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Somveer @ Lalla vs State on 6 March, 2020

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 28th February, 2020
Judgment pronounced on: 06th March, 2020
+ CRL.A. No. 1212/2018
SOMVEER @ LALLA ….. Appellant
Through: Mr. Avinash, Advocate.
versus
STATE ….. Respondent
Through: Ms. Neelam Sharma, APP for State.

+ CRL.A. No. 455/2019
STATE ….. Appellant
Through: Ms. Neelam Sharma, APP for State.
versus
SOMVEER @ LALLA ….. Respondent
Through: Mr. Avinash, Advocate.
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT

SANGITA DHINGRA SEHGAL, J

1. Present appeals No. 1212/2018 and No. 455/2019 are directed against
common judgment dated 03.08.2018 and order on sentence dated
29.08.2018 passed by the learned Additional Sessions Judge, Special
Court, (POCSO ACT)/North East District, Karkardooma Courts,
Delhi in Sessions case No. 06/2017 arising out of FIR No. 341/2016,
under Section 363 of the Indian Penal Code, 1860 (hereinafter referred

CRL.A. Nos. 1212/2018 455/2019 Page 1 of 27
to as ‘IPC’) and Section 10 POCSO Act registered at Police Station
Karawal Nagar, Delhi whereby the learned Sessions Judge found the
accused guilty and sentenced him to undergo rigorous imprisonment
for a period of 02 years and to pay a fine of Rs.5,000/- for offence
under Section 363 IPC and in default of payment of such fine for this
offence, he shall undergo simple imprisonment for a period of one
month. Convict was also sentenced to undergo rigorous imprisonment
for a period of five years and to pay a fine of Rs.10,000/- for the
offence punishable under Section 10 POCSO Act and in default of
payment of such fine for this offence, he shall undergo simple
imprisonment for a period of one month. Both the sentences were
directed to run concurrently.

2. The brief facts of the case, as mentioned by the learned Trial Court are
reproduced as under:

“Brief facts of the case of prosecution are that on
07.10.2016, on receipt of DD No. 76B, SI Abodh and Ct.
Arvind went at the informed place i.e. Gali No.7,
Mahalaxmi Vihar, Karawal Nagar and met complainant
Asha Ram. Complainant gave a statement that on
07.10.2016 at about 09.00 p.m., she was cooking food and
her daughter/victim, aged about 05 years, was playing in
verandah. She further alleged that at that time, Somveer,
whom she knew for last one year, had come to her house.
After sometime, she noticed that victim was missing. She
suspected that Somveer had taken her daughter. On these
allegation, FIR u/s 363 IPC was registered.
During the investigation, victim was recovered and it was
found that victim had been raped. Thereafter, victim was
medically examined. Her statement u/s 164 Cr.P.C. was
recorded. Accused was arrested.

CRL.A. Nos. 1212/2018 455/2019 Page 2 of 27

3. After completion of investigation, charge sheet under Sections
363/376/506 IPC and under Section 4 POCSO Act was filed against
accused. On 01.02.2017, charges under sections 363/366/376 (2) (i)
IPC and u/s 6 POCSO Act were framed against the accused to which
he pleaded not guilty and claimed trial.

4. In order to bring home the guilt of the accused, the prosecution
examined 18 witnesses in all. The statement of the accused was also
recorded under Section 313 of the Code of Criminal Procedure
wherein he pleaded his innocence by denying all the incriminating
circumstances and claimed to have been falsely implicated by
prosecution. Accused examined only one witness in his defence.

5. Ms. Neelam Sharma learned counsel appearing on behalf of the State
contended that the impugned judgment dated 03.08.2018 passed by the
learned Trial Court was perfunctory in nature, full of conjectures and
surmises, ignoring the well-settled proposition of law that the sole
testimony of the victim of a sexual offence is sufficient to base
conviction of the accused. She further contended that the impugned
judgment is full of legal defects and the Trial Court has failed to
appreciate the testimony of the prosecutrix in its correct perspective,
and therefore is liable to be set aside.

6. She further contended that the learned Trial Court has failed to
appreciate that the prosecutrix was minor at the time of the incident
and her statement was consistent, cogent and there are no major
omissions and contradictions in her testimony.

7. She submitted that the learned Trial Court failed to appreciate the
statement of PW-4 (Vikas Kumar) who had witnessed the accused

CRL.A. Nos. 1212/2018 455/2019 Page 3 of 27
taking the victim with him. She further submitted that the Trail Court
failed to appreciate the testimony of PW-7 (Victim) who has
categorically deposed that the accused had committed sexual assault
on the victim. She further submitted that the learned Trial Court failed
to appreciate that the MLC of the prosecutrix mentions about the
ruptured hymen of the victim. To substantiate her arguments, learned
APP has placed reliance on Chand Bibi v. State Anr. reported in
(2019) 256 DLT 593.

8. Learned APP on behalf of the State further contended that the MLC is
only a corroborative piece of evidence and not a conclusive one. She
further submitted that the learned Trial Court erred in disbelieving the
testimony of PW-4 (Vikas Kumar), PW-5 (Asha Ram) and PW-15
(W/Ct. Mamta) on the basis of MLC. To substantiate her arguments,
she has placed reliance on Chimnabai Ukhabhai v. State of Gujarat
reported in AIR 1983 SC 484 and Ranjanben Maheshbhai Vasava v.
State of Gujarat reported in 2019 (3) RCR (Criminal) 630

9. She further argued that the Trial Court failed to appreciate that
penetration may not always result in tearing the hymen and even an
attempt to penetrate into the private part of the victim would constitute
the offence of rape. In order to support her contention, she has placed
reliance on Radhakrishna Nagesh v. State of A.P. reported in (2013)
11 SCC 688 and Tarkeshwawr Sahu v. State of Bihar (Now
Jharkhand) reported in (2006) 8 SCC 560.

10. She further submitted that the age of the victim at the time of the
incident was 5 years and she cannot be expected to narrate the incident

CRL.A. Nos. 1212/2018 455/2019 Page 4 of 27
in the same manner or standard as they expect from adults. She placed
reliance on State v. Rahul reported in ILR (2013) Delhi 1861.

11. She finally concluded by submitting that the learned Trial Court failed
to appreciate the effect of Section 29 of POCSO Act, wherein the
Statute has provided that there shall be presumption that the accused
has committed the offence under Section 6, POCSO Act, unless the
contrary is proved.

12. Learned Counsel for the appellant while vociferously rebutting the
contentions of the APP for the State argued that the learned Trial Court
erred in convicting the accused under Section 10 of POCSO Act and
under Section 363 of IPC. He submitted that the testimony of the
prosecutrix is totally unreliable and there are material contradictions
and concealments in her testimony recorded under Section 164 Cr.P.C
and in her deposition before court. He further argued that the sole
testimony of the prosecutrix has to be evaluated more carefully with
greater circumspection and the same can only be relied upon if there
are no embellishments or improvements therein.

13. He submitted that there are severe contradictions and inconsistencies
in the testimonies of other material witnesses and the case of the
prosecution is neither supported by medical evidence nor by scientific
evidence. He further submitted that PW-18 (Dr. Surbhi Goyal) was the
doctor who conducted the MLC of the victim and had stated that no
blood, no dirt and no spotting was found in the vagina. He further
argued that the case of the accused is fortified by the FSL report which
proves that there was no blood or semen detected from the victim and
the tear of hymen was probably old which would necessarily mean that

CRL.A. Nos. 1212/2018 455/2019 Page 5 of 27
she had not been sexually assaulted by the appellant and absence of
injuries will inevitably discredit the version of the prosecutrix.

14. We have heard the learned counsel for the parties and carefully
examined the impugned judgment and the material available on record
as well.

WHETHER THE ACCUSED KIDNAPPED THE VICTIM

15. Law on kidnapping is mentioned in Section 361 of IPC which reads as
under: –

361. Kidnapping from lawful guardianship.–Whoever
takes or entices any minor under 1[sixteen] years of age if
a male, or under 2[eighteen] years of age if a female, or
any person of unsound mind, out of the keeping of the
lawful guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship.
Explanation.–The words “lawful guardian” in this
section include any person lawfully entrusted with the care
or custody of such minor or other person.

16. In order to determine whether the accused has committed an offence
under Section 361 of IPC, we deem it necessary to peruse the evidence
on record, i.e. the testimonies of various prosecution witnesses, namely
PW-4 (Vikas Kumar), PW-5(Asha Ram), PW-6 (Kanak Lata), PW-7
(Victim). PW-4 (Vikas Kumar) stepped into the witness box and
deposed as below: –

“On 06.10.2016, at about 9.00/9.15pm, accused Somveer
who is present in Court today (correctly identified), who
is known to me as he resides in my neighbour, came to
my shop alongwith a female child who also resided in our
neighbour but I do not know her particulars. At that
time, the accused was under influence of liquor. The

CRL.A. Nos. 1212/2018 455/2019 Page 6 of 27
accused demanded toffee and I gave him worth Rs. 2/-.
Earlier also, the accused used to come to my shop with
the children of the locality and used to buy them toffees
etc. The said child was saying that she had to attend a
jagran. The accused was talking affectionately to the
child. After purchasing toffee to the child, the accused
took her with him and walked towards the side where the
jagran was taking place. Since, it was time for me to close
my shop, I started binding up work and did not pay much
attention. Later my statement was recorded by the IO.”

17. PW-5 (Asha Ram) was the father of the prosecutrix, he deposed
as under: –

On 6th day before Diwali, last year I returned to my house
from my work at about 8.30pm. My wife was cooking food
in the kitchen and she had given food to me and the victim
was playing outside of the room in the veranda. The victim
was demanding sweets and my wife handed over Rs. 10/-
to her. Meanwhile, Somveer, who used to come to visit
out neighbours, took the victim and told her that he
would purchase sweets for her and he took her away.
While my wife was about to wash the dirty utensils after
taking dinner, she recollected that the victim had not
returned and then went out in her search. After
sometime, she returned back home and told me that the
victim could not be found and I also joined the search for
the victim. I and my wife alongwith one or two neighbours
then went in search of the victim. I and my wife alongwith
one or two neighbours then went in search of the victim
and reached a place where a jagran was being held but
she was also not found there. We also made an
announcement in the jagran about the victim but she was
not found. Thereafter, I made a call to the PCR at 100
number. Police arrived and I told all the facts to the police
and police recorded my statement, which is Ex.PW5/A
bearing my signatures at point A. Thereafter, police
searched for the victim and about 30 people from the

CRL.A. Nos. 1212/2018 455/2019 Page 7 of 27
locality joined the search and after sometime, the police
handed over the victim to me.

18. PW-6 (Kanak Lata), mother of the decease deposed as below: –

“On 06.10.2016, at about 8.30pm, I was cooking in the
kitchen and the victim was playing outside of the room in
the veranda and victim was demanding sweets and I told
her that I will provide the same to her whenever her
returned. Thereafter, she started playing there.
Meanwhile, my husband returned to the house and he was
taking dinner. Meanwhile, Somveer, who used to come
to visit our neighbours, came there and he told me that
he would provide sweets to the victim but I refused for the
same. Thereafter, I came inside of my room and started
dirty utensils. After 10 minutes, I came outside of my
house and found that the accused had taken away the
victim from there. I searched for the victim in the
neighbour. After sometime, I returned home and
informed husband that the victim could not be found.
Thereafter, I and my husband started for searching the
victim in the area and three-four times announcement was
also made from a place where a jagran was being held.
Thereafter, my husband made a call to the PCR at 100
number. Police arrived and started there proceedings and
also searched for the victim. At about 03/04.00am, the
victim was recovered. Police had informed me this fact.”

19. PW-7 (Prosecutrix/Victim) deposed as below: –

“Without Oath
Q. how do you know the person shown to you whom you
addressed as Somveer bhaiya?

Ans. Vo mujhe cheez ke bahane koodedan me le gaya
tha aur vahan usne apni tutu meri tutti me lagyae thee.”

CRL.A. Nos. 1212/2018 455/2019 Page 8 of 27

20. A conjoint reading of the testimonies of PW-4 (Vikas Kumar),
PW-5 (Asha Ram), PW-6 (Kanak Lata), PW-7 (Victim)
established the following: –

a. The victim was demanding sweets after which the accused
(Somveer), who used to visit the neighbours of the victim,
offered to provide sweets to the victim. The mother of the
victim, PW-6 (Kanak Lata) realized that the accused had
taken the victim from her custody.

b. The accused was under the influence of alcohol and he
took the victim to the shop of PW-4 (Vikas Kumar) from
where he bought her toffee. The accused took the victim
with him thereafter.

c. The accused took the victim to the nearby dumpster from
where the victim was recovered.

21. It is therefore established that the accused enticed the victim from
the lawful guardianship of her parents without the consent of her
parents and therefore committed the offence of kidnapping.
TESTIMONY OF PROSECUTRIX/VICTIM

22. Learned counsel for the accused argued that the testimony of the
prosecutrix and other material witnesses from prosecution is full of
inconsistencies which go to the root of the matter and therefore the
testimonies are unreliable and do not establish that the accused
committed aggravated sexual assault on the victim.

23. It is a settled principle of law that in cases involving sexual
assault/rape, it is generally difficult to find any corroborative
witnesses, except the victim herself and therefore, the evidence of the

CRL.A. Nos. 1212/2018 455/2019 Page 9 of 27
victim is sufficient for conviction unless there exist compelling
reasons for seeking corroboration. Thus, a conviction can be sustained
on the sole testimony of the prosecutrix, if it inspires confidence. The
Apex Court has time and again held that the sole testimony of the
prosecutrix is sufficient to hold the accused guilty if it inspires
confidence and the same principles have been reiterated in Vijay v.
State of Madhya Pradesh reported in (2010) 8 SCC 191. Relevant
paragraph of the judgment reads as under:

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

24. In Gagan Bihari Samal v. State of Orissa reported as (1991) 3 SCC
562, the Hon’ble Supreme Court of India whilst observing that
corroboration is not the sine qua non for conviction in a rape case, held
as follows:

“6. In cases of rape, generally it is difficult to find any
corroborative witnesses except the victim of the rape. It
has been observed by this Court in Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat [(1983) 3 SCC 217: 1983
SCC (Cri) 728: AIR 1983 SC 753] as follows: (AIR
headnote)
“Corroboration is not the sine qua non for a
conviction in a rape case. In the Indian setting,
refusal to act on the testimony of a victim of sexual
assault in the absence of corroboration as a rule, is
adding insult to injury. 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,

CRL.A. Nos. 1212/2018 455/2019 Page 10 of 27
disbelief or suspicion? To do so is to justify the
charge of male chauvinism in a male dominated
society.

A girl or a woman in the tradition bound non-
permissive society of India would be extremely
reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred. She
would be conscious of the danger of being ostracized
by the society or being looked down by the society
including by her own family members, relatives,
friends, and neighbours. She would face the risk of
losing the love and respect of her own husband and
near relatives, and of her matrimonial home and
happiness being shattered. If she is unmarried, she
would apprehend that it would be difficult to secure
an alliance with a suitable match from a respectable
or an acceptable family. In view of these and similar
factors, the victims and their relatives are not too
keen to bring the culprit to book. And when in the face
of these factors the crime is brought to light there is
a built-in assurance that the charge is genuine rather
than fabricated.”

The above observation has been made by this Court
relying on the earlier observations made by this Court
in Rameshwar v. State of Rajasthan [1952 SCR 377, 386 :
AIR 1952 SC 54 : 1952 Cri LJ 547] with regard to
corroboration of girl’s testimony and version. Vivian Bose,
J., who spoke for the Court observed as follows: (SCR p.

386)
“The rule, which according to the cases has hardened
into one of law, is not that corroboration is essential
before there can be a conviction but that the necessity
of corroboration, as a matter of prudence, except
where the circumstances make it safe to dispense with
it, must be present to the mind of the judge, …. The
only rule of law is that this rule of prudence must be
present to the mind of the judge or the jury as the case
may be and be understood and appreciated by him or

CRL.A. Nos. 1212/2018 455/2019 Page 11 of 27
them. There is no rule of practice that there must, in
every case, be corroboration before a conviction can
be allowed to stand.”

25. Further, it is also a well settled principle of law that the testimony of
child witness can be relied upon along with other circumstances and
corroborative evidence to convict the accused. Undoubtedly, the
settled proposition of law that the evidence of a child witness is
required to be scrutinised and appreciated with great caution. In this
regard, reference can be made to the dicta of the Apex Court in the
case of Yogesh Singh Vs. Mahabeer Singh and others reported in
AIR 2016 SC 5160, wherein the Apex Court has held that:

“22. It is well settled that the evidence of a child witness
must find adequate corroboration, before it is relied upon
as the rule of corroboration is of practical wisdom than
of law. (See Prakash v. State of M.P. [Prakash v. State of
M.P., (1992) 4 SCC 225 : 1992 SCC (Cri) 853] , Baby
Kandayanathil v. State of Kerala [Baby
Kandayanathil v. State of Kerala, 1993 Supp (3) SCC 667
: 1993 SCC (Cri) 1084] , Raja Ram Yadav v. State of
Bihar [Raja Ram Yadav v. State of Bihar, (1996) 9 SCC
287 : 1996 SCC (Cri) 1004] , Dattu Ramrao
Sakhare v. State of Maharashtra [Dattu Ramrao
Sakhare v. State of Maharashtra, (1997) 5 SCC 341 : 1997
SCC (Cri) 685] , State of U.P. v. Ashok Dixit [State of
U.P. v. Ashok Dixit, (2000) 3 SCC 70 : 2000 SCC (Cri)
579] and Suryanarayana v. State of
Karnataka [Suryanarayana v. State of Karnataka, (2001)
9 SCC 129 : 2002 SCC (Cri) 413] .)

23. However, it is not the law that if a witness is a child,
his evidence shall be rejected, even if it is found reliable.
The law is that evidence of a child witness must be
evaluated more carefully and with greater
circumspection because a child is susceptible to be
swayed by what others tell him and thus a child witness

CRL.A. Nos. 1212/2018 455/2019 Page 12 of 27
is an easy prey to tutoring. (Vide Panchhi v. State of
U.P. [Panchhi v. State of U.P., (1998) 7 SCC 177: 1998
SCC (Cri) 1561])

26. In view of the settled law, we shall now examine whether the evidence
adduced by the prosecution, particularly the testimony of the victim,
is trustworthy, credible and can be relied upon. PW-7
(Prosecutrix/Victim) deposed as below: –

“Without Oath
Q. how do you know the person shown to you whom
you addressed as Somveer bhaiya?

Ans. Vo mujhe cheez ke bahane koodedan me le gaya
tha aur vahan usne apni tutu meri tutti me lagyae
thee.

Q. Whether you got injured on any part of your body,
felt pain or had bled from any part of your body?
Ans. No. (The victim says so by gestures by nodding
her head left and right).

Q. How did you get released?

Ans. Usne chhod diya aur me bhaag keghar aa gayee.
Q. Did you got soiled when the accused took you to
the garbage house?

Ans. Yes. (The victim says so by gestures by nodding
her head up and down).

Q. What clothes were you wearing at that time?
Ans. Sandow banian and kachcha.

In her cross-examination she deposed as below: –

It is wrong to suggest that I have deposed today on
being tutored by my parents and that the accused had
not taken me anywhere nor had committed any act
with me.”

27. Her testimony is corroborated by her statement under Section 164
Cr.PC which is produced as under:-

CRL.A. Nos. 1212/2018 455/2019 Page 13 of 27

“Somveer bhaiya raat ko aayatha, ushne meri kachhi
uteri. Ushne apni tutti meri tutti mein laga di, mujhe
dard hua tha aur meinrone lag gayithi.”

28. A perusal of the testimony of PW-7 (Prosecutrix/Victim) proves that
her version was trustworthy, cogent and consistent and therefore can
be relied upon. The prosecutrix had been consistent with her version
that the accused took her with him and took off her underwear and
with a sexual intent touched her vagina.

TESTIMONY OF OTHER MATERIAL PROSECUTION WITNESSES

29. The version of the prosecutrix receives corroboration from the
testimony of PW-5 (Asha Ram) who deposed as below: –

Thereafter, police searched for the victim and about 30
people from the locality joined the search and after
sometime, the police handed over the victim to me. She
was having dirt (keechar) all over her body. She was
only wearing a banian and no undergarment. Blood was
coming from her private parts. The police then took us
to the hospital where the victim was medically examined.

We then returned home in the PCR van. After sometime,
the accused met us near the place of jagran and he was
also having dirt on his body. The said place was a vacant
plot near the drain. I had gone there alongwith the IO,
who inspected the said place. The accused was under
intoxication at that time. He was arrested by the police
vide memo Ex.PW5/B bearing my signature at point A and
was brought to the PS.

In his cross-examination he deposed: –

My statement was recorded after the recovery of the
victim and prior to that no statement was recorded by the
IO. The victim was recovered at about 3.00am.
Thereafter, the police and I took the victim to the

CRL.A. Nos. 1212/2018 455/2019 Page 14 of 27
hospital. Then I went to the PS from the hospital. Police
prepared the documents at the PS.

30. This version is further corroborated by the testimony of PW-6
(Kanak Lata) who deposed as under: –

“At about 03/04.00am, the victim was recovered. Police
had informed me this fact. I also went to the hospital
where I found the victim and her condition was very
disturbing an there was having dirt (keechar) all over
had body and her undergarment was missing. Blood was
also coming out from her private parts. I asked the victim
as to what had happened with her and she told me that
accused Somveer had taken away her and gave beatings
to her and that “usne batya ki usne apni tuttu mere tutu
mein dalne kikoshish kee” (had tried to insert his penis
into her vagina). The victim was medically examined in
the hospital.”

In her cross-examination he deposed as under: –

“Police informed me that the victim was found in the
jagran. I met the victim at about 5.00am in the hospital
after her missing. Police informed me about the recovery
of the victim at my house and then took me in the police
gyspy to the hospital. From the hospital, I went to the PS
at about 6.00am and thereafter, we reached at
Karkardooma Courts. My statement was recorded by the
police at the PS before we started for Karkardooma
Courts. After that day, I did not meet the police and they
did not record my any other statement.”

31. PW-15 (W/Ct. Mamta), who got the prosecutrix recovered deposed as
below: –

“On 06.10.2016, I was posted as above and I was on duty
at the night time. On that day, at about 11.45pm, I
alongwith SI Monika reached Mahalaxmi Vihar where SI

CRL.A. Nos. 1212/2018 455/2019 Page 15 of 27
Abodh and one constable, whose remember I do not
remember now, met us. The victim and her parents were
also found present there. At that time, victim was wearing
only a banian and she was covered with mud. Some
blood was seen on the private part of victim. Thereafter,
I alongwith SI Monika, victim and her parents went to JPC
Hospital for medical examination of victim. After her
medical examination, doctor handed over her MLC, two
pullindas i.e. SAFE Kit and of clothes in sealed condition
alongwith sample seal. I handed over the same to SI
Monika at the PS, who seized the said pullindas and
sample seal at the PS. I have seen seizure memo dated
07.10.2016. It bears my signatures at point A. The memo
is now Ex.PW15/1.”

In her Cross-examination she deposed as under: –

“When the victim was taken for medical examination, she
was accompanied by her mother and father. We reached
the hospital at around 4.00am. We remained there till
around 6.30am. In my presence, statement of victim’s
mother was recorded by the IO. This statement was
probably recorded at victim’s house and prior to going to
the hospital. The parcels were not deposited in malkhana
in my presence. It is wrong to suggest that I had not joined
the investigation of this case at any point of time, or that I
had not accompanied the victim and her parents to the
hospital.”

32. A conjoint reading of the testimonies of PW-5 (Asha Ram), PW-6
(Kanak Lata) and PW-15 (W/Ct. Mamta) established the following: –
a. The victim was found with dirt all over her body. She was only
wearing a banian and was not wearing an underwear.
b. Blood was coming out of the victim’s vagina.

CRL.A. Nos. 1212/2018 455/2019 Page 16 of 27

c. Therefore the version of the other material prosecution
witnesses namely PW-5 (Asha Ram), PW-6 (Kanak Lata) and
PW-15 (W/Ct. Mamta) corroborate the version of the
prosecutrix.

MEDICAL AND SCIENTIFIC EVIDENCE

33. Learned counsel for the accused argued that the medical and scientific
evidence is in favour of the accused and there is nothing on record to
show that accused had committed penetrative sexual assault on the
victim. He further submitted that PW-18 (Dr. Surbhi Goyal) stated that
no blood, no dirt and no spotting was found in the vagina. He further
argued that the case of the Appellant is fortified by the FSL report
which proves that there was no blood or semen detected from the
victim and the tear of hymen was probably old which would
necessarily mean that she had not been sexually assaulted by the
appellant and absence of injuries will inevitably discredit the version
of the prosecutrix.

34. At this stage, it is relevant to examine whether the medical evidence
placed on record furthers the case of the accused or that of the
prosecution.

35. Dr. Surbhi Goyal, S.R. Obs and Gyne. Department JPC Hospital was
examined as PW-18 who deposed on behalf of Dr. Arundhati Pathak
who had conducted the MLC of the victim at the night of the incident.
She deposed as below: –

“I came before the Hon’ble Court on the directions of MS
to depose regarding MLC No.5078, which was prepared
by Dr. Arundhati Pathak, who is not working in our
hospital at present and her present whereabouts are not

CRL.A. Nos. 1212/2018 455/2019 Page 17 of 27
known to us. I can identify her handwriting and signatures
as she had worked me and I had seen her writing and
signing.

I have seen MLC No.5078 dated 07.10.2016 of the
victim D/o Asha Ram, female, 5 years old. It is in the
handwriting of Dr. Arundhati Pathak and bears her
signatures at point A. The MLC is now Ex.PW18/1.

As per the MLC, the victim was brought to the
hospital at about 4.00am. As per MLC, on local
examination, no external injury was found, however, dirt
was found all over the body and around the vagina. In per
speculam examination, hymen was found ruptured. I have
also seen the emergency card of the victim, which is also
in the handwriting of Dr. Arundhati Pathak and bears her
signatures at point A. The card is now Ex.PW18/2. Dr.
Arundhati Pathak also collected the samples of sexual
assault evidence collection kit and handed to the police
in sealed condition alongwith sample seal.

In her cross-examination, PW-18 deposed as below: –

It is correct that the hymen can get ruptured by strenuous
physical activities such as cycling, stretching etc. As the
doctor had not recorded any bleeding or spotting, the tear
of the hymen was probably old.”

36. The MLC of the prosecutrix Ex. PW-18/2 is reproduced below: –

According to alleged’s mother – At 9pm on 06.10.2016
just after dinner, the accused, Somveer, 15 years of age
known to alleged’s family came to her house in drunken
condition. The accused abducted the alleged in favour of
some sweets. Alleged’s mother realised after 20 minutes
that her child was missing. They started searching for her
3-4hr. They informed Police Station Karaval Nagar.
Police found the alleged in a mob (at some holy jagran)
two lanes after the alleged’s home with dirt all around
body without her undergarment. Alleged told police that
the accused forcefully held her and tried to insert the

CRL.A. Nos. 1212/2018 455/2019 Page 18 of 27
sexual organ into her. Police considered it to be forceful
penetrative sexual assault between 9pm to 12.30pm.
Blood was seen around intratus according to police. They
brought the alleged to JPCH at 4am. As last contact was
done around 5hrs back so SAFE KIT will be opened. O/E
victim is conscious well oriented to time place person.

O/n unmarried
m/n menarche not yet attained

TYPE OF INJURIES
GE No external injury dirt all over body
No laceration/ bruises seen dirt around vagina
No blood seen
Gynecologist exam no congestion no tear no spotting
p/s hymen ruptured admits tip of little finger.

37. During the investigating samples from the body of the prosecutrix as
well as the accused were sent to the FSL for further opinion. The FSL
report has been reproduced below: –

Forensic Science Laboratory
Govt. of NCT of Delhi
Sector 14, Rohini, Delhi-110085.

Tel:011-27555811, Fax: 011-275555890
Accredited by the National Accreditation Board for
Testing and Calibration Laboratories (NABL)
As per standards of ISO/IEC 17025:2005 and NABL
113:2008
REPORT NO. FSL-2016/B-7828 BIO NO.2270/16
Dated: 23.03.2017
Please quote the Report (Opinion) No. Date in future
correspondence Summons.

This report is Per se admissible u/s 293 Cr.PC.
To,
The SHO,
PS : Karawal nagar,
Delhi.

CRL.A. Nos. 1212/2018 455/2019 Page 19 of 27

Your letter No. 3766/SHO/Karawal nagar Dated:
14.10.16 regarding 05 (five) parcels in connection with
the case FIR No.341/16 Dated: 07.10.2016 u/s:
363/376/506 IPC 4 POCSO ACT P.S: Karawal nagar
received in this office on 14.10.16.

DESCRIPTION OF PARCELS CONDITION IN
SEALS
Sealed cardboard box : 01
Sealed envelope : 01
Sealed tape parcel : 03
Total : 05 (five)
DESCRIPTION OF ARTICLES CONTAINED IN
PARCEL
Parcel ‘1 : One sealed cardboard box sealed with the

seal of “CMO” containing exhibits’A-1′,
‘A-2’, ‘A-2’, ‘A-3’, ‘A-4’, ‘A-5’, ‘A-6’, ‘A-
7’, ‘A-8’, ‘A-9’, ‘A-10’, ‘A-11’, ‘A-12’, ‘A-
13’, ‘A-14’, ‘A-15’, ‘A-16, ‘A-17’.
Exhibit ‘A-1’ : Empty envelope labeled as debri
collection.

Exhibit ‘A-2’ : Empty envelope labeled as debri
collection.

Exhibit ‘A-3’: Dirty cotton wool swab on stick kept in vial
labeled as body fluid collection.

Exhibit ‘A-4’ : Empty envelope labeled as nail scraping.
Exhibit ‘A-5’ : Cotton wool swab on a stick labeled as in
between fingers.

Exhibit ‘A-6’ : Cotton wool swab on a stick labeled as
breast swab.

Exhibit ‘A-7’ : Empty envelope labeled as combing of
pubic hair.

Exhibit ‘A-8’ : Empty envelope labeled as clipping of
pubic hair.

Exhibit ‘A-9’ : Empty envelope labeled as matted of pubic
hair.

Exhibit ‘A-10’: Cotton wool swab on a stick kept in vial
labeled as cervical mucus collection.
Exhibit ‘A-11’: Cotton wool swab on a stick and two
microslides labeled as vaginal swab
smear.

Exhibit ‘A-12’: Cotton wool swab on a stick kept in vial

CRL.A. Nos. 1212/2018 455/2019 Page 20 of 27
labeled as culture.

Exhibit ‘A-13’: Dirty liquid kept in syringe labeled as
washing from vagina.

Exhibit ‘A-14’: Cotton wool swab on a stick and two
microslides labeled as rectal swab
smear.

Exhibit ‘A-15’: Cotton wool swab on a stick and two
microslides labeled as oral swab smear.
Exhibit ‘A-16’: Dark brown liquid kept in the three vials
microslides as blood collection of victim.
Exhibit ‘A-17’: Dirty straw colored foul smelling liquid
kept
in plastic container labeled as urine 7
oxalate blood vial.

Parcel ‘B’ : One sealed envelope sealed with the seal
of ‘CMO’ containing exhibit ‘B’ described
as clothes of victim.

Exhibit ‘B’ : Dirty baniyan
Parcel ‘C’ : One sealed tape parcel sealed with the seal
of ‘CMO’ containing exhibit ‘C’.

Exhibit ‘C’ : Dark brown liquid kept in two vials
described as blood sample of accused.
Parcel ‘D’ : One sealed tape parcel sealed with the seal
of ‘CMO’ containing exhibit ‘D’.

Exhibit ‘D’ : Dirty underwear of accused.
Parcel ‘E’ : One sealed tape parcel sealed with the seal
of ‘CMO’ containing exhibit ‘E’.

Exhibit ‘E’ : Small bunch of hair described as pubic
hair of accused.

RESULTS OF ANALYSIS
Blood was detected on exhibit ‘A-16 and ‘C’.
Blood could not be detected on exhibits ‘A-3, ‘A-5’, ‘A-
6’, ‘A-10’, ‘A-11’, ‘A-12’, ‘A-13’, ‘A-14’, ‘A-15’, ‘A-17’,
‘B’, ‘D’, ‘E’.

Semen could not be detected on exhibits ‘A-3, ‘A-5’, ‘A-
6’, ‘A-10’, ‘A-11’, ‘A-12’, ‘A-13’, ‘A-14’, ‘A-15’, ‘A-17’,
‘B’, ‘D’, ‘E’. Hence DNA examination was not done
on exhibit ‘C’.

NOTE: Remnants of the exhibits have been sealed with
the seal of ‘S.G FSL DELHI’.

(MS. SUNITA GUPTA)”

CRL.A. Nos. 1212/2018 455/2019 Page 21 of 27

38. A conjoint reading of the testimony of PW-18 (Dr. Surbhi Goyal),
MLC of the victim (Ex. PW18/2) and the FSL report reveal the
following: –

a. There was no external injury, no abrasions or lacerations around
the vagina of the victim.

b. There was no blood present around the vagina of the victim.
c. Gynecologist examination revealed that there was no tear and
no spotting.

d. PW-18 (Dr Surbhi Goyal) stated that as the doctor who
conducted the MLC had not recorded any bleeding or spotting,
the tear was probably an old tear. and there are a variety of
other reasons for the hymen to be ruptured such as strenuous
physical activity.

e. FSL report proves that no blood or semen was detected from
the samples recovered from the accused and victim.
WHETHER THE ACCUSED COMMITTED AGGARAVATED SEXUAL
ASSAULT OR AGGRAVATED PENETRATIVE SEXUAL ASSAULT

39. Learned Trial Court in its judgment dated 03.08.2018 while
discussing whether the offence committed by the accused falls under
aggravated sexual assault or aggravated penetrative sexual assault
has held as below: –

“35. I have carefully weighed this contention. It is
correct that victim’s mother, father and police officials
who appeared as witnesses have deposed that when the
victim was recovered, blood was coming from her private
parts. However, this part of their testimony in the light of
medical evidence seems to be an exaggeration. It is to be

CRL.A. Nos. 1212/2018 455/2019 Page 22 of 27
noticed that the MLC of the victim is Ex. PW18/1. In the
MLC, the doctor had observed that the history was given
by the mother of the victim and as per that history there
was forceful penetrative assault and when the victim was
recovered, according to the police blood was seen around
interiors. This MLC was proved by PW-18 who deposed
that as per MLC on local examination no external injury
was found. However, dirt was found all over the body and
around vagina, hymen was found to be ruptured. During
her cross-examination, she admitted that hymen can get
ruptured by strenuous physical activity such cycling,
stretching etc. She further deposed that as the doctor had
not recorded any bleeding or spotting, the tear of hymen
was probably old. From this testimony of the doctor one
fact which clearly emerges is that when the victim was
taken to the hospital and was examined by the doctor,
there was dirt all over her body and around vagina. This
proves that immediately after the recovery of the victim
she had been taken straight to the hospital and had not
been bathed or cleaned. If that be the case, it is impossible
that blood which was seen by everyone to be coming out
of the private parts of the victim would not have been seen
by the doctor. Not only this, per speculam examination of
the victim was also conducted and there also the doctor
did not observe any bleeding or spotting. It is also to be
seen that the mother of the victim states to have seen
blood coming out of the private parts of the victim but in
the history which she had provided to the doctor, she
stated that this information was given to her by the
police. Therefore, on the one hand, the bleeding from the
private parts is not proved and other hand, the tear of the
hymen which has been relied by Ld. Addl. Prosecutor to
establish penetrative sexual assault could have been, as

CRL.A. Nos. 1212/2018 455/2019 Page 23 of 27
per the doctor, an old tear. Therefore, on the basis of this
evidence, penetrative sexual assault has not been proved
and we have to look at the testimony of the victim to find
that whether through that testimony the prosecution has
succeeded in establishing an offence of penetrative
sexual assault.

36. Victim while appearing as PW-7 did not state that
accused had penetrated her vagina. She stated that
accused had touched his penis to her vagina. She also
stated that during this incident, she did not feel any pain,
she did not bled from any of her body parts or got injury
on any of her body part. It is to be seen that the victim
was a small child of five years and if there had been a
penetrative sexual assault upon her, it would necessarily
have been painful and despite there being an old rupture
of hymen there could have been bleeding also, but
according to the victim she neither bled nor felt any pain
and therefore, her testimony only establishes that
accused had only touched his penis on her vagina. Thus
the testimony of victim, which has been found to be
credible only establishes sexual assault and not
penetrative sexual assault. I find that testimony of the
victim is sufficient to prove that after kidnapping her
accused had sexually assaulted. As the victim, at the time
of incident, was aged less than twelve years, this assault
becomes aggravated sexual assault as defined u/s 10
POCSO Act. This being a lesser offence than the offence
that accused is charged with no fresh charge is required
to be framed.

37. In view of my above discussion, the accused is
convicted for offence punishable u/s 10 of POCSO Act and

CRL.A. Nos. 1212/2018 455/2019 Page 24 of 27
section 363 of IPC. Be heard separately on the point of
sentence on 06.08.2018.”

40. A perusal of the testimony of the prosecutrix as discussed above proves
that the accused had taken off her underwear and with a sexual intent
touched her vagina. The same is corroborated with the testimony of
PW-5 (Asha Ram), PW-6 (Kanak Lata) and PW-15 (W/Ct. Mamta)
who found the victim covered in mud and without her undergarment.
Hence the act of the accused falls within the purview of Section 10,
POCSO Act i.e. aggravated sexual assault.

41. Now the question which needs to be determined by us is whether the
accused had committed aggravated penetrative sexual assault. At this
stage we deem it necessary to refer to the Medical Jurisprudence (5th
Edition) by Dr. R.M. Jhala and V.B. Raju, at page 469. The relevant
portion of the same is reproduced as below: –

“In young girls under the age of 12 years the hymen is
situated relatively more posteriorly (in backward
position) and higher up in a narrow vaginal canal. This
prevents the hymen from coming in contact with the male
organ in forceful penetration of the organ. This also
saves the hymen from bearing the brunt of the blow and
thus it escapes injury. Thus absence of injury to hymen in
a girl under 12 years does not rule out the act of rape.
Labia majora–Next to hymen in positive importance but
more than that in frequency are the injuries on labia
majora. These, viz., labia majora are the first to be
encountered by the male organ. They are subjected to
blunt forceful blows, depending on the vigour and force
used by the accused and counteracted by the victim. In
case of girls under 12 years where examination of hymen
may not prove useful, examination of labia majora given
conclusive evidence. The narrowness of the canal makes

CRL.A. Nos. 1212/2018 455/2019 Page 25 of 27
it inevitable for the male organ to inflict blunt, forceful
blows on the labia. Such blows invariably lead to
contusion, because of looseness and vascularity. The
interesting feature of such contusion is its vividness
especially on the side it forms inner wall of vagina.
Against the pink background of the mucous membrane
dark red contusion is visible even on initial inspection.”

42. Medical Jurisprudence as referred to above reflects if the hymen of an
adolescent girl is torn due to rape, the penetration has to-be a deep
penetration. The Medical Jurisprudence guides that the labia majora
are the first to be encountered by the male organ and they are subjected
to blunt forceful blows, depending on the vigour and the force used by
the accused and counteracted by the victim. The narrowness of the
vaginal canal makes it inevitable for the male organ to inflict blunt,
forceful blows on the labia and such blows lead to contusion because
of looseness and vascularity. The feature of such contusion is revealed
against the pink background of the mucous membrane dark red
contusion being evident to the naked eye.

43. In the present case, the MLC of the victim reflects that there was
neither abrasions/lacerations nor any blood around the vaginal region.
In addition to the aforesaid, the gynecologist examination revealed that
there was no spotting or tear. The aforesaid facts are confirmed by the
deposition of PW-18 (Dr. Surbhi Goyal) who deposed that “As the
doctor had not recorded any bleeding or spotting, the tear of the
hymen was probably old”. Further the perusal of the FSL report
reflects that no blood or semen could be detected from the samples
which were procured from the person of the victim and the accused

CRL.A. Nos. 1212/2018 455/2019 Page 26 of 27
except from (Ex..A-16) and (Ex. C) which happens to be the blood
sample of the victim and the accused respectively.

44. In terms of the above discussion, we are of the firm view that the
present case is not of aggravated penetrative sexual assault, hence, the
culpability of the accused cannot be said to be of such nature which
can be covered under Section 6 of the POCSO Act.

45. In view of the aforesaid facts, we do not find any infirmity in the
impugned judgment passed by learned Trial Court and the conviction
of the accused/Somveer under Section 10 of POCSO Act as well as
Section 363 of IPC is upheld.

46. Accordingly, CRL.A No.1212/2018 filed by the accused seeking
setting aside of the impugned judgment wherein he has been convicted
for the charges under Section 10 of POCSO Act as well as Section 363
of IPC and CRL.A No.455/2019 filed by the State seeking
enhancement of the punishment from Section 10 of POCSO Act to
Section 6 of the POCSO Act are devoid of merit, hence, are dismissed.

47. Copy of the judgment be sent to Superintendent Jail, Tihar Jail.

48. Trial Court record along with a copy of this judgment be sent back
forthwith

SANGITA DHINGRA SEHGAL, J.

MANMOHAN, J.

MARCH 06, 2020
afa

CRL.A. Nos. 1212/2018 455/2019 Page 27 of 27

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