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The Delhi High Court has reiterated that the sole testimony of the prosecutrix if found reliable, can be the sole ground for convicting the accused. It has further held that the existence of injuries is not a sine qua non to prove a charge of rape.
The judgment was delivered by a Division Bench of Justices Siddharth Mridul and Manoj Ohri in an appeal preferred by the accused, Jitender Sharma who was convicted for raping his own minor daughter.
The case emanated from a complaint by the mother of the victim stating that her husband raped their 8-year old daughter and also threatened her not to tell anything to anyone or else she would be killed. She informed that she came to know of the incident after she found one bloodstained underwear of the victim under the bed. She confessed that she decided to report the incident only after her elder daughter also disclosed that the father (accused) committed the wrong act with her as well.
The trial court convicted the appellant under Section 10 read with Section 9 (m)(n) of The Protection of Children from Sexual Offences Act, 2012 and Section 328 of the Indian Penal Code, 1860. The conviction was on the basis of the testimony of the victim, in spite of the complainant mother turning hostile. The accused was sentenced to seven years rigorous imprisonment along with a fine of Rs. 5,000, under POCSO and five years Rigorous imprisonment for a period of five years along with a fine of Rs. 5,000 under IPC.
This led to the appeal in Delhi High Court by the accused-appellant (father). Relying on the hostile testimony of the mother, the appellant argued before the High Court that he was falsely implicated in the case at the instance of the mother. During the trial, the mother deposed that the accused father did not do anything wrong with the daughters and he “only gave 2/3 slaps to them”. It was claimed that the mother went to the police station and told them about the harassment caused by her husband after a quarrel took place between them. It was further claimed that the police did not record her statement in the correct manner. The father also objected to the delay of seven days in the registration of the FIR in the present case.
Arguing that the prosecution failed to prove that the accused had sexually assaulted his daughter, the appellant submitted that the Forensic Science Report, as well as the Medical report, was not conclusive. The father specifically relied on the absence of any ‘fresh external injury’ on the victim to rebut the allegations. The Prosecution, on the other hand, submitted that the victim was a minor girl of 8 at the time of the incident and there was no reason to disbelieve her testimony which implicated her father. It was submitted that the medical report showed that the victim’s hymen was ruptured because of sexual assault perpetrated by her father and the testimony of the victim was reliable and trustworthy. After hearing the parties, the Court observed that the question of whether the conviction of an accused can be based on the sole testimony of the victim in cases of sexual assault/rape is no longer res Integra.
Referring to a catena of Supreme Court judgments, the High Court reiterated,
“..the sole testimony of the prosecutrix if found reliable, can be the sole ground for convicting the accused; and that the credit-worthy testimony of the victim in cases of such nature deserves acceptance.”
The Court rejected the appellant’s contention that the victim’s testimony was inconsistent and stated that ‘subtle variation’ in the testimony of a minor was ‘understandable’.
“Further, upon perusal of the testimony made by the victim V, in her statement u/s 164 Cr.P.C it is observed that she has clearly stated that her father inserted his ‘peshab wali jagah in her peshab wali jagah’ . In her deposition before the court too, she has been consistent and stated that her father was touching ‘his shu shu wali jagah to her shu shu wali jagah’. There is, therefore, no reason to disbelieve the testimony of victim V which is consistent and reliable and has a ring of truth in it.
It was argued for the appellant that in her statement u/s 164 Cr.P.C she has stated that appellant inserted his penis in her vagina whereas in court and to the police she stated that he only touched his penis on vagina, and as such she is not reliable. There is no force in this contention as the victim V was only 8 years old when she was examined and the subtle variation that exists is understandable in the testimony of an eight-year-old child, who is grappling to comprehend the complexity and enormity of what has actually happened with her.”
The Court also noted that the testimony of the victim remained unchallenged and unshattered despite being subjected to thorough cross-examination.
The testimony unequivocally reveals that the commission of the offence by the appellant is described in clear and unambiguous words and her testimony has remained consistent during cross-examination, it is stated.
In view of the foregoing, the Court opined that the appellant’s ‘bald defence’ of being falsely implicated was not made out. Adjudicating on the issue of the allegedly inconclusive medical and forensic report, the Court iterated that corroboration of the testimony of the prosecutrix, is not an essential requirement in a case of rape, and the same is not a sine qua non to bring home the guilt of the accused. Injuries are not a sine qua non to prove a charge of rape, it further added.
On whether the sentence awarded to the appellant by the Trial Court warranted any modification, the Court remarked,
“Further, let it not be forgotten that this is a case of rape on a girl child, only 08 years old at the time of commission of the offence, by her own father. Nothing can be more heinous than a crime committed on the person of a child by her father, the one who is duty-bound to provide her unflinching protection from all harm.”
It thus dismissed the appeals and upheld the judgment on conviction and order on sentence. The appellant was represented by Advocates Manu Sharma, Mahima Wahi and Kartik Khanna. The State government was represented by APP Ravi Nayak.
[Read Delhi High Court Judgement]