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Shree Bhagwan vs State on 8 March, 2018


Judgment reserved on: 16th December, 2017
Judgment pronounced on: 8th March, 2018

+ CRL.A. No. 1395/2013

SHREE BHAGWAN …. Petitioner
Through: Mr Pramod Kumar Dubey with Ms
Namita Wali and Mr Savraish Kumar, Advs.
STATE ….. Respondents

Through: Ms Aashaa Tiwari, APP.

Insp. Anil Kumar, P.S. Bawana.





1. This is yet another case – sad and sordid in equal measure – of
innocence plundered.

Case of the Prosecution

2. The case pleaded by the prosecution, and accepted by the
learned Additional Sessions Judge (hereinafter referred to as ―ASJ‖),
may be recited thus:

Crl Appeal 1395/2013 Page 1 of 67

2.1 Innocent and unaware of the predator lurking for her around the
corner, the prosecutrix – who, in view of the proscription imposed by
State of Punjab vs. Ramdev Singh AIR 2004 SC 1290, must remain
unnamed and would, therefore, be designated by the appellation ‗C’ –
was, at 4 pm on 7th February 2012, playing with her friends outside her
house, when it began to rain. The children dispersed in different
directions. Sangeeta (PW-19) – the mother of ‗C’ – made various
attempts to trace her, but remained unsuccessful. Finding her alone
and seizing the opportunity, the appellant, on the pretext of feeding
her ―ber‖, coaxed ‗C’ to accompany him to a spot near the canal
(nehar) in the vicinity. There, the appellant stifled her by covering her
mouth, struck at her face and eyes, burnt her hair and attempted to
strangulate her, whereafter he proceeded to commit rape on her.
Having perpetrated the heinous act, the appellant threw the prosecutrix
into the nehar, at which time Sonu (PW-16) fortunately arrived at the
spot. Sonu found ‗C’ weeping and lying face down in the nehar,
clinging to the weeds. Her face was swollen and her clothes were wet
and blood stained. The appellant, who was standing by the banks of
the nehar, was also soaked from head to toe. Chagrined at the
inopportune arrival of Sonu at the spot, the appellant tried to flee from
the spot, but was apprehended by Sonu who, by that time, had picked
‗C’ up from the spot in the nehar where she was found by him.
Carrying ‗C’ in one arm and holding the appellant by the other, Sonu
proceeded to a nearby tea-shop owned by Amit (PW-17). ‗C’, who
was in a state of shock and terror, remained silent throughout. At

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around this time, someone, using Sonu’s mobile, called the PCR. The
call, which was recorded by Ct. Alka (PW-9) was noted, by her, as
“ek ladka ek chhoti bachi ke saath baitha hai, caller ko doubt hai
kuchh galat kaam kiya hai” (―a boy is sitting with a young girl, the
caller feels that something wrong has been done to her‖).

2.2 Krishan Kumar (PW-14) was sitting at the tea stall, which
belonged to Amit (PW-17), when Sonu arrived there, carrying ‗C’ in
one arm and holding the appellant by the other. As he was carrying
‗C’, the clothes of Sonu were also wet. The fact of the appellant
having committed rape on ‗C’ was disclosed, by Sonu, to Krishan
Kumar. It was noticed by Sonu (PW-16), as well as Amit (PW-17),
that ‗C’ was bleeding from her private parts. The police, having been
informed, reached the tea stall 10-15 minutes later.

2.3 Krishan Kumar (PW-14) stated that he knew ‗C”s parents. The
Police, thereupon, directed Krishan Kumar (PW-14) to inform them of
what had happened. Krishan Kumar, therefore, proceeded to ‗C”s
house, to inform Virender (PW-15), ‗C”s father, of the tragedy that
had occurred.

2.4 At or around 5 pm, Krishan Kumar (PW-14) reached Virender
(PW-15) and informed him that someone had done ―galat kaam”
(―wrong deed‖) with his daughter ‗C’ and had been apprehended on
the spot. On hearing this, Virender (PW-15), accompanied by his wife
Sangeeta (PW-19), rushed to the tea-stall, reaching there within 5

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minutes. They found ‗C’ in tears. Her hair was partly burnt and her
underwear was blood stained. On removing her underwear, Virender
found that ‗C’ was bleeding vaginally. She also bore marks around her
neck as if someone had strangulated her. On his asking, ‗C’ informed
him that the appellant had brought her to the nehar on the pretext of
eating ―ber‖ and had stifled her by covering her mouth, burnt her hair,
done ―galat kaam‖ (―wrong deed‖) with her and had, thereafter,
thrown her in the nehar.

2.5 We must confess, here, that we are inhibited by the inadequacy
of language; the expression ―galat kaam‖, as used by ‗C’, has a far
more serious connotation, contextually understood, than ―wrong
deed‖; it indicates violation of her innocence; but we must provide the
nearest translation that the English language permits. It must,
however, be understood, that when a child of tender years alleges that
an adult has done ―galat kaam‖ with her, it nearly inevitably indicates
commission of rape, or, at the very least, outraging of her modesty.

2.6 Virender (PW-15), Sangeeta (PW-19), ‗C’ and the appellant
were brought to the Maharishi Valmiki Hospital (hereinafter referred
to as ―MV Hospital‖) by the PCR. ‗C’ was medically examined and
treated and the appellant was handed over to the Police. The MLC of
‗C’ (Ex. PW-13/A) was prepared by Dr. S.N. Siddharth (PW-13), who
referred her for gynecological examination. In the MLC, Dr. S.N.
Siddharth (PW-13) observed minor abrasions, on both sides of the
face of ‗C’, swelling on the left side and the fact that her lower

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garment was blood stained. For ready reference, the MLC, as
prepared by Dr. Siddharth, may be reproduced as under:

―Pt brought by PCR.

Alleged H/o ? Sexual assault
Pt conscious, oriented
PR: 86/min
BP: 110/70 mm Hg
Chest }
P/A }

– Minor abrasions (+) over B/S face

– Swelling (+) over left side of face

– Blood stain (+) over lower garment

– Refd to Gynae SR for further physical examination

2.7 ‗C’ was, subsequently, examined by Dr. Shilpi, who noticed
that she was bleeding vaginally. As she needed to examine her under
anesthesia, which was not possible at the MV Hospital, ‗C’ was
referred to the BSA Hospital. The entry, made by Dr. Shilpi on the
body of the MLC of ‗C’ (Ex PW-13/A), was as under:

―Attended L1IO of pts’ father Virender yesterday.
Examination tried but victim is very apprehensive and
uncooperative. Bleeding from genitals seen.

Refer to BSA for examination under Anaesthesia and proper sample
collection as no Emergency OT/Anaesthesia facility available
at MVH.‖

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2.8 On Virender’s (PW-15) and Sonu’s (PW-16) asking, ‗C’
detailed the incident as above, further stating that the appellant had
tried to strangulate her. She also stated that her statement had been
recorded by the Police. C’s underwear (Ex. P-1), which was wet as ‗C’
had been lying in the nehar, was seized by the Police.

2.9 At about 6.25 pm on the same day, DD No. 62B was received
by ASI Raj Kumar (PW-11), regarding the above occurrence. Acting
thereupon, ASI Raj Kumar reached the MV Hospital at about 6.40pm
with Ct. Arjun Lal (PW-23), where they collected the MLC of ‗C’. At
that time, Virender (PW-15), Ct. Kuldeep (PW-5) and Ct. Meenu
(PW-7) were present there. Ct. Kuldeep took the appellant to P.S.
Bawana, on instructions of ASI Raj Kumar. ‗C’ revealed, to ASI Raj
Kumar, that ―Shri Bhagwan Bhaiya ne galat kaamkiya”
(―Shri Bhagwan bhaiya did a wrong deed‖).

2.10 The statement of Sonu (PW-16) was recorded by the Police.
Rukka was prepared by ASI Raj Kumar (PW-11) on the basis of the
statement of Virender. The rukka was taken by Ct. Arjun Lal
(PW-23) to the PS, where FIR was registered. Copies of the FIR and
original rukka were given by Ct. Arjun Lal (PW-23) to SI Anil Tushir
(PW-24) for investigation. The appellant was taken into custody. The
IO SI Anil Tushir (PW-24), accompanied by Ct. Arjun Lal
(PW-23), reached the MV Hospital, where the IO directed
W/Ct. Meenu (PW-7) to accompany ‗C’ and her parents to the BSA
Hospital, to which she had been referred for treatment. At about 8.45

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pm, C was shifted to the BSA Hospital accompanied by W/Ct. Meenu
(PW-7) and other staff. At the BSA Hospital, Virender’s statement
was recorded by ASI Raj Kumar (Ex. PW-11/A).

2.11 At the BSA Hospital, ‗C’ was examined by Dr. Shaina, who
prepared the MLC of ‗C’ (Ex. PW-12/A), recording that her hymen
was torn, and that she was bleeding per vagina. Her vaginal and rectal
mucosa were also found to be torn, and it was further observed she
had sustained bruises on her left eye, cuts on both lips and fresh
wounds on her chin and neck. Samples were taken for analysis. For
the sake of completion of the record, we proceed to extract the MLC
of ‗C’, as recorded by Dr. Shaina, thus:

―Referred from Maharishi Valmiki Hosp.

for EA and proper sampling
Alleged H/O physical and sexual assault
H/O forcep coitus physical assault in evening of 7/2/12 (given by
pt’s mother)
M/H – Pt has not achieved menarche
O/E – Pt conscious and oriented
GC fair
BP – 110/70 mm Hg
PR – 98/m
P/A – soft

– EVA done and tears repaired

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L/E – Hymen torn

– BPV +

– Vaginal mucosa torn

– Rectal mucosa tear present

– Bruises present under lt eye

– Cuts present on both lips

– Fresh aberrations present on Right side of chin and neck‖

2.12 Ct. Arjun Lal (PW-23) and the IO SI Anil Tushir (PW-24)
returned to the PS, where the IO was met by ASI Raj Kumar (PW-11),
who handed over, to him, the MLC of the appellant. The appellant, on
being interrogated by the IO, admitted to having committed rape on
‗C’. The IO arrested the appellant, vide arrest memo Ex. PW- 23/A.
The disclosure statement of the appellant (Ex. PW-23/C) was recorded
by the IO, wherein the appellant pointed out the site of incident, the
pointing out memo being exhibited as Ex. PW-23/D. Site plan was
prepared by the IO, who also recorded the statement of Sonu (PW-16).
The appellant was identified by Sonu. The IO also recorded the
statement of ‗C’ and Ct. Arjun Lal.

2.13 On the next date i.e. on 8th February 2012, at 9 a.m., Ct. Balraj
(PW-3) and IO SI Anil Tushir (PW-24) took the appellant to the
Bawana Canal, and, thereafter, to the MV Hospital. The appellant was
medically examined. The MLC of the appellant (Ex.PX-5) opined that
there was nothing to suggest that he was not capable of sexual

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intercourse. The statements of Amit (PW-17) and Krishan Kumar
(PW-14) were recorded by the IO. The IO, thereafter collected the
MLC of the appellant and sample pullandas handed over by Ct. Balraj
(PW-3), which were seized by him.

2.14 The appellant was produced before the Court and remanded to
judicial custody (JC), and the sealed articles were deposited by the IO
in the malkhana.

2.15 On 15th March 2012, the seized exhibits were taken by Ct. Anil
(PW-4) to the FSL and receipt thereof handed over to the MHC (M).

2.16 On 16th April 2012, investigation of the case was shifted from
SI Anil Tushir (PW-24) to SI Narender (PW-25).

2.17 On 3rd May 2012, SI Narender (PW-25) moved an application
for permission to record the statement of ‗C’, whereafter her
statement, under Section 164 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ―CrPC‖) was recorded by Sh. Deepak
Wason, learned Metropolitan Magistrate, Rohini. (The said statement
may be reproduced thus (in vernacular, followed by the translation

―Main mummy papa ke saath rehti hoon.

Q-1 Humen sach bolna chahiye ki jhooth?

Ans. Sach.

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Q-2 Kya tum padhti ho?

Ans. Doosri class mein.

Q-3 Ghar mein kaun kaun hai?

Ans. Mummy, papa, bhaiya, char behnen.

Q-4 Kiske saath aayi ho?

Ans. Police ke saath office mein aayi hoon.

Q-5 Kya hua tha tumhare saath?

Ans. Kuchh din pehle ek ladka ber ke bahane mujhe bulakar ek
jungle mein le gaya. Woh cycle par mujhe le gaya. Mera baal aur
gala daba liya aur behosh kar diya. Thodi der mein mujhe hosh
aaya. Usne mujhe naale mein ger diya. Ek aadmi ne mujhe
bachaya. Main us ladke ko pehchan nahin sakti. Meri peshab wali
jagah par khoon aa raha tha.”

(Translated into English)

―I live with my mother and father.

Q-1 Should we tell the truth or lies?

Ans. Truth.

Q-2 Do you study?

Ans. In Second Class.

Q-3. Who are the persons in your house?

Ans. Mother, father, brother and four sisters.

        Q-4     With whom have you come?

Ans. I have come to the office with the Police.

Q-5 What happened with you?

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Ans. Some days back one boy, on the pretext of feeding me ―ber‖,
called me and took me into a jungle. He took me on a cycle. He
strangulated me and made me unconscious. I regained consciousness
after sometime. He threw me in the nala. One man rescued me. I
cannot recognize that boy. I was bleeding from the place from which
I pass urine. ‖

SI Narender thereafter recorded the statement of Virender (PW-15)
and W/Ct. Ritu.

2.18 Consequent to completion of investigations, SI Narender, on the
next date i.e. 4th May 2012, submitted the charge sheet in the Court of
the learned MM supplementary charge-sheet, dated 12th August 2012,
was also filed by SI Narender, to place the FSL reports, which he had
collected in the meantime, on record. The sequence of events, as
recorded in the charge-sheet having already been recited hereinabove,
no further allusion is required to be made thereto.

2.19 As the appellant pleaded not guilty and sought trial, the case
was committed to the Court of the learned ASJ, before whom trial
commenced on 22nd August 2012.


3 Having, thus, set out the case as pleaded by the prosecution, let
us proceed to reconnoiter the evidence that emerged, in order to assess
whether it supported the prosecution's version.

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Oral Evidence

4. We find that the learned ASJ has compartmentalized the oral
evidence adduced in the present case into evidence of the public
witnesses, medical evidence and evidence of police witnesses. We
propose to follow the same scheme, eschewing reference to the
evidence of a few witnesses which are formal in nature, and are not
really necessary in order to decide the present appeal.

Public Witnesses

5. The first ―public witness‖ whose evidence was recorded by the
learned ASJ was Krishan Kumar (PW-14). The examination-in- chief
and cross-examination of Krishan Kumar merit reproduction, in
extenso (substituting the name of the prosecutrix with the pseudonym
‗C'), thus:

―On S.A.

I have been residing at the aforementioned address for the last
13 years and I am employed as Operator/Chowkidaar in Delhi
Jal Board.

I know Sonu. I also know ‗C' aged about 5 years who was
residing in J.J. Colony, Bawana with her parents and I also know
the place the jhuggi where she was residing as I was known to
her parents. On 07.02.2012 at about 5 p.m. I was present at the T
shop near Hanuman Mandir at Bawana Mor. I saw that Sonu
was bringing accused Shree Bhagwan and ‗C' by holding their
hands and there was blood on the clothes of ‗C'. Sonu told me
that accused Shree Bhagwan committed rape with ‗C'. I
immediately went to the house of ‗C' and called her parents.

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Accused Shree Bhagwan is present in the court today. Witness
correctly identifies accused Shree Bhagwan.

XXXXXX by Ms. Shashi Jaiswal Amicus Curiae for accused.

I identified the child because I had seen her previously and I
knew her parents and used to frequent their house. Victim ‗C'
was wearing Jumpher and underwear (kachi). I have seen Sonu
only who brought the victim girl and the accused. Sonu with
victim girl and accused met me at Tea shop. The police was
already informed and police reached at the spot after 10-15
minutes and three police personnels came at the spot in the PCR
van. Upper part of pant of Sonu was also wet and his shirt was
also wet as the victim girl was on his lap. Sonu brought the
accused Shree Bhagwan by holding his hand at the Tea shop.
When I reached at the Tea shop already 15-20 persons were
standing there. Sonu had already brought the victim girl and
accused Shree Bhagwan at the Tea shop before my arrival there
and Sonu told all the incident to me. I called the parents of ‗C'
on the asking of the PCR official because I know the child and
her parents. It is correct that the Tea shop is just near the canal.

Sonu used to work as a Farmer and used to sell seasonal fruits
and vegetables. Sonu used to sell seasonal fruits and vegetables
near the tea shop. It is wrong to suggest that I am deposing
falsely at the instance of Sonu and police. ‖

It would thus be seen that, while, in examination-in-chief, as
also initially during his cross-examination, Krishan Kumar deposed
that he saw Sonu coming towards the tea-stall carrying ‗C' in one arm
and holding the hand of the appellant by the other, he prevaricated, to
some extent, later during his cross-examination, by deposing that Sonu
had already brought ‗C' and the appellant to the tea-stall prior to his
(Krishan Kumar's) arrival there. The extent, to which such
prevarication dilutes the effect of his testimony, is an issue which we
would address later in this judgement.

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6. Virender (PW-15), the father of ‗C' and husband of Sangeeta
(PW-19), deposed, in his examination-in-chief and cross-examination,
that (i) on 7th February, 2012, Krishan Kumar had arrived at his house
and informed him that ‗C' was at the tea stall and was totally soaked
from head to toe, and that someone had done ―galat kaam" with
her,(ii) when he arrived at the tea stall, he found that the appellant had
been apprehended by a large number of members of the public, and
that his daughter ‗C' was totally wet with her hair partly burnt,
forehead swollen and bruise marks on her neck, as if someone had
tried to strangulate her, (iii) when he lifted her, he found that she was
bleeding from her private parts, (iv) on his asking ‗C' what had
happened, she revealed ―Shree Bhagwan mujhe bula kar le gaya aur
mera khoon nikal diya, baalo me aag laga diya aur nehar mein duba
diya‖ (―Shree Bhagwan called me and took me with him and made me
bleed, he set fire to my hair and threw me in the nehar‖), (v) the
Police, thereafter, took his daughter to the MV Hospital, where she
was examined and medically treated, (vi) from MV hospital, they were
referred to BSA Hospital, and (vii) his statement (Ex PW-11/A) was
recorded at the BSA Hospital. He correctly identified the appellant,
who was present in court.

7. Sonu (PW-16) deposed in his examination-in-chief that (i) on
7th February 2012, at about 5 PM, he was coming to the place near the
Hanuman temple where he used to sell guavas, where he saw one girl,
about 5 years of age, lying in the canal, and one boy standing near her

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(at this juncture, Sonu pointed out towards the appellant stating that he
was the person who was standing near the girl), (ii) the girl was
weeping, (iii) he picked up the girl from the canal and found that her
face was swollen and her clothes were blood stained, (iv) the appellant
tried to flee, but he apprehended him, and brought the appellant and
the girl near the tea shop, where Krishan Kumar (PW-14) met him, (v)
he informed Krishan Kumar about the facts and, thereafter, dialed the
Police, who reached the spot, (vi) Krishan Kumar informed the parents
of the girl, (vii) he handed over the appellant and the girl to the Police,

(viii) the underwear of the girl was also blood stained and (ix) on his
asking the appellant to tell the true facts, the appellant admitted that
the girl was his neighbor and that he had committed rape on her. In
cross-examination, PW-16 Sonu further stated that (i) the girl was
lying at the corner of the nehar with her head in the water and was
clutching in the weeds flowing in the water, (ii) she was wearing a
frock and underwear, (iii) he carried the girl on the shoulder and held
the appellant with his another hand, (iv) the appellant was drunk and
smelling of alcohol and was already soaked from head to toe when he
met him, (v) when he requested the appellant to carry the child, the
appellant questioned him regarding his identity, (vi) the girl did not
say anything to him (i.e. to Sonu); she was weeping when he found
her and, though her eyes were open on the way to the tea shop, she did
not speak, (vii) he neither knew the parents of the girl, nor Krishan
Kumar, before the date of incident, though he knew the tea shop
vendor Amit (PW-17) very well, and (viii) the rape of ‗C' did not take
place in his presence.

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8. Amit, the tea shop vendor (PW-17) deposed in his examination-
in-chief, that (i) he had been running the tea stall near the nehar for
the last six years, (ii) on 7th February, 2012, Sonu who was previously
known to him brought a small girl and the appellant to his tea stall,

(iii) he had seen the appellant in the area earlier, as he was a labourer,

(iv) the child was shivering and was totally soaked from head to toe,

(v) Sonu told him that he had recovered her from the nehar and that
the appellant had done "galat kaam" with her, (vi) at that point, he
and Sonu noticed that there was blood on the underwear of the child
and that she was bleeding from her private parts, (vii) Krishan Kumar
(PW-14), who was present at the shop stated that he knew the child
and her parents, and therefore went and called the parents of the child
who was about 5 years of age and (viii) in the meantime, Sonu called
the police, who reached the spot and took the child and her parents
with them. In cross-examination, Amit (PW-17) stated that (i) he did
not know the family of the child and had seen her for the first time, (ii)
it was Sonu who told them that the appellant had done "galat kaam"
with the child, (iii) the child who was crying, did not disclose the
name of the person who had done "galat kaam‖ with her in his
presence and (iv) though he knew Sonu they were not friends.

9. Sangeeta (PW-19), the mother of ‗C' and the wife of Virender
(PW-15), endorsed the deposition of her husband Virender, by stating,
in her examination-in-chief and cross examination, that (i) ‗C' had
been playing with her friends outside their house at 4.00 - 4.15 PM on

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7th February 2012, when it began to rain, whereupon the children
dispersed, (ii) she made all efforts to search for her daughter but was
unable to find her, (iii) at about 5 PM, Krishan Kumar (PW-14)
arrived at their house, and informed them that their daughter ‗C', who
was wet and shivering and had been rescued from the nehar, had been
brought to a nearby tea stall and that it appeared that something wrong
had been done to her, (iv) when she, and her husband Virender
(PW-15) reached the tea stall, they noticed that ‗C' was, in fact, wet
and shivering and that her underwear was soaked with blood, (v) they
also saw that ‗C' was crying and that there were bruise marks around
her eyes and forehead, as well as marks around her neck which made
it appear that someone had tried to strangulate her, (vi) the hair of ‗C'
was also partly burnt, (vii) consequent to the police arriving at the
spot ‗C' was shifted to MV Hospital, accompanied by Sangeeta and
her husband Virender, (viii) at the MV Hospital preliminary treatment
was administered to ‗C' whereafter she was referred to the BSA
Hospital, (ix) ‗C' remained admitted in BSA Hospital for about 8-9
days during which her wounds were stitched, (x) though, while they
were at the tea stall, ‗C' who went on crying, did not respond on being
queried by her (Sangeeta), as to what had happened, (xi) after they had
reached the Hospital, she revealed that the appellant had taken her,
with him, to the nehar, where he did ―galat kaam‖ with her, and also
burnt her hair and hit her face with his fist, whereafter he strangulated
her and threw her in the nehar, (xii) ‗C' further revealed that another
person had rescued her from the nehar and brought her to the tea stall
and that the police had recorded her statement, and (xiii) the

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underwear of ‗C' was soaked, as she had been lying in the nehar.
Sangeeta correctly identified the said underwear, which was exhibited
as Ex.P1.

10. ‗C' was also examined, in chief, and cross-examined, as PW-20,
albeit without oath, as she was only 6 years old at the time. Being a
child prosecutrix, it would be appropriate to reproduce the entire
record of her testimony, in examination-in-chief and cross-
examination, as under (the translation, in English, is provided

―PW-20 Ms. (‗C') aged 6 years D/o Sh. Virender R/o J.J.
Colony, Bawana, Delhi.

(Camera proceedings conducted in the chamber in the presence of
Ld. APP for the State, Ms. Vandana Chauhan, Counsel for Delhi
Commission for Women and Ms. Shashi Jaiswal counsel for the
accused, in vernacular)

(Without Oath being child is 6 years old)

Q. Tumara Naam Kya Hai? (― What is your name?‖)

Ans. ........

Q. Tumare Papa Ka Naam Kya Hai? (―What is your father's

Ans. Virender

Q. Kahan rehti Ho? (―Where do you stay?‖)

Ans. J.J. Colony, Bawana, Delhi.

Q. Kya Tum School Main Jati Ho? (―Do you go to school?‖)

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Ans. Han. (―Yes.‖)

Q. Aaj Court Main kiske saath Aayee ho? (―With whom have
you come to court today?‖)

Ans. Mummy, papa ke sath aayee hun. (―I have come with mommy
and papa.‖)

Q. Tumare school ka Naam Kya Hai? (―What is the name of
your school?‖)

Ans. School Ka Naam Pata Nahi Hai. Madam Ne Nahi Bataya
Hai. Main Tisri class Main Padti Hun. (I do not know the name of
my school. Madam has not told us. I study in the third class.)

(Mother of the child is also present in the chamber within her sight to
make the victim child comfortable but not permitted to intervene. I
find that the victim/child is comfortable and is in a position to depose
and hence, I now proceed to record her statement.)

Q. Aap Mujhe Poori Baat Batayengi Kya Hua Tha? (―Will you
tell me exactly what had happened?‖)

Ans.(By nodding her head) Han. Mujhe Shree Bhagwan Ber Khilane
Ke Liye Le Gaya Tha. (―Yes. Shree Bhagwan took me with him to
feed me ‗ber'.‖)

Court question: Sh. Bhagwan Ko Kaise Janti Ho? (―How do you
know Shree Bhagwan?‖)

Ans. Sab usko Shree Bhagwan Ke Naam Se Bulate Hain.
(―Everyone addresses him by the name Shree Bhagwan.‖)

Q. Kaun sa Ladka Le Gaya Tha? Jisko aap Shree Bhagwan
Kehte Ho usko Pehchan Sakti Ho? (― Who was the boy who took
you with him? Can you recognise the person whom you call Shree

Ans. Han. (― Yes.‖)

Crl Appeal 1395/2013 Page 19 of 67
(At this stage the accused has been produced in the chamber
alongwith three other boys of similar height, physique, complexion
and wearing similar clothes and the child has correctly identified the
accused Shri Bhagwan by pointing out and thereafter by touching

Court Question: Iska Naam Kya Hai? (― What is the name of this

Ans. Shree Bhagwan.

Q. Shree Bhagwan Tumhe Kahan Le gaya Tha?

Ans. Shree Bhagwan Ber Khilane Ke liye Mandir Ke Paas Le Gaya
tha. (―Shree Bhagwan took me with him to a place near the temple,
to feed me ―ber‖.)

Q. Mandir ke Paas Usne Kya Kya Kiya? (―What did he do, near
the temple?‖)

Ans. (At this stage child become apprehensive and is feeling shy
and has kept quiet and then responded after sometime on persuations
from the Court.)

Ans. Apni Bhi Kachi Utari aur Meri Bhi uteri. Phir gala dabakar
Aankh Main ghoosa Laga diya. Phir Balon Main aag Laga di. (―He
removed his underwear as well as mine. Then he pressed my neck
and hit me in my eye. Then he set fire to my hair.‖)

Court Observations: Child has been tonsured completely and I am
told by her that this was done after the incident.

Q. Baal Jalene Ke Baad Tumahare Baal Kisne Kate the? (―After
they were burnt, who cut your hair?‖)

Ans. Baal Jalene Ke Baad Nai Se Baal Kataye the. (―After they
were burnt, I had my hair cut by a barber.‖)

Court Question: Kitne Bade Baal The? (―How long was your

Crl Appeal 1395/2013 Page 20 of 67
Ans. Witness touched her shoulder meaning it was shoulder length.

Q. Kachi Utari to Shri Bhagwan Ne Kya Kiya Tha? (―On
removing the underwear, what did Shree Bhagwan do?‖)

Ans. Pishab dal diya tha. (―He poured urine.‖)

Q. Jungle kaha Hai? (―Where is the jungle?‖)

Ans. Mandir Ke Aage. (―Ahead of the temple.‖) (Child has
stretched her hand and has said that ahead the temple)

Q. Tum Geeli kese Ho Gai? (―How did you get wet?‖)

Ans. Nehar Mai Shree Bhagwan Ne Phenk Diya Tha. (―Shree
Bhagwan threw me in the canal.‖)

Q. Kya Shree Bhagwan Geela Kaise Ho Gaya tha? (― How did
Shree Bhagwan get wet?‖)

Ans. Baarish Ho rahi thi tab Shree Bhagwan geela Ho gaya tha.
(―Shree Bhagwan became wet as it was raining.‖)

Court question: tum Shree Bhagwan ko kaisi Jante Ho? (―How do
you know Shree Bhagwan?‖)

Ans. Us Waqt dekha tha jab usne kiya tha. (―I saw him when he
was doing it.‖)

Q. Tumhe Kisne Bachaya Tha? (―Who saved you?‖)

Ans. Ek uncle Ne. (―An uncle saved me.‖)

Q. Shree Bhagwan Ko Kisne Pakra tha? (―Who court Shree

Ans. Jis uncle ne bachaya tha un Uncle Ne Shree Bhagwan Ko
pakra tha. (―The uncle who saved me, caught Shree Bhagwan.‖)

Crl Appeal 1395/2013 Page 21 of 67
Q. Shree Bhagwan Ne Mara aur ganda kaam kiya tha tab Tumhe
Uska Naam Pata Tha? (―When Shree Bhagwan hit you and did the
dirty deed, did you know his name?‖)

Ans. Jab wo aaye tha. Tab Usko sab Shree Bhagwan Bolte The tab
mujhe pata chala. (―When he came, everyone used to call him Shree
Bhagwan; then I learnt his name.‖

(At this stage, witness has identified her statement ex. PW20/A
bearing her thumb impression at point A)

Q. Pehle court mein jab aayee thi tab uncle ko sab bataya tha?
(―When you came to the court initially, did you tell uncle

Ans. Han. (Yes).

Q. Kye Tumne Pehle uncle (Ld.MM) ko Bataya tha Kis Shree
Bhagwan Ne Galat Kaam Kiya tha? (―Did you initially tell uncle that
the ―galat kaam‖ was done by Shree Bhagwan?‖)

Ans. Han. Naam Bataya tha. (―Yes. I told his name.‖)

Court observations: Name of the accused was not mentioned in the
statement of accused u/s 164 CrPC.

XXXX by Ms. Shashi Jaiswal, Amicus Curiae for accused.

Q. Kisne Bola tha Ki Court Mai Eaise Bolna. (―Who told you to
depose like this in court?‖)

Ans. Maine Khud Bola Hai. Kisi nai nahi bataya.

Ye kehya Galat Hai Ki Maini Mummy Papa Ke Kehne Par Shreee
Bhagwan Ka Naam Liya tha. Yeh Kehna galat Hai Ki Shree
Bhagwan Ne Mujhe Bachaya Tha aur galat kaam nahi kiya tha."(―I
have spoken of my own will. No one told me to do so. It is wrong
to say that I took the name of Shree Bhagwan on being asked to do
so by my mother and father. It is wrong to say that Shree Bhagwan
saved me and did not do ―galat kaam‖.)

Crl Appeal 1395/2013 Page 22 of 67
Medical Witnesses

11. Dr. S.N. Siddharth (PW-13), who was the first to have
medically examined the prosecutrix ‗C', proved, in his examination-
in-chief, the MLC (Ex PW-13/A) drawn up by him after examining
‗C', and further confirmed that he had referred ‗C' for gynaecological
examination. He deposed that, on local examination, he had observed
minor abrasions over both sides of her face, swelling over the left side
of the face and bloodstains over her lower garment. He was not cross-
examined, despite grant of opportunity.

12. On behalf of Dr. Shilpi, Senior Resident, Gynaecology in MV
Hospital (who had examined ‗C' after she was referred by
Dr. Siddharth), Dr. Geetanjali Singh (PW-18) entered the witness box,
stating that she could identify the signatures of Dr. Shilpi, having seen
her writing and signing in the course of her official duties.
Dr. Geetanjali Singh deposed, further, that, consequent to being
referred by Dr. Siddharth, ‗C' had been examined by Dr. Shilpi, after
obtaining requisite consent from her father. She further deposed that
Dr. Shilpi had tried to talk to ‗C', and examined her, but that ‗C'
remained apprehensive and uncooperative. She confirmed that ‗C' was
bleeding vaginally. Dr. Geetanjali Singh further stated that ‗C' was,
therefore, referred to the BSA Hospital, for examination under
anaesthesia and proper sample collection, as no emergency
OT/anaesthesiologist facility was available at the MV Hospital. She

Crl Appeal 1395/2013 Page 23 of 67
identified the signatures of Dr. Shilpi, on the MLC of ‗C'. She was
not cross-examined, despite grant of opportunity.

13. Dr. Shimpi Goyal, Senior Resident in the Gynaecology
Department of the BSA Hospital, deposed, as PW-12, in place of
Dr. Shaina, who had medically examined ‗C' in the said hospital,
clarifying, at the outset, that Dr. Shaina was not working in their
Hospital any more, and that her present address was not known to
them. Dr. Goyal stated that she could identify the handwriting and
signatures of Dr. Shaina, as she had worked with her and seen her
signing and writing documents. Dr. Goyal went on, after this
preliminary clarification, to prove the MLC prepared by Dr. Shaina,
after examining the prosecutrix ‗C', which was, consequently,
exhibited as Ex PW-12/A. She identified the signatures of Dr. Shaina,
on the said document. Thereafter, she reiterated the contentions of the
MLC. She was not cross-examined, despite grant of opportunity.

Police Witnesses

14. Ct. Sunil (PW-1) tendered his examination-in-chief by way of
affidavit dated 30th July 2012 (PW-1/1), in which he deposed that

(i) on 7th February 2012, at about 6.00 PM, he had received a PCR call
to the effect that, at the tea stall near the Hanuman Temple, one boy
was sitting with a small girl, and that the caller suspected that
something wrong had happened, (ii) on receiving the said call he,
along with the PCR van staff, reached the spot where the appellant

Crl Appeal 1395/2013 Page 24 of 67
was found sitting with ‗C', who was about 5-6 years of age, (iii) the
parents of ‗C' reached the spot and asked her what had happened,
whereupon she revealed, to her parents, that Shree Bhagwan had
"galat kaam" (wrong deed) with her and tried to drown her in the
canal, (iv) he, along with the PCR van staff, took ‗C' and her parents
Virender (PW-15), Sangeeta (PW-19) and the appellant, to the MV
Hospital, where ‗C' was handed over to the Duty Constable and the
appellant was handed over to ASI Raj Kumar. In his cross
examination, PW-1 Ct. Sunil, however, turned hostile, stated that ‗C'
was not understanding Hindi and was, therefore, only crying and not
saying anything.

15. Lady Ct. Ritu (PW-2) also tendered her examination-in-chief by
way of affidavit (Ex PW-2/1), wherein she affirmed that, on 3rd May
2012, she, along with SI Narender (PW-25) accompanied the
prosecutrix ‗C' and her father Virender to the Rohini Court, where
they got the statement of ‗C' recorded under Section 164 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as ―the Cr PC‖).
She was not cross-examined, despite grant of opportunity.

16. Ct. Balraj (PW-3), too, tendered his examination-in-chief by
way of affidavit (Ex PW-3/1), wherein he confirmed that, on 8th
February, 2012, he, along with the I/O SI Anil Tushir (PW-24)
accompanied the appellant, from the lock-up at PS Bawana, to the
Bawana Canal, for investigation and that, thereafter, they went to the
MV Hospital and had the appellant medically examined and his MLC

Crl Appeal 1395/2013 Page 25 of 67
drawn up. He also deposed as to the handing over, to him, of samples
by the doctor at the MV Hospital, which he handed over, in turn, to
the IO SI Anil Tushir. Thereafter, he deposed, the appellant was
produced before the learned MM and remanded to JC. Though he was
cross-examined, nothing substantial emerged therefrom.

17. Ct. Anil, who deposed as PW-4, also tendered his evidence-in-
chief by way of affidavit (Ex PW-4/1), wherein he confirmed having
taken the exhibits of the case, from the malkhana, on 15th of March
2012, and having deposited them at the FSL, Rohini, and that, so long
as the exhibits remained in his custody, they were not mishandled. He
was not cross-examined, despite grant of opportunity.

18. Ct. Kuldeep (PW-5) also tendered his examination-in-chief by
way of affidavit, which was exhibited as Ex PW-5/1, in which he
affirmed that, on 7th of February 2012, ASI Raj Kumar (PW-11)
handed over, to his custody, the appellant, who, in turn, was handed
over, by him, to the IO SI Anil Tushir (PW-24). He was not
cross-examined, despite grant of opportunity.

19. W/Ct. Meenu (PW-7) also filed her examination-in-chief, by
way of affidavit (Ex PW-7/1), in which she confirmed that she had
reached MV hospital at about 7:30 PM on 7th February 2012, where
she met ASI Raj Kumar (PW-11) and Ct. Arjun Lal (PW-23), and that
the prosecutrix ‗C', 5 years of age, was under treatment there. He also
confirmed that, from the MV hospital, she, along with the PCR staff,

Crl Appeal 1395/2013 Page 26 of 67
‗C' and her parents, reached the BSA Hospital, for further treatment,
where ‗C' was diagnosed and medically examined, and her MLC
prepared. The samples in the MLC were handed over, to her, by the
doctor which, in turn, she handed over to ASI Raj Kumar. In fine, she
stated that she, along with her staff, the prosecutrix and her parents,
came to the Police Station. Though she was cross-examined by
learned amicus curiae appearing for the appellant, nothing substantial
emerged therefrom.

20. W/Ct. Alka (PW-9) also tendered her examination-in-chief by
way of affidavit (Ex. PW-9/1). She testified, in the said affidavit,
having recorded, at 5.51 PM on 7th February 2012 ―regarding ek ladka
ek choti bachhi ke saath baitha hai caller ko doubt hai kuchh galat
kaam kiya hai‖ (―a boy is sitting with a young girl, the caller feels that
something wrong has been done to her‖). She was not cross-
examined, despite grant of opportunity.

21. HC Dharmpal (PW-10) who, too, tendered his examination-in-
chief by way of affidavit (exhibited as Ex PW-10/1) deposed, therein,
that the exhibits, in the above case, were deposited by the IO SI Anil
Tushir (PW-24) on 7th and 8th February 2012 which, as per the
directions of the IO, were handed over, by him, to Ct. Anil Kumar
(PW-4) on 15th March 2012 and that, after submitting the said exhibits
to the FSL, Rohini, Ct. Anil Kumar handed over, to him, the receipts
of the exhibits and a copy of the RC registered in the case. He further
deposed that, so long as the exhibits were at the malkhana, they were

Crl Appeal 1395/2013 Page 27 of 67
tampered with. He was not cross-examined, despite grant of

22. ASI Raj Kumar, as PW-11, also tendered his examination-in-
chief by way of affidavit (Ex PW-11/1), and further deposed, orally
before the learned ASJ, that he had recorded the statement of
Virender, i.e. the father of the prosecutrix ‗C', which was,
accordingly, exhibited as Ex PW-11/A. In his affidavit by way of
examination-in-chief, ASI Raj Kumar testified that, on 7th February,
2012, on entrustment vide DD No 60 2B, he, along with Ct. Arjun Lal
(PW-23) reached the MV hospital, collected the MLC of the
prosecutrix ‗C' and, after recording the statement of Virender, sent
Ct. Arjun Lal to PS Bawana, for registering a case. He further stated
that the appellant was also sent to PS Bawana in the custody of
Ct. Kuldeep (PW-5), and that he had handed over the MLC of ‗C' to
the IO SI Anil Tushir, who had arrived at the MV hospital. He was
not cross-examined, despite grant of opportunity.

23. ASI Shree Bhagwan (PW-22) deposed, in his examination-in-
chief, that, on 7th February, 2012, at about 6 PM, he received a call
from the PCR, that one boy was sitting with a small girl at the
Hanuman temple tea stall, and that the caller suspected that the boy
had raped the girl. He further stated that, on receiving the said
information, he immediately reached the concerned site, where he
found the appellant and the prosecutrix, who was about 5 years of age,
as well as the caller who had contacted him. In the meantime, the

Crl Appeal 1395/2013 Page 28 of 67
parents of the prosecutrix ‗C' also reached there and, as per the
deposition of ASI Shree Bhagwan, ‗C' disclosed, to her parents, the
fact that the appellant had committed rape with her and tried to throw
her in the nehar. ASI Shree Bhagwan further deposed that, thereafter,
they took ‗C', her parents and the appellant to the MV hospital, where
she was medically examined and that, on arrival of ASI Raj Kumar
there, the appellant was handed over to him. He also correctly
identified the appellant, who was present in the court. In his cross-
examination, PW-22 ASI Shree Bhagwan further elucidated that the
appellant and the prosecutrix ‗C' were both wet, at the time when
they, i.e. PW-22 and the other members of the Police, reached the
spot, though it was not raining. He further stated that he did not check
whether the appellant was smelling of alcohol or not and that, as there
was a large number of persons at the spot, they hurriedly removed ‗C'
and the appellant to the hospital.

24. Ct. Arjun Lal (PW-23) deposed, in his examination-in-chief,
that, on 7th February 2012, while on emergency duty, he, along with
ASI Raj Kumar (PW-11) reached the MV Hospital and collected the
MLC of ‗C'. He further deposed that the appellant was handed over,
by the PCR officials, to ASI Raj Kumar who, thereafter, recorded the
statement of Virender (PW-15) and prepared the rukka, which he
carried, with him, to the Police Station for registration of a FIR. After
the FIR was registered, as per the statement of Ct. Arjun Lal, a copy of
the FIR, along with the original rukka, were handed over, by him, to
the IO SI Anil Tushir (PW-24) for further investigation, after which

Crl Appeal 1395/2013 Page 29 of 67
they reached the MV hospital, where they met ASI Raj Kumar and
Ct. Meenu (PW-7). Ct. Arjun Lal further stated that ‗C' was taken to
the BSA Hospital, along with Ct. Meenu, where the doctor handed
over, to her, the MLC of ‗C' along with 15 sealed exhibits, which
were seized by the IO. The appellant, he stated, was handed over to
the custody of Ct. Kuldeep (PW-5) and sent to the Police Station,
where he reached later, with the IO. He further deposed that, at the
Police Station, the appellant was interrogated by the IO, whereupon he
disclosed that he had committed rape on ‗C' at the nehar, whereupon
the IO proceeded to arrest the appellant, vide Arrest Memo exhibited
as Ex PW-23/A. He also stated that the disclosure statement, of the
appellant, was recorded by the IO, which was exhibited as Ex PW-
23/C, and bore his signatures. He also testified to the fact that the
appellant pointed out the place of incident, vide pointing out memo
exhibited as Ex PW-23/D which, too, bore his signatures. He
correctly identified the appellant, who was present in the court. In
cross-examination, PW-23 Ct. Arjun Lal deposed that the prosecutrix
‗C' did not make any statement in his presence, and that ASI Raj
Kumar had recorded the rukka on the basis of the statement of
Virender, i.e. her father. He further stated that, of the persons present
at the tea stall, one of them revealed that he knew the parents of ‗C'.
He also accepted that the IO did not interrogate ‗C', or record her
statement, in his presence. He went on to state that, when they met the
appellant in the hospital, his clothes were wet, and that, on being
asked the reason thereof, by the IO, the appellant initially stated that
he had been sitting at the banks of the nehar and was trying to save

Crl Appeal 1395/2013 Page 30 of 67
‗C' but, later on, broke down and confessed that he had done "galat
kaam" with her. He emphatically denied the suggestion, put to him,
that the appellant had not made any statement, to the IO, to the effect
that he had done "galat kaam" with ‗C', or that he had always insisted
that he was innocent and trying to save her.

25. SI Anil Tushir (PW-24) supported the above statements, by
deposing, in examination-in-chief, that (i) consequent to being handed
over a copy of the FIR and original rukka, by Ct. Arjun Lal (PW-23)
on 7th February 2012, he, along with Ct. Arjun Lal, reached the MV
Hospital, at the time when the prosecutrix ‗C' was about to be shifted
to the BSA Hospital, (ii) after recording the statement of the officials
of the PCR, he returned to the Police Station, where ASI Raj Kumar
(PW-11) provided him the MLC of ‗C' (iii) he interrogated the
appellant, who was in the custody of Ct. Kuldeep (PW-5), at which the
appellant confessed about his involvement in the crime, whereupon he
arrested the appellant and proceeded to record his disclosure statement
(Ex PW-23/C), (iv) thereafter, the appellant pointed out the place of
incident, vide memo exhibited as Ex PW-23/D, (v) he, thereafter,
prepared the site plan (Ex PW-24/A) and also recorded the statement
of Sonu, who met him near the place of incident, (vi) Sonu identified
the appellant, (vii) he also recorded the statements of the parents of
‗C' and of Ct. Arjun Lal, and had the seized articles deposited in the
malkhana, (viii) on the next day, i.e. 8th February 2012, he recorded
the statements of Amit (PW-17) and Krishan Kumar (PW-14), (ix) the
appellant was taken to the MV Hospital for medical examination, after

Crl Appeal 1395/2013 Page 31 of 67
which he collected his MLC and 5 pullandas from Ct. Balraj (PW-3),
which he seized and (x) the appellant was, thereafter, produced before
the learned MM and sent to JC, and the seized articles were deposited
in the malkhana. He further deposed that, on 15th March 2012, the
exhibits of the case were sent to the FSL through Ct. Anil (PW-4) and
statements were recorded by him, whereafter he was transferred from
the case. He correctly identified the appellant, who was present in the
court. In cross-examination, he stated that, at the MV Hospital, the
prosecutrix ‗C' was not in a position to speak and did not inform him
anything about the incident, as she was continuously crying and was
extremely scared and apprehensive, and that, even at the BSA
Hospital, she was not in a fit condition to make a statement. He
further stated that ‗C' never mentioned the name of the appellant to
him directly, as the person who had done wrong with her and that the
name of the appellant was mentioned by her father and by the public
witness. He further accepted that he did not find the appellant to be
smelling of alcohol, though the interrogated him at the Police Station,
but denied the suggestion that the appellant had claimed that he was
innocent and was only trying to save ‗C', who was drowning in the
nehar. He also denied the suggestion that the appellant did not make
any disclosure confessing his involvement in the crime, or that he had
recorded the same on the asking of the father of the prosecutrix ‗C'.

26. The last witness, whose statement was recorded, was
SI Narender (PW-25), who testified regarding the fact of his having
got recorded the statement of the prosecutrix ‗C' under Section 164 of

Crl Appeal 1395/2013 Page 32 of 67
the CrPC, which was, consequently, exhibited as Ex PW-20/A, as also
to having recorded the statement of her father Virender and of
W/Ct. Ritu. He further deposed regarding his having submitted the
charge sheet against the appellant, collected the FSL report
(Ex PW-25/A), and having submitted a supplementary charge-sheet,
along with the said report, in the Court of the learned MM, on
26thAugust 2012. He correctly identified the appellant, who was
present in the court. In cross-examination, he denied the suggestion
that he had tutored the prosecutrix ‗C', or that she had identified the
appellant, in the court, on his having pointed him out.

Statement of the appellant under Section 313 of the Cr PC

27. The statement of the appellant was recorded, under Section 313
of the CrPC, on 12thSeptember 2012. He professed ignorance
regarding most of the events that had taken place, as retold to him, and
insisted that he had been falsely implicated in the case. He denied the
fact that he had pointed out the place of occurrence, and insisted that
he was trying to save the prosecutrix ‗C', as she was drowning in the
nehar. He insisted that he never tried to flee from the spot and was,
rather, standing at the bank of the nehar, after having saved the life of
the prosecutrix ‗C'. He flatly denied all allegations, made against him,
by the various witnesses, as also the fact that ‗C' had been raped,
following which there was blood on her underwear, etc. He asserted
that all witnesses, who had deposed against him, had deposed falsely.

Crl Appeal 1395/2013 Page 33 of 67

FSL Report

28. The FSL report, issued on 4thJuly, 2012, is significant only to
the extent that it failed to detect any semen on the ―Step 9 vaginal
secretions‖ (Ex 1L(a) and 1L(b), the‖ Step 9 cervical mucus
collection‖ (Ex 1M),the ―Step 10 Culture‖ (Ex 1N), or the ―Step 12
Rectal examination‖ (Ex 1P(a), 1P(b) and 1P(c)) samples of the
prosecutrix ‗C'.

The impugned judgement

29. The learned ASJ, vide the impugned judgement dated
17th October 2012, convicted the appellant under Sections 363, 366
and 376(2)(f) of the Indian Penal Code, 1860 (hereinafter referred to
as ―the IPC‖), for having committed the offences of kidnapping of ‗C'
from the lawful guardianship of her parents, with the intention of
forcing or seducing her to illicit intercourse and, thereafter,
committing aggravated sexual assault/rape upon her.

30. Vide subsequent order dated 31st October, 2012, the learned ASJ
sentenced the appellant to (i) 7 years' rigorous imprisonment and fine
of Rs. 10,000/-, with default punishment of simple imprisonment of
15 days, for the offence under Section 363 read with Section 366 of
the IPC, and (ii) rigorous imprisonment for life, with fine of
Rs. 50,000/-, with default punishment of 6 months' simple
imprisonment, for the offence under Section 376 (2) (f) of the IPC.

Crl Appeal 1395/2013 Page 34 of 67

31. In arriving at the decision to convict the appellant, the learned
ASJ reasoned thus:

(i) The identity of the appellant stood established, in view of
the undisputed position that he was apprehended by public
persons at the spot itself, and was handed over to the Police, as
also because he was specifically identified, not only by the
prosecutrix ‗C', from amongst other persons of similar profile,
but also by her mother Sangeeta (PW-19), her father Virender
(PW-15), Sonu (PW-16) and Krishan Kumar (PW-14), as the
person who was apprehended from the spot. There was no
reason to disbelieve their testimonies.

(ii) The age of the prosecutrix was also proved to be 5 to 6
years, at the time of commission of the crime, in view of the
un-controverted testimonies, to this effect, of her parents, i.e.
Virender (PW-15) and Sangeeta (PW-19).

(iii) The MLC of ‗C' (Ex PW-12/A), as prepared by
Dr. Shaina, stood duly proved by Dr. Shilpi Goyal (PW-12) and
Dr. Geetanjali Singh (PW-18). Dr. Shilpi Goyal had further
proved that, on local examination, the hymen of ‗C' was found
torn, she was bleeding per vagina and her vaginal and rectal
mucosa were found torn. She further deposed that, under local
anesthesia, the said tears were prepared. She also testified to
the bruises, under the left eye of ‗C', cuts on both her lips and
fresh wounds on the right side of chin and neck, as observed in
the MLC. Dr. Geetanjali Singh also proved that, at the time of

Crl Appeal 1395/2013 Page 35 of 67
medical examination of ‗C', the child was apprehensive and
uncooperative and was bleeding vaginally. The testimony of
this witness had gone completely uncontroverted. As such, the
medical evidence that had come on record was compatible with
the allegation of aggravated sexual assault and rape having been
committed upon ‗C'.

(iv) While it was true that the FSL Report (Ex PW-25/A)
stated that semen could not be detected on any of the exhibits,
this finding could not help the appellant, in view of the peculiar
circumstances in which the crime had been committed, being
that, after commission of the offence, ‗C' was thrown into a
flowing ‗nehar‟. In these circumstances, it was quite possible
that the semen would have been washed off.

(v) The examination-in-chief of ‗C', during trial, completely
and categorically inculpated the appellant. The only
suggestions, made to her in cross-examination, were that she
had named and identified the appellant on the tutoring of her
parents, and that the appellant had not, in fact, committed any
―galat kaam‖ with her and had, rather, saved her. She denied
the said suggestions.

(vi) Sonu (PW-15) also deposed, in his examination-in-chief,
that the prosecutrix ‗C', when he found her, had her face
swollen and clothes blood stained, and that the appellant had
tried to flee from the spot, but that he had apprehended him and
brought him, with the prosecutrix ‗C', to the tea shop near the
Hanuman Temple, where he was met by Krishan Kumar

Crl Appeal 1395/2013 Page 36 of 67
(PW-14), to whom he narrated all the facts. His deposition that,
on his asking the appellant to tell the true facts, the appellant
admitted to having committed rape with ‗C', also stood
uncontroverted. In his cross-examination, Sonu clarified that he
was able to apprehend the appellant, as he was drunk at the time
and smelling of alcohol.

(vii) The testimony of Sonu found independent corroboration
in the depositions of Krishan Kumar (PW-14) and Amit

(viii) The assertion, by the appellant, that he was trying to save
‗C', and had been falsely implicated by Sonu, was demolished
by the deposition of ‗C' herself, as she identified the appellant
from amongst many persons, of similar profile, present in the
court, and also went on to describe the various acts committed
by the appellant, towards her violation. There was no reason for
‗C', who was merely a child, to lie or wrongly identify the
appellant; neither was there any history of animosity between
the appellant and her parents, or between the appellant and
Sonu, or Amit, or Krishan Kumar.

(ix) The defence, of the appellant, that the oppressor of ‗C'
was, actually Sonu, was improbable. There was no reason why,
if Sonu had perpetrated these atrocities on her, ‗C' would have
named the appellant, instead of Sonu. Even otherwise, it was
improbable that a person, who had committed such a crime on
‗C', would himself save the child; rather, his instinct would
have been to flee from the spot.

Crl Appeal 1395/2013 Page 37 of 67

(x) Rather, the conduct of the appellant was more suspicious,
as there was no explanation for his presence at the corner of the
nehar, where the prosecutrix was clinging on to the weeds and
trying to save herself from drowning. It was clear that, in fact,
Sonu had saved ‗C' and, but for his intercession, she would
have drowned.

(xi) In the circumstances, as the identity of the appellant, the
manner of commission of offence, the place of commission of
offence and the various documents, stood proved, and the
veracity of the prosecution witnesses was neither shattered, nor
their testimonies falsified, and in the absence of any inherent
contradiction, inconsistency or infirmity amongst the statements
of the various PWs, the offence under Sections 363, 366 and
376(2)(f) of the IPC (as it existed then), stood proved against
the appellant.

Submissions of learned counsel

32. We have heard Mr. Pramod Kumar Dubey, learned counsel for
the appellant, and Ms. Aashaa Tiwari, learned Additional Public
Prosecutor (―APP‖) for the State.

33. Appearing for the appellant, Mr. Pramod Kumar Dubey
ventilates the following submissions:

(i) In her statement under Section 164 of the CrPC, the
prosecutrix did not name the appellant. Rather, she stated that

Crl Appeal 1395/2013 Page 38 of 67
she was not in a position to identify the boy who had committed
rape on her.

(ii) Reliance could not, justifiably, be placed on the
identification, by the prosecutrix, of the appellant, in Court
during trial, as the light was low.

(iii) Neither had the prosecutrix named the appellant, in her
statement to Sonu.

(iv) Sonu and Krishan Kumar had stated that the incident of
rape took place behind the Hanuman temple, whereas the site
plan (Ex PW-24/A) showed that it took place on the bank of

(v) No question had been put, to any of the doctors,
regarding the issue of whether penetration, of the vagina of ‗C',
had taken place. Sans penetration, there could be no question of

(vi) The explanation, for the absence of semen on any of the
exhibits, to the effect that the semen could have been washed
away by the flowing water in the canal, was facile, as, had rape
taken place, semen would be inside the vagina, and could not,
therefore, disappear merely because the prosecutrix was lying in
the canal.

(vii) The site plan also indicated that the spot of alleged
occurrence of rape was not an isolated place.

34. Per contra, Ms. Aashaa Tiwari, learned APP, merely placed
reliance on the statements of the prosecutrix ‗C', under Section 164 of

Crl Appeal 1395/2013 Page 39 of 67
the CrPC and, thereafter, during the course of trial. She emphasised
that these were sufficient to indict the appellant, and that no further
proof was required.

Discussion and findings

35. Sections 375 and 376 (sans the Explanations thereto, which are
not of significance insofar as the present case is concerned) of the IPC,
as they stood prior to their amendment by the Criminal Law
(Amendment) Act, 2013 (w.e.f. 3rd February 2013), read thus:

―375. Rape. - A man is said to commit ―rape‖ who, except in the
cases hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the 6 following
descriptions: -

First. - Against her will.

Secondly. - Without her consent.

Thirdly. - With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested in fear of death or of hurt.

Fourthly. - With her consent, when the man knows that he is
not her husband, and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.

Fifthly. - With her consent, when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of
any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.

Crl Appeal 1395/2013 Page 40 of 67

Sixthly. -With or without her consent, when she is under 16
years of age.

Seventhly.- When she is unable to communicate consent.

Explanation. - Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.

Exception. - Sexual intercourse or sexual acts by a man of his
own wife, the wife not being under 15 years of age, is not

―376. Punishment for rape. -

(1) Whoever, except in the cases provided for by sub-
section (two), commits rape shall be punished with rigorous
imprisonment of either description for a term which shall not
be less than seven years but which may be for life for a term
which may extend to 10 years and shall also be liable to fine
unless the women raped is his own wife and is not under 12
years of age, in which case, he shall be punished with
imprisonment of either description for a term which may
extend to 2 years or with fine or with both:

Provided that the Court may, for adequate and special reasons
to be mentioned in the judgement, 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;

Crl Appeal 1395/2013 Page 41 of 67

(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 12
years of age; or

(g) commits gang rape,

shall be punished with rigorous imprisonment for a term
which shall not be less than 10 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 judgement, impose a sentence of
imprisonment of either description for a term of less than 10

36. Rape, of a child of tender years, is a crime sui generis. It
resides in a netherworld all its own, and betokens a depravity, in the
perpetrator, which falls decidedly outside the pale of humanity. The
perpetrator of such an offence is a psycho-social deviant, who brutally

Crl Appeal 1395/2013 Page 42 of 67
indoctrinates his victim into adulthood, when she is still at the cusp of
infancy, and is yet to savour the first fragrance of adolescence.

Sympathy has no part to play in dealing with such an offender, and
any attempt at benevolence, or mercy, would be an affront, not only to
the hapless victim, but to the entire social fabric of womankind.

37. Though it is an oft repeated aphorism that precedent has little
value in criminal cases. It would, nevertheless, be instructive to
examine how the Supreme Court has been dealing with cases arising
under Section 376 (2) (f) of the IPC.

38. In State of Chhattisgarh v. Dehra, (2004) 9 SCC 699, the
respondent committed rape on an eight year old girl, when she was
alone at the home. The victim narrated the incident to her mother, on
her return. The High Court acquitted the respondent, on the ground
that there was some discrepancy regarding the issue of whether
penetration had taken place or not, medical examination of the
respondent did not show any injury on the victim's private parts and
there was a possibility that the victim, being a child was tutored. The
Supreme Court, in appeal, reversed the decision of the High Court. It
was observed that there could be no doubt regarding the factum of
rape of the prosecutrix having been taken place, as there was blood on
her private parts, her hymen was torn and her labia minora was
inflamed. Reiterating the well settled proposition that, in such cases,
conviction could be based solely on the evidence of the prosecutrix,
the Supreme Court reversed the decision of the High Court and

Crl Appeal 1395/2013 Page 43 of 67
restored the sentence awarded to the respondent therein by the Trial
Court. An important proposition that emerges, from this decision, is
that, in such cases, irrefutable proof of penetration is not a sine qua
non for the offence under Section 376 (2)(f) of the IPC to be said have
been made out, and bleeding from the genital area, coupled with the
injuries on the genitals, were sufficient proof that the offence had been

39. In Datta Vs. State of Maharashtra (2013) 14 SCC 588, the
appellant-accused was convicted for committing rape of a 10 to 12
year old girl. Medical examination of the prosecutrix, in that case,
found no labial injuries or presence of sperm; however, the hymen of
the prosecutrix was torn and there was laceration on her posterior
vaginal wall. Additionally, in that case, the doctor had opined that the
injuries found on the prosecutrix could be attributable to partial
penetration of her vagina. Given these facts, the Supreme Court
upheld the conviction of the appellant and the sentence awarded to
him. This decision underscores the position that the absence of
sperm/semen would not rule out the possibility of the offence under
Section 376 (2)(f) having been committed, and that the fact that the
hymen of the prosecutrix was torn and that vaginal injuries had been
sustained by her, were sufficient to constitute the offence.

40. Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11
SCC 688 involved the rape of a 11 year old girl, after having been
enticed by the appellant therein, on the pretext of purchasing bangles.

Crl Appeal 1395/2013 Page 44 of 67

Adjudicating on the appeal, the Supreme Court held that the absence
of any actual wound on the private parts of the prosecutrix was not
conclusive of the fact that she was not subjected to rape. As human
semen was traceable in the private parts of the girl, rape was held to
have been committed, even without any proof of penetration. On
these facts, the Supreme Court held that limited penetration of the
prosecutrix, in that case, was proved.

41. In Shyam Narain v. State, (2013) 7 SCC 77, the appellant-
accused was convicted of having raped an 8 year old girl. In that case,
too, the prosecutrix was bleeding from her private parts, and the MLC
revealed vaginal injuries and a torn hymen. It was held, by the
Supreme Court, that the unimpeachable evidence of the child M, the
testimony of the treating physicians, the medical evidence and the
conduct of the accused, were sufficient to secure his conviction. The
following findings, returned by the Court while examining the issue of
sentence, are of stellar significance:

―19. The aforesaid authorities deal with sentencing in general. As
is seen, various concepts, namely, gravity of the offence, manner of
its execution, impact on the society, repercussions on the victim and
proportionality of punishment have been emphasised upon. In the
case at hand, we are concerned with the justification of life
imprisonment in a case of rape committed on an eight year old girl,
helpless and vulnerable and, in a way, hapless. The victim was both
physically and psychologically vulnerable. It is worthy to note that
any kind of sexual assault has always been viewed with seriousness
and sensitivity by this Court.

20. In Madan Gopal Kakkad v. Naval Dubey [(1992) 3 SCC 204
: 1992 SCC (Cri) 598] it has been observed as follows: (SCC p. 226,
para 57)

Crl Appeal 1395/2013 Page 45 of 67
―57. ... though all sexual assaults on female children are not
reported and do not come to light yet there is an alarming and
shocking increase of sexual offences committed on children.
This is due to the reasons that children are ignorant of the act
of rape and are not able to offer resistance and become easy
prey for lusty brutes who display the unscrupulous, deceitful
and insidious art of luring female children and young girls.
Therefore, such offenders who are menace to the civilized
society should be mercilessly and inexorably punished in the
severest terms.‖

21. In State of A.P. v. Bodem Sundara Rao [(1995) 6 SCC 230 :
1995 SCC (Cri) 1097 : AIR 1996 SC 530] this Court noticed that
crimes against women are on the rise and such crimes are affront to
the human dignity of the society and, therefore, imposition of
inadequate sentence is injustice to the victim of the crime in
particular and the society in general. After so observing, the learned
Judges had to say this: (SCC p. 232, para 9)

―9. ... The courts have an obligation while awarding
punishment to impose appropriate punishment so as to
respond to the society's cry for justice against such criminals.
Public abhorrence of the crime needs a reflection through the
court's verdict in the measure of punishment. The courts must
not only keep in view the rights of the criminal but also the
rights of the victim of crime and the society at large while
considering imposition of the appropriate punishment.‖

22. In State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 :
1996 SCC (Cri) 316 : AIR 1996 SC 1393] this Court stated with
anguish that crime against women in general and rape in particular is
on the increase. The learned Judges proceeded further to state that it
is an irony that while we are celebrating women's rights in all
spheres, we show little or no concern for her honour. It is a sad
reflection of the attitude of indifference of the society towards the
violation of human dignity of the victims of sex crimes. Thereafter,
the Court observed the effect of rape on a victim with anguish: (SCC
p. 403, para 21)

Crl Appeal 1395/2013 Page 46 of 67

21. ... 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.‖

23. In State of Karnataka v. Krishnappa [(2000) 4 SCC 75 :
2000 SCC (Cri) 755] a three-Judge Bench opined that the
―[c]ourts must hear the loud cry for justice by the society in
cases of the heinous crime of rape on innocent helpless girls
of tender years ... and respond by imposition of proper
sentence. Public abhorrence of the crime needs reflection
through imposition of appropriate sentence by the court.‖
(SCC pp. 83-84, para 18)

It was further observed that to show mercy in the case of such a
heinous crime would be a travesty of justice and the plea for leniency
is wholly misplaced.

24. In Jugendra Singh v. State of U.P. [(2012) 6 SCC 297 :
(2012) 3 SCC (Cri) 129] , while dwelling upon the gravity of the
crime of rape, this Court had expressed thus: (SCC p. 311, para 49)

―49. Rape or an attempt to rape is a crime not against an
individual but a crime which destroys the basic equilibrium of
the social atmosphere. The consequential death is more
horrendous. It is to be kept in mind that an offence against the
body of a woman lowers her dignity and mars her reputation. It
is said that one's physical frame is his or her temple. No one has
any right of encroachment. An attempt for the momentary
pleasure of the accused has caused the death of a child and had a
devastating effect on her family and, in the ultimate eventuate,
on the collective at large. When a family suffers in such a
manner, the society as a whole is compelled to suffer as it
creates an incurable dent in the fabric of the social milieu.‖

25. Keeping in view the aforesaid enunciation of law, the
obtaining factual matrix, the brutality reflected in the commission of
crime, the response expected from the courts by the society and the

Crl Appeal 1395/2013 Page 47 of 67
rampant uninhibited exposure of the bestial nature of pervert minds,
we are required to address whether the rigorous punishment for life
imposed on the appellant is excessive or deserves to be modified.
The learned counsel for the appellant would submit that the appellant
has four children and if the sentence is maintained, not only his life
but also the life of his children would be ruined. The other ground
that is urged is the background of impecuniosity. In essence,
leniency is sought on the base of aforesaid mitigating factors.

26. It is seemly to note that the legislature, while prescribing a
minimum sentence for a term which shall not be less than ten years,
has also provided that the sentence may be extended up to life. The
legislature, in its wisdom, has left it to the discretion of the court.
Almost for the last three decades, this Court has been expressing its
agony and distress pertaining to the increased rate of crimes against
women. The eight year old girl, who was supposed to spend time in
cheerfulness, was dealt with animal passion and her dignity and
purity of physical frame was shattered. The plight of the child and
the shock suffered by her can be well visualised. The torment on the
child has the potentiality to corrode the poise and equanimity of any
civilised society. The age-old wise saying that ―child is a gift of the
providence‖ enters into the realm of absurdity. The young girl, with
efflux of time, would grow with a traumatic experience, an
unforgettable shame. She shall always be haunted by the memory
replete with heavy crush of disaster constantly echoing the chill air
of the past forcing her to a state of nightmarish melancholia. She
may not be able to assert the honour of a woman for no fault of hers.

27. Respect for reputation of women in the society shows the
basic civility of a civilised society. No member of society can afford
to conceive the idea that he can create a hollow in the honour of a
woman. Such thinking is not only lamentable but also deplorable. It
would not be an exaggeration to say that the thought of sullying the
physical frame of a woman is the demolition of the accepted civilised
norm i.e. ―physical morality‖. In such a sphere, impetuosity has no
room. The youthful excitement has no place. It should be
paramount in everyone's mind that, on the one hand, society as a
whole cannot preach from the pulpit about social, economic and
political equality of the sexes and, on the other, some perverted
members of the same society dehumanise the woman by attacking
her body and ruining her chastity. It is an assault on the individuality

Crl Appeal 1395/2013 Page 48 of 67
and inherent dignity of a woman with the mindset that she should be
elegantly servile to men. Rape is a monstrous burial of her dignity in
the darkness. It is a crime against the holy body of a woman and the
soul of the society and such a crime is aggravated by the manner in
which it has been committed. We have emphasised on the manner
because, in the present case, the victim is an eight year old girl who
possibly would be deprived of the dreams of ―Spring of Life‖ and
might be psychologically compelled to remain in the ―Torment of
Winter‖. When she suffers, the collective at large also suffers. Such
a singular crime creates an atmosphere of fear which is historically
abhorred by the society. It demands just punishment from the court
and to such a demand, the courts of law are bound to respond within
legal parameters. It is a demand for justice and the award of
punishment has to be in consonance with the legislative command
and the discretion vested in the court.

28. The mitigating factors put forth by the learned counsel for the
appellant are meant to invite mercy but we are disposed to think that
the factual matrix cannot allow the rainbow of mercy to magistrate.
Our judicial discretion impels us to maintain the sentence of rigorous
imprisonment for life and, hence, we sustain the judgement of
conviction and the order of sentence passed by the High Court.‖

42. State of Himachal Pradesh v. Sanjay Kumar, (2017) 2 SCC
51, again involved rape of a 9 year old. The High Court acquitted the
accused on the ground that the offence had been alleged to have been
committed in the house of the prosecutrix, where there were 20 to 25
persons residing, between 8AM and 9AM. The possibility of such an
incident taking place was, it was held, doubtful, if even some of the
members of the family were not in the house at that time. The
inaction, on the part of the prosecutrix, to disclose the incident to other
members of the family, including her mother, was also regarded as an
exculpating circumstance. Additionally, it was held that the
observation, that the salwar of the prosecutrix was blood stained was

Crl Appeal 1395/2013 Page 49 of 67
difficult to believe, as this would not have gone unnoticed. These
factors, coupled with the fact that the complaint, regarding the
incident, was lodged three years thereafter, according to the High
Court, defeated the case of the prosecution. Observing, initially, that,
while examining the issue, the Court was required to take into
consideration the realities of life that prevailed in the Indian social
milieu, the Supreme Court, in appeal, held that it was quite
understandable that a 9-year old child, who had undergone such a
traumatic experience, would be frozen with fear, and unable to speak.
(The fact that the oppressor in that case was the uncle of the
prosecutrix, was also relied upon.) Significantly, in that case, the
prosecutrix narrated the incident two to three years after the offence
had taken place, when she began of complaining of continuous
stomach ache and, on being referred to a gynaecologist, the fact of her
having been sexually assaulted, two to three years earlier, came to
light. It merits reiteration, that, given these circumstances, the
Supreme Court refusal to treat the delay of two to three years, in
reporting the incident - which would ordinarily have been
irremediably fatal to the case of the prosecution in any other case - as
an extenuating circumstance. In the facts of the case, the reliance by
the High Court, on the family being joint, and on the improbability of
the allegedly blood-stained salwar of the prosecutrix going unnoticed,
were, it was held, misguided. The following observations, in para 31
of the report, are vital:

―31. After thorough analysis of all relevant and attendant factors,
we are of the opinion that none of the grounds, on which the High

Crl Appeal 1395/2013 Page 50 of 67
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 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. v. State of
H.P., (2003) 8 SCC 551 : 2004 SCC (Cri) 31). Notwithstanding this
legal position, in the instant case, we even find enough corroborative
material as well, which is discussed hereinabove.‖

43. These, and a host of other decisions on the point, reference
whereto may not be necessary, establish the fact that, while dealing
with cases of sexual assault on minors, the Court has to display a
much higher degree of sensitivity than in other cases. It would be
fundamentally fallacious to subject the testimony of the prosecutrix, in
such cases, to the same rigours as those to which the evidence of the
victim in criminal cases is usually subjected. It is impossible to
fathom the psychology of a child of tender years, who has been

Crl Appeal 1395/2013 Page 51 of 67
subjected to sexual abuse, and courts are required to be alive to this
fact. While it is true that, in exercise of his adjudicatory functions, the
judge is, to an extent, required to psychoanalyze the minds of the
parties before him, especially in the case of a victim subjected to
criminal assault, this test fails completely, when dealing with a child
who has been ravished. Expecting coherence and corroboration, inter
se, among the various statements made by the prosecutrix in such
cases at different points of time, would be irrational and unrealistic.
The Court has, at all times, in such cases, to be aware of the nature of
offence alleged, and the innocence and naiveté of the victim of the

44. In the present case, there can be no question of any doubt
regarding the factum of rape having been committed on the
prosecutrix ‗C'. The MLC (Ex. PW 13/A) of PW-13 Dr. Siddharth
coupled with his evidence during trial, clearly establishes the fact that
‗C' had sustained wounds and that there were blood stains over her
lower garment. This was further established by the opinion entered by
Dr. Shilpi on the said MLC, to the effect that ‗C' was found to be
bleeding vaginally. The opinion of Dr. Shilpi was vouchsafed by
Dr. Geetanjali Singh (PW-18), whom the appellant did not choose to
cross-examine. The MLC drawn up at the BSA Hospital (Ex. PW
12/A) by Dr. Shaina, coupled with the statement of Dr. Shimpi Goyal
(PW-12), Senior Resident in the Gynecology Department of the said
Hospital, further established the fact of vaginal bleeding. Dr. Shimpi
Goyal, too, was not cross examined. In view of the fact that these

Crl Appeal 1395/2013 Page 52 of 67
MLCs unambiguously found that ‗C' was bleeding vaginally, her
hymen was torn (thereby establishing the fact of penetration given the
fact that she was only 5 years old), her vaginal and rectal mucosa were
torn and she had suffered vaginal injuries, there can be no doubt
regarding the fact that she had been subjected to rape.

45. The only issue that would remain to be decided before us,
therefore, would be whether such rape was, was not, committed by the
appellant. The appellant, predictably, alleges that the offender of the
prosecutrix ‗C' was Sonu and that he, on the other hand, was trying to
save her from drowning in the nehar.

46. We have reproduced, in extenso, in para 10 (supra), the
evidence tendered by the prosecutrix ‗C' as PW-20 before the learned
ASJ, and we are entirely convinced that, on the basis of the said
evidence, the offence of having committed rape on ‗C' is brought
home to the appellant, without a shred of doubt. The prosecutrix has
recited, in exhaustive and excruciating detail, all that transpired with
her during the nightmarish encounter with her assailant on the banks
of the nehar and has been painfully consistent throughout. She has,
clearly, unequivocally, and without an iota of ambiguity or doubt,
deposed that (i) the appellant had enticed her to accompany him on the
pretext of feeding her ―ber‖, (ii) he took her to a spot near the temple,

(iii) he removed his own, and her, underwear, (iv) he thereafter
throttled her neck and smote her in her eye, (v) he then set fire to her
hair, (vi) he thereafter ―urinated‖ in her, and (vii) having done so, he

Crl Appeal 1395/2013 Page 53 of 67
threw her in the nehar, as a result of which she was soaked when
found by Sonu. The deposition, is entirely spontaneous and natural,
and does not admit of any sign of doubt, hesitance or prevarication. It
commands, and commends, instant acceptance. ‗C', moreover
sustained cross-examination and, in equally clear and categorical
terms, asserted that she had not been tutored and had given her
statement of her own accord. She unhesitatingly denied the
suggestion that the appellant had tried to save her from drowning. We
are of the firm conviction that this deposition of ‗C' would, by itself
and without any supportive evidence, be sufficient to bring the
offence, of kidnapping, grievously injuring, and committing rape on
the prosecutrix ‗C', squarely home to the appellant.

47. An attempt was made, by learned counsel for the appellant-
accused to rely on the statement, of the prosecutrix ‗C' under Section
164 of the CrPC, pointing out the fact that, in the said statement, she
had not named the appellant. The naming of the appellant, by ‗C' in
her deposition before the learned ASJ, was therefore, it was sought to
be contended, an improvement on her statement under Section 164
CrPC and probably, therefore, tutored.

48. We are not persuaded to accept this contention. In the first
place, as we have already noted hereinabove, on her being specifically
questioned in this regard in cross-examination, the prosecutrix ‗C'
categorically asserted that her statement had been given of her own
accord and she had not been influenced by her parents to do so. We

Crl Appeal 1395/2013 Page 54 of 67
also find that the deposition of ‗C' was detailed as well as
spontaneous, and that her answers were natural responses to the
questions put to her. Even more significantly, her identification, of the
appellant, from four boys of similar height, physique and complexion,
wearing similar clothes, clearly belies the assumption, sought to be
inferred by Mr. Pramod Kumar Dubey from the statement of ‗C' under
Section 164 of the CrPC, that she could not have recognized her

49. Adverting now to the statement of ‗C' under Section 164 of the
CrPC, we observe that, in the said statement, ‗C' has pointed out that,
a few days earlier, a boy had enticed her to accompany him into the
jungle under the pretext of feeding her ‗ber' and that they had
proceeded on his cycle. She also pointed out that the boy had tried to
strangulate her and had made her unconscious and that, after she
regained consciousness, he pushed her into the canal, from which she
was rescued by another man. She further confirmed that, after
regaining consciousness, she found that she was bleeding from the
place from where she used to pass urine.

50. Learned counsel for the appellant seeks to capitalize on a single
sentence in her statement viz. ("Mai us ladke ko pehchan nahin sakti
i.e. ―I cannot identify that boy‖.) To our mind, this single and isolated
statement of ‗C', in her deposition under Section 164 of the Cr.P.C,
cannot be of any substantial assistance to the appellant. We have to
bear in mind the fact that the prosecutrix was only 7 years of age at the

Crl Appeal 1395/2013 Page 55 of 67
time, and that she was being asked to recall the particulars of what was
perhaps the most traumatic assault she would ever suffer. In such
circumstances, we are hesitant to accept the statement, made by her,
that she could not identify the boy who had violated her, as irrefutable
evidence that she would never be able to identify the boy even if he
were physically present before her. It has to be borne in mind that the
question was put to ‗C' without the appellant, or any likeness of him,
being shown to her. Without the appellant before her, ‗C', who was
merely a child of tender years, might well have been unsure whether
she would be able to recognize her attacker; however, that cannot lead
to an inference that, even if the attacker was before her in flesh and
blood, she would still be unable to recognize him. That apart, we
cannot attribute, to a seven-year old child, the same comprehension, of
the question put to her and the same accuracy, of the answer given by
her thereto, as could be attributed to an adult witness of matured
intelligence. It would, therefore, in our view be entirely impermissible
to use the statement, of the prosecutrix ‗C' rendered under Section 164
of the CrPC - which was otherwise complete and coherent in all
material particulars - as eroding, in any manner, the effect of her
subsequent deposition, in evidence, before the learned ASJ.

51. In any event, the prosecutrix having accurately identified the
appellant from amongst four youths of similar appearance, wearing
similar clothes, and having stood by the said identification in cross-
examination, we are clear in our mind that the prosecutrix ‗C'

Crl Appeal 1395/2013 Page 56 of 67
recognized the appellant as the boy who had assault her on the fateful
evening of 7th February 2012.

52. We also note that the testimony of ‗C' was significantly
corroborated by PW - 16 (Sonu). During the course of arguments a
feeble attempt was made, by learned counsel appearing for the
appellant, to shift the blame upon Sonu and to hold him responsible
for the victim's fate.

53. In his court statement, Sonu provided a vivid account of the
incident and deposed that, on 7th February, 2012, at about 5.00 p.m.,
when he was approaching the Hanuman Temple, where he used to sell
guavas, he saw a girl, around five years of age, in the canal. He
identified the appellant to be the individual who was standing that
time near the said girl. As the girl was weeping, Sonu brought her out
of the canal and noticed that her face was swollen and her clothes
bloodstained. The appellant tried to run away from there but was
apprehended by Sonu and brought to the tea shop near the Hanuman
Temple. He met Krishan Kumar there and apprised him of the
incident; call was made to the police at 100. ‗C's' parents arrived
there on the call of Krishan Kumar, and Sonu handed over the
appellant and ‗C' to the police. He further stated that the girl's
underwear was bloodstained. In cross- examination, he explained that
his residence was nearby and he used to sell seasonal fruits and
vegetables on the pavement. He further informed that the appellant
was drunk at that time and smelling of alcohol. The appellant, who

Crl Appeal 1395/2013 Page 57 of 67
was found standing on the banks of the ‗Nehar' was soaked with water
from head to toe. He denied the suggestion that the appellant had
rescued the prosecutrix. He further claimed that on his confronting
him, the appellant questioned him saying „Tu Kya Lag Raha Hai?‟.
He denied the suggestion that the appellant did not try to run away and
he himself accompanied him to the tea stall. Sonu volunteered to add
that the appellant had attempted to run away, but that he did not allow
him to do so. He was fair enough to inform that the child did not
divulge anything to him. He denied the suggestion that the child was
not brought by him to him to the tea shop or that the appellant did not
commit any wrong with the victim.

54. On analysing the testimony of this material witness, it is clear
that the appellant's presence at the spot is not under challenge.
Conflicting suggestions were given to Sonu, by the defence in cross -
examination. At one stage, it was suggested that the appellant had
accompanied Sonu to the tea stall ‗himself'. Elsewhere, an entirely
inconsistent suggestion was given that Sonu had not brought the
appellant and the victim from the canal to the tea shop. Apparently,
the appellant was not sure as to what defence he was to plead. No
suggestion was advanced, during the effect that Sonu was the
perpetrator of the crime, or that the appellant had saved the girl from
drowning in the canal. The appellant, who was in the company of ‗C'
soon before his apprehension, did not offer any explanation for the
underwear/clothes of ‗C' being bloodstained, or for her face being
swollen. These facts were in the especial knowledge of the appellant,

Crl Appeal 1395/2013 Page 58 of 67
which he failed to divulge or explain, as required by Section 106 of
the Evidence Act. In the absence of any prior animosity or ill-will,
Sonu, aged around 24 years, a poor guava seller, cannot be expected to
falsely implicate the appellant in such a heinous crime. It appears,
rather that ‗C' was fortunate that Sonu happened to reach at the spot in
time for her; or else the appellant could have caused even more harm
to her.

55. Though the deposition of the prosecutrix ‗C' would, by itself,
be sufficient to bring the charge of rape home to the appellant, we also
take notice of the fact that the appellant was accurately identified by
Krishan Kumar (PW-14), Virender (PW-15), Amit (PW-17), ASI
Shree Bhagwan (PW-22), Ct. Arjun Lal (PW-23), SI Anil Tushir (PW-

24) and SI Narender (PW-25). These depositions were either not
subjected to cross examination or, where they were, withstood the

56. In conjunction with the deposition of ‗C', we would also be
inclined to believe the evidence of Amit (PW-17) who clearly stated
that he saw Sonu coming towards his stall, carrying the prosecutrix in
one arm and holding the appellant by the other. The said statement
stood supported by his evidence, in cross examination, where he
reiterated that it was around 5.00 PM when the child was brought to
his shop. We also note, in this regard, the evidence of Krishan Kumar
(PW-14) in his examination-in-chief, in which he categorically stated

Crl Appeal 1395/2013 Page 59 of 67
that he ―saw that Sonu was bringing to accused Shree Bhagwan and
‗C' by holding their hands‖ In his cross-examination, too, Krishan
Kumar stated, initially that he had ―seen Sonu only who brought the
victim girl and the accused‖ and, further, that ―Sonu brought the
accused Shree Bhagwan by holding his hand at the Tea shop.‖ It is, no
doubt, true that, later in his cross-examination, PW-14 Krishan Kumar
did state that Sonu, had already brought ‗C' and the appellant at the
tea shop before his arrival there. However, we are not inclined to
discard the evidence of PW-14 Krishan Kumar, to the effect that Sonu
had, infact, brought the prosecutrix ‗C' and the appellant with him to
the tea stall, as this fact also stands corroborated by the evidence of
PW-17 Amit, in cross-examination, to the effect that, at 5.00PM, when
„C‟ was brought to his shop, Krishan Kumar was already present
there. As such, it appears clear, to us, that, apart from Amit, Krishan
Kumar was also present at Amit's shop before Sonu reached there, and
that Amit and Krishan Kumar were both witnesses to the fact that
Sonu was bringing, with him, the prosecutrix ‗C', carrying her in one
arm, and the appellant, holding him by the other.

57. We, therefore, reject the contention, assiduously canvassed
before us, by Mr. Pramod Kumar Dubey, that the perpetrator of the
offence against ‗C' was not the appellant, but Sonu.

58. In this connection, we also entirely endorse the observation, of
the learned ASJ, to the effect that, had Sonu been her oppressor, there
was no reason for the prosecutrix ‗C' to identify the appellant in

Crl Appeal 1395/2013 Page 60 of 67
Court, or name him during her deposition. There is no evidence of any
previous enmity, animosity or ill-will between the prosecutrix ‗C' and
or family members, and the appellant, and there is no reason
whatsoever, therefore, for any of them to wrongly implicate the
appellant for an offence that he had not committed.

59. We also find no justification forthcoming, for the appellant to
have been present, in the company of the prosecutrix ‗C', at the banks
of the nehar, when, hardly an hour earlier, she had been playing with
her friends outside her house. It is impossible to believe, that for no
rhyme or reason, a five year old girl would steal away from her
friends, with whom she was playing, and run towards the nearby
canal. If anything, one would expect that, when it started raining, the
natural instinct of the child would be to run indoors, and not to run
further away from the protection of her home, especially when her
mother was at home. It is obvious that her presence at the corner of
the nehar was not of her own volition, but she had been enticed to the
said spot. Given the fact that the appellant and Sonu were the only two
persons, who were present at the spot with ‗C', and in view of our
finding, hereinabove, that Sonu, infact had arrived there later and
rescued ‗C', we have no doubt about the fact that the appellant was the
one who had enticed the prosecutrix away from the warmth of her
home and family, and into his private hell.

Crl Appeal 1395/2013 Page 61 of 67

60. We had, infact, pointedly queried of Mr. Pramod Kumar Dubey
as to the circumstance in which his client was found in the company of
the prosecutrix ‗C' at the banks of the nehar, but we could obtain no
satisfactory response.

61. We may, before parting with this judgement, deal with three
other ancillary submissions advanced by Mr. Pramod Kumar Dubey
appearing for the appellant-accused.

The "res gestae" argument

62. Mr. Pramod Kumar Dubey sought to press, into service, the
doctrine of res gestae. "Res gestae", literally, means ―things done‖,
and stands statutorily engrafted in Section 6 of the Indian Evidence
Act, 1872 (hereinafter referred to as ―the Evidence Act‖). Section 5 of
the Evidence Act permits evidence, to be given, in any suit or
proceedings ―of the existence or non-existence of every fact and issue
and of such other facts as our hereinafter declared to be relevant, and
of no others.‖ ―Facts in issue‖ are defined, in Section 3 of the
Evidence Act, and, as meaning and including ―any fact from which,
either by itself or in connection with other facts, the existence, non-
existence, nature, or extent of any right, liability or disability, asserted,
or denied in any suit or proceeding, necessarily follows.‖ The various
Sections, which follow Section 5 in the Evidence Act, set out the
circumstances in which facts can be treated as ―relevant‖, of which

Crl Appeal 1395/2013 Page 62 of 67
Section 6, as already noted hereinabove, embraces the concept of "res
gestae". Section 6 of the Evidence Act reads thus:

―6. Relevancy of facts forming part of same transaction. -

Facts which, though not in issue, also connected with the fact in
issue as to form part of the same transaction, are relevant, whether
they could the same time and place or at different times and places.‖

Simply put, invocation of the principle of res gestae would require
identification, in the first instance, of the ―facts in issue‖. Once that is
done, all facts, forming part of that transaction, become relevant under
Section 6, even if, seen by themselves, they are not ―facts in issue‖, as
defined in Section 3. It is well-recognised that Section 6 is most often
invoked to treat, as relevant, evidence which would otherwise
constitute ―hearsay‖ and would, consequently, be inadmissible in
evidence, by virtue of Section 60 of the Evidence Act. Allowability of
res gestae evidence, as introduced by Section 6 of the Evidence Act, is
amplified by Section 8 thereof, which reads as under:

―8. Motive, preparation and previous or subsequent

Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact. The conduct of any
party, or of any agent to any party, to any suit or proceeding, in
reference to such suit or proceeding, or in reference to any fact in
issue therein or relevant thereto, and the conduct of any person an
offence against whom is the subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact in issue or
relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. - The word ―conduct‖ in this section does not include
statements, unless those statements accompany and explain acts
other than statements; but this explanation is not to affect the
relevancy of statements under any other section of this Act.

Crl Appeal 1395/2013 Page 63 of 67

Explanation 2. - When the conduct of any person is relevant, any
statement made to him or in his presence and hearing, which affects
such conduct, is relevant."

We are frankly unable to comprehend how the principle, engrafted in
the above provisions, is being pressed into service by learned counsel
for the appellant. Undoubtedly, applying Section 6, if evidence made
relevant thereunder, even if otherwise constituting hearsay, is either
not obtained or, if obtained, is not taken into consideration, it would
defeat the case of the prosecution. However, in the facts of the present
case, application of the said principle would, if anything, strengthen
the case of the prosecution, rather than that of the defence. Learned
counsel for the appellant has not been able to demonstrate that the
evidence of any material witness, which could be regarded as
constituting part of the same ―transaction‖, of the assault on ‗C', the
attempt to subsequently drown her in the nehar, and her being rescued
therefrom, stands excluded. There is nothing to indicate the presence
of any other person, or bystander, and the said time and place of
occurrence. Insofar as the parents of ‗C' were concerned, their
statements were recorded, both during investigation as well as in the
course of trial, and they clearly deposed that their daughter ‗C' had
disclosed, to them, that the appellant had done "galat kaam‖ with her.
It has been sought to be contended, in the grounds urged in the appeal,
that the evidence of the children who were playing with ‗C' should
also have been recorded. In any case, such evidence could not be
regarded as constituting res gestae, not being part of the ―transaction‖
involved in the offence. Mr. Dubey has further argued that he was

Crl Appeal 1395/2013 Page 64 of 67
invoking the said doctrine to urge that the prosecutrix ‗C' had not
mentioned the name of the appellant to Sonu, and that, therefore, the
recital of what had transpired, as allegedly retold by Sonu was his own
imagination. We have already noticed, hereinabove, how the evidence
available is more than sufficient to prove the commission of rape on
the prosecutrix ‗C' as well as to establish the culpability of the
appellant therein. This contention of Mr. Dubey, therefore, is totally
devoid of merit.

63. Secondly, Mr. Dubey sought to contend that no reliance could
be placed, on the identification, by ‗C', of the appellant, during trial,
as the light in the courtroom was dim. We find nothing, on record, to
substantiate this submission; ergo, it is rejected outright.

64. Thirdly, it was sought to be submitted, by Mr. Dubey, that the
site plan of the area showed the place of occurrence of the crime to be
on the bank of the nehar opposite to the temple, which falsified the
version of the prosecution, to the effect that the rape had taken place
behind the temple. To us, this aspect appears to be too insignificant to
merit consideration, given the fact that there can really be no doubt
about rape having, in fact, been committed upon ‗C'. We may also
note, in passing, that ‗C', in her evidence during trial, had stated that
the incident had taken place ―ahead of the temple‖.

65. Oft has it been said that ―out of the mouths of babies and
sucklings‖ does, at times, the truth emerge and we are sanguine that it

Crl Appeal 1395/2013 Page 65 of 67
has so emerged, in the present case, to the eternal, but well-deserved,
misfortune of the appellant.

66. We, therefore, unhesitatingly concur with the findings of the
learned ASJ that the appellant was guilty of the offence of kidnapping
‗C' from the lawful guardianship of her parents, with the intention of
forcing and seducing her to illicit intercourse and of, thereafter,
committing aggravated sexual assault/rape upon her. We, therefore,
confirm the conviction of the appellant under Section 363 read with
Section 366 and Section 376 (2)(f) of the IPC.

67. We also find no justification whatsoever to interfere with the
sentence awarded to the appellant by the learned ASJ. Rape
devastates, irreversibly and irreparably. It is a vicious expression of
subjugation of woman by man, where the perpetrator seeks to take
brute advantage of what is, at best, a chance chromosomal
circumstance. It is an anachronism, which, decidedly, cannot be
tolerated, in a day and age in which the sexes march arm in arm,
matching stride for stride. Rape is, in the ultimate eventuate, a crime
not of passion but of power, and when committed by an adult on an
innocent child, a crime of unmentionable perversity. The appellant, in
the present case, did not contend himself with ravishing the innocence
of prosecutrix ‗C'; he also grievously injured her face, lips and chin,
burnt her hair, attempted to strangulate her and threw her in the nehar.
The appellant must consider himself fortunate that Sonu intervened

Crl Appeal 1395/2013 Page 66 of 67
and rescued the prosecutrix ‗C'; else it is quite possible that the
appellant might have faced the extreme wrath of the law.

68. In the circumstances, we see no ground to interfere with the
sentence awarded to the appellant by the learned ASJ, which is upheld
in toto.

69. The appeal is, therefore, dismissed.

70. Trail Court record be sent back with copy of the judgement.
Intimation be sent to the Superintendent Jail.


March 08, 2018

Crl Appeal 1395/2013 Page 67 of 67

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