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Mahabir Mehto vs State on 30 May, 2019

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 19.03.2019
Judgment Pronounced On: 30.05.2019

CRL.A.1013/2018

MAHABIR MEHTO …. Appellant

versus

STATE …. Respondent

Advocates who appeared in this case:
For the Appellant : Mr. Madhav Khurana and Ms. Trisha Mittal, Advocates
For the Respondent : Ms. Radhika Kolluru, APP with SI Sunder Singh, PS-Baba Haridas
Nagar

CORAM:
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present appeal instituted under the provision of Sectionsection 374(2) of

the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘SectionCr.P.C’)

assails the judgment dated 27.04.2018 and the order on sentence dated

14.05.2018, rendered by the learned Additional Session Judge-01, Dwarka

Courts, New Delhi, in Session Case No.440846/2016, title as ‘SectionState vs.

CRL.A. 1013/2018 Page 1 of 29
Mahabir Mehto’, emanating from F.I.R No. 216/2013 (hereinafter referred

to as the ‘subject FIR’) under Sectionsections 376/Section506 of the Indian Penal Code,

1860 (hereinafter referred to as ‘SectionIPC’) and under Sectionsections 6/Section10 of the

Protection of Children from Sexual Offence Act, 2012 (hereinafter referred

to as ‘POCSO’), registered at Police Station-Baba Haridas Nagar.

2. By the way of the impugned judgment dated 27.04.2018, Mahabir

Mehto (hereinafter referred to as ‘the appellant’) has been convicted for the

commission of offences punishable under the provisions of

Sectionsection 506 (Part I) IPC and sections 6/5 POCSO. By way of the impugned

order on sentence dated 14.05.2018, the appellant has been sentenced to

undergo imprisonment for life, along with fine Rs.15,000/-, for the offence

punishable under Sectionsection 6 read with section 5(n) of POSCO. In default of

the payment of fine, the appellant has been sentenced to undergo simple

imprisonment for three months. Further, for the offence punishable under

the provision of section 506(Part I), SectionIPC, the appellant has been sentenced to

undergo rigorous imprisonment of two years, along with fine of Rs.5,000/-.

In default of payment of fine, to further undergo simple imprisonment for

one month. All the sentences have been directed to run concurrently.

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

convicted, is for having committed penetrative sexual assault on his

CRL.A. 1013/2018 Page 2 of 29
daughter, the prosecutrix, a girl aged about 15 years, at the time of

commission of the offence.

4. The facts, as elaborated by the trial court are extracted in extenso, as

follows: –

“2. Law was set into motion against the accused on the
basis of a complainant lodged by his sister on
04.09.2013. In her complaint, the complainant stated
that on 02.09.2013, the accused had come to stay with
her along with his family consisting of his wife, elder
daughter (i.e. the prosecutrix) aged 16 years, younger
daughter aged 4 years and son aged 8 years. She
alleged that on 03.09.2013, when the prosecutrix was
doing household chores, she noticed an unusual bulge
in her belly. Upon being inquired, the prosecutrix
revealed to her that the accused had been establishing
physical relations with her for the last one year by
threatening her and that as a result thereof, she had
become pregnant. When the complainant confronted
the accused about the same, he fled away from the
house with his younger daughter. On the basis of the
above complaint, FIR under Sections 376/Section506 IPC was
registered against the accused. The prosecutrix was
medically examined on the same day. She was found
to be having pregnancy of 28 weeks. Her statement
under Section 164 Cr.P.C. was recorded on
07.09.2013. In her statement, she supported the
contents of FIR and disclosed that she had told about
the acts of the accused to her mother but she did not do
anything as she was of unsound mind. During the
course of investigation, Sections 6 and 10 POCSO Act
were added. The accused was arrested on 15.09.2013.
After completion of the investigation, the charge sheet
was filed.

3. It is a matter of record that the prosecutrix gave birth
to a male child and that the said child had been given
in adoption by the orphanage Sewabharti Matrichhaya.

CRL.A. 1013/2018 Page 3 of 29

4. On 08.01.2014, the charge for the commission of
offence punishable under Section 6 read with Section
5(n) POCSO Act and Section 506 IPC was framed by
the Ld. Predecessor against the accused to which he
pleaded not guilty and claimed trial.”

5. By way of the order dated 08.01.2014, the charge for the commission

of the offence punishable under Section 6 read with Section 5(n) POSCO

and Section 506 (Part I) IPC was framed against the appellant, who pleaded

not guilty and claimed trial.

6. The prosecution examined 14 witnesses in all to establish their case

against the appellant.

7. The appellant in his statement under Section 313 of Cr.P.C., whilst

denying the case of the prosecution, stated that he had been falsely

implicated in the case and further stated that he reprimanded the prosecutrix

for having an affair with a boy, living in the neighbourhood, the police at the

instigation of the complainant, PW-2, who had grudge against him for

refusing to give her a share in his ancestral property, foisted the false case

against him.

8. The first issue that warranted adjudication at the trial, was the

determination of the age of the prosecutrix, at the time of the commission of

the offence.

CRL.A. 1013/2018 Page 4 of 29

9. The trial court having considered the evidence on record, found as

follows: –

“10.1 In the absence of any document issued by any
authority regarding the age of the prosecutrix, the prosecution
has relied upon the bone age report dated 09.03.2018
(Ex.PW14/A) given by the Medical Board, DDU Hospital on
the examination of the prosecutrix. As per the said report, the
bone age of the prosecutrix was opined about 20-30 years. In
order to prove the said report, the prosecution has examined
Dr. L.R. Richhele, the Chairperson of the Medical Board, as
PW14. In his testimony, he deposed as under:

“… After detailed examination of the child victim, the
age of the child was determined between 20 to 30
years. In the present case, Ischian Tuberosity was
found fused, which occurs after the completion of 20
years and therefore, the board had opined that the age
of the victim to be more than 20 years on the day of
the examination. Since, the sacrum was not found to
be fused, which occurs after the completion of 30
years, the age of the victim was opined to be between
20 to 30 years. Between 20 to 30 years, no significant
changes occur in the bone ossification and thus the
exact age in between the said group, cannot be opined.

The detailed report is Ex.PW14/A, which bears
my signature at point A….”

In his cross-examination, PW14 expressed his inability to
state the exact age of the prosecutrix at the time of her
examination and stated that he could neither admit nor deny
the suggestion that the prosecutrix was 26 years of age at the
time of her examination.

10.2 The counsel for the accused contended that since the
exact assessment of the age of the prosecutrix could not be
made by the Medical Board, the prosecution has failed to
prove that the prosecutrix was below the age of 18 years at
the time of commission of the alleged offence and therefore,
the provisions of the POCSO Act would not apply in the
present case.

CRL.A. 1013/2018 Page 5 of 29

10.3 Under the POCSO Act, there is no provision
prescribing the manner in which the inquiry regarding the
determination of the age of victim is to be conducted. In the
landmark case of SectionJarnail Singh v. State of Haryana, (2013)
7 SCC 263, it has been categorically held by the Hon’ble
Apex Court that there is hardly any difference in so far as the
issue of minority between a child in conflict with law and a
child who is a victim of crime is concerned and therefore, it
would be just and appropriate to apply Rule 12 of the Juvenile
Justice (Care and Protection of Children) Rules, 2007 (for
short, JJ Rules, 2007) to determine the age of the prosecutrix
as well. Sub-rule (3) of Rule 12 of the JJ Rules, 2007, which
prescribes the manner of conducting the age determination
inquiry, is reproduced as under: –

“12. Procedure to be followed in determination of
Age:

(1) xx xx xx
(2) xx xx xx

(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry
shall be conducted by the court or the Board or,
as the case may be, the Committee by seeking
evidence by obtaining-

(a) (i) the matriculation or equivalent
certificates, if available; and in the
absence whereof;

(ii) the date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;

(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(b) and only in the absence of either (i), (ii)
or (iii) of clause (a) above, the medical
opinion will be sought from a duly
constituted Medical Board, which will
declare the age of the juvenile or child.
In case exact assessment of the age
cannot be done, the Court or the Board
or, as the case may be, the Committee,
for the reasons to be recorded by them,

CRL.A. 1013/2018 Page 6 of 29
may, if considered necessary, give
benefit to the child or juvenile by
considering his/her age on lower side
within the margin of one year,
and, while passing orders in such case shall,
after taking into consideration such evidence as
may be available, or the medical opinion, as the
case may be, record a finding in respect of his
age and either of the evidence specified in any
of the clauses (a)(i), (ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the
juvenile in conflict with law.”

Rule 12(3) of the JJ Rules, 2007 lays down the manner
of determining the age of a child conclusively. Under the
said provision, the age of a child is ascertained by adopting
the first available basis, out of a number of options postulated
therein. An option expressed in a preceding clause has
overriding effect over an option expressed in the subsequent
clause. The highest rated option available determines the age
of a minor conclusively. If the matriculation or equivalent
certificates of the child is available, no other evidence can be
relied upon. Only in the absence of such certificates, as entry
of date of birth in the record of the school first attended by the
child is to be relied upon. When no such entry is available,
then the reliance can be placed on a birth certificate issued by
a corporation or municipal authority or panchayat. It is only
in the absence of any of the aforesaid, that Rule 12(3)
postulates the determination of the age of the child on the
basis of medical opinion.

10.4 While considering the scope and nature of the inquiry
contemplated under Rule 12 of the JJ Rules, 2007, the
Hon’ble Supreme Court has observed in SectionAshwani Kumar
Saxena v. State of M.P., (2012) 9 SCC 750, that the
expressions ‘prima facie’, ‘on the basis of physical
appearance’ or ‘documents, if available’ used in Rule 12 re-
emphasize the fact that what is contemplated is only an
inquiry following the procedure laid down under the said rule
and not an investigation or trial under the SectionCr.P.C. It was held
that while conducting an inquiry, a hyper-technical approach
should not be adopted and if the assessment of age could not

CRL.A. 1013/2018 Page 7 of 29
be done, the benefit would go to the child considering his/her
age on lower side within the margin of one year. Paragraph
No.34 of the above judgment, which is relevant, is
reproduced as under:

“34. “Age determination inquiry” contemplated
under section 7A of the Act r/w Rule 12 of the 2007
Rules enables the court to seek evidence and, in that
process, the court can obtain the matriculation or
equivalent certificates, if available. Only in the
absence of any matriculation or equivalent certificates,
the court need obtain the date of birth certificate from
the school first attended other than a play school. Only
in the absence of matriculation or equivalent certificate
or the date of birth certificate from the school first
attended, the court need obtain the birth certificate
given by a corporation or a municipal authority or a
panchayat (not an affidavit but certificates or
documents). The question of obtaining medical
opinion from a duly constituted Medical Board arises
only if the above-mentioned documents are
unavailable. In case exact assessment of the age
cannot be done, then the court, for reasons to be
recorded, may, if considered necessary, give the
benefit to the child or juvenile by considering his or
her age on lower side within the margin of one year.”

10.5 Applying the principles laid down in the above
judgments to the facts of the present case, wherein the bone
age of the prosecutrix has been opined about 20-30 years by
the Medical Board, the age of the prosecutrix has to be taken
on the lower side i.e. 20 years as on the date of her medical
examination conducted on 09.03.2018. Since the offence is
alleged to have been committed for one year prior to the
lodging of complaint dated 04.09.2013, the age of the
prosecutrix at the relevant time comes to about 15 years.
Hence, the prosecutrix was a child within the meaning of
Section 2(d) of the POCSO Act at the time of commission of
the offence.

10.6 The determination of the age of the prosecutrix as
above is also strengthened from the other material on record.
The complainant in her complaint dated 04.09.2013 had
specified the age of the prosecutrix as 16 years. In the MLC

CRL.A. 1013/2018 Page 8 of 29
of the prosecutrix, which was prepared on the same day, her
age was also mentioned as 16 years. The statement of the
prosecutrix under Section 164 Cr.P.C. was recorded on
07.09.2013, wherein she stated her age as 15 years. The
prosecutrix and the complainant have been examined by the
prosecution as PW1 and PW2 respectively. In the cross-
examination of none of them, the accused had disputed
the age of minority of the prosecutrix. Even in his
statement under Section 313 Cr.P.C. recorded on
22.03.2017, the accused did not plead that the prosecutrix
was not a child at the relevant time. It is a matter of record
that at the stage of final arguments, an application for
conducting the ossification test of the prosecutrix was
preferred by the prosecution, which was allowed on
05.03.2018 and that pursuant thereto, the report dated
09.03.2018 (Ex.PW14/A) of the Medical Board pertaining to
the bone age of the prosecutrix was filed. It was only during
the cross-examination of PW14 Dr. L.R. Richhele, who was
examined by the prosecution to prove the report Ex.PW14/A,
that the accused for the first time disputed that the prosecutrix
was a child at the relevant time by putting a suggestion to the
effect that she was 26 years old at the time of her examination
by the Medical Board. Being the father of the prosecutrix,
her age was within the special knowledge of the accused.
The very fact that the accused neither disputed the age of
the prosecutrix during the course of entire trial nor
produced any material to dislodge the case of the
prosecution that the prosecutrix was a minor at the
relevant time goes to show that the challenge to the age of
the prosecutrix at the belated stage was nothing but an
afterthought with a view to avoid the rigour of the
POCSO Act and take advantage of the wide range of the
bone age (i.e. 20-30 years) of the prosecutrix opined by the
Medical Board.

10.7 Considering the above, the contention of the defence
counsel that the provisions of the POCSO Act would not
apply to the present case is found to be devoid of any
substance.”

10. The above findings arrived at by the trial court, have not been assailed

before us on behalf of the appellant. Therefore, we have no hesitation in

CRL.A. 1013/2018 Page 9 of 29
finding ourselves in agreement with the trial court, when it returned finding

to the effect that the prosecutrix was a minor at the time of the commission

of the offence.

11. The trial court, thereafter, proceeded to appreciate and evaluate the

testimony of the prosecutrix, which constituted the foundation of the

prosecution’s case.

12. The trial court, upon careful consideration of the evidence on record

and in particular the testimony of the prosecutrix, returned a finding that the

prosecution has succeeded in proving the guilt of the accused beyond

reasonable doubt for the commission of the offence punishable under

Section 6 read with Section 5 of the POCSO, predicated on the reasoning

elaborated as under:-

“12. Admittedly, the accused is the father of the
prosecutrix. It is also not in dispute that at the relevant
time, the prosecutrix along with her mother and
younger siblings was residing with the accused. As
per the MLC dated 04.09.2013 of the prosecutrix,
which has been proved by PW-5 Dr. Sidhi Sainik as
Ex.PW5/A, she was having the pregnancy of 28 weeks
at the time of her medical examination. Now the
question which requires to be adjudicated is whether
the accused was responsible for the penetrative sexual
assault on the prosecutrix.

12.1 The prosecutrix is the sole witness of the commission
of the act of penetrative sexual assault on her. In her
testimony recorded on 19.02.2014, the prosecutrix
(PW1) deposed that she along with her parents and two
siblings used to reside in a rented accommodation; that

CRL.A. 1013/2018 Page 10 of 29
the accused used to work as a mason and that her
mother is not mentally sound and is deaf and dumb;
that about one year ago, when she was sleeping, the
accused tried to force himself upon her; and that she
pushed him and went to her mother but the accused
came there and after extending threat to kill her, he
committed rape on her. She further deposed that after
the said incident, the accused used to commit rape on
her on every day and that when the landlord came to
know about the same, he got the house vacated. The
prosecutrix also deposed that they shifted to the house
of her paternal aunt (bua) i.e. the complainant and that
when her aunt saw her condition, she suspected that
some wrong act had been committed with her and took
her to RTRM Hospital, where the doctor told that she
was having pregnancy of seven months. She further
deposed that when her aunt confronted the accused
with the same, he denied that he was responsible for it
and went away to Bihar alongwith his younger
daughter and that thereafter, her aunt made complaint
to the police.

12.2 The prosecutrix was cross-examined by the accused.

In her cross-examination, she admitted that she did not
know the dates or months when the accused committed
rape on her and that the complainant had visited her
house on several occasions but she did not disclose
about the acts of the accused to her during the said
visits. However, she denied the suggestions that she
was having friendly relations with a boy, who got her
pregnant and that when the accused came to know
about the same, he had scolded her and for the said
reason, she had named him as the accused.

12.3 The counsel for the accused argued that the failure of
the prosecutrix to state the specific dates and months
of her alleged sexual assault make her testimony
doubtful. He contended that since the prosecutrix also
did not disclose to the complainant about the alleged
acts of the accused during her visits to their house, the
allegations against the accused appear to be an
afterthought and no reliance can be placed on the
same.

CRL.A. 1013/2018 Page 11 of 29

12.4 The above contentions of the defence counsel are
without merits. The prosecutrix is an uneducated girl
belonging to the poor strata of the society. In her
deposition, she categorically stated that she was being
subjected to penetrative sexual assault by the accused
on regular basis for a period of about one year.
Considering the said assertion of the prosecutrix and
taking note of her socio-economic background, the
failure to disclose the specific dates on which she was
subjected to penetrative sexual assault by the accused
is of no significance. As far as the failure of the
prosecutrix to reveal about the acts of the accused to
the complainant prior to 03.09.2013 is concerned, one
can not loose sight of the fact that at that time, the
prosecutrix was residing with the accused in the
tenanted premises and that the accused, being the
father and the sole bread earner, was in a position of
dominance and command over her. In such a scenario,
especially when she did not get any support from her
mother, the possibility that she could not muster
courage to disclose about the acts of the accused to the
complainant, who is the sister of the accused, can not
be ruled out. In fact, it can be seen from the deposition
of the prosecutrix (PW1) that on 03.09.2013 also, she
had revealed about the acts of the accused to the
complainant only when the complainant had become
suspicious and asked her about her physical condition.
Since the prosecutrix was having a pregnancy of about
seven months at that time and her pregnancy must
have started showing, she had no option but to confide
in the complainant. Considering the facts and
circumstances, the conduct of the prosecutrix appears
to be quite natural.

12.5 The counsel for the accused further contended that the
uncorroborated testimony of the prosecutrix can not
form the basis for holding the accused guilty. He
argued that during the relevant time, the mother of the
prosecutrix was also residing in the same house and
therefore, she would have been the best witness to
throw light on the allegations against the accused. He
submitted that the prosecution not only failed to
examine her as a witness in support of its case but also

CRL.A. 1013/2018 Page 12 of 29
did not produce on record any document to show that
she was of unsound mind. The counsel for the accused
argued that the failure of the prosecution to examine
the mother of the prosecutrix is fatal to its case.
12.6 It is now a settled legal proposition that a finding of
guilt in a case of sexual assault can be based on the
uncorroborated evidence of the prosecutrix provided it
inspires confidence of the Court and is found to be
reliable. The very nature of the offence makes it
difficult to get direct corroborating evidence. No rule
of law or of practice requires corroboration of the
testimony of the prosecutrix before it can be accepted
and acted upon. SectionIn Gugan vs. State (Govt. of NCT of
Delhi), 2018 (1) RCR (Criminal) 31, it has been held
by the Hon’ble Delhi High Court that in a case of rape
where the offender is none else but the father, the
version of the prosecutrix can be accepted without any
corroboration. In the case on hand, the version of the
prosecutrix that the accused had committed penetrative
sexual assault on her has remained consistent
throughout. In her statement under Section 164
Cr.P.C. (Ex.PW1/A) as well as in her deposition in the
Court, the prosecutrix has testified against the accused.
There is no discrepancy or contradiction in her above
statements. The accused has failed to dent the
testimony of the prosecutrix or extract anything
therefrom. In view of the impeccable and unshattered
testimony of the prosecutrix, there appears to be no
necessity to look for the corroboration thereof. Even
otherwise, the prosecutrix has specifically deposed that
her mother is not mentally sound. The above
deposition of the prosecutrix has not been controverted
by the accused during the course of her cross-
examination despite the presence of her mother in the
house and could repeatedly do so lends credence to the
version of the prosecutrix. In such circumstances, the
prosecution would not have achieved anything by
examining the mother of the prosecutrix. Infact, had
the mother of the prosecutrix been of sound mind, the
accused would have certainly examined her in his
defence to dislodge the allegations of sexual assault
made against him.

CRL.A. 1013/2018 Page 13 of 29

12.7 The accused has put forth the defence that the
prosecutrix was having an affair with a boy living in
the neighbourhood, who got her pregnant, and that
when the reprimanded her, she falsely implicated him
in the present case. The above defence of the accused
is completely vacuous in as much as neither the
identity of the said boy has been disclosed nor any
material has been produced on record to substantiate
the same. The accused not only failed to examine his
wife from whom he allegedly acquired the knowledge
of the said affair of the prosecutrix but also did not
lodge any complaint against the said boy for violating
the prosecutrix. Infact, the conduct of the accused in
fleeing away from the house of the complainant upon
being confronted by the complainant regarding the
pregnancy of the prosecutrix points towards the guilt
of the accused.

12.8 Besides the prosecutrix, the prosecution has examined
her paternal aunt (bua) i.e. the complainant as PW2. In
her deposition, the complainant has supported the
version of the prosecutrix. She has deposed that after
the accused had shifted with his family to her house,
she noticed the condition of her niece i.e. the
prosecutrix and that upon being asked, the prosecutrix
started weeping and disclosed that the accused had
committed rape on her on several occasions. She
further deposed that she took the prosecutrix to the
police station and lodged the complaint against the
accused and that after the confirmation of the
pregnancy of the prosecutrix, when the police visited
her house in search of the accused, he had already fled
away.

12.9 The accused tried to impeach the testimony of the
complainant on the ground that she held a grudge
against him as he had refused to give share to her in
the ancestral property. Though the complainant
admitted in her cross-examination that her father
owned some property in the native village, which has
yet not been divided, however, she denied that she had
demanded any share in the property from the father or
that due to the opposition of the accused to her
demand, she had a grudge against him. In order to

CRL.A. 1013/2018 Page 14 of 29
prove his above defence, the accused could have easily
examined his father after he had been dropped from
the array of witnesses by the prosecution. The failure
of the accused to examine his father to prove the
alleged demand of share in the property by the
complainant goes to show that the said defence was
frivolous and concocted. The very fact that after being
asked to vacate the tenanted house by the landlord, the
accused alongwith his family took shelter in the house
of the complainant brings the falsity of his above
defence to the fore.

12.10 The counsel for the accused has lastly argued that
since the DNA test report of the baby of the
prosecutrix could not be procured, it has not been
conclusively proved that the accused had impregnated
the prosecutrix and therefore, the benefit of doubt
should be given to the accused. The above argument is
devoid of any merit. A perusal of the record show that
though the blood sample of the baby of the prosecutrix
had been sent to the FSL for ascertaining the paternity,
however, the test could not be conducted as the sample
was found to be putrefied. In the meantime, the baby
of the prosecutrix was given in adoption by the
orphanage and therefore, the fresh blood sample of the
baby could not be obtained. The above lapse on the
part of the investigating agency can not wipe off the
reliable and trustworthy testimony of the prosecutrix,
which has been duly corroborated by the deposition of
the complainant.”

13. Lastly, qua the charge for the offence punishable under Section 506

IPC, the trial court held that, the prosecutrix had categorically deposed that,

upon her objections to the acts of the appellant, the latter had threatened her

with death, thereby causing real alarm to her; and was, therefore, liable to be

convicted for the offence punishable under Section 506 (Part-I) IPC, as well.

CRL.A. 1013/2018 Page 15 of 29

14. There can be no manner of doubt that conviction for committing

aggravated penetrative sexual assault can be sustained on the sole testimony

of the prosecutrix. [Ref: CRL.A.1119/2014 titled as SectionBoby vs. State (NCT

of Delhi, decided by this Court on 14.07.2016, Vishnu (alias) SectionUndrya vs.

State of Maharashtra reported as (2006) 1 SCC 283 and SectionState of M.P. vs.

Dayal Sahu, reported as (2005) 8 SCC 122)].

15. The Hon’ble Supreme Court of India in SectionState of Himachal Pradesh

vs. Asha Ram, reported as 2006 SCC (Cri) 296 held as follows: –

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

16. SectionIn Sadashiv Ramrao Hadbe v. State of Maharashtra, reported as

2006 (10) SCC 92, the Hon’ble Supreme Court of India reiterated that the

CRL.A. 1013/2018 Page 16 of 29
sole testimony of the prosecutrix could be relied upon if it inspires the

confidence of the Court:

“9. It is true that in a rape case the accused could be
convicted on the sole testimony of the prosecutrix, if it is
capable of inspiring confidence in the mind of the Court.
If the version given by the prosecutrix is unsupported by any
medical evidence or the whole surrounding circumstances are
highly improbable and belie the case set up by the
prosecutrix, the Court shall not act on the solitary evidence of
the prosecutrix. The Courts shall be extremely careful in
accepting the sole testimony of the prosecutrix when the
entire case is improbable and unlikely to happen.”

17. In this behalf, learned counsel appearing on behalf of the appellant

would urge that, the testimony of the prosecutrix, is riddled with

contradictions and discrepancies, when appreciated in conjunction with the

testimony of her Bua, PW-2. It was, therefore, argued that the testimony of

the prosecutrix was neither creditworthy nor of the sterling quality,

necessary to sustain the conviction of the appellant.

18. In order to buttress this contention, learned counsel for the appellant,

invited our attention to the testimony of the prosecutrix, wherein she had

stated that the landlord of the premises, where they were residing, was

aware of the commission of the offence, by the appellant upon his own

daughter and had consequently, asked them to vacate his property; and that

the prosecution had failed to examine the landlord, the person who first

CRL.A. 1013/2018 Page 17 of 29
came to know about the commission of the offence; thereby failing to

provide requisite corroboration to the testimony of the prosecutrix.

19. It was further urged on behalf of the appellant that, there was a major

contradiction between the testimony of the prosecutrix and her Bua PW-2,

inasmuch as, although the latter deposed that, she did not visit her brother,

the appellant’s house, on the contrary the prosecutrix testified that PW-2

used to visit them.

20. Lastly, our attention was invited to a decision of this Court in SectionDinesh

Yadav vs. State (NCT of Delhi), CRL.A.677/2011 decided on 21.07.2015,

reported as 2015 SCC Online Del 10585 to urge that, the appellant, as the

father of the prosecutrix, could not have committed such a heinous offence

upon her.

21. On the other hand, learned Additional Public Prosecutor would urge

that the contradictions, if any, emerging from the testimonies of the

prosecutrix and PW-2 were minor and inconsequential and that, the law

enunciated qua the conviction of an accused for an offence of aggravated

penetrative sexual assault, on the basis of the sole testimony of the

prosecutrix, is fairly well settled. Reliance was placed in this behalf upon

the judgement namely SectionGugan v. State (Govt of NCT of Delhi) reported as ,

CRL.A. 1013/2018 Page 18 of 29
2018 (1) RCR (Criminal) 31, wherein it was held by a Single Judge of this

Court as follows:-

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

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

12. Proximity with a neighbour and that too a female
could not be a reason for him to feel annoyed. The
prosecutrix, PW-5 has admitted that after having dinner, she
used to have a stroll in the gali with Poonam Aunty (PW-1)
and she used to come late by 11.00 or 11.30 pm for which her
parents used to scold her but that itself could not be a motive
for her to implicate her own father in a serious offence of
rape. This is a case where the appellant/father has been named
to be a person who has committed rape on his own daughter,
who was staying with him. After the death of the mother, the
prosecutrix had no support system except her father and she
would not blame her own father for committing rape on her.

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

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

CRL.A. 1013/2018 Page 19 of 29
testimony which proved the prosecution case beyond
reasonable doubt.

15. In the case reported as SectionMadan Gopal Kakkad vs. Naval
Dubey, (1992) 3 SCC 204, it was observed that even in cases
wherein there is lack of oral corroboration to that of a
prosecutrix, a conviction can be safely recorded, provided the
evidence of the victim does not suffer from any basic
infirmity, and the ‘probabilities factor’ does not render it
unworthy of credence, and that as a general rule,
corroboration cannot be insisted upon, except from the
medical evidence, where, having regard to the circumstances
of the case, medical evidence can be expected to be
forthcoming.

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

22. In order to conclusively determine, whether the testimony of the

prosecutrix is creditworthy and reliable, it would be necessary to appreciate

her statement under Section 164 Cr.P.C. dated 07.09.2013 made before the

competent Magistrate, as well her testimony before the trial court.

23. In her statement under Section 164 Cr.P.C. dated 07.09.2013, the

prosecutrix stated as follows: –

“Statement of Km. Pooja D/o Mahavir Mehto R/o House
No.28, Surekpur Road, Gopal Nagar, Najafgarh, Delhi,
aged 16 years:

˜ ɇDistt. Muzaffarnagar, Bihar € ȧरहने ȡ› ȣहूँ। € šȣ– 6-7 साल पहले ˜ ɇ
परू े ”ǐšȡš के साथ Ǒ‘ã› ȣ आ गयी थी। मेरे पापा ͬ “ ȡ_ का काम करते ¡ ɇ
और ˜ à˜ Ȣका Ǒ‘˜ ȡ‚ काम है । वो थोड़ी पागल है । Ǒ‘ã› ȣ˜ Ʌहम नजफगढ़
˜ Ʌरहते थे। € šȣ– एक साल पहले € ȧबात है । जब ˜ ɇरात ˜ Ʌसो š¡ ȣथी तो
मेरे पापा महावीर महतो मेरे ऊपर आकर लेट गए और ˜ ȯšȣ सलवार खोलने
लगे। ˜ न
ɇ े ` Û¡ Ʌ’ Ȁ ȡ मारा और ˜ à˜ Ȣके पास जाकर सो गयी। ˜ à˜ Ȣको

CRL.A. 1013/2018 Page 20 of 29
बताया, पर ˜ ȯšȣमाँ पागल है , ^ ͧ› f उसने कुछ “ ¡ ȣȲͩ€ ™ ȡ@ ‚ › ȣरात को
ͩ• š जब ˜ ɇसो š¡ ȣथी तो ` Û¡ ɉ“ ȯमेरा मँह
ु बंद कर Ǒ‘™ ȡऔर ˜ ȯšȣसलवार खोल
‘ȣऔर मेरे ऊपर चढ़कर करने लग गए। पापा ने अपने कपडे उतार Ǒ‘f और
अपना सू – सू करने वाला मेरे अंदर डाल Ǒ‘™ ȡ@ मझ
ु े ’ ˜ € ȧभी ‘ȣͩ€ अगर
ͩ€ Ȣको बताएगी तो तझ
ु े मार दं ग
ू ा। पापा रोज़ मेरे साथ rape करते थे और
मझ
ु े कोई बचाता भी “ ¡ ȣȲथा। ˜ ȯšȣमाँ को पता था पर उसने कुछ “ ¡ ȣȲͩ€ ™ ȡ@
6-7 ˜ ¡ ȣ“ ȯपहले मझ
ु े ˜ ¡ ȣ“ ȡआना बंद हो गया था। जब हमारे मकान ˜ ȡͧ› €
को 2/9/13 को इस बारे ˜ Ʌपता चला तो उसने हमसे घर  ȡ› ȣ करवा ͧ› ™ ȡ@
ͩ• š हम बआ
ु सन
ु न
ै ा के घर आ गए। ˜ ɇजब काम कर š¡ ȣथी तो बआ
ु ने मेरा
पेट दे ख कर मझु से पछ
ु ा ͩ€ पेट कैसे बड़ा हुआ और मेरे साथ कौन सोया था।
तो ˜ “ɇ ȯअपने बआु को साड़ी बात बताई। जब बआ ु ने मेरे पापा से इस बारे ˜ Ʌ
पछ
ू ा तो मेरे पापा ˜ ȯšȣ4 साल € ȧ† ȪŠȣबहन को लेकर वहां से भाग गए।”

24. In her testimony recorded on 19.02.2014, the prosecutrix deposed as

under: –

” 19.02.2014
(In Camera Proceedings)
PW-1, Child Victim, aged 16 years (cited at serial no.1 in the list
of the witnesses)
On SA
……. XXX…

About one year back one day an altercation had taken place
between my father and my grandfather. Thereafter, we vacate the
said house and shifted to another house in Najafgarh, which had
three rooms. However, we ever staying in a simple room. One day,
when I was sleeping, my father came upon me. I pushed him and
thereafter, I went to my mother, however, the accused also came
there and again he came upon me. When I objected to it, the
accused extended threat saying that he would kill me and he
committed rape upon me forcibly. After that, my father used to
commit rape upon me every day. When our landlord came to know
this fact, he instructed us to vacate the house and thereafter, we
vacated the said house. Thereafter, we shifted to the house of our
Bua (Aunty), who was also residing near Om Dairy at Najafgarh.
On seeing my condition, my Bua (Aunty) suspected that some
wrong act was committed with me and thereafter, my Bua(Aunty)
took me to RTRM Hospital, Jaffarpur for my medical
examination. After my medical examination, the doctor told us that

CRL.A. 1013/2018 Page 21 of 29
I was having pregnancy of seven months. Thereafter, my Bua
(Aunty) made inquiry from my father, who denied the same and
thereafter, my father along with my younger sister went away to
Bihar. Thereafter, my Bua made a call at no. 100. The police
officer called me in the Police Station Baba Haridas Nagar. I along
with my Bua went to PS Baba Haridas Nagar and my Bua made a
complaint to the police officer. Thereafter, the police officer took
me to RTRM Hospital. After medical examination, the police
official brought me back to the Police Station and from there, I was
taken to Nirmal Chhaya.

On 07.09.2013, the police officials took me to Dwarka Courts
from Nirmal Chhaya and my statement was recorded there by the
Ld.MM
At this stage, one envelop with the seal of MG is taken out
from judicial file. After breaking the seal, proceeding u/s 164
SectionCr.P.C is taken out. Same is shown to the child victim. Child
victim correctly identified her thumb mark on her statement at
point A, B, C D and proceeding U/s 164 Cr.P.C is now
Ex.PW1/A.

After recording my statement, I was taken back to Nirmal
Chhaya, where I remained for about four months and I delivered a
male baby in Deen Dayal Hospital on 30.12.2013.

At this stage the child victim has been asked to identify the
accused, who did wrong act with her (The accused is standing
behind a curtain and is unable to see the child victim and he has
been further asked to close his eyes. However, child victim has
been asked to identify the accused from the parting between the
curtain)
After seeing the accused through the parting between the
curtain, child victim was correctly identified the accused present
behind the curtain as her father, who had committed rape upon her
and had been made her pregnant.

XXXXX By Sh. L.G.Gautam , Ld Counsel for accused

It is correct that I do not know the dates or day or month, when
incident happened, it is wrong to suggest that I was having friendly
relations with a boy and that the said boy got me pregnant and this
fact came in the knowledge of my father, who scolded me or that
due to this reason I named my father as a culprit. It is further
wrong to suggest that no offence has been committed by my father
with me at any point of time. It is correct that my bua used to visit
my house several times. I never told her during those visits the
above facts, which I deposed today before this Hon’ble Court. My
grandfather used to reside with my uncle, Raju. My grandfather is
having properties in village and the same is not yet divided

CRL.A. 1013/2018 Page 22 of 29
between his children. I am not aware if my Bua is also having
share in the said property. I am also not aware whether Bua was
also asking for her share in the said property. I am also not aware
whether my father was against the demand of my Bua of getting
share from ancestral property. It is wrong to suggest that due to
above reason, my bua instigated me to implicate my father in false
case of that I have deposed falsely. It is wrong to suggest that
accused never pregnant me and the child does not belong to the
accused.”

25. Although the sole testimony of the prosecutrix, as aforestated, is

sufficient by itself to sustain the conviction of the appellant, subject to it

being reliable and having ring of truth in it, in view of the asseverations on

behalf of the appellant that, contradictions arise from a conjoint reading and

the appellant’s statement that he was falsely implicated for denying PW-2, a

share in their ancestral property; it is considered appropriate and necessary

to peruse and appreciate the testimony of PW-2, the Bua of the prosecutrix,

The testimony of PW-2 is as follows: –

“19.02.2014
(In Camera Proceeding)

PW2, Bua (Aunty) of the child victim (mentioned at serial no.2 in
the list of witnesses).

On SA

I along with my family is staying at Gopal Nagar, Najafgarh
for the last 8 years as tenant. My brother accused Mahabir Mehto
was also residing in the same vicinity along with his family. My
brother accused Mahabir Mehto used to work as labour. In the
month of July, 2013, on day my brother accused Mahabir Mehto
come to my house and he requested me to arrange a room in the
same house but initially, I did not allow my brother to stay there as
a tenant as my brother accused Mahabir Mehto used to take liquor
daily and my husband also used to take liquor daily. When my
brother insisted me to arrange a room in our house, thereafter, I

CRL.A. 1013/2018 Page 23 of 29
allowed him to stay there along with his family. Thereafter, in the
month of October, 2013, accused Mahabir Mehto shifted in my
house with his family. One day, I noticed the condition of my
niece, child victim and on that day, I did not ask anything from her.
I also used to work as labourer and I used to leave my house in the
morning and return back in the evening. On that day after returning
my house, in the evening, I enquired my niece, child victim about
her condition, however, on that day, my niece started weeping and
disclosed that her father committed rape upon her on several
occasions. Thereafter, I along with my niece child victim went to
PS Baba Haridas Nagar and made complaint against the accused,
which is Ex.PW2/A bearing my thumb impression at pt A. From
there, police official took my niece child victim to RTRM Hospital
and I also accompanied her to the hospital, where she was
memdically examined and the doctor declared that my niece child
victim is pregnant. From the hospital, we along with police official
returned back to Baba Haridas Nagar Police Station and my niece
child victim was shifted to Nirmal Chhaya. On the same day, when
police official visited our house, in search of accused Mahabir
Mehto, he had already left our house.

I am aware of the fact that my niece child victim
delivered male baby in DDU Hospital. Today, accused Mahabir
Mehto is present in the court(the witness has correctly identified
the accused)
XXXXX By Sh. L.S. Gautam, Ld. Counsel for accused.

My father is having some property in his native place.
Till date the said property is not divided among his children. I am
not interested in my share in the property of my father. It is wrong
to suggest that I demanded my share from my father and the
accused strongly opposed the same. It is further wrong to suggest
that due to opposition by my brother, i.e Accused. I had grudge
against him. I never visited the house of the accused and since
then, year back, quarrel/fight took place between me and accused
and since then, I was not having visiting terms with the accused. It
is wrong to suggest that child victim did not disclose anything
against the accused or that the accused was not responsible for her
condition or that she was having relation with one boy and accused
opposed the same and scolded the child victim and this fact came
in my knowledge or that I instigated the child victim to name the
accused as culprit or that I implicated the accused in false case or
that I am deposing falsely. I went to the locality of the accused,
where he was residing to enquire about the truth and to know the
real person, who was responsible for the condition of child victim.
It is wrong to suggest that I have deposed falsely.

CRL.A. 1013/2018 Page 24 of 29

26. We have heard learned counsel appearing on behalf of the parties and

given our anxious consideration to the entire evidence on record. In our

view in the present proceedings, it has been established beyond reasonable

doubt that: –

a) The age of the prosecutrix–which was germane to the issue of

the culpability for the offence for which the appellant was

charged–was 15 years at the time of the commission of the

offence. Hence, the prosecutrix was a child, within the meaning

of the definition in relation thereto, as provided under the

provisions of Section 2(d) of POCSO, at the time of

commission of the offence.

Our finding, in this regard, in addition to the evidence on

record, including the ossification test conducted on the

prosecutrix, is strengthened by the circumstance that, the

appellant did not, at any stage of trial or before us in the present

appeal, dispute that the prosecutrix was not a child at the

relevant time.

b) The prosecutrix was 28 weeks pregnant at the time of her MLC

Ex.PW5/A, dated 04.09.2013.

CRL.A. 1013/2018 Page 25 of 29

c) The version of the prosecutrix that, the appellant had

committed penetrative sexual assault on her, has remained

constant throughout. A plain reading of her statement recorded

under Section 164 Cr.P.C., Ex.PW1/A, as well as, her

deposition in Court, leaves no manner of doubt, about the guilt

of the appellant, qua the commission of the offence. There is

no discrepancy or contradiction in her statements, which have

remained consistent, impeccable and un-shattered, despite

sustained cross-examination.

In addition, the conduct of the appellant in fleeing away from

their accommodation, upon being confronted by the

complainant PW-2, regarding the pregnancy of the prosecutrix,

lends incontrovertible support in establishing the guilt of the

appellant.

d) The defence of the accused to the effect that the prosecutrix;

was having an affair with a boy living in the neighbourhood,

who impregnated her, and is being falsely implicated in the

present case, upon reprimanding the prosecutrix for the same; is

completely untenable and vacuous, inasmuch as, neither the

CRL.A. 1013/2018 Page 26 of 29
identity of the boy has been disclosed at any stage nor has any

material been produced on the record to substantiate the

defence.

e) The submission of the appellant that, he was falsely implicated

by his sister PW-2 , since he refused to give her a share in the

ancestral property, fails to impeach the latter’s testimony, for

the reason that, neither did the appellant examine his father, to

substantiate his defence, nor did he produce any other cogent

material in this behalf.

f) Lastly, the asseverations made on behalf of the appellant that;

owing to the circumstance that the DNA test report of the baby

delivered by the prosecutrix could not be procured, the

prosecution has failed to conclusively prove their case; is

devoid of merit for the reason that, although the blood sample

of the baby had been sent to FSL for ascertaining the paternity,

no result could be obtained since the same was found to be

putrefied. In the meantime, the baby born to the prosecutrix

had been given in adoption and it was not considered advisable

CRL.A. 1013/2018 Page 27 of 29
or necessary in the interest of the child, to obtain fresh blood

sample.

27. The above lapse on the part of the investigating agency does not have

the effect of effacing the otherwise reliable and trustworthy testimony of the

prosecutrix, which has been duly corroborated by the deposition of the

complainant PW-2. [Ref: SectionState vs. Rahul, Crl. A. 496/2015, decided on

23.04.2019]

28. In view of the foregoing, we are of the view that the testimony of the

prosecutrix, which has remained un-shattered and uncontroverted despite

sustained cross-examination, is creditworthy and reliable and has ring of

truth in it; and further, although there is no gainsaying the legal position that

her testimony by itself is sufficient to establish the case of the prosecution,

in the present case, the prosecutrix’s testimony is materially corroborated by

the other evidence on record. We have, therefore, no hesitation in saying

that the cogent and clear evidence on record, leads to but one inescapable

conclusion, that of the guilt of the appellant.

29. We are further of the view that the reliance placed by the appellant on

the decision in Dinesh Yadav (supra) to urge that the appellant, as the father

of the prosecutrix could not committed such a heinous offence of rape upon

CRL.A. 1013/2018 Page 28 of 29
his own daughter, is misplaced and mis-conceived, in view of the clear and

unequivocal evidence on record, in the present case.

30. In view of the foregoing, we find ourselves in agreement with the

findings returned by the trial court, which in our considered view, do not

warrant any interference or modification. Therefore, the judgment and order

of sentence dated 27.04.2018 and 14.05.2018 respectively, are upheld and

the present appeal is accordingly dismissed. However, there shall be no

order as to costs.

31. The Trial Court Record be sent back forthwith.

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

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

.

SIDDHARTH MRIDUL, J.

MANOJ KUMAR OHRI, J.

MAY 30, 2019
dn/ad

CRL.A. 1013/2018 Page 29 of 29

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