Raju Yadav v. State of NCT of Delhi; Lakhi Vishwas v. State of NCT of Delhi

”

13. He has also relied upon “Himalayan Coop. Group Housing Society v. Balwan Singh”[(2015) 7 SCC 373] and more particularly paras 22, 26 and 32 which read as under:-

32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or ARORA statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights.”

14. In addition, it is submitted by learned counsel for appellant No.1 that there are inconsistencies, improvements and contradictions in the statements of the prosecutrix. He submits that as per the statement of the prosecutrix in the FIR, she has said that she had tried to raise an alarm but could not do so since the appellant No.2 threatened her. Subsequently, in her 164 statement she has stated that she was unable to raise an alarm as the appellant No.1 had tied a piece of cloth around her mouth so that she does not make any noise. He further submits that these two statements were further contradicted during her examination-in-chief. In her statement made during the trial, the prosecutrix has stated that it was appellant No.2 who had threatened the prosecutrix not to make any noise, while in her statement made on 26.05.2013, she has stated that both the appellants threatened her. It is stated that as per testimony of PW-2 (Mr. Satpal Chawla), it is stated that the prosecutrix was seen in the evening of Sunday and she appeared to be normal.

15. It is further submitted that the FSL report (EX PW 16/B) is inconclusive since the report states that the DNA found on the underwear of the prosecutrix is similar but not exact to that of the blood sample of the ARORA appellant No.1. He submits that since DNA is 99% similar in all human beings, the mere fact that the report states that the DNA found is similar to that of the appellant cannot be the basis of conviction u/s 376 IPC or 6 of POCSO Act. Reliance is placed upon a judgement of Supreme Court “Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik” [(2014) 2 SCC 576], and more particularly para 13 which reads as:- “13…DNA consists of four nitrogenous bases — adenine, thymine, cytosine, guanine and phosphoric acid arranged in a regular structure. When two unrelated people possessing the same DNA pattern have been compared, the chances of complete similarity are 1 in 30 billion to 300 billion. Given that the Earth's population is about 5 billion, this test shall have accurate result. It has been recognised by this Court in Kamti Devi that the result of a genuine DNA test is scientifically accurate. It is nobody's case that the result of the DNA test is not genuine and, therefore, we have to proceed on an assumption that the result of the DNA test is accurate. The DNA test reports show that the appellant is not the biological father of the girl child.”

16. It is stated that the judgement above clearly shows that the DNA test will be genuine and scientifically accurate since the chances of complete similarity are 1 in 30-300 billion, and thus leaves no room for error. The fact that the DNA test shows that the DNA is similar but not the same as that of the appellant No.1, points towards the innocence of the appellant No.1.

17. Mr. Madhukar states that there is also a delay of 2 days in registration of the FIR and the present FIR is only a retaliation to the objection of the appellants towards the prosecutrix‟s affair with a boy named Raju who was working at the prosecutrix‟s employers house.

18. Learned counsel for the appellant No.2 submits that the version of the prosecutrix is unreliable as there are material improvements in her 164 ARORA statement as well as in her statement recorded on oath before the learned Trial Court at the time of evidence.

19. He states that the learned Trial Court has failed to establish any “motive” as defined under section 8 of Evidence Act since it is the most crucial ingredient of any criminal act. He further states that the prosecution has not been able to establish as to why the appellant No.2, being the maternal aunt of the prosecutrix, would support someone in commission of rape upon her.

20. It is submitted by learned counsel for appellant No.2 that the boy named Raju, who was aged about 16-17 years at the time of the alleged incident, was not made a witness by the police even when the FIR was registered from the same address. It is further submitted that nothing material can be gathered through the testimony of PW-2 (Mr. Satpal Chawla) and PW-3 (Ms. Pushpa Rani) which would prove that the alleged incident took place with the prosecutrix.

21. He further states that there are several judgements of this Court as well as the Supreme Court stating that if there are two views, one pointing towards the guilt of the accused and another towards his innocence, then the view which is favourable to the accused must be adopted.

22. Ms. Arya, learned APP submits that the prosecutrix as well as the prosecution witnesses have duly supported the case of the prosecution and all the prosecution witnesses have also identified the appellants. She states that the finding of DNA being similar is enough to return a finding of conviction.

23. It is submitted by the learned APP that in the present case, the lawyer did not give up the right of the accused, but the accused himself gave up his right. She further submits that even the medical and FSL reports also ARORA support the prosecution‟s case and therefore, the prosecution has proved its case beyond a reasonable doubt.

ANALYSIS

24. I have heard learned counsel for the parties.

25. Under section 29 of the POCSO Act, there is a presumption of guilt against the accused. The prosecution is only required to lay the foundational facts which disclose the commission of offence by the accused persons. Once the same has been done, it is the accused who has to rebut the presumption of guilt.

26. Bone ossification test i. In the present case, there was no birth certificate/school certificate of the prosecutrix and the prosecution relied upon a bone ossification test of the prosecutrix dated 14.06.2013 done in another case, i.e., FIR No. 100/13 registered u/s 370 IPC and 3/4 of Child Labour Act registered at PS Rajinder Nagar, to prove the age of the prosecutrix. ii. The appellants have objected to the reliance placed upon the said bone ossification test, as the same was conducted in another FIR and not for the purpose of determining the age of the prosecutrix in the present case. I am unable to agree with the objection raised by the appellants as the testimony of PW-13 (Inspector Saminder Singh), proves that the bone ossification test has not been disputed by the appellant, their counsels and the amicus curiae. The testimony of PW-13 reads as under: - “PW 13- 142816, Anti Corruption Branch, CBI, Delhi. ON S.A.

1. On 28.05.2013 I was posted as S[1] at PS Rajinder Nagar. On that day further investigation of this case i.e. FIR no. 100/13 u/s 370 IPC and 3/14 Child Labour Act was assigned to me. In that case, I got ARORA conducted the ossification test of the prosecutrix (who is also a victim in this case) from DDU hospital on 14.06.2013. I collected the ossification test report of the prosecutrix in which her age was opined as 15-17 years.

2. IO of the present case requested me to hand over the copy of ossification test of the prosecutrix. I gave the copy of ossification test of the prosecutrix to IO /SI Vipnesh. (The ossification report of the prosecutrix is not disputed by the accused as well as their Legal Aid Counsel and Amicus Curiae).Copy of the ossification test report of the prosecutrix is exhibited as Ex.PW13/A.” [ iii. Once there was no objection to the bone ossification test done in FIR NO. 100/13 being proved and there was no dispute to its veracity by the appellants as well as their legal aid counsel/ amicus curiae, the contents of the bone ossification test have been deemed to be accepted by the appellants. iv. In addition, I am also of the view that once there is a bone ossification test already on the Court record (even though in another case) which is not disputed by the appellants as well as the amicus, the prosecutrix cannot be required to undergo another bone ossification test. The same if permitted, would amount to re-victimization and undergoing the trauma once again by the child survivor/prosecutrix.

27. Age of the prosecutrix i. The second objection raised by the appellants is with regard to age of the prosecutrix. Various judicial pronouncements grant a leeway of 2 years on either side, while interpreting a bone ossification test for determination of age. As per the counsel of the appellants, since the bone ossification test conducted on the prosecutrix opines her age between 15-17 years, then after taking into consideration the margin of error of 2 years, the age of the prosecutrix should be considered 19 years on the date of the offence ARORA and hence, the appellants should not have been convicted under the POCSO Act. ii. The objective of POCSO Act reads as under: - “The Protection of Children from Sexual Offences (POCSO) Act, 2012 was formulated to effectively address the heinous crimes of sexual abuse and sexual exploitation of children. This Act of 2012 was introduced to provide for the protection of children from the offences of sexual assault, sexual harassment etc. This act also provides for safeguarding the interests of the child at every stage of the judicial process by incorporating child friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. Primarily the object of the Act were to protect the children from various types of sexual offences and for this purpose this Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process.” iii. The Supreme Court in “Jarnail Singh v. State of Haryana”[(2013) 7 SCC 263] observed that:-

28. Hymen tear i. Section 375 of IPC states that:-

ii. The testimony of PW 5 (Dr. Aditi Aggawal) who conducted the MLC of the prosecutrix(Ex.PW5/A) reads as under: - “PW 5 (Dr. Aditi Aggawal) Senior Resident, Obs. & Gynae, SGM hospital Mangol Puri, Delhi ….I examined her and found that her hymen was torn completely, however, no congestion was present. I prepared her MLC Ex.PW5/A which is in my handwriting and bears my signatures at point A…” iii. In offences u/s 375 of IPC, even the slightest form of penetration is sufficient to constitute the offence of penetrative assault. It is also not necessary that there has to be some injury on the genitalia or any other part of the prosecutrix‟s body. The Supreme Court in “Satyapal v. State of Haryana”[(2009) 6 SCC 635] has observed that:-

31. Contradictions/inconsistencies in the statement of the prosecutrix i. The submission made by learned counsel for the appellants that there are contradictions in the statement of the prosecutrix, are of no help to the ARORA appellants. The Supreme Court in “Appabhai v. State of Gujarat” [1988 Supp SCC 241] observed that- “13….The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. …” ii. In the case at hand, the alleged discrepancies which have been pointed out regarding raising of alarm and threatening the prosecutrix are of a minor character and do not call into question the veracity of the prosecution‟s story. The basic version regarding the manner and commission of offence is constant. The contention of the counsel for appellants cannot be accepted that there are contradictions, improvements and inconsistencies, such as, firstly, as per the first statement of the prosecutrix later on incorporated in the FIR, she could not raise alarm as the appellant No.2 had threatened her, whereas in her statement u/s 164, she stated that the appellant had tied a piece of cloth around her mouth so she could not make any noise. Secondly, the prosecutrix diverted from her earlier statements that the appellants had threatened her, whereas as per PW-3, ARORA the prosecutrix had given the version that the appellant No.2 had locked her in the room. These contradictions are of a minor character which do not shake the quality of the statement of the prosecutrix. iii. Moreover, the Supreme Court in “State of Punjab v. Gurmit Singh” [(1996) 2 SCC 384], the Court observed as under:- “21…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 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.” iv. I am in agreement with the view taken by the learned ASJ in the impugned judgment that there is no reason to disbelieve the testimony of the prosecutrix as this conclusion was arrived at after considering all the evidences on record and testimonies of the witnesses. In this regard, relevant portion of the impugned judgment is as under: -

ARORA

32. DNA i. DNA tests are widely used and accepted for its accuracy. It has been argued by learned counsel for appellant No.1 that the DNA which was found on the underwear of the prosecutrix was “similar” and not “identical” to that of appellant No.1. It has been held by the Supreme Court in “Pantangi Balarama Venkata Ganesh v. State of A.P.,” [(2009) 14 SCC 607]that the use of the word „similar‟ and not „identical‟ in the report by the DNA expert is not material, when there was other evidence available on record as well. The relevant portion is reproduced as under: - “44. We are not oblivious of the fact that the experts used the term “similar” and not “identical”. For the purpose of this case it may not be of much consequence as this Court has not taken into consideration the evidence of DNA experts alone for the purpose of recording a judgment of conviction. It has been considered along with the other evidence. The prosecution case has been considered as a whole. Cumulative effect of the evidences adduced before the learned trial Judge have been taken into consideration for the purpose of arriving at a finding of guilt against the appellant.” ii. Even in the present case, the Sessions Court has not relied upon the DNA exclusively but has taken into consideration the cumulative evidence and testimonies of all the witnesses, to arrive at the guilt of the appellants. According to me, the impugned judgment of the Sessions Court is based on a combined reading of facts and testimonies of the witnesses and therefore, cannot be faulted. [

33. Delay in lodging the FIR i. It is a settled law that in cases like rape, the delay in lodging of FIR cannot be a ground to disbelieve the version of the victim. In Gurmit Singh (supra), the Supreme Court observed that:- “8…The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons ARORA particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.” ii. The prosecutrix was dropped off at her employer‟s house on 27.05.2013 and the complaint was made on 28.05.2013. The delay in the present case is minima land the contention of the learned counsel for the appellants that there is delay in filing the FIR thus cannot be given weightage.

34. Motive of appellant No.2 It is submitted by learned counsel for appellant No.2 that no motive was established as to why appellant No.2, being the maternal aunt of the prosecutrix, would support appellant No.1 in committing rape upon the prosecutrix. Similarly, no motive is also established as to why the prosecutrix would falsely implicate appellant No.2 in the present case. The statement of the prosecutrix is of sterling quality. The combined evidence of the prosecution lays down the foundational facts which disclose the commission of offence and this Court finds no reason to disbelieve or discredit the statement of the prosecutrix.

35. Objection of the appellants towards prosecutrix’s relation with Raju and Raju not made a witness The prosecutrix has deposed that Raju was employed at the house of Pushpa Rani prior to her employment. Even testimony of PW-3 (Pushpa Rani) corroborates the testimony of prosecutrix and reads as under: - “No person by the name of Raju ever worked with me. On 25.5.13, accused Lakhi visited my house at about 4 or 5 p.m. However, I do not remember the exact time. On27.5.13, prosecutrix returned in the early morning at about 7 a.m. It is wrong to say that one boy namely Raju ARORA aged about 15/16 years was working with me and prosecutrix developed physical relations with her and Raju was removed by me from the services.” Hence, the contention of the appellants that Raju was not made a witness and they were falsely implicated in the case because they raised an objection towards the prosecutrix‟s relationship with one Raju, who was employed at the prosecutrix‟s place of employment cannot be accepted.

CONCLUSION

36. The judgement of the learned Trial Court is well reasoned. The Trial Court has correctly observed that the fact that both the appellants were employed at the same place at the time of incident and the prosecutrix was also residing at their place from 25.05.2013 till 27.05.2013which proves that the offence has taken place and the same is also corroborated by the testimony of PW-3 (Ms. Pushpa Rani). In addition, it has also been correctly observed that the DNA profiles generated from the exhibits were sufficient to prove the guilt of appellant No.1 in commission of the offence.

37. The testimony of PW-5 (Dr. Aditi Aggarwal) has explained that congestion over the area of the body is usually present in injuries which are less than 24 hours old. The fact that the absence of congestion in the present case is possible due to lapse of time has also been rightly appreciated by the learned Trail Court.

38. The learned Trial Court has also rightly relied upon the judgements to state that the testimony of the victim alone is sufficient to prove the guilt of the accused and minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.

39. There is also sufficient evidence against the appellant No.2 in abetting the offence committed by appellant No.1, being her presence in the room at the time of commission of offence and the testimony of the prosecutrix. The role of appellant No.2 in commission of the offence has also been correctly examined by the learned Trial Court.

40. It is a settled position of law that the statement of prosecutrix can be the sole basis for conviction unless there are cogent reasons for the Court to be hesitant in believing the statement at its face value or to seek corroboration. The Supreme Court in “State of H.P. v. Sanjay Kumar”[(2017) 2 SCC 51] held that:- “30…We have already discussed above the manner in which the testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. 31…By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one ARORA who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime.”

41. In the present case, the testimony of the prosecutrix is of sterling quality and inspires the confidence of this Court. This Court finds no reason to discredit or disbelief the statement of the prosecutrix. In addition, the statement of the prosecutrix has also been duly corroborated. The intention of the prosecutrix in falsely implicating the appellants can also not be made out.

42. The appellants have not been able to rebut the presumption of guilt which operates against them under section 29 of POCSO Act. The prosecution has successfully proved the guilt of the appellants in committing the offence beyond a reasonable doubt.

43. In this view of the matter, I find no reason to interfere with the judgement dated 31.01.2020 and order on sentence dated 27.06.2020 passed by the learned Special Judge (POCSO ACT)/ ASJ-01, (West), Tis Hazari Courts, Delhi, in case S.C. No. 55924/2016, FIR No. 224/2013, u/s 376/342/506/120B/109 IPC and section 4/6 of POCSO Act, registered at P.S. Punjabi Bagh, Delhi.

44. The appeals are accordingly dismissed.

45. Copy be sent to DSLSA Member Secretary to ensure that compensation has been paid to the prosecutrix.

JASMEET SINGH, J MAY 16, 2023 / st ARORA