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Raghav vs State on 24 May, 2018

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 24th February, 2018
Pronounced on: 24th May, 2018

+ CRL.A. 627/2014
RAGHAV ….. Appellant
Through: Mr. Abhishek Singh, Adv.
versus
STATE ….. Respondent
Through: Ms. Asha Tiwari, APP
CORAM:
HON’BLE MR. JUSTICE S.P.GARG
HON’BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT

C. HARI SHANKAR, J.

1. This appeal, at the instance of the appellant Raghav, assails (i)
judgment, dated 3rd March, 2014, passed by the learned Additional
Sessions Judge (hereinafter referred to as ―the learned ASJ‖) whereby
the appellant was convicted for having committed offences under
clauses (l) and (m) of Section 5 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as ―the POCSO
Act‖) and Section 506 of the Indian Penal Code, 1860 (hereinafter
referred to as ―the IPC‖), as well as (ii) the subsequent order, dated 4th
March, 2014, sentencing the appellant to (a) imprisonment for life,
along with a fine of Rs.10,000/-, with default simple imprisonment for
six months, under Section 6 of the POCSO Act and (b) rigorous
imprisonment for three years alongwith a fine of Rs.5,000/- with
CRL.A. 627/2014 Page 1 of 66
default simple imprisonment of one month under Section 506 of the
IPC. The benefit of Section 428 of the Code of Criminal Procedure
(hereafter referred to as ―the Cr.P.C.‖) was also extended to the
appellant. The sentences have been directed to run concurrently.

2. The facts of the case, insofar as they are relevant, may be set out
as under:

(i) On 14th July, 2013, a complaint (Ex. PW-6/A) was filed
by Gauri Shankar (PW-6), in the Begum Pur Police Station. The
complainant alleged that the appellant, who was the brother-in-
law of the complainant Gauri Shankar and was residing with
him since three years, had been subjecting Gauri Shankar’s
daughter (who, for reasons of anonymity as mandated by law,
shall be referred to, hereinafter as ‗M’) to unwelcome sexual
advances, threatening her that, in case, she reported these
incidents to anyone, he would disfigure her face by throwing
acid on her. It was further alleged, in the complaint, that the
appellant had sexually assaulted ‗M’, by taking advantage of the
fact that she was in fear as a result of the threats held out by
him. The complaint further averred that the appellant had also
threatened the complainant Gauri Shankar and his wife Seema
(PW-3) that, if they did not surrender their daughter to him (the
words used in the complaint are ‗tum ladki ka haath mere haath
mein do’, which would convey the impression that the appellant
desired to marry ‗M’), he would disfigure her face by throwing
acid on her. It was further alleged that the appellant always

CRL.A. 627/2014 Page 2 of 66
carried a dagger with him, showing which he used to accost the
complainant’s children, threatening them that, if ever Gauri
Shankar came out, the appellant would stab him to death. It was
further alleged, in the complaint that, owing to the threats held
out by the appellant, the proposed marriage, of ‗M’, had also
broken. In these circumstances, the complainant requested that
requisite action be taken against the appellant.

(ii) On the complaint being forwarded to SI Manju Singh
(PW-11), she, along with Const. Azad (PW-8), proceeded to H.
No. B-26, Rajeev Nagar, Begum Pur, the residence of the
complainant Gauri Shankar (PW-6), where they met ‗M’ and
her parents. SI Manju Singh recorded the statement of ‗M’,
and, thereafter, proceeded, with ‗M’, her father and Const. Azad
to the Sanjay Gandhi Memorial Hospital (hereinafter referred to
as ‗the Hospital’) where the medical examination of ‗M’ was
conducted. The MLC (Ex.PW-4/B) of ‗M’, as recorded by Dr.
Manisha Gupta (PW-9) reads thus:

―Pt brought to casualty with A/H/O sexual assault by
her maternal uncle (Mama) named Raghav for ~ 2
years.

O/E – conscious, oriented

PR – 76/min BP – 116/80 mm Hg

Chest, CVS, CNS – NAD

P/A soft BS (+)

L/E – No external injury visible at the time of
Examination

CRL.A. 627/2014 Page 3 of 66
Adv Referred to S/R Gynae for detailed history,
Examination, opinion

Brief description of the incident

Pt (‗M’) 17 y/F R/o Rajeev Nagar, brought by SI
Manju. She complained for sexual relation by maternal
uncle (mama) named Raghav for past 2 year. Now he
is daily blackmail to her. According to Pt these sexual
relations are not giving consent – one month no sexual
relation with mama

M/H – LMP 5/07/13
Pr MP a day/1 month/RMPF

O/H – UNM

P/A – soft

L/E – Hymen of Pt torned

P/V – Ut (N) size, R/V, fx 3

UPT -ve‖

Dr. Manisha Gupta proved the above MLC (Ex. PW-4/B),
during trial, reiterating, in her examination-in-chief on 20th
January, 2014, that ‗M’ had told her that her sexual
relationship, with the appellant, which had been continuing
since two years, was not with her consent, and that, on
examination, the hymen of ‗M’ was found torn. She confirmed,
during cross examination, however, that ‗M’ was not found to
be having any injury on her private parts, or on any other part
of her body.

(iii) On the basis of the statement of ‗M’, rukka (PW-2/A)
was prepared by SI Manju Singh, on the basis whereof FIR No.
CRL.A. 627/2014 Page 4 of 66
224/2013 (PW-2/B) was registered in the Police Station Begum
Pur by HC Kalyan (PW-2) under Sections 376/506 of the IPC
and Section 6 of the POCSO Act.

(iv) Consequent to registration of the FIR, SI Manju Singh
proceeded with Const. Azad (PW-8), ‗M’ and her father Gauri
Shankar (PW-6), to H.No.C-26, Begum Pur, where the
appellant was residing as a tenant. The appellant, who was
found in the said premises, was apprehended and arrested vide
Arrest Memo (Ex. PW-4/C) and his personal search was
conducted vide Personal Search Memo (Ex. PW-4/D). The
appellant’s disclosure statement (Ex. PW-8/A) was recorded,
whereafter the appellant led them to H. No.93, Begum Pur,
where he allegedly pointed out the room where he used to
commit rape upon ‗M’, as recorded by Pointing Out Memo Ex.
PW-8/B.

(v) Thereafter, Const. Azad (PW-8) and SI Manju Singh
(PW-11) proceeded with the appellant to the Hospital, where he
was medically examined, vide MLC (Ex. PW-10/A), which
reads thus:

―Brought for medical examination with A/H/O sexual
assault with his niece for ~past 2 years

– O/E conscious, oriented
PR – 76/min
BP – 116/80 mm hg
Chest, CVS, CNS – NAD
P/A soft BS (+)

CRL.A. 627/2014 Page 5 of 66
L/E – no external injury visible at the time of
examination

– Penis, testis and scrotum well-developed

– Secondary sexual characters well-developed

– No injury to external genitalia

There is nothing to suggest that this person cannot
perform the act of sexual intercourse.‖

The above MLC of the appellant (Ex. PW-10/A) was proved,
by Dr. Brijesh Singh (PW-10), who had prepared the said MLC,
during trial. Dr. Brijesh Singh, who had also conducted the
preliminary examination of ‗M’ when she was brought to the
Hospital, affirmed, in cross-examination, that no struggle mark
was found by him, at the time of examination, either on the
appellant or on ‗M’.

(vi) On 15th July, 2013, the appellant and ‗M’ were produced
before the Court of Ms. Vandana, learned MM. (PW-5), who
remanded the appellant to judicial custody and proceeded to
record the statement of ‗M’ under Section 164 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ―the
Cr.P.C.‖). The said statement may be translated into English as
under:-

“Statement of ‗M’
Statement of Ms. ‗M’ d/o Shri Gauri Shankar , R/o- B-
64 Rajiv Nagar, Begumpur, Delhi.

Aged about- 17 years

On SA

CRL.A. 627/2014 Page 6 of 66
My name is ‗M’. I have studied upto Class V. I reside at
the above-mentioned address with my family. My
maternal uncle Raghav has been living with us in our
house for approximately the last three years. My
maternal uncle often used to sexually harass me. One
day when there was nobody at home, my uncle on some
pretext took me to his room. He tied my hands and
mouth and forcefully committed wrong acts (galat
kaam) with me. I was weeping a lot. When I said I will
tell my mother everything, he threatened to throw acid
on me and defame me. I got scared. Since that day,
whenever I was alone at home, my uncle did wrong acts
(galat kaam) with me. Two to three months before, I
mustered courage and told my mother everything. My
mother turned my uncle out of the house.‖

(vii) Thereafter, SI Manju Singh visited the ―Nigam Prathamic
Pratibha Vidyalaya‖ at Begum Pur (where ‗M’ was studying),,
where the Principal Karan Singh (PW-1) provided her a
certificate (Ex. PW-1/D) which, translated into English, read as
under:

― Dated: 23/07/2013

This is to certify that ‗M’ daughter of Shri Gauri
Shankar took admission, in Class-I on 15/07/2002.
According to the School Records, her admission
number is 5928, residential address is B-72, Naveen
Vihar, Begumpur and her date of birth is 10.12.1996
(10th December, 1996).

Sd/-

Principal Nigam
Pratibha Balika
Vidyalaya
Begumpur, Delhi-110086
9811688056‖

CRL.A. 627/2014 Page 7 of 66

(viii) After recording of statements under Section 161 of the
Cr.P.C, and consequent on completion of the investigation,
charge sheet, under Section 173 of the Cr.P.C., was filed by SI
Manju Singh (PW-11) before the learned MM. Charges were
framed, against the appellant, under Sections 376/506 IPC and
clauses (l) and (n) of Section 5 of the POCSO Act. The
appellant pleaded not guilty, whereupon the case was sent to
trial.

3. Eleven witnesses were examined by the prosecution in its
support. These statements, to the extent they are relevant, may be
noted as under:

(i) Karan Singh, the Principal of Nigam Prathamic Pratibha
Vidyalaya, Begampur, deposing as PW-1, stated that, as per the
school record, the date of birth of ‗M’ was 10th December,
1996. However, he also admitted that no record, of such date of
birth, was produced before the school and that the said date of
birth was entered, by the school, in its records, on the basis of
an affidavit (Ex. PW-1/B) submitted by Gauri Shankar (PW-6).
He also admitted that the said affidavit (PW-1/B) was not
attested by any Magistrate. We may note, here, that the said
affidavit, submitted by Gauri Shankar at the time of securing
admission of ‗M’, merely states that the ―true and correct date
of birth‖ of ‗M’ was 10th December, 1996, supported by the
usual verification.

CRL.A. 627/2014 Page 8 of 66

(ii) PW-2 HC Kalyan who was posted in PS Begum Pur, at
the relevant time, merely deposed regarding registration of FIR
No 224/2013 under Sections 376/506 IPC and Section 6 of the
POCSO Act, by him, on 14th July, 2013, on the basis of the
rukka presented to him by SI Manju Singh (PW-11).

(iii) PW-3 Seema, the mother of ‗M’ deposed on 13th January,
2014, and, thereafter, on 20th January, 2014. Given the
importance of her deposition, it is essential to reproduce the
same, in extenso, thus:

On 13th January, 2014

―On S.A.

I am a housewife and residing at the above-
mentioned address with my husband and 5 children.
Prosecutrix is my 1st born child. I was suffering from
piles during the period of incident and due to set
reason, I used to visit hospital regularly. 6 – 7 months
prior from today, my daughter came to me and started
weeping. I asked about the reason of her weeping then
after great persuasion she told me that her maternal
uncle Raghav had committed wrong act with her when
nobody was present in the house. After hearing this, I
got stunned and told about this incident to my
husband. My husband called my brother and asked him
about the incident to which accused told that the
prosecutrix voluntarily used to come in his room. My
husband turned my brother out from the house. My
daughter used to go out from the house to fetch water
from the public And on the way accused Raghav met
her and threatened her to throw acid on her face or he
would stab her in case she will disclose anything more
about the incident to anyone. My daughter told us
about this threatening and on hearing the same, my
husband went to PS and lodged a complaint against the
accused. In my presence, lady police officer Manju
recorded statement of my daughter. My daughter was
CRL.A. 627/2014 Page 9 of 66
taken to hospital for medical examination. Since I was
not feeling well, I did not accompany her to hospital.
My husband had gone along with my daughter to the
hospital. Thereafter, police went to the room of my
brother and from there and arrested him. The accused
Raghav is present in court (witness has correctly
identified the accused). Police made enquiries from me
and recorded my statement also.

XXXXXX By Ms Sunita Tiwari, amicus curiae for
the accused.

I do not remember the date of recording of my
statement by the police as I am illiterate. I do not know
the date of my marriage. My elder daughter i.e.
prosecutrix is presently 18 years old and she was born
one year after my marriage. I cannot say how many
years prior to today I got married with my husband.
Vol. My husband would know about it. Again said, I
was married about 19 years ago. I also cannot tell the
date of birth of my daughter i.e. prosecutrix. My
youngest child is aged about 8 years. I cannot tell date,
month and year of birth of any of my child. My
daughter was born at my parents house at Village
Roshanabad, District Farukhabad, UP. The date of
birth of prosecutrix was not registered with the
Pradhan of village or any other authority. I came along
with my husband in Delhi after 2/3 months of the birth
of the prosecutrix. No birth certificate of prosecutrix
was got prepared by me or my husband after coming to
Delhi. No birth certificate of any child was got
prepared. However, all my children had to the school.
I’m residing with my family in a rented house. 4/5
tenants are residing on the ground floor and 4/5 tenants
are residing on 1st floor in the same house, where I’m
residing as tenant. My landlord is not residing in the
same house. He is residing at some distance from our
house. I’m residing in the ground floor. There are other
families residing on the same floor, where I’m
residing. 2 unmarried boys were also residing on the
same floor in the kitchen. Vol. They leave in the
morning and come back in the night. The main gate of
the building remains open the entire day. I and other
tenants close door of our respective tenanted premises.

CRL.A. 627/2014 Page 10 of 66

It is correct that all the tenants rooms on the floor on
which, I am having my tenanted premises had their
separate walls. Generally, the door of the rooms of the
tenants remain open during the day time, as children
come and go. There is only one water And motor for
all the residents of the building. The water on the 1st
floor is filled by connecting a water pipe to the main
water tap on the ground floor. The tenants connect
their own respective pipes and electricity connection to
the tap and the water motor to fill the water. I also feel
water by doing so.

Accused was residing with me in my tenanted
premises prior to the incident. After I came to know
about the incident, I turned him out of my house and
thereafter he took a separate premises on rent in some
other building in the same locality. Matter was
reported to the police on the day my daughter informed
me about the same. I had told the police that I had been
told about the incident by my daughter on that day
itself.

I had not met the I/O of the case today when I
came to the Court. My husband had contacted the I/O
before coming to Court today and the I/O told him that
we should reach the Court and that she would also
reach here. I was not told by the I/O about the
statement which I was to make in the Court, on
reaching the Court in the morning.

It is wrong to suggest that no such incident took
place as stated by me in my examination in chief. It is
wrong to suggest that my husband and accused were
doing the work of selling plastic chairs or that there
were certain money disputes between them due to
which accused has been falsely implicated in the
present case. It is wrong to suggest that I’m deposing
falsely.‖

On 20th January, 2014

On S.A.

CRL.A. 627/2014 Page 11 of 66

― I have seen EX-PX. This sketch was handed
over to me by my son Bimal, who told me that he had
found the same in the room of the accused. I can
identify the handwriting of accused, who is my real
younger brother. After seeing EX-PX, I can state that
the statements written thereupon in in the end the name
―Raghav‖ written in English are in the handwriting of
accused.

xxxxxx By Ms Sunita Tiwari, learned amicus curiae
for accused

― I am illiterate. When I got married the accused
was aged about four years. Accused was residing with
my family and thereafter in a separate rented
accommodation in the same building where I and my
family are residing since 3 years prior to registration of
the FIR in the present case.

Court question:-

Q You have stated that you are illiterate then
how have you identified handwriting of accused on
EX-PX?

Ans I have seen him writing and can identify his
handwriting.

Q Can you identify handwriting of your
husband, daughter, son etc., if shown to you?

Ans No.

Q Since you are unable to identify handwriting

of your other family members like a son, daughter,
hospitals etc. can you explain how you can identify
handwriting of your brother/accused?

Ans I have seen him writing as he used to give
lessons to my children.

When accused used to teach my children, they also
made notes in their copies. It is correct that I cannot
identify handwriting of my children. EX-PX was given
CRL.A. 627/2014 Page 12 of 66
to me by my son prior to registration of the present
case. I handed over EX -PX to my husband on the
same day when my son gave it to me. My husband
handed over EX -PX to the police, 2/3 days thereafter.
Police did not record statement of my son, who had
found EX -PX. I never told the police about EX -PX.

The contents of EX -PX were read over to me by my
son. It is wrong to suggest that EX -PX was never
recovered from the room of the accused or that it is
neither in the handwriting of accused nor was the
sketch on it was prepared by him. It is wrong to suggest
that I being illiterate am unable to identify handwriting
and signature of anyone and that is why I am unable to
identify handwriting of my husband, daughter etc. It is
wrong to suggest that for this reason I am also unable
to identify the handwriting on EX -PX.‖

Ex. P-X, it may be mentioned, was a crude sketch of a face,
with the lower two thirds blackened, and the following words
written, on the page, in vernacular:

―Tera chehra bhayanak.” (―Your horrible face.‖)

“Tezaab daalkar bhayanak chehra bana doonga dekh
lena” (―I will pour acid and make your face horrible,
watch out.‖)

“Maarna hota kab ka maar diya hota. Dhokhebaaz ki
saza hai” (―If I wanted to kill you I would have done
so much earlier. The punishment of the traitor is‖)

The page contains certain other words, too, in vernacular, which
are incomprehensible.

(iv) ‗M’ herself deposed as PW-4. Her evidence, during trial,
recorded on 13th January, 2014, reads thus:

―On SA
I am residing on the abovementioned
address with my family including my parents and four
CRL.A. 627/2014 Page 13 of 66
brothers. I studied upto 5th class. Accused Raghav,
present in the Court today (witness has correctly
identified the accused through the design in the
wooden partition), is my real maternal uncle and he
had been residing with us for the last three years from
the date of filing of the complaint. Two years prior, he
started teasing me by pressing my neck, by pulling my
hair and thereafter he went to the extent of holding my
hand and pressing my breast. Out of fear, I could not
tell about this to anyone in the family and moreover he
used to threaten me to kill me by stabbing and by
throwing acid to disfigure my face in case I told about
his acts to anyone.

Last year during winter days, I do not remember
the exact date and month, I was alone in the house.
Accused called me to his room in our house.

Court Ques. Was the accused residing with you and
your family at that time?

Ans. Yes but he was staying in a separate
room on the same floor in the same building.

Accused bolted the room from inside. He
removed my salwar. I tried to raise alarm but accused
shut my moth by putting his hand. He also removed his
pant and ―usne zabardasti mere sath galat harkat kari.
Usne apni susu ki jagah meri susu ki jagah me dal di.‖

At that time my mother had gone to hospital to
bring medicine. Accused did such wrong act with me
many times whenever he found me alone in the house.
Out of fear I did not disclose about his acts to anyone.

One day when my mother came back from
hospital, I was weeping at that time. My mother asked
me about the reason and thereafter I told her
everything. My mother narrated all the incident to my
father, who went to PS and lodged a complaint. Police
came to my house and recorded my statement. My
statement is Ex. PW-4/A and bears my signatures at
point ―A‖. Thereafter I was taken to hospital for my
medical examination by the police. My father also
CRL.A. 627/2014 Page 14 of 66
accompanied me. At that time my mother was not well
and she did not come with me. Initially I refused for
my internal examination vide my statement recorded
on the MLC by the doctor which is encircled at point
―X‖ and bears my thumb impression at point ―A‖ but
later on my internal examination was conducted by the
doctor. The MLC is now exhibited as Ex. PW-4/B.

Accused Raghav was arrested on my
identification vide his arrest memo Ex. PW-4/C which
bears my signatures at point ―A‖. His personal search
was also conducted vide personal search memo Ex.
PW-4/D which bears my signatures at point ―A‖.

Earlier also I came to the Court to give my
statement before the learned Magistrate in her
Chamber.

At this stage, the carbon copy of statement u/s
164 CrPC is shown to the witness from the judicial file
on which she identifies her signature at point ―A‖ and
admits her statement to be correct. The carbon copy of
statement u/s 164 CrPC is now exhibited as Ex. PW-
4/E.

When I told about the incident to my mother
and my father also came to know about the same, the
accused was turned out of the house by my father.
Thereafter the accused used to show knife to my
brothers whenever they used to go in the gali.

xxxxxx By Ms. Sunita Tiwari, amicus curie for
accused.

I do not remember the date when my statement
u/s 164 CrPC was recorded by the learned Magistrate
and I also do not remember after how many days of the
complaint my said statement was recorded. I had told
to learned Magistrate in my statement u/s 164 CrPC
that out of fear I did not tell about teasing by accused
to anyone else. Confronted with Ex. PW-4/E where it
is not so recorded ―after the incident of teasing the
witness did not disclose about the incident to anyone in
the family out of fear‖ but it is recorded in Ex. PW-
4/E. I had told to learned Magistrate in my statement
CRL.A. 627/2014 Page 15 of 66
u/s 164 CrPC that accused used to threaten me to kill
by stabbing or by throwing acid to disfigure my face.
Confronted with Ex. PW-4/E where it is not so
recorded ―just after the incident of teasing‖ but it is
recorded in Ex. PW-4/E.

Since the time I am aware, I have been residing
at abovementioned address. I am not aware if my
parents have resided at any other place when I was a
small child. Accused had teased me many times but I
cannot tell the exact date and time of the same. My
mother used to visit hospital regularly during those
days as she was not well. I am not aware if my mother
had handed over any of her medical treatment
paper/prescription slip etc. to the police. The house
where I was residing at the time of incident was
constructed upto first floor and we were residing on the
ground floor and there was a big open space in front of
the said house which was called Gher (courtyard).
There were other 5-6 tenants residing on the same floor
where we were residing. The families of other tenants
were also residing there. My mother used to leave for
the hospital at about 8.00 AM and used to return in the
evening at about 5.00-6.00 PM. She used to visit
hospital whenever doctor called her but I cannot tell
the specific dates of her said visit. My father leave
house for his work at about 8.00 AM. My brothers are
16 years, 15 years, 13 years and 8-10 years of age. I
cannot tell the exact time of the incident of teasing and
wrong acts by the accused. Vol. Whenever he used to
get opportunity, he used to do the same with me.

The room of the accused was situated in front of
my room on the same floor. Since the accused had shut
my mouth by his hand, I could not raise alarm at the
time of committing rape upon me for the first time.

I cannot read Hindi properly. I have not gone
through my statement. Vol. Police mam had read over
my statement to me in the morning when I came to the
Court. It is correct that my father and accused were
doing business of sale of plastic chairs. It is wrong to
suggest that I am deposing falsely at the instance of my

CRL.A. 627/2014 Page 16 of 66
father as there was some money transaction between
my father and the accused in the said business.‖

(v) PW-5 was Ms. Vandana, the learned MM who recorded
the statement of ‗M’ under Section 164 of the Cr.P.C. She
merely confirmed, during trial, the fact of recording of the said
statement.

(vi) The evidence of PW-6 Gauri Shankar, the father of ‗M’,
during trial, may be reproduced, in extenso, thus:

―On SA

I am working for selling of plastic chairs in the
area of Begum Pur, Sultan Puri etc. About 7-8 months
ago, I along with my wife went to market and when we
came back we found our daughter i.e the prosecutrix
aged about 17 years was weeping. My wife made
enquiry from her about the reason of her weeping. On
this the prosecutrix told to my wife that in the absence
of all family members, accused Raghav who is real
maternal uncle of prosecutrix used to tease her and had
physical relation with her. I also came to know that
accused had been doing this since last about 1 or 1 ½
years. After hearing this, I got annoyed and asked from
accused Raghav who is brother in law and has been
residing with us since last 3 years. On my asking
accused admitted that he had done wrong act (rape)
with the prosecutrix. I informed the police on the same
day. Accused threatened my daughter to throw acid on
her and also not let her to marry anywhere else. Police
came and recorded statement of my daughter i.e the
prosecutrix. Police thereafter took to my daughter to
SGM hospital along with me as my wife was not well,
where my daughter had refused for her internal
examination. From the hospital we went to the PS
where the case was registered against the accused.
From the PS, I along with my daughter and the police
officials went to H.No. C-26, Begum Vihar, where the
accused was residing as tenant. The accused was

CRL.A. 627/2014 Page 17 of 66
arrested by the police on the identification of my
daughter as well as on my identification. My daughter
had signed the arrest papers of accused. I had lodged
police complaint against the accused with SHO PS
Begum Pur on 10.07.13. At this stage, witness has
identified the photocopy of his complaint from the
judicial file and his signatures at point A. The
photocopy of the said complaint is Ex.PW6/A. My
statement was recorded by the IO. Accused Raghav is
present in the Court today. Witnesses correctly
identified the accused.

XXXXX By Ms. Sunita Tiwari, Amicus Curiae for
accused

My statement was recorded at PS on 14.07.13. I
had stated to the police in my statement that me and
my wife had gone to market or that when we came
back, we found our daughter weeping or that my wife
had asked about the reason of weeping. Confronted
with statement Ex.PW6/DA where it is not so
recorded. I had stated to the police that I informed the
police as soon as I came to know about the incident
from my wife. Confronted with statement Ex.PW6/DA
where it is not so recorded. Vol. Infact the police was
informed on the next day.

On 13.07.13 we went to market at about 7.30 or
7.45 pm and returned back at about 8.45 pm. I have
five children. The prosecutrix is my eldest child. All
my four younger children are studying in school. My
children were watching TV in other room when we
went to market. I leave for my work at about 8.30 am
and come back at about 5.00 pm. Accused Raghav was
earlier working with me. Accused used to leave home
before me and return back from his work after my
return. I have never done work of sale of plastic chairs
in partnership with the accused. Accused used to buy
his own chairs for sale. However, earlier we went
together for sale of chairs. We both used to go on
bicycle to sell chairs. Accused used to have his own
separate account of purchase and sale of chairs and had
nothing to do with me regarding his business.

CRL.A. 627/2014 Page 18 of 66

Court Q: Was there any occasion for quarrel
between you and the accused since both of you were
doing your independent business of sale of plastic
chairs but were going for it together?

Ans: Yes. Accused used to instigate the customers not
to buy chairs from me and told them that chairs I was
selling were defective and overpriced.

                  Court Q:      How many times did you have such
quarrels?

Ans: 3-4 times.

Court Q: When was the last quarrel between you

and accused and how much time prior to reporting of
the matter to the police in the present case?

Ans: It was 8-9 months prior to registration of
FIR in the present case.

It is wrong to suggest that I have tutored my daughter
to file a false case against the accused as I wanted to
settle score with him over a dispute regarding sale of
plastic chairs. Vol. Accused had drawn a sketch of my
daughter and threatened to throw acid on her face and
had written so on the said sketch and also depicted her
disfigured face in the sketch.

                  Court Q:      Do you have said sketch with you?

Ans: I have brought that sketch with me. The

same has been drawn by the accused and the threat
written on it is also in the handwriting of the accused
and he has also written his name on it.

The said sketch is taken on record exhibited as
Ex.PX.

I had not given sketch Ex.PX to the police as it
was recovered later on, after registration of the case,
from the room of the accused when my wife had gone
there. It was recovered after 3-4 days of the registration
of the case. I had given photocopy of this sketch to the
IO later on. It is wrong to suggest that no such sketch
CRL.A. 627/2014 Page 19 of 66
was recovered from the room of the accused or that
sketch Ex.PX is neither in the handwriting of the
accused nor was drawn by him. It is wrong to suggest
that due to this reason, IO had not made it part of the
charge sheet. It is wrong to suggest that no written
complaint was made by me to the police official on the
relevant date and time. It is wrong to suggest that
complaint is antedated and antetime. It is wrong to
suggest that I am deposing falsely.‖

(vii) PW-8 and PW-11 were Const. Azad and Const. Manju
Singh, respectively. They merely deposed, during trial,
regarding the receipt of the complaint from Gauri Shankar (PW-

6), the recording of the statements of ‗M', the apprehension and
arrest of the appellant, the recording of his disclosure statement,
and the fact of his having pointed out the room where he was
alleged to have committed rape on ‗M'.

(viii) Dr. Manisha Gupta, who had prepared the MLC of ‗M',
deposed as PW-9. She testified that ‗M' had told her that the
sexual relationship between ‗M' and the appellant was not with
the consent of ‗M' and confirmed that, on examination, her
hymen was found torn. However, in cross-examination, she
acknowledged that no injury was seen on any part of the body
of ‗M', including her private parts.

(ix) PW-10 was Dr. Brijesh Singh, CMO, Sanjay Gandhi
Memorial Hospital, who had conducted the preliminary
examination of ‗M' and, later, prepared the MLC of the
appellant. He confirmed, in his evidence, that no external injury

CRL.A. 627/2014 Page 20 of 66
was visible on the appellant and that there was no mark of
struggle found at the time of examination, either on the
appellant or on ‗M'. He confirmed that there was nothing to
suggest that the appellant was unable to perform sexual
intercourse.

4. Subsequent to recording of the above evidence of the
prosecution witnesses, the statement of the appellant, under Section
313 of the Cr.P.C., was recorded on 27th January, 2014. As is usual in
these cases, most of the statement was largely in the form of denial to
the allegations put to him. The appellant denied the sketch (Ex. PX)
and deposed that the words written, on the said sketch, in Hindi, were
not in his handwriting, and that he was made to write his name, in
English, on the page, by SI Manju Singh (PW-11) in the Police
Station. He deposed that his room used to remain open and that he did
not know what had been kept there during his absence. He further
stated that he did not know how to sketch. He was asked to write
words ―mera naam Raghav hai main Seema ka bhai hu‖, in Hindi on a
piece of paper, which was exhibited as Ex.PY. He denied having made
any disclosure statement, or having pointed out the room where he
was alleged to have committed rape on the appellant. He stated that
the contents of his MLC were a matter of record. In fine, he insisted
that the case against him was false and fabricated, and that he had
been wrongly implicated therein. He stated that he did not desire to
lead any defence evidence.

CRL.A. 627/2014 Page 21 of 66

The Impugned Judgement

5. Consequent to trial, after hearing rival submissions of learned
counsel, the learned ASJ has, vide the impugned judgement, dated 3rd
March, 2014, convicted the appellant for commission of the offences
contemplated by clauses (l) and (m) of the Section 5 of the POSCO
Act, as well as Section 506 of the IPC. In so holding, the learned ASJ
reasons thus:

(i) Rule 12 of the Juvenile Justice (Care and Protection of
Child) Rules, 2007, (hereinafter referred to as ―the JJ Rules‖)
which were held, by the Supreme Court, to apply in the matter
of determination of the age of child in Jarnail Singh vs State of
Haryana, (2013) 7 SCC 363, permitted the Court to treat the
admission register of the school where the prosecutrix was first
admitted as a evidence of her date of birth, as it could not be
presumed that the parents would wrongly enter the date of birth
in the said certificates. On the basis of the school certificate
provided by the prosecution which was admissible in evidence
under Section 32 of the Indian Evidence Act, 1872 (hereinafter
referred to as ―the Evidence Act‖) the date of birth of ‗M' was
established as 10th December, 1996.

(ii) The statements of ‗M', under Section 164 of the Cr.P.C,
and during trial, were consistent, regarding the narration of the
facts of sexual harassment and sexual assault, penetrative as
well as otherwise, committed on her, and were also
corroborated by her MLC (Ex. PW-4/B), which found her

CRL.A. 627/2014 Page 22 of 66
hymen to have been ruptured. The testimony of ‗M' was also
corroborated by that of her parents Seema (PW-3) and Gauri
Shankar (PW-6).

(iii) Ex. PX also served to implicate the appellant. Seema
(PW-3) had deposed, during trial, that the said sketch had been
handed over, to her, by her son Bimal, who claimed to have
found it in the room of the appellant. He identified the
handwriting and the sketch to belong to the appellant. The
learned ASJ also compared, herself, the handwriting of the
appellant, as reflected in the word ―mera naam Raghav hai mai
Seema ka bhai hu‖ which he was made to write during the
course of trial, with the writing contained in Ex. PX, and arrived
at an opinion that the said handwritings were apparently
identical. It was further observed that the appellant was left
handed, and that the threats were written on the left side of the
paper, and the disfiguration of the face of the girl shown on the
paper was also from left to right. All these facts, put together, in
the view of the learned ASJ, served to prove that the sketch, and
the writing thereon, were made by the appellant.

(iv) The defence, of the appellant, that he had been falsely
implicated in the case, as there were business disputes between
Gauri Shankar and himself, was not proved by giving any
specific incidents or leading any evidence in this regard. The
said defence was liable, therefore, to be rejected.

CRL.A. 627/2014 Page 23 of 66

(v) The delay in lodging of the FIR was, it was held, not to
be fatal to the case of the prosecution in a case such as this.

(vi) As regards the further submissions, made before her, to
the effect that there were other discrepancies in the evidence,
the learned ASJ held that the said discrepancies, if any, could
not assist the defence as the prosecution could sustain even on
the sole testimony of the ‗M'. Reliance was placed, for this
purpose, on State of Punjab vs Gurmeet Singh, AIR 1996 SC
1393.

(vii) The absence of injuries on the person of ‗M' was held to
be insufficient to indicate consent on her part, to the acts, if any,
committed by the appellant. Reliance was placed, for this
purpose, on Tek Bahadur vs State (Govt. of NCT of Delhi),
2013 AD (Crl) DHC 190. Even otherwise, in view of the fact
that, at the time of commencement of commission of the said
acts, ‗M' was only 14 years of age, (this observation does not
appear to be correct) this submission, it was opined, was
immaterial.

6. Having, on the basis of the above mentioned reasoning,
convicted the appellant under Section 506 of the IPC and Section 6 of
the POCSO Act, the learned ASJ, in her subsequent order dated 4 th
March, 2014, held that, in view of the fact that the appellant was found
to have been sexually assaulting his niece, thereby compelling her to
live in a state of fear, the protector, who had become the violator,
stood ipso facto disentitled to any leniency or sympathy in the matter
of sentence. Accordingly, the appellant was directed to suffer
CRL.A. 627/2014 Page 24 of 66
imprisonment for life, for the offence under Section 6 of the POCSO
Act, along with other sentences as already set out in para 1 (supra).

7. Following Bodhisattwa Gautam v. Subhra Chakraborty, AIR
1996 SC 922 and Laxmi Kant Pandey v. Union of India (1984) 2
SCC 244, the learned ASJ further directed the State to grant
compensation of Rs. 1 lakh to ‗M'.

8. The appellant is in appeal before us.

Submissions before this Court

9. We have heard Mr. Abhishek Singh, learned counsel for the
appellant and Ms. Asha Tiwari, learned APP for the State.

10. Written statements were also filed by the appellant, consequent
to oral hearing.

11. The appellant also preferred Crl.M.A. 2645/2018 seeking to
place additional documents on record, which was, dismissed by us,
vide order dated 24th February, 2018, vide which judgement was also
reserved in the present matter.

12. Mr. Abhishek Singh, learned Counsel appearing for the
appellant, contends, before us, as under:

CRL.A. 627/2014 Page 25 of 66

(i) The entire allegation against his client was fabricated,
arising out of the business rivalry between Gauri Shankar
(PW-6) and his client, in which ‗M' was used as a pawn.

(ii) ‗M' got married in 2014, which indicates that she had
attained majority by that year. This fact went unnoticed
by the learned ASJ.

(iii) There was no basis for the presumption that ‗M' was less
than 18 years of age. No official record, regarding her
date of birth, was forthcoming.

(iv) All that was available was one handwritten certificate of
the Principal and affidavits of Seema and Gauri Shankar
(PW-3 and PW-6). The evidence of PW-3 Seema in cross
examination also demolished the case, of the prosecution,
that ‗M' was less than 18 years of age.

(v) As the age of ‗M' was rendered doubtful, her consent
became material, and the appellant was, therefore,
entitled to the benefit of doubt, as the evidence indicated
consent, on the part of ‗M', to the overtures of the
appellant.

(vi) There was discrepancy regarding the place where the
offence was committed. In the site plan prepared by PW-
11 SI Manju Singh, the place of incident was denoted as
H.No. 93, Begumpur, whereas, in other documents H.No.
B-64, Begumpur was mentioned as house of ‗M' where
the acts were supposed to have been committed.

(vii) The deposition of Seema (PW-3) was contradictory in
terms, as, at one point, she alleged that the appellant used

CRL.A. 627/2014 Page 26 of 66
to threaten ‗M' when she went out to fetch water
whereas, at another, she deposed that she used to fill
water from the water motor on the ground floor.

(viii) Similar contradiction was apparent in the testimony of
Gauri Shankar (PW-6) as well, as, in his examination-in-
chief, he stated that the Police was informed about the
offence on the very day on which ‗M' reiterated the
events to her parents whereas, in cross-examination, he
stated that the Police was informed on the next day.

(ix) It was admitted, by PW-1 (Karan Singh) that the
affidavit, submitted by Gauri Shankar (PW-6), at the time
of securing admission of ‗M' in school, was not attested
by any Magistrate.

(x) There were contradictions in the testimony of the
prosecutrix ‗M' as well, especially with regard to her
recollection of her earlier statement, under Section 164
Cr.P.C.

(xi) The deposition of Gauri Shankar (PW-6) revealed that
there was rivalry between him and the appellant.

(xii) The learned ASJ had erred in presuming that ‗M' was 17
years of age. This was contrary to the deposition of
Seema (PW-3), to the effect that her marriage had taken
place 19 years earlier, and the prosecutrix had been born
one year after marriage. This indicated that the
prosecutrix was at least 18 years of age at the time of
registration of FIR.

CRL.A. 627/2014 Page 27 of 66

(xiii) The manner in which the age of ‗M', in the present case,
had been determined by the learned ASJ was not in
accordance with the guidelines contained in the
judgement of the Supreme Court in Jarnail Singh
(supra).

(xiv) The mere fact that the hymen of ‗M' was found, on
medical examination, to be torn, was not conclusive
evidence of rape having been committed on her. It was
equally possible that the prosecutrix ‗M' was habituated
to sexual relations, especially in the light of the fact that
she was unwilling to subject herself to medical
examination.

(xv) The sketch EX-PX had been planted in the room of the
appellant.

Analysis

13. Various issues arise, for consideration, in the present case,
which may be addressed, seriatim.

Statement of the prosecutrix ‗M'

14. That conviction, for rape, can be sustained solely on the basis of
the statement of the prosecutrix is, by now, almost axiomatic. Several
judicial pronouncements, on the issue, were digested, by the Supreme
Court in paragraphs 9 to 14 of the report in Vijay @ Chinee vs State of
Madhya Pradesh, (2010) 8 SCC 191, which may be reproduced thus:

CRL.A. 627/2014 Page 28 of 66

―Sole evidence of prosecutrix

9. In State of Maharashtra v. Chandraprakash
Kewalchand Jain,(1990) 1 SCC 550 this Court held that a
woman, who is the victim of sexual assault, is not an
accomplice to the crime but is a victim of another person's
lust and, therefore, her evidence need not be tested with the
same amount of suspicion as that of an accomplice. The
Court observed as under: (SCC p. 559, para 16)
―16. A prosecutrix of a sex offence cannot be put on
par with an accomplice. She is in fact a victim of the
crime. The Evidence Act nowhere says that her
evidence cannot be accepted unless it is corroborated
in material particulars. She is undoubtedly a
competent witness under Section 118 and her evidence
must receive the same weight as is attached to an
injured in cases of physical violence. The same degree
of care and caution must attach in the evaluation of
her evidence as in the case of an injured complainant
or witness and no more. What is necessary is that the
court must be alive to and conscious of the fact that it
is dealing with the evidence of a person who is
interested in the outcome of the charge levelled by her.
If the court keeps this in mind and feels satisfied that it
can act on the evidence of the prosecutrix, there is no
rule of law or practice incorporated in the Evidence
Act similar to Illustration (b) to Section 114 which
requires it to look for corroboration. If for some
reason the court is hesitant to place implicit reliance
on the testimony of the prosecutrix it may look for
evidence which may lend assurance to her testimony
short of corroboration required in the case of an
accomplice. The nature of evidence required to lend
assurance to the testimony of the prosecutrix must
necessarily depend on the facts and circumstances of
each case. But if a prosecutrix is an adult and of full
understanding the court is entitled to base a conviction
on her evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the circumstances
appearing on the record of the case disclose that the
prosecutrix does not have a strong motive to falsely
involve the person charged, the court should ordinarily
have no hesitation in accepting her evidence.‖

CRL.A. 627/2014 Page 29 of 66

10. In State of U.P. v. Pappu, (2005) 3 SCC 594 this
Court held that even in a case where it is shown that the girl is
a girl of easy virtue or a girl habituated to sexual intercourse,
it may not be a ground to absolve the accused from the charge
of rape. It has to be established that there was consent by her
for that particular occasion. Absence of injury on the
prosecutrix may not be a factor that leads the court to absolve
the accused. This Court further held that there can be
conviction on the sole testimony of the prosecutrix and in
case, the court is not satisfied with the version of the
prosecutrix, it can seek other evidence, direct or
circumstantial, by which it may get assurance of her
testimony. The Court held as under: (SCC p. 597, para 12)

―12. It is well settled that a prosecutrix complaining
of having been a victim of the offence of rape is not an
accomplice after the crime. There is no rule of law that
her testimony cannot be acted upon without
corroboration in material particulars. She stands at a
higher pedestal than an injured witness. In the latter
case, there is injury on the physical form, while in the
former it is both physical as well as psychological and
emotional. However, if the court of facts finds it
difficult to accept the version of the prosecutrix on its
face value, it may search for evidence, direct or
circumstantial, which would lend assurance to her
testimony. Assurance, short of corroboration as
understood in the context of an accomplice, would
do.‖

11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC
384, this Court held that in cases involving sexual
harassment, molestation, etc. the court is duty-bound to deal
with such cases with utmost sensitivity. Minor contradictions
or insignificant discrepancies in the statement of a prosecutrix
should not be a ground for throwing out an otherwise reliable
prosecution case. Evidence of the victim of sexual assault is
enough for conviction and it does not require any
corroboration unless there are compelling reasons for
seeking corroboration. The court may look for some
assurances of her statement to satisfy judicial conscience. The
statement of the prosecutrix is more reliable than that of an
injured witness as she is not an accomplice. The Court further
held that the delay in filing FIR for sexual offence may not be
CRL.A. 627/2014 Page 30 of 66
even properly explained, but if found natural, the accused
cannot be given any benefit thereof. The Court observed as
under: (SCC pp. 394-96 403, paras 8 21)

―8. ... The court overlooked the situation in which a
poor helpless minor girl had found herself in the
company of three desperate young men who were
threatening her and preventing her from raising any
alarm. Again, if the investigating officer did not
conduct the investigation properly or was negligent in
not being able to trace out the driver or the car, how
can that become a ground to discredit the testimony of
the prosecutrix? The prosecutrix had no control over
the investigating agency and the negligence of an
investigating officer could not affect the credibility of
the statement of the prosecutrix. ... The courts must,
while evaluating evidence, remain alive to the fact that
in a case of rape, no self-respecting woman would
come forward in a court just to make a humiliating
statement against her honour such as is involved in the
commission of rape on her. In cases involving sexual
molestation, supposed considerations which have no
material effect on the veracity of the prosecution case
or even discrepancies in the statement of the
prosecutrix should not, unless the discrepancies are
such which are of fatal nature, be allowed to throw out
an otherwise reliable prosecution case. ... Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult
to injury. ... 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. ...

***

21. ... The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution
case. If evidence of the prosecutrix inspires confidence,
it must be relied upon without seeking corroboration
of her statement in material particulars. If for some
reason the court finds it difficult to place implicit
reliance on her testimony, it may look for evidence
CRL.A. 627/2014 Page 31 of 66
which may lend assurance to her testimony, short of
corroboration required in the case of an accomplice.
The testimony of the prosecutrix must be appreciated
in the background of the entire case and the trial court
must be alive to its responsibility and be sensitive
while dealing with cases involving sexual
molestations."

(emphasis in original)

12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86,
this Court held that rape is not mere physical assault, rather it
often distracts (sic destroys) the whole personality of the
victim. The rapist degrades the very soul of the helpless
female and, therefore, the testimony of the prosecutrix must
be appreciated in the background of the entire case and in
such cases, non-examination even of other witnesses may not
be a serious infirmity in the prosecution case, particularly
where the witnesses had not seen the commission of the
offence.

13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622
this Court held that there is no legal compulsion to look for
any other evidence to corroborate the evidence of the
prosecutrix before recording an order of conviction. Evidence
has to be weighed and not counted. Conviction can be
recorded on the sole testimony of the prosecutrix, if her
evidence inspires confidence and there is absence of
circumstances which militate against her veracity. A similar
view has been reiterated by this Court in Wahid Khan v. State
of M.P. [(2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing
reliance on an earlier judgment in Rameshwar v. State of
Rajasthan [AIR 1952 SC 54 : 1952 Cri LJ 547] .

14. Thus, the law that emerges on the issue is to the effect
that the statement of the prosecutrix, if found to be worthy of
credence and reliable, requires no corroboration. The court
may convict the accused on the sole testimony of the
prosecutrix.‖
(Emphasis supplied)

15. Vijay @ Chinee (supra) was followed, by another 2-judge
bench of the Supreme Court (speaking through Madan B. Lokur, J.),

CRL.A. 627/2014 Page 32 of 66
in State of Haryana vs Basti Ram, (2013) 4 SCC 200. As in the
present case, the prosecutrix, in that case, who was less than 16 years
of age, alleged misbehaviour and, thereafter, rape, by her maternal
uncle, intermittently over a period of time. The High Court acquitted
the accused, finding the sole testimony of the prosecutrix to be
insufficient to indict him. The Supreme Court was critical of the
approach of the High Court, opining, thus, in paras 2 and 25 of the
report:

―2. In our opinion, the High Court committed an error of
law in not considering the evidence put forward by the
prosecutrix (who was less than 16 years when she was raped)
and ignoring the settled position in law that if the sole
testimony of the prosecutrix is credible, a conviction can be
based thereon without the need for any further corroboration.

*****

25. The law on the issue whether a conviction can be
based entirely on the statement of a rape victim has been
settled by this Court in several decisions. A detailed
discussion on this subject is to be found in Vijay v. State of
M.P., (2010) 8 SCC 191. After discussing the entire case law,
this Court concluded in para 14 of the Report as follows:
(SCC p. 198)

―14. Thus, the law that emerges on the issue is
to the effect that the statement of the prosecutrix,
if found to be worthy of credence and reliable,
requires no corroboration. The court may convict
the accused on the sole testimony of the
prosecutrix.‖

16. Profitable reference may also be made to one of the most recent
authorities on the point, State of Himachal Pradesh vs Sanjay
Kumar, (2017) 2 SCC 51. There, too, a 9 year old girl was ravaged by
her uncle. The Supreme Court took pointed note of this fact, at the
CRL.A. 627/2014 Page 33 of 66
very beginning of its reasoning in the judgement, in para 21 of the
report, thus:

―Here is a case where charge of sexual assault on a girl aged
nine years is levelled. More pertinently, this is to be seen in
the context that the respondent, who is accused of the crime,
is the uncle in relation. Entire matter has to be examined in
this perspective taking into consideration the realities of life
that prevail in Indian social milieu.‖

17. Para 31 of the report precisely sets out the legal position,
regarding the admissibility, and acceptability, of the evidence of a
victim of rape, and the advisability of seeking corroboration thereof,
before seeking to base conviction, thereon, in the following words:

―31. After thorough analysis of all relevant and attendant
factors, we are of the opinion that none of the grounds, on
which the High Court has cleared the respondent, has any
merit. By now it is well settled that the testimony of a victim
in cases of sexual offences is vital and unless there are
compelling reasons which necessitate looking for
corroboration of a statement, the courts should find no
difficulty to act on the testimony of the victim of a sexual
assault alone to convict the accused. No doubt, her testimony
has to inspire confidence. Seeking corroboration to a
statement before relying upon the same as a rule, in such
cases, would literally amount to adding insult to injury. The
deposition of the prosecutrix has, thus, to be taken as a
whole. Needless to reiterate that the victim of rape is not an
accomplice and her evidence can be acted upon without
corroboration. She stands at a higher pedestal than an injured
witness does. If the court finds it difficult to accept her
version, it may seek corroboration from some evidence which
lends assurance to her version. To insist on corroboration,
except in the rarest of rare cases, is to equate one who is a
victim of the lust of another with an accomplice to a crime
and thereby insult womanhood. It would be adding insult to
injury to tell a woman that her claim of rape will not be
believed unless it is corroborated in material particulars, as
in the case of an accomplice to a crime. Why should the
evidence of the girl or the woman who complains of rape or
CRL.A. 627/2014 Page 34 of 66
sexual molestation be viewed with the aid of spectacles fitted
with lenses tinged with doubt, disbelief or suspicion? The
plea about lack of corroboration has no substance (See
Bhupinder Sharma v. State of H.P., (2003) 8 SCC 551).
Notwithstanding this legal position, in the instant case, we
even find enough corroborative material as well, which is
discussed hereinabove.‖
(Emphasis supplied)

18. The legal position, therefore, is, quite unambiguously, that the
evidence of the prosecutrix, in a case of rape, is ordinarily to be
believed, and may form the sole basis for conviction, unless cogent
reasons, for the court to be hesitant in believing the statement at its
face value, and to seek corroboration thereof, exist.

Applicability of the POCSO Act

19. Section 3 of the POCSO Act stipulates that ―it shall come into
force on such date as the Central Government may, by notification in
the Official Gazette, appoint.‖ In exercise of the power conferred by
this provision, the POCSO Act was brought into force with effect
from 14th November, 2012, vide SO 2705 (E), dated 9th November,
2012.

20. Article 20 of the Constitution of India postulates thus:

―20. Protection in respect of conviction for offences. -

(1) No person shall be convicted of any offence
except for violation of the law in force at the time of
the commission of the act charged as an offence, nor
be subjected to a penalty greater than that which might

CRL.A. 627/2014 Page 35 of 66
have been inflicted under the law in force at the time of
the commission of the offence.

(2) No person shall be prosecuted and punished for
the same offence more than once.

(3) No person accused of any offence shall be
compelled to be a witness against himself.‖
(Emphasis supplied)

21. That a person cannot be convicted of an offence, which does not
amount to a violation of the law in force at the time of commission of
the act is, therefore, a constitutional command, mandating implicit
obedience and compliance. Clearly, therefore, no person can be
convicted, under the POCSO Act, for having committed an act which,
at the time of its commission, was not an offence under the said Act -
which would, needless to say, include acts committed prior to the
coming into force of the POCSO Act, i.e. prior to 9th November, 2012.
Retrospective application of criminal statutes is antithetical to Article
20 of the Constitution of India and is, consequently, unthinkable in
law.

22. The applicability, or otherwise, to the present case, of the
POCSO Act would, therefore, depend on whether the appellant could
be said to have committed the offence as contemplated by the said Act
on or after 9th November, 2012. If the answer to this question is in the
affirmative, the POCSO Act would apply; equally, if the answer is in
the negative, there could be no question of invoking the said Act,
howsoever reprehensible the acts of the appellant may seem.
Obnoxious as obnoxious though the offender may be, he cannot be
punished for having committed an offence created by a statute, which
CRL.A. 627/2014 Page 36 of 66
was not in existence at the time when the offence was alleged to have
been committed.

23. The offences contemplated by the POCSO Act are ―penetrative
sexual assault‖ (covered by Section 3), ―sexual assault‖ (covered by
Section 7), ―sexual harassment‖ (covered by Section 11), ―use of child
for pornographic purposes‖ (covered by Section 13) and abetment of
any of the said offences (covered by Section 16). Needless to say, the
present case cannot be concerned either with Section 13 or with
Section 16 of the POCSO Act.

24. The POCSO Act also contemplates ―aggravated penetrative
sexual assault‖ and ―aggravated sexual assault‖ as distinct offences,
under Sections 5 and 9 thereof; however, these are essentially species
of the genres-―penetrative sexual assault‖ and ―sexual assault‖,
respectively, when committed by specific categories of persons, or in
specific circumstances‖.

25. ―Penetrative sexual assault‖, ―sexual assault‖ and ―sexual
harassment‖ are defined, in Sections 3, 7 and 11 of the POCSO Act,
thus:

―3. Penetrative sexual assault. - A person is said to
commit ―penetrative sexual assault‖ if -

(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or

(b) he inserts, to any extent, any object or part of
the body, not being the penis, into the vagina, the
urethra or anus of the child or makes the child to do so
with him or any other person; or

CRL.A. 627/2014 Page 37 of 66

(c) he manipulates any part of the body of the child
so as to cause penetration into the vagina, urethra, anus
or any part of body of the child or makes the child to
do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to such
person or any other person.

7. Sexual Assault. - Whoever, with sexual intent touches
the vagina, penis, anus or breast of the child or makes the
child touch the vagina, penis, anus or breast of such person or
any other person, or does any other act with sexual intent
which involves physical contact without penetration is said to
commit sexual assault.

11. Sexual harassment. - A person is said to commit
sexual harassment upon a child when such person with sexual
intent, -

(i) utters any word or makes any sound, or makes
any gesture or exhibits any object or part of body with
the intention that such word or sound shall be heard, or
such gesture or object part of body shall be seen by the
child; or

(ii) makes a child expose his body or any part of his
body so as it is seen by such person or any other
person; or

(iii) shows any object to a child in any form of
media for pornographic purposes; or

(iv) repeatedly or constantly follows or watches or
contacts a child either directly or through electronic,
digital or any other means; or

(v) threatens to use, in any form of media, a real or
fabricated depiction through electronic, film or digital
or any other mode, of any part of the body of the child
or the involvement of the child in a sexual act; or

(vi) entices a child for pornographic purposes or
gives a gratification therefore.

Explanation. - Any question which involves ―sexual intent‖
shall be a question of fact.‖

CRL.A. 627/2014 Page 38 of 66

26. It is also necessary to reproduce Section 29 of the POCSO Act,
which gives the Act its ―teeth‖. The provision, the likes of which is
not to be found in any other statute, reads as under:

―29. Presumption as to certain offences. - Where a
person is prosecuted for committing or abetting or attempting
to commit any offence under sections 3, 5, 7 and 9 of this
Act, the Special Court shall presume, that such person has
committed or abetted or attempted to commit the offence, as
the case may be, unless the contrary is proved.‖

Section 29, plainly read, effectively stands the classical notion of
―burden of proof‖ on its head. Given the rigour, and the reach, of the
provision, it is immediately apparent that no person can be sought to
be brought within the ambit of this Act, unless, clearly and
unambiguously, he falls within it.

27. Inasmuch as the prosecutrix ‗M' has clearly alleged sexual
overtures, towards her, by the appellant, including inappropriate
touching of her breast, etc., culminating in rape, stated to have been
repeatedly committed, there can be no manner of doubt that the
offences, as alleged, definitively attract the provisions of the POCSO
Act, subject, however, to the caveat that the POCSO Act applies, in
the first place, to the appellant, and the acts alleged to have been
committed by him. This, given the rigour of Article 20(1) of the
Constitution of India, would, in turn, depend essentially on whether
the appellant was alleged to have committed the said acts on or after
9th November, 2012, or before the said date.

28. It is apparent, from a bare glance at the facts of the case, and the
evidence available on record, that there is woefully little, on the basis
CRL.A. 627/2014 Page 39 of 66
of which a definitive assessment of the date when the appellant is
alleged to have inappropriately touched, or handled, the prosecutrix
‗M', or to have committed penetrative sexual assault on her, could be
made.

29. The only clue, to the time at or during which the appellant is
alleged to have sexually assaulted ‗M', is to be found in the
deposition, under Section 164 of the Cr.P.C. and thereafter, during
trial, of ‗M' herself. In her statement under Section 164 of the Cr.P.C.,
recorded on 15th July, 2013, ‗M' merely alleged that (i) the appellant
―used to sexually harass‖ her, (ii) ―one day‖, when there was nobody
at home, the appellant, after tying her hands and mouth, committed
"galat kaam‖ with her and (iii) since that day, whenever she was
alone at home, the appellant did ―galat kaam‖ with her till, two to
three months prior to the recording of the statement, she told her
mother everything. In her evidence during trial, on 13th January, 2014,
‗M' testified that (i) the appellant started teasing her, pulling her neck
and inappropriately touching her, ―two years prior‖ to that date, (ii)
the act of rape was committed, by the appellant, on her, ―last year
during winter days‖, and (iii) the appellant did the said act, with her,
―many times whenever he found her alone in the house‖. Seema (PW-

3), the mother of the prosecutrix, in her deposition during trial on 13 th
January, 2014, stated that the appellant had, six to seven months prior
to that date, come to her, weeping, and recited the wrongdoings
committed, with her, by the appellant. Besides these, there is no basis
for us to be able to glean the period during which the appellant,
allegedly, sexually abused ‗M'. The MLC of ‗M', needless to say, was

CRL.A. 627/2014 Page 40 of 66
unable to opine that she had been subjected to sexual abuse during any
particular period or periods in the past, confining itself to stating that
her hymen was found to be torn.

30. We are of the clear opinion that, from such vague and
indeterminate statements, it would be unjust to return any definitive
judicial finding to the effect, that the appellant had committed
offences, covered by the POCSO Act, on the prosecutrix ‗M', on or
after 9th November, 2012. The prosecutrix, in her statement under
Section 164 of the Cr.P.C., merely alleged that the appellant ―used to
sexually harass her‖, that ―one day‖, he committed ―galat kaam‖ with
her and that ―since that day, he had been sexually harassing her. Later,
improving on this testimony during trial, the prosecutrix deposed, on
13th January, 2014, that the appellant had started inappropriately
touching her ―two years prior‖ to that date, and that he had committed
penetrative assault, on her, ―last year during winter days‖. Seema
(PW-3), for her part, only localised the day when the prosecutrix ‗M'
came weeping to her and recited her plight. The only approximation -
if it may be called one - to a specific day when the appellant allegedly
assaulted the prosecutrix, may be said to be found in the use of the
expression ―last year during winter days‖, by her. Given the fact that
the prosecutrix was thus deposing on 13th January, 2014, it may be
possible to infer that she was referring to some time during the early
months of 2013. In criminal law, however, an eon spans the gap
between ―may‖ and ―must‖. The winter of 2013 would have started,
normally, sometime in October, 2012 and, given the fact that the
crucial date, to determine whether, or not, to subject the appellant to

CRL.A. 627/2014 Page 41 of 66
the oppressive rigour of the POCSO Act, is 9th November, 2012, we
are of the opinion that it would be hazardous, jurisprudentially, to
decide this issue in the affirmative, merely on the basis of the usage,
by the child prosecutrix ‗M', of the words ―last year during winter
days‖, especially as no such specific reference was contained in the
statement made by her under Section 164 of the Cr.P.C. Equally, in
the absence of even a vague approximation being available, of the
subsequent occasions when, allegedly, the appellant committed rape
on the prosecutrix, we are unwilling to hold that the POCSO Act
applies to the present case, on the basis of the allegation, by ‗M' that,
after the first incident of rape, the appellant repeated the act on several
occasions.

31. We are not satisfied with the manner in which investigations
proceeded in this case. In view of the fact that the appellant had been
charged under the POCSO Act, it was of the essence that the Police
make every effort to fix the time, or the date, when the alleged acts of
sexual oppression, by the appellant on the prosecutrix ‗M', took place.
The record, however, discloses that no effort was made, by the
investigating agency, in that direction. We, adjudicating the lis, are
necessarily bound by the statute, and the rigours thereof. We
unhesitatingly disapprove the manner in which investigations
proceeded in this matter.

32. We are, therefore, of the opinion that the evidence available in
the present case is insufficient to bring it within the ambit of the
POCSO Act, as there is no conclusive evidence to indicate that the
sexual assault, or even rape, allegedly committed by the appellant on

CRL.A. 627/2014 Page 42 of 66
the prosecutrix, was committed on or after 9th November, 2012. To the
extent, therefore, the learned ASJ convicts the appellant under Section
6 of the POCSO Act, for having committed offences under clauses (l)
and (m) [this appears to be an inadvertent typing error; it should be
―(n)‖] of Section 5 thereof, the impugned judgement dated 3 rd March,
2014, and order on sentence, dated 4th March, 2014, cannot sustain.

The age of the prosecutrix ‗M'

33. One of the serious contentions, advanced by learned counsel for
the appellant, both during hearing as well as in his written
submissions, is regarding the alleged minority of the prosecutrix ‗M'.
At first blush, there appears to be substance, in the contention, of
learned counsel for the appellant, that there was no conclusive
evidence, on the basis whereof it could be stated, with certainty, that,
at the time of commission of the alleged sexual offences, against her,
by the appellant, she was a minor. The learned ASJ has chosen to rely,
for this purpose, on the date of birth entered in the admission form,
while admitting the prosecutrix to school, i.e. 10 th December, 1996.
Though it is true that this date was entered, in the admission form of
the prosecutrix, by her father Gauri Shankar (PW-6), at the time of
admitting her in school, and that affidavits were also submitted, by
Gauri Shankar, vouchsafing the said date, it is equally true that no
documents, save and except for the said affidavits, indicating the date
of birth of the prosecutrix ‗M' to be 10th December, 1996, were
submitted, by Gauri Shankar at the time, and that the affidavit itself
was not attested by any Magistrate. Seema (PW-3), the mother of ‗M',

CRL.A. 627/2014 Page 43 of 66
for her part, first deposed, during trial, that ‗M' was 18 years of age,
and had been born one year after her marriage; immediately,
thereafter, that she could not say how many years, prior to the date of
her statement during trial, her marriage had taken place; immediately
thereafter, that she was married about 19 years ago and, immediately
thereafter, that she could not tell the date of birth of ‗M'. She further
admitted that the date of birth of ‗M' was not registered with any
authority, and no birth certificate of ‗M' was ever prepared. The
testimony, during trial, of Gauri Shankar, deposing as PW-6, was, for
its part, entirely silent regarding the age of the prosecutrix ‗M'. These
facts, seen in juxtaposition, would seem, indeed, to suggest that the
actual age of the prosecutrix could not be determined on the basis of
the evidence available on record, or as it emerged during investigation
or trial in the present case.

34. The better wisdom of the court below must, however, yield to
the higher wisdom of the court above, and, by virtue of Article 141 of
the Constitution of India, the scope for controversy on the above issue
stands conclusively foreclosed, at least insofar as we are concerned, by
the judgement of the Supreme Court (speaking through J. S. Khehar,
J., as the Hon'ble Chief Justice then was) in Jarnail Singh vs State of
Haryana, (2013) 7 SCC 263. We may reproduce, to advantage, paras
22 and 23 of the report, thus:

―22. On the issue of determination of age of a minor, one
only needs to make a reference to Rule 12 of the Juvenile
Justice (Care and Protection of Children) Rules, 2007
(hereinafter referred to as "the 2007 Rules"). The aforestated
2007 Rules have been framed under Section 68(1) of the

CRL.A. 627/2014 Page 44 of 66
Juvenile Justice (Care and Protection of Children) Act, 2000.
Rule 12 referred to hereinabove reads as under:

―12. Procedure to be followed in determination of
age.-- (1) In every case concerning a child or a
juvenile in conflict with law, the court or the Board or
as the case may be, the Committee referred to in Rule
19 of these Rules shall determine the age of such
juvenile or child or a juvenile in conflict with law
within a period of thirty days from the date of making
of the application for that purpose.

(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of
the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis
of physical appearance or documents, if available, and
send him to the observation home or in jail.

(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, 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,
CRL.A. 627/2014 Page 45 of 66
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.

(4) If the age of a juvenile or child or the juvenile
in conflict with law is found to be below 18 years on
the date of offence, on the basis of any of the
conclusive proof specified in sub-rule (3), the court or
the Board or as the case may be the Committee shall in
writing pass an order stating the age and declaring the
status of juvenility or otherwise, for the purpose of the
Act and these Rules and a copy of the order shall be
given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of Section 7-
A, Section 64 of the Act and these Rules, no further
inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any
other documentary proof referred to in sub-rule (3) of
this Rule.

(6) The provisions contained in this Rule shall also
apply to those disposed of cases, where the status of
juvenility has not been determined in accordance with
the provisions contained in sub-rule (3) and the Act,
requiring dispensation of the sentence under the Act
for passing appropriate order in the interest of the
juvenile in conflict with law.‖

23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are of the
view that the aforesaid statutory provision should be the basis
for determining age, even of a child who is a victim of crime.
For, in our view, there is hardly any difference insofar as the
issue of minority is concerned, between a child in conflict
with law, and a child who is a victim of crime. Therefore, in
our considered opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to determine the age of the
prosecutrix VW, PW 6. The manner of determining age
conclusively has been expressed in sub-rule (3) of Rule 12
extracted above. Under the aforesaid provision, the age of a
CRL.A. 627/2014 Page 46 of 66
child is ascertained by adopting the first available basis out of
a number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is expressed in
a preceding clause, it has overriding effect over an option
expressed in a subsequent clause. The highest rated option
available would conclusively determine the age of a minor. In
the scheme of Rule 12(3), matriculation (or equivalent)
certificate of the child concerned is the highest rated option.

In case, the said certificate is available, no other evidence can
be relied upon. Only in the absence of the said certificate,
Rule 12(3) envisages consideration of the date of birth
entered in the school first attended by the child. In case such
an entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and conclusive,
and no other material is to be relied upon. Only in the
absence of such entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or a municipal
authority or a panchayat. Yet again, if such a certificate is
available, then no other material whatsoever is to be taken
into consideration for determining the age of the child
concerned, as the said certificate would conclusively
determine the age of the child. It is only in the absence of any
of the aforesaid, that Rule 12(3) postulates the determination
of age of the child concerned, on the basis of medical
opinion.‖
(Emphasis supplied)

Jarnail Singh (supra) has, it may be mentioned, been followed, by
this Court, in State vs Charan Singh, MANU/DE/1263/2017 and
State vs Mohan, MANU/DE/1766/2017.

35. Legislative edict, sanctified by judicial imprimatur, constrains
us. The law, legislative as well as precedential, proscribes us from
going behind the certificate issued by the school at the time of
admission of the prosecutrix ‗M', supported by the affidavits
furnished by the father of the prosecutrix Gauri Shankar (PW-6). We
may also note, in this regard, that the uncertainties, regarding the date

CRL.A. 627/2014 Page 47 of 66
of birth and age of ‗M', were expressed only by her mother Seema
(PW-3) and not by her father Gauri Shankar (PW-6).

36. The decision, of the learned ASJ, to treat the date of birth of the
prosecutrix ‗M' as 10th December, 1996, based on the admission
record maintained by the Nigam Pratibha Vidyalaya, as proved by its
principal Karan Singh, deposing as PW-1 during trial, deserves,
therefore, to be upheld.

37. But where does that lead us?

Section 376, IPC

38. Given that the POCSO Act does not apply, we would be
required to examine whether the appellant merited conviction under
Section 376 of the IPC, as he was charged under the said provision,
though his conviction was only under Section 6 of the POCSO Act,
apparently because of Section 42 of the said Act, which postulates
that, ―where an act or omission constitutes an offence punishable
under this Act and also under sections 166A, 354A, 354B, 354C,
354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509
of the Indian Penal Code, then, notwithstanding anything contained in
any law for the time being in force, the offender found guilty of such
offence shall be liable to punishment under this Act or under the
Indian Penal Code as provides for punishment which is greater in
degree.‖

CRL.A. 627/2014 Page 48 of 66

39. The appellant was charged under Sections 376 and 506 of the
IPC, and Section 6 of the POCSO Act. Having held that the POCSO
Act would not apply, we proceed, therefore, to examine whether
conviction, of the appellant, under Section 376 and 506 of the IPC,
could sustain.

40. We have extracted, hereinabove, the statements of the
prosecutrix ‗M', under Section 164 of the Cr.P.C., as well as during
trial, in extenso. The said statements, plainly read and on their face,
appear spontaneous and untutored. The prosecutrix has set out, in
explicit detail, the manner in which she was assaulted by the appellant,
and, in the absence of any evidence indicating to the contrary, the
deposition of the prosecutrix merits acceptance. There is no
discrepancy or contradiction, worth the name, between her statement,
under Section 164 of the Cr.P.C., and as recorded during trial, insofar
as the commission of offence, on her, by the appellant, was concerned.
It cannot be reasonably believed that, merely owing to some friction,
in their business, between the father of the prosecutrix, Gauri Shankar
and the appellant, the prosecutrix ‗M' would concoct such a detailed
description of the manner in which she was raped by the appellant. By
the time she gave her statement, during trial, the prosecutrix was,
apparently, an adult, and this lends additional credibility to her
statement. The fact of initial repeated sexual assaults and, thereafter,
rape on more than one occasion, having been committed by the
appellant on ‗M', therefore, stands, in our view, proved by the
evidence on record, primarily in the form of the statement of the
prosecutrix, both under Section 164 of the Cr.P.C., as well as during

CRL.A. 627/2014 Page 49 of 66
trial. The prosecutrix has, in both the said depositions, consistently
and clearly indicted the appellant of having, initially, made sexual
overtures, amounting to harassment on several occasions, to her, and,
thereafter, raped her, on repeated occasions. The prosecutrix's hymen
being torn, and there being no evidence to indicate that she was
habituated to sexual intercourse, we concur, with the learned ASJ, that
the prosecutrix was, in fact, subjected to rape, by the appellant.

41. Learned counsel for the appellant has sought to advance a
contention that the prosecutrix ‗M' had consented to the advances of
the appellant and that, therefore, it could not be alleged that the
appellant had committed rape on the prosecutrix. This aspect becomes
important, as the age of consent, for the purposes of Section 375 and
376 of the IPC was, till the substitution of Section 375 of the IPC,
with effect from 3rd February, 2013, by Section 9 of the Criminal Law
(Amendment) Act, 2013, sixteen, not eighteen. Suggestive though it
may be, the evidence before us does not allow us to enter any positive
finding, to the effect that a rape had been committed, by the appellant,
on the prosecutrix ‗M', after 3rd February, 2013. The present case has,
therefore, to be tested on the touchstone of Section 375 of the IPC, as
it stood prior to its amendment w.e.f. 3rd February, 2013.

42. At the time of the recording of the Section 164 statement of the
appellant (15th July, 2013), the prosecutrix was 16 years and a little
over 7 months in age. In the said statement, she only alleged that the
appellant ―often‖ used to harass her sexually, and that, ―one day‖, he
committed rape on her. These assertions, in our opinion, cannot, quite

CRL.A. 627/2014 Page 50 of 66
obviously, maintain a conclusive finding that the appellant had
committed rape, on the prosecutrix ‗M' when she was less than 16
years of age. The deposition of the prosecutrix during trial, to which
we have already alluded, in detail, earlier in the course of this
judgement, is also unhelpful in fixing the time of commission, of rape,
by the appellant on the prosecutrix, as prior to the date when she
attained the age of 16. There is no provision, in the law as it exists,
creating any presumption to the effect that, in a case such as this, the
burden of proof would shift to the accused, to establish that, at the
time of commission of the offence by him, the prosecutrix was above
the age of 16. The basic principle, that the onus to prove the
ingredients of the charge, under which the accused was being
prosecuted, lay on the prosecution, would apply with full force;
consequently, it would be for the prosecution to establish that the
appellant committed rape, on the prosecutrix, before she attained the
age of 16 - so as to avoid entering into consensual thickets. In the
facts of the present case, and on the basis of the evidence available, we
are convinced that it cannot be said, with any degree of certainty, that
the appellant committed rape, on the prosecutrix, before she attained
the age of 16, though it was, decidedly, before she attained the age of

18.

43. We do not feel, however, that the above finding can be of any
assistance to the appellant in the present case, as, in our view, the
appellant has been unable to prove consent, on the part of the
prosecutrix ‗M', to the sexual overtures made by him. In the matter of
consent, there is a statutory provision, placing the initial burden on the

CRL.A. 627/2014 Page 51 of 66
defence, to be found in Section 114A of the Evidence Act, which
reads thus:

―114A . Presumption as to absence of consent in certain
prosecutions for rape. - In a prosecution for rape under
clause (a) or clause (b) or clause (c) or clause (d) or clause (e)
or clause (g) of sub-section (2) of section 376 of the Indian
Penal Code, (45 of 1860), where sexual intercourse by the
accused is proved and the question is whether it was without
the consent of the woman alleged to have been raped and she
states in her evidence before the Court that she did not
consent, the Court shall presume that she did not consent.

44. Section 114A, on its terms, applies, with full force, to the
present case. There is a specific assertion, by the prosecutrix, during
the deposition in the course of trial, to the effect that the assaults, by
the appellant on her, were not consensual. It is also so recorded in the
MLC of the PX (Ex.PW-4/B), as vouchsafed by PW-9 Dr. Manisha
Gupta, in her deposition during trial. That being so, Section 114A
transferred the burden, to establish that the acts were consensual, on
the accused. We are convinced that this burden has not been
discharged, in any sense of the word, in the present case. State of
Himachal Pradesh vs Sanjay Kumar (supra) impresses, on us, to
bear in mind, in cases such as this, ―the realities of life that prevail in
Indian social milieu‖. Such ―realities of life‖, in our view, militate
against any presumption that, in the Indian rural context, a niece
would consensually permit herself to be taken advantage of, sexually,
by her maternal uncle. The burden, to prove consent, lies heavy on the
shoulders of the defence in cases such as this, and is not easily
discharged. In the present case, we are convinced that there is no
credible evidence, on the basis whereof it can be concluded that the
prosecutrix ‗M' consented to the acts perpetrated on her by the
CRL.A. 627/2014 Page 52 of 66
appellant. Rather, the fact that she went weeping to her mother, would
militate against any such presumption. We, therefore, unhesitatingly
reject the submission, made on behalf of the appellant by learned
counsel appearing for him, that the prosecutrix ‗M' was a consenting
party, in the sexual relations that had developed between the appellant
and her.

45. Rather, in our view, it is a clear case of, as the learned ASJ has
pithily put it, the protector becoming the violator, which the criminal
law of this country seriously frowns upon. Filial, and familial,
relations, are sacrosanct in our social fabric. The maternal uncle is, in
certain regions of the country, accorded even greater respect, and
reverence, than the father, and in traditional households in states such
as Kerala, children continue to grow, till date, under the care and
custody of their maternal uncle. Lascivious predispositions, on the part
of a maternal uncle towards his niece are, therefore, unthinkable and
unpardonable in law.

46. We, therefore, unhesitatingly reject the submission, advanced
by learned counsel appearing for the appellant, that the prosecutrix
had consented to the acts perpetrated, on her, by the appellant.
Resultantly, the charge of having committed the offence contemplated
by Section 375 of the IPC, punishable under Section 376 thereof, is, in
our view, brought home to the appellant, who becomes culpable
thereunder.

Section 506, IPC

CRL.A. 627/2014 Page 53 of 66

47. Section 506 of the IPC deals with ―criminal intimidation‖, and
has, essentially, been invoked, in the present case, owing to the
complaint, of the prosecutrix ‗M', that the appellant used to threaten
her that, in case she complained against him, he would throw acid on
her and disfigure her face. The prosecution also relied, for the said
purpose, on the sketch Ex. PX, supposedly drawn by the appellant and
recovered from his room.

48. We may state, immediately, that we are not convinced about the
sketch Ex. PX having been prepared by the appellant, or about the
reliability, of the said exhibit, as evidence of the appellant having
threatened the prosecutrix ‗M'. A variety of reasons propel us to say
so. In the first place, the sketch was stated to have been recovered,
from the room of the appellant, by Bimal, the brother of the
prosecutrix; yet, for some inscrutable reason, Bimal was never
arraigned as a witness in this case. The appellant, for his part, has, in
his statement under Section 313 of the Cr.P.C., categorically denied
the fact of such recovery, or of having ever prepared, or had anything
to do with, the sketch Ex. PX. The only evidence, to indicate that the
words, written alongside the said sketch, were so written by the
appellant, is to be found in the form of the testimony, of Seema (PW-

3), during trial, which is itself delightfully vague. In one breath,
Seema deposes that she could identify the handwriting of the accused-
appellant; that she was illiterate; that, nevertheless, she could identify
his handwriting, as she had seen him writing; and that, however, she
could not identify the handwriting of anyone else, including her

CRL.A. 627/2014 Page 54 of 66
husband, daughter and son. There is no explanation, either, for the
sketch having been retained by Gauri Shankar (PW-6), for two to three
days, before submitting it to the Police authorities. No explanation, for
the said delay, is forthcoming even in the deposition, during trial, of
Gauri Shankar himself. The possibility of the sketch having been
prepared during the said 2 days - which may have lent, to it, it's
decidedly amateurish flavour - cannot be wished away. Though it is
true that, in the impugned judgement, it is recorded that the learned
ASJ who had earlier heard the matter, had got the appellant to write
certain words, in vernacular, on a blank paper, and had, after
comparing the said handwriting with the handwriting on Ex. PX,
arrived at the opinion that they belonged to the same person, we are of
the view that, given the critical nature of the said evidence, it is unsafe
to base a conviction solely on the subjective opinion of the learned
ASJ, untested by the evidence of any handwriting expert. We are also
unable to appreciate the manner in which the learned ASJ donned the
mantle, as it were, of a handwriting expert, or relating the slant, of the
shading in the sketch, from left to right, and the fact that the writing
was on the left side of the page, with the fact that the appellant was a
left-hander, to conclude that the writing, on the page containing the
sketch, was by the appellant. While it is true that the law allows the
judge, adjudicating the lis, to compare the handwriting, in order to
satisfy herself, or himself, regarding correlation, we are unaware of
any graphological principle, to the effect that left-handed persons
would write on the left side of the page, or would shade, or draw, from
left to right. These deductions appear, on their face, to be no more than

CRL.A. 627/2014 Page 55 of 66
the ipse dixit of the learned ASJ who had earlier adjudicated the
matter.

49. We are unable, consequently, to sustain the finding, of the
learned ASJ, that the sketch Ex. PX was prepared by the appellant, or
that the words entered alongside it were entered by him; consequently,
we cannot treat the said sketch as evidence to confirm, against the
appellant, the charge under Section 506 of the IPC.

50. Having said that, we do have, with us, the statements of the
prosecutrix ‗M' herself, both under Section 164 of the Cr.P.C., as well
as during trial, which are consistent regarding the allegation of threat
having been held out, to her, by the appellant. The statements inspire
confidence, especially as they are supported by the depositions of
Seema (PW-3) and Gauri Shankar (PW-6). The delay, on the part of
the prosecutrix ‗M', in reporting the matter to her mother Seema,
would also stand explained by the said threats.

51. While, for these reasons, we agree with the decision of the
learned ASJ to convict the appellant under Section 506 of the IPC, we
may note that this aspect has, by now, been rendered academic, as the
appellant has already served out more than the sentence awarded, to
him, by the learned ASJ, under Section 506 of the IPC, and there is no
appeal, by the State, for enhancement thereof.

Delay in lodging FIR

CRL.A. 627/2014 Page 56 of 66

52. The attempt, of learned counsel appearing for the appellant, to
coax this court into granting, to his client, the benefit of doubt, on the
ground of delay in reporting the matter, by the prosecutrix, to her
mother and, consequently, delay in lodging FIR in the matter, has,
obviously, to fail in a case such as this. We need only refer, in this
connection, to the following passages, from the report in State of
Himachal Pradesh vs Sanjay Kumar (supra):

―23. As per the prosecutrix, she was called by the
respondent to his room, which is on the first floor of the
house. Unmindful of what could be the motive of an uncle to
call her, she obliged as a dutiful child. However, according to
the prosecution, the unfortunate incident happened. It
happened with a nine-year-old child who was totally unaware
of the catastrophe which had befallen her. Her mental
faculties had not developed fully; she was in the age of
innocence, unaware of the dreadful consequences. Further, at
the time when she was being sexually assaulted, her mouth
was gagged so that she was not able to scream and after the
incident she was threatened not to disclose this incident to
anybody. In fact, she kept mum out of this fear. It is quite
understandable that a nine-year-old child, after undergoing
traumatic experience and inflicted with threats, would be
frozen with fear and she could not find voice to speak against
her uncle. In cases of incestuous abuse, more often, silence is
built into the abuse. Incident came to light and tragedy struck
on the prosecutrix only when her mother noticed that she was
continuously suffering from stomach ache and was, therefore,
taken to a gynaecologist for her treatment. But for the above,
matter may not have come to light. It is only after she was
examined by Dr.Jasbir Kaur (PW 8), who had medically
examined and formed the opinion that the prosecutrix had
been sexually assaulted forcibly about 2-3 years ago, since
her hymen was ruptured and her external and internal
sphincters were also torn, that PW 1 queried the prosecutrix
and she revealed the incident, hitherto hidden by her from the
entire world out of fear, not only as a result of the threats
extended by the respondent but for varied other reasons.

CRL.A. 627/2014 Page 57 of 66

24. When the matter is examined in the aforesaid
perspective, which in the opinion of this Court is the right
perspective, reluctance on the part of the prosecutrix in not
narrating the incident to anybody for a period of three years
and not sharing the same event with her mother, is clearly
understandable. We would like to extract the following
passage from the judgment of this Court in Tulshidas
Kanolkar v. State of Goa, (2003) 8 SCC 590 (SCC p. 592,
para 5)

―5. We shall first deal with the question of delay.
The unusual circumstances satisfactorily explained the
delay in lodging of the first information report. In any
event, delay per se is not a mitigating circumstance for
the accused when accusations of rape are involved.
Delay in lodging the first information report cannot be
used as a ritualistic formula for discarding the
prosecution case and doubting its authenticity. It only
puts the court on guard to search for and consider if
any explanation has been offered for the delay. Once it
is offered, the court is to only see whether it is
satisfactory or not. In case if the prosecution fails to
satisfactorily explain the delay and there is possibility
of embellishment or exaggeration in the prosecution
version on account of such delay, it is a relevant
factor. On the other hand, satisfactory explanation of
the delay is weighty enough to reject the plea of false
implication or vulnerability of the prosecution case.
As the factual scenario shows, the victim was totally
unaware of the catastrophe which had befallen her.
That being so, the mere delay in lodging of the first
information report does not in any way render the
prosecution version brittle.‖

25. In Karnel Singh v. State of M.P., (1995) 5 SCC 518,
this Court observed that: (SCC p. 522, para 7)

―7. ... The submission overlooks the fact that in India
women are slow and hesitant to complain of such
assaults and if the prosecutrix happens to be a married
person she will not do anything without informing her
husband. Merely because the complaint was lodged
less than promptly does not raise the inference that the
complaint was false. The reluctance to go to the police
CRL.A. 627/2014 Page 58 of 66
is because of society's attitude towards such women; it
casts doubt and shame upon her rather than comfort
and sympathise with her. Therefore, delay in lodging
complaints in such cases does not necessarily indicate
that her version is false."

26. Likewise, in State of Punjab v. Gurmit Singh, (1996)
2 SCC 384, it was observed: (SCC p. 394, para 8)

―8. ... The courts cannot overlook the fact that in
sexual offences delay in the lodging of the FIR can be
due to variety of reasons particularly the reluctance of
the prosecutrix or her family members to go to the
police and complain about the incident which concerns
the reputation of the prosecutrix and the honour of her
family. It is only after giving it a cool thought that a
complaint of sexual offence is generally lodged.‖

27. Notwithstanding the fact that the trial court accepted
the explanation for delay as satisfactory by giving detailed
reasons, we are dismayed to find that the High Court has been
swayed by this delay in reporting the matter with omnibus
statement that it is not satisfactorily explained without even
an iota of discussion on the explanation that was offered by
the prosecution in the form of testimonies of PW 1 and PW 2.

29. Likewise, delay of three days in lodging the FIR by PW 1,
after eliciting the information from her daughter PW 2, is
inconsequential in the facts of this case. It is not to be
forgotten that the person accused by the prosecutrix was none
else than her uncle. It is not easy to lodge a complaint of this
nature exposing the prosecutrix to the risk of social stigma
which unfortunately still prevails in our society. A decision to
lodge FIR becomes more difficult and hard when accused
happens to be a family member. In fact, incestuous abuse is
still regarded as a taboo to be discussed in public. This
reticence hurts the victims or other family members who
struggle to report. After all, in such a situation, not only the
honour of the family is at stake, it may antagonise other
relations as well, as in the first blush, such other members of
family would not take charge of this nature very kindly. We
also find that the so-called dispute between the parties was so
trivial in nature that it would not have prompted PW 1 to
lodge a false complaint, putting her minor daughter of
CRL.A. 627/2014 Page 59 of 66
impressionable age to risks of serious kinds, as pointed out
above.

30. By no means, it is suggested that whenever such
charge of rape is made, where the victim is a child, it has to
be treated as a gospel truth and the accused person has to be
convicted. We have already discussed above the manner in
which the testimony of the prosecutrix is to be examined and
analysed in order to find out the truth therein and to ensure
that deposition of the victim is trustworthy. At the same time,
after taking all due precautions which are necessary, when it
is found that the prosecution version is worth believing, the
case is to be dealt with all sensitivity that is needed in such
cases. In such a situation one has to take stock of the realities
of life as well. Various studies show that in more than 80%
cases of such abuses, perpetrators have acquaintance with
the victims who are not strangers. The danger is more within
than outside. Most of the time, acquaintance rapes, when the
culprit is a family member, are not even reported for various
reasons, not difficult to fathom. The strongest among those is
the fear of attracting social stigma. Another deterring factor
which many times prevents such victims or their families to
lodge a complaint is that they find whole process of criminal
justice system extremely intimidating coupled with absence of
victim protection mechanism. Therefore, time is ripe to bring
about significant reforms in the criminal justice system as
well. Equally, there is also a dire need to have a survivor-
centric approach towards victims of sexual violence,
particularly, the children, keeping in view the traumatic long-
lasting effects on such victims.‖
(Emphasis supplied)

53. Applying the principles enunciated in the above extracted
passages from State of Himachal Pradesh vs Sanjay Kumar (supra),
it is obvious that the delay, on the part of the prosecutrix ‗M', in
relating the horrors, to which her maternal uncle, i.e. the appellant,
had subjected her, to her mother, cannot be regarded as so unnatural
or unexplained, as to cast a cloud on her statements. The prosecutrix
was, after all, a child, and the fear and paranoia, that the acts of her
CRL.A. 627/2014 Page 60 of 66
maternal uncle, would have instilled in her, are unimaginable. We
have, in an earlier decision, had occasion to opine that child rape is a
crime sui generis, residing in a netherworld all its own.
Correspondingly sui generis, we may state, would the psyche, of the
child who is subjected to such assault, be, and it would be grossly
unrealistic, nay absurd, to expect the victim of such an offence to
promptly report it to the ―higher authorities‖, familial or official. If,
therefore, the prosecutrix ‗M' chose to suffer the ignominy, for long,
before mustering up the courage to unburden herself to her mother, it
can only be regarded as natural. It cannot, therefore, be even said,
properly, that there was any delay, in the prosecutrix, in the present
case, reporting the incident to her mother; even less would it be
possible to hold that such delay was unnatural, or that it vitiated the
testimony of the prosecutrix.

54. The recital of the facts in this case, as already provided
hereinabove, reveals that there were marked inconsistencies at various
points, especially in the testimony of Seema (PW-3). While, in an
ordinary case, these inconsistencies may have been of significance, in
assessing whether the offence had been brought home to the accused,
we are not inclined to lend any credence to these inconsistencies, in
the present case, as the offence stands proved, in our opinion, by the
statement of the prosecutrix ‗M'. We do not find, on a thorough
scanning of the evidence, any such material which could serve to
discredit any of the allegations made by the prosecutrix against the
appellant, either in her statement under Section 164 of the Cr.P.C., or
in her evidence during trial. The prosecutrix deposed cogently,

CRL.A. 627/2014 Page 61 of 66
confidently and consistently, and clearly asserted, in cross-
examination, to the truth of her deposition. Her testimony, as noted
hereinabove, commends, and commands, acceptance, and we are
convinced that, on the basis thereof, the appellant stands clearly
indicted for having committed rape on the prosecutrix.

Sentence

55. Apparently following the mandate of Section 42 of the POCSO
Act, the learned ASJ confined her order to convicting the appellant for
having committed offences under clauses (l) and (m) [sic (n)?] of the
POCSO Act, though the appellant had been charged under Section
376 of the IPC, as well, the maximum punishment capable of being
awarded under the former provision being higher than under the latter.
We have already held, hereinabove, that the POCSO Act cannot apply
in the present case. For the same reason, Section 376 (2) (f) would not
apply as the said clause was introduced in the statute only w.e.f. 3rd
February, 2013, and Section 376, as it stood prior to 3rd February,
2013, did not carve out rape by a relative as a special category. The
appellant would, therefore, be liable to be punished under Section 376
(1) of the IPC, which reads as under:

376. Punishment for rape. - (1) Whoever, except in the cases
provided for by sub-section (2) commits rape shall be
punished with imprisonment of either description for a term
which shall not be less than seven years but which may be for
life or for a term which may extend to ten years and shall also
be liable to fine unless the woman raped is his own wife and
is not under twelve years of age, in which case, he shall be
punished with imprisonment of either description for a term
which may extend to two years or with fine or with both :

CRL.A. 627/2014 Page 62 of 66

Provided that the court may, for adequate and special reasons
to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years.

(2)Whoever-

(a) being a police officer commits rape -

(i) within the limits of the police station to which he is
appointed; or

(ii) in the premises of any station house whether or not
situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police
officer subordinate to him; or

(b) being a public servant, takes advantage of his official
position and commits rape on a woman in his custody as such
public servant or in the custody of a public servant
subordinate to him; or

(c) being on the management or on the staff of a jail, remand
home or other place of custody established by or under any
law for the time being in force or of a women's or children's
institution takes advantage of his official position and
commits rape on any inmate of such jail, remand home, place
or institution; or

(d) being on the management or on the staff of a hospital,
takes advantage of his official position and commits rape on a
woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant or

(f) commits rape on a woman when she is under twelve years
of age; or

(g) commits gang rape, shall be punished with rigorous
imprisonment for a term which shall not be less than ten years
but which may be for life and shall also be liable to fine :
Provided that the court may, for adequate and special reasons
to be mentioned in the judgment, impose a sentence of
imprisonment of either description for a term of less than ten
years.

Explanation 1. - Where a woman is raped by one or more in a
group of persons acting in furtherance of their common
intention, each of the persons shall be deemed to have
committed gang rape within the meaning of this sub-section.
Explanation 2. - ―woman's or children's institution‖ means
an institution, whether called an orphanage or a home for
neglected women or children or a widows' home or by any

CRL.A. 627/2014 Page 63 of 66
other name, which is established and maintained for the
reception and care of women or children.

Explanation 3. - ―hospital‖ means the precincts of the
hospital and includes the precincts of any institution for the
reception and treatment of persons during convalescence or of
persons requiring medical attention or rehabilitation.‖

56. Given the fact that the appellant has no criminal antecedents,
and could neither be alleged to be insatiably habituated to carrying, or
possessing any innate or inherent criminal proclivities, we feel that
incarcerating the appellant for life would be disproportionate to the
offence committed by him, reprehensible though it unquestionably is.
We also take stock of the fact, in this connection, that the prosecutrix
‗M' later married, and that there does not appear to be any evidence to
indicate that the acts perpetrated on her by the appellant have scarred
her permanently, physically or mentally. While we cannot gainsay the
agony and trauma that the prosecutrix had to suffer, apparently for a
long period of time, at the hands of the appellant, we do not feel that
the present case is one which merits imposition of the maximum
penalty imposable under Section 376 (1) of the IPC, i.e. imprisonment
for life. A lesser punishment would, in our view, suffice.

57. At the same time, we cannot lose site of the fact that the
appellant took unholy sexual advantage of his niece, qua whom he
ought, practically, to have been a father figure. Though it may be
fuelled by lust, rape, in the ultimate analysis, is a crime, not so much
of passion, as of power. It is for this reason that the statute, too, and
rightly so, post the 2013 amendment, treats rape, by a close relative

CRL.A. 627/2014 Page 64 of 66
who, ordinarily, should be a protector rather than an oppressor, as a
class apart.

58. We feel, therefore, that, while he may not deserve to be
rigorously incarcerated for life, the appellant should suffer rigourous
imprisonment for 10 years, as penance for the atrocities committed by
him, on the prosecutrix ‗M' under Section 376 (1) of the IPC.

Conclusion

59. Consequent on our above discussion, we dispose of the present
appeal in the following terms:

(i) The conviction of the appellant, under Section 6 of the
POCSO Act, is set aside, along with the sentence of
imprisonment for life, awarded to him by the learned ASJ for
having committed the said offence.

(ii) The appellant is convicted, instead, under Section 376(1),
and Section 506, of the IPC.

(iii) For the offence under Section 376(1) of the IPC, the
appellant is sentenced to 10 years' rigorous imprisonment.
Needless to say, the appellant would be entitled to the benefit of
the period of incarceration already undergone by him. The
appellant is also sentenced to pay a fine of ₹ 10,000/-, to the
prosecutrix, failing which he would have to suffer further
sentence of one year's simple imprisonment.

CRL.A. 627/2014 Page 65 of 66

(iv) For the offence under Section 506 of the IPC, the
sentence of 3 years' rigourous imprisonment, awarded by the
learned ASJ, is maintained, as also the direction that the
sentences under Sections 376 and 506 of the IPC shall run
concurrently.

(v) The appellant shall be entitled to the benefit of Section
428, Cr.P.C.

(vi) The compensation, awarded by the learned ASJ to the
prosecutrix ‗M', is maintained, and the State is directed to
disburse the said amount, to the prosecutrix, forthwith, if not
already paid.

60. Trial court record be sent back. Jail superintendent to be
informed forthwith.

C.HARI SHANKAR
(JUDGE)

S. P. GARG
(JUDGE)
MAY 24, 2018
gayatri

CRL.A. 627/2014 Page 66 of 66

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