Full Text
CRL.L.P. 702/2015
JUDGMENT
Through : Ms. Aashaa Tiwari, APP for the State with
SI Nagender, PS-Sarita Vihar.
Through : Mr. Bhagwan Jha, Advocate.
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.S.SISTANI, J.
1. By the present application, the petitioner seeks condonation of 100 days' delay in filing the present criminal leave to appeal petition.
2. Heard. For the reasons stated in the application and in the interest of justice, present application is allowed. Delay in filing the present criminal leave to appeal petition is condoned. Let criminal leave to appeal petition be taken on record.
3. Applicaiton stands disposed of. CRL.L.P.702/2015
4. Present leave to appeal petition has been filed by the State under Section 378 (4) of the Code of Criminal Procedure against the judgment dated 13.04.2015 passed by Ms. Renu Bhatnagar, Additional Sessions Judge-01, Saket Courts, New Delhi in Session’s Case No.75/12 whereby the 2016:DHC:2070-DB respondent was acquitted of the charges framed under Section 376 (2)(f) of the Indian Penal Code.
5. The brief facts of this case, as noticed by the learned Trial Court are as under: "On 11.08.2012 DD No. 10 A was received by SI Satish Kumar who along with Ct. Dinkar More reached at the spot i.e. Dairy Farm Madanpur Khadar Sarita Vihar where they came to know that rape has been committed with a 8 months old baby girl. SHO also reached at the spot and SI Josepha Kujur was called who reached at the spot and recorded the statement of complainant who stated that she is residing as tenant along with her family and running raidi. She has two daughters namely Jia aged about 3.[5] years and prosecutrix 'R' (name withheld to keep her identity confidential) aged about 8 months. On 09.08.2012 at around 10 PM she along with her husband and daughters came to home and went to terrace for keeping utensils. She sent her husband for taking potatoes. She came downstairs to feed her daughter Jia as she was crying for food. Her daughter 'R' was sitting on the terrace and playing. On the terrace her neighbour Lal Babu aged about 30 years was also present. At 11 PM when she came to terrace she saw accused Lal Babu playing with her daughter 'R' and holding her in his lap. While playing he took her inside his room and after some time she heard cries of her daughter 'R' and she came to the room of accused Lal Babu. She saw that Lal Babu was not wearing his pant, holding her daughter hand 'R' and he was rubbing the vagina of her daughter 'R' with his penis by shaking her daughter 'R' who was not wearing her Kacchi. On seeing her, he put her daughter 'R' on the floor, discharged his semen on a piece of paper and threw it outside. She took her daugher and came to her room. She disclosed the entire fact to her husband. They did not report the matter to anyone due to fear of Lal Babu. After gathering courage she called the police on 100 number. On the complaint, case was registered. Prosecutrix 'R' was medically examined at AIIMS Hospital. Accused was arrested and he was also got medically examined from AIIMS Hospital. Exhibits were sent to FSL, Rohini for examination. Bone age examination of prosecutrix 'R' was also got conducted wherein her date of birth came between 1 to 2 years. Thereafter, statement of witnesses were got recorded by the Investigating Officer and after completion of investigation, charge sheet under Section 376 IPC was filed against the accued in the Court.
6. Upon committal of the case to the court of Sessions, the respondent was charged with having committed the offence punishable under Section 376(2)(f) of the Indian Penal Code to which he pleaded not guilty to the charged offence and claimed to be tried.
7. To substantiate the accusation, prosecution examined thirteen witnesses in all. Statement of the accused under Section 313 of Code of Criminal Procedure was recorded wherein he pleaded innocence and claimed to be tried. Three witnesses were examined in defence.
8. The learned Trial Court, upon analysis, examination and evaluation of the prosecution evidence and after considering the rival submissions recorded the acquittal of the accused for the charged offence.
9. Aggrieved by the impugned judgment, the State has filed the present leave petition contending that the view and the ultimate conclusion reached by the learned Trial Court in acquitting the accused for the offence under Section 376 (2) (f) of the Indian Penal Code is manifestly perverse, unsustainable, tainted with non-application of mind to vital evidence, a result of wrong interpretation of evidence of the sole eye witness of the case i.e. PW[1] (mother of minor victim girl) and other substantial evidence, which has resulted into grave miscarriage of justice. Counsel further contended that the Trial Court has failed to accept the explanation regarding delay of 2 days in registeration of the FIR.
10. Per contra, Mr. Bhagwan Jha, learned counsel for the respondent while supporting the impugned judgment contended that the Trial Court after considering the entire material brought on record by the parties had rightly recorded the finding of acquittal of accused and the same does not require any interference by this Court.
11. We have heard learned counsel for the parties and perused the entire material available on record.
12. Undoubtedly, where the statement of an eye-witness is found to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony. There is no bar in basing the conviction of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy. The entire case of the prosecution rests upon the testimony of the sole eye witness i.e. mother of the child victim.
13. In State of Maharashtra Vs. Ramlal Devappa Rathod and Ors. reported in (2015) 10 SCALE 347, Hon'ble Supreme Court held that: "The law on the point is well settled that a conviction can well be founded upon the testimony of a sole witness. However, as laid down in State of Haryana v. Inder Singh: (2002) 9 SCC 537 the testimony of a sole witness must be confidence inspiring and beyond suspicion, leaving no doubt in the mind of the Court. In Joseph v. State of Kerala: 2003 (2) SCC 465 it was stated that where there is a sole witness, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. It was further stated in Ram Naresh v. State of Chhattisgarh (2012) 11 SCC 257 that the statement of the sole eye-witness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution."
14. In Gulam Sarbar Vs. State of Bihar (Now Jharkhand) reported in (2014) 2 SCJ 677, the Hon'ble Supreme Court held that: "In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence."
15. In Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, the Hon’ble Supreme Court has held that:
16. In State of Rajasthan Vs. Chandu & Ors. Reported in JT 2002 (10) SC 427, wherein the Hon'ble Supreme Court held that:
conviction can be based on the sole testimony of an interested eye-witness is subject to the limitation that the testimony of such a witness is trustworthy and consistent and court finds it safe to fully rely upon the deposition of such a witness in regard to the nature of the occurrence and the involvement of the accused. In present case, however, it was prudent to look for corroboration on material particulars. xxxx xxxx xxxx
8. The High Court on appreciation of evidence has held that no independent witness had been examined as also that the prosecution had failed to explain the injuries received by the accused persons. What seems to have heavily weighed with the High Court is that the prosecution witnesses in particular the eye-witnesses have been held by the trial court not to be reliable and the facts were so intermingled that it was not possible to separate chaff from the grain and it was unsafe to base the conviction of the three accused on the sole testimony of PW[1]."
17. In order to ascertain whether the conviction of the appellant can be sustained on the evidence of the solitary eye witness i.e. mother of the child victim and whether the same inspires confidence or not it would be useful to extract herein below the relevant portion of her statements recorded at different stages.
18. On 11.08.2012 Smt. Meenu, mother of the child victim lodged a complaint (Ex.PW1/A) wherein she stated that she saw the accused carrying the child victim on his lap and was playing with her and took her to his room. After sometime, she heard the cries of the child victim and went to the room of the accused and saw that accused was not wearing anything below his waist and was rubbing his penis with the child victim who was also not wearing her Kachhi. On seeing her, accused put the child on the ground and discharged his semen and wrapped the same on a piece of a paper and threw it outside.
19. Smt. Meenu, mother of the child victim appeared as PW[1] before the Court and deposed on oath that: "xxxxx I was providing food to my elder daughter which took some time. By that time, I heard the cry of my younger daughter Ritika. I immediately went upstairs (terrace) where I saw that accused Lal Babu Mehto was not wearing his lower (trouser/underwear etc.) and he was rubbing the vagina of my daughter Ritika with his penis by shaking Ritika. Ritika was not wearing the pant/Kachi as she had passed urine some time back in her kachhi. Seeing me, the accused immediately separated my daughter from him and thereafter the accused discharged his semen on a piece of paper and threw the said paper towards the dairy meant for bufflaows. We were scared of accused Lal Babu Mehto and for this reason did not inofrm the police, however, after two days I gathered the courage to inform the police and made a call to the police."
20. When this witness was put to cross-examination by defence counsel, she stated that: " I had already removed the underwear/kacchi of my daughter as she had passed urine. When I came downstairs the accused was only in Baniyan on his body and was having my daughter in his lap i.e. in the position that he was rubbing the vagina of my daughter with his private part. The accused was doing the said act in his room. The room of the accused was not bolted from inside and the door was slightly opened. When I came downstairs after hearing the cry of my daughter, the accused put/threw my daughter aside seeing me and I immediately lifted my daughter and brought her inside my home. In my presence, the accused discharged the semen on a piece of paper and threw the same after coming out of the room from the railing."
21. In our view the trial court has correctly analysed the testimony of the sole eye-witness, who is the mother of the victim. The trial court has noticed the contradictions and improvements made by this witness. According to this witness her child was playing on the roof when the respondent was also present. At 11.00 p.m., when she returned to the roof, she found that the respondent had taken the victim child in his lap and was playing with her. He thereafter took her to his room and then she had heard the cries of her daughter. Thereafter she described that when she entered into the room of the accused, she found that the accused removed his lower garments and had taken the victim on his lap. He had caught hold of both the hands of the victim, spread her legs on his lap and was touching his penis with the vagina of the victim after shaking her. When PW-1 appeared in the Court, she had not stated that she had returned to the roof after feeding her elder daughter or that in her presence only the accused had taken the child to his room where the incident had happened. She has also not narrated the manner in which the accused was committing wrong act with the child in her statement in the Court.
22. We find the testimony of the sole eye-witness, mother of the victim, to be unreliable. The statement of this witness is unreliable for the reason that, firstly, it is highly improbable that the respondent would dare to commit such an act with the child knowing fully-well that her mother was present. Secondly, in case, he was to commit a wrong act with the child, he would have bolted the room from inside and not left it open as per the testimony of PW-1. The statement of this witness, we find to be unreliable and untrustworthy as the conduct of the mother is highly unusual as upon seeing the respondent committing an unnatural and immoral act she did not raise any hue and cry, knowing fully well that the building was having around 30 tenants. This conduct of PW-1 coupled with the delay of two days in lodging the FIR makes her testimony unbelievable. Her testimony is also not supported by the medical evidence, which shows that the hymen was intact and which creates a doubt in the testimony of this witness. The testimony of the Doctor also does not conclusively point towards the commission of offence of rape.
23. The respondent had examined three witnesses in his defence. Before the testimonies of the defence witnesses can be examined, it may be noticed that in his statement under Section 313 Cr.P.C., the respondent stated as under: “…. That on 09.08.2012 he returned from his duty at around
8.30 PM and at that time Sonu was preparing food for his business purposes in morning after spreading his utensils and other articles in front of his room. He objected to this and asked him not to spread his utensils and other articles in front of his room and that he will not allow him to cook food in this manner as he is residing on the ground floor and has no occasion to come to the top floor in front of his rented room to cook food. Sonu Alam refused to remove articles whereupon he asked him that he will throw the articles from roof. Thereafter, Sonu Alam pushed him and a scuffle took place between them. Sonu threatened him that he will get him beaten up for his objections. At that time other neighbour in the surrounding rooms namely Pintu, Ram Babu, Ram Khilaan and himself were present. His landlord Sanjeev Baniya had also come to the spot and after the quarrel had taken place and tried to pacify the same. Due to said quarrel he has been falsely implicated by Sonu Alam in this case. Sonu and his family members were also using bathroom of his floor despite the fact that they were having their own bathroom on their own floor but stopped using the said bathroom. He also made complaint to his l andlord who also asked Sonu Alam not to cook food but Sonu Alam also threatened the landlord to falsely implicate him……..”
24. DW-1, Sh.Sanjeev Kumar, who is the landlord of the complainant and the respondent, had deposed as under: “….. DW-1 is Sh.Sanjeev Kumar who is the landlord of complainant and accused. He deposed that complainant Meenu was his tenant and was residing at second floor and accused Lal Baby Mehto was also tenant and residing at the roof of his property. There are two rooms at the roof of his house and due to this there used to quarrel between the accused and complainant. On 09.08.2012 quarrel occurred between complainant and accused. Accused complained before me regarding his quarrel. He also directed Meenu not to prepare food on roof but she did not mend her ways. Due to quarrel Meenu threatened accused that she will plant a false case upon him. On 09.08.2012 nothing was happened at the roof at around 11 PM as all the five tenants were present at the roof and he had not got any complaint from Meenu regarding such incident. He stated that more than thirty persons were residing at his address at that time but none of them got aware about the incident……”
25. In his testimony DW-2, Ram Khilawan, has deposed as under: “… that he was residing in a tenanted room with the accused and Ram Babu. Complainant Meenu was preparing meals on the roof of the building and used to leave the garbage on the roof and in front of the tenanted room. They used to clean the garbage and made objections to Meenu not to scatter garbage in front of their room but she did not pay any heed to their words. They also made complaint to landlord of the building who also tried to make Meenu understand but she did not mend her ways. On 09.08.2012 Meenu was cooking meals on the roof which was objected by accused Lal Babu. Hot arguments were exchanged between both the sides whereupon the complainant Meenu threatened accused Lal Babu that she will falsely implicate him in the case. On the same day he went for his duty and returned back in the evening at around 8.30 PM. On the said day when the quarrel had taken place between Meenu and Lal Babu there were around thirty tenants of the surrounding rooms present there. No incident has happened as alleged by Meenu in the night of 09.08.2012 as five persons were sleeping together on the roof…...”
26. DW-3 has also deposed before the trial court as under: “… that he was residing in a tenanted room with the accused and Ram Khilawan. Complainant Meenu was preparing residing on the second floor of the building in a rented room. She was putting up a rehri of meals which was being cooked by her at the tenanted premises. Complainant Meenu was preparing meals on the roof of the building and used to leave the garbage on the roof and in front of the tenanted room. They used to clean the garbage and made objections to Meenu not to scatter garbage in front of their room but she did not pay any heed to their words. They also made complaint to landlord of the building who also tried to make Meenu understand but she did not mend her ways. On 09.08.2012 Meenu was cooking meals on the roof which was objected by accused Lal Babu. Hot arguments were exchanged between both the sides whereupon the complainant Meenu threatened accused Lal Babu that she will falsely implicate him in the case. On the same day he went for his duty and returned back in the evening at around
8.30 PM. On the said day when the quarrel had taken place between Meenu and Lal Babu there were around thirty tenants of the surrounding rooms present there. No incident has happened as alleged by Meenu in the night of 09.08.2012 as five persons were sleeping together on the roof…...”
27. There is nothing on record to disbelieve the testimony of the defence witnesses.
28. It is settled law that equal weightage is to be given to the testimony of the defence witnesses as that of the witnesses of the prosecution.
29. In the case of State of Haryana v. Ram Singh, (2002) 2 SCC 426, it was held as under: “20....Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court.....”
30. Similar view has been expressed by the Apex Court in a recent judgment in the case of Jumni and Others v. State of Haryana, 2014(3) Scale 588, whereby it was held that the plea of alibi should be held at an equal footing to the evidence provided by the prosecution. In para 27 of the judgment, it was held as under:
35. In the case of State of Madhya Pradesh v. Dal Singh & Ors., reported at JT 2013 (8) SC 625, the Hon’ble Supreme Court has held that the appellate court while considering the appeal against the judgment of acquittal shall interfere only when there are compelling and substantial reasons for doing so and if the judgment is unreasonable and relevant materials have been unjustifiably ignored, it would be a compelling reason for interference.
36. In view of the above, we do not find any infirmity in the impugned judgment passed by learned trial court. We also find no reasons to take a different view than the view taken by the Trial Court. Consequently, leave to appeal stands dismissed.
G. S. SISTANI, J
SANGITA DHINGRA SEHGAL, J MARCH 10, 2016 gr/msr