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IN THE HIGH COURT OF JUDICATURE AT PATNA
Birendra Kumar, J.
Ahtesham Khan @ Atesham Khan @ Ahtesham S/o Wasim Khan – Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (SJ) No.2831 of 2019
Decided On : 06-04-2021
Indian Penal Code, 1860 – Section 376 – Protection of Children from Sexual Offenses Act, 2012 – Section 4 – Rape of minor girl – Conviction and sentence – While appreciating evidence of victim of sexual assault, it should be treated on a par with evidence of an injured witness – A girl or a woman in tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred – She would be conscious of danger of being ostracized by society – When in face of these factors, crime is brought to light, there is inbuilt assurance that charge is genuine rather than fabricated – In normal course, Indian Women has tendency to conceal such offence even before her family members much less before public or before police – Testimony of prosecutrix to some extent, stands on higher pedestal than that of an injured witness – Corroboration is not an imperative component of judicial credence in every case of rape – Refusal to act on testimony of victim of sexual assault, in absence of corroboration as a rule, is adding insults to injury – If Doctor, who examined victim, does not find sign of rape, it is no ground to disbelieve sole testimony of prosecutrix – If totality of circumstances appearing on record of case discloses that prosecutrix does not have strong motive to falsely implicate person charged, Court should ordinarily have no hesitation in accepting her evidence as no self-respecting women would come forward to make a self-humiliating statement in casual manner. (Para 7)
Protection of Children from Sexual Offenses Act, 2012 – Section 4 – Indian Penal Code, 1860 – Section 376 – Rape of minor girl – Conviction and sentence – Rapist not only violates victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process – Rape is not merely a physical assault, it is often destructive of whole personality of victim – Court shoulders greater responsibility and must deal with such cases with utmost sensitivity – Broader probabilities of case should be examined and not minor contradictions or insignificant discrepancies in statement of prosecutrix which are not of a fatal nature, should come in way to otherwise reliable prosecution case – However, accused must also be protected against possibility of false implication – Prosecutrix should be in a position to withstand cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to factum of occurrence, person involved, as well as sequence of it – There is nothing in cross-examination to say that she has improved her version or is inconsistent with her previous statement in matter of manner of occurrence, place of occurrence or time of occurrence or in any other material particular – It is not necessary that hymen be ruptured in every case – Statute merely requires medical evidence of penetration, this may occur and hymen may remain intact – Absence of spermatozoa, on date of examination of victim, after five days of occurrence, is obvious in absence of specific evidence that victim had not taken bath for five days – For same reason, victim cannot be disbelieved that she had bleeded during incident, for Doctor has not found any sign of bleeding – Finding of redness around the vaginal opening, suggests a case of vulval penetration to constitute offence of rape which is consistent with claim of prosecutrix that she was ravished – There is nothing on record to specify nature of penetration meted to victim – Even if there is some suggestion that appellant was called at house of victim by victim herself could not make any difference as victim was of age making her incapable of giving valid consent – Delay in lodging of FIR is well explained – There is no reason to disbelieve or discard trustworthy testimony of victim – Since Trial Judge has awarded minimum punishment prescribed under law, same requires no interference – Impugned judgment and order are affirmed – Appeal dismissed. (Paras 7 to 16)
JUDGMENT :
The sole appellant, above named, faced trial before learned Additional Sessions Judge-I-cum-Special Judge under POCSO Act at Katihar in connection with Katihar Town P.S.Case No.560 of 2017 corresponding to G.R.No.3536 of 2017 and C.I.S.No. 843 of 2017. The learned Trial Judge found the appellant guilty for offence under Section 376 I.P.C. as well as under Section 4 of the POCSO Act by the impugned judgment dated 27.05.2019. Ten years rigorous imprisonment besides fine of Rs.50,000/-was awarded vide impugned order dated 30.05.2019. In default of payment of fine, one month imprisonment was ordered for offence under Section 376 I.P.C. However, no separate sentence was passed for offence under Section 4 of the POCSO Act. On deposit of the fine Rs. 40,000/- was ordered to be given to the victim.
2. The prosecution case, as disclosed in the written report of Mr. Kishore Sah (P.W.6), the father of the victim girl, is that on 04.08.2017 (Friday) at about 11.30 A.M., he had telephonically called the appellant, a T.V. Mechanic, to his house in Mohalla-Vivekanand Colony, P.S.-Town, Town & District-Katihar for mending the Television. The informant left for the market as he was in business of vegetables. Only the victim girl, aged about 14 years, was there in the house. The victim was a student of Shyama Sanskrit Middle School in Class-VI. The appellant, taking advantage of the loneliness of the victim in the house, ravished her. The victim disclosed about the occurrence to the informant and on 08.08.2017 at 9.00 A.M., the appellant again came to the house of the informant where the people caught and assaulted to the appellant and handed over to the police.
The FIR of the occurrence was lodged on 08.08.2017. After investigation, the police submitted charge-sheet and the appellant was put on trial.
The prosecution examined altogether eight witnesses to prove the charges against the appellant and the defence produced three witnesses, mainly to substantiate that this is a case of false implication as appellant had money due with the informant, some for mending the Television and the rest which was advanced as loan to the informant.
3. Mr. Vikramdeo Singh, learned counsel for the appellant contends that prosecutrix is not corroborated by medical evidence vide medical report at Ext.1 and evidence of Dr.Kanak Ranjan P.W.5 and rest of the witnesses namely, P.W.1, Pramila Devi, the mother of the victim, P.W.2 Murari Chaudhary, P.W.3 Kishore Kumar, P.W.4 Kishan Pal, P.W.6 Kihore Shah, the father of the victim, are hearsay witnesses. P.W.7 is the prosecutrix herself and P.W.8 Nityanand Pandey is Investigating Officer of the case, who has simply supported the investigation done by him. Learned counsel for the appellant next contends that there is delay of four days in reporting the matter to the police, hence chances of deliberations and concoctions cannot be ruled out. Moreover, appellant is in jail since 08.08.2017.
4. To contra, learned counsel for the respondent contends that plurality of the witness is not the requirement of law and conviction is permissible even on sole testimony of the prosecutrix. For minor discrepancies a victim of rape cannot be looked upon with suspicion. The victim is consistent in her statement before the police, before the Magistrate under Section 164 Cr.P.C. and before the trial court. The medical report does not suggest that the opinion was conclusive that no rape was committed. Moreover, the Doctor is an expert of physical observation noticed on examination and not an expert to say whether rape was committed or not. The acts to constitute rape are well defined in Section 375 I.P.C. Other witnesses have corroborated the prosecutrix as hearsay witnesses of the occurrence and the learned Trial Judge has considered the evidences, in details, while recording the judgment of conviction. Learned counsel further submits that a minor delay of four days in reporting the matter to the police is immaterial. The offence was
The sole testimony of a victim in sexual assault cases can sustain a conviction if credible, without the necessity for corroboration.
The conviction for sexual assault can be based solely on the victim's credible testimony, and the POCSO Act mandates minimum sentences for such offences against minors.
The testimony of a victim in a rape case can be sufficient for conviction, and delays in reporting do not automatically undermine credibility, particularly in cases involving minors.
The sole testimony of the prosecutrix can be the sole basis for conviction in cases of sexual offences, and there is no legal compulsion to seek corroboration of her statement, as long as it inspires....
The Court established that a victim's testimony can suffice for conviction in rape cases, even without medical corroboration, provided it is credible.
The victim's testimony, if found reliable, can form the sole basis for conviction under the POCSO Act, and legal presumption against the accused places the burden of rebuttal on the defense.
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