State v. Vaseem

16. Since, the testimonies ofPWl (Child victim)PW2(Mother ofthe child victim) has been strongly relied upon by the learned counsel for the State, we deem it appropriate to discuss the evidence adduced by these prosecution witnesses in detail. CRL.L,P.274/2016 Page4of18 V,

17. PW[1] child victim stepped into the witness box and deposed that: "0« 26.10.2011 at about 11.00 a.m., accused had come to my house when myfather hadleft the housefor hisjob and1along with my mother and brothers were present at home. Accused requested my mother to send me to his housefor some house work as the wife ofaccused was not well. Accordingly, my mother sent mefor house work ofaccused along with him. Accused took me to this house at 5"^ pusta, New Usmanpur, Delhi. His wife was not present there. Accused took me in his room and bolted the door from inside. Accused removed my wearing clothes and he also removed his wearing clothes and he laid me on thefloor and committed wrong act/rape upon meforcibly. After committing rape accused dressed up me with my wearing clothes in addition to undergarment provided by him. Accused had also given me some medicine which 1 had consumed consequently 1 had vomiting. Thereafter, accused had taken me at 2"'^ Pusta Usmanpur and threatened me not to disclose about the rape to anyone otherwise he would kill me and went away. Ireached at my house. My mother asked me as to why I was afraid? I told her about the incident. My mother called my father by calling him on his mobile phone. Myfather returned at home and he made call at 100number."' ^

18. This witness in her cross examination as under; Iwas crying and tried to shout butsince my mouth had beengagged,therefore, nobodycould hear mycry. Ihad told thisfact to the police(Confronted with Ex PWl/DA where it is not so recorded). My mouth was gagged by the accused after entering into the room and upon closing the doors and before disrobing me. He opened the cloth piecefrom my mouth after 10-15 minutes and thereafter gave bath to me. I had stated thisfact to the police. (Confronted with Ex. PWl/DA where it is not so recorded). The bathing water was clean and having no CRLLP.274/2016 Page5of18 (o colouring. After bath the accusedfirst made me wear children's clothes and thereafter he made me wear my clothes. I was wearing all the clothes when I reached home. The said children clothes (inner wear) were thrown by my mother and my clothes were taken by the police. I had only told to the police that I was wearing inner clothes when Icame home but had not told that my mother had thrown the inner clothes. (Confronted with Ex. PWl/DA where it is notso recorded). I was brought on a scooter to the pusta by the accused and I came crying to that place. I was also ciying when he left me. No one asked me why 1 was crying. I came back home while crying. 1 did not met any policeman on the way. There was no crossing or red-light in between. Ido not know the nature of cloth with which my mouth was gagged.Ihad notstated to the police thaton entering the room, the accused had tied my hands with a dupatta. Itis wrong to suggest that no such incident had taken place that is why I had not told thesefacts to the police. I had stated to the police that when the accused came to my house, myfather had leftfor hisjob and my brother and mother were present. (Confronted with Ex.PWl/DA where it is not.90 recorded.) I had also stated to the police that when Ireached the house ofthe accused, his wife was notpresent there.(Confronted with Ex.PWl/DA ^ where itis notso recorded)..."

19. Hon'bie Supreme Court in"catena^ judgments held that the testimony of victim of rape needs no corrohoration and conviction can be founded on the testimony of the prosecutrix alone if it is unimpeachable and beyond reproach.In Mohd Ali vsState ofU.P: (2015)7see272 W was held as under; "22. Be it noted, there can be no iota ofdoubtthat on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trialJudge as CRLLP.274/2016 Pggg ggflg well as the High Court have persuaded themselves away with thisprinciple without appreciating the acceptability and reliability ofthe testimony ofthe witness. Infact, it would not be inappropriate to say that whatever the analysis in the impugnedjudgment, it would only indicate an impropriety ofapproach. The prosecutrix has deposed that she was taken from one place to the other and remained at various housesfor almost two months. The only explanation given by her is thatshe was threatened by the accusedpersons. It is not in her testimony thatshe was confined to one place. Infact, it has been borne out from the material opjgcord that she had travelledfrom ^ place to placg andshe wa^ ravished number oftimes. Under these circumstances^ the medical evidence gains significance,for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination ofthe witnesses, the: testimony of„ the prosecutrix, the ^associated circumstances andthe medicalevidence,leave a harkof do^bt to treat the testimony of the prosecutrb^as so natural and truthful to inspire confidence. It tan be stated with certitude that the evidence ofthe prosecutrix is notofsuch quality which can beplacedreliance upon. True it is, the grammar oflaw permits the testimony ofa prosecutrix can be accepted without any corroboration ^ without mrnetialparticulars forshe has to beplacedon a higher pedestal ^hcin an injured witness, but, a pregnant one, when a Court, on studied scrutiny ofthe evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirementfor search ofsuch direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-Appellantsfor the allegedoffences and the High CRL.LP.274/2016 Page7of18 Court hasfallen into error, without re-appreciating the material on record, by giving the stamp ofapproval to the same."

20. In Raju v. State of Madhya Pradesh: (2008) 15 SCC 133, the Hon'ble Supreme Court has held that testimony of the victim of a rape cannot be presumed to be a gospel truth and observed that false allegations ofrape can cause equal distress, humiliation and damage to the accused as well, in para 11, the supreme Court echoed the sentiments as under;- "11. It cannot be lost sight of that rape causes the greatestdistress and humiliation to theJ^if^ but at the same time a false,allegation ofjape cm ch^e equal distress humiliation and damage to the accused as well. The. accused must also be protected against the pombility offalse implication, particularly where a larp numberofaccusedare involved.Itmust,further, be bo^e in mindthat thehroadprinciple is that anInjured witness was present at the time when the Incident happened and that ordinarily such a witness \^uld not tell a lie as to the actual dssailants, but tiSre is no presumption or any basisfor assuming tlmtthe statement of such a witness is always cor'-ect or without any embellishmentbrexaggeration."

21. The evidence of a child witness must be evaluated more carefully and with greater circumspection. In Radhey Shyam Vs State of Rajasthan: (2014)5SCC389it was observed as under: "P.in Panchhi, after reiterating the sameprinciples, this Court observed that the evidence ofa child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easyprey to tutoring. This Courtfurther observed CRLLP.274/2016 Page8of18 that the courts have held that the evidence ofa child witness mustfind adequate corroboration before it is relied upon. But, it is more a rule ofpractical wisdom than of law. It is not necessary to refer to other judgments cited by learned Counsel because they reiterate the same principles. The conclusion which can be deducedfrom the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon ifthe courtfinds that the child witness has sufficient intelligence and understanding ofthe obligation ofan oath. Asa matterof caution, the court mustfind adequate corroboration to the child witness's evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation...".

22. Further In Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan reported in (2013) 5 SCC 72, the Hon'ble Apex Court held: "It is a settled legalproposition that, while appreciating the evidence ofa witness, minor discrepancies on trivial matters, which do not affect the core ofthe case ofthe prosecution, must not prompt the Court to reject the evidence thus provided, in its entirety. The irrelevant details which do notin any waycorrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular, in their exercise of appreciating evidence. The approach to be adopted is, ifthe evidence ofa witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessaryfor the Court to scrutinize the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of CRL.LP.274/2016 Rage9of18 the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief "Exaggerationsper se do not render the evidence brittle. But it can be one ofthefactors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." It is in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence, the Court must not attach undue importance to minor discrepancies, rather must consider broad spectrum ofthe prosecution version. The ^ discrepancies may be due to normal errors ofperception or observation or due to lapse ofmemory or due tofaulty or stereotype investigation. After exercising such care and caution, andsifting through the evidence to separate truth from untruth, embellishments andimprovements, the Court must determine whether the residuary evidence is sufficient to convict the accused. (Vide:BIhari Nath Goswami v. Shiv KumarSingh and Ors.:(2004)9SCC 186; Vijay @ Chinee v. State of Madhya Pradesh: (2010)8SCC 191 andSampath Kumar v. Inspector of Police,Krishnagiri:AIR 2012SC 1249)."

23. It is a well settled law that conviction can be based on the sole testimony ofthe prosecutrix ifthesame inspices confidence.Plethora of decisions would show that once thd statement ofthe prosecutrix inspires confidence and is accepted by the Court,the conviction can be based solely on the solitary evidence ofthe prosecutrix and no corroboration would be required. However, as a rule of practical wisdom and as a matter of caution the court must find adequate corroboration to the evidence of the child witness. Let us now examine whether the testimonv of the child witness herein is CRL.L,P.274/2016 Page10of18 ll corroborated sufficiently which unerringly points towards the guilt ofthe respondent.

24. PW2Roshan Parveen mother ofthe child victim deposed before the court that:- "Ido notremember the date but in the month ofOctober 2011, accused had come to my house at about 11:00 am and requested to send victim with himfor his house work and on his consistent requestIhad sent victim with him. Victim returned at my house at about 04:00 pm. I had noticed thatcondition ofvictim was not well andshe was nervous. I had also noticed blood oozing outfrom her private part and blood stains on her wearing clothes. Victim told me that accused committed rape upon her and provided undergarment after committing rape. It was also told by victim that accused had threatened to kill her and accused had directed to disclose as she had sustained injuries due tofallfrom staircase. Ihad made phone callto my husbandand he came immediatelyand[1] narrated him aboutthe incidentcommitted by accused. My husband called 2-3 neighbours and made call to police at 100 number. Police came and took us to police station andfrom there at the house ofaccused Vaseem present in court, correctly identified but he was not present and his room wasfound locked. From there police took us to GTB Hospital where victim was medically examined. Wearing clothes ofvictim had been taken intopossession by the doctors.Police hadrecorded statement of my husbandfirst, thereafter, statement of victim and mine..."

25. PW2deposed in her cross examination that: "At the time when accused had stated to have come at my house on the day ofincident, my three sons were watching T.V. inside the house and the victim was present outside the house in the street. Before this,Ihad never sent the victim with anyone outside the house. I CRLLP.274/2016 Page11of18 *• ■■'m w was aware that the accused was married.Ido not know the name ofwife ofaccused. 1hadnot brought the victim from the street. (Vol. The accusedhadbrought the victim to me from the street). At that time no neighbor was present over there. There were no shops in the Gali in whichIwas residingat that time. The accusedhadcome to my house on motorcycle alone.Ihadnot allowed the victim to go with the accused on his request. (Vol the accusedhadrepeatedly requestedfor about one hour.)

26. Onperusal of the testimonies it has emerged that PW[2], mother of the child victim deposed that respondent had taken her daughter on the pretext that the wife of the respondent was sick, however PWl deposed inher cross examination that respondent was residing alone and not with his family. Confirmation by PWl that the respondent lives alone in the house dents the case of prosecution. Further PWl 1 'V I s I in her cross examination deposed that "immediately after entering I i 'It " Ml I his house the respondent bolted the roomfrom inside, started tying my hands with a string" but in her examination in chief she was silent in this regard. Further PW-1 in her cross examination deposed that "I was crying and tried to shout but since my mouth had been gagged therefore, nobody couldhear me cry." Again the child victim has not mentioned anything about the gagging of her mouth by the respondent in her examination in chief. PWl in her examination in chief deposed that "after committing rape accused dressed up me with my wearing clothes in addition to undergarments provided by him." In her cross examination she deposed that "on reaching home my innerwear were thrown by my mother andclothes were taken by the police." However the innerwear of the child victim were seized CRL,L.P. 274/2016 Page12 of18 and sent for examination. This fact again creates doubt that if the innerwear of child victim were thrown by the mother of the child victim then which inner garments were sent by Investigation Officer for examination. Child victim further deposed in her cross examination that "on the date ofincident, myfather had leftfor his job/work at about 08:00am. After myfather leftfor his work, my mother wassleeping. Iand my two younger brothers were watching T.V. Iwatched T.V. upto 10:00 a.m. My third brother is elder to me and was residing at the native village." On the contrary PW[2] mother ofthe child victim stated that "at the time when accused had stated to have come at my house on the day ofincident my threesons were watching TV. inside the house and the victim was present outside the housein thestreet", |

27. Further PWl in her cross examination deposed that"nobodyfrom the neighbourhood had come to my house after arrival of myfather also" however PW[2] mother of the child victim and PW[3] father of the child victim stated that 2-3 neighbours were present outside their house after the alleged incident. The stand taken by the father and mother ofthe child victim in relation to the presence ofneighbour is again contrary to the statement given by the child victim. It is worthwhile to mention that no neighbours were examined by the prosecution as Independent witnesses. Even the brothers ofthe child victim who were present at the house when the child victim was taken by the respondent have not been examined by the prosecution.

28. In the present case after reading the testimonies ofPWl and PW[2] in its entirety, we are ofthe considered opinion that there are material CRLL.P.274/2016 page13of18 'V contradictions in their statements recorded at different stage of the trial and does not inspire any confidence. Under these circumstances, it would be highly difficult to accept the version ofthe prosecution on the basis oftheir testimonies.

29. It is a matter of fact that the incident took place on 26.10.2011 betv^een 11:00 am to 04:00 pm and MLC of the child victim was prepared at about 12:15 midnight and after recording the statement of the complainant FIR was registered on 27.10.2011 at 02:05 am. No statement ofthe child victim under Section 161 ofthe Code of the Criminal Procedure was recorded by the Investigating Officer for 16 days and her statement was recorded only on 11.11.2011. Statement of the child victim under Section 164 of the Code of Criminal Procedure was not recorded. Neither any explanation has been rendered by the prosecution in relation to non recording of statement ofthe child victim under Section 164 ofCode ofCriminal Procedure nor any explanation with regard to delay in recording of statement of the child victim under Section 161 of the Code of Criminal Procedure was given.

30. Law relating to unexplained de!!^''in recording ofthe statement of the material witness is clear. In the case ofShahid Khan VsState of Rajasthan: Criminal Appeal Nos. 1460, 1461 and 1462 of 2008 decided on 02.03.2016 the Hon'ble Apex court has held that:- ''The statements ofPW 25 Mirza Majid Beg andPW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation isforthcoming as to why they are not examinedfor 3 days. It is also not known as to how the police came to know that these witnessessaw the CRL.L.P.274/2016 Page14of18 occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg andPW 24 Mohamed Shakir, in view oftheir unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independentsoj^^e either;,JVefind it rather unsafe to rely upon theif^evidence only to uphold the conviction and sentence of the Appellants. The High Court has failed to advert to the contentions raised by the Appeltimts and re-appfeciate the emdench thereby resulting in miscarriage ofjustice. In oiir opinion, the case against the Appellants has not been proved beyond reasonable doubt"

31. From the above settled position oflaw and facts ofthe present ease it.iS. f is an established fact diat the unexplained delay in recording the statement of child victim is fatal to the case otprosecution and \ '-i.; n. - n ^ concoction onthe partofInvestigating Officercannot be ruled out.

32. Moreover, no conclusive evidence emerged from the MLC connecting the respondent with the alleged crime. Significantly, even the FSL report does not favour the prosecution case as no semen stains were detected on the salwar, innerwear or in vaginal secretion of the child victim. Also, grouping of blood stains on the clothes ofthe ehild victim gave no reaction during examination.

33. The law with regard to the grant ofleave is well settled by a catena ofjudgments.Leave to Appeal can be granted only where it is shown CRL.LP.274/2016 Page15of18 \ that the conclusions arrived at by the Trial Court arc perverse or there is misapplication oflaw or any legal principle.

34. The law relating to an appeal against an order of acquittal was succinctly laid down by Hon'ble Supreme Court in State ofGoa v. Sanjay Thakran andAnother(2007)3SCC 755. Relevant para has been reproduced as under

14. By a series ofdecisions, this Court has laid down theparameters ofappreciation ofevidence on recordand jurisdiction and limitations of the appellate court, and while dealing with appeal against order ofacquittal this Court observed in Tota Singh and Ann v. State of Punjab(1987)2SCC529, as under: 6....The jurisdiction of the appellate court in dealing with an appeal against an order of facquittal is circumscribed by the limitation that Ino interference is to be made with the order of %acquittal unless the approach made by the lower court to the consideration ofthe evidence in the case is vitiated bysome manifest illegality or the conclusion recorded by the court below is such which couldnothave beenpossibly arrivedat by any court acting reasonably andjudiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal ofthe evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate courtcannotlegally interfere with an order ofacquittal even ifit is ofthe opinion that the view taken by the court below on its consideration of the evidence is erroneous.

15. Further, this Court has observed in Ramesh BabulalDoshi v.State ofGujarat(1996)9SCC225: CRLLP.274/2016 Pagel6ofl[8] 7....This Court has repeatedly laid down that the merefactthata view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid andsufficient ground to interfere with an order ofacquittal unless it comes to the conclusion that the entire approach ofthe trial court in dealing with the evidence waspatently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether thefindings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. Ifthe appellate court answers the above question in the negative the order ofacquittal is not to be disturbed. Conversely, if the appellate court. holds,for reasons to be recorded, that the order i,ofacquittalcannotatall besustainedin view of lany ofthe above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions...

35. Inthecase StateofMadhyaPradesh yk>alSif^Sc Ors.,reported atJT2013(8)SC625,the Hon'ble.Supreme Court has held that the appellate court while considering the appeal against thejudgment of acquittalshall interfere only when there are compelling and substantial reasons for doing so and ifthejudgment is unreasonable and relevant materials have been unjustifiably ignored, it would be a compelling reason for interference.

36. It is a settled principle of criminal jurisprudence that the burden of prooflies onthe prosecution and the prosecution hastoproveacharge CRLLP.274/2016 Page17of18 beyond reasonable doubt. The accused has a right to fair trial and the presumption ofinnocence is in favour ofthe accused.

37. In the light ofthe aforesaid dictum and for the reasons stated above, we do not find any infirmity in the impugnedjudgment passed by trial court. Consequently, the present leave to appeal petition stands dismissed. MAY 20,2016 gr// G.S.SISTANI,J SANGIT NGR;^EHGAL,J If %n' € s