Ravinder Singh vs State
2017 Latest Caselaw 4670 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                      Judgment Reserved On: 31.05.2017
                                    Judgment Pronounced On: 01.09.2017


CRL.A. 1509/2014
RAVINDER SINGH                                             ...Appellant
                                       Through: Mr. Manoj Sharma, Ms.
                                       Manoranjani, Advocates
                           versus
STATE                                                        ... Respondent
                                       Through: Mr. Ravi Nayak, APP for
                                       State with SHO Raj Kumar, P.S.
                                       BHD Nagar.


CORAM:
HON'BLE MR. JUSTICE SIDDHARTHMRIDUL
HON'BLE MS. JUSTICE MUKTA GUPTA


                            JUDGMENT

SIDDHARTHMRIDUL, J.

1. The present appeal instituted under the provisions of section 374 of

the Code of Criminal Procedure, 1973 (hereinafter referred to as the

'CrPC') assails the judgment dated 18.02.2013 and the order on sentence

dated 23.02.2013, rendered by the Ld. Additional Sessions Judge (Special

Fast Track Court), Dwarka Courts, New Delhi, in Sessions Case No.

01/13, in FIR No. 211/2012, registered at P.S. Baba Hari Dass Nagar.

2. By way of the impugned judgment dated 18.02.2013, the appellant

has been convicted for the commission of offences punishable under the

provisions of sections 376, 377 and 506 of the Indian Penal Code, 1860

(hereinafter referred to as the 'IPC'). By way of the impugned order on

sentence dated 23.02.2013, the appellant has been sentenced to undergo

imprisonment for life, alongwith a payment of fine of Rs.25,000/-, for the

offence punishable under the provision of section 376, IPC. In default of

the payment of fine, the appellant has been sentenced to undergo simple

imprisonment for a period of six months. Further, for the offence

punishable under the provision of section 377, IPC, the appellant has been

sentenced to undergo imprisonment for life, alongwith the payment of fine

of Rs.25,000/-. In default of the payment of fine, the appellant has been

sentenced to undergo simple imprisonment for a period of six months.

Furthermore, for the offence punishable under the provision of section 506,

IPC, the appellant has been sentenced to undergo rigorous imprisonment

for 02 years, alongwith the payment of fine of Rs.10,000/-. In default of

the payment of fine, the appellant has been sentenced to undergo simple

imprisonment for a period of three months. All the sentences have been

directed to run concurrently. The appellant has been granted the benefit of

section 428 of the CrPC; with a stipulation that the appellant shall not be

given any clemency by the State before he spends atleast 20 years in jail.

3. The gravamen of the charge, for which the appellant has been

convicted, is for having committed rape on his daughter/the prosecutrix, a

girl aged about 9 years, at the time of commission of the offence.

4. 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 30.09.2012, the

prosecutrix was brought to the police station by her mother, Smt.

Kamlesh (PW-1) with a complaint that her daughter had been raped

by the appellant (father of the prosecutrix). After recording the

statement of PW-1 [Ex.PW-1/A],W/SI Saroj Bala (PW-15)

accompanied the prosecutrix to RTRM Hospital and got the

prosecutrix medically examined [vide MLC Ex.PW-7/A].

ii. Thereafter, FIR No. 211/2012, (hereinafter referred to as the 'subject

FIR') was registered against the appellant, for the commission of

offences punishable under the provisions of sections 376, 377 and

506 of the IPC. [Ex.PW-10/A]

iii. On the same day, i.e. 30.09.2012, the appellant was arrested [vide

arrest memo Ex.PW-1/B] at the instance of PW-1; and sent for

medical examination [vide MLC Ex.PW-16/A]. The appellant also

made a disclosure statement [Ex.PW-2/A] and pointed out the place

of the occurrence [Ex.PW-2/B].

iv. As per the subject FIR, the complainant/PW-1 is the wife of the

appellant and they have two daughters. They resided at a rented

accommodation at C-35, Raghuvir Enclave, Najafgarh, Delhi and

the appellant was employed as a Guard at PACL Insurance

Company. The prosecutrix is the elder daughter of PW-1 and the

appellant. Around a month prior to making the complaint, the

prosecutrix complained to PW-1 of abdominal pain and of difficulty

in passing stool. Pursuant to the same, on 28.09.2012, PW-1 got the

prosecutrix medically examined at the Primary Health Centre,

Najafgarh and administered medicines to her; but since no relief was

felt by the prosecutrix, PW-1 again got her checked on 29.09.2012.

She was prescribed medicines for internal consumption and for

application on the body. Whilst applying the medicine on the body

of the prosecutrix, PW-1 noticed some swelling on her private part,

pursuant to which PW-1 took the prosecutrix to the same hospital in

the evening, where the doctor informed PW-1 that the prosecutrix

has been sexually assaulted. PW-1 then inquired from the

prosecutrix about the same and the latter disclosed that about one

month back, at their house, the appellant had committed rape on her

2-3 times and threatened her with dire consequences if she disclosed

about the rape to anybody.

v. The medical opinion in the MLC report, dated 30.09.2012, [Ex. PW-

3/A], qua the prosecutrix, returned a finding to the effect that, "no

fresh external injury marks present; hymen is intact; redness present

in vulval area; and anal area- Nil".

vi. The exhibits of the case [Undergarments of the prosecutrix, blood

sample, urine sample, nail clippings, 02 vulval swabs and 02 anal

swabs, pertaining to the prosecutrix; and the exhibits pertaining to

the appellant] were sent for examination to FSL, Rohini.

vii. Charge was framed against the appellant under sections 376, 377

and 506IPC, vide order on charge dated 22.12.2012, wherein, he

abjured his guilt to the charge framed against him and claimed trial.

viii. During the course of trial, to bring home the charges, the

prosecution examined sixteen witnesses, whose testimony is

summarized hereinbelow:

 Smt. Kamlesh, [PW-1], mother of the prosecutrix deposed

that she has been residing at C-35, Raghubir Enclave,

Najafgarh, New Delhi with her husband and two daughters.

She further deposed that they shifted to this house one month

prior to the date of the incident, before which they were

residing at RZA-52, Raghuvir Enclave, Najafgarh. She has

further deposed that her daughter, the prosecutrix, used to

complain of stomach ache and difficulty in passing stool, for

about a month before the latter told her about the incident.

PW-1 further testified that since the prosecutrix did not get

any relief by a regular medicine, she got the prosecutrix

examined at Primary Health Centre, Najafgarh, on

28.09.2012. PW-1 also testified that the medicine prescribed

to her also did not provide her any relief and after taking her

to the Primary Health Centre on 29.09.2012, the doctor

prescribed medicine for local application. It has then been

testified by PW-1 that whilst applying the medicine, she

noticed some swelling on the private parts of the prosecutrix,

pursuant to which she took the prosecutrix to the hospital. It

has been deposed by PW-1 that the doctor informed her that

the prosecutrix has been sexually assaulted. PW-1 testified

that when she inquired about the same from the prosecutrix,

the latter told her that about one month ago, the

appellant/husband of PW-1/father of the prosecutrix had

committed galat kaam, twice or thrice, with her in the old

house. PW-1 further testified that the appellant had threatened

the prosecutrix with dire consequences if she told about the

incident to anyone. She further deposed that after consulting

with her mother, she informed the police about the incident,

after which her complaint [Ex.PW-1/A] was recorded and the

prosecutrix was medically examined at RTRM Hospital. It has

been further deposed by PW-1 that upon her asking, the

prosecutrix informed her that the appellant inserted his penis

in the vagina and anus of the prosecutrix; and that she noticed

some redness around the private parts of the prosecutrix. PW-

1 further testified that thereafter the appellant was arrested

from their house [vide arrest memo Ex.PW-1/B], and upon

interrogation, he admitted to his guilt.

 Devender [PW-2], deposed that he joined the investigation in

the present case and that during the course of the

investigation, the prosecutrix was taken to RTRM Hospital

where she was medically examined. He further deposed that

thereafter, the appellant was arrested from their house, and his

disclosure statement was recorded [Ex.PW-2/A]. PW-2

further deposed that the appellant pointed out the place of

occurrence vide memo Ex.PW-2/B, and that thereafter he was

medically examined.

 Dr. Pratibha [PW-3], deposed that she conducted the medical

examination of the prosecutrix and rendered the report

[Ex.PW-3/A]. She deposed that the hymen was found intact

and that she observed redness in the vulvar area and also the

anal area was normal.

 Rajbala [PW-4], deposed that her daughter/PW-1 got married

to the appellant and they had two daughters aged about 9

years and 7 years. PW-4 further deposed that the relationship

between PW-1 and the appellant were strained because of the

latter's consumption of alcohol. She further deposed that on

29.09.2012, PW-1 informed her about the redness around the

private parts of the prosecutrix and that the doctor had

suspected that the prosecutrix had been sexually assaulted.

PW-4 further deposed that upon inquiring about the same

from the appellant, he admitted his guilt and apologized for

his conduct. Thereafter, the police was informed of the

incident.

 Seema, Ct., P.S. Baba Hari Dass Nagar (PW-5) deposed that

on 30.09.2012, she joined the investigation in the present case

as the Constable and had gone to RTRM Hospital. She further

deposed that the prosecutrix got medically examined and the

doctor handed over the sealed parcels which were seized vide

seizure memo Ex.PW-5/A. It has further been deposed by

PW-5 that, thereafter, the police team reached the house

where they used to reside before they shifted to the house they

were currently residing at and that the prosecutrix told the IO

that the incident of rape was committed at the house they used

to previously reside in. It has been further deposed that

thereafter, the police team reached the house of the

prosecutrix where they currently resided, and from where the

appellant was arrested.

 Baljeet Singh, Ct., P.S. Baba Hari Dass Nagar (PW-6),

deposed that on 30.09.2012, he took the appellant to RTRM

Hospital to get him medically examined. He further deposed

that after the medical examination of the appellant, the doctor

handed over six sealed parcels alongwith one sample seal to

him which were handed over to PW-15, who seized the same

vide seizure memo Ex.PW-6/A.

 Dr. Satish Chander Yadav, Medical Officer, RTRM Hospital,

Jaffarpur, New Delhi (PW-7) deposed that on 30.09.2012, at

about 12.45 P.M., the prosecutrix was brought to the hospital

for medical examination and was medically examined by him

[vide MLC Ex.PW-7/A] and that he referred the prosecutrix

to the gynecologist department for her internal examination.

 The prosecutrix (PW-8) identified the appellant as her father

and deposed that she did not remember the exact date and

month of the incident, but that it happened 3 or 4 months ago.

She further deposed that at the time of the incident she was

residing with her parents and younger sister in a rented

accommodation at Najafgarh. She further deposed that on the

date of the incident in the evening she was playing outside the

room with her sister when the appellant called her inside the

room. She testified that her mother had gone for work at that

time and was not present in the room. The prosecutrix also

deposed that the appellant after calling her inside the room

took off the pants and underwear she was wearing and

thereafter took off his own pants and underwear. Further she

deposed that the appellant first inserted his male organ first

from the front side and then from behind. Further that, after

the act was over the appellant threatened and warned the

prosecutrix to not disclose the incident to anyone or he would

kill her. The prosecutrix further testified that when PW-1

came home from work at about 6 P.M., that evening she out

of fear did not disclose the incident to her. Furthermore that,

about one week after the incident she was feeling some pain

in the abdomen and was also finding it difficult to pass stool;

and at that time she disclosed the incident to PW-1, who took

her to a doctor. Lastly, she deposed that, the incident was

reported to the police by PW-1, whom she accompanied to the

Police Station; and that the police officials got her medically

examined in the hospital; and also that the police officials

took her to Court where her statement was recorded.

The prosecutrix deposed that she studies in Pratibha School

No.1, Najafgarh; and does not know where the appellant

works but that he used to go to work sometimes in the

morning and sometimes in the night time. Further that, on the

day of the incident PW-1 left for work in the morning, but

sometimes she used to leave alongwith her when she used to

leave for school, and return at about 6 P.M. in the evening.

Further that, sometimes PW-1 and the appellant used to

quarrel on petty matters and sometimes the latter used to beat

up the former, but PW-1 never called the police due to the

quarrels. Further testified that, it is wrong to suggest that after

the quarrel the prosecutrix and PW-1 used to go to the house

of her Naana and Naani. Further that, neither does she

remember the date when she alongwith PW-1 went to the

police station nor the date when she was taken to the hospital

by PW-1. Further that, police had recorded her statement in

the police station.

 Mr. Rajpal (PW-9) deposed that PW-1 and the appellant

whom he had identified, are married to each other. Further

that they were residing as tenants in a room in his house

bearing No.C-35, Raghuvir Enclave, Najafgarh, New Delhi

for 25 days in the month of September, 2012. Further that the

Appellant was working as a security guard in an insurance

company and he used to return from his job at about 3 P.M.

 Mr. Sadan Kumar, Head Constable, P.S. Baba Hari Dass

Nagar (PW-10) deposed that on 30.11.2012, PW-2 handed

him over a rukka sent by PW-15 on the basis of which he

registered the subject FIR under sections 376, 377 and 506 of

the IPC.

 Mr. Ashique Ali Khan, SI, P.S. Baba Hari Dass Nagar (PW-

11), deposed that he received DD No.10-A from the duty

officer at 08:30 A.M. to the effect that a girl has been sexually

assaulted by her own father; and he alongwith PW-2 reached

the spot of incident where he met the prosecutrix and her

mother (PW-1). Further that, on the instructions of PW-2 he

brought the prosecutrix and PW-1 to the Police Station and

handed them over to PW-15.

 Mr. Raj Singh, Head Constable, P.S. Baba Hari Dass Nagar

(PW-12) deposed that on 30.09.2012 PW-15 deposited 6

sealed parcels and 5 sealed parcels with respect to the

appellant and the prosecutrix respectively, and the same were

deposited in the Malkhana. He further deposed that on

09.10.2012 the said samples were taken by PW-15 to FSL,

Rohini and the acknowledgement receipts thereof were

handed over to him.

 Ms. Ruchika Singla, MM, Dwarka Courts, New Delhi (PW-

13) deposed that she recorded the statement of the prosecutrix

[Ex.PW-13/A] in her own handwriting.

 Ms. Nirmala Gupta (PW-14), Headmistress, MCD Primary

School, Najafgarh, Delhi, deposed that at the time of the

admission of the prosecutrix in the school, her parents had

submitted the birth certificate issued by Govt. of NCT of

Delhi which shows her date of birth as 27.09.2003 (Photocopy

is Ex.PW-14/B).

 W/SI Saroj Bala, P.S. Chhawla (PW-15) deposed that on

30.09.012, she was handed over DD No. 10-A at P.S. Baba

Hari Dass Nagar and she recorded the statement of PW-1

[Ex.PW-1/A]. She further deposed that she took the

prosecutrix for medical examination and collected the samples

for scientific examination [Ex.PW-5/A]. Rukka was prepared

[Ex.PW-15/A] and the same was handed over to Ct. Devender

(PW-2). She further deposed that PW-1 informed her that the

appellant would be present at the house of PW-1 and the

appellant. She further testified that after reaching the house,

the police team arrested the appellant vide arrest memo

Ex.PW-1/B. She further testified that, personal search of the

appellant was conducted [Ex.PW-1/C]; the disclosure

statement [Ex.PW-2/A] of the appellant was recorded; and the

appellant pointed out the place of occurrence. She further

deposed that the appellant was also taken for medical

examination to RTRM Hospital and the samples were seized

[Ex.PW-6/A] and deposited in the Malkhana.

 Dr. R. Shankarnarayanan, Medical Officer, RTRM Hospital

(PW-16) deposed that he conducted the medical examination

of the appellant; prepared the MLC [Ex. PW-16/A]; and

handed over the samples pertaining to the appellant to HC

Virender.

ix. The appellant, in his statement recorded under the provision of

section 313 of the CrPC, whilst denying the case of the prosecution,

stated that he has been falsely implicated in the case at the instance

of PW-1, since he objected to the illicit relations of PW-1 with

someone. The appellant also denied making the disclosure statement

[Ex.Pw-2/A] to the police or pointing out the place of occurrence.

x. The Ld. Trial Court, 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 further that the defence taken by the appellant was

fabricated and concocted. Therefore, the Ld. Trial Court convicted

the appellant for commission of the offences punishable under the

provisions of sections 376, 377 and 506, IPC.

5. Learned counsel appearing on behalf of the appellant, would canvass

that the learned Trial Judge has erred in convicting the appellant, inasmuch

as, the appellant has been falsely implicated in the case at the instance of

PW-1, since the appellant objected to the latter's illicit relations with

somebody. Learned counsel would then urge that PW-1 has concocted a

false story of rape, tutoring the prosecutrix, in order to get rid of the

appellant. Learned counsel for the appellant would then submit that

material improvements have been made by the prosecutrix in her

statements, making her testimony unreliable. Further, it would be

asseverated on behalf of the appellant that the prosecutrix has not disclosed

the exact date of the incident and has just stated that the alleged incident

occurred 3-4 months prior to 07.01.2013, i.e. the date of her medical

examination. Furthermore, it has also been urged that no complaint of

stomach ache was made by the prosecutrix to her school teacher.

6. The counsel for the appellant would also submit that there has been

a delay of one month in registration of the FIR in the present case and no

reasonable cause has been brought on record by the prosecution for the

said delay. In this behalf, it would also be contended that the Rukka was

prepared at 5.45 P.M., whereas DD No.10-A was recorded at 8.30 A.M.

7. It would then be urged on behalf of the appellant that the medical

evidence in the instant case does not support the case of the prosecution. In

order to buttress this submission, reliance would be placed on the Modi's

Medical Jurisprudence. In this behalf, it would also be urged that only the

receipts qua the exhibits sent to the FSL have been placed on record and

no FSL results have been obtained in the instant case. In this behalf, it

would also be urged that the prescription dated 29.09.2012, of the primary

healthcare centre, whereby the doctor on duty had suggested that the

prosecutrix has been sexually assaulted, has not been brought on the

record. Further, the prescription dated 28.09.2012, of the primary

healthcare centre has also not been brought on record. Furthermore, it has

been urged that the doctor who informed PW-1/mother of the prosecutrix

about the prosecutrix having been sexually assaulted, was not made a

witness in the present case and thus not examined.

8. It would then be urged on behalf of the appellant that relevant

questions were not put to the appellant whilst recording his statement

under section 313 of the CrPC.

9. The learned counsel appearing on behalf of the appellant would

lastly pray for a lenient approach with regard to the sentence imposed upon

the latter for the commission of the offences.

10. Per contra, Mr. Ravi Nayak, Ld. APP appearing on behalf of the

State would urge that the testimony of the prosecutrix has been

corroborated by, and finds full support in, the testimony of the mother of

the prosecutrix, Smt. Kamlesh (PW-1). The Ld. APP, would further urge

that the law enunciated with regard to convicting an accused for the

offence under sections 376, 377 and 506 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. The Ld. APP,

would lastly assert that the clear, creditworthy and unshattered testimony

of the prosecutrix is sufficient to establish the case of the prosecution, and

the same is reliable.

11. We 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.

12. 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 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.

13. 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. Chandra Prakash 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."

14. A perusal of the testimony made by 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 has clearly

stated that her father/the appellant had committed rape upon her and

thereafter threatened her with dire consequences if she told anyone about

the incident.

15. Further, upon a plain perusal of the testimonies of the prosecutrix

and her mother, the contention raised on behalf of the appellant to the

effect that the prosecutrix 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 in

the cross examination.

16. The appellant has contended that the testimony of the mother of the

prosecutrix and of the prosecutrix is inconsistent inasmuch as, during her

cross examination, PW-1/mother of the prosecutrix deposed that the latter

complained of stomach ache 10 days prior to the complaint being made to

the police, whereas, during her examination-in-chief, she had testified that

the prosecutrix was complaining of a stomach ache for one month prior to

the date on which the complaint was made.

17. In our considered view, a mere difference in stating the time period

when her daughter complained of stomach ache, does not in any manner

shatter the testimony of PW-1/mother of the prosecutrix. Therefore, this

submission made on behalf of the appellant is untenable and cannot be

accepted.

18. It would be relevant to observe that the testimony of the prosecutrix

finds complete support in the testimony of her mother, which has also

remained consistent throughout.

19. Therefore, a mere assertion made on behalf of the appellant, that the

prosecutrix is a tutored witness, does not come to the aid of the appellant,

when the former's statement is also completely corroborated by the

evidence of the other prosecution witnesses (PW-1 & PW-4).

20. Further, a perusal of the cross examination of PW-1/mother of the

prosecutrix and PW-4/mother-in-law of the appellant, would reveal that no

question was put to either of them in cross examination, in relation to any

alleged illicit relation of PW-1 with any other person. On the contrary, it is

observed that both these prosecution witnesses were cross examined with

respect to some property dispute between the appellant and PW-1, which

was strongly denied by both the witnesses.

21. In view of the foregoing, it is clear that the defence raised by the

appellant that he has been falsely implicated in the case by PW-1/his wife

and mother of the prosecutrix, because of her illicit relationship with some

other person, is a mere after-thought. It is also relevant to observe that no

cogent material apart from the suggestions has been brought on record by

the appellant to establish his defence.

22. In this view of the matter, the bald defence raised on behalf of the

above mentioned appellant that he has been falsely implicated in the case

by his wife, the mother of the prosecutrix, PW-1, is rejected, keeping in

view the evidence adduced on record which fully establishes the case of

the prosecution.

23. Coming now to the medical evidence adduced; the medical opinion

contained in the MLC report, dated 30.09.2012, [Ex. PW-3/A], qua the

prosecutrix, returned a finding to the effect that, "no fresh external injury

marks present; hymen is intact; redness present in vulval area; and anal

area- Nil". No FSL Result has been obtained.

24. 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 Coordinate 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:

"38. ...In the case of Ranjit Hazarika v. State of Assam, reported in (1998) 8 SCC 635, the opinion of the doctor was that no rape appeared to have committed because of the absence of rupture of hymen and injuries on the private part of the prosecutrix, the Apex Court took a view that the medical opinion cannot throw over board an otherwise cogent and trustworthy evidence of the prosecutrix. ...

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.""

25. Thus, it is needless to state that, corroboration of the testimony of

the prosecutrix, is not an essential requirement in a case of rape, and the

same is not a sine qua non to bring home the guilt of the accused. The

testimony of the prosecutrix, if well founded & trustworthy, is by itself

sufficient to convict the accused.

26. Although in the present case it is observed that vide the MLC,

[Ex. PW-3/A], it has been opined that no fresh external injury marks were

found to be present and the hymen was found to be intact, it is, however,

relevant to note that the examination was conducted on 30.09.2012,

approximately one month after the date of the incident. Further,

pertinently, it has clearly been opined that redness was found to be present

in vulval area.

27. The contention raised on behalf of the appellant that since the

hymen was found to be intact and no fresh external injury marks were

present and also the anal region was found to be normal, no charge of rape

can be sustained, does not hold water, in keeping with the settled position

of law as discussed hereinabove. Injuries are not a sine qua non to prove a

charge of rape.

28. In light of the above, we find no weight in the contention urged on

behalf of the appellant that the medical evidence does not support the case

of the prosecution.

29. In view of the foregoing discussion, in our considered view, the

prosecution has established the guilt of the appellant beyond reasonable

doubt. There is no gainsaying the position of law and there can be no

quarrel with the proposition that when the testimony of the prosecutrix is

unimpeached and beyond reproach, the conviction of the appellant can be

sustained based solely on it. In the case at hand, the same has also found

thorough and complete support in the evidence aliunde led by the

prosecution.

30. 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.

31. Further, let it not be forgotten that this is a case of rape on a girl

child, only 09 years old at the time of commission of the offence, by her

own father. Nothing can be more heinous than a crime committed on the

person of a child by her father, the one who is duty-bound to provide her

unflinching protection from all harm.

32. 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 Article 39 of the Constitution of India 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 that

children are given environment 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)]

33. In our view, consequently, the sentence awarded to the appellant by

the Ld. Trial Court does not warrant any modification. Therefore, the

judgment and order on conviction dated 18.02.2013 and the order on

sentence dated 23.02.2013 are both hereby upheld.

34. Accordingly, the present appeal fails and the same is dismissed.

35. The Trial Court Record be sent back.

36. Copy of the judgment be communicated to the appellant through the

Superintendent, Tihar Jail and also be sent for updation of the records.

SIDDHARTH MRIDUL, J.

MUKTA GUPTA, J.

SEPTEMBER 01, 2017 dn/mk/sb/ap