Rape victim’s consistent testimony sufficient for conviction of accused: Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:4th January 2022 CRL.A. 705 2018 Represented by: Mr. Nitish Chaudhary Advocate Appellant through video conferencing. Respondent Represented by: Mr. Tarang Srivastava APP for the State through video conferencing. HON BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA J.CRL.A. 705 2018 The hearing has been conducted through Video Conferencing. By this appeal the appellant challenges the judgment dated 12th January 2018 convicting the appellant for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act 2012and the order on sentence dated 17th January 2018 directing the appellant to undergo rigorous imprisonment for a period of 10 years and to pay fine of ₹5 000 in default whereof to undergo simple imprisonment for one month. Learned counsel for the appellant contends that at the time of alleged incident the victim was a 5 years old child of impressionable age and thus the appellant has been implicated by tutoring her by her parents who were inimical to the appellant. Even though as per the case of the prosecution the MLC of the prosecutrix shows injury and tear on her vaginal area and CRL.A. 705 2018 Signature Not Verified Digitally Signed By:JUSTICE bloodstains on her undergarment however there is nothing to connect the appellant with the alleged offence. No recoveries have been made from the appellant and even in the FSL report no semen has been detected which could have connected the appellant to the offence alleged. Further it is the case of the prosecutrix that the appellant took her to his room and to corroborate the version no bed sheet etc. were recovered to show that the appellant was the one who was involved in the alleged offence. Further no public witness was associated at the time of seizure and arrest and there is no other eye witness who supports the claim of the prosecutrix that it was the appellant who took her inside the room. FIR No.930 2014 was registered for offence punishable under Sections 376(f)(i)(j) IPC and Section 6 of the POCSO Act at Police Station Aman Vihar wherein after a DD entry No.4 B dated 29th August 2014 was received at 12:30 a.m. alleging rape on a 5 years old girl. When the Investigating Officer visited the hospital he met the victim and her father. Statement of the mother of the victim was recorded who was at the residence who stated that she was residing at the said place for the last 6 months with her husband and two daughters aged 6 years and 3 years. On 28th August 2014 at about 10:00 a.m. her elder daughter was playing outside and at around 12:00 noon she came back weeping. On inquiry the victim told her mother that the appellant took her to his room removed her panty inserted his finger and male organ in her vagina. The child was crying due to pain. The mother of the victim saw her underwear which was smeared with blood. She changed the clothes of the child and made her sleep. In the evening when her husband came she informed him about the entire incident. Her husband searched the appellant who was the cousin brother of her CRL.A. 705 2018 Signature Not Verified Digitally Signed By:JUSTICE husband however he did not find him thus PCR call was made and the child was taken to the hospital. Statement of the minor child was recorded under Section 164 Cr.P.C. wherein she reiterated what was stated by her to her mother. As per the MLC the victim was found to be having perineal tear and repair was done her bloodstained underwear was seized and sealed. The appellant has been named in the MLC Ex.PW 4 A which is the document prepared first in time. The MLC noted 1x1 cm. actively bleeding tear at fourchette hymen torn which was clearly indicative of penetrative sexual assault on the victim. Undoubtedly as per the FSL and DNA fingerprinting report neither any semen was detected nor were the alleles from the appellant accounted in the blood smears or the vaginal smears of the prosecutrix. To constitute an offence punishable under Section 376 IPC and Section 6 of the POCSO Act penetration is sufficient and it is not necessary that semen needs to be essentially present. The prosecutrix though a minor child of impressionable age soon after the incident told her mother when she was in pain and the fact that she was sexually assaulted is duly corroborated by the medical evidence on record and has been cross examined at length before the Trial Court. Her statement to the mother in the MLC statement recorded under Section 164 Cr.P.C. and before the Court are consistent which are sufficient to prove the offence alleged against the appellant beyond reasonable doubt. Contention of the learned counsel for the appellant that no public witness was associated at the time of recovery deserves to be rejected for the reason no recovery was made at the instance of the appellant and the clothes of the victim were handed over by her parents to the Investigating Agency CRL.A. 705 2018 Signature Not Verified Digitally Signed By:JUSTICE which were duly seized and sealed and FSL report received. The explanation of the appellant in his statement recorded under Section 313 Cr.P.C. is that he has been falsely implicated however neither any defence evidence has been led nor anything elicited to show as to why the appellant has been falsely implicated. In view of the statement of the minor victim as also her MLC this Court finds that the prosecution has proved beyond reasonable doubt that the appellant committed the offence punishable under Section 6 of the POCSO Act. The sentence of rigorous imprisonment for 10 years awarded to the appellant is the minimum sentence prescribed for the offence punishable under Section 6 of the POCSO Act. Thus this Court finds no error in the impugned judgment of conviction and order on sentence. Appeal is 2. CRL.M.(BAIL) 1530 2021Disposed of as infructuous. Judgment be uploaded on the website of this Court as also communicated to the Superintendent Tihar jail for updation of record and intimation to the appellant. MUKTA GUPTA) JUDGE JANUARY 04 2022 CRL.A. 705 2018 Signature Not Verified Digitally Signed By:JUSTICE

Summary: The question as to whether a person accused of rape charges can be convicted on the basis of consistent testimony of the victim was examined in Delhi High Court in a bench consisting of Justice Mukta Gupta in the matters of RN v. State which was decided on 4.1.2022. The facts of this case are that when the victim was 5 years old the appellant raped the child in her own house and upon inquiry, the child informed her mother that the appellant called her to his room while she was playing and later violated her by inserting his finger and male organ into her vagina.The mother also found her “underwear smeared with blood”. Later, she made her change and go to bed.Thereafter discussed the incident with the father. The trial court convicted the appellant under section 6 of the POSCO Act and sentenced to 10 years rigorous imprisonment.This sentence was challenged by the appellant before this court. The counsel on behalf of the Appellant contended that when a child of such a tender age provides such flawless testimonies, it is obvious that she has been tutored to frame the appellant.It cannot be denied that the medical evidence suggest commission of sexual assault on the child yet,it cannot be legitimately connected to the appellant.He also contended that no materials were recovered, neither any witness was present during seizure of materials from the crime scene or during his arrest hence, the evidences elicited to falsely implicate the appellant. The counsel on behalf of the Respondent contended that she was already cross examined and maintained a consistent testimony in the trial court earlier. It was also established beyond reasonable doubt that there was sexual assault committed upon the child. The Delhi High Court upheld the conviction stating that the child was of a impressionable age and properly narrated the incident to her mother soon after , reason why there are no inconsistencies in her statement.Such a testimony is sufficient to prove the offence of the appellant beyond reasonable doubt.The court found no error in the judgement by the trial court in the conviction and dismissed the appeal.