Delhi High Court
Khurshid Alam vs State on 4 July, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 10th December, 2021
Pronounced on : 4th July, 2022
+ CRL.A. 1141/2018
KHURSHID ALAM ..... Appellant
Represented by: Mr. Aditya Vikram, Advocate/
DHCLSC.
versus
STATE ..... Respondent
Represented by: Mr. G.M. Farooqui, APP for the State
with SI Vijay Kumar, PS Sadar
Bazar.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. By the present appeal, the appellant challenges the impugned
judgment dated 31st July, 2018 convicting the appellant for offence
punishable under Section 376(2) IPC and Section 6 of the Protection of
Children from Sexual Offences Act, (in short, 'POCSO Act') and the order
on sentence dated 6th August, 2018, whereby the appellant is directed to
undergo rigorous imprisonment for a period of ten years and to pay fine of
₹5,000/- in default whereof to undergo simple imprisonment for a period of
six months for the aggravated penetrative sexual assault under Section 6 of
the POCSO Act, and no separate sentence was awarded for the offence
punishable under Section 376(2)(i) IPC.
2. Learned counsel for the appellant submits that the version of the
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victim who was aged 5 years at the time of alleged incident is not
corroborated by the MLC for the reason the MLC only shows slight
inflammation around hymen, whereas the victim stated that she was raped
three times by the appellant. It is highly unnatural that despite being raped
for three times no injuries were caused on the vagina of the minor victim.
The slight inflammation around hymen could be for various reasons
including infection and allergy. There was no basis for the learned Trial
Court to come to the conclusion that there was penetration to some extent.
The FSL report shows that no semen was detected on the clothes worn by
the victim even on the day when the complaint was made. The finding of
the learned Trial Court that the Investigating Agency recovered the clothes
worn on that day and not on the day of incident goes to show that no proper
investigation was carried out and the same cannot be taken adverse to the
appellant. Though in the statement recorded under Section 164 Cr.P.C. the
victim stated that she was at the house of her friend 'S', however, in her
deposition she stated that she did not know who 'S' was. Though in her
statement under Section 164 Cr.P.C. the victim stated that the appellant
inserted his penis in the vagina as well as in her anus, however, in her
deposition she denied commission of sodomy. There are further
contradictions in the testimony of victim herself. Even the version of the
mother of the victim is inconsistent. From the perusal of the statement of the
mother of the victim it would be evident that at best it was a case of attempt
to rape and not a case of rape. The appellant showed that he was implicated
falsely due to enmity, however, his defence was not considered and he has
been wrongly convicted and sentenced.
3. Mr. G.M. Farooqui, learned APP for the State has taken this Court to
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the testimony of the prosecutrix and her mother to contend that there are no
contradictions in their testimony. He further states that the findings of the
learned Trial Court that there were sufficient corroboration even after the
delayed medical examination is based on the evidence on record. Thus, the
MLC duly corroborates the version of the victim and her mother and the
appeal be dismissed.
4. FIR No.9/2014 was registered under Section 376 IPC and Section 6 of
the POCSO Act on the complaint of the mother of the victim who gave a
written complaint stating that her daughter aged 5 years was raped three
times on three different dates by Khurshid Alam, who was working in their
factory for the last one year by taking their daughter on the terrace of the
third floor and on the last time he committed this offence on 5th January,
2014 which fact was told by her daughter today after two days. Her
daughter told her that Khurshid took her on the terrace, opened her clothes
as well as his clothes and put his penis in vagina, was also touching the same
and thereafter got her chocolate. On that date when her daughter went to the
terrace she told this fact to the other children in the building who told to her
mother-in-law who informed her and then she asked her daughter. When she
confronted Khurshid Alam, he denied any such incident. She brought
Khurshid to her house and confronted him before her daughter when her
daughter reiterated the same fact and Khurshid Alam accepted this fact.
5. Mother of the victim was examined as PW-1 before the learned Trial
Court where she deposed that on 7th January, 2014 her daughter told her that
the appellant used to take her on the roof of the house and removed his pant
and her pant thereafter he touched his penis with her vagina and had slightly
inserted his penis in the vagina. She told that Khurshid did this thrice to her.
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She reiterated that this fact was told to the other children in the building who
told the same to her mother-in-law who informed her.
6. The minor victim was examined as PW-2. On question put by the
Court, she explained that on the first instance her mother had gone to Karol
Bagh and on the second and third time her mother was sleeping at home
when Khurshid took her on the terrace. The victim stated that Khurshid was
working in the factory of her father and used to visit their home. Lastly he
visited the home on Sunday. She did not remember the date. He told her
that she had to buy chocolate. Khurshid took her to the roof of her house on
reaching at the roof Khurshid put off his pant and removed her pant and
thereafter inserted his penis in her vagina. On a question being asked as to
how many times he did the same, the victim stated thrice, firstly at the roof
and two times in the stairs on three different dates. The victim was
extensively cross-examined. She was also put if there was any quarrel that
had taken place between Khurshid and her parents, which she denied and
that Khurshid was asking money from her parents which they refused to
give, which also she denied.
7. Age of the victim was proved by the testimony of Ashok Kumar (PW-
7) who was working as UDC in the school where the victim was studying
and as per the original Admission Register produced in the Court the date of
birth of the victim was 5th September, 2008 and she was admitted in the
school 10th February, 2012 in LKG.
8. Dr. Rajni Mittal appeared as PW-9 who exhibited the MLC vide
Ex.PW-9/A, which was prepared and signed by Dr. Anjali Kumari, who had
left the services of the hospital. As Dr. Rajni Mittal had seen Dr. Ajanli
Kumari writing and signing while working in the hospital in the ordinary
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discharge of duty in the said hospital and thus identified her handwriting and
signatures.
9. Explanation of the appellant in his statement under Section 313
Cr.P.C. was that a false and fabricated case has been registered by the
testimony of the interested witnesses. He stated that he was on visiting terms
with the family of the victim for the last five years and started working with
them for the last about 1½ years prior to the alleged incident. He had
demanded his wages from the parents of the victim who in turn got him
falsely implicated in this case. They had also tried to implicate him about
1½ months prior to the alleged incident with the help of a female co-worker,
aged 30-35 years, however, she did not agree to support the parents of the
victim. The said co-worker was not examined as a defence witness by the
appellant.
10. In the history recorded in the MLC of the victim by the doctor it was
stated that Khurshid took her to the terrace. He took off his pant and her
pant he made lie down on the floor and bent over her. He fondled his penis
and started shaking his penis. His penis was touching her thigh and genitalia.
He then put on his pant and her pant and took her downstairs and bought her
chocolate.
11. As noted above, even in the FIR on the written complaint lodged by
the mother, the version was that Khurshid took her daughter to the terrace,
opened his clothes and her clothes, touched his penis with the vagina after
laying her down on the terrace and bending on her.
12. As per the version of the mother in the Court the appellant touched
her penis with the vagina and slightly inserted the same whereas as per the
victim he inserted the penis in her vagina. Even in her statement under
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Section 164 Cr.P.C. the victim categorically stated that first the appellant
touched his penis with her vagina and then inserted the same.
13. Testimony of the victim which is consistent cannot be discarded
merely because as per the FSL report, no semen was detected in the swabs
and clothes of the minor victim. As noted above, the victim did not tell her
mother about the incident on the 5th or 6th and her mother came to know only
on the 7th through her mother-in-law who got to know from the other
children. In such a situation, there was no likelihood of the clothes of the
victim on the date of alleged incident being available for seizure. Further,
even the case of the victim is that it was not a case of full penetration but
slight penetration which is corroborated by the MLC for the reason even
after two days of the alleged incident there was slight inflammation around
the hymen.
14. Learned counsel for the appellant has relied upon the decision of this
Court in the case of Crl. Appeal No.968/2015, titled Abhay Singh vs. State,
decided on 26th July, 2017 wherein this Court held that if there was
penetration by a full-grown man to a girl of tender age of about 15 years, old
she would have suffered some injury on the private part, however, there was
no mark of violence.
15. Even in Abhay Singh (supra) relied upon by the learned counsel for
the appellant, this Court in para 34 noted as under:-
"34. In Taylor's Principles & Practice of Medical
Jurisprudence Volume II 12th Edition page 60, it is
mentioned that it is impossible to conceive that forcible
intercourse should take place in childhood without bruising,
effusion of blood, or a laceration of the private parts. The
size of the male organ must necessarily cause some local
injury in the attempt to enter the vagina of a child. If the
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violation has taken place within two or three days,
appearance as presented by the parts may be as follows: (1)
Reddening or frank inflammation with abrasion or tearing
of the lining-membrane, introitus or of the vagina. (2)
Muco-purulent discharge from the vagina of a yellowish or
greenish- yellow color. staining the clothing; the urethra
may possibly share in the inflammation; (3) In recent cases
blood may be oozing from the injured parts or clots of blood
may be found in the vulva. (4) The hymen may be entirely
destroyed, or may show lacerations".
16. It is thus apparent that inflammation is a sign of partial
penetration/slight penetration and thus, it cannot be said that the version of
the victim child is not corroborated by medical evidence.
17. As noted in the statements above, it is the case of the prosecution that
the appellant fondled and touched his penis with her vagina, touched her
thigh and genitalia and there was slight penetration. The factum that there
was slight penetration is corroborated by the presence of inflammation even
after two days of the alleged incident. Hence, the decision of this Court
relied upon by the learned counsel for the appellant supports the case of the
prosecution.
18. In view of the discussion aforesaid, this Court finds no error in the
impugned judgment of conviction, convicting the appellant for offence
punishable under Section 376(2)(i) IPC and Section 6 of the POCSO Act as
also in the sentence of imprisonment for a period of ten years being the
minimum sentence that can be awarded.
19. Consequently, the appeal is dismissed.
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20. Order be uploaded on the website of this Court and intimation be sent
to the appellant through the concerned Superintendent Jail.
(MUKTA GUPTA)
JUDGE
JULY 04, 2022
vk
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