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Gopi Nisha Mallah vs The State on 4 September, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 595/2018 and CRL.M.B. 887/2018
GOPI NISHA MALLAH ….. Appellant
Through: Mr. Pawan Sharma, Advocate
versus
THE STATE ….. Respondent
Through: Mr. K.S. Ahuja, APP for State.

CORAM: JUSTICE S. MURALIDHAR
JUSTICE V. KAMESWAR RAO

ORDER

04.09.2018
Dr. S. Muralidhar, J.:

1. The present appeal is directed against the judgment dated 24th April, 2018
passed by the learned Additional Sessions Judge-05 (Central), Tis Hazari
Courts, Delhi in SC No.28195/2016 arising out of FIR No.15/2014
registered at PS Bara Hindu Rao, Delhi, convicting the Appellant for the
offences punishable under Sections 376(2) (i) and (m), 363, and 325 IPC and
Section 6 of the Protection of Children from Sexual Offences Act, 2012
(„POCSO Act‟).

2. This appeal is also directed against the order on sentence of the same date
whereby the Appellant was sentenced as under:

(a) For the offence punishable under Section 325 IPC, to undergo
Rigorous Imprisonment (RI) for a period of 7 years in addition to

Crl.A.663/2018 Page 1 of 14
payment of fine of Rs.3000/-, and in default of payment of fine, to
undergo Simple Imprisonment (SI) for 2 years.

(b) For the offence punishable under Section 363 IPC, to undergo RI for a
period of 7 years in addition to payment of fine of Rs.3000/-, and in
default of payment of fine to undergo SI for 2 years.

(c) For the offence punishable under Section 376 (2) (i) and (m) IPC, to
undergo RI for life in addition to payment of fine of Rs.2500/-, and in
default of payment of fine, to undergo SI for 3 years.

(d) For the offence punishable under Section 6 POCSO Act, to undergo
RI for life in addition to payment of fine of Rs.2500/-, and in default
of payment of fine, to undergo SI for 03 years.

(e) All sentences were directed to run concurrently.

3. It must be noted that by an order dated 16 th April, 2018, the victim was
granted interim compensation of Rs.1 lakh by the District Legal Services
Authority („DLSA‟). The trial Court in addition thereto recommended
payment of adequate compensation to the victim under the Victim
Compensation Scheme in terms of Section 357A Cr PC and referred the
matter to the Secretary, DLSA, Central District for necessary action.

Charge

4. The charge against the Appellant is that on 2nd February, 2014 between
6.30 to 7 pm, he kidnapped the victim (PW-4), aged about 8 years, while she
was playing with her younger sisters and thereby committed an offence
punishable under Section 363 IPC; secondly, between 6.30 pm to 9 pm on

Crl.A.663/2018 Page 2 of 14
2nd February 2014 at the Bonta Park, Kamla Nehru Ridge, he committed
rape upon the victim by inserting his finger into her anus and his penis into
her vagina and also caused grievous bodily injury while committing rape
upon her and thereby committed an offence punishable under clauses (i) and

(m) of Section 376(2) IPC; thirdly, he caused her grievous injury thereby
committing an offence punishable under Section 326 IPC and fourthly he
committed aggravated penetrative sexual assault by inserting his finger into
the anus of victim aged about 8 years and his penis into her vagina and
thereby committed an offence punishable under Section 6 POCSO Act.

The incident

5. At the time of the incident, the victim was aged around 8 years and was
playing in the gali with her younger sisters i.e. PW-3 aged 7 years and
another younger sister who was just about 4 years old. In the narration of
PW-4, the Appellant came there after sunset and offered to give them
something to eat. While her two sisters ran home, PW-4 got left behind. The
Appellant lifted her in his lap and from there took her to a park. PW-4 stated
“after reaching in the park, the accused had taken out his shushu (penis)
from his pant and thereafter inserted in my shushu (vagina). He had also
inserted his finger in my potty (anus). Before that he had put down my
pajama and underwear.”

6. On the day of the incident, the father of the victim, PW-2, received a call
from his wife (PW-1) at around 7.30 pm who told him that the victim had
gone missing and asked him to return home. After rushing home PW-2, PW-

Crl.A.663/2018 Page 3 of 14

1 and the brother of PW-2 i.e. PW-9 searched for the victim but did not find
any clue till about 9 pm. At around 9 pm, when PW-2 accompanied by PW-
1 were proceeding towards PS Bara Hindu Rao to lodge an FIR through the
zameer wali gali, they reached near the Barat Ghar and noticed a person
coming towards them along with the victim girl (PW-4). As the person came
closer, PW-2 could make him out to be the Appellant, whom he knew from
before as he was the brother-in-law of one Dharmender, from whom PW-2
had taken a godown on rent. When PW-2 enquired from the Appellant about
his daughter, he tried to escape but PW-2 managed to apprehend him. PW-2
then called PW-9 to the Barat Ghar. In the meanwhile, PW-1 took PW-4
back with her since the condition of PW-4 was bad. After handing over the
Appellant to PW-9, PW-2 and PW-1 took PW-4 to the Bara Hindu Rao
(BHR) Hospital.

Medical examination

7. Dr. Amisha Sharma examined PW-4 at the BHR Hospital. The
handwriting of Dr. Amisha Sharma on the MLC (Ex.PW19/A) was
identified by Dr. Bhawna (PW-19). The MLC noted the history of the case
as narrated by PW-1 and PW-2 and as told to them by PW-4. The injuries
were noted as grievous in the MLC and PW-4 was referred to the Labour
Room for the safe kit examination.

8. The further examination of PW-4 was undertaken by Dr. Ratika whose
handwriting was identified by Dr. Deepanjali Gupta (PW-17). Dr. Ratika
noted that the victim was fearful and there was a vaginal tear of three

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centimeters. The victim, with the permission of PW-1, was then sent to the
GA for repairing vaginal tear. The report of this procedure was Ex.PW17/D.
It appears that the victim was finally discharged on 11th February, 2014.

9. As far the Appellant is concerned, his medical examination was
undertaken at BHR Hospital by Dr. Kritya Dubey (PW-6). On local
examination, it was found that he had “small bruises present on upper back
on the right side and middle back on the right side.” His blood sample was
taken and sealed. His MLC was marked as Ex.PW6/A.

Investigation

10. Sub-Inspector (SI) Tirath Devi (PW-12) was the initial Investigating
Officer (IO), who received a call from the Duty Officer of PS Bara Hindu
Rao on the intervening night of 2nd/3rd February, 2014. PW-12 reached the
BHR Hospital, where she met the parents of the victim and collected the
MLC of the victim who was at that time at the ICU. The statement of PW-1
was recorded (Ex.PW1/A) and on that basis an FIR was registered.

11. Meanwhile, the Appellant had been brought to the PS and was formally
arrested. His disclosure statement was recorded. The statement of PW-3, the
younger sister of PW-4 was also recorded. The statements of both PW-1 and
PW-3 were also recorded under Section 164 Cr PC before the learned
Metropolitan Magistrate (MM). After the discharge of the victim from the
hospital on 11th February, 2014, her statement was recorded through
videography at her house. The victim was also produced before the MM for
recording her statement under Section 164 Cr PC.

Crl.A.663/2018 Page 5 of 14

Forensic evidence

12. The sealed exhibits were sent to the Forensic Science Laboratory (FSL),
Rohini, Delhi. SI Sanjeev Kumar (PW-20) was posted at PS Bara Hindu Rao
on 25th February 2014, when the remaining investigation was assigned to
him. The birth record of PW-4 was obtained from the school. In terms of the
school record produced by the Principal (PW-5) of the school attended by
the victim, her date of birth was 31st January, 2005.

13. The testing of the samples sent to the FSL was undertaken by PW-16,
who was the Senior Scientific Officer (Biology). Of the several exhibits
Ex.1b was the pyjami of the victim on which human semen was detected.
Blood was also detected on it. In her report, it is stated that no blood or
semen was detected on remaining exhibits and that “the DNA profiling STR
analysis performed on the exhibit „1b‟ (pyjami of victim) „5‟ (blood gauze
of accused) provided is sufficient to conclude that the DNA Fingerprinting
profile on the source of exhibit „5‟ (Blood gauze of accused) is similar with
the DNA Fingerprinting on the source of exhibit „1b‟ (pyjami of victim).”

14. After the filing of the charge-sheet, the charges against the Appellant
were framed as mentioned hereinbefore by the trial Court by an order dated
22nd May, 2014.

CCTV footage

15. It must be mentioned at this stage that while the matter was pending in
the trial Court, by an order dated 21st February, 2014 of the trial Court, an

Crl.A.663/2018 Page 6 of 14
inquiry regarding the CCTV footage in the area was conducted. This was on
the application of Smt. Neelam (sister of the Appellant). A report was
submitted to the trial Court by PW-20 on 1st March, 2014 where inter-alia it
is pointed out that the plea for CCTV footage was filed on 18th February,
2016 after the lapse of 16 days period from the date of registration of the
case. The DVR storage capacity in most of the CCTVs installed was not
more than 15 days and there was a strong possibility that the Appellant was
well aware of this fact and therefore, did not make such demand earlier. It is
concluded that no concrete conclusion could be drawn on the basis of CCTV
footage when the memories/DVR recording capacity of these CCTVs “was
automatically erased/elapsed.”

Trial

16. On behalf of the prosecution, 21 witnesses were examined. When the
incriminating circumstances were put to the Appellant under Section 313
Cr PC, while denying most of them, he surprisingly did not dispute that the
victim was with him at the time when she was recovered by her parents. In
response to question No.19, he replied:

“I am innocent and I have falsely implicated in the present case.
I had not done anything wrong with the victim. I was only
taking the victim as the victim requested me to drop her to her
house at Azad Market as she lost the way of her house.”

17. In his defence, the Appellant examined one Lal Chand (DW-1) who
claimed that the Appellant had come to his house on 2 nd February, 2014 at
around 10 am and that they had had tea and started playing carrom.

Crl.A.663/2018 Page 7 of 14

According to DW-1, the Appellant remained at the house till 8.30 pm and
thereafter left stating that he is going to his sister‟s house.

Judgment of the trial Court

18. The trial Court on an analysis of the evidence came to the following
conclusions:

(i) It stood established that PW-4 was about 9 years of age on the date of
incident.

(ii) The victim had clearly identified the Appellant and described the
aggravated sexual assault committed by him on her. Her statement in
Court was consistent with the statement given by her under Section
164 Cr PC.

(iii) PW-1 corroborated PW-4 on what had transpired when she and PW-2
found the victim whilst they were on their way to the PS. PW-1 also
deposed that she and PW-2 saw the Appellant coming with the victim
at around 9 pm near the Barat Ghar on 2nd February, 2014 at which
point PW-4 rushed to her mother weeping and the Appellant was
apprehended by PW-2 at the spot.

(iv) The medical evidence proved that victim had suffered grievous
injuries to her private parts requiring surgery and blood transfusion.
She remained in the hospital receiving treatment till 11 th February,
2014.

(v) The scientific evidence in the form of the FSL report proved the
presence of DNA of the Appellant on the pyjami of the victim
(Ex.1b). There was no merit in the defence argument that the FSL

Crl.A.663/2018 Page 8 of 14
report had been manipulated or that the blood sample of the Appellant
had been obtained later on and planted.

(vi) Although, it could not be said whether the omission to collect the
CCTV footage by the prosecution was deliberate, it could not be
ignored that by the time the Court ordered its collection, the
footage/DVR memory of the relevant time period had been deleted.

(vii) Further, although DW-1 deposed that the Appellant remained at his
house on 2nd February, 2014 up till 8.30 pm, in the statement under
Section 313 Cr PC, even the Appellant did not dispute his being found
with victim. He did not mention anything about visiting the house of
DW-1 and remaining there till 8.30 pm.

19. The trial Court, however, found that since it was not the case of the
prosecution that grievous injuries were caused to the victim by any
instrument or weapon, the Appellant ought to be given the benefit of doubt
as far as the offence punishable under Section 326 IPC is concerned.
However, he was convicted for the offence punishable under Section 325
IPC and sentenced as noticed hereinbefore for that offence as well as the
offences punishable under Sections 363 and 376(2) (i) and (m) IPC and
Section 6 POCSO Act.

Reasons and conclusions

20. Learned counsel for the Appellant has taken the Court through the entire
record and tried to persuade the Court regarding unreliability of the
testimony of PW-4. The Court has, on a careful perusal of the said

Crl.A.663/2018 Page 9 of 14
testimony, been unable to find any inconsistency in the statement of the
victim as to what actually took place on the evening of 2 nd February, 2014.
She was able to correctly identify the Appellant as the person who took her
away to the park and then committed forcible penetrated sexual assault upon
her.

21. A poignant moment in the trial Court during the deposition of the victim
was captured by the learned trial Court Judge in the following words:

“At this stage, witness started weeping and stopped responding
to the question. Witness is consoled by the counsel for the
complainant as well as supporting person. At last witness is
called at the DIAS and undersigned has spent some more time
with the witness to make her comfortable. At the request of the
witness, mother of witness was sent outside the Court as witness
told that she is not comfortable in the presence of her mother.
At her request, her father is called inside the Court room. After
spending about 30 minutes with witness, witness becomes ready
to make statement. Accordingly, I proceed to examine the
witness in further.”

22. In the present context, the law as regards the testimony of a child witness
may be noted. In Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5
SCC 341 it was held as follows:

“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

Crl.A.663/2018 Page 10 of 14
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.”

23. In Ranjeet Kumar Ram v. State of Bihar 2015 (6) SCALE 529, it was
observed: “Evidence of the child witness and its credibility would depend
upon the circumstances of each case. Only precaution which the court has to
bear in mind while assessing the evidence of a child witness is that the
witness must be a reliable one.”

24. In the present case, the trauma experienced by the young victim in
having to reconstruct the unpleasant events in the Court and be subjected to
extensive cross-examination, as is evident from the reading of her testimony,
can well be imagined. Despite all of this, the victim mustered the courage to
speak the truth enabling the trial Court to convict the Appellant on the basis
of her testimony. This Court too has no doubts whatsoever about the
truthfulness of her testimony.

25. In this regard, the law regarding appreciation of the evidence of a victim
of rape requires to recapitulation. The Supreme Court in State of Punjab v.
Gurmit Singh AIR 1996 SC 1393, explained:

“We must remember that a rapist not only violates the victim’s
privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape is
not merely a physical assault – it is often destructive of the
whole personality of the victim. A murderer destroys the
physical body of his victim; a rapist degrades the very soul of
the helpless female. The Courts, therefore, shoulder a great
responsibility while trying an accused on charges of rape. They

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must deal with such cases with utmost sensitivity. The Courts
should examine the broader probabilities of a case and not get
swayed by minor contradictions or insignificant discrepancies
in the statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement in
material particulars. If for some reason the Court finds it
difficult to place implicit reliance on her testimony, it may look
for evidence which may lend assurance to her testimony, short
of corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must be alive to
its responsibility and be sensitive while dealing with cases
involving sexual molestations.”

26. Again, in Om Prakash v. State of U.P. AIR 2006 SC 2214, it was
observed:

“A prosecutrix of a sex-offence cannot be put on par with an
accomplice. She is in fact a victim of the crime. The Evidence
Act nowhere says that her evidence cannot be accepted unless it
is corroborated in material particulars. She is undoubtedly a
competent witness under Section 118 and her evidence must
receive the same weight as is attached to an injured in cases of
physical violence. The same degree of care and caution must
attach in the evaluation of her evidence as in the case of an
injured complainant or witness and no more. What is necessary
is that the Court must be conscious of the fact that it is dealing
with the evidence of a person who is interested in the outcome
of the charge levelled by her. If the Court keeps this in mind
and feels satisfied that it can act on the evidence of the
prosecutrix. There is no rule of law or practice incorporated in
the Indian Evidence Act, 1872 (in short ‘Evidence Act’) similar
to illustration (b) to Section 114 which requires it to look for
corroboration. If for some reason the Court is hesitant to place
implicit reliance on the testimony of the prosecutrix it may look

Crl.A.663/2018 Page 12 of 14
for evidence which may lend assurance to her testimony short
of corroboration required in the case of an accomplice. The
nature of evidence required to lend assurance to the testimony
of the prosecutrix must necessarily depend on the facts and
circumstances of each case.”

27. In the present case, the testimony of PW-4 stands corroborated by both
the medical evidence as well as the forensic evidence which has already
been adverted to by this Court. The counsel for the Appellant had no
explanation to offer for the clinching evidence about the DNA of the semen
stains on the pyjami of the victim matching with the DNA of the accused
except stating that such semen was not found in the underwear of the victim.
In the considered view of the Court, the fact that the DNA of the semen
stains found on the pyjami of the victim matched the DNA of the Appellant
was by itself sufficient to connect the Appellant with the crime. Added to
this is the fact that the Appellant does not dispute that at the time when the
victim was recovered, she was found with him. Clearly, by examining DW-1
and claiming that he was at DW-1‟s house till 8.30 pm on the day of the
incident, the Appellant was putting forth a false plea of alibi.

28. This Court, therefore, concurs with the trial Court that the prosecution
has been able to prove the guilt of the Appellant for the offences for which
he has been convicted, beyond reasonable doubt.

Sentence

29. Lastly, learned counsel for the Appellant pleaded that a lenient view
make be taken as regards the sentence awarded to the Appellant by the trial
Court since he had no criminal antecedents.

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30. The Court is unable to accept the above plea. The victim was as young as
8 years old at the time of commission of the crime. The sexual attack on her
was so brutal that she had to undergo surgical procedure for repairing the
vaginal tear. She had to be hospitalized for nearly 10 days. This apart, the
psychological trauma this young girl would have to live with cannot possibly
be easily remedied. In the circumstances, the Court finds no ground
whatsoever made out for taking any lenient view in the matter.

31. For the aforementioned reasons, the Court upholds the judgment of
conviction and the order on sentence of the trial Court.

32. The appeal and the application are dismissed. The trial Court record be
returned forthwith together with a certified copy of this judgment.

S. MURALIDHAR, J.

V. KAMESWAR RAO, J.

SEPTEMBER 04, 2018
“shailendra”

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