[Cites 34, Cited by 0]
Delhi High Court
Xxx vs State (Nct Of Delhi) on 23 January, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 20.01.2026
Judgment pronounced on: 23.01.2026
+ CRL.A. 313/2023
XXX .....Appellant
Through: Mr. Nitin Saluja and Ms. Kanishka
Bhati, Advocates (DHCLSC)
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Utkarsh, APP for the State.
SI Vikram Singh, P.S. Welcome.
Mr. Himanshu Anand Gupta and Mr.
Karan Jain, Advocates for Victim.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374(2) read with Section
482 of the Code of Criminal Procedure, 1908, (the Cr.PC) the
appellant, the sole accused, in SC No. 424 of 2021 on the file of
the Sessions Court, Karkardooma Courts, Delhi, assails the
judgment dated 30.11.2022 as per which he has been convicted
and sentenced for the offence punishable under Section 376 (2)(f)
of the Indian Penal Code, 1860 (the IPC).
2. The prosecution case is that on 16.03.2021 at about 1:00
PM at H.No. 101, G-Block Gali No.1, Janta Majdoor Colony, New
Delhi, the appellant/accused in a drunken state, forcibly removed
the clothes of PW1, his mother, and committed digital rape on her.
Hence, as per the final report/chargesheet, the accused is alleged to
have committed the offences punishable under Sections 323 and
376 IPC.
3. On the basis of Ext. PW1/A FIS of PW1, given on
16.03.2021, Crime No. 146/2021, Welcome Police station, that is,
Ext. PW11/A, FIR was registered by PW11, Additional Sub-
Inspector (ASI). PW18, Sub-Inspector conducted investigation into
the crime and on completion of the same, filed the charge-
sheet/final report dated 12.05.2021 alleging commission of
offences punishable under the aforementioned Sections.
4. When the appellant/accused was produced before the trial
court, all the copies of the prosecution records were furnished to
him as contemplated under 207 Cr.PC. After hearing both sides,
the trial court as per order dated 16.11.2021, framed a charge
under Section 376 (2)(f) IPC, which was read over and explained
to the appellant/accused to which he pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 18 were examined
and Exts. PW9/13A-M, PW10/A, PW11/A-C, PW12/A, PW/13/A,
PW15/A-B, PW16A-B, PW17/A-B, PW18/A-D, EXCW1/B-E,
were marked in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313 Cr.PC regarding the
incriminating circumstances appearing against him in the evidence
led by the prosecution. He denied all those circumstances and
maintained his innocence. He submitted that he had been falsely
implicated because of his habit of drug/alcohol consumption. His
sisters along with his mother wanted to grab his share of the
property. This false case has been registered by his mother under
the undue influence of his sisters.
7. After questioning the accused under Section. 313 CrPC,
compliance of Section 232 Cr.PC. was mandatory. In the case on
hand, no hearing as contemplated under Section 232 CrPC is seen
done by the trial court. However, non-compliance of the said
provision does not, ipso facto vitiate the proceedings, unless
omission to comply with the same is shown to have resulted in
serious and substantial prejudice to the accused (See Moidu K. vs.
State of Kerala, 2009 (3) KHC 89: 2009 SCC OnLine Ker
2888). Here, the accused has no case that non-compliance of
Section 232 Cr.PC has caused any prejudice to him. No oral or
documentary evidence was adduced by the accused.
8. Upon consideration of the oral and documentary evidence
on record and after hearing both sides, the trial court, vide the
impugned judgment dated 30.11.2022 held the appellant/accused
guilty of the offence punishable under Section 376 (2)(f) IPC.
Consequently, the trial court vide order on sentence dated
12.01.2023 sentenced the appellant/accused to undergo rigorous
imprisonment for a period of 10 years for the offence punishable
under Section 376 (2)(f) IPC and to fine of ₹ 10,000/-, and in
default of payment of fine, to undergo simple imprisonment for six
months. Aggrieved, the appellant/accused has preferred this
appeal.
9. Heard both sides.
10. The first argument advanced by the learned counsel for
the appellant/accused in the Court as well in his written
submissions reads :-
"(i) The allegation that the appellant suddenly entered the
room, completely removed the saree (which consists of a
blouse/petticoat/undergarments) of the prosecutrix, and thereafter
inserted his fingers into her vagina "two to three times" is wholly
inconsistent with human probability; (ii) It stands admitted from
the depositions of the prosecutrix (PW-1) and neighbours PW- 6,
PW -7, and PW - 8) that when they reached outside the room
where the alleged incident took place, the prosecutrix had her
saree on her body however it was in a bad condition. Further it
has also come in the evidence of the said PWs that the neighbours
had reached almost immediately upon hearing her cries; (iii) It is
pertinent that a saree is a long, multi-layered garment, tightly
tucked into a drawstring petticoat and draped over the shoulder. It
cannot be swiftly or easily removed without deliberate unwrapping
or loosening of the drawstring. In any forceful removal,
disturbance such as torn fabric, undone drawstring, or disarray of
the drape would ordinarily be visible. No such disturbance or
damage was observed or forms part of the record since admittedly
the said saree has not been seized / recovered; (iv) The
prosecution's narrative that an elderly lady was completely
disrobed, assaulted, and then redressed herself within seconds,
before the arrival of the neighbours, is practically impossible,
rendering the allegation of penetration wholly implausible; and (v)
Even assuming arguendo that some physical contact occurred, it
could only have been over the saree or undergarments. Such
external contact, without actual entry into the genital organ,
cannot constitute penetration within the meaning of Section 375
IPC."
11. Per contra, it was submitted by the learned Additional
Public Prosecutor that the testimony of PW1 as well as PW6 to
PW8, the neighbours, prove the prosecution case beyond
reasonable doubt. There is no reason to disbelieve PW1, who is
none other than the mother of appellant/accused. There is no
infirmity in the impugned judgment calling for an interference by
this Court, argued the prosecutor.
12. Before I address the argument advanced, I make a brief
reference to the testimony of PW1 and her neighbours. In Exhibit
PW1/A FIS, recorded on the same day of the incident, i.e. on
16.03.2021, PW1 has stated thus:- "The accused, who is one of my
sons, is residing in the ground floor of the building. On the day of
the incident, by about 01:00 p.m., he came inside my room in a
highly intoxicated state. He switched on the TV at high volume.
So, I went down to my younger son's room on the first floor and
was resting on the bed. My son, (accused) came into the room,
closed all the windows and doors and forcibly undressed me and
inserted his finger into my private part three to four times. (मे रे
पे शाब करने वाली जगह पर अपने हाथ की उं गिलयां को तीन चार बार
डाला है . मेरे साथ Rape करने की कोिशश की...........) I tried to resist
the assault but failed. In order to escape, I asked for water. When
he got up, I opened the window and cried out. Hearing my cries,
my neighbour came to my rescue...."
13. In Exhibit PW18/C, the 164 statement, recorded on
24.03.2021, PW1 reiterates her case in the FIS. The gist of the
testimony of PW1 when examined before the trial court on
25.02.2022 is:- The accused is her elder son. The wife of the
accused deserted him, as he used to beat her. There are four floors
in the building, in which she is residing. The accused resides on
the ground floor, her younger son on the first floor and she resides
on the second floor. There is a common bath room on the third
floor, which is used by all the inmates of the house. On
16.03.2021, the accused came into the bathroom for taking bath, at
which time she was in her room. The accused went into her room
in a heavily intoxicated condition. He switched on the TV in her
room. She, then, went to the room of her younger son and was
lying on the bed taking rest. The accused came inside the room,
closed the door and windows of the room. Despite her stiff
resistance, the accused removed her clothes and he put his finger
into her private part thrice. She asked the accused to give her water
and that he can do whatever he wanted thereafter. As soon as the
accused went to take water, she opened the door and windows of
the room and started shouting. On hearing her cries, PW6, her
neighbour, and another person whom she addresses as Buchchi and
many others came to her help. She revealed the incident to them.
They beat the accused. Thereafter, her son-in-law informed the
police. In the cross-examination, PW1 deposed that the accused,
her son, is in the habit of taking drugs and alcohol. Despite her
complaints, he never stopped his habit. She denied the suggestion
that she had filed this false case against the accused as the latter
used to harass her and her other children due to which they wanted
to get rid of him.
14. PW6, a neighbour of PW-1, was examined before the
trial court on 30.04.2022. He deposed that about 1 ½ years back,
while he was in his house, by about 02:30 p.m., he heard the cries
of PW1:- "Mujhe bacha lo meri izzat loot li". Hearing this, he
rushed to the house of PW1 and then he saw the accused pulling
PW1 inside the house, which attempt she was resisting. PW1 was
in a bad state. Her saree was almost removed from her body (uski
saree khuli hui thi bas jara si body se lagi hui thi). He asked the
accused to let go PW1. He took PW1 to the ground floor at which
time, the accused locked himself in the room. The people of the
locality gathered and the accused was made to open the door.
When the accused came out, he was beaten up. PW1's son-in-law
informed the police. In the cross examination PW6 deposed that
when he saw PW1 she was in the second floor of her house. By the
time he reached the place, the door was already open. PW6 also
deposed that the accused was in the habit of consuming drugs and
alcohol. He admitted that the accused used to annoy him as well
as his family members in a drunken state. He admitted that the
wife of the accused had deserted him as he used to physically
assault her.
15. PW7, another neighbour of PW1, deposed that on the
date of the incident, while he was at home with his children, he
heard the cries of PW1 from her house. When he came out, he saw
PW6 bringing down PW1 from her house. When he reached the
place, he saw that PW1 was partially outside her house and the
accused trying to pull her inside. PW6 sought his help in order to
rescue PW1 from the clutches of the accused. As soon as he went
upstairs, and when the accused saw him, the latter released PW1,
closed the door of the room and locked himself in the room. PW7
also deposed that he had heard PW1 crying:- "mai kahi ki nahi
rahi, meri izzat loot li". When he saw PW1, her saree was slightly
attached to her body, while the remaining portion was under the
door (baki hissa darwaje ke niche fasa hua tha). PW1's saree was
taken out from under the door and thereafter she was brought
down the stairs. PW1's son-in-law informed the police. The
accused was brought down from the room and he was beaten up by
the public. In the cross examination PW7 deposed that he has
cordial relations with PW1, as she is his immediate neighbour. The
accused is addicted to drugs. PW7 also deposed that there used to
be quarrels in the house of the accused due to his drug addiction.
He also denied the suggestion that a false case has been taken
against the accused as PW1 and her daughter did not want to give
the latter a share in the property.
16. PW8, yet another neighbour, supports the prosecution
case. He deposed that on the date of the incident he heard cries
from his neighbourhood. His father also went to the house of PW1
and managed to rescue PW1 from the clutches of the accused who
was trying to pull her inside the room. His father brought PW1
down the stairs. Even, when PW1 was brought down, the accused
was trying to pull PW1 inside the house (prosecutrix ke sath
khicha tani kar raha tha). The public beat up the accused. The son-
in-law of PW1 came to the spot and informed the police.
17. Before I address the first argument of the learned counsel
for the appellant that it was not physically possible to commit rape
and that there is no conclusive evidence regarding penetration, I
will briefly refer to the judgements relied on by the learned
counsel in support of his argument that no rape took place. In
Suraj v. State of Maharashtra 2021 SCC OnLine Bom 325, the
case of the prosecutrix was that she was resting on a cot in her
house and her younger brother was sleeping on the ground at
which time her mother had gone to attend nature's call. At the said
time, the accused came into her house under the influence of
liquor, and when she tried to shout, gagged her mouth. Thereafter,
he removed her clothes, undressed himself, spread her legs and
inserted his penis into her vagina. After he ejaculated, he ran away
by taking his clothes. Thereafter when her mother came, she
disclosed the incident to her mother, pursuant to which the
complaint was given. It was held that the testimony of the
prosecutrix did not inspire the confidence of the Court as the
incident, as narrated by her, did not appeal to reason as the same
was against natural human conduct. It was held that it was highly
impossible for a single man to gag the mouth of the prosecutrix,
remove all her clothes as well as his clothes and then perform
forcible sexual act, without any scuffle. The medical evidence also
did not support the case of the prosecutrix. Therefore, in the words
of the learned Single Judge, "the sub-standard quality of the
testimony of the prosecutrix" was insufficient to find the accused
guilty of the offence of rape and proceeded to acquit the accused.
17.1. Santosh v. The State (NCT of Delhi), judgment dated
17.02.2011in Crl.Appeal 26/2009, was a case in which the First
Information Statement (FIS) did not reveal any allegation of rape.
On the other hand, the case of the prosecutrix was that her
neighbour took her behind the house, where it was dark and when
she tried to raise an alarm, he gagged her mouth, fondled her
cheeks and touched her private parts and other parts of her body.
At that stage, she raised alarm, at which time her father arrived and
apprehended the accused. About a month and a half of the
incident, the statement of the prosecutrix was recorded under
Section 164 Cr.PC., in which she made substantial improvements.
She stated that the accused had removed her undergarments,
opened the zip of his pant and had inserted his penis into her
vagina. There was no medical evidence to support the case of
penetration. Hymen was found intact. On local examination of the
prosecutrix, no injuries were also noted. In such circumstances, the
prosecution case of rape was disbelieved and it was found that the
materials on record proved only the offence under Section 354
IPC.
17.2. Aman Kumar v. State of Haryana, (2004) 4 SCC 379
was a case in which the prosecutrix alleged that she had gone to
the field to ease herself. When she reached the field, the accused
persons caught hold of her right arm and dragged her forcibly into
the field. They gagged her mouth with her chunni and both of them
forcibly raped her. The testimony of the prosecutrix and the doctor
did not specifically refer to penetration, which is sine qua non for
the offence of rape. Therefore, in such circumstances, it was held
by the Apex Court that there were no materials on record to show
that the accused had raped her. There were also no materials to
show that there was an attempt to commit rape. The materials on
record only revealed a case of indecent assault on the prosecutrix
and hence, the conviction of the accused under Section 376(2)(g)
IPC was set aside and he was convicted under Section 354 IPC.
17.3. In Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC
560, the materials on record showed that the accused had forcibly
taken the prosecutrix to his Gumti for committing illicit
intercourse. But before he could ravish her, she raised an alarm
pursuant to which her father and the other villagers residing in the
vicinity gathered at the spot and immediately thereafter the
accused and the prosecutrix came out. It was found that the
materials on record did not reveal an offence of rape or an offence
of attempt to commit rape. There were no materials to show that
there was any attempt to penetrate or that penetration had taken
place. In such circumstances, it was held that the offence of rape
was not made out. However, the materials on record revealed
offence under Section 354 IPC.
17.4. In Kundan Lal alias Thakur Dass v. State of
Himachal Pradesh, 2010 SCC OnLine HP 3260, the prosecution
case was that the accused had committed rape on the prosecutrix
despite her resistance. The materials on record revealed that the
incident had taken place at about 05:30 p.m. and that there were
some houses or orchard at some distance. Despite the same, the
prosecutrix never made any attempt to raise an alarm. There were
no marks of violence found on her body and, therefore, it was held
that the materials on record did not corroborate the testimony that
she was raped despite her resistance. The medical evidence also
did not support the case of rape. In such circumstances, the
conviction of the accused for the offence of rape was set aside.
17.5. In Nankau @ Gore La v. State of Uttar Pradesh,
2015 SCC OnLine All 870, the case of the prosecutrix was that
she was raped and after the penetration she was bleeding, which
continued even when the FIS was given. However, the medical
evidence did not support her version. There were also no injuries
seen on the person of the accused. In addition, contradictions were
also found in the statement and testimony of the victim and hence
the benefit of doubt was given and the accused acquitted.
17.6. In Ishwar v. State 2012 SCC OnLine Del 267, the
case of the prosecutrix was that the accused inserted his penis into
her vagina at which time he had not removed her underwear.
According to her, some stains of urinal discharge was there on her
underwear. However, the medical evidence did not support her
version of penetration. On the other hand, the hymen was reported
to be intact. The underwear, which was alleged to have had stains
due to the urinal discharge at the time of the assault was never
seized or examined. In such circumstances, it was held that the
materials did not substantiate the case of rape and that it only
revealed an offence under Section 354 IPC.
17.7. In Madhu Shudan Dutto v. State Govt. of NCT of
Delhi, judgment dated 15.01.2026 in Crl.A. 649/2025, (authored
by myself), the case of the prosecutrix was that the accused had
rubbed his penis on her private part. This act of the accused was
held not to come within any of the clauses of Section 3 of the
PoCSO Act and, therefore, the conviction of the accused for the
offence under Section 6 was set aside and he was found guilty of
the offence under Section 9(m) punishable under Section 10 of the
PoCSO Act.
17.8. In Premiya v. State of Rajasthan, (2008) 10 SCC 81,
the prosecution case was that the accused threw the prosecutrix on
the ground and took off his pajama, lifted the ghaghara of the
prosecutrix and raped her. When the prosecutrix tried to resist, the
accused gave a blow on her eye and threatened to kill her if she
made any noise. When, she again cried for help, her aunt came and
rescued her. The Apex Court found from the materials on record
that the prosecutrix had not stated specifically about the act
committed by the accused. On the other hand, she had loosely
described the act as "fondling". From the evidence it was found
that only an offence under Section 354 IPC had been made out.
17.9. In State v. Vipin @ Lalla, judgment dated 07.01.2025
in Criminal Appeal No. 94/2025 (arising out of SLP (Crl.
NO.11687 of 2019), the prosecutrix alleged that while she was
returning home from School, the accused caught hold of her hand,
put a knife on her back and took her to a grocery shop nearby and
had physical relations with her. The medical examination revealed
no injuries on the body of the prosecutrix. The medical evidence
showed that the hymen was torn. However, the Apex Court
disbelieved the version of the prosecutrix as there were several
contradictions in her statements and testimony. In such
circumstances, it was held that it would be unsafe to convict the
accused on the sole testimony of the prosecutrix and hence, the
accused was given the benefit of doubt.
18. Coming back to the case on hand, PW1 in her FIS, 164
statement as well as in her testimony has clearly deposed that the
accused, her son, after undressing her had inserted his finger three
to four times into her vagina. Merely because when the neighbours
arrived at the scene, PW1 was not completely undressed or naked,
does not mean that the sexual assault did not take place, especially
when the specific testimony of PW1 regarding digital rape by the
accused has not been discredited in any manner. PW1 withstood
the cross examination. Her case is substantiated by the testimony
of PW6 to PW8, whose testimony has also not been discredited in
any way. It needs to be borne in mind that the accused is none
other than the son of PW1. There is no reason(s) as to why PW1
should falsely implicate her own son in a case of this nature. Here
it would be apposite to refer to the dictum in Mohammed v. State
of Kerala, 1987 KHC 525 wherein it was held that in assessing
the testimonial reliability of the prosecutrix, the courts must have a
more practical approach resulting from various circumstances.
Corroboration is not now considered as the sine qua non for
conviction in a rape case. Refusal to act on the testimony of a
victim of sexual assault in the absence of corroboration as a rule, is
adding insult to injury. Courts will have to bear in mind the
feminine psychology and behavioural probability leading to a
tendency to conceal the outrage of masculine sexual aggression.
They would be reluctant to admit that any incident which is likely
to reflect on their chastity had ever occurred. They will be
conscious of the danger of being locked down upon by the society
including relatives, friends and neighbours and the far reaching
consequences resulting therefrom. The evidence of such a victim
has to be considered on a par with the evidence of an injured
witness, if not on a higher pedestal. Even in the absence of
corroboration, the evidence of a victim of sexual assault is entitled
to great weight for the further reason that the possibility of
exculpating the real offender and falsely implicating an innocent
person is very remote except in rare cases which could easily be
identified by judicial wisdom. If the evidence of the victim does
not suffer from any basic infirmity and the probabilities-factor
does not render it unworthy of credence, then the same can be
relied on.
18.1 In Krishan Lal v. State of Haryana, AIR 1980 SC
1252 it has been held that there is no rule of practice that there
must, in every case, be corroboration before a conviction can be
allowed, to stand. It would be impossible; indeed, it would be
dangerous to formulate the kind of evidence which should, or
would, be regarded as corroboration. Its nature and extent must
necessarily vary with circumstances of each case and also
according to the particular circumstances of the offence charged.
The Apex Court also opined that human psychology and
behavioural probability must be borne in mind when assessing the
testimonial potency of the victim's version. What girl would foist a
rape charge on a stranger unless a remarkable set of facts or
clearest motives were made out? The inherent bashfulness, the
innocent naiveté and the feminine tendency to conceal the outrage
of masculine sexual aggression are factors which are relevant to
improbabilise the hypothesis of false implication. And if rape has
been committed, why, of all persons in the world, should the
victim hunt up the petitioner and point at him the accusing finger?
To forsake these vital considerations and go by obsolescent
demands for substantial corroboration is to sacrifice commonsense
in favour of an artificial concoction called 'Judicial' probability.
Indeed, the court loses its credibility if it rebels against realism.
The law court is not an unnatural world (See also Bhoginbhai
Harjibhai v. State of Gujarat, AIR 1983 SC 753).
19. It was further submitted that the medical evidence
conclusively rules out penetration. Exhibit CW1/D, the MLC
shows no injury on the genitalia. The Labia majora and minora
were within normal limits. There was no bleeding or tear. Further,
PW1 had refused internal examination. Reference was made to the
dictum in Ishwar v. State 2012 SCC OnLine Del 267, wherein it
has been held that where medical examination reveals no injury or
indication of penetration, conviction under Section 376 is
unsustainable. The refusal of internal examination, despite alleging
digital penetration, deprives the prosecution of essential medical
corroboration, so the said fact must be weighed in favour of the
accused. It was also argued relying on the dictum in Premiya v.
State of Rajasthan (2008) 10 SCC 81 that when ocular testimony
is inconsistent with the medical evidence and the element of
penetration is missing, conviction for rape cannot stand, and at
best, it is only an offence under Section 354 IPC that is made out.
20. As noticed earlier, the testimony of PW1 has not been
discredited in any manner. PW1 in her FIS, in the 164 statement,
and in her testimony clearly refers to the overt act of the accused,
that is, that he inserted his finger into her vagina. Though, the
learned counsel for the appellant/accused submitted that there are
several contradictions in the testimony of PW1, no contradiction(s)
has been proved as per the procedure contemplated under Section
145 of the Evidence Act. Therefore, the accused cannot be heard to
argue that there are contradictions in her testimony.
21. It is true that PW1 had refused internal medical
examination. However, the argument that there is inconsistency in
the medical evidence and the ocular testimony is not correct. It is
true that there is absence of medical evidence regarding the
internal examination of PW1. That does not mean that the
prosecution case is false. Even in the absence of medical evidence,
if the testimony of the victim is credible and believable, the same
can be relied on by the Court, unless it is shown that the case is
highly impossible or improbable. In State of Rajasthan v.
Bhanwar Singh, 2004 KHC1931:(2004)13 SCC 147, it has been
held that though ocular evidence has to be given importance over
medical evidence, where the medical evidence totally
improbabilises the ocular version, that can be taken to be a factor
to effect credibility of the prosecution version. In Vishnu alias
Undrya vs. State of Maharashtra, 2006 (1) SCC 283, a
contention was raised that the age of a prosecutrix by conducting
ossification test was scientifically proved, and that it deserved
acceptance. The Apex court rejected the said submission and held
that the expert medical evidence is not binding on the ocular
evidence. The opinion of the Medical Officer is to assist the court
as he is not a witness of fact and the evidence given by the Medical
Officer is really of an advisory character and not binding on the
witness of fact. Similar view has been expressed in Arjun Singh
v. State of Himachal Pradesh, (2009) 4 SCC 18.
22. The materials on record, to which I have already referred
to in detail, clearly proves that digital rape was committed by the
accused on PW1, his own mother. In the light of the testimony of
PW1 the argument that it was impossible for the accused to have
completely undressed PW1 and committed an act of penetrative
sexual assault is liable to be rejected. None of the decisions cited
are applicable to the facts of the present case.
23. It was further argued that non-seizure of the saree or
under garments of PW1 fatally undermines the prosecution case.
When the saree remained intact and no physical evidence of
insertion exists, the charge under Section 376 IPC cannot be
sustained. The Apex Court in Jai Krishna Mandal v. State of
Jharkhand (2010) 14 SCC 534 has held that non-seizure of the
victim's saree and petticoat, coupled with the absence of medical
proof, rendered the prosecution version "so improbable that it
could not be believed". According to the learned counsel the same
infirmity pervades the present case also. The non-production of
vital articles removes the only tangible corroboration of the claim
of disrobing and seriously affects the credibility of the charge
under Section 376 IPC, goes the argument.
24. There is no case for the prosecution that the accused had
torn the saree. PW-1 only deposed that the accused had removed
her saree (.....जबरद ी कपडे उतार िदए.....). The prosecution also
has no case that the accused had ejaculated into the saree. Hence in
such circumstances non seizure of the saree of PW1 or its non
examination is of no material consequence. Further, PW1 never
has a case that she was wearing an underwear/panty. Therefore, the
argument that failure to seize the saree or undergarment has fatally
affected the prosecution case is also liable to be rejected.
25. The argument that if at all there was any assault, it was
only inappropriate touch by the accused over the clothes of PW1
cannot be accepted for a moment in the light of the testimony of
PW1, which at the risk of repetition, has to be stated to have not
been discredited in any way. The testimony of her neighbours,
PW6 to PW8 also supports the version of PW1.
26. That being the position, I find no reasons to disbelieve
PW1 or discard her testimony. Hence, I find no infirmity in the
impugned judgment calling for an interference by this Court.
27. In the result, the appeal sans merit is dismissed.
Applications, if any pending, shall also stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
JANUARY 23, 2026
p'ma
