The Single Bench of the Delhi High Court in the case of Ram Guru vs State consisting of Justice Purushaindra Kumar Kaurav, while upholding conviction of father u/s 6 (Punishment for aggravated penetrative sexual assault) of POCSO Act, reiterated that sole testimony of prosecutrix should not be doubted by court merely based on assumptions and surmises. It also reiterated that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings unless failure of justice was occasioned by such omission.
Facts
This appeal was filed u/s 374(2) CrPC against the judgment and the order on sentence, whereby the appellant/accused had been convicted u/s 6 read with Section 5(n) of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), and sentenced to undergo rigorous imprisonment for 12 years with a fine of Rs. 10,000/- and in default of payment further simple imprisonment for 02 months.
Contentions Made
Appellant: It was contended that there were inconsistencies in the evidence of the prosecutrix. It was also contended that the victim was tutored by the mother of the victim/wife of the appellant as she did not wish to reside with the accused anymore. It was also contended that the Forensic Science Laboratory report submitted by PW16/IO had not been put to the accused u/s 313 CrPC and non-putting to the accused a vital piece of evidence is fatal to the case of the prosecution.
Respondent: It was contended that the offences committed by the appellant/accused are heinous in nature and, therefore, the trial court had rightly convicted him. Moreover, there is sufficient evidence to prove his guilt beyond a reasonable doubt. It was also contended that the ground of defect u/s 313 CrPC was not raised at the time of arguments in the trial court.
Observations by the Court
The Bench relied on State (Delhi Administration) v. Dharampal, Nar Singh v. State of Haryana, State of Punjab v. Gurmit Singh & Ors., Phool Singh v. State of Madhya Pradesh and many other such cases to reiterate that as a general rule, if credible, conviction of the accused can be based on sole testimony, without corroboration and that the sole testimony of prosecutrix should not be doubted by court merely based on assumptions and surmises.
It also reiterated that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings unless failure of justice was occasioned by such omission. It opined that the testimonies of the child victim (PW1), mother of the child victim (PW2) and sister of the child victim (PW4), so far as the incident in question was concerned, were consistent and did not suffer from any apparent material inconsistencies. So, the conviction could not be interfered with on the ground of inconsistencies in the evidence of the prosecutrix.
Regarding the argument that the victim was tutored by the mother of the victim/wife of the appellant as she did not wish to reside with the accused anymore is concerned, reliance was place on Subash Chandra Rai v. The state of Sikkim to reiterate that non-cordial relations between the mother of the victim and the accused cannot lead to a presumption of tutoring when the account of the victim regarding the offence does not suffer from any inconsistencies.
Judgment
The Bench upheld the conviction and sentence. The appeal was thereby dismissed.
Citation: CRL.A.-747/2017
Bench: Justice Purushaindra Kumar Kaurav
Decided on: 11th November 2022
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