Mohd. Raju @ Raju v. State NCT of Delhi

1. By way of the present appeal, the appellant seeks to assail the judgement of conviction dated 29.01.2020 whereby the appellant was convicted under Section 6 read with 5(j) of POCSO Act and order on sentence dated 04.02.2020 passed by the ASJ (POCSO Act), South East, Saket Courts in SC No. 1811/2016. Vide order on sentence, the appellant was directed to undergo rigorous imprisonment for a period of 14 years and also to pay a fine of Rs.1,500/- for offence punishable under Section 6 read with section 5(j) of POCSO Act and in default of payment of fine, he was directed to undergo simple imprisonment for a period of six months.

2. The prosecution case, in a nutshell was that on 13.05.2014, information was received in P.S. Govind Puri that the prosecutrix, who was minor and pregnant had been admitted in ESI hospital by her parents vide MLC number 456/2014 which was recorded vide DD no. 11-A and the same was entrusted to SI Jitender and MLC of the prosecutrix was handed over to him. The statement of the prosecutrix was recorded in the hospital. She stated that the appellant was her fufa (Uncle) who lived nearby and his meals were prepared at her house and she used to deliver them sometimes, along with her sister. About 2-2½ months prior, the appellant called her and her sister for cleaning the utensils at his house. When they reached his house in the evening, after they washed the utensils, the appellant sent prosecutrix’s sister to buy cigarettes for him and then he committed rape upon the prosecutrix. He also threatened not to tell about the incident to anyone. However, after some time the prosecutrix’s menstruation stopped and she became pregnant, whereafter she disclosed the incident to her parents.

3. Vide order dated 09.10.2015, charges were framed under Section 6 read with 5(j) of POCSO Act, to which the appellant pleaded not guilty and claimed trial. During the trial, in total, fourteen prosecution witnesses were examined. The prosecutrix ‘Y’ was examined as PW[1], her sister ‘T’ who had accompanied her as PW[2] and the mother of prosecutrix was examined as PW[3]. Mr. Jarnail Singh, the landlord of the appellant was examined as PW[9]. The IO SI Kala Joshi was examined as PW14. The rest of the witnesses were formal witnesses who deposed about various aspects of the investigation. In defence, the statement of the appellant was recorded under section 313 CrPC, wherein he denied the prosecution’s case, and stated that he had been falsely implicated in the present matter.

4. Learned counsel for the appellant submits that the appellant is innocent and the Trial Court has erred in convicting him. It is submitted that there are material contradictions between the prosecution witnesses. While the prosecutrix stated that she was washing utensils inside the house, the IO had deposed that there was no such place inside. It is further stated that though the prosecutrix named one Sameer in her statement under Section 164 CrPC, however no investigation was carried out qua him. It is contended that the prosecutrix got pregnant because of this Sameer and not the appellant. Alternatively, it is pleaded that if this Court is inclined to dismiss the appeal on merits, the appellant be released on the period already undergone. It is submitted that the appellant has undergone more than 12 years and 8 months including remission. Reliance is placed on the decision of Supreme Court in Sonadhar v. State of Chattisgarh, decided on 06.10.2021 in SLP (Crl) No. 529/2021. It is submitted that the appellant belongs to poor strata of society and needs to provide for his wife and six children and that he has no criminal antecedents.

5. Learned APP for the State, duly assisted by the learned counsel for the prosecutrix, has supported the impugned judgement. It is submitted that the prosecutrix has given a clear and consistent deposition supporting the case and her version is corroborated by the FSL report of the aborted foetus, which shows that the appellant was the father. It is submitted that the contradictions pointed out are minor and do not affect the prosecution case.

6. The victim being a minor was not disputed before the Trial Court. The prosecutrix was examined as PW[1]. She was aged around 14 years at the time of the incident. She supported her initial complaint that she and her sister were called to the appellant’s house for cleaning of utensils. The appellant sent her sister away on the pretext of buying cigarettes and removed the prosecutrix’s leggings and committed rape on her. When her sister returned they went home and she did not disclose this incident to anyone. Later, when she did not get her periods, she disclosed the incident to her mother. She also deposed that though she didn’t remember the exact date, even prior to this incident the appellant used to touch her body. She identified the appellant in court and stated that he is her uncle who had committed rape on her.

7. Pertinently, the prosecutrix had not supported the prosecution story in her Statement under Section 164 Cr.P.C wherein she stated that she had met her friend Sameer who took her away and offered her cold drink and sweets whereafter she got unconscious and he dropped her home. She found out that she was pregnant when her health had worsened. Naturally, she was confronted with this statement at the time of her court deposition where she stated that she was pressurised by the wife of the appellant and his brother Guddu Chacha to change her statement and it was Guddu Chacha who asked to introduce Sameer in her statement. In her cross examination, suggestion was made to her that the appellant used to earn more than her father and support them financially, which she denied. She denied having any friendship or physical relations with Sameer.

8. The sister of prosecutrix was examined as PW[2]. She corroborated prosecutrix’s statement on all material aspects, such as going to the appellant’s house to wash utensils on the date of the incident and being sent away by the appellant to buy cigarettes. She deposed that after returning, she saw that the prosecutrix was afraid and they returned home. She correctly identified the appellant. In her cross, she stated that she had never heard that her father took any money from the appellant.

9. The mother of the appellant was examined as PW[3]. She deposed that in May 2014 she and her husband had taken the prosecutrix to ESI hospital, Okhla wherein they were informed that she was two months pregnant and they were referred to ESI hospital at Basai Darapur where the pregnancy was terminated. She had stated that the prosecutrix had told her that it was the appellant who committed the wrong act with her. She also denied the suggestion that her husband used to borrow money from the appellant. The father of the prosecutrix, examined as PW[4], deposed on similar lines.

10. The MLC of the prosecutrix was exhibited as PW7/A and proved by Dr. Lata, Sr. Resident, Department of Obstetrics & Gynecology, ESI Hospital, Basai Darapur, New Delhi (PW[7]). The MLC records in the history that the prosecutrix was brought in by her parents on 13.05.2014 and alleged sexual assault by her uncle (appellant) 2 months back at her uncle’s place. It was further recorded that the patient and parents wanted Medical Termination of Pregnancy (MTP). PW[7] deposed that the pregnancy was terminated on 16.05.2014 and 3 samples of the foetus were taken out of which two were handed over to the IO and one was sent to the Pathology lab of the hospital.

11. Ms. Poonam Sharma, Assistant Director (Biology), FSL Rohini, was examined as PW11. She deposed that the DNA fingerprinting profiling (STR analysis) performed on the exhibits provided were sufficient to conclude that Ex. 1 (blood sample of prosecutrix) and the alleles from the source of Ex.[2] (blood sample of appellant) are biological mother and father of the source of Ex. S-2 (product of conception in normal saline.) In other words, the DNA present in the sample of the aborted foetus matched with the appellant as well as the prosecutrix. Though a barrage of technical questions regarding the technique used were put to her during cross examination, her answers to the same were satisfactory and did not affect her credibility or credibility of the FSL report.

12. The appellant has contended that there are material contradictions in the statement of prosecution witnesses. Though, the IO in her cross examination has stated that the victim told her that she had washed utensils outside the room, both PW[1] and PW[2] have stated that the place of washing utensils was inside the room. PW[9], the landlord deposed that the tenants used to wash the utensils inside the room itself and there was no separate arrangement. In my view, the same is insignificant and does not affect any vital part of the prosecution case. Though the appellant had taken a defence that the father of the prosecutrix had taken Rs. 60,000/- from him, however no proof was furnished to substantiate this contention. There was no mention of any Sameer in his statement under Section 313 Cr.P.C. either. Moreover, the prosecutrix has explained his introduction of said name in the statement under Section 164 on account of pressure from the appellant’s relatives.

13. Section 29 of POCSO Act provides that Court shall presume that the accused has committed the offence for which he was charged with, until the contrary is proved. However, before this presumption can operate, the prosecution has to prove the foundational facts. A three Judge Bench of the Supreme Court in Sambhubhai Raisangbhai Padhiyar v. State of Gujarat[1] has held that section 29 of the POCSO Act comes into play once the foundational facts are established. It holds as follows:-

14. Gainful reference in this regard may also be made to the decision of a Co-ordinate Bench of this Court in Veerpal v. State[2], wherein it was held as under:-