Delhi High Court
Surender Gupta vs State (Govt. Of Nct) on 8 August, 2016
#
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On: 24.05.2016
Judgment Pronounced On: 08.08.2016
CRL. APPEAL 395/2014
SURENDER GUPTA ..... Appellant
Through Mr. Azhar Qayum, Advocate with Mr.
Narender Kumar, Advocate, Appellant
(in person in custody)
versus
STATE (GOVT. OF NCT) ..... Respondent
Through Ms. Radhika Kolluru, APP
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
SIDDHARTH MRIDUL, J
1. The present criminal appeal under section 374(2) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'the Code') assails the
judgment and order of conviction dated 10.01.2014 and order on sentence
dated 13.01.2014, passed by the Ld. ASJ-01 (West), Delhi, in Sessions Case
No. 22/12, in FIR No. 20/2012, registered at P.S. Kirti Nagar, whereby the
appellant has been convicted for an offence under section 376 of the Indian
Penal Code (hereinafter referred to as 'IPC') and sentenced to undergo
rigorous imprisonment for a period of 10 years and payment of a fine of
Rs.5000/- with a stipulation that in default of payment of fine, the appellant
would further undergo simple imprisonment for a period of one month.
2. The gravamen of the charge, for which the appellant has been
convicted, is, for having committed rape on the prosecutrix, a girl aged about
7 years (at the time of commission of the offence) on 18.01.2012.
3. Briefly, the facts of the case as are relevant for the adjudication of the
present appeal are as under:
i) The prosecution case, as unfurled, is that on 18.01.2012, Smt.
Sujata (PW-1)/the complainant, mother of the prosecutrix,
alongwith the prosecutrix, went to the police station to inform
the police that the appellant had committed rape upon the
prosecutrix at his house (jhuggi). Upon the statement of Smt.
Sujata (PW-1)/complainant, DD Entry No. 43A dated
18.01.2012 (Ex. PW 6/A) was recorded. SI N.L. Yadav (PW-
10) accompanied the prosecutrix with her mother, to the
appellant's house where the appellant was not found and the
house (jhuggi) was found closed.
ii) On the same day, i.e. 18.01.2012, the prosecutrix was sent for
medical examination to DDU Hospital where she was admitted
for 15 days.
iii) Thereafter, on 21.01.2012, FIR No. 20/2012 (Ex. PW-3/A) was
registered at Police Station- Kirti Nagar, West Delhi, under
section 376 IPC, against the appellant herein (hereinafter
referred to as the 'subject FIR').
As per the subject FIR, the incident occurred on 18.01.2012 at
the house (jhuggi) of the appellant, who was residing in the
same neighbourhood as the prosecutrix. Smt. Sujata (PW-1),
alongwith her family of three children and her husband, was
residing at B-588, Chunna Bhatti, Jawahar Camp, Kirti Nagar,
Delhi, at the relevant time. On 18.01.2012 at around 04:00
P.M., the appellant approached Smt. Sujata (PW-1), seeking
permission to take the prosecutrix, who was playing outside her
house, with him on the pretext of giving the latter a toffee.
Thereafter, the prosecutrix accompanied the appellant to his
house (jhuggi). Later, on the same day, Smt. Sujata (PW-1),
becoming worried that the prosecutrix had not returned home
for a long time, went to the house of the appellant. She found
the door of the house of the appellant locked from inside and
heard the prosecutrix screaming from inside. After her vain
attempts at knocking and pushing open the door of the house,
she started weeping loudly. After some time, the appellant
unlocked the door, pushed her and ran outside. She tried to
apprehend the appellant but he managed to escape. Inside the
house, she saw that the prosecutrix was weeping and that the
undergarments of the prosecutrix were stained with blood,
whereafter she took the prosecutrix with her to the police station
and got DD entry No. 43A dated 18.01.2012 (Ex. PW 6/A)
recorded against the appellant.
iv) The detailed medical examination of the prosecutrix was
conducted on 21.01.2012.
The medical opinion in the MLC report, dated 21.01.2012, (Ex.
PW-13/A), qua the prosecutrix, returned a finding to the effect
that, "no tear, fresh injury or bleeding seen; hymen was found to
be torn; no tear/bleeding seen inside the vagina".
v) Subsequently on 21.01.2012, at the instance of Smt. Sujata
(PW-1), a site plan (Ex. PW 1/B) was prepared. On the same
day, at the instance of the former, the appellant was arrested at
8.30 P.M., vide arrest memo dated 21.01.2012 (Ex. PW1/C).
The medical examination (Ex. PW 2/A) of the appellant was
conducted at DDU Hospital on the same day itself at 9.50 P.M.
vi) The exhibits of the case (Exhibit 1- the undergarments of the
prosecutrix; Exhibits 2a and 2b- the vaginal fluid of the
prosecutrix; Exhibit 3- blood sample of the appellant) were sent
for examination to FSL, Rohini.
vii) Investigation was conducted and after the conclusion of the
investigation, charge sheet dated 26.02.2012, under section 376
IPC was filed against the appellant before the court of Ld. MM,
Tis Hazari Court, Delhi, and subsequently, the matter was
committed to the Court of Sessions vide order dated
17.03.2012.
viii) Charge was framed against the appellant under section 376 IPC,
vide order on charge dated 03.04.2012, wherein, he abjured his
guilt to the charge framed against him and claimed trial.
ix) During the course of trial, the prosecution, to bring home the
charges, examined thirteen witnesses, as summarised
hereinbelow:
Smt. Sujata (PW-1) is the mother of the
prosecutrix upon whose statement DD entry No.
43-A (Ex. PW6/A) was recorded by SI Krishan
Kumar, P.S. Keshav Puram, Delhi (PW-6) and the
same was marked to SI N.L. Yadav, P.S. Uttam
Nagar, Delhi (PW-10) for investigation.
Dr. Ajay Sharma, Medical Officer, DDU Hospital,
Delhi (PW-2) conducted the medical examination
of the appellant and proved the medical report (Ex.
PW2/A).
SI Parkash, P.S. Kirti Nagar, Delhi, (PW-3) proved
the subject FIR (Ex. PW3/A).
The prosecutrix was examined as PW-4.
W-HC Vidya, P.S. Mianwali Nagar, Delhi, (PW-5)
deposed that on the date of the incident, i.e.
18.01.2012, the prosecutrix was taken to DDU
Hospital for the latter's medical examination.
Ct. Satender, P.S. Kirti Nagar, Delhi (PW-7)
deposited the exhibits of the case with FSL Rohini.
ASI Ram Pal Singh, P.S. Nihal Vihar, Delhi, (PW-
8) got recorded the statement of the prosecutrix
under section 164 of the Code. Ms. Harleen Singh,
Ld. MM (North East), Karkardooma Courts, Delhi
(PW-9) proved, the said statement of the
prosecutrix recorded by her (Ex.PW4/A) and, her
certificate (Ex. PW9/A).
SI N.L. Yadav, P.S. Uttam Nagar, Delhi (PW-10)
went to the place of incident on 18.01.2012 with
Smt. Sujata (PW-1) and accompanied the
prosecutrix with Smt. Sujata to DDU Hospital. He
collected the MLC result vide seizure memo (Ex.
PW10/A). He recorded the statement of Smt.
Sujata (Ex. PW1/A) and prepared a rukka (Ex.
PW10/B) and got the subject FIR registered on
21.01.2012. On 21.01.2012, the appellant was
arrested vide arrest memo (Ex. PW1/C) and taken
for medical examination to DDU Hospital.
SI Maya Devi, P.S. Paschim Vihar, Delhi (PW-11)
deposed that on 21.01.2012, the investigation into
the subject FIR was marked to her. The Site plan
(Ex. PW1/B) was prepared by her at the instance
of the Smt. Sujata (PW-1). On 21.01.2012, she got
the statement of the prosecutrix under section 164
of the Code recorded through ASI Ram Pal (PW-
8). The FSL Results (Ex. PX and Ex. PZ) were
collected by her.
HC Pooran Mal, P.S. Mundka, Delhi (PW-12)
proved the relevant entry regarding the deposition
of exhibits with him and handing over of the same
for depositing with the FSL, Rohini (Ex. PW12/A
and Ex. PW12/B).
Dr. Sunita Seth, Specialist OBG, DDU Hospital,
Delhi (PW-13) deposed that the prosecutrix was
examined by Dr. Namita Gupta and the former
proved the medical report of the prosecutrix (Ex.
PW-13/A) which was prepared by the Dr. Namita
Gupta, as the latter had since left the services at the
DDU Hospital and the latter's whereabouts were
stated to be unknown.
x) The FSL results dated 10.12.2012 (Ex. PX and PZ) were
obtained during the course of the trial. The findings/conclusion
in the FSL Report read as follows:
"The DNA profiling (STR analysis) performed on
the exhibits provided was sufficient to conclude
that the biological stains i.e. seminal stains present
on exhibit '1' (baby's underwear) and exhibits
'2a', '2b' (two microslides of vaginal fluid) were
found similar to the source of exhibit '3' (i.e.
blood in gauze of accused)."
xi) The appellant, in his statement under section 313 of the Code,
denied the case of the prosecution. However, no evidence was
led by the appellant in his defence.
xii) The learned Trial Judge after appreciating the evidence brought
on record by the prosecution, came to the conclusion that the
prosecution had been able to establish the charge against the
appellant and thus, convicted the appellant for offence
punishable under section 376 IPC.
4. Learned counsel appearing on behalf of the appellant, would canvass
that the learned Trial Judge has erred in convicting the appellant, in as much
as, the testimony of the prosecutrix is unreliable as she is a tutored witness
and has deposed at the instance of her mother. The counsel for the appellant
would further submit that no medical evidence has been brought on record to
support the case of the prosecution as the MLC of the prosecutrix shows that
there was no fresh injury or bleeding in the private parts of the prosecutrix.
Learned counsel appearing on behalf of the appellant would lastly urge that
the mother of the prosecutrix has enmity with the appellant and has thus
falsely implicated him in the case.
5. Ms. Radhika Kolluru, Ld. APP appearing on behalf of the State,
would contend that the testimony of the prosecutrix has been corroborated
by, and finds full support in, the testimony of the mother of the prosecutrix,
Smt. Sujata (PW-1). Ms. Kolluru, Ld. APP, would further urge that the law
enunciated with regard to convicting an accused for the offence under
section 376 IPC, on the basis of sole testimony of the prosecutrix, is a well-
settled proposition in view of various decisions rendered by the Hon'ble
Supreme Court. Ms. Kolluru, Ld. APP, would lastly assert that the clear and
unshattered testimony of the prosecutrix is sufficient to establish the case of
the prosecution, if the same is found reliable, by the court.
6. I have heard counsel appearing on behalf of the parties, examined the
documents and perused the entire evidence on record. The sole issue that
arises for consideration in the present appeal is- whether the testimony of the
victim/prosecutrix deserves acceptance and ultimately, whether the
prosecution has established the guilt of the appellant-accused beyond
reasonable doubt.
7. It is pertinent to observe that the question, whether conviction of an
accused can be based on the sole testimony of the victim in cases of sexual
assault/rape, is no longer res-integra. The Hon'ble Supreme Court has dealt
with the issue in a catena of judgments in cases of similar nature and it has
been held that, the sole testimony of the prosecutrix if found reliable, can be
relied upon for convicting the accused; and that the credit-worthy testimony
of the victim in cases of such nature deserves acceptance.
8. The Hon'ble Supreme Court, in State of Rajasthan v. Om Prakash,
reported as (2002) 5 SCC 745, dealing with a similar question in the case of
a child rape, while upholding the conviction of the appellant therein and
reversing the decision of the High Court therein, relied upon earlier decisions
and made the following observations:
"13. The conviction for offence under Section 376 IPC
can be based on the sole testimony of a rape victim is a
well-settled proposition. In State of Punjab v. Gurmit
Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316],
referring to State of Maharashtra v. Chandraprakash
Kewalchand Jain [(1990) 1 SCC 550 : 1990 SCC (Cri)
210] this Court held that it must not be overlooked 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. It has also
been observed in the said decision by Dr Justice A.S.
Anand (as His Lordship then was), speaking for the
Court that the inherent bashfulness of the females and
the tendency to conceal outrage of sexual aggression
are factors which the courts should not overlook. 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.
14. In State of H.P. v. Gian Chand [(2001) 6 SCC 71 :
2001 SCC (Cri) 980] Justice Lahoti speaking for the
Bench observed that the court has first to assess the
trustworthy intention of the evidence adduced and
available on record. If the court finds the evidence
adduced worthy of being relied on, then the testimony
has to be accepted and acted on though there may be
other witnesses available who could have been
examined but were not examined."
(Emphasis supplied)
9. In the instant case, a plain reading of the subject FIR demonstrates that
the appellant had taken the prosecutrix with him on the pretext of giving her
a toffee and instead, took the prosecutrix to his house, where he committed
rape upon her.
10. The statement under section 164 of the Code, made by the prosecutrix
(Ex. PW4/A) was recorded before the Ld. MM on 04.02.2012. The said
statement is reproduced hereunder:
"WO
Bagal vale uncle ne mujhe bulaya toffee dene ke liye. Vo
mujhe apne ghar le gaye the. Usne apna pant utara aur mere
kapde bhi. Fir usne apni luli mere andar daali. Main chillane
lagi toh usne mera muh band kar diya. Mummy aayi toh voh
bhaag gaya."
(Emphasis Supplied)
11. The testimony of the prosecutrix (PW-4), as recorded at the trial, is
reproduced hereinbelow:
"Without Oath
The witness is a minor girl, 8 years of age. At request
of Ld. APP her statement is being recorded inside my
chamber. Her mother is permitted to be present as a support
person. The accused has been asked to stand outside my
chamber with the door of the chamber open where he is able
to hear the proceedings and see the computer screen. The
prosecutrix is seated in a char beside me so that she does not
face the accused while her statement is being recorded. Apart
from the prosecutrix, Ld. APP. the support person and the
stenographer, Ms. Sadhana Singh from DCW and the Ld.
Counsel Sh. Pushpendu Shukla for the accused are present
inside the chamber.
The following questions are put to the witness to
ascertain whether she is able to give the rational answers to
the questions put to her:
****
Q. What is your mother;s name?
A. Sujata.
Q. How many brother and sisters do you have?
A. I have one brother and two sisters.
Q. In which class do you study?
A. I study in class 1st.
Q. Should you speak truth or lie?
A. Truth.
From the above answers, I am satisfied that the witness
is able to give the rational answers to the questions put to her.
One uncle who is residing in my neighbourhood has
taken me to his house on the pretext of giving me toffee. That
uncle removed his underwear and also removed my
underwear and penetrated his Luli (penis) into my urinating
organ and I started bleeding. I shouted. That uncle pressed my
mouth and ran away. I can identify that uncle.
The accused was called inside and the witness has identified
him as the same person who has committed wrong act with
her and to whom she is calling uncle.
At this stage one sealed envelope sealed with the seal
of HS is opened and found to contain the statement of the
prosecutrix u/s 164 Cr. P. C. which the witness stated that she
has made the statement to a Lady Magistrate and the same is
Ex.PW4/A bearing thumb impression of the witness
XXXXXXXX
Ld. Counsel has put the relevant questions to the court
which I had put to the witness.
The accused has made me to lye on the floor and then come
upon me. The accused used to visit our house prior to the
incident. The accused has taken me into a room on the upper
floor and closed the door. My underwear also got blood
stained. My mother came there and also made a telephone call
to my father. I was taken to the hospital. The accused had
taken me in the evening time when I was playing with my
sister Vandana. After the alleged incident, I was conscious. It
is wrong to say that I am deposing falsely being tutored by
my mother."
(Emphasis Supplied)
12. A perusal of the testimony of the prosecutrix unequivocally reveals
that the commission of the offence by the appellant is described in clear and
unambiguous words and her testimony has remained consistent and
unshattered even during cross examination. The prosecutrix successfully
identified the appellant and stated that the latter was known to her as her
neighbour who used to visit her house, whom she addressed as 'uncle'.
13. It would also be relevant at this juncture, to reproduce the testimony of
Smt. Sujata (PW-1), the mother of the prosecutrix, as under:
"On S.A.
I have three children i.e. two daughters and one son.
The Prosecutrix is my younger daughter. On 18.01.2012, at
about 4 p.m. I was present in my house along with my
younger daughter, the prosecutrix, and my two other children
had gone to the shop of my husband. My husband works as a
labour in a timber shop near our house. Accused Surender
Gupta present in court was living at some distance from our
jhuggi. At the time of incident, my daughter the prosecutrix
was playing outside our jhuggi and I was washing my clothes
outside the jhuggi. Accused came to me at that time and told
me that he was taking the prosecutrix along with him for
getting her a toffee. I became busy in my household work.
When accused did not bring the prosecutrix back for a long
time I became worried and went to the jhuggi of the accused.
I found that jhuggi of accused was closed from inside and I
also heard screaming of the prosecutrix from inside the
jhuggi. I tried to open the jhuggi by knocking and pushing the
door of the jhuggi. Nobody opened the door of the jhuggi and
I became suspicious and frightened. I started weeping loudly
and accused opened the door after along time. I saw that my
daughter was inside the jhuggi and was weeping bitterly in
loud voice. The clothes of my daughter were blood stained at
that time. I even saw blood on the clothes of accused but in
the meanwhile accused ran away after pushing me when I
tried to catch hold of him. I took my daughter in my lap and
went to the PS directly. I was sent to the hospital along with
my daughter for her medical examination since my daughter
was bleeding. My daughter was admitted in DDU Hospital for
15 days. The blood stained clothes of my daughter i.e. frock
and underwear was taken by doctor. My statement was also
recorded by the police which is Ex. PW1/A bearing my
signatures at point A. I had told police the place of occurrence
i.e. jhuggi of accused and police prepared site plan at my
instance which is Ex. PW1/B bearing my signatures at point
A. Statement of my daughter was also recorded by the police.
My daughter was studying in class first in MCD school.
Statement of my daughter was also recorded by Magistrate in
the court. Accused was arrested at my instance by the police
vide memo Ex. PW1/C bearing my signatures at point A and
his personal search was conducted vide memo Ex. PW1/D
bearing my signatures at point A. Accused pointed out
towards his jhuggi on the first floor where he raped my
daughter. Police prepared some papers in that regard which is
Ex. PW1/E bearing my signatures at point A. Accused also
made disclosure statement which is Ex. PW1/F bearing my
signatures at point A and he admitted his guilt at that time.
Accused was also sent for medical examination.
At this stage it is revealed that case property i.e.
undergarments of victim has not been received from FSL and
case property i.e. undergarments of accused has not been sent
to FSL.
Remaining examination in chief is deferred for want of
case property i.e. clothes of the victim."
(Recalled for further examination)
"On S.A.
I can identify the undergarment of my daughter which
she was wearing at the time of incident.
At this stage MHCM has produced parcel No. 1 sealed
with the seal of SBP. On opening the same it was found to
contain the remnant of sealing material and one baby
undergarment of white colour which was identified by the
witness. The undergarment is having dry blood stains and cut
marks of FSL examination. The same is identified by the
witness as of her daughter and same is Ex P1.
XXXXXXXXXX
The shop where toffees are sold are at a distance of about
15/20 yards from my jhuggi. Before this incident accused had
not taken my daughter with him for getting a toffee to her.
Accused was known to me and my family members but we
were not on eating terms with accused. After accused took my
daughter with him after about half an hour when he did not
come back with my daughter I became suspicious. I had
initially searched for my daughter around my jhuggi and in
the area when I could not find accused and my daughter so I
went to the jhuggi of the accused. The door of the jhuggi of
the accused was locked from inside and I had knocked the
door. Then accused opened the door and I found my daughter
in a very bad condition and was lying on the floor and she
was crying a lot. She was wearing her cloth and her
undergarments was stained with lot of blood. Accused had
run away and I had taken my daughter to PS Kirti Nagar.
Nobody from the neighbourhood had accompanied me when I
went to the PS with my daughter. The accused was
apprehended after about three days of the incident in my
presence. I had not doubted the accused when he took my
daughter for getting her a toffee. It is wrong to say that I had
deposed falsely."
(Emphasis Supplied)
14. Upon a plain perusal of the testimonies of the prosecutrix (PW-4) and
her mother, Smt. Sujata (PW-1), the contention raised on behalf of the
appellant to the effect that the Ld. Trial Court erred in relying upon the
testimony of the prosecutrix on the ground that she is a tutored witness,
cannot be accepted and is dehors any merit. The appellant has failed to
controvert the testimony of the prosecutrix, which has remained
unchallenged and unshattered even through the cross examination of the
latter. Further the testimony of the prosecutrix finds complete support in the
testimony of her mother which has also remained consistent throughout. No
ground is urged on behalf of the appellant to point out any inconsistency
whatsoever in the testimonies of these prosecution witnesses. A mere
assertion that the prosecutrix is a tutored witness does not come to the aid of
the appellant, when the former's statement is in fact corroborated by the
evidence led by other prosecution witnesses.
15. Coming now to the medical evidence adduced, the medical opinion in
the MLC result dated 21.01.2012, qua the prosecutrix (Ex. PW-13/A), states
that "no tear, fresh injury or bleeding seen; hymen was found to be torn; no
tear/bleeding seen inside the vagina".
16. Further, the FSL report dated 10.12.2012, (Ex. PX), returned a
finding/conclusion that, "The DNA profiling (STR analysis) performed on
the exhibits provided was sufficient to conclude that the biological stains i.e.
seminal stains present on exhibit '1' (baby's underwear) and exhibits '2a',
'2b' (two microslides of vaginal fluid) were found similar to the source of
exhibit '3' (i.e. blood in gauze of accused)."
17. The position of law on the question, whether absence of injuries found
on the person of the prosecutrix, in the case of rape, would result in a finding
of acquittal, is well settled. Dealing with this issue in the case of a child rape,
a Division Bench of this court in Lokesh Mishra v. State of NCT of Delhi,
in Criminal Appeal No. 768 of 2010, decided on 12.03.2014, relying on
earlier decisions of the Apex Court, while upholding the conviction under
section 376 IPC, made the following observations:
"39. The apex court in B.C. Deva v. State of Karnataka,
reported at (2007) 12 SCC 122, inspite of the fact that no
injuries were found on the person of the prosecutrix, yet
finding her version to be reliable and trustworthy, the Apex
Court upheld the conviction of the accused. The Court
observed that:
18. The plea that no marks of injuries were
found either on the person of the accused or the
person of the prosecutrix, does not lead to any
inference that the accused has not committed
forcible sexual intercourse on the prosecutrix.
Though the report of the gynecologist
pertaining to the medical examination of the
prosecutrix does not disclose any evidence of
sexual intercourse, yet even in the absence of
any corroboration of medical evidence, the oral
testimony of the prosecutrix, which is found to
be cogent, reliable, convincing and trustworthy
has to be accepted."
(Emphasis supplied)
18. Although in the present case it is observed that vide the MLC result
(Ex. PW-13/A), it has been opined that no bleeding was seen, it is relevant to
note that the examination was conducted on 21.01.2012, three days after the
date of the incident. Further, it has been clearly opined that the hymen was
found to be torn. The FSL Report dated 10.12.2012 (Ex. PX) confirms that
the seminal stains found on the underwear of the prosecutrix were similar to
the blood sample of the appellant. On a combined reading of the MLC result
and FSL result, it is patently clear that the medical evidence also
corroborates the story of the prosecution. The contention raised on behalf of
the appellant that, there being no fresh injury/bleeding in the private organs
of the prosecutrix, no charge of rape can be sustained, does not hold water,
particularly in view of a conjoint reading of the opinions rendered in the
MLC report and FSL result. Injuries are not a sine qua non to prove a charge
of rape. Let it not be forgotten that this is a case of rape on a girl child, aged
about 7 years at the time of commission of the offence.
19. Therefore, in light of the above, I find no weight in the contention
urged on behalf of the appellant that the medical evidence does not support
the case of the prosecution.
20. On the question of observing caution while appreciating and placing
reliance on the evidence of a child witness, it has been propounded by the
Hon'ble Supreme Court in various decisions that the evidence of a child
witness cannot be rejected outrightly, and is required to be evaluated
carefully and with greater circumspection as the child may be swayed by
what others may tell him or her as the child is an easy prey to tutoring.
Wisdom requires that the evidence of a child witness must find adequate
corroboration before it is relied on. The court has to assess as to whether the
statement of the victim before the court is the voluntary expression of the
victim and that he/she was not under the influence of others. (Ref: State of
Rajasthan v. Om Prakash (supra); State of Himachal Pradesh v. Suresh
Kumar @ DC in Criminal Appeal No. 841 of 2002 decided on 29.05.2009.)
In view of these observations made by the Hon'ble Supreme Court and
having found no discrepancy in the testimony of the prosecutrix, which has
been duly supported by the testimony of the mother of the prosecutrix and
corroborated by the medical evidence on record, the testimony of the
prosecutrix cannot be rejected.
21. Lastly, dealing with the ground urged on behalf of the appellant that
the he has been falsely implicated in the case due to previous enmity
between him and the mother of the prosecutrix, Smt. Sujata (PW-4), the
same has not been supported by leading any positive evidence, in order to
buttress this asseveration. It is clearly borne out from the evidence on record
[statements of Smt. Sujata (PW-1) and the prosecutrix (PW-4)], that the
appellant was living in the neighbourhood where the prosecutrix was also
residing alongwith her family. Being known to the family of the prosecutrix
as a neighbour, the unsuspecting mother of the prosecutrix, Smt. Sujata
(PW-1), did not object to the request of the appellant to let him take the
former alongwith him to buy her a toffee. Nothing has been stated by the
appellant while recording his statement under section 313 of the Code, to
bring forth any incident of quarrel or enmity as is alleged by him, which
would depict a hidden motive for Smt. Sujata (PW-1) to accuse the former of
having committed such a heinous crime. In my view, this unsupported
contention is not tenable, keeping in view the evidence adduced on behalf of
the prosecution which fully corroborates the prosecution story.
22. It is trite to state that it is necessary for the courts to have a sensitive
approach when dealing with cases of child rape. The effect of such a crime
on the mind of the child is likely to be lifelong. A special safeguard has been
provided for children in the Constitution of India in Article 39 which, inter
alia, stipulates that the State shall, in particular, direct its policy towards
securing that the tender age of the children is not abused and the children are
given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment. [Ref:
State of Rajasthan v. Om Prakash (supra)]
23. In view of the foregoing, in my view, the prosecution has established
the guilt of the appellant beyond reasonable doubt. There is no gainsaying
the position of law that there can be no quarrel with the proposition that as
the testimony of the prosecutrix is unimpeached and beyond reproach, the
conviction of the appellant could have been solely based on it. In the case at
hand, the same has found thorough support in the evidence aliunde led by the
prosecution.
24. In the light of the afore-said legal position and, facts and
circumstances of this case, the issue raised in the present appeal is decided
against the appellant. The judgment and order on conviction dated
10.01.2014 and the order on sentence dated 13.01.2014 are upheld.
25. Accordingly, the present appeal fails and the same is dismissed. Trial
Court Record be sent back.
SIDDHARTH MRIDUL, J
AUGUST 08, 2016
dn/sb
