Juned @ Jishan S/O Gulzar @ Gulsher Khan vs State Of Mha. Thr. Pso Ps Gittikhadan ...
2025 Latest Caselaw 4452 Bom

Bombay High Court

Juned @ Jishan S/O Gulzar @ Gulsher Khan vs State Of Mha. Thr. Pso Ps Gittikhadan ... on 2 April, 2025

2025:BHC-NAG:3383




              Judgment

                                                                  382 apeal411.22

                                             1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                         CRIMINAL APPEAL NO.411 OF 2022

              Juned @ Jishan s/o Gulzar @ Gulsher Khan,
              aged 35 years, occupation:- labour,
              r/o Swagat Nagar, Near Aksha Masjid
              Gittikhadan, Nagpur.                ..... Appellant.

                                     :: V E R S U S ::

              1. State of Maharashtra,
              through Police Station Officer,
              Police Station Gittikhadan, Nagpur.

              2. XYZ victim in Crime No.37/2021,
              Police Station Gittikhadan, Nagpur. ..... Respondents.

              Shri Arjun Bobade, Counsel for the Appellant.
              Shri V.A.Thakare, Additional Public Prosecutor for the Respondent
              No.1/State.
              Shri J.S.Duhilani, Counsel Appointed for Respondent No.2/Victim.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 03/03/2025
              PRONOUNCED ON : 02/04/2025

              JUDGMENT

1. By this appeal, the appellant (accused) has

challenged judgment and order dated 29.3.2022 passed

.....2/-

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382 apeal411.22

by learned Additional Sessions Judge, Nagpur (learned

Judge of the trial court) in Sessions Case No.368/2021.

2. By the said judgment and order impugned, the

accused is convicted for offence punishable under Section

376(2)(n) of the Indian Penal Code and sentenced to

undergo rigorous imprisonment for 10 years and to pay

fine Rs.50,000/-, in default, to undergo simple

imprisonment for three months.

He is further convicted for offences punishable

under Sections 323 and 506 of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for 6

months and to pay fine Rs.500/-, in default, to undergo

simple imprisonment for 15 days respectively.

3. Brief facts of the prosecution case are as under:

The victim girl is resident of Jaipur and doing

Hotel Business along with her fiance. She had been to

.....3/-

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Nagpur for disposing of her property which was

purchased by her father in her name. The victim was

residing at Nagpur along with her parents and studied in

St.Ursula School at Nagpur till 10th Std.. Nitisingh, the

wife of the accused, was her classmate and, therefore, she

got acquaintance with her. Though she left Nagpur, she

maintained contact with said Nitisingh and whenever she

used to visit Nagpur, she used to meet said Nitisingh.

Nitisingh married with the accused and after her

marriage, her name was changed as Zareen Khan. As the

victim had been to Nagpur to dispose of her plot situated

at Kondhali, she requested Nitisingh to search for a buyer

for the said plot and she assured her. On the say of

Nitisingh, the victim had been to Nagpur on 16.1.2024

and stayed at the house of Nitisingh for two days.

4. On 17.1.2021, at about 11:30 pm, after meal, the

victim was relaxing on sofa-set in the house of the present

.....4/-

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accused. At the relevant time, the present accused was on

the third floor of the said house. At about 2:30 am,

Nitisingh asked the victim to go and sleep on 3 rd floor.

She also informed that door of the room situated on 3 rd

floor is not having latch and she should close the door by

putting the table across the said door. Accordingly, the

victim went to the 3rd floor of the said house. At about

5:00 am to 6:00 am, when she was sleeping, she realized

touch of somebody and, therefore, she got up and saw

that accused No.1 was sitting on her bed. Accused No.3

was standing outside the said room and she was subjected

for forceful sexual assault by the accused No.1. She tried

to resist by making shouts but accused No3 has played

songs on his mobile-phone in a loud voice and, therefore,

her shouts were not heard by anybody. She further

attempted to call Nitisingh, but the present accused

snatched her mobile-phone. She was also threatened not

.....5/-

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to make shouts, otherwise her obscene videos would be

forwarded to her fiance. As per allegations, she was

repeatedly subjected for sexual assault by accused No.1

till 11:30 am.

5. The victim was scared and was not able to narrate

the entire incident to Nitisingh. However, she informed

the said incident to her cousin brother by sending him

message. At about 3:00 pm, somehow, she left the house

for registration of her documents. Again, she returned to

the house of the accused and narrated the incident to

Nitisingh, however Nitisingh has not given any response.

She was taken to Mayo Hospital by Nitisingh. She

approached the police booth at Mayo Hospital and

narrated the incident only to the extent that she was

subjected for sexual assault. However, when she was

narrating the incident to the police, Nitisingh, on the

pretext of visiting doctor, called her outside the booth and

.....6/-

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forced her to leave the place. Thereafter, she obtained

room in Orient Hotel at Nagpur and stayed there.

6. The police of the Mayo Hospital had reported the

incident to the Gittikhadan Police Station. PSI Laxmi

Choudhary had also visited the police booth at Mayo

Hospital, but the victim had already left and, therefore,

her statement was not recorded. The said police officer

reported the said fact to PSI i.e. Rajkumar Upadhyay.

Accordingly, entry was taken in station diary. Search of

the victim was taken and during her search, it revealed

that the victim checked-in Orient Hotel and, therefore,

PSI Upadhyay along with other police staff had visited the

Orient Hotel. The victim was in a scared condition. The

police brought her at the Gittikhadan Police Station. Her

statement was recorded. On the basis of the statement,

police registered the crime against all the accused.

.....7/-

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7. After registration of the crime, the victim was

referred for medical examination. The investigating

officer has also visited the spot of incident. Accused No.1

was absconding. During the search, he was found and

arrested. The samples of the victim and accused were

obtained. The accused had also made memorandum

statement. After completion of investigation, chargesheet

came to be filed against the accused persons.

8. After committal of the case, learned Judge of the

trial court has framed the charge vide Exh.11. The

contents of the charge are explained to the accused. He

pleaded not guilty and claimed to be tried. In support of

the prosecution case, the prosecution examined in all 10

witnesses, as follows:

     PW                 Names of Witnesses                Exh.
     Nos.                                                 Nos.



                                                           .....8/-
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                                                  382 apeal411.22

9. Besides the oral evidence, the prosecution placed

reliance on requisition to medical officer Exh.26, OPD

Papers Exh.27, station diary entries Exhs.31 and 32,

report Exh.35, FIR Exh.36, medical certificate Exh.42,

requisitions to ENT Surgeon Exh.43 and 44, requisition to

forensic medicine Exh.45, medical treatment papers

Exh.46, spot panchanama Exh.48, arrest panchanama

Exh.52, requisition to medical officer Exh.54, seizure

memo Exh.55, memorandum statement of accused

.....9/-

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Exh.56, general diary entry Exh.57, requisition to CA

Exh.62, medical treatment papers Exhs.65 and 77,

medical certificate of accused Exh.78, CA Reports Exh.87

collectively.

10. The statement of the accused was recorded by

obtaining his explanation as to incriminating evidence

appearing against him. The defence of the accused is of

total denial. After appreciating the evidence, learned

Judge of the trial court held the accused guilty and

convicted him as the aforesaid.

11. Being aggrieved and dissatisfied with the same, the

appeal is preferred by accused No.1 on the ground that

the evidence of the victim is not consistent and

trustworthy. Improbable story is narrated by the victim

and learned Judge of the trial court has accepted it

without application of mind. Subsequent conduct of the

.....10/-

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victim itself is doubtful and for all above these grounds,

the case of the prosecution deserves to be rejected and the

accused be acquitted.

12. Heard learned counsel Shri Arjun Bobade for the

accused, learned Additional Public Prosecutor Shri

V.A.Thakare for respondent No1/State, and learned

counsel Shri J.S.Duhilani appointed for respondent No.2/

victim.

13. Learned counsel for the accused submitted that the

entire story narrated by the victim itself is improbable and

unacceptable and the same requires to be thrown out. The

conduct of the victim, after the incident that she visited

the court, executed the documents, itself appears to be

improbable. The evidence of the victim is also not

corroborated by the medical evidence. There is no

conclusive proof as to sexual assault. Though medical

.....11/-

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evidence shows bite marks on her chest, but the age of

the bite marks is not mentioned. There is no independent

corroboration to the evidence of the victim. There is no

station diary entry to show visit of the investigating

officer to the hotel. The investigating officer has not

collected the extract of register of hotel whereat the

victim stayed. Therefore, entire case of the prosecution

fails and the accused deserves to be acquitted.

14. Learned Additional Public Prosecutor for the State

strongly opposed the said submissions and vehemently

submitted that the evidence of the victim is consistent and

corroborated by police officials PW2 PSI Rajkumar

Upadhyay and PW9 Laxmi Choudhary. It is further

corroborated by medical evidence which shows various

injuries on her person. Merely because she has executed

the documents after the incident, the same is not

sufficient to create doubt about her evidence. Her

.....12/-

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evidence shows that as she was influenced by the wife of

the accused, she has not lodged the report. The

friendship between the victim and Nitisingh was not

denied. Thus, there is satisfactory reason for the

victim to stay at the house of accused and also there is

satisfactory reason for non lodging of the complaint on

the request of Nitisingh. Then also, she visited the police

booth near the Mayo Hospital and narrated the incident.

Thus, the evidence of the victim is inspiring the

confidence and, therefore, it be accepted.

15. Learned counsel appointed for the victim endorsed

the same contentions and submitted that the evidence of

victim is consistent and learned Judge of the trial court

rightly appreciated the same and rightly convicted the

accused.

.....13/-

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16. After hearing both the sides and perusing of the

evidence, it is to be ascertained whether the evidence of

the victim is consistent and inspiring the confidence as to

the incident and independent corroboration is not

required.

17. It is pertinent to note that the victim has not

lodged the report initially, but as she approached the

police outpost at Mayo Hospital and given a cryptic

information as to the sexual assault on her, the said

information was communicated to the Gittikhadan Police

Station. It further reveals from the evidence that after

receipt of the information PW9 Laxmi Choudhary

immediately rushed to the outpost at Mayo Hospital, but

the victim had already left and, therefore, the victim was

searched. During the search of the victim, it revealed that

she is staying in Orient Hotel and, therefore, the police

visited the Orient Hotel. The victim was found in a scared

.....14/-

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condition in the said Orient Hotel and she was enquired

and the alleged incident came into light.

18. In support of the prosecution case, the prosecution

has examined PW4 victim who testified that she is

originally resident of Jaipur. In the year 2010-11, her

parents left Nagpur and went to Nepal and from Nepal to

Jaipur. When she was studying in St.Ursula, she got

acquaintance with Nitisingh and developed friendship

with her. Though she left Nagpur, she maintained the

contact with said Nitisingh. Said Nitisingh married with

the accused and thereafter her name was changed as

Zareen. Her father has purchased some property at

Kondhali in her name. She was in need of financial

assistance to run business and, therefore, she requested

Nitisingh to search customers to sell out the said property.

Nitisingh called her at Nagpur and, therefore, she came to

Nagpur on 16.1.2021. She stayed at the house of said

.....15/-

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Nitisingh for 2 days. The house of Nitisingh is of three

storyed. The ground floor was used for keeping articles.

The accused was residing on first floor and upper floor

was having one more room. On 17.1.2021, she went to

sleep and Nitisingh was in her room and the accused was

in the room situated on third floor. At about 2:30 am, she

was woken up by Nitisingh and asked her to go to sleep in

the room on third floor. When she along with Nitisingh

went on 3rd floor, the present accused and accused No.3

were there. Nitisingh also disclosed to her that there is no

latch to the said room and she should use table to close

door. At about 5:00 am, when she was in sleep, she

realized touch to her body. Therefore, she woke up and

saw that present accused was siting on his bed and

accused No.3 was outside the room. She made enquiry

with the present accused, but the present accused

forcefully subjected her for sexual assault. She shouted

.....16/-

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for help, but her shout could not go out and, therefore,

the present accused asked other co-accused to play music

on mobile-phone. Her mobile-phone was also snatched

by them. She was repeatedly subjected for forceful sexual

assaults. Though she made an attempt to disclose the

incident to Nitisingh, but as she was scared, she could not

disclose the incident to Nitisingh. Thereafter, she left the

house for registration of the documents and after coming

home, she disclosed the incident to Nitisingh. Nitisingh

left the house on pretext of visiting Durgah and,

thereafter, victim received message from co-accused and

the victim shared her location to her. Nitisingh came

there and the victim narrated the incident to Nitisingh

and Nitisingh took her to Daga Hospital for medical

examination, but the Medical Officer from the said Daga

Hospital asked her to go to Mayo Hospital. She

approached to the police outpost at Mayo Hospital. At

.....17/-

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the relevant time, Nitisingh influenced her and restrained

her from lodging of the report. Therefore, she left the

house of the accused and obtained room in Orient Hotel.

She further deposed that the police and one lady police

constable visited Orient Hotel in search of her, made

enquiry with her, took her to the police, and she lodged

the report. She was also referred for medical examination.

Her clothes were also seized by the police.

19. During the cross examination of the victim, some

infirmities are brought on record like she has not

disclosed details about her travelling to the police and she

has not informed about the incident to the police by

dialing No.100. The further defence attempted to be

brought on record is that she has obtained amount of

Rs.1.00 lac from accused No.1 in the year 2019 when

property was registered in her name. She admitted that

the house of the accused is in a dense locality. The

.....18/-

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attempt was further made to bring on record that the

story narrated by the the victim is improbable as she

visited the registration office after the incident and also

visited the bank. Therefore, the evidence of the victim

appears to be improbable and unacceptable as nobody

would be in a position to execute any deed after the

alleged incident has taken place with her.

20. In the nature of corroboration, the prosecution has

examined PW2 Rajkumar Upadhyay who was serving as

Police Sub Inspector in Gittikhadan Police Station. His

evidence shows that on 18.1.2021 PSI Laxmi Choudhary

informed him that two women approached the police

outpost at Mayo and out of those two women one

disclosed that she was subjected for forceful sexual

assault. When the police were taking information, they

left the police booth on a pretext that they want to

communicate with each other. Thereafter, PSI Laxmi

.....19/-

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Choudhary visited the Mayo Hospital and searched the

victim, but she could not search her. Accordingly, entry

was taken in the station diary. His further evidence shows

that he received the instructions from his superior officer

to search the victim and accordingly he searched the

victim. While searching the victim, he came to know that

the victim is staying in Orient Hotel and, therefore, he

visited the Orient Hotel wherein the victim was found.

He made enquiry with the victim. The victim has

disclosed the entire incident. By recording her statement,

the crime was registered against the accused. His cross

examination shows that the victim never approached the

the police station on her own. He has not seized any

documents from the hotel to show that the victim was

residing in the said hotel.

21. PW9 PSI Laxmi Choudhary deposed on the same

lines stating that when she was on duty as a day officer in

.....20/-

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Gittikhadan Police Station, she received a phone call from

Mayo Hospital disclosing that the victim came at Mayo

Hospital and when she was residing at her friend's house,

some untoward incident took place with her. She

immediately rushed to the Mayo Hospital, but the victim

had already left the Mayo Hospital. The police at outpost

had obtained her mobile number. While handing over the

charge, she disclosed the entire incident to PW2 PSI

Rajkumar Upadhyay. As far as this evidence is concerned,

PW9 PSI Laxmi Choudhary is not cross examined on this

aspect.

22. To corroborate the aspect of sexual assault on the

victim, the prosecution has examined PW1 Dr.Aslam

Rajak vide Exh.25. His evidence shows that on 19.1.2021

he was Casualty Medical Officer at Indira Gandhi Medical

College and Hospital. Police officials had brought the

victim who narrated the history of rape. The said letter is

.....21/-

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at Exh.26. He examined her and on external

examination, he witnessed contusion over left forearm of

the size 1x1 cm. The injury was one day old. Considering

history of sexual assault, he referred to the Gyanecology

Department.

23. PW5 Dr.Ms.Shreya Dahiwale, is also working as a

Senior Resident of Medical Officer in Gynaecology at

IGMC Nagpur. The victim was referred to her from

casualty department who has narrated the history of

sexual assault and brought by LPC Anju Gajbhiye. The

victim narrated the history that when she was staying at

friend's house, she was sexually assaulted by husband of

her friend. On her examination, she found two bite marks

over the right breast near areola i.e. medial side and two

bite marks over left breast medial side above the areola.

She further witnessed one contusion admeasuring 1x1 cm

over right arm, contusion 1x1 cm over left forearm,

.....22/-

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contusion 1x1 cm on left forearm, 1x1 cm contusion over

left body. On internal examination, she witnessed one old

hymen tear at 7, 8 and 2 O'clock position. She collected

samples and handed over to the investigating agency.

Accordingly, she issued certificate Exh.46. She also

referred letter to ENT Department and General Surgery

Department Exh.44. She further testified that possibility

of sexual assault over the victim cannot be ruled out.

24. PW8 Dr.Sachin Giri is another Medical Officer In

Gynaecology Department. She also testified that the

victim has narrated the history and referred for medical

examination. She carried her physical examination and

asked her to get admitted, but the patient has denied for

the same.

25. PW10 Dr.Sachin Giri is also medical officer of

IGMC, Nagpur who has also examined the victim on

.....23/-

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19.1.2021. On his examination he found following

injuries on the person of the victim:

1. contusion over left forearm posteriorly laterally

at upper 1/3 region 02x01 cm

2. contusion over left forearm antyero-laterally at

middle 1/3 region 01x01 cm

3. contusion over left breast at upper part laterally

of size 02 x 01 cm, semi circular in shape;

4. contusion over left breast at upper part medially

of size 1.5 x 01 cm

5. contusion over right breast at upper part

laterally of size 1.5 x 01 cm.

He obtained swab from the breast and handed over

to WPC Anju B.No.772 of Gittikhadan Police Station.

Accordingly, he issued certificate Exh.77. As per his

.....24/-

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evidence, all injuries were fresh and possible due to

resistance. He has also examined the accused.

26. These all medical officers are cross examined at

length. Cross examination of PW1 Dr.Aslam Rajak shows

that Exh.26 i.e. requisition letter does not bear anything

showing timing. He admitted that he made general

observation and not given any treatment. He further

admitted that contusions can occur during traveling also.

27. PW5 Dr.Ms.Shreya Dahiwale also admitted that

possibility of sexual assault is not mentioned by her in the

report Exh.42. There were no injuries on the face and

neck of the patient. Injury like contusions is possible by

fall on the hard surface. She further admitted that she

did not find any injury on the head of the patient.

28. The evidence of PW8 Dr.Trupti Wankhede

remained unchallenged.

.....25/-

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29. PW10 Dr.Sachin Giri, admitted that he has not

mentioned in the certificate that injuries were fresh.

30. On the basis of this cross examination, attempt was

made to falsify the version of the victim.

31. The prosecution also adduced evidence of PW3

Anju Gajbhiye who has taken the victim to the hospital

and PW9 Investigating Officer Laxmi Choudhary.

32. Perusal of the evidence shows that the victim came

to Nagpur on 16.1.2021. Undisputedly, from 16.1.2021 to

18.1.2021 she stayed at the house of the present accused

and his wife Nitisingh. As per the evidence, in the

intervening night of 17.1.2021 to 18.1.2021 she was

subjected for sexual assault by the accused. She disclosed

the incident to the Nitisingh and Nitisingh has taken her

to Mayo Hospital. Admittedly, investigating agency has

.....26/-

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not collected the evidence that the victim was staying in

Orient Hotel.

33. On appreciation of the evidence, undisputed facts

are that the victim was having acquaintance with

Nitisingh prior to the incident. It is also undisputed that

she had been to Nagpur and stayed at the house of the

accused. This fact is not denied during the cross

examination. The evidence of PW2 PSI Rajkumar

Upadhyay and PW9 Laxmi Choudhary shows that the

victim had approached to police outpost at Mayo Hospital

and had given incomplete information. Therefore, she

was searched and she was found in Orient Hotel. Her

statement was recorded. On the basis of her statement,

crime was registered. The victim has narrated the entire

incident. Though she is cross examined at length,

defence was taken that she obtained Rs.1.00 lac from the

accused in the year 2019 to which she denied.

.....27/-

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34. To corroborate the version of the victim, the

prosecution mainly placed reliance on the medical

evidence by examining four Medical Officer. Their

evidence consistently shows that they have seen the

external injuries on the person of the victim. Even

accepting the suggestion that the said injuries caused on

her left and right hand are possible while travelling, the

question remains as to the injuries on her breast.

35. The evidence of PW5 Dr.Ms.Shreya Dahiwale

shows that she witnessed two bite marks on right breast

and two bite marks on left breast. This fact is neither

challenged nor cross examined. PW10 Dr.Sachin Giri

specifically stated that all injuries were fresh injuries and

possible due to resistance.

36. It is only argued by learned counsel for the accused

that age of the bite marks is not mentioned by the medical

.....28/-

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officers. Whether that aspect would be sufficient to

discard the entire evidence of the victim when no reason

came forward for implication of the accused falsely in the

alleged incident. The incriminating articles forwarded to

the Chemical Analyzer also show that the slack of the

victim and one piece of cloth seized form the house of the

accused were stained with the human blood. The specific

evidence of the victim shows that during the incident she

has menstrual period i.e. s also corroborated by PW5

Dr.Ms.Shreya Dahiwale.

37. The another submission made by learned counsel

for the accused is that after the incident, it is highly

improbable that a victim of sexual assault would visit the

office to register the documents. While appreciating the

evidence of the victim, it is to be borne in mind that the

victim had been to Nagpur to collect some amount by

selling her property as she was in need of financial

.....29/-

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assistance. Therefore, she was in contact with Nitisingh

and that was the reason for her to say at the house of

accused Nos.1 and 2. After the incident, attempt was

made by her to disclose the incident to the Nitisingh.

Though there is no evidence that Nitisingh has taken her

to the Daga Hospital, the evidence of PW2 PSI Rajkumar

Upadhyay and PW9 Laxmi Choudhary specifically shows

that PW9 Laxmi Choudhary was present in the police

station as a day officer. She received a phone call from

the police outpost of the Mayo Hospital and disclosed to

her that two women approached to the said police

outpost and one of them made a complaint of sexual

assault on her at her friend's house. Immediately PW9

Laxmi Choudhary rushed to the police outpost at Mayo

Hospital, but both the women left the place. On enquiry

by her, it revealed to her that they left the police chowki

on pretext of having communication with each other.

.....30/-

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This evidence is to be appreciated in the light of the

evidence of the victim that Nitisingh influenced her by

saying that she should not lodge complaint otherwise

Nitisingh would commit suicide and took her from the

police station. The victim immediately left the house of

the accused and took shelter at Orient Hotel. The

information received by PW9 Laxmi Choudhary is

communicated by her to PW2 PSI Rajkumar Upadhyay.

PW2 PSI Rajkumar Upadhyay was also informed by his

superior to search the victim and during search the

victim was found in Orient Hotel and, thereafter, the

victim was immediately taken to the police station and

referred for medical examination. PW1 Dr.Aslam Rajak

examined her on 19.1.2021 at 12:20 pm. PW5

Dr.Ms.Shreya Dahiwale examined her at 1:30 pm and

PW10 Dr.Sachin Giri examined her at 3:50 pm. The

external injuries as well as the bite marks are seen on the

.....31/-

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chest of the victim. The evidence as to the bite marks

remained unchallenged.

38. It is well settled that the evidence of victim of

sexual assault stands on par with evidence of an injured

witness. The evidence of the victim of sexual offence is

entitled to great weight and corroboration is not required

if it inspires confidence. In physical assault case, there

may be evidence of eyewitnesses, but such type of

evidence cannot be expected in sexual assault case. A

prosecutrix of a sex-offence cannot be put on par with an

accomplice. She is in fact a victim of crime. The

Evidence Act nowhere states that her evidence cannot be

accepted unless it is corroborated in material particulars.

She is undoubtedly a competent witness. What is

necessary is that the Court must be conscious of the fact

that it is dealing with the evidence of a person who is

interested in the outcome of the charge levelled by her. If

.....32/-

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the court keeps this in mind and appreciates the evidence,

Illustration (b) of Section 114 of the Indian Evidence Act

which requires it to look for corroboration. If for some

reason the Court is hesitant to place implicit reliance on

the testimony of the prosecutrix it may look for evidence

which may lend assurance to her testimony short of

corroboration required in the case of an accomplice.

39. In the case of State of Punjab vs. Gurmeet Singh

reported in (1996 (2) SCC 384) the Hon'ble Apex Court

held that in cases involving sexual harassment,

molestation, etc. the court is duty-bound to deal with

such cases with utmost sensitivity. Minor contradictions or

insignificant discrepancies in the statement of a

prosecutrix should not be a ground for throwing out an

otherwise reliable prosecution case. The evidence of the

victim of sexual assault is enough for conviction and it

does not require any corroboration unless there are

.....33/-

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compelling reasons for seeking corroboration. The court

may look for some assurances of her statement to satisfy

judicial conscience. The statement of the prosecutrix is

more reliable than that of an injured witness as she is not

an accomplice. The Court further held that the delay in

filing FIR for sexual offence may not be even properly

explained, but if found natural, the accused cannot be

given any benefit thereof.

40. Learned counsel for the accused submitted that the

evidence of the victim which remains uncorroborated

deserves to be rejected. In support of his contentions, he

placed reliance on the decision in the case of Santosh

Prakash vs. State of Bihar, reported in (2020) 3 SCC 443

and Rai Sandeep @ Deepu vs State of NCT of Delhi,

reported in (2012)8 SCC 21 and submitted that the

prosecution failed to pass the test of sterling witness. He

submitted that in view of the decision of the Hon'ble Apex

.....34/-

Judgment

382 apeal411.22

Court, sterling witness should be of a very high quality

and caliber whose version should therefore be

unassailable.

41. The another ground raised by him is, no semen

stains are found either on the clothes of the accused,

clothes of the victim or on bed sheet. Rape is all regards

penetration i.e. penial vaginal penetration and certainly

not about ejaculation or emission of semen. As the very

explanation under Section 375 states that to constitute

the offence of rape, it is not necessary that there should

complete penetration with emission of semen and rupture

of hymen. Partial penetration within the labia majora of

the vulva or pudendum with or without emission of

semen is sufficient to constitute the offence of rape as

defined in the law. The depth of penetration is

immaterial in an offence punishable under Section 376 of

the IPC. The sine quo non of offence of rape is

.....35/-

Judgment

382 apeal411.22

penetration and not ejaculation. Therefore, in absence of

semen, being found, either on clothes of accused or

victim, not sufficient to discard the evidence.

42. The legal position, therefore, is quite unambiguous

that the evidence of victim in case of rape is ordinarily to

be believed and may form the sole basis for conviction

unless cogent reasons for the court to be hesitant in

believing the statement at its face value and to seek

corroboration thereof exist.

43. Here, in the present case, victim's evidence is

corroborated by the medical evidence and also

corroborated by the evidence of police officers which

suggests that after the incident, though the victim

approached the police station, due to the influence of

Nitisingh, the wife of the accused, she has not lodged the

report. There may be reason for the victim for not

.....36/-

Judgment

382 apeal411.22

lodging the report immediately as her marriage is already

settled and the accused threatened her not to inform the

incident by sharing the videos with her fiance. In such

type of cases, generally, there is a reluctance to go to the

police station because of the society's attitude towards

such women. She was concerned about her future and,

therefore, no straight jacket formula can be laid down in

this regard to hold that as she has not immediately

approached the police station, her contentions are to be

disbelieved. As observed earlier, there may be several

reasons for the victim not to lodge the report immediately.

As soon as she got the support of the police, she disclosed

the incident and lodged the report. The delay is to be

considered in the light of the fact that the victim came to

Nagpur having support of the Nitisingh who was her

friend, but Nitisingh betrayed her trust and in the house

of Nitisingh she was subjected for sexual assault. She

.....37/-

Judgment

382 apeal411.22

attempted to inform the Nitisingh about the incident, but

Nitisingh has not supported her and, therefore, some time

was required for her. The delay is to be considered in the

light of the facts and circumstances of that case and such

delay is not always fatal to the prosecution.

44. After re-appreciating the evidence, it reveals that

the victim was subjected for sexual assault by the accused.

The evidence of the victim is corroborated by the medical

evidence as four medical officers witnessed the injuries on

her person. Injuries as to the bite marks are even not

challenged during the cross examination. No other

reason is brought on record to show that the said injuries

are possible by other reasons also. Considering the nature

of injuries on her breast, in the light of her evidence and

the evidence of PW10 Dr.Sachin Giri, it shows that

injuries were fresh and after appreciating the evidence,

.....38/-

Judgment

382 apeal411.22

learned Judge of the trial court rightly convicted the

accused.

45. In the light of the above foregoing discussion, no

infirmity can be found in the judgment impugned in the

appeal. Thus, the appeal being devoid of merits is liable

to be dismissed and the same is dismissed.

46. Fees of learned counsel Shri J.S.Duhilani

appointed for the victim be quantified and the same be

paid to him as per rules.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 03/04/2025 11:19:03