IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On: 31.05.2017
Judgment Pronounced On: 01.09.2017
CRL.A. 1509/2014
RAVINDER SINGH …Appellant
Through: Mr. Manoj Sharma, Ms.
Manoranjani, Advocates
versus
STATE … Respondent
Through: Mr. Ravi Nayak, APP for
State with SHO Raj Kumar, P.S.
BHD Nagar.
CORAM:
HON’BLE MR. JUSTICE SIDDHARTHMRIDUL
HON’BLE MS. JUSTICE MUKTA GUPTA
JUDGMENT
SIDDHARTHMRIDUL, J.
1. The present appeal instituted under the provisions of section 374 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as the
‘CrPC’) assails the judgment dated 18.02.2013 and the order on sentence
dated 23.02.2013, rendered by the Ld. Additional Sessions Judge (Special
CRL.A.1509/2014 Page 1 of 26
Fast Track Court), Dwarka Courts, New Delhi, in Sessions Case No.
01/13, in FIR No. 211/2012, registered at P.S. Baba Hari Dass Nagar.
2. By way of the impugned judgment dated 18.02.2013, the appellant
has been convicted for the commission of offences punishable under the
provisions of sections 376, 377 and 506 of the Indian Penal Code, 1860
(hereinafter referred to as the ‘IPC’). By way of the impugned order on
sentence dated 23.02.2013, the appellant has been sentenced to undergo
imprisonment for life, alongwith a payment of fine of Rs.25,000/-, for the
offence punishable under the provision of section 376, IPC. In default of
the payment of fine, the appellant has been sentenced to undergo simple
imprisonment for a period of six months. Further, for the offence
punishable under the provision of section 377, IPC, the appellant has been
sentenced to undergo imprisonment for life, alongwith the payment of fine
of Rs.25,000/-. In default of the payment of fine, the appellant has been
sentenced to undergo simple imprisonment for a period of six months.
Furthermore, for the offence punishable under the provision of section 506,
IPC, the appellant has been sentenced to undergo rigorous imprisonment
for 02 years, alongwith the payment of fine of Rs.10,000/-. In default of
the payment of fine, the appellant has been sentenced to undergo simple
imprisonment for a period of three months. All the sentences have been
directed to run concurrently. The appellant has been granted the benefit of
CRL.A.1509/2014 Page 2 of 26
section 428 of the CrPC; with a stipulation that the appellant shall not be
given any clemency by the State before he spends atleast 20 years in jail.
3. The gravamen of the charge, for which the appellant has been
convicted, is for having committed rape on his daughter/the prosecutrix, a
girl aged about 9 years, at the time of commission of the offence.
4. Briefly, the facts of the case as are relevant for the adjudication of
the present appeal are as under:
i. The prosecution case, as unfurled, is that on 30.09.2012, the
prosecutrix was brought to the police station by her mother, Smt.
Kamlesh (PW-1) with a complaint that her daughter had been raped
by the appellant (father of the prosecutrix). After recording the
statement of PW-1 [Ex.PW-1/A],W/SI Saroj Bala (PW-15)
accompanied the prosecutrix to RTRM Hospital and got the
prosecutrix medically examined [vide MLC Ex.PW-7/A].
ii. Thereafter, FIR No. 211/2012, (hereinafter referred to as the ‘subject
FIR’) was registered against the appellant, for the commission of
offences punishable under the provisions of sections 376, 377 and
506 of the IPC. [Ex.PW-10/A]
iii. On the same day, i.e. 30.09.2012, the appellant was arrested [vide
arrest memo Ex.PW-1/B] at the instance of PW-1; and sent for
CRL.A.1509/2014 Page 3 of 26
medical examination [vide MLC Ex.PW-16/A]. The appellant also
made a disclosure statement [Ex.PW-2/A] and pointed out the place
of the occurrence [Ex.PW-2/B].
iv. As per the subject FIR, the complainant/PW-1 is the wife of the
appellant and they have two daughters. They resided at a rented
accommodation at C-35, Raghuvir Enclave, Najafgarh, Delhi and
the appellant was employed as a Guard at PACL Insurance
Company. The prosecutrix is the elder daughter of PW-1 and the
appellant. Around a month prior to making the complaint, the
prosecutrix complained to PW-1 of abdominal pain and of difficulty
in passing stool. Pursuant to the same, on 28.09.2012, PW-1 got the
prosecutrix medically examined at the Primary Health Centre,
Najafgarh and administered medicines to her; but since no relief was
felt by the prosecutrix, PW-1 again got her checked on 29.09.2012.
She was prescribed medicines for internal consumption and for
application on the body. Whilst applying the medicine on the body
of the prosecutrix, PW-1 noticed some swelling on her private part,
pursuant to which PW-1 took the prosecutrix to the same hospital in
the evening, where the doctor informed PW-1 that the prosecutrix
has been sexually assaulted. PW-1 then inquired from the
prosecutrix about the same and the latter disclosed that about one
CRL.A.1509/2014 Page 4 of 26
month back, at their house, the appellant had committed rape on her
2-3 times and threatened her with dire consequences if she disclosed
about the rape to anybody.
v. The medical opinion in the MLC report, dated 30.09.2012, [Ex. PW-
3/A], qua the prosecutrix, returned a finding to the effect that, “no
fresh external injury marks present; hymen is intact; redness present
in vulval area; and anal area- Nil”.
vi. The exhibits of the case [Undergarments of the prosecutrix, blood
sample, urine sample, nail clippings, 02 vulval swabs and 02 anal
swabs, pertaining to the prosecutrix; and the exhibits pertaining to
the appellant] were sent for examination to FSL, Rohini.
vii. Charge was framed against the appellant under sections 376, 377
and 506IPC, vide order on charge dated 22.12.2012, wherein, he
abjured his guilt to the charge framed against him and claimed trial.
viii. During the course of trial, to bring home the charges, the
prosecution examined sixteen witnesses, whose testimony is
summarized hereinbelow:
Smt. Kamlesh, [PW-1], mother of the prosecutrix deposed
that she has been residing at C-35, Raghubir Enclave,
Najafgarh, New Delhi with her husband and two daughters.
She further deposed that they shifted to this house one month
CRL.A.1509/2014 Page 5 of 26
prior to the date of the incident, before which they were
residing at RZA-52, Raghuvir Enclave, Najafgarh. She has
further deposed that her daughter, the prosecutrix, used to
complain of stomach ache and difficulty in passing stool, for
about a month before the latter told her about the incident.
PW-1 further testified that since the prosecutrix did not get
any relief by a regular medicine, she got the prosecutrix
examined at Primary Health Centre, Najafgarh, on
28.09.2012. PW-1 also testified that the medicine prescribed
to her also did not provide her any relief and after taking her
to the Primary Health Centre on 29.09.2012, the doctor
prescribed medicine for local application. It has then been
testified by PW-1 that whilst applying the medicine, she
noticed some swelling on the private parts of the prosecutrix,
pursuant to which she took the prosecutrix to the hospital. It
has been deposed by PW-1 that the doctor informed her that
the prosecutrix has been sexually assaulted. PW-1 testified
that when she inquired about the same from the prosecutrix,
the latter told her that about one month ago, the
appellant/husband of PW-1/father of the prosecutrix had
committed galat kaam, twice or thrice, with her in the old
CRL.A.1509/2014 Page 6 of 26
house. PW-1 further testified that the appellant had threatened
the prosecutrix with dire consequences if she told about the
incident to anyone. She further deposed that after consulting
with her mother, she informed the police about the incident,
after which her complaint [Ex.PW-1/A] was recorded and the
prosecutrix was medically examined at RTRM Hospital. It has
been further deposed by PW-1 that upon her asking, the
prosecutrix informed her that the appellant inserted his penis
in the vagina and anus of the prosecutrix; and that she noticed
some redness around the private parts of the prosecutrix. PW-
1 further testified that thereafter the appellant was arrested
from their house [vide arrest memo Ex.PW-1/B], and upon
interrogation, he admitted to his guilt.
Devender [PW-2], deposed that he joined the investigation in
the present case and that during the course of the
investigation, the prosecutrix was taken to RTRM Hospital
where she was medically examined. He further deposed that
thereafter, the appellant was arrested from their house, and his
disclosure statement was recorded [Ex.PW-2/A]. PW-2
further deposed that the appellant pointed out the place of
CRL.A.1509/2014 Page 7 of 26
occurrence vide memo Ex.PW-2/B, and that thereafter he was
medically examined.
Dr. Pratibha [PW-3], deposed that she conducted the medical
examination of the prosecutrix and rendered the report
[Ex.PW-3/A]. She deposed that the hymen was found intact
and that she observed redness in the vulvar area and also the
anal area was normal.
Rajbala [PW-4], deposed that her daughter/PW-1 got married
to the appellant and they had two daughters aged about 9
years and 7 years. PW-4 further deposed that the relationship
between PW-1 and the appellant were strained because of the
latter’s consumption of alcohol. She further deposed that on
29.09.2012, PW-1 informed her about the redness around the
private parts of the prosecutrix and that the doctor had
suspected that the prosecutrix had been sexually assaulted.
PW-4 further deposed that upon inquiring about the same
from the appellant, he admitted his guilt and apologized for
his conduct. Thereafter, the police was informed of the
incident.
Seema, Ct., P.S. Baba Hari Dass Nagar (PW-5) deposed that
on 30.09.2012, she joined the investigation in the present case
CRL.A.1509/2014 Page 8 of 26
as the Constable and had gone to RTRM Hospital. She further
deposed that the prosecutrix got medically examined and the
doctor handed over the sealed parcels which were seized vide
seizure memo Ex.PW-5/A. It has further been deposed by
PW-5 that, thereafter, the police team reached the house
where they used to reside before they shifted to the house they
were currently residing at and that the prosecutrix told the IO
that the incident of rape was committed at the house they used
to previously reside in. It has been further deposed that
thereafter, the police team reached the house of the
prosecutrix where they currently resided, and from where the
appellant was arrested.
Baljeet Singh, Ct., P.S. Baba Hari Dass Nagar (PW-6),
deposed that on 30.09.2012, he took the appellant to RTRM
Hospital to get him medically examined. He further deposed
that after the medical examination of the appellant, the doctor
handed over six sealed parcels alongwith one sample seal to
him which were handed over to PW-15, who seized the same
vide seizure memo Ex.PW-6/A.
Dr. Satish Chander Yadav, Medical Officer, RTRM Hospital,
Jaffarpur, New Delhi (PW-7) deposed that on 30.09.2012, at
CRL.A.1509/2014 Page 9 of 26
about 12.45 P.M., the prosecutrix was brought to the hospital
for medical examination and was medically examined by him
[vide MLC Ex.PW-7/A] and that he referred the prosecutrix
to the gynecologist department for her internal examination.
The prosecutrix (PW-8) identified the appellant as her father
and deposed that she did not remember the exact date and
month of the incident, but that it happened 3 or 4 months ago.
She further deposed that at the time of the incident she was
residing with her parents and younger sister in a rented
accommodation at Najafgarh. She further deposed that on the
date of the incident in the evening she was playing outside the
room with her sister when the appellant called her inside the
room. She testified that her mother had gone for work at that
time and was not present in the room. The prosecutrix also
deposed that the appellant after calling her inside the room
took off the pants and underwear she was wearing and
thereafter took off his own pants and underwear. Further she
deposed that the appellant first inserted his male organ first
from the front side and then from behind. Further that, after
the act was over the appellant threatened and warned the
prosecutrix to not disclose the incident to anyone or he would
CRL.A.1509/2014 Page 10 of 26
kill her. The prosecutrix further testified that when PW-1
came home from work at about 6 P.M., that evening she out
of fear did not disclose the incident to her. Furthermore that,
about one week after the incident she was feeling some pain
in the abdomen and was also finding it difficult to pass stool;
and at that time she disclosed the incident to PW-1, who took
her to a doctor. Lastly, she deposed that, the incident was
reported to the police by PW-1, whom she accompanied to the
Police Station; and that the police officials got her medically
examined in the hospital; and also that the police officials
took her to Court where her statement was recorded.
The prosecutrix deposed that she studies in Pratibha School
No.1, Najafgarh; and does not know where the appellant
works but that he used to go to work sometimes in the
morning and sometimes in the night time. Further that, on the
day of the incident PW-1 left for work in the morning, but
sometimes she used to leave alongwith her when she used to
leave for school, and return at about 6 P.M. in the evening.
Further that, sometimes PW-1 and the appellant used to
quarrel on petty matters and sometimes the latter used to beat
up the former, but PW-1 never called the police due to the
CRL.A.1509/2014 Page 11 of 26
quarrels. Further testified that, it is wrong to suggest that after
the quarrel the prosecutrix and PW-1 used to go to the house
of her Naana and Naani. Further that, neither does she
remember the date when she alongwith PW-1 went to the
police station nor the date when she was taken to the hospital
by PW-1. Further that, police had recorded her statement in
the police station.
Mr. Rajpal (PW-9) deposed that PW-1 and the appellant
whom he had identified, are married to each other. Further
that they were residing as tenants in a room in his house
bearing No.C-35, Raghuvir Enclave, Najafgarh, New Delhi
for 25 days in the month of September, 2012. Further that the
Appellant was working as a security guard in an insurance
company and he used to return from his job at about 3 P.M.
Mr. Sadan Kumar, Head Constable, P.S. Baba Hari Dass
Nagar (PW-10) deposed that on 30.11.2012, PW-2 handed
him over a rukka sent by PW-15 on the basis of which he
registered the subject FIR under sections 376, 377 and 506 of
the IPC.
Mr. Ashique Ali Khan, SI, P.S. Baba Hari Dass Nagar (PW-
11), deposed that he received DD No.10-A from the duty
CRL.A.1509/2014 Page 12 of 26
officer at 08:30 A.M. to the effect that a girl has been sexuallyassaulted by her own father; and he alongwith PW-2 reached
the spot of incident where he met the prosecutrix and her
mother (PW-1). Further that, on the instructions of PW-2 he
brought the prosecutrix and PW-1 to the Police Station and
handed them over to PW-15.
Mr. Raj Singh, Head Constable, P.S. Baba Hari Dass Nagar
(PW-12) deposed that on 30.09.2012 PW-15 deposited 6
sealed parcels and 5 sealed parcels with respect to the
appellant and the prosecutrix respectively, and the same were
deposited in the Malkhana. He further deposed that on
09.10.2012 the said samples were taken by PW-15 to FSL,
Rohini and the acknowledgement receipts thereof were
handed over to him.
Ms. Ruchika Singla, MM, Dwarka Courts, New Delhi (PW-
13) deposed that she recorded the statement of the prosecutrix
[Ex.PW-13/A] in her own handwriting.
Ms. Nirmala Gupta (PW-14), Headmistress, MCD Primary
School, Najafgarh, Delhi, deposed that at the time of the
admission of the prosecutrix in the school, her parents had
submitted the birth certificate issued by Govt. of NCT of
CRL.A.1509/2014 Page 13 of 26
Delhi which shows her date of birth as 27.09.2003 (Photocopy
is Ex.PW-14/B).
W/SI Saroj Bala, P.S. Chhawla (PW-15) deposed that on
30.09.012, she was handed over DD No. 10-A at P.S. Baba
Hari Dass Nagar and she recorded the statement of PW-1
[Ex.PW-1/A]. She further deposed that she took the
prosecutrix for medical examination and collected the samples
for scientific examination [Ex.PW-5/A]. Rukka was prepared
[Ex.PW-15/A] and the same was handed over to Ct. Devender
(PW-2). She further deposed that PW-1 informed her that the
appellant would be present at the house of PW-1 and the
appellant. She further testified that after reaching the house,
the police team arrested the appellant vide arrest memo
Ex.PW-1/B. She further testified that, personal search of the
appellant was conducted [Ex.PW-1/C]; the disclosure
statement [Ex.PW-2/A] of the appellant was recorded; and the
appellant pointed out the place of occurrence. She further
deposed that the appellant was also taken for medical
examination to RTRM Hospital and the samples were seized
[Ex.PW-6/A] and deposited in the Malkhana.
CRL.A.1509/2014 Page 14 of 26
Dr. R. Shankarnarayanan, Medical Officer, RTRM Hospital
(PW-16) deposed that he conducted the medical examination
of the appellant; prepared the MLC [Ex. PW-16/A]; and
handed over the samples pertaining to the appellant to HC
Virender.
ix. The appellant, in his statement recorded under the provision of
section 313 of the CrPC, whilst denying the case of the prosecution,
stated that he has been falsely implicated in the case at the instance
of PW-1, since he objected to the illicit relations of PW-1 with
someone. The appellant also denied making the disclosure statement
[Ex.Pw-2/A] to the police or pointing out the place of occurrence.
x. The Ld. Trial Court, after appreciating the evidence brought on
record by the prosecution, came to the conclusion that the
prosecution had been able to establish the charge against the
appellant and further that the defence taken by the appellant was
fabricated and concocted. Therefore, the Ld. Trial Court convicted
the appellant for commission of the offences punishable under the
provisions of sections 376, 377 and 506, IPC.
5. Learned counsel appearing on behalf of the appellant, would canvass
that the learned Trial Judge has erred in convicting the appellant, inasmuch
CRL.A.1509/2014 Page 15 of 26
as, the appellant has been falsely implicated in the case at the instance of
PW-1, since the appellant objected to the latter’s illicit relations with
somebody. Learned counsel would then urge that PW-1 has concocted a
false story of rape, tutoring the prosecutrix, in order to get rid of the
appellant. Learned counsel for the appellant would then submit that
material improvements have been made by the prosecutrix in her
statements, making her testimony unreliable. Further, it would be
asseverated on behalf of the appellant that the prosecutrix has not disclosed
the exact date of the incident and has just stated that the alleged incident
occurred 3-4 months prior to 07.01.2013, i.e. the date of her medical
examination. Furthermore, it has also been urged that no complaint of
stomach ache was made by the prosecutrix to her school teacher.
6. The counsel for the appellant would also submit that there has been
a delay of one month in registration of the FIR in the present case and no
reasonable cause has been brought on record by the prosecution for the
said delay. In this behalf, it would also be contended that the Rukka was
prepared at 5.45 P.M., whereas DD No.10-A was recorded at 8.30 A.M.
7. It would then be urged on behalf of the appellant that the medical
evidence in the instant case does not support the case of the prosecution. In
order to buttress this submission, reliance would be placed on the Modi’s
Medical Jurisprudence. In this behalf, it would also be urged that only the
CRL.A.1509/2014 Page 16 of 26
receipts qua the exhibits sent to the FSL have been placed on record and
no FSL results have been obtained in the instant case. In this behalf, it
would also be urged that the prescription dated 29.09.2012, of the primary
healthcare centre, whereby the doctor on duty had suggested that the
prosecutrix has been sexually assaulted, has not been brought on the
record. Further, the prescription dated 28.09.2012, of the primary
healthcare centre has also not been brought on record. Furthermore, it has
been urged that the doctor who informed PW-1/mother of the prosecutrix
about the prosecutrix having been sexually assaulted, was not made a
witness in the present case and thus not examined.
8. It would then be urged on behalf of the appellant that relevant
questions were not put to the appellant whilst recording his statement
under section 313 of the CrPC.
9. The learned counsel appearing on behalf of the appellant would
lastly pray for a lenient approach with regard to the sentence imposed upon
the latter for the commission of the offences.
10. Per contra, Mr. Ravi Nayak, Ld. APP appearing on behalf of the
State would urge that the testimony of the prosecutrix has been
corroborated by, and finds full support in, the testimony of the mother of
the prosecutrix, Smt. Kamlesh (PW-1). The Ld. APP, would further urge
that the law enunciated with regard to convicting an accused for the
CRL.A.1509/2014 Page 17 of 26
offence under sections 376, 377 and 506 IPC, on the basis of sole
testimony of the prosecutrix, is a well-settled proposition in view of
various decisions rendered by the Hon’ble Supreme Court. The Ld. APP,
would lastly assert that the clear, creditworthy and unshattered testimony
of the prosecutrix is sufficient to establish the case of the prosecution, and
the same is reliable.
11. We have heard counsel appearing on behalf of the parties, examined
the documents and perused the entire evidence on record. The sole issue
that arises for consideration in the present appeal is- whether the testimony
of the victim/prosecutrix deserves acceptance and ultimately, whether the
prosecution has established the guilt of the appellant-accused beyond
reasonable doubt.
12. It is pertinent to observe that the question, whether conviction of an
accused can be based on the sole testimony of the victim in cases of sexual
assault/rape, is no longer res integra. The Hon’ble Supreme Court has
dealt with the issue in a catena of judgments in cases of similar nature and
it has held that, the sole testimony of the prosecutrix if found reliable, can
be relied upon for convicting the accused; and that the credit-worthy
testimony of the victim in cases of such nature deserves acceptance.
13. The Hon’ble Supreme Court, in State of Rajasthan v. Om Prakash,
reported as (2002) 5 SCC 745, dealing with a similar question in the case
CRL.A.1509/2014 Page 18 of 26
of a child rape, while upholding the conviction of the appellant therein and
reversing the decision of the High Court therein, relied upon earlier
decisions and made the following observations:
“13. The conviction for offence under Section 376 IPC can be
based on the sole testimony of a rape victim is a well-settled
proposition. In State of Punjab v. Gurmit Singh [(1996) 2 SCC
384 : 1996 SCC (Cri) 316], referring to State of Maharashtra v.
Chandra Prakash Kewalchand Jain [(1990) 1 SCC 550 : 1990
SCC (Cri) 210] this Court held that it must not be overlooked
that a woman or a girl subjected to sexual assault is not an
accomplice to the crime but is a victim of another person’s lust
and it is improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she were an
accomplice. It has also been observed in the said decision by Dr
Justice A.S. Anand (as His Lordship then was), speaking for the
Court that the inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are factors
which the courts should not overlook. The testimony of the
victim in such cases is vital and unless there are compelling
reasons which necessitate looking for corroboration of her
statement, the courts should find no difficulty to act 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. Seeking corroboration of her statement before relying
upon the same, as a rule, in such cases amounts to adding insult
to injury.
14. In State of H.P. v. Gian Chand [(2001) 6 SCC 71 : 2001 SCC
(Cri) 980] Justice Lahoti speaking for the Bench observed that
the court has first to assess the trustworthy intention of the
evidence adduced and available on record. If the court finds the
evidence adduced worthy of being relied on, then the testimony
has to be accepted and acted on though there may be other
witnesses available who could have been examined but were not
examined.”
CRL.A.1509/2014 Page 19 of 26
14. A perusal of the testimony made by the prosecutrix unequivocally
reveals that the commission of the offence by the appellant is described in
clear and unambiguous words and her testimony has remained consistent
and unshattered even during cross examination. The prosecutrix has clearly
stated that her father/the appellant had committed rape upon her and
thereafter threatened her with dire consequences if she told anyone about
the incident.
15. Further, upon a plain perusal of the testimonies of the prosecutrix
and her mother, the contention raised on behalf of the appellant to the
effect that the prosecutrix is a tutored witness, cannot be accepted and is
dehors any merit. The appellant has failed to controvert the testimony of
the prosecutrix, which has remained unchallenged and unshattered even in
the cross examination.
16. The appellant has contended that the testimony of the mother of the
prosecutrix and of the prosecutrix is inconsistent inasmuch as, during her
cross examination, PW-1/mother of the prosecutrix deposed that the latter
complained of stomach ache 10 days prior to the complaint being made to
the police, whereas, during her examination-in-chief, she had testified that
the prosecutrix was complaining of a stomach ache for one month prior to
the date on which the complaint was made.
CRL.A.1509/2014 Page 20 of 26
17. In our considered view, a mere difference in stating the time period
when her daughter complained of stomach ache, does not in any manner
shatter the testimony of PW-1/mother of the prosecutrix. Therefore, this
submission made on behalf of the appellant is untenable and cannot be
accepted.
18. It would be relevant to observe that the testimony of the prosecutrix
finds complete support in the testimony of her mother, which has also
remained consistent throughout.
19. Therefore, a mere assertion made on behalf of the appellant, that the
prosecutrix is a tutored witness, does not come to the aid of the appellant,
when the former’s statement is also completely corroborated by the
evidence of the other prosecution witnesses (PW-1 PW-4).
20. Further, a perusal of the cross examination of PW-1/mother of the
prosecutrix and PW-4/mother-in-law of the appellant, would reveal that no
question was put to either of them in cross examination, in relation to any
alleged illicit relation of PW-1 with any other person. On the contrary, it is
observed that both these prosecution witnesses were cross examined with
respect to some property dispute between the appellant and PW-1, which
was strongly denied by both the witnesses.
21. In view of the foregoing, it is clear that the defence raised by the
appellant that he has been falsely implicated in the case by PW-1/his wife
CRL.A.1509/2014 Page 21 of 26
and mother of the prosecutrix, because of her illicit relationship with some
other person, is a mere after-thought. It is also relevant to observe that no
cogent material apart from the suggestions has been brought on record by
the appellant to establish his defence.
22. In this view of the matter, the bald defence raised on behalf of the
above mentioned appellant that he has been falsely implicated in the case
by his wife, the mother of the prosecutrix, PW-1, is rejected, keeping in
view the evidence adduced on record which fully establishes the case of
the prosecution.
23. Coming now to the medical evidence adduced; the medical opinion
contained in the MLC report, dated 30.09.2012, [Ex. PW-3/A], qua the
prosecutrix, returned a finding to the effect that, “no fresh external injury
marks present; hymen is intact; redness present in vulval area; and anal
area- Nil”. No FSL Result has been obtained.
24. The position of law on the question, whether absence of injuries
found on the person of the prosecutrix, in the case of rape, would result in
a finding of acquittal, is well settled. Dealing with this issue in the case of
a child rape, a Coordinate Bench of this Court in Lokesh Mishra v. State
of NCT of Delhi, in Criminal Appeal No. 768 of 2010, decided on
12.03.2014, relying on earlier decisions of the Apex Court, while
CRL.A.1509/2014 Page 22 of 26
upholding the conviction under section 376 IPC, made the following
observations:
“38. …In the case of Ranjit Hazarika v. State of Assam, reported
in (1998) 8 SCC 635, the opinion of the doctor was that no rape
appeared to have committed because of the absence of rupture of
hymen and injuries on the private part of the prosecutrix, the Apex
Court took a view that the medical opinion cannot throw over
board an otherwise cogent and trustworthy evidence of the
prosecutrix. …
39. The apex court in B.C. Deva v. State of Karnataka, reported at
(2007) 12 SCC 122, inspite of the fact that no injuries were found
on the person of the prosecutrix, yet finding her version to be
reliable and trustworthy, the Apex Court upheld the conviction of
the accused. The Court observed that:
“18. The plea that no marks of injuries were found
either on the person of the accused or the person
of the prosecutrix, does not lead to any inference
that the accused has not committed forcible sexual
intercourse on the prosecutrix. Though the report
of the gynecologist pertaining to the medical
examination of the prosecutrix does not disclose
any evidence of sexual intercourse, yet even in the
absence of any corroboration of medical evidence,
the oral testimony of the prosecutrix, which is
found to be cogent, reliable, convincing and
trustworthy has to be accepted.””
25. Thus, it is needless to state that, corroboration of the testimony of
the prosecutrix, is not an essential requirement in a case of rape, and the
same is not a sine qua non to bring home the guilt of the accused. The
testimony of the prosecutrix, if well founded trustworthy, is by itself
sufficient to convict the accused.
CRL.A.1509/2014 Page 23 of 26
26. Although in the present case it is observed that vide the MLC,
[Ex. PW-3/A], it has been opined that no fresh external injury marks were
found to be present and the hymen was found to be intact, it is, however,
relevant to note that the examination was conducted on 30.09.2012,
approximately one month after the date of the incident. Further,
pertinently, it has clearly been opined that redness was found to be present
in vulval area.
27. The contention raised on behalf of the appellant that since the
hymen was found to be intact and no fresh external injury marks were
present and also the anal region was found to be normal, no charge of rape
can be sustained, does not hold water, in keeping with the settled position
of law as discussed hereinabove. Injuries are not a sine qua non to prove a
charge of rape.
28. In light of the above, we find no weight in the contention urged on
behalf of the appellant that the medical evidence does not support the case
of the prosecution.
29. In view of the foregoing discussion, in our considered view, the
prosecution has established the guilt of the appellant beyond reasonable
doubt. There is no gainsaying the position of law and there can be no
quarrel with the proposition that when the testimony of the prosecutrix is
unimpeached and beyond reproach, the conviction of the appellant can be
CRL.A.1509/2014 Page 24 of 26
sustained based solely on it. In the case at hand, the same has also found
thorough and complete support in the evidence aliunde led by the
prosecution.
30. In the light of the afore-said legal position and facts and
circumstances of this case, the issue raised in the present appeal is decided
against the appellant.
31. Further, let it not be forgotten that this is a case of rape on a girl
child, only 09 years old at the time of commission of the offence, by her
own father. Nothing can be more heinous than a crime committed on the
person of a child by her father, the one who is duty-bound to provide her
unflinching protection from all harm.
32. It is trite to state that it is necessary for the Courts to have a sensitive
approach when dealing with cases of child rape. The effect of such a crime
on the mind of the child is likely to be lifelong. A special safeguard has
been provided for children in Article 39 of the Constitution of India which,
inter alia, stipulates that the State shall, in particular, direct its policy
towards securing that the tender age of the children is not abused and that
children are given environment opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity; and that
childhood and youth are protected against exploitation and against moral
CRL.A.1509/2014 Page 25 of 26
and material abandonment. [Ref: State of Rajasthan v. Om Prakash
(supra)]
33. In our view, consequently, the sentence awarded to the appellant by
the Ld. Trial Court does not warrant any modification. Therefore, the
judgment and order on conviction dated 18.02.2013 and the order on
sentence dated 23.02.2013 are both hereby upheld.
34. Accordingly, the present appeal fails and the same is dismissed.
35. The Trial Court Record be sent back.
36. Copy of the judgment be communicated to the appellant through the
Superintendent, Tihar Jail and also be sent for updation of the records.
SIDDHARTH MRIDUL, J.
MUKTA GUPTA, J.
SEPTEMBER 01, 2017
dn/mk/sb/ap
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