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2012 Supreme(Del) 2459
DELHI HIGH COURT
S.Ravindra Bhat, S.P.Garg, JJ.
State - Appellant
Versus
Anwar Hussain - Resopndent
Crl. A. No. 156 of 2011
Decided On : 05-03-2012
The main legal point established in the judgment is the need for corroboration in cases involving the testimony of a prosecutrix in a rape case and the duty of the court to deal with such cases with utmost sensitivity.
Headnote:
RAPE - Criminal Law - Section 376 IPC - [Section 376 IPC] - The court discussed the legal provisions related to the testimony of a prosecutrix in a rape case, the weight attached to her evidence, and the need for corroboration. It also highlighted the duty of the court to deal with cases of sexual harassment with utmost sensitivity and the need to carefully evaluate the evidence in such cases.
Fact of the Case:
The case involved the alleged rape of a five-year-old girl. The prosecution relied on the testimony of the prosecutrix and her parents, while the accused denied the allegations and claimed false implication due to enmity.
Finding of the Court:
The court found inconsistencies and variations in the testimonies of the witnesses, lack of corroboration for the prosecutrix's testimony, delay in lodging the FIR, and contradictions in the statements of the parents of the prosecutrix. The court also noted discrepancies in the medical evidence and FSL reports.
Issues: The key issues included the credibility of the prosecutrix's testimony, delay in lodging the FIR, inconsistencies in witness statements, and the lack of corroboration for the prosecution's case.
Ratio Decidendi: The court emphasized the need for corroboration in cases involving the testimony of a prosecutrix, the duty of the court to deal with sensitivity in cases of sexual harassment, and the caution required in evaluating the evidence of a child witness.
Final Decision: The court dismissed the appeal against the acquittal of the accused, citing the lack of substantial and compelling reasons to overturn the trial court's judgment.
1. The State has preferred the present appeal against the judgment dated 25.02.2010 of Ld. Addl. Sessions Judge in SC No. 128/2007 by which the respondent was acquitted of the charge for committing the offence punishable under Section 376 IPC.
2. Criminal law was set into motion at around 2000 hours (8.00 P.M.) on 25.08.2007 when DD No. 64-B (Ex.PW-7/A) was recorded by SI Rishi Pal to the effect that at B-119, Joshi Colony, a girl aged about five years has been raped. Investigation was assigned to SI Praveen Kumar who along with Const. Kulwant Singh reached the spot. Soon thereafter, Insp. Alka Azad also reached there. Margub, father of the prosecutrix 'P' (assumed name) in his statement to IO disclosed that on 25.08.2007 when he returned to the house after performing his duties at 7.00 P.M., his wife, Reshma told him that at about 2.30 P.M. her daughter 'P' went to the accused's shop (whom she used to address as 'chachu') to purchase “Itchguard cream”. When she returned after some time, 'P' told her that the accused had done something offensive (ganda kaam) after putting off her Knickers, inside the shop. He further stated that he and his wife saw semen spots on her Knickers. On that, he took 'P' to the shop of the accused; she identified him as the person who had done ganda kaam with her and further stated that earlier too, the accused had committed similar acts. He rebuked the accused and informed the police on telephone.
3. Insp. Alka Azad made an endorsement on the statement and sent the rukka for registering the case under Section 376 IPC. 'P' and her parents were taken to LBS Hospital where the doctor conducted medical examination of the prosecutrix. On reaching the spot from the hospital, the IO prepared the site plan on the pointing out of the complainant.
4. Since the father of the prosecutrix had indicted the accused, the police set out to apprehend him. On getting secret information, the accused was arrested from the corner of the gali on the identification of the complainant and the prosecutrix during the night intervening 25/26.08.2007. He was interrogated, he made disclosure statement Ex.PW-13/B. The accused was taken to LBS Hospital for medical examination.
5. During the course of investigation, the statement of the prosecutrix was recorded under Section 164 Cr.P.C; IO collected her birth certificate and other documents from school; she sent the exhibits to FSL and collected the FSL report. The IO recorded statements of witnesses conversant with the facts of the case and after conclusion of investigation, charge-sheeted the accused for committing the offence under Section 376 IPC.
6. To bring home the charge, the prosecution examined fourteen witnesses. It mainly relied on testimonies of the prosecutrix and her parents who appeared as PW-2 and PW-3. Statement of the accused was recorded under Section 313 Cr.P.C. to afford him an opportunity to explain the incriminating circumstances appearing against him. He denied his hand in the crime and pleaded that he was falsely implicated in this case due to enmity. He alleged that on the date of incident, the complainant and his brothers assaulted him and caused injuries. When he went to inform the police, he was detained there. The accused examined DW-1 (Const. Dharmender Singh), DW-2 (Ali Sher) and DW-3 (Israr Hussain) in his defence.
7. After consideration of the evidence and after considering rival contentions of the parties, the Addl. Sessions Judge acquitted the accused.
8. Leave was granted to the State to file appeal against the impugned judgment by an order dated 02.02.2011.
9. The APP has assailed the findings of the trial court and urged that it did not appreciate the evidence in the proper perspective and fell into grave error in rejecting the testimony of PW-2 without cogent reasons. 'P' aged about five years, categorically implicated the accused for committing rape and gave a consistent version in her statement recorded under Section 164 Cr.P.C. as well
