Delhi High Court: In an appeal challenging the order passed by the Additional Sessions Judge convicting the Father (Appellant) under Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), the Single Judge Bench of Purushaindra Kumar Kaurav, J. upheld the judgment and order of conviction passed by the Trial Court, where the father was awarded 12-year imprisonment for raping his minor daughter.
Background
The police were informed by a caller/mother of the victim, that her husband had committed rape on their daughter, aged about seven years. The police reached the spot and found the mother of the victim with her family. She stated that she worked as a housemaid and her husband mostly stayed at home and was a habitual drinker. On 24-04-2014, she left her home for work and when she returned home after work, the victim told her that while she was not home, the victim had gone to take water, and her father had closed the window and door of the room and opened the chain of his pant and put his private part into her mouth and thereafter, he forcibly inserted his private part into the victim’s vagina. Thereafter, the police registered a case under Sections 376 and 377 of Penal Code, 1860 (Code) and under Section 6 of POCSO Act.
Submissions on behalf of the Appellant
Counsel for the appellant submitted that the judgment of conviction and sentence passed by the trial court was bad in law and deserved to be set aside as the trial court did not appreciate the evidence in proper perspective and there were material contradictions and omissions in the evidence of the prosecution witnesses. Moreover, there was no direct evidence against the appellant and the benefit of doubt should have been given to him.
It was further submitted that the testimony of the victim, mother of the victim and sister of the victim differed from each other. There were discrepancies regarding who was sleeping in the room when the alleged incident took place and the victim in her testimony stated that her mother had told her that they must teach the appellant a lesson as he was a drunkard and used to beat his wife and children. Moreover, the medical reasons for the presence of worms around the anal area of the victim could happen due to several reasons such as constipation, passing hard stool etc., and therefore, even the medical examination of the victim did not completely establish the commission of unnatural offence on the victim. Lastly, it was submitted that the Forensic Science Laboratory (FSL) Report had not been put to the accused and non-putting a vital piece of evidence was fatal to the case of the appellant.
Submissions on behalf of the Respondent
Counsel for the respondent opposed the submissions of the appellant and submitted that the offences committed by the appellant were heinous in nature and thus, the trial court had rightly convicted him. It was submitted that the Additional Sessions Judge had considered all the arguments made by the appellant and there was sufficient evidence to prove his guilt beyond a reasonable doubt. Moreover, the FSL Report also indicated presence of semen in the articles seized from the prosecutrix and appellant. Therefore, the judgment passed by the trial court was sound and did not warrant any interference.
Analysis, Law, and Decision
The Court noted that the trial court considered the following facts:
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whether the victim was below the age of majority.
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whether the victim was subjected to penetrative sexual assault.
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whether the penetrative sexual assault was by the victim’s father.
The age of the victim had not been questioned by either of the parties, so point ‘1’ remained unchallenged. The Court noted that the challenge in the present case was regarding points ‘2’ and ‘3’ and noted that the statement under Section 313 CrPC was recorded much before the production of FSL Report and therefore the incriminating evidence was not put before the appellant. The Court opined that the substantial right of the appellant stands violated by not putting entire incriminating material before him and therefore, the Court found it appropriate to ignore the FSL Report to be read in evidence against the appellant and proceeded to decide the matter on merits.
In relation to the testimonies of the witnesses, the Court relied on State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, wherein the Supreme Court regarding the reliability of the statement of the victim, stated that “minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault was enough for conviction and does not require corroboration unless there were compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience”. The same was reiterated in Pappu v. State of Uttar Pradesh, 2022 SCC OnLine SC 176.
The Court also referred Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74, wherein the Supreme Court observed that “generally, if credible, conviction of the accused could be based on sole testimony, without corroboration and that the sole testimony of prosecutrix should not be doubted by the court merely based on assumptions and surmises”.
The Court opined that the testimonies of the victim, mother of the victim and sister of the victim were consistent and did not suffer from any apparent material inconsistencies. Therefore, the conviction could not be interfered with due to inconsistencies in the prosecutrix’s evidence, and the Court did not find any justification to take a contrary view. Accordingly, the conviction and sentence were upheld by the Court.
[Ram Guru v. State (NCT of Delhi), Crl. M.A. 20472 of 2022, decided on 14-11-2022]
Advocates who appeared in this case:
Anu Narula, Advocate, for the Appellant(s);
Utkarsh, Additional Public Prosecutor, for the Respondent(s).
