Delhi High Court
Omkar Dubey vs State on 1 September, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 25th July, 2022
Pronounced on: 01st September, 2022
CRL.A. 1189/2019
OMKAR DUBEY ..... Appellant
Represented by: Mr. Sumeet Verma, Mr. Mahinder
Pratap Singh, Advs.
versus
STATE ..... Respondent
Represented by: Mr. Prithu Garg, APP for State
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. By this appeal, the appellant assails the judgment dated 01 st May,
2019 convicting him for offence punishable under Section 6 POCSO
(Prevention of Children from Sexual Offences) Act and order on
sentence dated 16th May, 2019 sentencing the appellant to rigorous
imprisonment for life along with a fine of Rs.50,000/- (one year
simple imprisonment in default of payment).
The Incident:
2. The case of the prosecution is that as per the allegations of the
complainant, the appellant had committed penetrative sexual assault
upon the prosecutrix (a minor aged about seven years) at a jhuggi,
Kirti Nagar, Delhi. As per the prosecution, the mother of the
prosecutrix accompanied the prosecutrix to PS Kirti Nagar to make a
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complaint on 25th August, 2013 that on a previous date at about 9:00
pm while giving a bath to the minor daughter she found that the
breast of the prosecutrix was swollen. The mother asked her as to
what had happened but the daughter did not say anything initially,
however, on her mother‟s persuasion finally told her that their
neighbor whom she called „dada‟ had called her inside his jhuggi and
did "galat kaam" with her and when she started crying, he sent her
outside the jhuggi and threatened her that if she disclosed to anyone
else he would kill her. SI Surinder Kaur made the endorsement on
the complaint and FIR No.289/2013 was registered. Upon the said
jhuggi being shown by the prosecutrix and her mother, the appellant
who was present at the jhuggi was duly identified and arrested by the
Investigating Officer. The IO obtained the school certificate of the
prosecutrix which mentioned her date of birth as 01st August, 2006.
The investigation was later transferred to SI Vandana in September,
2013 who later collected the FSL Report. Charges were framed
against the appellant, prosecution examined five witnesses, statement
of the appellant was recorded under Section 313 Cr.P.C and he led no
evidence in defence.
Submissions by the Appellant:
3. The appellant contended that he had been falsely implicated since
he had denied electricity connection to the mother of the prosecutrix
who was the neighbour of the jhuggi complex. The appellant further
contended through the appeal and arguments led on his behalf by
counsel that no other material public witness had identified the
appellant nor any public witness was involved at the time of arrest of
the appellant. Statement of the mother of the prosecutrix was
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contradictory since the prosecutrix had stated that the appellant had
not pressed her chest. MLC of the prosecutrix showed that there was
no fresh external injury seen over the body at the time of the
examination. While the prosecutrix had stated that she was aware
that electricity connection was taken in their house from the house of
the appellant, the mother had denied the same and, therefore, was an
unreliable witness. The appellant contended that the prosecution had
failed to prove the age of the prosecutrix since the school principal
testified that the age had been entered on the basis of the affidavit
given by the complainant and since no birth certificate was
submitted, the learned Trial Court should have given the benefit of
doubt to the appellant. It was further contended that since the brothers
of the victim were present in the house when the appellant allegedly
visited the house of the prosecutrix to take her, prosecution had not
examined these material witnesses. Nor was the wife of the appellant
examined who was allegedly present when the appellant took the
prosecutrix to his house. It was further contended that the medical
report of the victim did not corroborate the prosecution‟s case since it
reported that the hymen of the child victim was partially torn and no
fresh injuries were seen indicating that the hymen was torn recently
but could have been due to some physical activities prior in time.
The doctor who prepared the MLC was never called in court and,
therefore, the MLC could not be relied upon. As per the IO, the
complainant had come to the police station on 25 th August, 2013 at
about 7:00 pm whereas the complainant had testified that she had
gone in the morning to the police on that day. Moreover, the victim‟s
statement recorded under Section 164 Cr.P.C. mentions that there
was no rectal insertion and as regards the vaginal penetration, the
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MLC did not indicate such. Since no semen was detected in the
vaginal swab, the rectal swab and the underwear (Ex. 1, 2 and 3) the
prosecution‟s case was only based on the sole testimony of the
prosecutrix.
Submissions by the Prosecuion:
4. The learned Additional Public Prosecutor on behalf of the State
countered the submissions of the appellant and submitted that as per
prosecutrix statement, there was vaginal penetration, even if anal
penetration was in doubt. Her statement was consistent throughout
including those recorded under Section 161 and Section 164 Cr.P.C
and the MLC report noting that the hymen was partially torn and that
was enough to indicate that there was penetrative sexual assault. The
appellant‟s contention that there was a quarrel with the mother of the
prosecutrix regarding electricity connection is not corroborated by
any detail or any other evidence. As regards the absence of swelling,
the learned APP stated that it could be normal for the swelling to
subside in 24 hours and, therefore, the doubt raised by the appellant
would be untenable. The prosecution stressed that the testimony of
PW-3, the prosecutrix, was enough and sufficient to prove the
foundational facts for establishing a case of penetrative sexual assault
on a minor victim by the appellant.
Evidence:
The evidence as gleaned from the record, which is material for this
Court‟s assessment is as under:
5. The prosecutrix PW-3 stated in her testimony that she was
studying in class 4th on the date of the incident and was present at her
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house at night time after dinner. Her younger brother was also at
home. At that time, the appellant (whom she identified in Court) who
was her neighbor and whom she addressed affectionately as „dada‟,
came to her house and took her to his own house. He then removed
her clothes and his own clothes and did dirty acts with her (Gandi
Gandi Harkat). She stated that he inserted his penis in her vagina
(susu karne wali jagah) and she had lot of pain but no bleeding. She
further testified that he did not put his private part in her anus. She
stated that when he did the dirty acts with her he had closed her
mouth with cloth and then told her not to disclose. She then came
back to her house and when her mother was giving her bath she saw
her condition and then she disclosed the incident to her mother. The
next morning, her mother took her to the police station and she
narrated the incident to a woman Police Officer. On being shown her
statement recorded under Section 164 Cr.P.C., she later stated that the
appellant had put his private parts in her rectum and she has told this
to the lady Judge earlier. In her cross-examination she stated that she
was aware that there was an electricity connection taken in her house
from the house of the appellant but it was incorrect to suggest that her
mother used to give money to the appellant for electricity on a
monthly basis. She did not know whether her mother and appellant
had a fight for the money for the electricity connection. She further
stated in her cross examination that the wife of the appellant was in
the house when he had taken her there but had gone somewhere later
and it was then that the appellant did the wrong act with her.
6. PW-1, mother of the prosecutrix, testified that on 24th August,
2013 at about 9.00 PM when she was giving a bath to the prosecutrix
she found that the breast of the prosecutrix was swollen. Upon
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inquiring as to what had happened, the prosecutrix initially did not
disclose anything but later disclosed to her that the appellant had
taken her to his jhuggi, removed her clothes and did dirty acts with
her from the anal side, vaginal side and pressed her breast. PW-1
upon herein this account from her daughter went to the house of the
appellant and confronted him but he refuted the allegation. He stated
that she went with the prosecutrix on the next morning and made a
complaint and based on her identification the appellant was arrested,
whom she also identified in court. In her cross-examination she stated
that she was residing in a rented jhuggi and the owner of the jhuggi
was one Mr. Rakesh Pandey who was also president of the jhuggi
cluster. She denied that she had taken an electricity connection from
the appellant or that she used to pay any monthly charges to him or
that there was a quarrel that took place between them.
7. As regards the age of the prosecutrix, PW- 2 (the Principal of M.C
Primary School Chuna Bhatti, Kirti Nagar, Delhi) brought the
summoned record relating to the age of the prosecutrix who was
admitted in the School in class 1 on 18th April, 2012 and testified
that her date of birth as per school record is 01st August, 2006. The
records of the school were duly exhibited by PW-2.
8. PW- 4 (SI Surinder Kaur), the Investigating Officer (IO) testified
that on 25th August, 2013 at about 7:00 pm the mother of the
prosecutrix came to the police station and complained about the
appellant and his act of rape upon her daughter. Subsequently, she
sent the prosecutrix for the medical examination and thereafter on the
identification of the mother PW-1 apprehended the appellant at his
jhuggi. A rukka was endorsed and FIR No. 289/2013 under Section
376/342 IPC and Sections 5,6,9,10 POCSO Act was registered
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subsequently at 9:30 p.m. The rukka would also indicate that the
complainant had specifically mentioned that it was the appellant who
had committed the sexual acts/rape.
9. Ex. PW-4/A is the report from the Forensic Science Laboratory
(FSL). As per the report, no male DNA profile was generated from
the swab taken around the hymen, the swab from the rectum and the
underwear of the prosecutrix.
10.Ex. PW-4/A is also the copy of the prosecutrix MLC wherein it is
stated that the prosecutrix was brought for medical examination and
no fresh external injury was seen. However, the gynaecologist
recorded that the prosecutrix had been taken from the house of the
appellant (who was named) and he had fondled with her nipples then
did insertion in the rectum. It was also noted that the prosecutrix had
taken a bath after the incident and changed her clothes. The MLC
further recorded that the hymen was partially torn but there was no
fresh APV present.
11.The Learned Trial Court on examination of the evidence on record
concluded that the prosecutrix was a minor and that the appellant had
been duly identified by PW-1, the mother and PW- 4 the prosecutrix.
The Learned Trial Court noted that the delay in filing of the FIR was
because the incident was reported to the mother at night on 24th
August by the prosecutrix where thereafter she had confronted the
appellant but decided to go to the police station on the next day. The
Learned Trial Court relied upon the testimony of the prosecutrix was
8 years old at the time of the incident, and ignored the contradiction
in her testimony which the Learned Trial Court observed that they
were "bound to occur" and in fact "indicate that the prosecutrix was
not tutored by a mother or anyone else" .
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Analysis
12.The fact there was nothing incriminating in the FSL report has to
be ignored since the statement of the prosecutrix that she had been
given a bath by her mother was corroborated by the mother and
therefore any evidence would have been washed of. The
contradiction in the statement of the mother in that she went to the
police station in the morning on 25th August, 2013 while the IO stated
she came at 7:00 p.m. will not discredit the testimony of the
prosecutrix and the mother since the rukka and the FIR state that it
was evening time on 25th August, 2013 that the complaint was
recorded. Nothing material would turn on the recollection of time of
the visit to the police station in light of the other evidence on record.
Also PW-1 was not confronted with the rukka, FIR or her statement
recorded earlier. Also even if there was a doubt regarding anal
penetration, there was clearly a credible testimony of the prosecutrix
of vaginal penetration.
13. Further this Court finds that apart from minor contradictions, the
testimonies of PW- 1 and PW- 3 are consistent and the accused has
failed to rebut the presumption which impinges on him under Section
29 of the POCSO Act. As per catena of judgments, inter alia State of
Himachal Pradesh v. Manga Singh (2019) 16 SCC 739 (though this
was a pre-POCSO Act case under Section 376 IPC) and Ganesan v.
State (2020) 10 SCC 573, the testimony of the prosecutrix can be
solely considered for the conviction of an accused for the crime of
rape and considering the age of the prosecutrix and the fact the
fundamental factual foundation of her testimony not being refuted by
any other evidence on record, this Court is of the considered view
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that the prosecution has been able to prove its case against the
appellant beyond reasonable doubt.
Conclusion:
14.In light of the above discussion and analysis, this Court is of the
considered view that the case of prosecution is duly supported by
ocular and medical evidence and proves beyond reasonable doubt
that the offence was committed by the appellant. Consequently, this
Court finds no error in the impugned judgment of conviction. This
Court also finds no ground to interfere with the sentence awarded by
the learned Trial Court.
15.Appeal is accordingly dismissed.
16.Copy of this order be uploaded on the website of this Court and be
also sent to Superintendent, Jail for intimation to the appellant and
updation of records.
(ANISH DAYAL)
JUDGE
(MUKTA GUPTA)
JUDGE
SEPTEMBER 01, 2022/mk
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