State v. Amar Pal

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:-

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.

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.

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.

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.

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 PW[2] Upender Yadav. PW[1] 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 PW[2] 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 PW[1] Baby X also did not have any kind of pressure. He did not have any objection for recording of testimony of her daughter PW[1] Baby X on 21.05.2009 in the court. After recording these submissions, the statement of PW[1] Baby X was recorded. Now, dspite unequivocal statement of PW[2] Sh. Updender Yadav on 21.05.2009 before this court, his daughter PW[1] 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 PW[1] 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 PW[1] Baby X, her father PW[2] 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 PW[1] Baby X did not have any kind of threat and he did not have objection in case the testimony of PW[1] Baby X be recorded on 21.05.2009. PW[2] 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 PW[1] 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 PW[1] Baby X was recorded. 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.

44. As regards the commission of rape is concerned, this witness (PW[6]) is hear say, as she has deposed that her daughter PW-1 Baby X had told that she was raped by accused.

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.

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.

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

(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 redhanded 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 2x[2] 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