IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 23rd SEPTEMBER, 2015
DECIDED ON : 8th DECEMBER, 2015
STATE ….. Appellant
Through : Mr.Amit Gupta, APP.
BRIJ DEV TIWARI @ PANDIT ….. Respondent
Through : Mr.Ritesh Khare, Advocate with
Mr.Sumit R.Sharma, Advocate.
HON’BLE MR. JUSTICE S.P.GARG
Aggrieved by a visualisation antiquated 29.8.2011 of schooled Addl. Sessions Judge in Sessions Case No. 09/11 outset out of FIR No. 443/10, PS Dabri by that a respondent–Brij Dev Tiwari @ Pandit was transparent of a charges, State has elite a present appeal. It is contested by a respondent.
2. Briefly stated, a charge box as reflected in a charge-sheet was that on 18.12.2010 during 10.00 p.m. during House No. A-83, belligerent floor, Gali No. 19, Bharat Vihar, New Delhi, a respondent committed rape on a prosecutrix ‘X’ (assumed name) aged around 8 years and criminally intimidated her hermit Rajesh Kumar. The occurrence was reported to a military on 20.12.2010 and Daily Diary (DD) No. 10A (Ex. PW-12/A) came into existence during 9.30 a.m. The review was reserved to SI Anil Kumar who with Const. Mahender Singh went to a spot. After recording matter of a victim’s hermit Rajesh Kumar (Ex. PW-8/A), a Investigating Officer lodged First Information Report. ‘X’ was medically examined; she accessible her 164, Cr.P.C. statement. Exhibits collected during review were sent to Forensic Science Laboratory for examination. The indicted was arrested and medically examined. Upon execution of investigation, a charge-sheet was filed opposite a respondent for elect of offences punishable underneath Sections 376/506, IPC. The charge examined twelve witnesses to settle respondent’s guilt. In 313, Cr.P.C. statement, a respondent denied his impasse in a crime and pleaded fake implication. The hearing resulted in his acquittal. Being depressed and dissatisfied, a State has come in appeal.
3. we have listened a schooled Counsel for a parties and have examined a file. In a censure (Ex. PW-8/A) a complainant – Rajesh Kumar sensitive that on 18.12.2010 during around 10.00 p.m. when he returned to his chateau and went upstairs, he listened X’s voice from inside a respondent’s room on a belligerent floor. The room was half-closed. When he saw inside a room, he found that a indicted was attempting to dedicate rape on ‘X’. On saying him, a respondent became perplexed, put ‘on’ garments and fled a spot. He brought ‘X’ upstairs and sensitive about a occurrence to his mother Manju. After some time, a respondent returned and threatened to kill him. Due to fear, he did not board news that day. In his Court statement, a complainant as PW-8 introduced a new chronicle utterly unsuitable and paradoxical to a initial matter (Ex. PW-8/A) given to a police. He deposed that on 18.12.2010 during about 10.00/10.15 p.m., when he returned from his place of work and went to his room, he did not find ‘X’ there. On exploration from his wife, he came to know that she competence have left to toilet. However, ‘X’ was not there in a toilet. He came downstairs and done inquiries from Seema, a reside on a belligerent floor. Her son aged around 4 – 5 years sensitive him that ‘X’ was in a respondent’s room. He knocked during a respondent’s room for about 15–20 mins and when it was non-stop he found a prosecutrix in his room. He brought her upstairs and she sensitive him that a respondent had committed rape on her. He asked his mother to check a prosecutrix after stealing her panty. After examining a prosecutrix, she sensitive him that there was ‘blood’ on her panty. He came down-stairs and sensitive Seema about a incident. Next morning, his landlord came during around 8.00 a.m. and he familiar him of a occurrence. He positive to get a room vacated from a respondent. At about 6.00 p.m. next-day, Manoj, his landlord’s son on mobile threatened him to kill if he reported a occurrence to anyone. As a declare had done critical improvements, a schooled Addl. Public Prosecutor cross-examined him after seeking Court’s permission. He was confronted with a matter (Ex. PW-8/A) on several contribution that were not settled that time. The declare did not explain as to because all these contribution settled in a examination-in-chief were wanting to be accessible in his initial censure (Ex. PW-8/A). About X’s panty, he sensitive that it was left in a Indica automobile of his brother-in-law Kamal on lapse from a military station.
4. PW-5 (Manju), Rajesh’s mother also gave unsuitable and opposing statement. In her deposition before a Court, she disclosed that ‘X’ had left to watch TV during Seema’s chateau on a belligerent floor. At around 10.00 p.m., she accompanied her father to hunt ‘X’ though she could not be located. Seema’s son told her father that ‘X’ was sitting in respondent’s house. It was knocked for about 15–20 mins though a respondent did not open it. Seema’s younger son switched off a electricity connection. After a respondent non-stop a door, ‘X’ was found inside a room. She again pronounced that ‘X’ had come out of a chateau and was in normal condition. She was taken upstairs. ‘X’ told her that a respondent had committed rape on her after stealing his pant. She saw blood on X’s panty. She and her father came downstairs and familiar Seema about a incident. She suggested them not to lift a emanate and she will surprise a landlord who would speak to a respondent. When a landlord did not get a room vacated, they lodged a news with a police. She was also cross-examined by schooled Addl. Public Prosecutor as she did not support a charge in a entirety. She was confronted with her matter (Ex. PW-2/DA).
5. Initially, on PW-8, Rajesh’s matter (Ex. PW-8/A), a military had purebred a box for ‘attempt to dedicate rape’. Rajesh had claimed to have witnessed a occurrence while going up-stairs to his room. Subsequently, on execution of investigation, a respondent was charged for committing ‘rape’ on a prosecutrix ‘X’. PW-5 (Manju) and PW-8 (Rajesh) in their Court statements did not explain if during initial instance ‘X’ was seen in a respondent’s room or he was found attempting to dedicate rape on her. The charge has not offering any trustworthy reason for element and critical flaw from a initial version.
6. The prosecutrix ‘X’ is a child witness. Her age has been described as 8 years on a day of incident. The Investigating Agency, however, did not collect any request whatsoever to discern her age. Her ossification exam was also not conducted to find out a estimate age. The Trial Court while recording her Court matter remarkable that she seemed to be aged around 5–6 years. Her matter was accessible in doubt and answer form. Initially, she was demure to divulge anything. After PW-5 (Manju) was called to yield her dignified support, she answered queries of a Court. Her matter is inconsistent. At some stages, she has sensitive that certain contribution were tutored to her by her hermit Rajesh. At one stage, she merely deposed that she was taken to his room by a respondent and was cramped there. She was done to distortion and her ‘Kachhi’ was taken off. Then her hermit arrived there and a respondent put a square of cloth in her mouth. Her hermit took her upstairs and saw that there was blood on a ‘Kachhi’. At other stage, she was sure to state that a respondent has extrinsic his organ meant for urinal in her womanlike organ. Settled position is that a Court contingency be intensely discreet and clever in fixation faith on a testimony of a child witness. A child declare is disposed to education and hence a Court should demeanour for certification quite when a justification betrays traces of tutoring. In a present case, testimony of a baby gives a transparent sense that she was coached and tutored before she gave a matter and it is transparent from a series of questions she had answered in a cross-examination. Her matter has not been advanced by any other eccentric source. Medical justification also proves a respondent’s innocence. ‘X’ was medically examined vide MLC (Ex. PW-9/A) on 20.12.2010. PW-10 (Dr. Parul Mehra)’s matter is crucial. She deposed that during a time of her medical examination, there were no outmost injuries on X’s body. She did not find any outmost injuries on her vulva and thighs. Her hymen was torn, however, her hole was really tiny that even a tiny finger could not be authorised inside. There was no draining during that time. In an answer to a Court question, she was of a perspective that it did not seem to be box of ‘rape’ as there were no outmost injuries. She suggested that in box a teenager child of a pronounced age is raped, a injuries suffered would take a week’s time to heal. The reason of tiny hole in a hymen could be that a child was active in playing. The hole did not seem to be a uninformed injury. Apparently, a justification of ‘penetration’ in a present box is lacking. PW-8 (Rajesh) in his initial chronicle given to a military merely complained of ‘attempt to dedicate rape’.
7. FSL news Ex. PX is of no aptitude as tellurian semen rescued on Ex. 1a (Cotton nap bandage on a hang kept in a exam tube), Ex. 1b1 1b2 (Two micro slides carrying blanched smear), could not be guarded to be of ‘A’ organisation of a respondent.
8. Delay in camp a FIR has remained unexplained. PW-5 (Manju) did not support her father if any hazard was ever extended by a respondent not to board a news with a police. She sensitive that a hazard extended was by a landlord or his son. The charge examined PW-6 (Satpal), a landlord. He did not exhibit if any hazard was extended by him or his son Manoj to X’s hermit to not board a report. In a cross-examination, he disclosed that usually from a police, he came to know about a incident. Material charge witnesses were not examined or associated. Manoj opposite whom there was specific claim of rapist danger was not assimilated during review or was constructed as a witness. Seema and her son were not examined to uphold a charge chronicle that they had intervened and suggested a complainant not to board a report. They were element declare to infer if a prosecutrix was final seen during a respondent’s chateau or on a information given by Seema’s son, a complainant had left to a respondent’s house. Relatives with whom a complainant had discussed to board a news on 20.12.2010 have also not been examined. Contradictory statements have emerged as to a resources and demeanour in that a respondent was arrested. Apparently, he did not decamp from a spot. The Trial Court has discussed all a justification on record minutely. Though a counterclaim does not enthuse certainty per fake import for non-payment of Rs. 12,000/-, a charge can't take advantage of it. The responsibility to settle a box over a reasonable doubt is on a prosecution.
9. Settled authorised preposition is that a appellate Court has to be some-more discreet while traffic with a visualisation of acquittal. Under a Indian rapist jurisprudence, a indicted has dual elemental protections accessible to him in a rapist hearing or investigation. Firstly, he is reputed to be trusting compartment infer guilty and secondly, that he is entitled to a satisfactory trial. Both these contribution achieve even larger stress where a indicted has a visualisation of exculpation in his favour. A visualisation of exculpation enhances a hypothesis of a ignorance of a accused. The appellate Court would be fit in interfering with a visualisation of exculpation usually when there are really estimable and constrained reasons to drop a outcome of Court below. In a present case, a State has not been means to make out that a Court next has totally depressed in blunder of law or that a visualisation in propinquity to a respondent was palpably erroneous, impolite or untenable.
10. In a light of above discussion, a interest elite by a State opposite a respondent’s exculpation is abandoned of merits and is dismissed. Trial Court record be sent behind immediately with a duplicate of a order.