Shiv Shankar vs State Of Haryana

Jaishree Thakur, J

The instant criminal appeal has been preferred by the appellant/accused against the judgment and order dated 04.09.2013 and 6. 09.2013

respectively passed by the Additional Sessions Judge, Gurgaon, whereby, the appellant was convicted and sentenced to undergo rigorous imprisonment

for a period of 10 years and to pay fine of ` 50,000/- under Section 6 of POCSO Act and in default of payment of fine, to undergo further rigorous

imprisonment for period of 01 year in case FIR No.58 dated 24. 02.2013, registered under Section 376 of Indian Penal Code and Section 6 of POCSO

Act at Police Station Sector 10, Gurgaon.

In brief, the facts of the case are that, on 24.2.2013, complainant-Shripat moved a complaint to the police that he was living with his family in a

rented room in the house of one Rajesh. His daughter (victim), who was about 8 years old, used to stay alone at home when he and his wife used to

go for work. The accused was residing in the adjoining room. On 20.2.2013, after the complainant and his wife had gone for work, the accused

enticed away his daughter to his room and committed rape upon her. When the complainant and his wife came back from the work in the evening,

their daughter disclosed about this incident to her mother, who specifically named the accused responsible for this bad act. Thereafter, the complainant

and his wife went out in search of the accused, but he could not be found.

On the basis of aforesaid complaint, the instant case FIR was registered. During investigation, statements of the victim, her mother and one Birma

were recorded. The accused was arrested. Rough site plan was prepared. Medical examination of the victim was conducted. Statement of the victim

was got recorded under Section 164 Cr.P.C. During the course of investigation, statement of the witnesses were recorded and after completing the

investigation, challan was presented in the court.

Copies of the challan and other documents were supplied to the accused free of costs and thereafter, the case was committed to the Court of

Sessions. The accused was charge-sheeted under Section 376 of Indian Penal Code and Section 6 of POCSO Act, to which he pleaded not guilty and

claimed trial.

During trial, the prosecution examined victim herself as PW1, Dr. Alka Singh as PW2, Smt. Bhuri Devi as PW3, Shripat as PW4, Suresh Yadav as

PW5, Ashok Kumar as PW6, Constable Suresh Kumar as PW7, Constable Suman as PW8, Dr. Yogender Singh, Medical Officer as PW9, Dr. B.B.

Aggarwal as PW10, Girish Kumar, Draftsman as PW11, Dr. Sumit Malik, Dental Surgeon as PW12, EASI Suresh Kumar as PW13, Constable Om

Parkash as PW14, Constable Makhan Singh as PW15, Sh. Joginder Singh, JMIC, Gurgaon as PW16 and Inspector Hans Raj as PW17. Thereafter,

evidence of the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C. in which all the incriminating

circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those

circumstances and pleaded false implication.

After hearing learned counsel for both the sides, the trial court convicted and sentenced the appellant, as reflected above.

Mr. Munish Kumar Garg, learned counsel appearing on behalf of the appellant argues that no case is made out against the appellant under Section 6

of POCSO Act. It is submitted that there are material contradictions in the statement of mother of the victim PW3 and father of the victim PW4, but

the trial court has ignored the material discrepancies in the prosecution story. It is argued that the report of chemical examiner has not supported the

allegations of the prosecution, which reflects that no semen was detected. It is also contended that as per statement of Dr. Alka Singh, victim had not

been raped or forcibly sexually assaulted, apart from the fact that there was no injury on her person. It is also argued that there is delay of 04 days in

lodging the FIR, which has not been explained by the complainant, but this fact too has been ignored by the trial court. In support of his arguments,

learned counsel for the appellant relied upon judgments rendered in Abhay Singh vs. State, Criminal Appeal No.968 of 2015 decided on 26.07.2017 by

the Delhi High Court, State (Govt. of NCT of Delhi) vs. Mohd. Rihan, 2017(2) JCC 1451, Vijay vs. The State of Maharashtra, 2017 ALL MR (Cri)

1501, State vs. Mahender Sahni, 2017(5) AD (Delhi) 401, Tameezuddin @ Tammu vs. State of (NCT) of Delhi, 2009(4) RCR (Criminal) 345.

Per contra, Ms. Gaganpreet Kaur, learned AAG appearing on behalf of the respondent-State argues that all the arguments so raised before this

court, were also raised before the trial court, which have been dealt in detail by the trial court. She submits that the judgment and order passed by the

trial court are well reasoned and no ground is made to interfere with the same. It is also contended that in the instant case, a minor, aged 8 years, has

been raped by the appellant, therefore, the instant appeal is liable to be dismissed. In support of her arguments, learned State counsel relied upon

judgments rendered in Rajinder Kumar vs. The State (Govt. NCT of Delhi), Delhi, 2016(2) JCC 1379R, adhakrishna Nagesh vs. State of Andhra

Pradesh, 2013(1) RCR (Criminal) 659, Wahid Khan vs. State of Madhya Pradesh, 2010(1) RCR (Criminal) 151, State of Karnataka vs. Revannaiah,

2005(3) RCR (Criminal) 862, Parmod Chand vs. State of Himachal Pradesh, 2014(9) RCR (Criminal) 790, Daljit Singh vs. State of Punjab, 2014(2)

RCR (Criminal) 582.

I have heard learned counsel for the parties, apart from perusing the record of the trial court, with their assistance.

The trial court while dealing with the question of delay in lodging of the FIR, has observed that where an eight years old girl has been raped, the

parents would normally take some time to report the matter to the police. PW3 Smt. Bhuri Devi was cross-examined by learned counsel for the

accused, however, no question was asked to the witness on the point of delay. Similarly, when PW4 Shripat appeared he was only asked as to when

the matter was reported to the police. He responded that the matter was reported on 24.02.2013. Under these circumstances, the delay is not fatal to

the case of the prosecution. This court has duly considered the arguments of learned counsel for the appellant, however, does not find any force

behind it. In the instant case, the complainant family belongs to the lower strata of the society. Generally, when an offence is committed against a girl,

the family members of such girl, keeping in mind the future of the girl and other prospects of her life and after due consultation with the relatives,

report the matter to the police. Under the facts and circumstances of the present case, delay of 04 days in lodging the FIR, involving the offence of

rape upon a minor girl of 08 years, is not fatal to the prosecution case.

During the course of arguments, learned counsel for the appellant while referring to the chemical examiner report as well as evidence of the

doctor, argued that the medical evidence has not supported the case of the prosecution, which shows that the appellant has been falsely implicated in

the present case.

Firstly, this court has minutely gone through the testimony of child victim PW1, in which she has stated that “I had gone to a shop to buy hair

oil. The accused sitting in the court caught hold of my hand and took me away to his room. He asked me to lie down. When I refused he slapped me.

He removed my clothes. Then he opened his zip and took out his penis (the witness has used vernacular term for the male organ). It was very black in

colour. He then asked me to take it in his hands. He then put it in the place from where I pass urine and started moving forward and backward. He

then passed white coloured urine. I started screaming. He then closed my mouth with his hand. He then gave me money for purchasing

“Kurkure†and asked me not to tell about the incident to anyone. He then asked me to go home.....â€. In her statement recorded before the

Magistrate under Section 164 Cr.P.C. (Ex.PA) she narrated the same episode and there is no inconsistency in the statement of the child victim.

Now this court turns to the medical evidence produced in this case. PW2 Dr. Alka Singh, who medico legally examined the child victim in the

present case and proved the MLR Ex.PB. She reported that “Hymen admits tip of finger. Margins regular, healthy. No bleeding present.†In her

opinion, possibility of sexual assault and attempt of sexual intercourse in this case cannot be ruled out. While appearing into the witness box as PW2,

she replied to the specific question as under;

“Q. If only the tip of the male organ is inserted into the vagina of a small child then there is possibility of the margins being regular and there being

no injury to the hymen? Ans. Yes. In such a case where only the tip of the male organ is inserted, there would normally be no injury to the hymen and

the margins would also appeared to be regular. Volunteered that when the child was examined the history of sexual assault was of 4 days prior to the

examination and in children the healing is very fast and the margins start healing immediately.â€​

As per the chemical examiner report Ex.P9 “Human semen was detected on exhibit-3 (underwear). However, semen could not be detected on

exhibit-1 (Vaginal swabs) & exhibit-2 (Pyjami). In the MLR Ex.PB, it is mentioned that the victim was brought for medical examination on 24.02.2013

at 9.45 p.m. when the alleged history of sexual assault/intercourse on 20.02.2013 at 10.30 a.m. by a 40 years old man.

It is settled law that even partial or slight penetration is sufficient to make an offence of rape and depth of penetration is immaterial. Penatration

may not always result in tearing of the hymen and the same will always depend upon the facts and circumstances of a given case. For this purpose,

this court relies upon Rajinder Kumar vs. The State (Govt. NCT of Delhi), Delhi, Radhakrishna Nagesh vs. State of Andhra Pradesh, and Wahid

Khan vs. State of Madhya Pradesh (supra). If the statement of the child victim recorded in the court as PW1, her statement recorded before the

Magistrate as under Section 164 Cr.P.C., her MLR Ex.PB and the chemical examiner report are read together, it comes out as per the child victim,

the appellant put his penis on the vagina of the child victim and started moving forward and backward and it is when the appellant passed while

coloured urine, she started screaming. In order words, the appellant did partial penetration upon the child victim of eight years old, which fact is duly

supported by the MLR of the child victim Ex.PB, as per which hymen admits tip of finger. Further, while appearing into the witness box PW2 Dr.

Alka Singh, who medico legally examined the child victim has categorically stated that “In such a case where only the tip of the male organ is

inserted, there would normally be no injury to the hymen and the margins would also appeared to be regular. Volunteered that when the child was

examined the history of sexual assault was of 4 days prior to the examination and in children the healing is very fast and the margins start healing

immediately.†So far as chemical examiner report is concerned, the occurrence in the instant case took place on 20.02.2013 at 10.30 a.m. whereas,

her medical examination was conducted on 24.02.2013 at 9.45 p.m. This court cannot loose sight of the fact that there is a gap of 04 days in the

medical examination of the child victim, from the date of the occurrence, as such, absence of semen cannot nullify the sexual assault upon the child

victim. Absence of injury or mark of violence on the private part on the person of the child victim is of no consequence, when the child victim is aged

08 years. Under these circumstances, it is clearly made out that the child victim, was subjected to rape by the appellant.

So far the argument raised regarding material contradictions or discrepancies is concerned, this court has minutely gone through the statements of

the prosecution witnesses in the record of the trial court, however, the learned counsel for the appellant failed to point out any material contradiction or

discrepancy in the same. So, this argument of learned counsel for the appellant is not sustainable.

The case laws relied upon by learned counsel for the appellant are not applicable to the facts and circumstances of the present case and are totally

distinguishable. In Abhay Singh's case (supra) there were allegations of rape levelled by the child victim against her own father and in that case, the

child victim had made improvements while recording her statement under Section 164 Cr.P.C., from her version given in the complaint. Considering

the peculiar facts and circumstances of that case coupled with the medical evidence, punishment was altered from Section 376 to 376/511 of Indian

Penal code. The case in hand is distinguishable to the extent that in the instant case there is no improvement in the statement of the child victim and

her version is consistent throughout. Further, in the present case medical evidence clearly proves that the offence as described under Section 6 of

POCSO Act has been committed, which was not so in Abhay Singh's case (supra). In State (Govt. of NCT of Delhi) vs. Mohd. Rihan (supra) the

accused persons were acquitted by the trial court taking into account the material improvements and contradictions in the testimonies of the

prosecutrix, her mother and her father, which were not supported by any other evidence and the said judgment of the trial court was upheld by the

Apex Court. Whereas, in the instant case, the testimony of the victim, her mother and her father are consistence and do not contradict one another in

any manner and fully support the prosecution version, as such, judgment rendered in the case referred to is of no help to the appellant. In Vijay vs.

The State of Maharashtra (supra), the Apex Court while noting the material contradictions and omissions in the statement of the prosecutrix, coupled

with the ill-treatment meted out to the accused in that case by the police and the fact that accused was not capable of performing sexual intercourse,

had acquitted the accused. On the other hand, in the instant case, as already stated the statement of the child victim is consistent. Furthermore, in

Vijay's case (supra) there was specific opinion of PW6 Dr. Ravikiran Pore that the accused therein was incapable of performing sexual intercourse,

which formed one of the basis for acquittal of the accused, however, in the instant case as per MLR of appellant Ex.PF, the doctor has opined that he

was capable of performing sexual intercourse, as such, facts of Vijay's case (supra) are distinguishable. In State vs. Mahender Sahni (supra), the

accused took the defence of a monetary dispute pending between him and his brother on one side and parents of the victim on the other and also

examined two witnesses to support the same, however, despite being cited as a witness, father of the prosecutrix was not examined and the statement

of the prosecutrix was not found believable upon material points of the case, having been tutored by her parents, coupled with the medical evidence.

Considering the totality of the peculiar facts and circumstances of the case, the accused in that case was acquitted, whereas, in the instant case the

statement of the child victim and her parents inspire confidence of the court being consistent on all material points. Moreover, the accused failed to

establish on record any previous enmity with the parents of the child victim nor has he led any evidence in his defence to this effect. In Tameezuddin

@ Tammu's case (supra) statement of two or three persons who were present in the factory premises, where the occurrence in that case took place,

were recorded under Section 161 Cr.P.C. during the course of investigation, however, both these witnesses were not examined in the court. In that

case, blood samples of the accused were also not taken, to match the same with the semen detected upon the vaginal swabs and salwar of the victim.

Therefore, acquittal in that case was based on the fact that the medical evidence was qualitatively flawed and that the independent witnesses of the

occurrence, despite being cited as witnesses, had not been examined. However, in the instant case, there are no such infirmities found in the

prosecution case.

As already discussed, in the case in hand, the statement of the child victim is consistent throughout. She stood by her statement recorded before

the Magistrate under Section 164 Cr.P.C. and while appearing into the witness box as PW1. More so, there is no improvement in her statement.

Further, in the instant case, there is medical of the accused (Ex.PF) to the effect that there is nothing to suggest that the appellant was incapable of

performing the sexual intercourse. Moreover, there is nothing on record to suggest that there was any previous enmity between the parents of the

child victim and the appellant nor any such defence has been set up during the cross-examination of the prosecution witnesses. In the absence of any

prior animosity or ill-will, victim's parents are not expected to level such a serious allegation upon the appellant, to bring their minor daughter to

disrepute. No irregularity in conducting the investigation of the present case has been pointed out either before the trial court or even before this court.

In view of the foregoing discussion and ratio of law, this court does not find any irregularity or illegality in the impugned judgment and order of the

trial court. The appeal in hand is hereby dismissed. Intimation be sent to the quarter concerned in this court.