Delhi High Court

Shabir Ahmad vs State (Nct Of Delhi) on 7 May, 2015

Author: S. P. Garg

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 27th MARCH, 2015
                              DECIDED ON : 7th MAY, 2015

+                        CRL.A. 305/2004

      SHABIR AHMAD                                    ..... Appellant
                         Through :    None.


                         VERSUS



      STATE (NCT OF DELHI)                            ..... Respondent
                         Through :    Ms.Kusum Dhalla, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant - Shabir Ahmad challenges the legality and

correctness of a judgment dated 17.02.2004 in Sessions Case No.23/01

arising out of FIR No.341/2000 PS Badarpur by which he was held guilty

for committing offences under Sections 376/506 IPC. By an order dated

21.02.2004, he was awarded RI for seven years with fine ` 5,000/- under

Section 376 IPC and RI for one year under Section 506 IPC. Both the

sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on and before 16.09.2000 in House No.A-58, Main Road,

Alipur Extension, Badarpur, the appellant committed rape upon the

prosecutrix 'X' (assumed name) aged around eight years and criminally

intimidated her. Victim's aunt Omvati (PW-1) lodged report and the

Investigating Officer registered First Information Report after recording

her statement (Ex.PW-1/A) on 18.09.2000. 'X' was taken for medical

examination. The accused was arrested and medically examined.

Statements of the witnesses conversant with the facts were recorded. 'X'

recorded her statement under Section 164 Cr.P.C. Exhibits were sent for

examination to Forensic Science Laboratory. After completion of

investigation, a charge-sheet was filed against the appellant in the Court

for commission of the aforesaid offences. The prosecution examined

sixteen witnesses to establish appellant's involvement in the crime. In 313

Cr.P.C. statement, the appellant denied complicity in the crime and

pleaded false implication. The trial resulted in his conviction. Being

aggrieved and dissatisfied, the instant appeal has been preferred.

3. Crucial testimony to infer the appellant's guilt is that of the

prosecutrix 'X' aged around eight years. PW-1 (Omvati), her aunt, came

to know about the incident on 16.09.2000 itself. Since X's parents were

not available at home due to their presence in the hospital for treatment of

their son, PW-1 (Omvati) reported the incident to the police of Police

Station Sarita Vihar on 17.09.2000. She was informed that the 'area'

where the occurrence took place did not fall within their jurisdiction and

the complaint was to be lodged at Police Station Badarpur. Omvati,

thereafter, took 'X' to lodge complaint at Police Station Badarpur on

18.09.2000. The Investigating Officer registered the FIR after recording

Omvati's statement (Ex.PW-1/A). In her statement, the complainant gave

detailed account as to how and under what circumstances, the appellant

had sexually assaulted 'X' after putting her in fear on various occasions.

In her statement under Section 164 Cr.P.C. (Ex.PW-2/B), 'X' gave vivid

description about the crime committed by the old man to whom she

addressed 'Tau ji'. The accused taking advantage of the absence of X's

parents and finding her alone in the house committed sexual intercourse

with her. She was threatened not to disclose the incident or else she would

be killed by a knife. In her Court statement as PW-6, she implicated the

appellant for the crime. She deposed that on the day of occurrence when

her parents had gone to hospital to get her younger brother medically

examined, she was sleeping on the roof alone. At about 9 or 10 p.m. it was

dark due to electricity break-down. The accused came at the spot, opened

the nara of her salwar and put his 'organ' used for passing urine into the

place where she passed urine. She started weeping. Thereafter, the

accused left the spot after bolting the door from outside. When her cousin

Sangita arrived after some time and enquired as to why she was weeping,

due to fear, she did not tell anything to her. Subsequently, she went to her

aunt's house and narrated the whole incident to her. She further disclosed

that the accused had committed similar act earlier also once or twice. In

the cross-examination, she elaborated that the previous incident had taken

place about 25 days before at about 08.00 P.M. On the second occasion at

about 09.00 P.M., the accused had come in the bathroom where she was

taking bath and did the same thing. Her parents were away at their shop

on both the occasions. She fairly admitted that the said incident was not

disclosed by her to her parents. She further deposed that accused used to

call her by making a sign with hand. She denied if the statement was

tutored by her father or that no such incident had taken place.

4. Analysing the statement of the child witness, it reveals that

no vital infirmities could be elicited in her cross-examination. Material

facts, stated by 'X' in examination-in-chief, remained unchallenged and

uncontroverted. No extraneous motive was assigned to the little child to

make false allegations against the appellant. Her testimony is consistent

throughout. She has not deviated from her previous version recorded

under Section 164 Cr.P.C. No compelling valid reasons exist to suspect

reliability of her statement. She did not have strong motive to falsely

implicate the appellant. Unless such an incident had really been happened,

'X' a little child of tender age around eight years would be highly

reluctant to make such serious allegations of rape in the absence of any

prior animosity against an old man who lived in the neighbourhood.

5. PW-1 (Omvati), who had the responsibility to take care of the

child in the absence of her parents came to know about the incident on

16.09.2000. She waited for X's parents to return from the hospital to

lodge report. When they were unable to come, she took 'X' on 17.09.2000

to Police Station Sarita Vihar where she was told that the 'area' did not

fall within their jurisdiction. She was directed to approach the police of

Police Station Badarpur. Without wasting further time on 18.09.2000, she

lodged the report with the Police Station Badarpur. Apparently, there was

no inordinate delay in lodging the report. The delay, if any, has been duly

explained and there are no reasons to take adverse view on that account.

In the cross-examination, she elaborated as to how 'X' was ravished on

various occasions by the appellant as disclosed to her. She had no ulterior

motive to falsely implicate the accused in the absence of any previous ill-

will or enmity. PW-4 (Kamlesh) and PW-5 (Shiv Kumar), X's parents

have also corroborated her version on relevant facts. X's statement has

been corroborated by FSL reports (Ex.PW-14/A and Ex.PW-14/B).

Semen stains of 'AB' group were found on Ex.3a (salwar) and Ex.3b

(jhampar of the prosecutrix). It is true that in the FSL report blood on Ex.2

i.e. gauze cloth piece was determined to be of 'B' Group. The Trial Court

has dealt in detail this discrepancy and declined to place reliance on the

expert report given by Mr.A.K.Srivastava whose report in another case

'State vs. Gurbachan Singh', FIR No.863/2000 under Sections 366/376

IPC PS Hauz Khas, Sessions Case No.63/2001 decided on 25.07.2003 by

the learned Addl. Sessions Judge was dis-believed in similar

circumstances.

6. Undoubtedly, when 'X' was medically examined by MLC

(Ex.PW-9/A), no external or internal injuries were found on her body and

her hymen was intact. The alleged history recorded therein, however,

reveals that sexual assault was committed 2 to 3 times by a neighbour, an

old man, who lived near her house.

7. Settled legal preposition is that absence of injuries on the

body of the prosecutrix does not give rise to an inference that she was

consenting party to coitus. Absence of injury or mark of violence on the

private part on the person of the prosecutrix is of no consequence when

the prosecutrix is minor and would merely suggest want of violent

resistance on her part. Absence of violence or stiff resistance may as well

suggest helpless surrender to the inevitable due to sheer timidity. In the

instant case, the victim was a child aged about 8 or 9 years. Due to fear,

no resistance was put by her to the nefarious act committed by the

accused. Even her consent was immaterial as she was below 16 years of

age on the day of occurrence. The appellant was held in high esteem by

'X'; she was not physical capable to put up stiff resistance, the accused

being aged about 60 years. The young girl became victim of lust of the

accused and yielded to sexual intercourse to a man who was like her

grandfather.

8. It is true that as per medical examination, hymen of the

victim was found intact. Again, to constitute the offence of rape neither

Section 375 IPC nor the Explanation attached thereto require that there

should necessarily be complete penetration of the penis into the private

part of the victim / prosecutrix. In other words, to constitute the offence of

rape it is not at all necessary that there should be complete penetration of

the male organ with emission of semen and rupture of hymen. Even

partial or slightest penetration of the male organ within the labia majora or

the vulva or pudenda with or without any emission of semen or even an

attempt at penetration into the private part of the victim would be quite

enough for the purpose of Sections 375/376 IPC. It is quite possible to

commit legally the offence of rape even without causing any injury to the

genitals or leaving any seminal stains. In order to constitute rape, what

Section 375 IPC requires is medical evidence of penetration, and this may

occur and the hymen remain intact ('Radhakrishna Nagesh vs. State of

Andhra Pradesh', 2012 (12) SCALE 506). In 'Ranjit Hazarika vs. State of

Assam' (1998) 8 SCC, the Apex Court has observed that merely because

there were no injuries on the person of the victim and the hymen was

intact, does not lead to a corollary that there was no coitus.

9. Indisputably, the findings of guilt in a case of rape can be

based on the uncorroborated evidence of the prosecutrix. The very nature

of offence makes it difficult to get direct corroborating evidence. The

evidence of the prosecutrix cannot be rejected on the basis of minor

discrepancies or contradictions. In the case of 'State of Punjab vs. Gurmit

Singh and others', 1996 Crl.L.J. 1728, Supreme Court made the following

weighty observations in respect of the evidence of the victim of sexual

assault :

"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating" statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satiny its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to

great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."

10. In 'State vs. Saravanan and anr.', AIR 2009 SC 152, while

dealing with a similar issue, Supreme Court observed :

"....while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some

minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."

11. In 313 Cr.P.C. statement, the appellant did not give plausible

explanation to the incriminating circumstances appearing against him. He

did not produce any evidence to show if there was any prior enmity with

him prompting X's parents to falsely implicate him in the instant case. It

has rather come on record that 'X' due to fear or otherwise did not even

report the previous sexual assaults committed by the accused.

12. The Trial Court judgment is based upon fair appraisal of the

evidence and requires no intervention. The perpetrator of crime was aged

about sixty years and the victim was about eight years old. She did not

understand the consequences of physical relations. The appellant

exploiting her innocence ravished her on various occasions taking undue

advantage of the trust reposed by the child in him at the time when her