Del HC | Testimony of sexual assault victim, which is otherwise found to be credible, cannot be discarded merely because FSL report was not positive

Delhi High Court: Sanjeev Sachdeva, J. dismissed an appeal filed against the decision of the trial court whereby the accused-appellant was convicted for the offences punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and Sections 367, 377 and 506 Penal Code, 1860.

It was alleged against the appellant that he lured the victim, a 13-year-old boy, towards the side of a drain and committed unnatural sex with him; however, the victim shouted and somehow got himself released. The victim narrated the incident to his mother, whereafter, the complaint was made to the police. The victim was taken for the medical examination. Based on the testimony of the victim, the trial court convicted the appellant as mentioned above.

Aditya Wadhwa, Advocate for representing the appellant, contended, inter alia, that the version of the victim was contradicted by a report of the Forensic Science Laboratory (FSL). He contended that since no marks of external injury were found on the victim during a medical examination, the allegation that the appellant had started to insert his penis into the victim’s return was not established.

The High Court took note of the trial court’s observation that the victim appeared to be a completely credible witness and had been consistent with his version of the incident starting from the initial complaint to the statement under Section 164 CrPC and his deposition before the court.

Noting that there was no material produced either before the trial court or before the High Court which could shake the testimony of victim or create any doubt on the manner in which the alleged incident had happened, the High Court observed: “Merely because there is no positive FSL report, would not cast any doubt on the testimony of the victim. FSL report is only a corroborative piece of evidence and merely because it does not corroborate the testimony of the victim would not, in any manner, render the testimony of the witness, which is otherwise reliable, as unreliable or liable to be discarded.”

It was further noted that no motive was attributed to the false implication of the accused. The Court was of the opinion that the trial court had rightly held that testimony of the victim was credible and of sterling quality, sufficient to bring home guilt of the accused. In such view of the matter, the instant appeal was dismissed and the impugned order of conviction and sentence was upheld. [Vijay v. State, 2019 SCC OnLine Del 10485, decided on 10-10-2019]

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