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Dinesh Tiwari vs State on 14 September, 2018

IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 4th May, 2018
Judgment Delivered on: 14th September, 2018

CRL.A. 1033/2016

DINESH TIWARI ….. Appellant
Represented by: Ms. Saahila Lamba, Advocate

versus

STATE ….. Respondent
Represented by: Ms. Meenakshi Chauhan, APP
for the State with SI Mahipal Singh, PS Prasad Nagar

CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

1. By the present appeal, the appellant challenges the impugned
judgment dated 10th May, 2016 convicting him for the offence punishable
under Section 6 of Protection of Children against Sexual Offences Act, 2012
(in short ‘POCSO Act’) and Section 376(f) IPC and the order on sentence
dated 18th May, 2016 directing him to undergo rigorous imprisonment for a
period of ten years and to pay a fine of ₹15,000/- and in default of payment
of fine to undergo simple imprisonment for a period of six months for the
offence punishable under Section 6 of POCSO Act. No separate sentence
was awarded for the offence punishable under Section 376(f) IPC.

2. Learned counsel for Dinesh Tiwari submits that the appellant has
been falsely implicated in the present case as he had given money to the
mother of the victim who did not return it. Mother of the victim in her

CRL.A. 1033/2016 Page 1 of 7
cross-examination admitted that on the day of the incident, since Saloni was
not in the house, she took the key with her, thus, the prosecution has failed
to prove how Dinesh Tiwari got the key of the house. No foreign material
was found in the nail clipping of the appellant. The appellant was arrested
from the spot which falsifies the prosecution case because if he would have
committed the alleged act, he would not have remained present at the spot
and would have fled away. There is contradiction in the testimony of the
mother of the victim with regard to insertion of finger or penis. As per the
statement of mother of the victim, she made the first call to her brother who
called the PCR van, however, he has not been cited as a witness.

3. Learned APP for the State on the other hand contends that the learned
Trial Court has rightly convicted the appellant on the basis of testimony of
the victim (PW-2) and her mother (PW-4) who are the material witnesses
duly corroborated by the MLC of the victim which shows blood on her
vagina, cervix and clothes and finger marks on her face. The presence of the
appellant at the place of incident is not disputed.

4. Process of law was set into motion on 20th February, 2013 around
11:00 P.M. when information was received regarding rape of a 6 year old
girl at Bapa Nagar, Karol Bagh, Delhi. Aforesaid information was recorded
vide DD No. 39A (Ex.PW-6/A) and entrusted to SI Abhishek Kumar (PW-

16) and Ct. Diwakar (PW-13). They reached the spot and met the victim,
mother of victim (complainant), father of victim and Dinesh Tiwari. On
enquiry, mother of victim informed that Dinesh Tiwari committed rape upon
her daughter. In the meantime, W/Ct. Anita (PW-12) and Ct. Sanjiv also
reached the place of incident. Victim and her mother were sent to the
Hospital for medical examination. Dinesh Tiwari was also taken to LHMC

CRL.A. 1033/2016 Page 2 of 7
hospital. Statement of mother of victim was recorded in the hospital
wherein she stated that she was working in a Jeans Factory at Tank Road
and her husband worked in a shop of seat cover at Karol Bagh. On 20 th
February, 2013, her husband left for work at 10:00 A.M. Her elder son had
gone out for some work and she left for her work at 3:00 P.M. when her
daughter (victim herein) and her younger son were playing in the street. She
locked the house and gave the key to her neighbour Saloni. Around 6:30
P.M. while she was at work Dinesh Tiwari, who is her mama, called her and
asked her when she would be coming back to which she replied that she
would be coming back home after 7:30 P.M. To this, Dinesh asked her for
the keys of the house stating that his wife would be coming to her house to
which she told Dinesh that she had given the keys to her neighbour Saloni.
After sometime, Dinesh again called up on her mobile and gave his phone to
her younger son who was crying on the phone. When she asked him the
reason for crying, her younger son replied that Dinesh had beaten him.
After hearing this, she immediately left and reached her home around 7:30
P.M. Her husband had already reached home before her and her children
were standing on the door and her son, while crying, told her that Dinesh
had beaten both of them and as a result of which there was blood on the skirt
of the victim. Immediately, she checked the victim and found that there was
blood on the pant and skirt of her victim daughter and when she asked her
daughter, she told her that Dinesh had inserted his penis into her vagina and
because of it she felt pain and blood also came out. Her daughter further
told her that Dinesh asked them to come inside the house after showing
some eatables, did the aforesaid act and scolded her that if she would tell her
mother or father he would beat her.

CRL.A. 1033/2016 Page 3 of 7

5. On the basis of the aforesaid statement (Ex.PW-2/A), FIR No.
37/2013 (Ex.PW-9/A) was registered at PS Prasad Nagar for the offences
punishable under Sections 6/8 of POCSO Act and Section 376 IPC.

6. Further investigation of the case was handed over to SI Rekha (PW-

14). She prepared the site plan (Ex.PW-2/B) on the pointing out of mother of
the victim. Statement of victim was recorded. Dinesh Tiwari was arrested
vide arrest memo Ex.PW-13/A, his personal search was conducted vide
Ex.PW-13/B and his disclosure statement was recorded vide Ex.PW-14/A.

7. On 22nd February, 2013, victim was produced before CWC and on
23rd February, 2013, her statement under Section 164 Cr.P.C. was recorded.
After completion of investigation, charge sheet was filed. Charge was
framed under Section 6 of POCSO Act and Section 376(f) IPC vide order
dated 18th April, 2013.

8. During the course of trial, the date of birth of the victim was proved to
be 11th July, 2007 on the basis of the admission form (Ex.PW-1/A) and the
certificate (Ex.PW-1/B) produced by Anita Rani (PW-1), Principal, Nigam
Pratibha Vidhyalaya, Delhi.

9. After ascertaining that the victim (PW-4) was capable of
understanding the questions and giving rational answers, her statement was
recorded which is reproduced herein:

Q: Do you know any person by the name of Dinesh Tiwari?
Ans: Yes.

Q: How?

Ans: I used to call him Mama.
Q: What your mother call him?
Ans: I do not know.

Q: What you were doing after coming back from the school?

CRL.A. 1033/2016 Page 4 of 7

Ans: I was playing in the gali.
Q: With whom you were playing?
Ans: I was playing with my brother.
Q: Did Dinesh Tiwari at that time?
Ans: Yes.

Q: Did the house was lock or open?
Ans: It was locked.

Q: What did Dinesh Tiwari do?
Ans: He took me upstairs. He asked for key of the room. Key was with
aunty who was residing at ground floor.
Q: Did you give key to Dinesh Tiwari?
Ans: Yest. After taking from my aunty.
Q: What did Dinesh Tiwari do after taking upstaris.
Ans: He has inserted his finger in my shushu (vagina).
Q: Did you were wearing pant/nickar etc.?
Ans: I was wearing pant.

Q: Did he insert finger without removing pant or after removing
pant?

Ans: He inserted finger after removing pant.
Q: Did bleeding start from your shushu when he inserted finger?
Ans: Yes.

Q: Whether any other person was present at that time in the house or
not?

Ans: None was present.

Q: Did you tell the incident to anyone, if yes when?
Ans: I told the incident to my mother when she returned from factory.
Q: Did you appear before any aunty (Magistrate) to make the
statement?

Ans: Yes.

10. Mother of the victim was examined as PW-2. She deposed in
conformity with her statement made before the police.

11. Saloni (PW-5) stated that on the day of incident mother of the victim
had given her the key of her house to give the key to her children when they

CRL.A. 1033/2016 Page 5 of 7
returned from school. In the evening she gave the key to victim and her
brother.

12. Dr. Deepti Kaur (PW-10), SR, Gynae Department stated that on 21st
February, 2013 at about 12:15 A.M., she had examined the victim. On
examination, finger marks were found on the face of the victim. Hymen was
found to be ruptured. MLC was proved vide Ex.PW-10/A. During her cross
examination, she stated that it was correct that if the finger is inserted and
due to said reason, hymen was torn or ruptured, the saliva of vagina would
appear on finger and in the nail of the person. There was no external injury
on genital parts.

13. Dr. Pankaj Kumar (PW-11), SR/CMO, LHMC stated that on 21st
February, 2013, he had examined Dinesh Tiwari. No fresh injury was found
on his body. After examination, his underwear and three biological samples
were taken and handed over to the police. His MLC was proved vide
Ex.PW-11/A.

14. Dinesh Tiwari, in his statement recorded under Section 313 Cr.P.C.,
stated that on 20th February, 2013, he was present at his home. At about
10:45 P.M., police officials came to his home along with brother of mother
of victim and asked about him. When he asked what was the matter, they
asked him to accompany them and made him sit in the police vehicle. On
the way, brother of mother of victim told him that he had committed galat
kaam with the victim but he denied the same. After, he was taken to the
police station, he was beaten by the police officials. He told the police that
he had gone to the house of mother of victim as she had taken a sum of
Rs.1,700/- from him as loan.

15. Considering the evidence of the victim, her mother and the MLC of

CRL.A. 1033/2016 Page 6 of 7
the victim, the prosecution has proved the case beyond reasonable doubt that
Dinesh Tiwari had inserted his finger in the vagina of the victim, thereby,
committing penetrative sexual assault. Merely because the appellant
continued to stay at home does not lead to an inference that he was innocent.
As regards the money owed by the victim’s mother is concerned, a
suggestion in this regard was given to the complainant which she denied.
The complainant fairly stated that in her bad days, Dinesh helped her. Thus
it is highly unlikely that the complainant would falsely implicate such a
person.

16. Consequently, the appeal is dismissed. Appellant is directed to
undergo the remaining sentence.

17. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record and for communication to the appellant.

18. TCR be returned.

(MUKTA GUPTA)
JUDGE
SEPTEMBER 14, 2018
‘rk’

CRL.A. 1033/2016 Page 7 of 7

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