- Nine year old girl originally complains of molestation or touching [lifted her in his lap and started pressing her (bheechnein laga ) ]
- Then she and her mother go on improving their complaints in subsequent versions
- Finally the 9 year old girl complains that the man raped her ..and that too multiple times !!
- Man is jailed for two and half years
- Man is very poor and unable to afford an advocate ; He just gets governmental legal help / legal aid and the HC gives a mouth full about the routine / low quality legal aid he obtained
- Cross examination of six out of eight witnesses have been recorded as 'NIL', other two material witnesses i.e. PW-1A 'J', the child victim and PW-2 Amina, mother of the child victim not effectively cross examined by the legal aid counsel (accused's government counsel)
- Lower courts convict him on the sole testimony of the girl and her mother
- The Lower court's judgment is just reproduction of the testimony of witnesses citing judgments that uncorroborated testimony of victim is sufficient to nail the male !!
- HC blows holes all over the case and release him finally (many years later though )
- HC gives a piece of its mind on the performace of lower / trial courts below
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 16 th May, 2013
Pronounced on : 22 nd May, 2013
+ CRL.A. 214/2011
Through : M s. Charu Verma, Adv.
STATE (GOVT. OF NCT OF DELHI)...Respondent
Through : Ms.Rajdipa Behura, APP for the State.
CORAM: HON'BLE M R. JUSTICE G.P.MITTAL
% G.P.MITTAL, J.
1. In the recent past, Delhi-the Capital City of our Country has witnessed unprecedented protest s by 'Aam Aadmi' (common man) and there was public outcry to make the city safe for women who have been guaranteed equal rights to live with dignity. Delhi was referred to as 'Rape Capital' by every newspaper highlighting instance s and plight of rape victims. People from all stra ta of society came on the street with the demand of 'Death Penalty for Rapist s '. To address th e concern of the citizen s and to ensure speedy trial of rapist s, Fast Track Courts were created to deal with the cases of sexual offences. Aim was to provide spe edy justice and also send a strong message to the offenders as well the to the potential offenders that legal system is capable o f tackling the problem and punish ing the guilty without any delay thereby providing some solace to the victim s o f sexual assaul t that the guilty has been punished as per procedure established by law.
2. Being conscious of misuse of the provisions of rape and the effect it can have on the accused, in the context of evaluating the testimony of the rape victim, following observation s were made by the Supreme Court in Rajoo & Ors. v. State of Madhya Pradesh AIR 2009 SC 858 : '....It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equ al distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication.... there is no presumption or any basis for assuming that the statement of such a witness is always correct or wit hout any embellishment or exaggeration.'
3. In this case registered under Sections 354/323 IPC, the Appellant has been convicted under Sections 363/376(2) (f)/323 IPC. This Appeal raises many issues leading to serious concern with reference to the duties of the Trial Court to ensure protection of statutory rights as well as right to have fair trial in criminal cases guaranteed under Article 21 of the Constitution of India. Further the purpose of providing legal aid and effectiveness of the existing legal aid system and whether it is able to achieve the desired purpose also comes to the fore. This Appeal is a glaring example as to how mountain can be made out of molehill by the victim and her mother.
4. How poverty leads to unending misery for an accused and how the concept of providing legal aid to those persons, who are not able to defend themselves by getting legal assistance at their own expenses, has failed to achieve the desired purpose, can be best answered by the Appellant who had been sentenced to undergo rigorous imprisonment for ten years with fine for rape which he did not commit. This case also brings in limelight the need to have an experienced counsel on the panel of legal aid especially for heinous crimes like the present one so that the legal aid provided to such an accused is not for 'name sake' or an 'eye wash' only.
5. Facts giving rise to the prosecution of the Appellant are narrated in the complaint Ex.PW1/A made by the child victim (name of the child victim withheld to conceal her i dentity and hereinafter referred to as 'J'). She made statement to the police that the Appellant came to her house to ask for a utensil to keep vegetables ( subzi ke liye bartan mangaa ). Her father asked her to give the utensil. She gave the utensil to the Appellant and on the pretext of giving toffee to her, the Appellant took her to the gali and thereafter lifted her in his lap and started pressing her ( bheechnein laga ). She raised alarm and many person s from j huggi s gathered there. A t that time, the Appellant slapped on her face resulting into an injury on her lip. Thereafter the crowd brought the Appellant to her mother and she ('J') narrated the incident to her mother. On the basis of the above statement made by 'J', case FIR No.299/2009 under Sec tion s 354/323 IPC was registered at PS Seelamp ur. After completion of investigation, a chargesheet was filed against the Appellant for committing the offence s punishable under Section s 354/323 IPC.
6. The Appellant was charged by learned MM for committing the offence s punishable under Sections 323/354 IPC on 09.08.2009. When the child victim i.e. PW -1 'J', who was aged about nine years on the date of her examination, was examined by the Court of Magistrate, she gave a new twist to the case by stating bef ore learned MM of she being repeatedly raped by the accused. On the basis of the statement made by the child victim, learned MM committed the case to the Court of Session. Another charge for committing the offence s punishable under Sections 363/376/323 I PC was framed by learned Addl. Sessions Judge on 03.10.2009.
7. The prosecution examined seven witnesses to prove its case. Child victim 'J' was again examined as PW -1A. Statement of the Appellant was also recorded under Section 313 CrPC.
8. After considering the testimonies of material prosecution witnesses especially the child victim and her mother, believing the testimony of the child victim, observing that it was truthful and convincing requiring no further corroboration, the Appellant was convicted under Section s 363/376/323 IPC vide impugned judgment dated 23.07.2010.
9. It is pertinent to note here that though the Appellant was charged and also convicted for committing the offence s punishable under Sections 363/376/323 IPC, while awarding sentence learned Addl. Sessions Judge lost sight of the charges for which the Appellant was tried and convicted. While passing the order dated 27.07.2010 on the point of sentence, the Appellant was sentenced under Section 376(2) (f) IPC to undergo rigorous im prisonment for ten years with fine of Rs.10,000/-, in default to undergo rigorous imprisonment for one year, further under Section 323 IPC to undergo simple imprisonment for six months with fine of Rs.500/-, and in default to under go simple imprisonment fo r ten days. Further he was sentenced under Section 506 IPC to undergo rigorous imprisonment for two years with fine of Rs.1000/-and in default to undergo rigorous imprisonment for two months al though the Appellant was neither charged nor convicted under Section 506 IPC.
10. On behalf of the Appellant, conviction and sentence under Sections 363/376(2) (f) IPC has been challenged mainly on the ground of improbabilities in the case of prosecution as also on total change of version by the child victim and her mother from what was initially given at the time of registration of the case which makes the entire case unbelievable. Learned counsel for the Appellant has submitted that when initially the case of the prosecution was that the child was lifted by the accused and she was pressed by him in his grip and also slapped, at the most, he could have been convicted under Section s 354/323 IPC for which he was initially charged and to that extent the Appellant does not dispute that he had lifted the girl in his lap and when she cried, he slapped her resulting into an injury on her lip.
11. Learned APP for the State has supported the version of the child victim and submitted that the explanation has been given by PW-2 and her mother that due to shame, they did not disclose about the rape at the time of medical examination of 'J'. It is urged that the Appellant has failed to make out any case to persuade this Court to take a different view in the matter th a n the view taken by the learned Trial Court. Learned APP tried to convince this Court that it is settled legal position that conviction can be based on the sole testimony of victim of rape and here the victim was a nine year old girl, who has been repeatedly raped by the Appellant, and her testimony does not suffer from any infirmity. Referring to the MLC, learned APP has submitted that absence of injury on private parts is no ground to disbelieve the version of PW -1 'J' as no animus ha s been suggested to PW -1A and PW -2 during cross examination which could be a rea son to falsely implicate the Appellant in this case.
12. Since the Appellant has been convicted on the basis of testimony made by the child victim and her mother during their examination before the Court which is at total variance to the version given at the time of registration of FIR, a mammoth exercise is required to be undertaken to dig out the truth from the improved and embellished version of the prosecution witnesses.
13. To note the inconsistencies, embellishments and exaggeration, it is necessary to highlight the salient feature s of the statement of the child victim in the complaint Ex.PW1/A on the basis of which FIR was registered and thereafter during her examination before learned MM on 18.09.2009. Her third statement was recorded by lea r ned Addl. Sessions Judge while conducting trial for the offence s punishable under Sections 363/376/323 IPC. Careful scrutiny of the s tatement of the mother of the child victim recorded under Section 161 CrPC and her statement recorded before the Court is als o necessary for the reason that not only she was present at the time when the Appellant allegedly took away her daughter but also at the time of his apprehension, medical examination of the child victim as well at the time of arrest of the Appellant. The different versions are extracted hereunder: -
In Complaint Ex.PW1/A:
(i) Child victim 'J' states she reside s at the given address alongwith her family and stated to be a student of class IV.
(ii) On 07.08.2009 at about 8.00 pm, one boy came to her house and asked for a utensil to keep vegetables ( subzi ke liye bartan manga ).
(iii) At the instance of her father, she gave the utensil to him.
(iv) On the pretext of giving her toffee, he took her to the gali and thereafter lifted her in his lap and started press ing her ( bheechnein laga ).
(v) She raised alarm calling Mummy -Mummy.
(vi) On hearing the noise, m any persons from the j huggi gathered there and at that time that boy slapped on her face resulting into an injury on her lips.
(vii) The crowd which had gather ed there brought that boy, whose name was revealed as Mumtaz, to her mother and she ('J') narrated the incident to her mother.
(viii) The public persons handed over Mumtaz to ASI Yamuna Prasad who a s per the endorsement on Ex.PW1/A, ASI Yamuna Prasad was on patrolling duty alongwith Ct.Mobin Ali when at about 10.30 pm on seeing the crowd collected there, they stopped there. A ccused Mumtaz was handed over to them and he recorded the statement of 'J' and sent ru kk a for registration of FIR.
Supplementary statement of 'J' recorded by police on 18.08.2009
The Accused was arrested in her presence, his personal search was conducted but nothing was recovered and his arrest memo was prepared which was signed by her.
It is strange that 'J' – a nine year old girl was cited as a witness to arrest memo and personal search memo.
Statement of PW -1 'J' recorded by learned MM on 18.09.2009
(i) Accused came to her to ask for a utensil which she handed over at the instance of her father.
(ii) Accused pressed her mouth a nd took her away.
(iii) Accused took her towards Shastri Par k in a dark room where he laid down on her, opened the chain of his pant, removed his shirt and did ' galat kaam'.
(iv) Accused ha d penetrated his 'susu kar n e wala'.
(v) She tried to raise alarm bu t he shut her mouth.
(vi) The n after wearing the clothes, he took her to a field (khet) where again he did the same act after making her lie down on the grass.
(vii) Accused took her to her house and left her outside her room where he was apprehended by her ' Ammi ' ( mother) and brother.
(viii) Accused was beaten and taken to the police station and handed over to the police.
Statement of PW -1A 'J' recorded by learned ASJ on 16.01.2010
( i) 'J' was going to bring sweet meats when accused met her near the stairs of her house and told her that her father was calling her.
(ii) He took her to Shastri Park at his j huggi where he removed his clothes and her clothes, made her lie down and sat on her and put his private part into her private part. (Apne pesab karne wa le ko mere pesab karne wali jagah me lagaya aur mujhe dard hua ).
(iii) When she cried, he gagged her mouth with a cloth, hit her on her face with danda and fist and also hit on her stomach with danda.
(iv) She started crying and when somebody asked as to why he was beating her, he replied that she was his niece.
(v) Thereafter he took he r to Shastri Park and did the same act with her.
(vi) He again took her to a room and asked her to sleep there, instructed her not to go out as police was outside and agai n he did the same act with her.
(vii) At the time of doing the same act, he also said that her mother and father also do the same act which he was doing with her, on which she also said that his mother and father might be doing the same.
(viii) She asked him to leave her to her house.
(ix) He accompanied her, offered her water, dal khi c hri, and one ice -cream which she threw.
(x) On way back, he threatened to break the leg of h er father if she disclose d the incident to anyone.
(xi) She was left near her hous e near a biryani s hop and was abused by him.
(xii) He was caught by her broth ers and other persons near the b iryani shop.
(xiii) She narrated the incident to her brothers Ashif, Monu and Sonu and thereafter to her mother.
(xiv) She informed the police that the accused had do ne badtamizi with her.
(xv) She was taken to the hospital but she did not tell about rape to the doctor.
(xvi) She had pain in the stomach for which she was taken to a nearby doctor who gave her some medicine and thereafter her underwear was not getting dirty, earlier it was getting dirty.
Cross examination of PW -1A 'J'
(i) She narrated the entire incident to the police as well as to the Magistrate.
(ii) Accused did galat kaam with her on two occasions, once in a room and then on the grass in a park.
(iii) No blood came out after the wrong act.
Statement of Amina – mother of the child victim, recorded under Section 161 CrPC on 08.08.2009
(i) She was residing at the given address alongwith her family and 'J' her daughter, aged about nin e years, was a student of class -IV.
(ii) On 07.08.2009 at about 8.00 am, one boy came to her house and asked for a utensil which was given by 'J' on instructions of her father.
(iii) After the utensil was given, he also took 'J' alongwith him on the pretex t of giving toffee to her.
(iv) After sometime, she heard the cries of her daughter who was calling Mummy -Mummy and when she came out, she saw her daughter in the grip of the accused, whose name was revealed as Mumtaz.
(v) While 'J' was crying, s he was sla pped by him.
(vi) Public persons gathered there and police also reached afterwards.
(vii) Police made inquiries from her daughter and recorded her statement.
(viii) Her daughter was taken by the police to hospital and she accompanied her.
(ix) After regist ration of FIR, site plan was prepared at her instance, Mumtaz was arrested and memos were prepared.
Statement of PW -2 Amina – mother of the child victim recorded before the Court on 16.01.2010
(i) In the year 2009, at about 6.00/7.00 pm when she was pres ent in her house alongwith her children, accused came to her house and asked for a utensil for which she refused but her husband asked her (PW -2 Amina) to give it to him.
(ii) She gave the utensil and asked 'J' to hand over the same to the accused on the g round floor as they were living on the first floor.
(iii) Thereafter 'J' went missing and they started searching her.
(iv) Accused brought 'J' near the b iryani shop where he was apprehended by public persons as by that time everybody in the locality knew t hat 'J' was missing.
(v) She asked 'J' whether accused had done any badtamizi to which she said 'yes'.
(vi) 'J' was in bad shape and was not able to walk properly and informed that she was unable to urinate and defecate.
(vii) She tried to take her for uri nation but she could not urinate.
(viii) Accused was taken by them to the police station alongwith the child.
(ix) The SHO sent them to the IO and she was asked to check the private part of the child.
(x) She checked and found that there was swelling and thereafter the child was taken to GTB hospital where she was examined by the doctor.
(xi) In reply to C ourt questions put to her as to whether she disclosed the incident to the doctor, she denied saying that on account of shame, it was not disclosed.
Cross examination of PW -2 Amina – mother of the child victim
(i) She only asked 'J' whether he had done any badtamizi and 'J' did not s ay anything of her own.
(ii) The son of her landlord informed the police that 'J' was missing.
(iii) Police did not come to help to search the child.
(iv) Doctor tried to inquire from them repeatedly but they did not state the entire incident on account of shame.
(v) The police official knew that the child had been sexually assaulted as he had made inquiries in the police stati on in presence of SHO where the child had disclosed those facts.
(vi) Dr.Furkan (local doctor) had given some medicines.
(vii) She did not inform the police that she (PW -2) also sustained injuries when the accused was beaten by public persons.
14. As per statement of PW -3 Ct.Mobin Ali and PW -4 ASI Yamuna Prasad, during patrolling on 07.08.2009 when they reached near K -Block, Khatta, they saw a crowd gathered there. The child 'J' alongwith her mother met them and Mumtaz was produced before them stating tha t he had kidnapped her daughter. 'J' was got medically examined at GTB Hospital and after recording the statement of 'J', FIR was got registered. Accused Mumtaz was also arrested and got examined at Shashtri Park Hospital.
15. MLC of the child victim reveals that 'J' was medically examined on 08.08.2009 at 12.40 am and the history recorded on the MLC is as under : fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our State and national constitutions and laws have laid great emphasis on procedural and substantive safeguards de signed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him. '
40. The Appellant suffered not only on account of not being able to get services of an experienced counsel though he was tried for an offence for which minimum punish ment prescribed is 10 years with fine but also for the reason that the Trial Court was not diligent enough to ensure that witnesses are effectively cross examined and that while deciding the case, the object is to discern the truth by relying only on sterling witnesses.
41. It is painful to note that while laying down guidelines for police and hospitals and s ending the copies of the impugned judgment to Commissioner of Police and GTB Hospital. Learned ASJ has failed in discharge of his duties as the Trial Court has to discern the truth after considering or evaluating the testimony of material prosecution witnesses on the touchstone of basic human conduct, improbabilities and effect of deposition before the Court which was in total variance to the initial case of the prosecution i.e. case registered for committing the offence punish able under Sections 354/323 I PC, which was given the colour of committing the offence punishable under Sections 363/376(2)(f) IPC at the time of deposition before the Court. Learned Addl. Sessions Judge based conviction of the Appellant relying on the judgment s Bharwada Bhoginbhai H irjibhai v. State of Gujarat AIR 1983 SC 753 and Ranjit Hazarika v. State of Assam (1998) 8 SCC 635 that solitary statement of the victim is sufficient to base the conviction but failed to evaluate the same on the test of the well laid principles in this r egard as laid down in a catena of judgments ( Rupeshwar Tanti vs. State of Gujarat 2012, Cri.L.J. 2549, Narender Kumar v. State (NCT of Delhi) AIR 2012 SC 2281, Rai Sandeep @ Deepu v. State of NCT 2012 (8) SCC 21) and consider the effect of improvements and embellishments.
42. Learned Addl. Sessions Judge, while conducting the trial, failed to protect the statutory right to have a fair trial guaranteed under Article 21 of the Constitution. With cross examination of six out of eight witnesses have been r ecorded as 'NIL', other two material witnesses i.e. PW -1A 'J', the child victim and PW -2 Amina, mother of the child victim not being effectively cross examined by the legal aid counsel, should have put the learned Addl. Session Judge on alert to take correc tive measures even by appointing another experienced counsel to defend the Appellant to achieve the desired purpose of providing legal aid to poor persons. More so, it became essential as the Appellant was being tried for an offence punishable under Secti on 376(2)(f) IPC wherein minimum sentence prescribed is ten years.
43. The impugned judgment is just reproduction of the testimony of witnesses citing judgments that uncorroborated testimony of victim can form basis of conviction but without addressing to the second test i.e. of sterling quality as well the effect of improvement s and embellishment s which changed the entire nature of the case.
44. While laying down guidelines for police and doctors, some introspection was required by learned Addl. Sessions Judge about his duties as Trial Court Judge. However, by writing perfunctory judgment, the Appellant /accused had been convicted for committing the offence of rape on a girl under 12 years of age. What shoul d be the approach of Trial Court in a criminal trial was enumerated in Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble (2003) 7 SCC 749 and Zahira Habibullah Sheikh v. State of Gujarat AIR 2006 SC 1367.
45. In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble (Supra), the Supreme Court observed that :
| ' The courts exist for doing justice to the persons
| who are affected. The trial/first appellate courts
| cannot get swayed by abstract technicalities and close
| their eyes to factors which need to be positively
| probed and noticed. The court is not merel y to act as
| a tape recorder recording evidence, overlooking the
| object of trial i.e. to get at the truth, and
| oblivious to the active role to be played for which
| there is not only ample scope but sufficient powers
| conferred under the Code. It has a greater duty and
| responsibility i.e. to render justice in a case where
| the role of the prosecuting -agency itself is put in
| issue. '
46. In Zahira Habibullah Sheikh v. State of Gujarat (Supra), it was observed :
| 'This Court has often emphasised that in a criminal
| case the fate of the proceedings cannot always be left
| entirely in the hands of the parties, crime being
| public wrong in breach and violation of public rights
| and duties, which affect the whole community as a
| community and are harmful to the society in gen eral.
| The concept of fair trial entails familiar
| triangulation of interests of the accused, the victim
| and the society and it is the community that acts
| through the State and prosecuting agencies. Interests
| of society is not to be treated completely with d
| isdain and as persona non grata. Courts have always
| been considered to have an over-riding duty to
| maintain public confidence in the administration of
| justice -often referred to as the duty to vindicate
| and uphold the 'majesty of the law'. Due
| administration of justice has always been viewed as a
| continuous process, not confined to determination of
| the particular case, protecting its ability to
| function as a Court of law in the future as in the
| case before it. If a criminal Court is to be an
| effective inst rument in dispensing justice, the
| Presiding Judge must cease to be a spectator and a
| mere recording machine by becoming a participant in
| the trial evincing intelligence, active interest and
| elicit all relevant materials necessary for reaching
| the correct c onclusion, to find out the truth, and
| administer justice with fairness and impartiality both
| to the parties and to the community it serves. Courts
| administering criminal justice cannot turn a blind eye
| to vexatious or oppressive conduct that has occurred i
| n relation to proceedings, even if a fair trial is
| still possible, except at the risk of undermining the
| fair name and standing of the judges as impartial and
| independent adjudicators. '
47. Before coming to the aspect as to whether for the offence under Section s 354/323 IPC the Appellant is liable to be convicted, it is necessary to record certain other facts to highlight the manner in which the concerned police official treated the Appellant after his apprehension in this case. In the entire chargesheet, local address of the Appellant has not been mentioned either by the complainant or by the police. The mere fact that father of 'J' asked her to give the utensil to the Appellant shows that he was known to the family of the child victim and he must be resident of that area. Despite the crowd being gathered at the time of apprehension of the Appellant /accused and he being handed over to the police at about 10.30 pm, there is no mention of the Appellant being given beating by the public which could result in to the injuries recorded in his MLC Ex.PW6/A i.e. abrasion lower lip, abrasion left lumbar area and abrasion over left scapular area. He (the Appellant) has been got examined at another hospital in Shastri Park at 07.07 am, though the prosecutrix was got examined in the midnight and her condition was absolutely normal except minor injury on her lip. Therefore nothing prevented the police officer to get the Appellant examined at the same time in the same hospital and the injuries on the person of the Appel lant remain unexplained.
48. The learned ASJ got carried away by the heinous nature of the crime and in that, lost sight of the basic principles underlying criminal jurisprudence that only legally admissible evidence can be made basis of conviction. In the absence of any credible evidence to prove rape of the child victim by the Appellant, learned Addl. Sessions Judge should not have allowed him self to be swayed by the nature of offence which for the first time was disclosed by PW-1 'J' at the time of deposing as a witness to prove the allegations for the offence punishable under Sections 323/354 IPC. If conviction is based and punishment is awarded on farfetched conjectures and surmises, it would amount to doing violence to the basic principles of crim inal jurisprudence. No doubt, an accused was involved in a heinous crime especially rape on a child of tender age, but he must be dealt with firmly and punished but only on the basis of creditworthy evidence.
49. The conviction of the Appellant for the offence punishable under Sections 363 and 376(2)(f) IPC and sentence awarded to him under Sections 363, 376(2) and 506 IPC are hereby set aside. The Appellant is convicted for the offence punishable under Section s 354/323 IPC. He is sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 354 IPC and further to undergo rigorous imprisonment for three months for the offence punishable under Section 323 IPC. Both the sentenced shall run concurrently. The period o f detention has been already undergone by the convict in judicial custody in this case which shall be set off under Sec. 428 CrPC.
50. As per nominal roll of the Appellant, as on 21.02.20012, he has already undergone two years, six months and twelve days in judicial custody in this case.
51. Appeal stands disposed of in above terms. The Appellant be set at liberty forthwith if not wanted in any other case.
52. Copy of th is judgment be sent to the concerned Jail Superintendent immediately for necessary compliance.
53. Copy of this judgment be transmitted to all the District & Session Judges as also to the Director, Delhi Judicial Academy to sensitize the Judicial Officers on the various aspects deliberated in the judgment.
54. LCR be returned alongwith copy of th e judgment.
G.P. MITTAL ( J UDGE)
M AY 22, 2013 st