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Jitender Sharma vs State (Nct Of Delhi) on 29 April, 2019



Judgment Reserved on: 11.03.2019
Judgment delivered on: 29.04.2019

CRL. A. 1241/2018



STATE (NCT OF DELHI) …… Respondent

Advocates who appeared in this case:
For the Appellant : Mr. Manu Sharma, Ms. Mahima Wahi and Mr. Kartik Khanna,
For the Respondent : Mr. Ravi Nayak, APP with SI Sandeep, PS-Begampur and Inspector
Suman Kumari, Community Policing Cell, Outer District




1. The present appeal under Sectionsection 374(2) of the Code of Criminal

Procedure, 1973 (hereinafter referred to as ‘SectionCr.P.C’) assails the judgment and

order of conviction and order on sentence dated 30.05.2018 and 05.06.2018

respectively, in Sessions Case No. 21/2013, titled as ‘SectionState vs. Jitender

Sharma s/o Sh Om Prakash Sharma’, emanating from FIR No. 19/2013

CRL.A.1241/2018 Page 1 of 21
(hereinafter referred to as the ‘subject FIR’) under Section 376/Section328 of the

Indian Penal Code, 1860 and under Sectionsection 4/Section6 of the Protection of Children

from Sexual Offences Act, 2012 registered at Police Station – Begumpur,


2. By way of the impugned judgment and order of conviction and order

on sentence dated 30.05.2018 and 05.06.2018 respectively, Jitender Sharma

(hereinafter referred to as ‘Appellant’) was convicted for the offences under

the provision of Sectionsection 10 read with Sectionsection 9 (m)(n) of The Protection of

Children from Sexual Offences Act, 2012 (hereinafter referred to as

‘POCSO’) and sentenced to Rigorous imprisonment for period of seven

years along with a fine of Rs. 5,000, as well as, under Sectionsection 328 of the

Indian Penal Code, 1860 (hereinafter referred to as ‘SectionIPC’) to Rigorous

imprisonment for period of five years along with a fine of Rs. 5,000. In

default of payment of fine, the Appellant has been sentenced to undergo

simple imprisonment for a further period of one month. However, the benefit

of the provision under Sectionsection 428 Cr.P.C has been granted to the appellant.

Both sentences were ordered to run concurrently.

3. The gravamen of the charge, for which the appellant has been

convicted, is for having committed rape upon his own daughter/the

CRL.A.1241/2018 Page 2 of 21
prosecutrix, a girl aged about 8 years, at the time of commission of the


4. The facts of the case as borne out from the record are that on

17.01.2013 vide DD No.26A, a PCR call was recorded regarding rape by

father with his own daughter, aged 8 years, at H.No B-1970, Kashmiri

Block,Jain Nagar, Delhi. SI Dinesh along with Ct. reached the house where

they met the mother of the victim who reported the rape committed by her

accused husband, on their two minor daughters, V aged 8 years and M aged

13 years. NGO was called and victims were taken to SGM hospital where

they were medically examined. The complainant S, PW-13, gave her

statement that she is a house wife and has four daughters and a son and her

husband runs a factory. On 11.01.2013, her husband committed wrong act

with daughter V after taking her to some other room of their residential

dwelling, and also threatened her not to tell anything to anyone or else she

will be killed. On 13.01.2013 when she was cleaning the house, she found

one blood stained underwear of V under the bed. On inquiry from the

prosecutrix PW-3, told by the latter that her father lifted her from the bed in

the night and lay her on a sofa and gave her a tablet after which she began

feeling sleepy, and then he inserted his ‘shushu wali jagah’ in her ‘shushu

wali jagah’; and when the prosecutrix felt pain, her father again brought her

CRL.A.1241/2018 Page 3 of 21
back to the bed. PW-3 stated that she conferred about this incident with her

family members and did not report the commission of the offence to the

police at that stage, but when her elder daughter M, who was living with her

maternal grandmother came and informed her that, her father committed

wrong act with her as well, which the former did not disclose because of

fear, the complainant came to Police Station and lodged the subject FIR.

After medical examination of the victim, her exhibit (one underwear having

darker stains) was seized and her statement u/s 164 SectionCr.P.C. was recorded.

IO collected the date of birth proof of the victim and sent samples to

Forensic Science Laboratory (hereinafter referred to as ‘FSL’). The accused

was arrested and was medically examined; and while awaiting FSL result,

the present chargesheet was filed.

5. By way of order dated 20.05.2013, charge was framed against the

appellant for offence u/s 6 of POCSO Act read with u/s 376(2)(f) SectionIPC and

u/s 328 SectionIPC for the offences committed against daughter V, to which the

appellant pleaded not guilty and claimed trial.

6. In order to prove the charges against the accused, prosecution

examined as many as 15 witnesses, whereafter the statement of the accused

u/s 313 SectionCr.P.C was recorded, wherein he claimed himself to be innocent and

having been falsely implicated in the case by his wife PW-13 (the mother of

CRL.A.1241/2018 Page 4 of 21
the child victim) due to a matrimonial dispute. The Appellant chose to

examine three witness in his defence including himself.

7. Broadly, the Trial Court has based the conviction of the Appellant on

the testimony of victim V, PW-3 as hereunder :

Q. Kya hua tha ?

Ans. Me so rahi thi, papa aaye mujhe
dawai khilayi. Meri kachhi uttari, apni
kachhi uteri aur meri susu me apni susu
laga rahe the.

Q. Aap kaha so rahethe ?

Ans. Hall me
Q. Papa kahan so rahe the ?

Ans. Lakdi wale kamre me. Hamare ghar
me 3 kamre hain.2 me farsh (floor) par
mate lagawaya tha aur ek me lakdi
lagawayi thi.

Q. Lakdi wale kamre me kaun kaun
sota hai?

Ans. Wahan par mummy papa sota hai
Q. Kya aap pehle bhi court me ho ?

Ans. Ha
At this stage, the witness has been shown
her statement u/s 164 SectionCr.P.C. i.e. Ex-PW-
2/D and identifies her signatures at point
“A” thereupon.

Q. Kya apne yeh baat kisi ko batayi thi

Ans. Nahi
Q. Mummy ko bataya tha ?

Ans. Nahi, mummy ki tabiyat kharab thi
sara din behosh padi rehti thi
Q. Aur kisi ko bataya tha?

Ans. Nahi, papa ne dhamka rakha tha ki
kisi ko nahi batana hai

CRL.A.1241/2018 Page 5 of 21
XXXX By Sh.Ravi Kant Singh, learned
counsel for accused.

Q.Aap kashmiri colony se pehle kaha
rehte the ?

Ans. Shashtri Nagar
Q.Aapko mummy jyada pyar karti hai yah
papa ?

Ans. Mummy
Q.Aap ko papa ne goli kaise khilayi thi.
Paani se yah kisi aur chij se ?

Ans. Aise hi khilayi thi.”

(Emphasis supplied)

8. Learned counsel appearing on behalf of the appellant, would canvass

that the learned Trial Judge has erred in convicting the appellant, inasmuch

as, the appellant has been falsely implicated in the case at the instance of

PW-13, complainant/ mother of prosecutrix, who herself turned hostile. It

would be apposite in this regard to extract the testimony of PW-13 as

hereunder :

“I am a housewife and residing at the abovementioned
address with my five children out of which four are daughters
and one son. My husband, who is present in the court today as
accused Jitender Sharma (witness has correctly identified the
accused), was having his own work and running a factory of
hydraulic machines. My eldest daughter M, who is aged about
15 years at present, is residing at the house of my mother.
I do not want to say anything about the present case as to why
and how this case has been registered against my husband.
One day a quarrel took place between me and my husband
and my husband gave beatings to me and my daughters, due
to which I got annoyed and went to PS. I had told to the
police officials that my husband was harassing me but the
police officials did not record my said statement and I do not

CRL.A.1241/2018 Page 6 of 21
know why the police official had recorded my statement in
such manner.

At this stage, witness is shown her complaint from the judicial
file and she identifies her signatures at point “A” thereupon.
The complaint is now exhibited as Ex-PW-13/A.
My daughter V is aged about 10 years at present. The present
complaint was lodged by me in the month of January, 2013.
My husband did not do anything wrong with my daughters M
and V. Vol. He only gave 2/3 slaps to them. At present I
want that my husband should be released as there is no
earning member in my family and I generally remain ill.It was
a simple quarrel between me and my husband which was
given colour in the present form of complaint by the police.
(At this stage, Ld. Addl.PP for the State seeks permission
to cross examine the witness as she is resiling from her
earlier statement. Heard. Allowed.)
XXXXXXX by Ld.Addl.PP for the State.

I have studied upto 9th class. I did not go through the contents
of Ex.PW-13/A before signing the same. Police officials also
did not read over the contents of Ex.PW-13/A to me.
With great hardship, I am managing my household affairs and
expenses. I get some stitching work from the tailors and do
the same at home. All my children are school going and
studying in different classes. Neither my in-laws nor my
parental side are financially supporting me. The house where I
am residing is belonging to my husband, which is constructed
on a plot of 67 sq. yards. It is constructed upto first floor. I am
residing on the first floor with my children and the ground
floor is lying vacant. I am looking for tenant to let out the
ground floor.

It is correct that my both daughters M and V were got
medically examined. It is in correct to suggest that I got my
both the daughters internally examined vide my statement
encircled at point “Y” on MLC already Ex.PW-9/B. It is
wrong to suggest that I had the doctors regarding the sexual
assault upon my daughters in the alleged history on the MLC.
I have no knowledge if the statement of my daughters was
recorded by the police wherein both the daughters had
narrated the incident regarding the sexual assault upon them
by the accused Jitender Sharma. It is correct that my both the
daughters were brought to the Court earlier also where they
were examined by the learned MM in chamber.

CRL.A.1241/2018 Page 7 of 21

At this stage, witness is shown site plan from the judicial file
and she identifies her signatures at point “A” thereupon. The
site plan is now exhibited as Ex.PW-13/B.

It is wrong to suggest that my daughters had even disclosed
about the conduct of my husband before NGO Anuradha in
my presence. It is wrong to suggest that I found blood stained
underwear of my daughter V from under the bed or that I got
suspicious and I asked about the reason from my daughter V,
who had told me that my husband had lifted her from the bed
and committed wrong act with her, after giving her some pills
to eat.

It is correct that me and my children are completely hand to
mouth and there is no other earning member in my family, I
want to get my husband released. My father died in the month
of February, 2012. It is also correct that my both daughters
were produced before CWC and from there the custody of my
daughters were handed over to me.

It is wrong to suggest that I have left my daughter M at my
mother’s house due to acts of sexual assault upon her by my
husband. It is wrong to suggest that I have been won over by
the accused and in order to save him being my husband, I am
not deposing true and correct facts before the court. It is
wrong to suggest that I am deposing falsely.
XXXXXX By Ms. Shivani Gautam, learned counsel for

My signatures were obtained on the blank papers by the
police. It is correct that I did not give any complaint written in
my hand in PS.”

9. The counsel for the appellant would also submit that PW-13,

complainant (mother of prosecutrix ), who turned hostile clearly stated that

one day quarrel took place between her and her husband, due to which she

got annoyed and went to police station and told them about the harassment

caused by her husband but police did not record her statement in the present

CRL.A.1241/2018 Page 8 of 21
manner. PW-13 further deposed that her husband did not do anything wrong

with her daughter except slapping her. PW-13 was, however, cross examined

by Ld. APP, where she admitted that her daughter was medically examined

and statement of her daughter was recorded u/s 164 SectionCr.P.C [Ex.PW-2/D], but

contented that since no oath was administered by the Magistrate to the child

witness, her testimony before Court lacks credence. In the cross examination

by the defence counsel, she stated that her signatures were obtained on blank


10. The counsel for the appellant would also submit that there has been a

delay of seven days 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 [Ex.PW-

13/A] was registered on 18.01.2013 which relates to an incident of

11.01.2013, whereas PW-13, mother of prosecutrix had discovered blood

stained underwear of PW-3 and had become aware of the alleged sexual

assault a week before, and yet no complaint was made by her promptly to the

police, in this regard.

11. It would then be urged on behalf of the appellant that mother of the

victim did not support the prosecution case and stated that accused never

committed any wrong act with the victim V, and that the victim V is

CRL.A.1241/2018 Page 9 of 21
inconsistent and made improvements in her testimony and cannot be

believed. Further, the FSL result [Ex.PW-PX] is not conclusive. In this

regard, our attention is drawn to the relevant portion thereof as hereunder:-

“Exhibit ‘2K’: One underwear having darker stains (of
Prosecutrix Vanshika)
Exhibit ‘5’: Brown Gauze cloth piece described as ‘Blood
sample’ ( of accused)

Exhibit ‘2k’, i.e. underwear (of Prosecutrix Vanshika) it could
not be compared with that of exhibit ‘5’, i.e. blood stained
gauze cloth piece (of accused).”

(Emphasis supplied)

12. It was further urged that even the MLC [Ex.Pw-9/B] does not mention

as to how and when the hymen got ruptured. It is also argued that as per

Modi’s Medical Jurisprudence regarding sexual assault, the doctor should

have noted the extent and position of the vaginal tear and the mere

mentioning that the hymen is ruptured, does not satisfy the ingredients of

establishing the offence that the victim was sexually assaulted beyond

reasonable doubt. The doctor did not find any fresh external injury on the

private parts of the victim in MLC [Ex.Pw-9/B], which is not possible if 8

years old girl child is forcibly sexually assaulted by fully grown up adult.

The prosecution has, therefore, failed to prove that accused had sexually

assaulted his daughter. No further grounds were urged by the appellant.

CRL.A.1241/2018 Page 10 of 21

13. Per Contra, Mr. Ravi Nayak, Ld. APP appearing on behalf of the State

would urge that the victim V was minor and there is no reason to disbelieve

her testimony since there was no reason for her to falsely implicate her

father. The MLC of the victim shows that the hymen was ruptured because

of sexual assault perpetrated by her father and the testimony of the victim is

reliable and trustworthy. It was urged that the prosecution has proved the

guilt of the accused, beyond reasonable doubt. The Ld. APP, would further

urge that the law enunciated with regard to the conviction of the accused for

the offence under Sectionsections 376 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.

14. We have heard counsel appearing on behalf of the parties, examined

the material on record documents and perused the entire evidence. 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.

CRL.A.1241/2018 Page 11 of 21

15. 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 and has held that, the sole testimony

of the prosecutrix if found reliable, can be the sole ground for convicting the

accused; and that the credit-worthy testimony of the victim in cases of such

nature deserves acceptance.

16. The Hon’ble Supreme Court, in SectionState of Rajasthan v. Om Prakash,

reported as (2002) 5 SCC 745, dealing with a similar question in the case of

a child rape, while upholding the conviction of the appellant therein and

reversing the decision of the High Court in that behalf, 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. SectionIn State of Punjab v. Gurmit Singh [(1996) 2
SCC384], referring to SectionState of Maharashtra v. Chandra
Prakash Kewalchand Jain [(1990) 1 SCC 550] 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 theCourt 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

CRL.A.1241/2018 Page 12 of 21
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

14. SectionIn State of H.P. v. Gian Chand [(2001) 6 SCC] 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.”

17. Justice Krishna Iyer, whilst documenting his observations on absence

of injuries on the victim, as well as, importance of corroborative evidence in

rape cases, in his celebrated judgment in SectionRafiq v. State of Uttar Pradesh

reported as (1980) 4 SCC 262 has very eloquently observed as follows:

“5. Corroboration as a condition for judicial reliance on
the testimony of a prosecutrix is not a matter of law, but a
guidance of prudence under given circumstances. Indeed,
from place to place, from age to age, from varying life-styles
and behavioural complexes, inferences from a given set of
facts, oral and circumstantial, may have to be drawn not with
dead uniformity but realistic diversity lest rigidity in the
shape of rule of law in this area be introduced through a new
type of precedential tyranny. The same observation holds
good regarding the presence or absence of injuries on the
person of the aggressor or the aggressed.

6. When rapists are revelling in their promiscuous
pursuits and half of humankind — womankind — is
protesting against its hapless lot, when no woman of honour
will accuse another of rape since she sacrifices thereby what
is dearest to her, we cannot cling to a fossil formula and insist
on corroborative testimony, even if taken as a whole, the case
spoken to by the victim strikes a judicial mind as probable.”

CRL.A.1241/2018 Page 13 of 21

18. Insofar as, age of the victim on the date of the commission of the

offence is concerned, she was admittedly eight years old at the time of the

unsavoury incident. In this behalf, it is relevant to observe that, the accused

himself gave an affidavit regarding the date of birth of the victim at the time

of admitting her to the school she first attended. The IO PW-15 has proved

on record the birth certificate of victim V Ex.PW-15/K issued by the

Municipal Corporation of Delhi. As per the certificate, the date of birth of

victim V is 07.12.2004. The prosecution has resultantly proved that the

victim was a minor at the time of alleged sexual assault and that victim V

was less than 12 years of age, when she was sexually assaulted by the


19. Further, upon perusal of the testimony made by the victim V, in her

statement u/s 164 SectionCr.P.C it is observed that she has clearly stated that her

father inserted his ‘peshab wali jagah in her peshab wali jagah’ . In her

deposition before the court too, she has been consistent and stated that her

father was touching ‘his shu shu wali jagah to her shu shu wali jagah’. There

is, therefore, no reason to disbelieve the testimony of victim V which is

consistent and reliable and has a ring of truth in it. It was argued for the

appellant that in her statement u/s 164 SectionCr.P.C she has stated that appellant

CRL.A.1241/2018 Page 14 of 21
inserted his penis in her vagina whereas in court and to the police she stated

that he only touched his penis on vagina, and as such she is not reliable.

There is no force in this contention as the victim V was only 8 years old

when she was examined and the subtle variation that exists is understandable

in the testimony of an eight year old child, who is grappling to comprehend

the complexity and enormity of what has actually happened with her.

20. A perusal of the testimony made by the prosecutrix which has

remained unshattered in cross-examination unequivocally reveals that the

commission of the offence by the appellant is described in clear and

unambiguous words and her testimony has remained consistent 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.

21. Further, upon a plain appraisal 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 despite being subjected to thorough cross


CRL.A.1241/2018 Page 15 of 21

22. 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-13/his wife

and mother of the prosecutrix, because of some matrimonial dispute with him

, is a mere after-thought. It is also relevant to observe that no cogent material

apart from the suggestions made in the cross-examination has been brought

on record by the appellant to establish his defence.

23. 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-13, is rejected, in view of the

cogent and trustworthy evidence adduced on record, which fully establishes

the case of the prosecution.

24. Coming now to the medical evidence adduced; the medical opinion

contained in the MLC report, dated 17.01.2013, [Ex. PW-9/B], qua the

victim V, returned a finding to the effect that, “no fresh external injury marks

present; hymen is ruptured “. No conclusive FSL Result has been obtained.

25. The position of law on the question, whether absence of injuries found

on the person of the prosecutrix, in a case of rape, would result in a finding of

acquittal, is well settled. Dealing with this issue in a case of a child rape, a

Coordinate Bench of this Court in SectionLokesh Mishra v. State of NCT of Delhi,

in Criminal Appeal No. 768 of 2010, decided on 12.03.2014, relying on

CRL.A.1241/2018 Page 16 of 21
earlier decisions of the Apex Court, while upholding the conviction under

Sectionsection 376 IPC, made the following observations:

“38. …In the case of SectionRanjit 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 overboard an otherwise cogent
and trustworthy evidence of the prosecutrix.

39. The apex court in SectionB.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.”

26. 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.1241/2018 Page 17 of 21

27. Although, in the present case, it is observed that vide the MLC [Ex.

PW-9/B], it has been opined that, no fresh external injury marks were found

to be present, 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. The Hon’ble Supreme Court of India in SectionAbdul Sayeed vs State of

Madhya Pradesh reported as (2010) 10 SCC 259, has enunciated that, whilst

appreciating variance between medical evidence and ocular evidence, oral

evidence of eye-witness has to get primacy as medical evidence is basically

opinionative. The relevant paragraphs of the said decision are extracted


“34. Drawing on Bhagirath’s case (supra.)1, this Court has held
that where the medical evidence is at variance with ocular evidence,
it has to be noted that it would be erroneous to accord undue
primacy to the hypothetical answers of medical witnesses to exclude
the eyewitnesses’ account which had to be tested independently and
not treated as the “variable” keeping the medical evidence as the

35. Where the eyewitnesses’ account is found credible and
trustworthy, a medical opinion pointing to alternative possibilities
can not be accepted as conclusive. The eyewitnesses’ account
requires a careful independent assessment and evaluation for its
credibility, which should not be adversely prejudged on the basis of
any other evidence, including medical evidence, as the sole
touchstone for the test of such credibility.

” 21… The evidence must be tested for its
inherent consistency and the inherent
probability of the story; consistency with the
account of other witnesses held to be
creditworthy; consistency with the undisputed

SectionState of Haryana vs. Bhagirath, (1999) 5 SCC 96

CRL.A.1241/2018 Page 18 of 21
facts, the “credit” of the witnesses; their
performance in the witness box; their power of
observation etc. Then the probative value of
such evidence becomes eligible to be put into
the scales for a cumulative evaluation.2″


39. Thus, the position of law in cases where there is a contradiction
between medical evidence and ocular evidence can be crystallised to
the effect that though the ocular testimony of a witness has greater
evidentiary value vis-a-vis medical evidence, when medical
evidence makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of evidence.

However, where the medical evidence goes so far that it completely
rules out all possibility of the ocular evidence being true, the ocular
evidence may be disbelieved.”

29. 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. We also observe that the MLC (Ex.PW-9/B) clearly finds

that the hymen of the victim V was ruptured.

30. 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 in position of law and there can be no quarrel

with the proposition that when the testimony of the prosecutrix is

creditworthy, trustworthy, unimpeached and inspires confidence; the

conviction of the appellant can be sustained based solely on it.

SectionThaman Kumar vs. State (UT of Chandigarh) (2003) 6 SCC 380

CRL.A.1241/2018 Page 19 of 21

31. In view of the foregoing legal position and the facts and circumstances

of this case, the issue raised in the present appeal is decided against the


32. Further, let it not be forgotten that this is a case of rape on a girl child,

only 08 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.

33. 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 SectionArticle 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 and material abandonment.

[Ref: SectionState of Rajasthan v. Om Prakash (supra)]

34. In our view, consequently, the sentence awarded to the appellant by

the Ld. Trial Court also does not warrant any modification. Therefore, the

CRL.A.1241/2018 Page 20 of 21
judgment and order on conviction dated 30.05.2018 and the order on

sentence dated 05.06.2018 are both hereby upheld.

35. The present appeals are accordingly dismissed, with no order as to


36. The Trial Court Record be sent back forthwith.

37. A copy of this judgment be communicated to the appellant through the

Superintendent, Tihar Jail and also be sent for updation of the records.


APRIL 29, 2019

CRL.A.1241/2018 Page 21 of 21

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