[ENTITY] vs. [ENTITY] IN THE COURT OF SH. [ENTITY] ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI Criminal Appeal No. 74/12 ID-02401R0508702012 DANISH S/o Qaiser Mirza R/o H. No. 2193, Gali Nal Wali, Pahari Bhojla, Delhi-110006. Appellant Versus [ENTITY] Respondent Date of Institution : 30.10.2012 Date of judgment reserved on : 26.11.2013 Date of judgment : 02.12.2013 Present: Sh. [ENTITY], Advocate, counsel for appellant Sh. [ENTITY], Additional Public Prosecutor for [ENTITY] J U D G M E N T:
1. This criminal appeal has been filed by the appellant against the impugned judgment dated September 7, 2012 passed by the Court of learned Metropolitan Magistrate (Mahilla Court), Central District, Delhi whereby the appellant had been held guilty for the offence punishable under [SECTION] [ACT] and against the order on the point of sentence dated [ENTITY] vs. [ENTITY] September 27, 2012 whereby the appellant had been sentenced simple imprisonment for 4 months and also burdened with a fine of ` 5000/- in default 15 days simple imprisonment.
2. Necessary facts in brief leading to filing the present criminal appeal are that complainant (since she is the mother of victim of sexual assault, her identity is withheld and hereinafter she is referred to as complainant or mother of victim) had got recorded her statement to the police that her daughter (victim of crime) used to go to the house of [ENTITY] (PW5) to learn [ENTITY]. It was alleged that on February 4, 2012 at about 4 PM victim (PW3) went to the house of PW5 [ENTITY] to learn [ENTITY] and at about 5 PM when she returned to the house, she started weeping and informed the complainant that at about 4.45 PM, PW5 [ENTITY] had sent her to fetch drinking water from house No. 2193 where accused [ENTITY] was alone and he had outraged her modesty by kissing on her mouth. On her statement, an FIR for the offence punishable under [SECTION] [ACT] was got registered. During investigation, the statement of victim was got recorded under [SECTION] [ACT] wherein she alleged that she knew [ENTITY] as earlier also she visited his house 2-3 times to fetch drinking water. It was alleged that on that day also [ENTITY] (PW5) had sent her to fetch drinking water from the house of [ENTITY]. Accordingly, she went there where accused was alone and stated 'Meri jaan thori der batho, paani dene me thoda waqat lagata hai.' It was alleged that when she entered the kitchen of [ENTITY], he had lifted her in his lap and laid her down on the bed and kissed her. It was alleged that when she was going after fetching water, [ENTITY] asked her to come again. He also requested her repeatedly to come again. It was alleged that after reaching house, she narrated the incident to her mother. Accordingly, the police arrested the accused and filed a charge-
[ENTITY] vs. [ENTITY] sheet against him for the offence punishable under [SECTION] [ACT].
3. After appreciating the evidence led by both the parties, learned Trial Court held the appellant guilty vide impugned judgment and sentenced him as stated above vide impugned order on the point of sentence.
4. Aggrieved by his conviction and sentence, appellant has preferred the present criminal appeal.
5. Learned counsel appearing for the appellant assailed the impugned judgment by energetically arguing that learned Trial Court has failed to appreciate the evidence in right perspective. It was astutely contended that entire prosecution case is based on the testimony of victim (PW3) and PW5 [ENTITY]. But there are material contradictions between their testimony but learned Trial Court ignored the material contradictions. It was contended that prosecution had set up a case that PW3 was sent to the house of accused by PW5 to fetch a water bottle and when PW3 reached the house of accused, he was alone in the house and taking the advantage of loneliness and had outraged the modesty of PW3 by lifting her in his lap and started kissing her on her cheeks. It was contended that learned Trial Court failed to consider the testimony of PW5 who categorically deposed that before sending PW3 to the house of appellant, she talked with his sister [ENTITY] and asked her to give a water bottle, accordingly, [ENTITY] asked her to send someone, accordingly, she sent the victim to fetch water bottle. She further deposed that when victim returned along with the bottle of water, she was comfortable and happy and did not tell any thing about the incident. It was contended that prosecution had not challenged the testimony of PW5 to the extent that before sending [ENTITY] vs. [ENTITY] victim to fetch water bottle, she talked with [ENTITY], it means that the testimony of PW5 to that extent remained unrebutted on the part of prosecution, thus, it was contended that prosecution has failed to establish that accused was alone in the house when PW3 went to fetch a water bottle from the house of accused. It was contended that victim was about 9 years old at the time of incident, thus, she was susceptible to tutoring, thus, it will not be appropriate to rely upon her testimony without any corroboration. In support of his contention, he relied upon the judgment Chahagan Dame v. [ENTITY] of Gujarat AIR 1994 SC 454 and Sena Gochhayat v. [ENTITY] IX
-1987(3) CRIMES 66. It was further contended that there was previous enmity between the family of the victim and family of appellant and due to that reason, appellant had been falsely implicated in this case.
6. Per contra, learned Additional Public Prosecutor for the [ENTITY] controverted the said contentions by arguing vehemently that there is no merit in the present criminal appeal. It was submitted that epicenter of the case is testimony of PW3 (victim) and she supported the prosecution version and there is no inconsistency in her testimony, thus, there is no reason to disbelieve her testimony. It was submitted that no reliance can be placed on the deposition of defence witnesses as they were not present at the spot and close relatives of the accused, thus they are interested witnesses. No case law is cited in support of his contentions.
7. I have heard learned counsel for both the parties at length, perused the record and gave my thoughtful consideration to their contentions.
8. Though to prove the guilt of accused, prosecution has examined as many as seven witnesses, yet the deposition of PW1, PW3, [ENTITY] vs. [ENTITY] PW5 and PW7 are relevant. PW1 and PW7 are the parents of the victim and they were not present at the time of incident. They acquired the knowledge of alleged incident from PW3. PW5 is the teacher of PW3 and she had sent the victim to fetch a bottle of water from the house of accused.
9. Admittedly, PW3 was just nine years old at the time of alleged incident and she was just in 4th standard at the time of incident. Thus, PW3 is a child witness.
10. It is a settled principle of law that child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated from other prosecution evidence. The Court in such circumstances can safely rely on the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which should bear in mind while assessing the evidence of a child witness is that the witness must be reliable and his/her demeanor must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if witness is a child, his evidence shall be rejected, even if it is found reliable. (see Alagupandi v. [ENTITY] of T.N. (2012) 10 SCC 451 Dattu Ramrao Sakhare v. [ENTITY] of Maharashtra (1997) 5 SCC 341, Panchhi v. [ENTITY] of U.P. (1998) 7 SCC 171).
11. Prosecution has set up a case against the appellant that [ENTITY] vs. [ENTITY] PW3 was sent to the house of appellant by PW5 to fetch a bottle of water and at that time appellant was alone in his house. Taking the advantage of desolation, appellant had outraged the modesty of PW3 by lifting her in his lap, laying her on bed and kissing on her cheek. In her deposition, PW3 testified on all the above aspects. She categorically deposed that she was sent to the house of appellant by PW5 to fetch a bottle of water, accordingly, she went there where accused was alone and she asked for water bottle. Upon this accused stated "meri jaan paani dene mai thoda waqat lagata hai and thereafter [ENTITY] (accused) went inside the kitchen to fetch water. Thereafter [ENTITY] (accused) ne mujhe gode (lap) mai uttha ke bed pe lita ke mujhe ek bar kiss kiya."
12. Now question arises as to whether appellant was alone in the house at the time of visit of the victim?
13. In this regard the testimony of PW5 is quite relevant. It is admitted fact that house of PW5 and accused is opposite to each other. PW5 deposed that victim (PW3) used to come her to learn Holy Quran. She further deposed that she asked [ENTITY] (sister of accused) to give a bottle of water. Accordingly, [ENTITY] asked her to send any child for the same and she sent the victim (PW3) to fetch bottle of water. She further deposed that victim brought the water bottle from the house of [ENTITY] i.e. from the house of accused. In her cross-examination she clarified that her house is in front of the house of accused across the gali. Windows of both the houses face to each other and she asked [ENTITY] to give bottle of water from the said window and at that time [ENTITY] was standing in the window. Thus, from the testimony of PW5 it becomes clear that [ENTITY] was in the house when she sent the victim to bring the bottle of water. Interestingly, prosecution had not controverted the testimony of PW5 to the extent that she did not talk with [ENTITY] vs. [ENTITY] [ENTITY] before sending the victim to her house to fetch bottle of water. In these circumstances, there is no reason to disbelieve her testimony on the said count. Thus, as per the testimony of PW5, it was admitted case of prosecution that when PW5 sent the victim to fetch bottle of water from the house of accused, [ENTITY], his sister was in the house and she was seen by the PW5. Accused in his statement under [SECTION] [ACT] stated that he was present in his room and water was given to her by his sister. No doubt there is some contradiction between the plea taken by the accused in his statement under [SECTION] [ACT] and the deposition of DW1 as DW1 deposed that she had given the water bottle to her brother (accused) who passed the same to the victim and victim left from the house whereas accused took the plea that his sister told her that victim came to their house to fetch bottle of water. But it is well settled law that prosecution has to stand on its legs. Prosecution can not take the advantage of any deficiency in the defence. Once, prosecution succeeds to establish the guilt of accused, then any deficiency in the defence can be used to strengthen the prosecution version. But not vice-versa. Thus to my mind, the said contradiction is not sufficient to disbelieve the testimony of PW5 who categorically deposed that before sending the victim to the house of accused, she talked with [ENTITY].
14. Now as per the testimony of witnesses examined by prosecution, two different view emerge. One view is that accused was alone in the house when PW3 visited the house of accused as deposed by PW3 and second view that [ENTITY] was in the house at that time as deposed by PW5. To my mind, in these circumstances, to place reliance on the testimony of PW3 on the point that [ENTITY] was not in the house or accused was alone at that time, Court needs some kind of corroboration from the testimony of witnesses examined by the prosecution. But I failed to get any [ENTITY] vs. [ENTITY] corroborative piece of evidence from the prosecution side, which corroborate that [ENTITY] was not in house when PW5 sent the victim to fetch bottle of water.
15. There is also inconsistency between the testimony of PW3 and PW5 on another point. PW3 in her examination-in-chief deposed that after the incident, she became a little sad and went to her house while running and narrated the incident to her mother while weeping. Thus, as per the testimony of PW3 she did not go to the house of PW5 to deliver the water bottle. On the contrary PW5 deposed that after fetching the bottle of water, PW3 remained at her house for 5-10 minutes and PW3 did not tell anything about the incident to her. She further deposed that when PW3 left from her house, she was in comfortable mood, she was happy and she had no sign of anxiety on her face. Thus, as per the testimony of PW5, victim did not only return to her house after fetching bottle of water but she was also happy and in comfortable mood and she had no sign of anxiety on her face. During trial, prosecution failed to adduce any other evidence to corroborate the testimony of victim that she did not go to the house of PW5 or that she was disturbed in any manner or that she had made any complaint to PW5.
16. To my mind, above contradictions are major in nature as the same affects the core of prosecution case. In view of the above contradictions and the fact that prosecution has failed to adduce any other evidence, which may corroborate the victim's version on the above aspects, I am of the view, it would not safe to rely upon the uncorroborated testimony of PW3.
17. Further, it is admitted case prosecution that police had [ENTITY] vs. [ENTITY] received the intimation of this incident vide DD No. 30 (Ex. PW4/A). Said DD was received at about 5:30 PM. As per said DD, information was received from mobile phone no. 9818107151 that one person had been apprehended at 2193 [ENTITY], Pahari Bhojla. On receipt of said DD, police reached the spot as mentioned in the said DD where complainant met and got recorded her statement, thereafter, investigating officer made an endorsement and same is Ex. PW6/A. But in the said endorsement, there is no reference that any person was found apprehended by the public or by the complainant. Even there is no reference that accused was found there. [ENTITY] was sent from the spot at about 6:30 PM. As per arrest memo, accused was arrested at about 7:30 PM from his house i.e. 2193 [ENTITY], Pahari Bhojla. It means that accused was not at home when investigating officer had sent the rukka at about 6:30 PM. But on the contrary, PW1 deposed that when she along with her husband (PW7) reached the house of accused, he was there and he misbehaved with them, accordingly, they made a call at number 100. She further deposed that accused had bolted himself inside the house. PW7 deposed that accused did not come down stairs and he started abusing them and accused also tried to hit him with fists and legs. Accordingly, they called the police. It is not clear, if accused did not come down stairs or he bolted himself inside the house, how he could assault the PW7 by fists and legs. PW7 further deposed that in the meantime, his sister came there and she opened the door. Thus, as per the testimony of PW1 and PW7 accused was present at the spot when police reached there but surprisingly, in the rukka all these facts are not mentioned, which show that the things must have not been happened in the manner in which same have been projected before the Court.
18. Pondering over the ongoing discussion, I am of the [ENTITY] vs. [ENTITY] considered opinion that appellant is entitled for the benefit of doubt, thus, I hereby acquit the appellant. Accordingly, criminal appeal stands allowed.
19. Copy of judgment be sent to the learned Trial Court.
20. TCR be sent back.
21. Criminal appeal file be consigned to record room.
Announced in the open court on 2nd day of December 2013 ([ENTITY]) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.