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Anil Mehto vs State on 29 May, 2018

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th April, 2018
Pronounced on: 29th May, 2018
+ CRL.A. 779/2004
ANIL MEHTO ….. Appellant
Through : Ms.Rakhi Dubey, Advocate
Versus
STATE ….. Respondent
Through : Ms.Aashaa Tiwari, APP.
Insp.Ved Prakash with SI A.Pratap
Singh, PS S.P.Badli.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG
HON’BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT

C. HARI SHANKAR, J.

1. The impugned judgement, dated 17th March, 2004, followed by
order on sentence, dated 25th March, 2004, passed by the learned
Additional Sessions Judge (hereinafter referred to as “the learned
ASJ”) convicts the appellant Anil Kumar Mehto, under Sections 376
and 506 of the Indian Penal Code, 1860 (hereinafter referred to as “the
IPC”), for committing rape of the prosecutrix (who shall be
designated, hereinafter, with the ubiquitous „M‟) and for criminally
intimidating her. Consequently, the appellant has been sentenced to
imprisonment for life, with fine of ₹ 10,000/- and default simple
imprisonment of one year, for the offence under Section 376 of the
IPC, and to rigorous imprisonment of 7 years, with fine of ₹ 10,000/-

Crl. A. No. 779/2004 Page 1 of 29

and default sentence of one year‟s simple imprisonment, for the
offence under Section 506 of the IPC. The sentences have been
directed to run concurrently, and the benefit of section 428 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as “the
Cr.P.C.”) has been extended to the appellant.

2. The appellant is in appeal, before us, thereagainst.

3. A brief recapitulation of facts: The prosecutrix, who was 10
years old at the time, was stated to have been sleeping, in her house,
on the night between 16th and 17th August, 2000, when the appellant
entered her room, put his hand over her mouth, and proceeded to
commit rape on her, firstly in the room and, thereafter on the roof of
the house, to where he carried her. Having committed the said offence,
it was alleged that the appellant threatened to eliminate the
prosecutrix, in case she disclosed, to anyone else, what had transpired.
As the prosecutrix was bleeding, and in pain, she unburdened herself,
in the morning, to the ladies of the neighbourhood, who intimated the
Police, who arrived and had the prosecutrix medically examined. On
the basis of the statement of the prosecutrix, rukka was prepared, FIR
registered, and investigations commenced. The appellant was,
subsequently, arrested. The statement of the prosecutrix was recorded
under Section 164 of the Cr.P.C., wherein she categorically accused
the appellant of having committed rape on her and, thereafter, of
having threatened to eliminate her, were she to disclose the incident to
anyone. The appellant was, accordingly, charge-sheeted under
Sections 376 and 506 of the IPC, to which he pleaded not guilty and
claimed trial. The impugned judgement, dated 17 th March, 2004, and
Crl. A. No. 779/2004 Page 2 of 29
order on sentence, dated 25th March, 2004, represent the culmination
thereof.

4. The statement of the prosecutrix, as recorded by the learned
MM under Section 164 of the Cr PC, may be translated thus:

“Pr. ASI Rajpal Singh. He has produced the prosecutrix „M‟
for recording the statement u/S. 164 Cr.P.C., forwarded by
Ms. Seema Maini, Ld. MM. The prosecutrix has been
identified by ASI Rajpal. His sign are obtained.

Before recording the statement, certain questions are
being asked from the prosecutrix so as to ascertain whether
she can understand the questions put to her and whether she
can make a statement without fear or favour or pressure. The
court is asking following questions:

(1) What is your name, parentage, education, residence?

My name is („M‟). Father‟s name is Bilat Shah. I study
rd
in 3 class, in a Government school. I cannot state the No. of
my house, which is in Bhalaswa. We are 6 brothers and
sisters. One sister is older than me. The others are younger.

(2) Do you know why you have come to court?

I have come to court, to state what had happened with
me.

(3) Are you under any pressure or fear to make a
statement?

No one has told anything to me. I am not scared of the
Police. My father did not ask me anything.

The witness appears to be confident. From the facts, questions
and answers of the prosecutrix, the Court is of the opinion
that she can make statement U/S1 64 Cr PC without fear or
pressure. Let her statement be recorded.

Crl. A. No. 779/2004 Page 3 of 29

Statement of („M‟), Prosecutrix, without oath as the
prosecutrix is only 10 years of age.

It happened on the 16th of this month, on the night
between 16th and 17th. My father, after having dinner, went to
sleep in the neighbouring room. I slept with my younger
brother. It was very hot. There was no electricity. I had left
the door open and gone to sleep. A boy named Anil, resides
next-door, whom I knew earlier. He removed my underwear
and committed wrong acts (“galat galat kaam”) with me. I
started bleeding profusely. I tried to scream but he tied my
mouth and, lifting me, carried me to the roof. There he again
committed wrong acts (“galat galat kaam”) with me. Then I
became unconscious. I do not know when he placed me on
my couch. When my father woke up in the morning and went,
we were all sleeping. I came to consciousness at 9 AM. I
recited everything to one aunty, named Parvathi. Aunty then
called the Police. The Police took me, in their car, to the
hospital. In the hospital, my wounds were bandaged, etc. My
statement was recorded by the Police. My blood stained
clothes were, thereafter, seized by the Police. I have spoken
the truth.

Statement of prosecutrix recorded. Certified that the
statement contains exact facts as stated by the prosecutrix.”

5. In order to avoid repetition, we may straightaway proceed to set
out the evidence, available, in the case, as the facts would become
apparent therefrom.

6. The prosecution cited 16 witnesses, in its favour, whereas the
appellant cited 3 witnesses in his support.

7. For the sake of convenience, we may deal with these witnesses,
category wise.

Deposition of the prosecutrix

Crl. A. No. 779/2004 Page 4 of 29

8. The prosecutrix „M‟ herself deposed as PW-2. Her deposition,
duly translated, deserves to be set out, in extenso, as under:

“PW2, ‘M’, D/o Sh. Balit Shah, aged 10 years, R/o H. No.
9, Shalimar Village, Delhi.

Q 1. How many brothers and sisters do you have?

Ans. We are six brothers and sisters. There are two brothers
and four sisters.

Q 2. In which school do you study?

Ans. I do not know the name of the school. It is a
government School in Balaswa Dairy.

Q 3. In which class are you?

Ans. In Class I.

Q 4. Which subjects do you study?

Ans. Hindi, Science, Maths and English.

Q 5. What does your father do?

Ans. My father works in a plate factory.

Q 6. Which subject do you like?

Ans. I like Hindi.

Q 7. Should we speak the truth or tell a lie?

Ans. We should speak the truth.

Q 8. What happens if you lie?

Ans. Lying is a sin.

Q 9. Will you speak the truth or lies?

Ans. I will speak the truth.

Crl. A. No. 779/2004 Page 5 of 29

From the above questions and answers I am satisfied that the
witness is able to understand the questions correctly and
answering the questions properly and intelligently.

Statement of „M‟ / without oath

One year ago we lived in Rajiv Nagar. I do not
remember the House Number. My mother lives in Damarpati
Village in Bihar. I, my two younger brothers and my father
live here in Delhi. On the night of 16th August, 2000, I was in
my house in the inner room, sleeping with my two younger
brothers. My father was sleeping in the outside room. Due to
the heat the door was open. Around 10:45 P.M., Anil,
accused present in Court came to my room. He lives in the
neighborhood which is why I know him. That day, he came
to my room, put his hand on my mouth and took off my
underwear and then took his underwear off and did wrong
acts (ganda kaam). Then, he took me upstairs. Because of
the wrong acts (ganda kaam), I felt pain and I bled from my
urethra. Accused, picked me up, and took me to the roof
where he again did wrong acts (ganda kaam) with me and
said that if I told anyone then he would kill me. Out of fear, I
did not tell my father and he left for work in the morning. I
told my neighbor about this incident because I was in a lot of
pain. Her name is Parvati. She telephoned the Police. The
Police called for my father. Then the police took me to the
hospital. There, my testimony was taken which is Ex.PW2/A
bearing my signature at Point A. The doctor took my blood-
stained frock and underwear. My testimony was also taken in
Court.

At this stage, a sealed parcel M1 bearing seal of FSL is
opened, out of which one frock and underwear is taken out,
which the witness has identified to be hers and the same
which the doctor had taken, which are Ex. P-1 and P-2
respectively.

At this stage, a sealed parcel containing seal of FSL is
opened and bed sheet Ex. P-3 is identified by the witness as
the same on which she was lying in her room when the
accused committed rape upon her.

Court observation; Ex.P1,P2, P3 have blood-stains
which are visible even now.

Crl. A. No. 779/2004 Page 6 of 29

When the accused took me on the roof, he made me lie
down on a mattress which was already kept there. The
mattress is not ours; must be of the accused. After doing
wrong acts (ganda kaam), the accused wiped the blood from
the roof using his sister-in-law’s (bhabhi’s) blouse and I can
identify both of them if they are presented before me. The
blood-stained mattress and the blouse have been taken out
from the same parcel from which the bedsheet was taken out
and the witness has identified them and these have been
exhibited as Ex.P4 and P5 respectively.

At this stage another sealed envelope containing seal of
S.S. Malhotra is opened and the witness had identified her
signature at Point A which is Ex. as PW2/B. I had informed
the police about the place. On the same date, the police
arrested the accused.

XXXXXX by Cl. Sh. Sikandar Arora, Cl for accused.

One of my brothers is 8 years old and one is around 9
years old. It is wrong to suggest that they were not in deep
sleep. My room has three doors. Only one door was open.
There is also one main gate of iron outside my house. That
door was also opened. That door was not locked.

When the accused had put his hand on my mouth I
woke up from my sleep. The accused kept his hand on my
mouth for as long as he did wrong act (ganda kaam) with me.
It is wrong to suggest that he had not kept his hand on my
mouth. I could not make any noise because the accused had
pressed his hand on my mouth. It is correct that sometimes I
get nightmares while sleeping. It is correct that I was already
scared of the accused because he has in the past also sexually
harassed me. It is wrong to suggest that I have dreamt of the
accused committing wrong acts (ganda kaam) with me and
based on that alone I have disclosed the name of the accused.
The accused took off his underwear with one hand while
sitting. When the accused had taken me upstairs he had worn
his underwear at that time. It is wrong that the accused had
not committed any wrong act (ganda kaam) with me. I have
only told Parvati aunty about the pain. The police was
telephoned in front of me. It is incorrect that Ex.P1, P2 are
not the clothes that I was wearing that night. It is wrong that
my father and the accused had disputes between them. It is

Crl. A. No. 779/2004 Page 7 of 29
wrong that I am deposing at the behest of my father. The
Police had not taken any photographs of the spot of
occurrence in front of me. It is correct that photographs of the
spot of incident are Ex.PW2/DA to PW2/DC. It is incorrect
that the mattress Ex.P4 is of our house. When the accused
took me upstairs to the roof from my room then too he had
kept my mouth shut which is why I could not make any noise.
I know how to read Hindi. It is correct that I had signed
PW2/A without reading it.

ROAC
„M‟ (Recorded under my
dictation and camera
from 10.40 to 11.50
a.m.)
A.S.J/Delhi/27-7-01″

Public witnesses to the occurrence

9. Bilat Shah, father of „M‟, deposing as PW-3, testified that, (i)
when he was returning from his work, in the evening of 16 th August,
2000, the appellant, who was his neighbour, offered him liquor, and
that, after partaking thereof and having dinner, he went off to sleep,

(ii) the next day, i.e. on 17th August, 2000, while he was on work, he
received a telephonic call, from his neighbor, informing him that „M‟
was not well, whereupon he rushed home, where he came to know
through his neighbour Parvati Devi (PW-7), that the appellant had
committed rape upon „M‟ the previous night, after getting him i.e.
PW-3 (Bilat Shah) intoxicated, (iii) from the hospital, to where „M‟
had been taken, he, along with „M‟, proceeded to the Police Station
and, thereafter, to their house, where the Police prepared the site plan
of the premises, at the pointing out of „M‟, (iv) from the roof of the
house of the appellant, a mattress and a blood stained blouse were
recovered by the Police and seized vide seizure memo Ex.PW-3/A, (v)

Crl. A. No. 779/2004 Page 8 of 29
the Police also seized a sample, of the blood lying on the floor, with
the help of a cotton swab, vide Seizure Memo Ex. PW-3/B, (vi) at the
time of medical examination, the clothes of „M‟, i.e. frock and
underwear, had been taken by the doctor, and (vii) the appellant was,
later, arrested, when Bilat Shah pointed him out to the Police. Bilat
Shah was shown the frock and underwear of „M‟, and the blood
stained bed sheet, mattress and blouse, in court, all of which were
identified by him and were, thereafter, exhibited as Ex. P-1 (frock),
Ex. P-2 (underwear), Ex. P-3 (mattress), Ex. P-4 (bed sheet) and Ex.

P-5 (blouse). He confirmed the fact of recording of the statement of
„M‟, under Section 164 of the Cr.P.C, by the learned Metropolitan
Magistrate (hereinafter referred to as “the learned MM”).

10. In cross examination, PW-3 Bilat Shah deposed that his two
sons, aged 7 and 8 years, slept, along with the prosecutrix, in the
interior room. He admitted that he had not seen the appellant in his
house at the time of incident, but stated that he was fast asleep at that
time. He further admitted that at the time of leaving for his factory, he
did not notice any blood stains. The suggestion that the rape of the
prosecutrix might have been committed by his friends Arvind and
Shrinivas, was categorically denied by Bilat Shah, who further
deposed that the appellant had taken the prosecutrix to his own roof,
from where the bed sheet and the blouse had been seized. He further
deposed that he had seen the sister-in-law (bhabhi) of the appellant,
wearing the said blouse.

Crl. A. No. 779/2004 Page 9 of 29

11. Parvati (PW-7), a resident of the same locality, deposed, on 1 st
April, 2002, that she was a social worker and that, at about 10.30 AM
on 17th August, 2000, she found the prosecutrix lying on the road in
front of her house, surrounded by a crowd that had gathered, and that,
on approaching the prosecutrix and inquiring, from her, as to what had
happened, the prosecutrix revealed that the appellant had committed
rape upon her. She further testified that she, thereupon, lifted the
prosecutrix and put her in the PCR van in which she was taken to the
BJRM hospital, accompanied by Parvati. She confirmed that the
police reached the hospital and recorded the statement of the
prosecutrix, and that the doctor retained, with him, the frock and
underwear worn by „M‟, which were later sealed with the seal of the
hospital and handed over to the Police along with the slides prepared
by the doctor.

12. The testimony of Parvati was corroborated by Rais Ahmed
(PW-8), another neighbor.

Police Witnesses

13. There were four police witnesses.

14. Const. Anil Kumar (PW-9) confirmed having taken the
appellant, to the hospital, for his medical examination, and having
received, from the doctor in the hospital, two duly sealed parcels,
which he had handed over to the Investigating Officer (IO), who
seized the articles vide Seizure Memo Ex.PW-9/A.

Crl. A. No. 779/2004 Page 10 of 29

15. Vijender Singh, MHC(M), deposing as PW-10, confirmed the
depositing with him, of these sealed parcels, bearing seals of “BJRM”
and “RPS”, by ASI Rajpal Singh (PW-11), on 17th August, 2000 and
the forwarding of the said samples, to the Forensic Science Laboratory
(FSL), through Const. Satish Kumar, on 31st October, 2000, under RC
No. 310/21. He further confirmed having received the said samples
back from the FSL on 2nd January, 2001, vide entry in the Malkhana
Register exhibited as Ex.PW-10/A. He also confirmed that the
samples had not been tampered with, so long as they were in his
custody.

16. PW-11 ASI Rajpal Singh, who was, at that time, posted as ASI
at PS Samaipur Badli, deposed, in his examination-in-chief on 21st
January, 2003, that on 17th August, 2000, he proceeded to the hospital,
leaving Const. Ramesh Katare (PW-14) at the place of occurrence of
the crime at F-10, Rajiv Nagar, Shardhanand Colony, and to having
collected the MLC of the prosecutrix from the hospital. He further
confirmed that the doctor had declared her fit for statement,
whereupon he recorded the statement of the prosecutrix (Ex. PW-2/A).
After her medical examination, ASI Rajpal Singh confirmed having
received, from the doctor, three sealed parcels, which were seized by
him vide Seizure Memo Ex. PW-7/B, whereafter he returned to the
site of the occurrence and sent Const. Ramesh Katare (PW-14), with
the rukka, to the police station, for registration of FIR. He confirmed
the seizure, by him, of the mattress, bed-sheet and blouse, and of
lifting blood from the spot with the help of a cotton swab and securing
it in a glass bottle, all of which were seized by him, under seal “RPS”
vide Seizure Memo Ex. PW-3/A. He further confirmed having
Crl. A. No. 779/2004 Page 11 of 29
proceeded to the house of the appellant with the father of the
prosecutrix „M‟ and having arrested the appellant therefrom. He
testified, further, that, after he had deposited the seized articles with
the MHCM, Const. Ramesh Katare (PW-14) reached the police station
with the appellant, and received a copy of the appellant‟s M.L.C.
(Ex.PW-4/A), and three sealed parcels, which were seized by him vide
seizure memo (Ex.PW-9/A) and deposited in the Malkhana. ASI
Rajpal Singh further confirmed having had the statement of the
prosecutrix, under Section 164 Cr.P.C., recorded by the learned M.M.
and having had her ossification test done, the report of which was
exhibited as Ex.PW-11/F. He also confirmed having sent all the
exhibits to CFL, Hyderabad. He correctly recognized the bed-sheet,
mattress and blouse (at Ex.P3, P4 P5), which were shown to him in
court.

17. In cross-examination, PW-11 ASI Rajpal Singh deposed that he
had requested certain public persons to join in the investigation, of
which only PW-8 Rahis Ahmad obliged. He categorically denied the
allegation that „M‟ had been raped by her father Bilat Shah, as well as
the allegation that the roof of the house of the prosecutrix could be
accessed from any of the neighbouring roofs. He confirmed having
found blood on the roof, though he did not send any sample thereof to
the FSL.

18. We may note, here, that the ossification test report, dated 19th
August, 2000 of the prosecutrix „M‟ (Ex. PW-11/F) estimated her
bone age as between 12 years and 14 years. Unfortunately, however,

Crl. A. No. 779/2004 Page 12 of 29
the radiologist who carried out the said test, Dr. Shipra Rampal, was
never arraigned as a witness, for reasons best known to the
prosecution. The correctness and veracity of the ossification test report
was never, therefore, confirmed in evidence during trial. We cannot,
therefore, on the basis of the said ossification test report, treat „M‟ as
being 12 to 14 years of age, contrary to the statements of „M‟ and of
her father, that she was 10 years of age. In this context, we may note,
here, that, following earlier decisions on the point, the Supreme Court,
in its recent judgment in Mukarrab v. State of U.P., (2017) 2 SCC
210, held that the ossification test report could not be regarded as
providing a conclusive indicator of age.

19. PW-12 SI Kaushal Ganguli, who was posted as S.I. at PS
Samaipur Badli in August, 2000, confirmed having been appointed IO
in the present case, in September, 2000, and having got the exhibits
sent, through Const. Anil Kumar (PW-9), to the FSL. On the basis of
his testimony, the FSL report and the serological report annexed
thereto were exhibited as Ex. PW-12/B and Ex. PW-12/A,
respectively.

20. PW-13 ASI Rajbala confirmed having received a rukka, through
Const. Ramesh Katare (PW-14), on 17th August, 2000, and having
recorded the FIR (Ex. PW-11/E) on the basis thereof.

21. PW-14 Const. Ramesh Katare confirmed having reached
Shraddhanand Colony, on 17th August, 2000, along with ASI Rajpal
(PW-11), where they came to know that „M‟ had already been taken to
the hospital. He further confirmed the seizure, from the spot, of blood-

Crl. A. No. 779/2004 Page 13 of 29

stained clothes, including one mattress, one bed-sheet and one blouse,
of the lifting of blood from the spot with the help of a cotton swab,
and of converting all these articles into separate parcels, sealed and
seized vide seizure memo Ex.PW-3/A. He further deposed that the
appellant was arrested, and thereafter, taken to the hospital, by Const.
Anil Kumar Ex.PW-9, and himself, and that, after the medical
examination of the appellant, the doctor handed over two sealed
parcels, to him, bearing the seal of the hospital, which he handed over
to ASI Rajpal, who seized the articles vide Seizure Memo Ex.PW-9/A.
He correctly identified the bed-sheet, mattress and blouse, when
shown to him in court.

Medical/Hospital evidence

22. PW-1 Dr. Kawaljeet Banga, Chief Medical Officer, BJR
hospital proved, during trial, the MLC of the prosecutrix „M‟, which
was, therefore, exhibited as Ex. PW-1/A. The MLC recorded that the
hymen of the prosecutrix was torn, the tears were “oozing”, and that
the vagina of the prosecutrix admitted the tip of one finger. It also
noted that vaginal smear had been taken, and the fact that the
underclothes and frock of the prosecutrix were soaked with blood. The
only external injury noted, on the person of the prosecutrix was,
however, an abrasion over her right forearm. These particulars were
reiterated, by Dr. Banga, in evidence during trial.

23. On the body of the aforesaid MLC of the prosecutrix „M‟, Dr.
Seema, Senior Resident, Gynaecology, had entered a comment that the
prosecutrix was “fit for statement”. Her signature, on the said MLC,
Crl. A. No. 779/2004 Page 14 of 29
was proved by PW-6 Jai Bhagwan Sharma, Record Clerk in the
hospital, who deposed, during trial, that, though Dr Seema had left the
hospital, and her present whereabouts were unknown, he could
identify the signature on the MLC, as he had seen her writing and
signing in the ordinary course of his duties. He was not cross-
examined, despite grant of opportunity.

24. PW-4 Dr. SA Francis, CMO at the hospital, identified the
signature of Dr. Naveen Gupta on the MLC of the appellant (Ex. PW-
4/A), though Dr. Gupta had, thereafter, left the services of the hospital,
and his whereabouts were unknown. The said MLC is unremarkable,
except for the observations, thereon, that there was no “obvious
external injury” to be seen on the appellant, and that the final
impression, recorded thereon, was that there was “no clinical evidence
to suggest that the appellant was not capable of doing sexual act”.

Forensic evidence and related witnesses

25. The only witness, from the FSL, was AK Srivastava (PW-16),
who carried out forensic analysis on the five sealed parcels, relating to
the present case, which were received in the FSL on 31 st October,
2000 and marked to him. Mr. Srivastava proved, in his evidence
during trial on 8 October, 2003, his report (Ex. PW-12/B), as well as
the serological report, dated 21st November, 2002 (Ex. PW-12/A),
both of which were prepared by him. He was not cross-examined,
despite grant of opportunity.

Crl. A. No. 779/2004 Page 15 of 29

26. The biological report of the FSL (Ex. PW-12/B) indicated
presence of blood on the skirt of the prosecutrix, the bedsheet, the
blouse alleged to have been used to wipe the blood on the roof of the
appellant‟s premises, the mattress, the cotton wool swab (obviously)
and the blood sample itself. No semen was detected on any exhibit,
except the underwear of the appellant. The serological report (Ex. PW-
12/A) found the blood, detected on all the exhibits, to be of „A‟ group
and the blood grouping of the semen found on the underwear of the
appellant, was also found to be of „A‟ group. Serological analysis of
the blood sample could not be performed, as the sample had putrified;
similarly, the cotton wool swab, on which the sample found on the
floor of the roof of the premises in which the appellant was residing,
was also non-reactive. In these circumstances, the serological analysis,
carried out by the FSL, is of little assistance to this court in the present
case, as, no injury having been found on the person of the appellant,
the blood, found on various exhibits, could not be his, and blood
grouping of the prosecutrix „M‟ was never carried out. In the absence
of serological analysis of the blood group of „M‟, the reports of the
FSL are of little value, in determining the culpability of the appellant,
for the offence of having committed rape on the prosecutrix, to any
appreciable extent.

27. We express our dismay at the fact that no opinion was sought,
from Mr. Srivastava (PW-14), during trial, regarding the contents of
the reports of the FSL, or with respect to any explanation thereof. We,
therefore, can only go by the said reports, as they stare us in the face.

Crl. A. No. 779/2004 Page 16 of 29

Statement of the appellant under Section 313, Cr.P.C.

28. The appellant, in his statement recorded under Section 313 of
the Cr.P.C., denied each and every allegation against him and, in
respect of the initial statement of „M‟, as recorded by ASI Rajpal
Singh, and the reports of the FSL, professed ignorance. He insisted
that the prosecution witnesses had deposed falsely against him, and
that he was completely innocent.

Defence Witnesses

29. The appellant led the evidence of three defence witnesses
(DWs). DW-1 Ramjano deposed that, in the month of August for
years earlier, the prosecutrix admitted and stated, in the presence of
others, that her father had committed rape upon her, and that, on
hearing this, she (i.e. DW-1) called the father of the prosecutrix from
his office and slapped him. She deposed, further, that she called the
police, who also reached the spot and belaboured the prosecutrix‟s
father, but that he said something in Bihari, taking the name of the
appellant. She insisted that the appellant had not raped „M‟. She
reiterated these facts in cross examination. DW-2 Raju supported the
testimony of DW-1, by deposing, during trial, that, in August 2000, at
about 9:45 PM, he found that the father of the prosecutrix had been
gheraoed by a crowd outside the shop of DW-1 and, on enquiry, learnt
that Balit Shah (PW-3) had raped „M‟, on hearing which he, too,
slapped Balit Shah. He further deposed that, after some time, Parvati
arrived there and took Balit Shah home. However, in cross

Crl. A. No. 779/2004 Page 17 of 29
examination, Raju (DW-2) admitted that he had implicated Balit Shah
at the instance of other people in the locality, even while insisting that
the appellant had not committed rape on „M‟. DW-3 Srinivas
Choudhury, another neighbour, deposed that, on the night of 15th
August, 2000, while on the way back from the residence of his sister,
he met Balit Shah, who offered him liquor. He further deposed that, on
the next day, i.e. on 16th August, 2000, he saw the prosecutrix „M‟
working normally at 10 AM, even while admitting, in cross
examination, that he did not speak to her.

The impugned judgement

30. Having recounted the facts of the case, as well as the evidence
of various witnesses, and having heard arguments advanced by learned
counsel before him, the learned ASJ proceeded to reason as under:

(i) It was settled, in law, that, in cases of rape, the testimony
of the prosecutrix was, by itself, sufficient to sustain conviction,
where the testimony was clear, cogent, consistent and
convincing, as it was reasonable to assume that no girl would
falsely implicate a person as having taken sexual advantage of
her.

(ii) The learned ASJ had, after questioning the prosecutrix
(who was 10 years old at the time) and inviting answers from
her, satisfied herself that the prosecutrix was able to understand
the questions and respond, to them, properly and intelligently. It
was only thereafter that the statement of the prosecutrix was
recorded, first, under Section 164 of the Cr.P.C. and, thereafter
in the court during trial. The evidence of the prosecutrix was

Crl. A. No. 779/2004 Page 18 of 29
also clear, cogent and consistent. As such, there was no
justification to discard or reject her statement.

(iii) Besides providing particulars of the incident, „M‟,
deposing as PW-2, also stated that she had narrated the incident
to Parvati (PW-7). Parvati corroborated the evidence of the
prosecutrix, and deposed that, when she approached the
prosecutrix, lying on the road, she was informed, by the
prosecutrix „M‟, that the appellant had committed rape on her.
She denied the suggestion, put her in cross examination, that
„M‟ did not disclose, to her, the name of her assailant.

(iv) In view of the specific suggestion, put to Bilat Shah (PW-

3), that the rape, of his daughter, had been committed by Arvind
and Srinivas, the depositions, by the DWs, that the prosecutrix
had been raped by her father, appeared to be an afterthought.
There was, moreover, no independent evidence, of any witness,
or otherwise, supporting such a stand.

(v) The minor contradictions and discrepancies, in the
statements of „M‟ seen in juxtaposition with the evidence of
Parvati (PW-7), could not affect the veracity of the testimony of
the prosecutrix, or the truthfulness of the case. Besides, the fact
that the prosecutrix „M‟ was examined in court when she was
just 10 years of age, and had suffered rape, explained the
existence of discrepancies and contradictions in the statement.
Reliance was placed, in this regard, on the judgements of the
Supreme Court in Leela Ram vs State of Haryana, (1999) 9
SCC 525, Rammi vs State of MP, (1999) 8 SCC 649, Tehsildar
Singh vs State of UP, AIR 1959 SC 1012, Appabhai vs State of

Crl. A. No. 779/2004 Page 19 of 29
Gujarat, JT 1988 (1) SC 249, Sukhdev Yadav vs State of
Bihar, JT 2001 (7) SC 597 and Krishna Mochi vs State of
Bihar, 2002 A.D. (SC) 45, which proscribed the court from
taking undue cognizance of minor contradictions and
inconsistencies in the statements of prosecution witnesses, and
to consider, instead, whether the contradictions and
inconsistencies were so material that they went to the root of the
matter. Besides, the prosecutrix „M‟ was not, during trial,
confronted with her earlier statements under Section 161 or 164
of the Cr.P.C.

(vi) The prosecution witnesses were not shown to have been
inimical to the appellant, so as to discredit their evidence.

(vii) The testimony of the prosecutrix „M‟ stood corroborated
by other testimonies on record; on the other hand, there was no
evidence which could contradict the testimony of the
prosecutrix, regarding the commission of rape, on her, by the
appellant.

(viii) In view of the above, the charge of criminal intimidation
of the prosecutrix „M‟, also stood proved against the appellant.

31. Vide separate order, dated 25th March, 2004, the learned ASJ
held that the crime committed by the appellant, on „M‟, was gruesome,
and that “no amount of punishment would be sufficient, as his conduct
was inhuman and barbaric”, thereby disentitling him to any mercy.
Holding that the punishment awarded to him was required, in the facts
of the case, to be exemplary and deterrent in nature, the learned ASJ
sentenced the appellant to life imprisonment and fine of ₹ 10,000/-,

Crl. A. No. 779/2004 Page 20 of 29
with default simple imprisonment of one year, for the offence
punishable under Section 376 of the IPC, and with rigourous
imprisonment of 7 years, with fine of ₹ 10,000/-, and default simple
imprisonment of one year, for the offence under Section 506 of the
IPC, stipulating, further, that the sentences would run concurrently,
and the appellant would be entitled to the benefit of Section 428 of the
Cr.P.C.

32. Challenging his conviction, under Section 376 and section 506
of the IPC, and the sentences awarded to him, by the learned ASJ,
therefor, the appellant is an appeal before us.

Submissions on behalf of appellant and respondent

33. Ms. Rakhi Dubey, appearing for the appellant, initially drew our
attention to DD Entry No 9 A, dated 17th August, 2000 (Ex. PW-
11/A), which noted that, at 10:25 AM that day, ASI Shravan Singh,
PCR, had informed that, at F-19/5, Masjid Wali Gali No 10,
Shraddhanand Colony, the prosecutrix „M‟ had been raped by her
father and their neighbour. She further sought to submit that it was
unbelievable that anyone would commit rape in a room where two
other persons were sleeping, and relied on the fact that, in the MLC of
the prosecutrix „M‟, no injuries were found on her private parts
(which, we may state, is contrary to the record, as the MLC recorded
multiple hymeneal tears which were oozing). Neither, she sought to
point out, was semen, or blood, of the appellant, detected on the
clothes of the prosecutrix. She, therefore, submitted that it would be

Crl. A. No. 779/2004 Page 21 of 29
unfair and unjust to convict her client on the basis of the sole and
uncorroborated testimony of the prosecutrix „M‟.

34. Per contra, learned Additional Public Prosecutor (APP),
appearing for the State, reiterated the reasoning contained in the
impugned judgement of the learned ASJ, and submitted that, in view
of the deposition of the prosecutrix „M‟, which did not suffer from any
infirmity, the learned ASJ had rightly convicted the appellant, and that
his judgement did not deserve any interference.

Analysis

35. The “star witness” of the prosecution, in the present case – as,
almost inevitably, in all such cases – is the prosecutrix herself. Being
the sufferer-victim of the atrocity allegedly perpetrated by the
accused-appellant, her evidence becomes doubly significant; it is
essential, therefore, that, at the outset, the value, and worth, to be
accorded to her testimony, is assessed.

36. We have had occasion to ponder, very recently, over the issue
of credibility of the evidence of child witnesses and have, after
analysing authoritative pronouncements thereon, culled out the
following principles [in our judgement, delivered on 24 th May, 2018,
in Crl Appeal 773/2015 (Sanjay Kumar Valmiki vs State)]:

(i) There is no absolute principle, to the effect that the
evidence of child witnesses cannot inspire confidence, or be
relied upon.

Crl. A. No. 779/2004 Page 22 of 29

(ii) Section 118 of the Indian Evidence Act, 1872 discounts
the competence, of persons of tender age, to testify, only where
they are prevented from understanding the questions put to
them, or from giving rational answers to those questions, on
account of their age.

(iii) If, therefore, the child witness is found competent to
depose to the facts, and reliable, his evidence can be relied upon
and can constitute the basis of conviction.

(iv) The Court has to ascertain, for this purpose, whether (a)
the witness is able to understand the questions put to him and
give rational answers thereto, (b) the demeanour of the witness
is similar to that of any other competent witness, (c) the witness
possesses sufficient intelligence and comprehension, to depose,

(d) the witness was not tutored, (e) the witness is in a position to
discern between the right and wrong, truth and untruth, and (f)
the witness fully understands the implications of what he says,
as well as the sanctity that would attach to the evidence being
given by him.

(v) The presumption is that every witness is competent to
depose, unless the court considers that he is prevented from
doing so, for one of the reasons set out under Section 118 of the
Indian Evidence Act, 1987. It is, therefore, desirable that judges
and Magistrates should always record their positive opinion that
the child understands the duty of speaking the truth, as,
otherwise, the credibility of the witness would be seriously
affected, and may become liable to rejection altogether.

Crl. A. No. 779/2004 Page 23 of 29

(vi) Inasmuch as the Trial Court would have the child before
it, and would be in a position to accurately assess the
competence of the child to depose, the subjective decision of the
Trial Court, in this regard, deserves to be accorded due respect.
The appellate court would interfere, therewith, only where the
record indicates, unambiguously, that the child was not
competent to depose as a witness, or that his deposition was
tutored. Twin, and mutually opposing, considerations, have to
be borne in mind, while ascertaining the competency of a child
witness to justify. On the one hand, the evidence of the child
witness has to be assessed with caution and circumspection,
given the fact that children, especially those of tender years, are
open to influence and could possibly be tutored. On the other
hand, credibility is attached, to the evidence of a competent
child witness, as children, classically, are assumed to bear no
ill-will and malice against anyone, and it is, therefore, much
more likely that their evidence would be unbiased and
uninfluenced by any extraneous considerations.

(vii) It is always prudent to search for corroborative evidence,
where conviction is sought to be based, to a greater or lesser
extent, on the evidence of a child witness. The availability of
any such corroborative evidence would lend additional
credibility to the testimony of the witness.

37. Having examined the depositions of the prosecutrix „M‟, during
trial as well as under Section 164 of the Cr.P.C., we find no reason to
discredit either. We find that the learned ASJ has put, to the
prosecutrix „M‟, the requisite questions, and elicited answers, from

Crl. A. No. 779/2004 Page 24 of 29
her, thereto, so as to satisfy herself regarding the capability of „M‟ to
testify, and we find no infirmity in the conclusion, of the learned ASJ,
on the basis of the responses of „M‟ to her queries, that she was a
capable and credible witness. We have also perused, minutely, the
statement of the prosecutrix, under Section 164 of the Cr.P.C., as well
as during trial, and we find them to be corroborative, inter se, in all
material particulars. The prosecutrix clearly testified, in both the
statements, that the appellant had, on the night between 16 th and 17th
August, 2000, entered her room, undressed her and committed “galat
kaam” (“wrong acts”), with her, whereafter he carried her to the roof
of his house and repeated the act. There is no inconsistency,
whatsoever, in the said statements of the prosecutrix „M‟, regarding
the commission, by the appellant, of the said offence, first in the room
of the prosecutrix and, thereafter, on the roof of his house. We may
note that we are not scanning the two statements with a magnifying
glass, so as to ferret out any minor inconsistencies between them. We
can never be unmindful, in a case such as this, of the fact that the
prosecutrix was a 10 year old child, who had been subjected to what
would, possibly, be the worst trauma that she would ever have the
misfortune to suffer. So long, therefore, as her depositions, under
Section 164 of the Cr.P.C. and, thereafter, during trial, were consistent
in all material particulars, they command credibility and acceptance.
Significantly, the Supreme Court has gone to the extent of holding that
insistence on corroboration, in such cases, would amount to adding
insult to injury, and would be a disservice to the child-prosecutrix, and
the ignominy that she has already had to undergo.

Crl. A. No. 779/2004 Page 25 of 29

38. That the prosecutrix had been subjected to rape, stands borne
out by her MLC (Ex. PW-1/A), which was proved by PW-1 Dr
Kawaljeet Banga. It was clearly stated, in the MLC, that her hymen
was torn, the tears were “oozing”, and that her vagina admitted the tip
of one finger. Moreover, her underclothes and frock were soaked with
blood. The biological report of the FSL (Ex. PW-12/B), as proved by
AK Srivastava (PW-16), who had prepared the said report, also
indicated presence of blood on the skirt of the prosecutrix, the
bedsheet as well as the blouse alleged, by the prosecutrix, to have been
used by the appellant to wipe blood from the spot on the roof. Given
the fact that „M‟ was only 10 years of age at the time, these factors
conclusively establish the commission of rape, on her.

39. Once the fact of commission of rape, on „M‟ also stands
established by medical evidence, we are sanguine that her deposition,
under Section 164 of the Cr.P.C. and, later, during trial, inexorably
fasten the guilt and liability, therefor, on the appellant. Though it is
hardly required, we may note that, at the first available opportunity,
after the commission, on her, of the said atrocities, when she was
found on the road by Parvathi (PW-7), the prosecutrix informed her of
the commission of rape, on her, by the appellant. The suggestion, put
to her, that her deposition was incorrect, was categorically denied by
PW-7 Parvathi. The finding of blood, on the frock and undergarment
of the prosecutrix, as well as the bedsheet and mattress, recovered
from the roof of the appellant‟s premises, as also the blouse, belonging
to the sister-in-law of the appellant, alleged to have been used by the

Crl. A. No. 779/2004 Page 26 of 29
appellant to wipe off the traces of blood from the spot, also add
credibility to the testimony of the prosecutrix.

40. For the same reason, we find no cause to differ with the finding,
of the learned ASJ, that the appellant had, indeed, threatened „M‟ with
dire consequences, were she to disclose the fact of the atrocities
committed on her, to anyone. In any event, this aspect has lost
significance, as the appellant has already suffered the sentence,
awarded to him, by the learned ASJ, under Section 506 of the IPC.

41. Given the fact that human blood was found, on the mattress,
bedsheet and blouse, recovered from the roof of the appellant‟s
premises, it was for the appellant, under Section 106 of the Indian
Evidence Act, 1872, to explain the same. No such explanation,
however, is forthcoming in the statement of the appellant, recorded
under Section 313 of the Cr.P.C.; neither has any explanation be
intended, in this regard, before us, by learned counsel appearing for
the appellant. The incapability, of the appellant, to explain these
findings, would also invite a necessary inference that the allegation of
the prosecutrix „M‟ was true.

42. We are not inclined to accord any significance to the
submission, of Ms. Rakhi Dubey, that the prosecutrix „M‟ was raped
by her father. To us, the suggestion appears both ill taken and
preposterous. No suggestion, to the said effect, was put to Bilat Shah
(PW-3), when his evidence was recorded during trial. DW-2 Raju,
who deposed, to the said effect, in his examination-in-chief, admitted,
in cross examination, that he had done so at the instance of other
Crl. A. No. 779/2004 Page 27 of 29
people in the locality. In any event, in view of the clear statements, of
the prosecutrix „M‟, that the appellant was her violator, any
suggestion, implicating anyone else for the said offence, merits
rejection at the outset.

43. We find no reason, therefore, to interfere, far less differ, with
the finding, of the learned ASJ, that the appellant was guilty of having
committed rape on the prosecutrix and, subsequently, of having
threatened her with dire consequences, in case she were to disclose the
fact of commission of rape, on her, to anyone else.

44. Neither do we find any reason to interfere with the sentence
awarded to the appellant by the learned ASJ. Ecclesiastically as well
as temporally, child rape is inexcusable. No leniency, or mercy, can be
shown to the violator of the body of a child of tender years, who is yet
to savour the first fragrance of adolescence. It is for this reason that
the statute, too, treated such an offence as one of its kind, and carved
out a separate substantive provision to deal therewith, in clause (f) of
Section 376 (2) of the IPC [as it stood prior to its amendment with
effect from 3rd February, 2013 vide Section 9 of the Criminal Law
(Amendment) Act, 2013]. Child rape is the ultimate indicator of the
reality, often unnoticed, that rape is an offence less of passion and
more of power.

45. Rape, of any kind and on anyone, is an anathema in a civilised
society; when perpetrated on a young child, however, it betokens a
depravity, in the perpetrator, which is ingrained in his psyche, and
which altogether disentitles him from any leniency, in law, or the right

Crl. A. No. 779/2004 Page 28 of 29
to cohabit, in society, with his brother. Law, after all, is an instrument
which aims at social order, and aberrant elements, where the
aberrations transgress all excusable limits, would inherently be
destructive thereof. The perpetration of social order would necessarily
require, therefore, the removal of such elements from the societal
fabric, if the warp and weft thereof are to remain intact.

46. Resultantly, we find no reason to differ with the learned ASJ, in
the matter of the sentences awarded, by him, to the appellant.

Conclusion

47. As a sequitur to our discussion hereinabove, the conviction of
the appellant, under Section 376(2) (f), as well as under Section 506,
of the IPC, are maintained, as are the substantive sentences of
imprisonment as well as fine, as awarded, by the learned ASJ, to the
appellant, for the said offences. However, the default sentence, (in
case of non-payment of fine), would stand reduced to three months‟
simple imprisonment each, for the offences committed under Section
376 (2) (f) and Section 506 of the IPC.

48. Subject to the above limited modification in the default
sentence, the appeal is dismissed.

C.HARI SHANKAR
(JUDGE)

S. P. GARG
(JUDGE)
MAY 29, 2018
gayatri

Crl. A. No. 779/2004 Page 29 of 29

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