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Mohd. Jaffar @ Chotu vs State (Govt. Of Nct Of Delhi) on 20 November, 2017

% Date of Decision: November 20, 2017

+ CRL.A. 63/2011
MOHD. JAFFAR @ CHOTU ….. Appellant
Through: Ms.Bhumika Kapoor, Advocate
for Ms.Anu Narula, Advocate.
STATE (GOVT. OF NCT OF DELHI) ….. Respondent
Through: Ms.Rajni Gupta, APP for the
State with SI Prakash, PS Sadar

1. This appeal has been preferred by the appellant challenging the
judgment dated 16th July, 2010 and order on sentence dated 17th July,
2010 passed in Sessions Case No.72/2009 whereby he has been
convicted for committing the offence punishable under Section 376
IPC and sentenced to undergo RI for a period of 7 years and to pay a
fine of `5000/- and in default of payment of fine, to undergo RI for
one year.

2. The facts of the instant case recorded by the learned Trial Court
in the impugned judgment are as under:-

‘The case of the prosecution is that on 14.05.2008 DD
No.47-B Ex.PW8/A was lodged at PS Sadar Bazar at
about 2.50 pm near Akhara Police Post Motia Khan,
Sadar Bazar, Delhi that a person has been apprehended
who committed rape upon a minor girl. The
investigation was handed over to W/ASI Shakun (PW-18)
who along with ASI Nissar Ahmed (PW-8), HC Chander
Singh (PW-6) and Lady Ct.Krishna (PW-4) reached the

CRL.A. No.63/2011 Page 1 of 5
spot where prosecutrix and her parents were found
present. Statement of the mother of the prosecutrix was
recorded which is Ex.PW1/A to the effect that she is a
house wife and her husband is running a Kamela i.e. a
cattle house keeping some buffaloes; that they have four
boys and three daughters and the youngest one is the
prosecutrix aged about six years; that accused Mohd.
JAffar @ Chotu was employed by her husband for about
two years and the accused had been acquainted with all
the members of the family; that on 13th May, 2008
sometimes in the afternoon she had gone to offer bananas
to monkeys in the nearby park; that at about 6.00 pm her
daughter i.e. prosecutrix went to the bathroom located on
the roof of the house and she experienced some pain
while passing urine; that on being asked she disclosed
that Mohd. Jaffar @ Chotu had committed some Galat
Kaam with her; that she physically inspected the private
part of her daughter and suspected something fishy; that
accused Mohd. Jaffar @ Chotu was missing from the
house; that she took her daughter to Kalawati Hospital
where the Doctor on duty advised her to take the girl to
Gynaecology Department but since it was late at night
they came back. She further stated that later during the
day time they were looking for accused Mohd. JAffar @
Chotu who was sighted near Sadar Thana Road and she
raised an alarm and with the help of the people the
accused Mohd. Jaffar @ Chotu was apprehended.’

3. During investigation, the child victim as well as the
appellant/convict were sent for medical examination. The
appellant/convict refused to give the sample of his semen. The MLC
Ex.PW16/A of the child victim, which was prepared on 14 th May,
2008 at 5.05 pm records the alleged history of sexual assault 24 hours
back. Her medical examination revealed that :

‘No external injury mark.

CRL.A. No.63/2011 Page 2 of 5

Vulva – reddened
hymen – ragged (her mother has applied some ointment onvulva
for pain’

4. During her examination, PW3 ‘T’ – the child victim has stated
that she was a student of 2nd Standard and on 13th day of the month a
year ago when she had gone to the bathroom on the first floor to ease
herself she was called by the appellant who was employee of his
father. The appellant took her in a room near the toilet and bolted the
room from inside and thereafter he made her to lie down on the
mattress and he also laid down on her after taking out his clothes. She
also stated that the appellant took out his penis and tried to enter his
penis (while pointing out towards her vagina) due to which she
sustained injuries and had pain while passing urine. She informed her
parents. She was taken to the hospital. Her parents also searched for
the appellant who was caught by them.

5. PW-5 Suraj – the brother of the child victim had stated that the
appellant used to take care of their buffaloes and also have his meals
at their house and sleep on the first floor every day. He had stated that
his sister ‘T’ (PW-3) informed their mother in his presence about the
wrong act committed by the appellant.

6. PW-1 Smt.Sunita and PW-2 Sh.Rishi Pal – parents of the child
victim had fully supported the prosecution case.

7. In the instant case, the identity of the appellant is not in dispute
as he was employee of the father of the child victim and used to have
his meals at their house and sleep in a room near the toilet on the first
floor in their house. The testimony of the child victim about she being

CRL.A. No.63/2011 Page 3 of 5
sexually assaulted has been proved from the MLC Ex.PW16/C. Mere
delay of 24 hours in reporting the matter is not fatal to the case of the
prosecution as has been rightly observed by the learned Trial Court
that the parents of the child victim were in a state of confusion about
the future course of action by them.

8. The only defence taken by the appellant is that his salary for
about six months amounting to ₹36,000/- was payable by father of the
child victim and when he demanded the same, he has been falsely
implicated in this case, which has been rightly rejected by the learned
Trial Court. A person would not work without salary for a long period
of six months and secondly for such a petty amount, the parents of the
child victim had no reason to involve their daughter of tender age who
was just studying in 2nd Standard at that time.

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

CRL.A. No.63/2011 Page 4 of 5
prosecutrix should not be a ground for throwing out an otherwise
reliable prosecution case.

10. From the evidence coming on record, it is established that
PW-3, ‘T’ was subjected to rape by the appellant. The medical
evidence corroborated the testimony of the prosecutrix to the extent
that her hymen was found ragged.

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

12. The impugned judgment which has been passed on appreciation
of oral evidence duly corroborated by medical evidence, does not
suffer from any illegality. The appeal has no merit and the same is
hereby dismissed.

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

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

NOVEMBER 20, 2017

CRL.A. No.63/2011 Page 5 of 5

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