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Gugan vs State (Govt. Of Nct Of Delhi) on 13 November, 2017

$~R-20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: November 13, 2017

+ CRL.A. 130/2011
GUGAN ….. Appellant
Through: Mr.Siddharth Aggarwal
Mr.Gautam Gandhi, Advocates

versus

STATE (GOVT. OF NCT OF DELHI) ….. Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State

PRATIBHA RANI, J. (Oral)

1. This appeal has been preferred by the appellant challenging the
judgment dated 19th November, 2009 and order on sentence dated 21st
November, 2009 whereby he has been convicted for committing the
offence punishable under Section 376 IPC and sentenced to undergo
RI for a period of 7 years and to pay a fine of `2,000/- and in default
of payment of fine, to undergo SI for 6 months.

2. Briefly stating, case FIR No.601/07 was registered on the basis
of statement made by Kumari ‘A’ (name withheld to conceal her
identity) aged about 17 years to the effect that her mother had expired
a year ago and after the completion of her last rites (Tehravi) her
father used to sexually abuse her and on resistance from her, he used
to beat her and do ‘galat kaam’ with her. Her father had committed
‘galat kaam’ with her the day before she reported the incident. When
she informed the residents of the locality, somebody informed the

CRL.A. No.130/2011 Page 1 of 6
PCR. The police came and took her and her father to the hospital
where their medical examinations were conducted. Her statement
under Section 164 CrPC was also got recorded and after completion of
investigation, charge-sheet was filed.

3. The appellant pleaded not guilty to the charge framed. The
prosecution examined 12 witnesses in all to prove its case. The
appellant has also been examined under Section 313 CrPC to explain
the incriminating evidence appearing against him wherein he has
denied the case of prosecution and stated that he has been falsely
implicated in this case.

4. It is now settled principles of law that conviction can be
founded on the testimony of the prosecutrix alone unless there are
compelling reasons for seeking corroboration. The evidence of a
prosecutrix is more reliable than that of an injured witness. The
testimony of the victim of sexual assault is vital unless there are
compelling reasons which necessitate looking for corroboration of her
statement, the Courts should find no difficulty in acting on the
testimony of a victim of sexual assault alone to convict an accused
where her testimony inspires confidence and is found to be reliable. It
is also well settled principle of law that corroboration as a condition
for judicial reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under given
circumstances. Even minor contradictions or insignificant
discrepancies in the statement of the prosecutrix should not be a
ground for throwing out an otherwise reliable prosecution case.

CRL.A. No.130/2011 Page 2 of 6

5. In the instant case, PW-5 ‘A’, the prosecutrix had stated that
after the death of her mother, her father raped her thrice in the year
2007. She informed this incident to her neighbour (PW-1, Poonam),
who was residing just opposite to her house. She addressed her as
Aunty. The police came to the spot and took her to the hospital along
with PW-1, Poonam. Thereafter, she was produced before the Court
where her statement Ex.PW-5/A was recorded before the learned
Magistrate. FIR was registered on her complaint Ex.PW-5/B on which
she had put her thumb impression.

6. In the complaint Ex.PW-5/B, which formed basis of the
registration of FIR No.610/2007, she had stated that after the death
and last rites (Tehravi) of her mother, her father used to wake her up
during night and after removing her clothes used to commit galat
kaam with her. Whenever she resisted saying that no father would do
such type of act with her daughter, her father used to beat her. Two
days prior to the registration of the FIR when her father again did
galat kaam with her, she informed the residents of the Gali.
Somebody informed the PCR and thereafter, she was sent for medical
examination. She made statement Ex.PW5/B to the police. The
endorsement on the rukka sent by SI Kadar Nath Pandey is to the
effect that on receiving DD No.19A he along with Constable
Goverdhan reached on the spot where he met with the prosecutrix and
her neighbour PW-1, Poonam. The prosecutrix, PW-5 was taken to
AIIMS for her medical examination where her MLC was prepared.

7. PW-1, Poonam, the neighbour of the prosecutrix has stated that
on 21st June, 2007 in the evening, PW-5 ‘A’ came out running from

CRL.A. No.130/2011 Page 3 of 6
her house and she was crying. She informed that her father was doing
wrong act with her and she explained the wrong act to her that her
father had been committing rape with her. Several persons gathered
there and somebody from the neighbour informed the Police Control
Room. Police reached the spot and prosecutrix ‘A’ as well as appellant
were taken to AIIMS. She accompanied the prosecutrix to AIIMS
where her consent was obtained by the doctor for medical examination
of ‘A’.

8. On the MLC Ex.PW-5/C of the prosecutrix, the alleged history
given by her was that she being sexually assaulted by her father.

9. PW-9 Dr.Basil, who examined the prosecutrix ‘A’ and prepared
her MLC Ex.PW5/C, when appeared before the Court has stated that
he has examined the prosecutrix ‘A’. On examination, the hymen was
found to be ruptured. Some fluid stains were seen in genital area. He
has also stated that he opined on the MLC Ex.PW5/C at point ‘S’ that
there was a possibility of sexual assault.

10. The appellant/accused in his statement under Section 313
Cr.P.C. has denied the prosecution evidence in simplicitor and has not
led any evidence in his defence. The only suggestion given to PW-1
and PW-5 for his false implication is that the prosecutrix used to
spend more time with PW-1, her neighbour and this was to the
annoyance of the appellant.

11. The appellant does not dispute that his wife had expired and the
prosecutrix was 16-17 years old at that time.

12. Proximity with a neighbour and that too a female could not be a
reason for him to feel annoyed. The prosecutrix, PW-5 has admitted

CRL.A. No.130/2011 Page 4 of 6
that after having dinner, she used to have a stroll in the gali with
Poonam Aunty (PW-1) and she used to come late by 11.00 or 11.30
pm for which her parents used to scold her but that itself could not be
a motive for her to implicate her own father in a serious offence of
rape. This is a case where the appellant/father has been named to be a
person who has committed rape on his own daughter, who was staying
with him. After the death of the mother, the prosecutrix had no support
system except her father and she would not blame her own father for
committing rape on her.

13. While dealing with the case of the rape wherein the offender is
none else but the father, the version of the prosecutrix can be accepted
without any corroboration. In the statement of the prosecutrix there are
no material contradictions except about the date or the month. This
Court cannot ignore that she is illiterate and put her thumb impression
on the complaint as well as on FIR. She being an illiterate person may
not be able to give specific date and time or the month or the year.

14. From the evidence coming on record, it is established that
PW-5, ‘A’ was subjected to rape by the appellant. The medical
evidence corroborated the testimony of the prosecutrix to the extent
that her hymen was found ruptured. Minor contradictions or
discrepancy appearing in her statement as pointed out by learned
counsel for the appellant cannot be treated a ground for disregarding
otherwise reliable testimony which proved the prosecution case
beyond reasonable doubt.

15. In the case reported as Madan Gopal Kakkad vs. Naval Dubey,
(1992) 3 SCC 204, it was observed that even in cases wherein there is

CRL.A. No.130/2011 Page 5 of 6
lack of oral corroboration to that of a prosecutrix, a conviction can be
safely recorded, provided the evidence of the victim does not suffer
from any basic infirmity, and the ‘probabilities factor’ does not render
it unworthy of credence, and that as a general rule, corroboration
cannot be insisted upon, except from the medical evidence, where,
having regard to the circumstances of the case, medical evidence can
be expected to be forthcoming.

16. In view of the above discussion, the impugned judgment does
not suffer from any illegality. The appeal has no merit and the same is
hereby dismissed.

17. LCR be sent back alongwith copy of this order.

18. A copy of this order be sent to the concerned Jail
Superintendent for information.

PRATIBHA RANI
(JUDGE)
NOVEMBER 13, 2017
‘pg’

CRL.A. No.130/2011 Page 6 of 6

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