CRL.L.P.589/2018

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 11.03.2019

Judgment Delivered On: 29.04.2019

CRL.L.P 589/2018

STATE (NCT OF DELHI)

...... Petitioner

versus

JITENDER SHARMA

...... Respondent

Advocates who appeared in this case:

For the Petitioner

: Mr. Ravi Nayak, APP with SI Sandeep, PS- Begumpur, Inspector

Suman Kumari, Community Policing Cell, Outer District

For the Respondent

: Mr. Manu Sharma, Ms. Mahima Wahi and Mr. Kartik Khanna,

Advocates

CORAM:

HON’BLE MR. JUSTICE SIDDHARTH MRIDUL

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

J U D G M E N T

SIDDHARTH MRIDUL, J.

1.

There can be no manner of doubt that a conviction for committing

penetrative sexual assault can be sustained on the sole testimony of the

prosecutrix. [Ref: State (GNCT Of Delhi) vs. Vicky @ Karan & Anr.

reported as 2019 (1) JCC 322; State (GNCT Of Delhi) vs. Kuldeep @ Kallu

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& Anr. reported as 2019 (1) JCC 298 (Del); Boby vs. State, Crl.A

1119/2014; Vishnu (alias) Undrya vs. State of Maharashtra reported as

(2006) 1 SCC 283; State of M.P vs. Dayal Sahu, reported as (2005) 8 SCC

122)]. However, it is equally well established that, the testimony of the

prosecutrix must be creditworthy and inspire confidence.

2.

The State has instituted the present petition seeking grant of leave to

assail the judgment dated 30.05.2018, in Session Case No.21/2013, arising

out of FIR No.19/2013 (hereinafter referred to as the ‘subject FIR’) under

sections 376 Indian Penal Code, 1860, read with sections 04 of Protection of

Children from Sexual Offences Act, 2012 (for short ‘POCSO’) registered at

Police Station-Begumpur, Delhi; whereby the respondent Jitender Sharma

was acquitted of the aforementioned charges.

3.

The gravamen of the charge, for which the appellant has been

convicted, is for having committed rape upon his own daughter/the

prosecutrix, a girl aged about 13 years, at the time of commission of the

offence.

4.

The facts of the case as borne out from the record are that on

17.01.2013 vide DD No.26A, on a PCR call was recorded regarding rape by

father with his daughter, aged 8 years at H.No B-1970, Kashmiri Block, Jain

Nagar, Delhi. SI Dinesh along with Ct. reached the house where the mother

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of the victim met and reported rape by her accused husband with two minor

daughters V aged 8 years and M aged 13 years. NGO was called and victims

were taken to SGM hospital where they were medically examined and the

complainant S gave her statement that she is a house wife and has four

daughters and a son and her husband runs a factory. On 11.01.2013, her

husband committed wrong act with daughter V after taking her to some other

room and also threatened her not to tell anything to anyone or else she will

be killed. On 13.01.2013 when she was cleaning the house, she found one

blood stained underwear of victim V under the bed. On inquiry, she told that

her father lifted her from the bed in the night and lied her on a sofa and gave

her some tablet after which she was feeling sleepy and then he inserted his

‘shushu wali jagah in her shushu wali jagah’ and when she was feeling pain

then her father again brought her back to the bed. She was conferring about

this incident with her family members and did not report the commission of

the offence to the police, but when her elder daughter M who was living

with her maternal grandmother came and informed that, her father

committed wrong act with her, as well, which the former did not disclose

because of fear, the complainant came to Police Station and lodged the FIR.

After medical examination of the victim M, her statement u/s 164 Cr.P.C.

was recorded. IO collected the date of birth proof of the victim and sent

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sample (cotton wool swab on a wooden stick of victim M ) to the Forensic

Science Laboratory (hereinafter referred to as ‘FSL’). The accused was

a