DELHI HIGH COURT
Sangita Dhingra Sehgal, J.
Mohd. Ishtar @ Istak and Anr. —Appellants
versus
State —Respondent
Crl.A.89 of 2014
Decided on 25.10.2017

IMPORTANT POINT
Conviction can be based on the sole testimony of the prosecutrix, if the same is found to be worthy of credence and can be relied upon in the absence of further corroboration.

Headnote:Indian Penal Code, 1860—Sections 376(2)(g) and 506—Gangrape of prosecutrix, a married woman—Prosecutrix was passing through a lane when two accused-appellants doing maisenary work took prosecutrix into the room and both committed sexual intercourse with her by force and by threats to her—Appeal against conviction—Testimony of prosecutrix was consistent and no material contradictions appeared in her statement—Here absence of injuries on her person would not by it self be a reason to discard her testimony—FSL report showed presence of semen on clothes of prosecutrix as well on clothes of accused—When prosecutrix was helpless victim who could not after serious physical resistance, she could not be disbelieved—Absence of any independent witness in the case was no ground to throw the prosecution case—Conviction and sentence of ten years imprisonment called for no interference.

       Held: The statement of the prosecutrix narrates the entire incidence as to how she was sexually assaulted by the appellants and she has remained consistent, unfettered and invariable during recording of her statements. On perusal of the above statements, it can be seen that there are no material contradictions in the statements of the prosecutrix and the facts regarding the commission of the crime upon her has remained constant and intact. Moreover, it is also to be taken in account that even if there were some minor contradictions, the same were never questioned to her by the counsel for the appellants during is also corroborated with that of other prosecution witnesses. Keeping in view the above, it is a well settled proposition of law that contradictions in the statement of the witness is fatal for the case, however, minor discrepancy or variance in evidence will not make the prosecution case doubtful. In the present case, the testimony of the prosecutrix inspires confidence and can be totally relied upon despite minor contradictions.

       It is to be recalled here that the prosecutrix had mentioned in her statements that she was threatened by the appellants that if she tried to raise an alarm she would be killed by them. Therefore, in these circumstances there is every possibility that the prosecutrix out of fear of death might have not resisted to the extent so as to withstand any injury on her body. Therefore, mere absence of injuries either as a mark of resistance to the advances allegedly made by the appellants or as internal injuries, would not by itself discard the testimony of prosecutrix. Each case requires to be examined on its own facts and circumstances. It is a settled proposition that injury is not sine qua non to prove the offence of sexual act, provided the evidence of the victim does not suffer from any basic infirmity and the probability factor does not render it unworthy of credence.

       After the perusal of the above facts, it is to be seen that similar views were taken in the case of Nannu Gupta @ Bablu v State reported in 2010 II AD (Delhi) 117, semen was found on the underwear of the accused. There was no explanation from the accused as to how the semen came on his underwear, therefore, it was held that the inference is that semen came on his underwear when he attempted to commit rape with the prosecutrix. In the instance case, semen was detected not only on the underwear of the appellant/ Mohd. Ishtar@Istak but also on prosecutrix and no explanation has been given by the appellant for presence of semen on his and victim’s clothes. Therefore, it is another strong corroborative piece of evidence against the appellants.

       In light of the facts and circumstances of the present case, this Court finds no reason to view the testimony of the prosecutrix with doubt, disbelief or suspicion. The evidence adduced so far, by the prosecution, does persuade this court to uphold the guilt of the appellants. The medical and scientific evidence on record also lends assurance to her statement and is sufficient to satisfy the judicial conscience. This Court is therefore satisfied that, implicit reliance can be placed upon the testimony of prosecutrix. Thereby, the circumstances stand conclusively proved by the unimpeachable testimonies of the prosecution witnesses. In view of the settled legal principle, testimony of the prosecutrix herself is sufficient to bring home the guilt of the appellants which, in the instant case, finds corroboration from the narration of the entire incident to her husband, medical as well as scientific evidence, as such the Trial Court rightly convicted the appellants by holding that the prosecution has succeeded in establishing the case beyond reasonable doubt. (Paras 26, 31, 35 and 39)

       Result: Appeal dismissed.