meaning thereby
that within a span of fifteen minutes rape has been
committed upon PW-1 Baby X as PW-6 has deposed
that it took five minutes for her to reach her husband's
shop from their residence and again it took five
minutes for returning home from her husband's shop
and she stayed at her husband's shop for five minutes.
She has also admitted that her husband reached prior
to her. She volunteered that her husband came on
bicycle. However, as per PW-2 Sh. Upender Yadav
he came along with his wife.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
49. If the entrance of the room opens in the room
and her husband was knocking outer door of the
house which was locked and she opened the main
door in presence of public, who gathered there,
however, PW-2 Sh. Upender Yadav peeped inside and
saw the accused committing rape. It is also fortified
as PW-6 Smt. Sunita has deposed that if they see from
the outer gate one can see the open space and if they
go inside, they can see the gates/doors of the rooms.
If the outer gate was closed, how PW-2 Sh. Upender
Yadav peeped inside the room which was inside.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
52. PW-2 Sh. Upender Yadav has deposed that the
light was on in his room, however, PW-1 Baby X has
stated on 21.05.2009 that she did not see the face of
that person because the light was switched off,
meaning thereby that there are two versions about the
visibility in the room. As per the case of the
prosecution the rape was committed. If the light was
switched off, it was not possible for PW-2 Sh.
Upender Yadav to peep in and see in darkness as the
time was around 10:30PM/11:00 PM in the night and
that too in the month of October. If the light was on,
as per the testimony of PW-2 Sh. Upender Yadav,
then why did PW-1 Baby X state that the light was
switched off. It is material contradiction in the
testimony of PW-1 Baby X and PW-2 Sh. Upender
Yadav."
21. It was lastly urged on behalf of counsel for the respondent that a plain
reading of both the subject DD No.38 Ex.PW.7/A, as well as, the MLC of
the minor victim X Ex.PW.14/A clearly goes to show that, it was recorded
therein that a quarrel had taken place at the scene of crime.
22. We have heard learned counsel appearing on behalf of the parties and
given our anxious consideration to the evidence on record, including the
medical evidence. The two critical issues that arise for consideration in the
present appeal are:-
a) Whether the minor victim X was subjected to rape on the
night 08.10.2008;
b) Whether the prosecution has established the guilt of the
respondent for the commission of the sexual offence.
23. Insofar as, the first issue is concerned, there is the clear and
unequivocal testimony of the minor victim X herself, in relation to the
commission of rape upon her; and the same is unrebutted and trustworthy. It
is further observed that the evidence of the minor victim X in this behalf, is
further corroborated in essential particulars by the medical evidence on
record, which clearly establishes that her hymen was ruptured and her
clothes were blood stained at the time of her medical examination at 02:20
a.m. on 09.10.2008 immediately after the commission of the offence. The
MLC Ex.PW.14/A further opines that the minor victim X, was yet to attain
the age of puberty.
24. Further, in this regard, a plain reading of the FSL reports, Ex.PW.10/A
and Ex.PW.10/B show that it was clearly opined therein that human semen
was detected from her vaginal swab and blood was detected on the
underwear worn by her at the time of commission of the offence.
25. In view of the foregoing, there can be no manner of doubt with the
inescapable conclusion that, the minor prosecutrix X was the victim of
sexual assault of rape on the night of 08.10.2008. In this behalf, it would
also be pertinent to observe that the trial court fell into grave error in not
returning any finding in relation to the commission of rape on the minor
victim X.
26. That brings us to the equally critical issue of the identification of the
respondent as the perpetrator of the crime. In this behalf, it would be
pertinent to consider the findings arrived at by the trial court wherein it was
held that though the minor victim X PW-1 conclusively narrated the
incident, she had failed to identify the respondent. It was further held that
the minor prosecutrix X was unable to see the face of the perpetrator since
the electric bulb in the room where the offence had occurred was switched
off. It was further found by the learned trial court that the subsequent
identification of the respondent by the minor victim X PW-1, did not come
to the aid of the prosecution, since her explanation in relation to why she had
failed to identify the perpetrator of the crime on earlier dates of trial, did not
inspire confidence in the Court. It is also urged that the trial court further
recorded in this behalf that, in view of the contrary testimony of Upender
Yadav PW-2 , the testimony of the minor prosecutrix PW-1 to the effect that,
she had felt threatened on earlier occasions and, therefore, did not identify
the respondent then owing to that threat and pressure, was untenable.
27. We are unable to concur with this finding arrived at by the trial court,
as above extracted for the following reasons:-
(i) Firstly, the respondent, including in his statement under
Section 313 Cr.P.C., does not deny his presence at the
scene of crime i.e. at C-18/B, Lal Kuan, Chungi No.13,
New Delhi.
(ii) Secondly, on a conjoint reading of the testimonies of
Upender Yadav PW-2 and Sunita Devi PW-6, the father
and mother of the minor victim X, insofar as they relate
to their arrival during the commission of the offence by
the accused; and his immediate apprehension, from the
room where the same was committed, is unrebutted.
(iii) Thirdly, the detailed explanation given by the minor
victim X on 04.11.2019 to the effect that, the relatives of
the respondent, who were present outside the court on
21.05.2009 (when she did not identify the respondent),
had threatened to kill her, if she identifies him in court --
- which appeals to prudence and is eminently reasonable,
was erroneously disregarded.
(iv) Lastly, the testimony of the minor victim X, which by
itself was consistent, cogent, coherent and inspires
confidence, was further corroborated by the testimony of
the other prosecution witnesses PW-2 and PW-6 and the
irrefutable fact that the respondent was arrested red-
handed from the spot.
28. In this behalf, it would be relevant to observe that the testimony of the
parents to the effect that, the respondent opened the door of the room where
he was alone with the minor victim X from inside --- upon the incessant
knocking on the door by the former --- has gone unchallenged. There is
further no manner of doubt that it was the respondent who opened the door at
the scene of crime from inside.
29. The indubitable facts, that the parents of the minor prosecutrix X
physically subdued the respondent at the spot and called the police; as well
as the physical beatings admittedly received by the respondent from public
persons, who simultaneously gathered at the spot at the time of the
commission of the crime; are clear, categorical and untraversed in the
relevant cross examination. There can also be no quarrel that the medical
report qua the respondent Ex.PW.11/A, which opines that a reddish fresh
abrasion 2x2 cm was present over his left shoulder, as well as, the FSL
reports Ex.PW.10/A and Ex.PW.10/B, which detected semen on his
underwear, establish his culpability in the commission of the offence on all
fours.
30. In addition, a plain reading of the respondent's response to the
incriminating circumstances and material put to him under Section 313
Cr.P.C. demonstrates, that he has offered no cogent explanation, qua his
presence at the scene of crime on the fateful day and time, nor has he denied
his apprehension from the spot and his subsequent handing over to the
police, by the parents of the minor victim X, immediately thereafter.
31. Moreover, the respondent's explanation of being in an inebriated state
at the relevant time and suffering injuries on his body, as a result of a scuffle
with a local person, is completely belied by the medical evidence on record,
which clearly shows that no alcohol content was detected in his blood, as per
MLC Ex.PW.11/A.
32. It is a well settled principle of law that a false plea or a false
explanation taken by the accused can be used as an additional link to the
chain of circumstantial evidence. [Reference: Sharad Birdhichand Sarda
vs. State of Maharashtra reported as (1984) 4 SCC 116]
33. It would further be pertinent to point out that, although arguendo there
are contradictions, albeit minor, between the testimony of the minor victim
X PW-1 and her father Upender Yadav PW-2, insofar as the factum of the
electric light being kept on at the time of the commission of the offence is
concerned; as well the circumstance, as to whether the parents of the minor
arrived together at the spot or separately; in addition also to the question,
whether Upender Yadav PW-2, the father of the minor victim X was an eye
witness to the commission of rape upon his minor daughter and saw the
respondent during the commission of the offence; it is relevant here, to state
the well settled legal position that obtains, to the effect that every minor
discrepancy or variance in the evidence/testimony, does not have the
consequence of making the prosecution's case doubtful --- and rather as in
the present case actually lend credence to it --- and the courts are
jurisprudentially required to adopt a rational approach --- instead of being
hyper technical --- while shifting and weighting the evidence on record.
Trivial discrepancies and minor contradictions, ought not to result in the
obliteration, of otherwise creditworthy and reliable testimony.
34. In this behalf, we further observe that, there is not even an iota of
doubt that the parents of the minor victim X arrived at the scene of crime, at
the time of its commission, and knocked on the door of the room, which was
locked from inside; and further that, the respondent opened the door --- at
which time only he along with the minor victim X were present in the room
--- and emerged therefrom. It is also observed that it is at that critical
juncture that the respondent was caught red-handed by the parents, whose
contemporaneous entreaties for assistance, resulted in the gathering of
persons at the spot, who then proceeded to assault the respondent physically,
before handing him over to Head Constable Prahlad Singh PW-12 and
Constable Sanjay Kumar PW-13, who had arrived at the spot in response to
DD No.38 Ex.PW.7/A.
35. Last but not the least, the accused has completely failed to explain
why he has been falsely implicated in the case on behalf of either the minor
victim X, her parents or the police.
36. It would also be relevant to observe that, it has been established by the
prosecution beyond doubt that, the prosecutrix was a minor at the time of
commission of the ghastly crime of rape upon her and that she was yet to
attain the age of puberty.
37. In view of the foregoing discussion, we are of the considered view that
the second issue qua the culpability of the respondent in the commission of
the offence of rape upon the minor victim X, is duly proved and established
against him by the evidence on record.
38. Before we part, it is also incumbent upon us to observe that, the
findings arrived at by the trial court to the effect that the testimony of the
minor victim X is influenced, tutored and not reliable and that she failed to
identify the respondent as the perpetrator initially, whereby rendering his
subsequent identification by her, full of doubt; is without any proper
justification and contrary to the evidence on record, including her reasoned
explanation, as aforementioned. The testimonies of the other prosecution
witnesses also corroborate that of the minor victim X, as does the clinching
medical evidence elaborated hereinabove. The minor victim X, aged 11
years, has been consistent in her statement and her testimony from the time
of the commission of the offence, and has also clearly and cogently
explained the threat perception of fear and intimidation felt by her in not
making a physical identification of the respondent at the earlier stage of her
examination. The testimony of the minor victim X cannot be negated on the
ground of benefit of doubt afforded to the respondent, which benefit of doubt
in our considered view is on an erroneous mis-appreciation of the evidence
on record. We are supported in our view by the decision of the Hon'ble
Supreme Court in State of H.P. vs. Lekhraj reported as (2000) 1 SCC 247,
wherein it was observed that although the benefit of every reasonable doubt
should be given to an accused, but at the same time the court ought not to
reject evidence, which is ex facie trustworthy on grounds which are fanciful
or in the nature of conjectures.
39. It is trite to state that, it is necessary for the Courts to have a sensitive
approach when dealing with cases of child rape. The effect of such a crime
on the mind of the child is likely to be lifelong. A special safeguard has been
provided for children in Article 39 of the Constitution of India, which inter
alia stipulates that the State shall, in particular, direct its policy towards
securing that the tender age of the children is not abused and the children are
given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity; and that childhood and youth are
protected against exploitation and against moral and material abandonment..
[Reference: State of Rajasthan vs. Om Prakash reported as (2002) 5 SCC
745]
40. In our view, therefore, the impugned judgment dated 18.07.2011 is a
total negation in the quest for search of truth and overlooks the cardinal
principle that the decision 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; and that, both these public duties are equally
important.
41. In the circumstances, resultantly, the acquittal of the respondent herein
in relation to the commission of the offence punishable under Sections
376/506 IPC in relation to FIR No.560/08, Police Station- Sangam Vihar
vide the impugned judgment dated 18.07.2011 rendered by the the learned
Additional Sessions Judge-01, Designated Judge : TADA/POTA/MCOCA,
Saket Courts, New Delhi in Sessions Case No.13/09, titled as 'State vs.
Amar Pal'; is set aside, and the respondent herein is convicted for the
proved commission of the offences punishable under Sections 376/506 IPC;
and is further directed to be taken into custody forthwith.
42. With the above directions, the appeal is disposed of. A copy of this
judgment be sent to the respondent convict forthwith.
SIDDHARTH MRIDUL
(JUDGE)
I.S. MEHTA
(JUDGE)
DECEMBER 09, 2019
dn
