[Sex Crimes against Children] Del HC | How far prosecution case affected by absence of injury on victim of aggravated penetrative sexual assault? HC restates law

Delhi High Court: Manoj Kumar Ohri, J., confirmed the conviction and sentence of the appellant, who was convicted by the trial court for the offence punishable under Section 6 (punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) and Section 366-A (procuration of minor girl) of the Penal Code, 1860.

Crime and conviction

The appellant was a tenant in the house of the child-victim’s maternal grandmother (“nani”). The victim called the appellant “mama” (maternal uncle). As per the victim, one day when she was returning her home from her nani’s house, the appellant stopped her on the staircase and took her to his room where he inserted his hand in her private part. She tried to stop him and threw her “chappal” (slipper) at him. After which, she opened the lock of the room from inside and ran to her home where she narrated the entire incident to her mother. The mother of the victim took her to the police station where crime was registered.

The appellant was convicted by the trial court for under Section 6 of POCSO and Section 366-A IPC and sentenced to suffer 10 years RI and 5 years RI along with the imposition of fine respectively under the two provisions.

Appeal

Aggrieved by the decision of the trial court, the appellant preferred the present appeal where he submitted, among other things, that the child-victim’s testimony was doubtful as she had stated that the appellant inserted his hand in her private part, but on medical examination, no injury or swelling was noticed. It was also submitted that the appellant was falsely implicated due to certain monetary dispute between him and family of the victim. The State, on the other hand, opposed the present appeal.

The appellant was represented by Kanhaiya Singhal, Advocate; while Radhika Kolluru, APP, appeared for the State.

Analysis, law and decision

The High Court noted that as per the medical examination of the victim, there was no abrasion, swelling or bleeding in her private part.

At the outset, the Court referred to the Supreme Court decisions in Vijay v. State of M.P., (2010) 8 SCC 191 and Rajinder v. State of H.P., (2009) 16 SCC 69 to restate the settled law that that in a case of rape, the finding of guilt can be recorded even on the basis of uncorroborated testimony of the prosecutrix, provided it is cogent and reliable. Reliance was also placed on State of M.P. v. Ramesh, (2011) 4 SCC 786 and Ranjit Kumar Ram v. State of Bihar, (2015) SCC OnLine SC 500 for remembering that testimony of a child witness has to be evaluated more carefully as it is susceptible to tutoring.

In the present case, however, the Court found that the child was not tutored and her testimony stood the test of extra caution.

Regarding the absence of injury on the child-victim, the Court observed:

A perusal of the testimony of the child-victim would show that the present case is of ‘insertion’ and not of ‘penetration’. Although on local examination, the Doctor did not notice any abrasion/swelling/bleeding but absence of any injury on superficial examination does not lead to an inference that no offence took place. Even in a case of penetration, the consistent judicial diktat is that absence of injuries may not always be fatal to the prosecution case and the same would depend on the facts of each case.

On the contention of false implication, the Court noted that there were contradictions in the appellant’s own defence and thus there was no merit in such submission.

After careful consideration of the testimony of the child-victim, the Court was of the opinion that she had consistently stated about the incident in all of her statements. Her evidence was trustworthy, reliable and also admissible. The appellant failed to dislodge the statutory presumption under Sections 29 and 30 of the POCSO Act.

In such view of the matter, the Court dismissed the appeal and affirmed the decision of the trial court. [Ishwer Soni v. State (NCT of Delhi),  2020 SCC OnLine Del 1378, decided on 23-10-2020]

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