SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Shankar @ Devi Singh vs State on 16 May, 2018

$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 15/2018

SHANKAR @ DEVI SINGH ….. Appellant
Through: Mr. Ankur Sood and Ms.
Romila Mandal, Advocates
versus
STATE ….. Respondent
Through: Mr. Kewal Singh Ahuja, APP
for State

CORAM:
JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA

JUDGMENT
% 16.05.2018
Dr. S. Muralidhar, J.:

1. This is an appeal directed against the judgment dated 26 th September 2017
passed by the learned Additional Sessions Judge-1/Special Judge (POCSO),
Shahdara District, Karkardooma Courts, Delhi in Sessions Case No.10/16
arising out of FIR No.541/2014 registered at PS Anand Vihar convicting the
Appellant for the offence punishable under Section 376 (2) (f) (i) IPC and
Section 6 POCSO Act.

2. The Appellant was charged with raping his step-daughter aged 11 years
(PW-1) at about 10:30 am on 29th August 2014 and at about 1 pm 7-8 days
prior at two separate locations in village Karkardooma, Delhi and thereby
committing an offence punishable under Section 376 (2) (f) (i) and (n) of
IPC. He was also charged with having committed aggravated penetrative

CRL.A. 15/2018 Page 1 of 11
sexual assault on a minor victim aged 11 years, thereby committing an
offence punishable under Section 6 POCSO Act.

Background facts and investigation

3. The case of the prosecution was essentially based on the version of events
narrated by PW-1. PW-1 disclosed that her mother works as domestic help
and would go for work at 8 am and return at 2 pm. On 29th August 2014,
PW-1 was playing with her friends, X and Y, between 9:30-10:00 am when
her step-father, the Appellant herein, came there. He beat her and asked her
to send her friends away. While X went away, according to PW-1, her other
friend, Y, remained and was secretly watching her. She then stated as under:

“My father took his “Susu” in my “Susu”. Before this my father
had bolted the door of the room. He removed his clothes and
also removed my clothes. I tried to raise my voice but he put his
hand on my mouth. Thereafter, my father left the place. My
mother came back at 02:00 pm. Before leaving my father had
threatened me that if I tell the incident to anyone, he would kill
me. My friend Y who had secretly seen us, told my mother
about the incident.”

4. After her mother returned, PW-1 disclosed to her mother what had
happened and then her mother (PW-6) took her to the PS where the
statement of PW-1 was recorded and she was also sent for medical
examination.

5. The MLC of PW-1 shows that she was brought to Dr. Hedgewar Arogya
Sansthan, Karkardooma at around 10:45 pm on 29th August 2014. It is noted
in the MLC that PW-1 was brought there by SI Shweta Sharma (PW-8) with
“history of improper touching over private parts (vagina) by step-father on

CRL.A. 15/2018 Page 2 of 11
29.08.2014 at 10:30 A.M.” It is further noted, “according to patient, when
she was alone in the house, her father sexually molested her, touching her
breasts and vagina/vulva with his same hands. She also gives history of
same sexual molestation episode 2 days back. He had threatened her that he
would beat her if she revealed it to anyone. She told her friends mother
who brought her here.”

6. The investigation was handled first by Sub-Inspector (SI) Shweta Sharma
(PW-8). On 30th August 2014, PW-8 recorded the statement of the victim‟s
mother (PW-6). The victim was counselled at PS Anand Vihar by a social
worker. Thereafter, on the basis of the statement of the mother (PW-6) and
the medical examination of the victim (PW-1), the rukka was prepared and
handed over for registration of FIR. Accompanied by PW-6 and PW-1, PW-
8 went to the spot and prepared a site plan and recorded the supplementary
statements of the mother (PW-6) and the victim (PW-1).

7. In the evening of 30th August 2014, PW-8 accompanied by Constable
Omkar went to the house of the victim. Both PWs- 1 and 6 joined them in
the investigation and started searching for the accused. They reached the
Community Centre, Shiv Tikki Wala where they found the Appellant
standing. He was pointed out by both PWs- 1 and 6 and he was apprehended
and interrogated. He is supposed to have given a disclosure statement. The
Appellant was also taken to the Dr. Hedgewar Arogya Sansthan,
Karkardooma in the custody of Constable Sunil Mann (PW-3). The
Appellant underwent medical examination. Three sealed pulandas were
handed over by the doctor, which were then seized.

CRL.A. 15/2018 Page 3 of 11

8. On 1st September 2014, an application was filed for recording the
statement of the victim under Section 164 Cr PC (Ex.A1). In this statement,
the victim stuck to the version of events she had earlier narrated to the
police. According to PW-8, she made inquiries from X, Y and Z but they
“were too young to make the statement” and therefore, their statements were
not recorded.

9. The exhibits collected during the medical examinations of PW-1 and the
Appellant were sent to the Forensic Science Laboratory („FSL‟) on
17th September 2014 through Constable Sandeep Kumar (PW-7).

10. After completion of the investigation, a charge sheet was filed and by the
order dated 10th February 2015, charges were framed against the Appellant
as indicated hereinbefore.

Trial Court judgment

11. Eight witnesses were examined on behalf of the prosecution. In his
statement under Section 313 Cr PC, the Appellant denied all the
incriminating circumstances. He claimed that he was falsely implicated.
According to him, PW-6 did not wish to live with him at Aligarh, his native
place, and on that issue, there was some quarrel between them. He alleges
that PW-6 has used her daughter (PW-1) to make a false case against him.
No witnesses were examined for the defence.

12. In the impugned judgment, the trial Court came to the conclusion that
the evidence of PW-1 was truthful and consistent on the material aspects and

CRL.A. 15/2018 Page 4 of 11
therefore could form the basis of the conviction of the Appellant. The
medical evidence and the forensic evidence also supported the version of the
victim. The MLC confirmed that the hymen was found torn, the semen
stains found on the underwear of the child victim were confirmed to be that
of the Appellant through the DNA finger printing report. Consequently, the
Appellant was held guilty of the offences for which he was charged and
sentenced in the manner indicated hereinbefore.

Analysis and reasons

13. The Court has heard the submissions of Mr. Ankoor Sood, learned
counsel for the Appellant and Mr. Kewal Singh Ahuja, learned APP for the
State.

14. In the first place, Mr. Sood submitted that there was no clarity in the
case of the prosecution as to whether there was a single incident of rape or
two incidents of rape committed by the Appellant on the victim. Attention is
drawn to the MLC where inter alia it was noted that the victim “also gives
history of same sexual molestation episode 2 days back.” However, this was
inconsistent with the version of PW-6 in the Court where she claimed that
her daughter had disclosed to PW-8 that “7-8 days prior to the incident (i.e.
on 29th August 2014) when we were residing in the house of Ganga Ram
behind Gali No.2, at that time also accused came in the noon time when my
victim daughter playing with her younger sister Z (aged about 1 ½ year) at
our house and at that time accused had also removed her clothes and inserted
his penis into the vagina of my victim daughter and at that time my victim
daughter has no disclosed the said incident to me.” Even in the order of

CRL.A. 15/2018 Page 5 of 11
framing of charge, there is a brief reference made to an earlier incident that
occurred 7-8 days prior to 29th August 2014.

15. However, it is only for that offence that he has been found guilty by the
trial Court. Consequently, the Court does not find anything significant
turning on the fact that reference is made to an earlier instance of rape being
committed by the Appellant whereas the victim herself has not mentioner
the same in her deposition in Court.

16. Mr. Sood then submitted that with the victim having named her friend, Y
as an eyewitness to the incident, it was incumbent on the prosecution to have
examined the said witness. Reliance is placed on the decision in TK Ramesh
Kumar v. State 2015 (3) SCALE 248 where, in the context of the Prevention
of Corruption Act, 1988, the Court observed that the failure to examine a
material witness was fatal to the case of the prosecution. However, in the
present case, the Court finds that although the testimony of the victim‟s
friend might have lent further corroboration to the testimony of the victim,
her non-examination does not weaken the case of the prosecution.

17. Mr. Sood relied on the decision in Rai Sandeep v. State (2012) 8 SCC
21 to emphasize that the testimony of PW-1 had to be of „sterling character‟
and should have been fully corroborated on all material particulars without
which it would be unsafe to place reliance on such testimony. He also relied
on the decision K. Venkateshwarlu v. State of A.P. (2012) 8 SCC 73
wherein the Supreme Court required the evidence of a child witness to be
subject to „close scrutiny‟ particularly since a child witness could be a

CRL.A. 15/2018 Page 6 of 11
pliable witness and could be tutored easily either by „threat, coercion or
inducement.‟

18. At this stage, the Court considers in appropriate to recapitulate the legal
position with regards to the testimony of a victim of rape. The Supreme
Court in State of Punjab v. Gurmit Singh AIR 1996 SC 1393 explained:

“We must remember that a rapist not only violates the victim’s
privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape is
not merely a physical assault – it is often destructive of the
whole personality of the victim. A murderer destroys the
physical body of his victim; a rapist degrades the very soul of
the helpless female. The Courts, therefore, shoulder a great
responsibility while trying an accused on charges of rape. They
must deal with such cases with utmost sensitivity. 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 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.”

19. Again, in Om Prakash v. State of U.P. AIR 2006 SC 2214, it was
observed:

“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

CRL.A. 15/2018 Page 7 of 11
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 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 Indian Evidence Act, 1872 (in short ‘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.”

20. Further, in light of the contention of the learned counsel for the
Appellant that the testimony of a child witness must be subjected to close
scrutiny, it would be appropriate to revisit the legal position as laid down by
the Supreme Court. In Dattu Ramrao Sakhare v. State of Maharashtra
(1997) 5 SCC 341 it was held as follows:

“A child witness if found competent to depose to the facts and
reliable one such evidence could be the basis of conviction. In
other words even in the absence of oath the evidence of a child
witness can be considered under Section 118 of the Evidence
Act provided that such witness is able to understand the
questions and able to give rational answers thereof. The
evidence of a child witness and credibility thereof would
depend upon the circumstances of each case. The only
precaution which the court should bear in mind while assessing
the evidence of a child witness is that the witness must be a

CRL.A. 15/2018 Page 8 of 11
reliable one and his/her demeanour must be like any other
competent witness and there is no likelihood of being tutored.”

21. In Nivrutti Pandurang Kokate v. The State of Maharashtra (2008) 12
SCC 565, the Supreme Court highlighted the importance of the trial Judge
having to be satisfied that the child understands the obligation of having to
speak the truth and is not under any influence to make a statement. The
Court explained:

“The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who
notices his manners, his apparent possession or lack of
intelligence, and the said Judge may resort to any examination
which will tend to disclose his capacity and intelligence as well
as his understanding of the obligation of an oath. The decision
of the trial court may, however, be disturbed by the higher court
if from what is preserved in the records, it is clear that his
conclusion was erroneous. This precaution is necessary because
child witnesses are amenable to tutoring and often live in a
world of make-believe. Though it is an established principle
that child witnesses are dangerous witnesses as they are pliable
and liable to be influenced easily, shaken and moulded, but it is
also an accepted norm that if after careful scrutiny of their
evidence the court comes to the conclusion that there is an
impress of truth in it, there is no obstacle in the way of
accepting the evidence of a child witness.”

22. The Court would like to first observe that in the present case, the learned
trial Judge did administer questions to PW-1 in order to satisfy himself that
she understood the obligation of having to speak the truth. The victim was
able to clearly describe what happened to her not just once before the police
but again before the learned MM and then for the third time before the trial
Court. On the core of her testimony, i.e. the rape committed on her by the
Appellant, the Court is unable to find any material inconsistency in her

CRL.A. 15/2018 Page 9 of 11
versions which would discredit her testimony. There are, of course, minor
discrepancies as pointed out by learned counsel for the Appellant where it is
not clear whether PW-6 was first told about the incident by the friend of
PW-1 or by PW-1 herself. There is also some discrepancy in PW-6 bringing
the victim straightaway to the police station. However, these differences
really do not affect the core of the testimony of the victim.

23. Mr. Sood referred to the medical examination to emphasize that the
absence of injury being noticed on the victim who was just 11 years old
gave reasonable doubt about her testimony in the manner in which she has
described the incident. In the present case, the MLC does record that the
hymen was torn. Additionally, the report of the FSL confirms that the semen
stain on the underwear of the victim matched the blood group of the
Appellant using the DNA finger printing technique. This is perhaps a
clinching corroboration of the version of the victim. This part of the
evidence has not been able to be shaken by the Appellant at all.

24. A reference is also made by Mr. Sood to Modi’s Medical Jurisprudence
and Toxicology (24th Edition) wherein one of the requirements spelt out is
for there to be a medical opinion on whether the accused is capable of
performing the sexual act. In the present case, the MLC noted that the
Appellant was not able to give a semen sample at the time of his
examination. However, this by no means implies that the Appellant was
incapable of performing a sexual act. With the FSL clearly indicating that
the semen stain on the underwear of the victim matched the blood group of
the Appellant and her hymen being torn, there was strong corroboration of

CRL.A. 15/2018 Page 10 of 11
her version of the penetrative sexual assault by the Appellant on her.

Conclusion

25. For all of the aforementioned reasons, the Court is of the view that the
trial Court rightly held the Appellant guilty of the offences under clauses (f)
and (i) of Section 376 (2) IPC and Section 6 of POCSO. The order on
sentence also does not call for interference particularly since the offence has
been committed by someone who is a close relative of the victim. The Court,
therefore, finds no reason to interfere with the impugned judgment and order
on sentence passed by the trial Court.

26. The appeal is dismissed. The trial court record be returned forthwith
together with a certified copy of this judgment.

S. MURALIDHAR, J.

I.S. MEHTA, J.

MAY 16, 2018
nk, nd

CRL.A. 15/2018 Page 11 of 11

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

Web Design BangladeshWeb Design BangladeshMymensingh