Delhi High Court
Rajesh Tiwari vs State on 15 September, 2017
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
$~R-12
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 727/2014
Judgment reserved on 05th September, 2017
Judgment pronounced on 15th September, 2017
RAJESH TIWARI ..... Appellant
Through: Mr. Vikas Padora, Advocate
Versus
STATE ..... Respondent
Through: Mr. Mukesh Kumar, APP for the State.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
CRL.A. 727/2014
1. The present appeal has been instituted by the appellant under
Section 374 of the Code of Criminal Procedure, 1973, (hereinafter
referred as "Cr.P.C.") against the impugned judgment dated
24.09.2012 and order on sentence dated 28.09.2012 passed by the
Court of ASJ, Rohini Courts, Delhi, (FIR No. 75/2011, P.S. Aman
Vihar, New Delhi), whereby the Appellant was convicted under
Section 376(f) and 506 of The Indian Penal Code, 1860
(hereinafter referred to as "IPC") and for the offence punishable
u/s 376(f) IPC, he has been awarded rigorous imprisonment of ten
years and a fine of Rs.20,000/-, and in default of fine, to further
undergo six months simple imprisonment. Further, the convict was
also sentenced for three years rigorous imprisonment with a fine of
Rs.5000/- for offence punishable under Section 506 IPC, in default
Crl. A. 727/2014 Page 1 of 27
of fine, he shall further undergo simple imprisonment for three
months.
2. The case of the prosecution as observed by the Trial Court vide its
order dated 24.09.2012 is that: -
"...........at about 12 noon she was playing holi in the
street , when her maternal uncle hereinafter called as
Mausa (husband of her mother sister) asked her to bring
milk and called her to his house for bringing dolchi (a
kind of utensil used to carry milk) and when she reached
at his Mausa house and was about to lift the dolchi, her
Mausa bolted the Kundi of the door, she asked him that, „
what he has done‟, her mother will search her‟, on which
her Mausa slapped her and thereafter took her into
kitchen, where he forcefully removed her jeans panty and
kachi (underwear) and also removed his pant and got
naked. She tried to raise alarm, but he pressed her mouth
and thereafter forcefully committed wrong act
(galatkaam) after lying down her on the mattress (gudri)
on the floor of kitchen. After committing wrong act he
threatened her that if she disclose anything, then he will
lift her and her parents. Thereafter, she came back to her
house and did not tell anything as she was afraid and her
mother was also not well. She further stated that she was
feeling pain in her private parts and blood was coming
out when her mother woke up, she told entire incident to
her mother. Her mother called one Sunita (Riste ki
mausi) and thereafter, her maternal uncle (Mama) took
her to the hospital."
3. During trial, the prosecution relied upon sixteen witnesses. The
statement under Section 313 Cr.P.C. were recorded wherein the
appellant denied all the incriminating circumstances appearing in
evidence against him and claimed to be falsely implicated in the
case.
Crl. A. 727/2014 Page 2 of 27
4. After considering the evidence on record and the contentions of
the parties, the Trial Court held the appellant guilty for the
offences under Sections 376 (f) and 506 IPC. Hence, the present
appeal.
5. Mr. Vikas Padora, counsel for the appellant challenged the
impugned judgment being perverse, based on conjectures and
surmises and is not properly supported by the evidence/material
on record; that there are material contradictions in the
statements of the prosecutrix and the Trial Court has erred in
relying on the testimony of the Prosecutrix which culminated in
the conviction of the appellant; that there were material
contradictions in the testimonies of other prosecution witnesses
which had been ignored; that the blood stain which was found
on the alleged mattress (Gudri) was never proven by the
prosecution to be that of the appellant; that the appellant has
been falsely and erroneously implicated in the present case by
the family members of the appellant's wife, as the marriage was
a love marriage and was solemnised against their (wife's
family) will; that the present case is wholly based on
circumstantial evidence and the prosecution had miserably
failed in completing the chain of events, in order to prove the
guilt of the appellant.
6. On the other hand, Mr. Mukesh Kumar, learned Additional
Public Prosecutor for the State contended that the prosecutrix
was a minor when the heinous crime of rape was committed on
her; that the testimony of the prosecution witnesses and MLC
Crl. A. 727/2014 Page 3 of 27
report of the prosecutrix 'P' had proved the commission of the
crime beyond any reasonable doubt; that the testimonies of the
other prosecution witnesses were sound and duly corroborated
with each other; that the presence of blood stain on the mattress,
which was recovered from the house of appellant further
establishes the case of the prosecution; that not only the version
of the prosecutrix is clear and unambiguous, but the medical
evidence(s) further establishes the case of the prosecution; that
the prosecution had proved his case on all counts and hence no
interference is called for by the Hon'ble Court.
7. I have heard learned counsel for the parties and have also
perused the material available on record and considered their
rival submissions. The counsel have also taken us through the
record of the trial court and the testimonies of the witnesses.
STATEMENT OF PROSECUTRIX : PW-5
8. The case of the prosecution is primarily based on the testimony of
prosecutrix. At the outset, it is relevant to rummage through her
testimony. The Prosecutrix (PW-5) during her Examination-in-
Chief deposed as under:
"I was studying in 4th class at the time of incident i.e. On
20thMarch, 2011, on that day at about 12 Noon, I was
playing in the gali outside my house, along with children
of the neighbourhood. At that time, my Mausa Rajesh,
accused present in the court today (correctly identified
by the witness) came from the house of his sister, which
is also situated in the next street of my house and asked
me to bring milk from the market. I went to the house of
accused Rajesh to take the utensil (Dolchi), which is also
Crl. A. 727/2014 Page 4 of 27
situated near to my house, which is at a distance of one
street i.e. Gali No. 3 in the same village. My mausa i.e.
Accused also came there when I was taking the Dolchi,
which was hanging on the wall of the room, and bolted
the door from inside (kundilaga li). When I had asked my
Mausai.e. Accused, „What is he doing," then he asked me
to „keep quiet (ChupHoJao)‟, then he slapped me and
took me inside the kitchen. Thereafter, accused removed
my jeans and thereafter underwear (kachi). Then my
Mausa i.e. accused Rajesh Tiwari had committed wrong
act with me ( He put his urinating part into my private
part and thereafter he threatened me that if I had told the
said incident, then he will get kidnapped my father, as
well as , my mother (Yadi Tu Kisi Ko Bataygi to tere
Papa Ko Uthwa Dunga aur Mummi Ko Uthwadunga).
After wearing my clothes, I came back to my house. At
that time I was frightened.
Thereafter , my mother came to the house and I had
narrated the entire incident to my mother. My mother
had called my Mausi namely Sunita (not the wife of the
accused). My Mama namely Shiv Kumar was also called.
Thereafter, my Mausi, my mother and My Mama
(maternal uncle) took me to the hospital. There doctor
medically examine me.Thereafter, two police officials
came there and recorded my statement Ex.PW5/A, which
bears my signatures at point A. When i was medically
examined by the doctor, the said doctor had also taken
my clothes, which I was wearing. I remained admitted in
the hospital and discharged on 25.03.2011 and then i
came back to my house.
Thereafter, I was taken before Judge by the police
officials, who had recorded my statement.
XXXXXX The statement u/s 164 Cr.P.C is shown to the
Magistrate, which is Ex. PW5/B, which bears her
signatures on all the pages at point A, B and C
respectively. I can identify my clothes if shown to me, it
was jeans and one undergarment (kachi).
Crl. A. 727/2014 Page 5 of 27
At this stage, one sealed pullanda, sealed envelope with
the seal of FSL NK Delhi is produced by the MHC(M),
same is opened, it found containing two envelops, and
one of the envelop, which is unsealed opened and it found
a blue colour jeans and having some blood stained marks
and one underwear (kachi) are taken out, which are
shown to the witness and witness identified both the
clothes, as her own, which she was wearing at the time of
incident."
During Cross Examination the prosecutrix deposed as under: -
"XXXX The accused after the incident had asked me to
go (bhagadiya) and he went away from the house after
locking the same. I had raised the alarm when accused
committed galatkaam with me. When I reached at the
house of my nani, there I met first with my mother and
nani. I had not told about the incident to my mother, nani
or my mausi immediately after reaching at the house of
my nani. XXXXX"
9. After going through the statements of the Prosecutrix, it is
summarily clear, that the deposition of Prosecutrix has remained
consistent, unfettered, invariable and even, throughout the entire
process of recoding of her evidence in the present case. There are
no lacunae in the entire process of recording of evidence of the
Prosecutrix which can pin point to any inconsistency and/or
contradiction in her deposition.
STATEMENT OF OTHER MATERIAL WITNESSES
10. Before dealing with the arguments of the parties, it would be useful
to examine the testimonies of the other witnesses i.e.; PW-6
Smt.Sunita (OT Technician, Siddarth Hospital), PW-7 Smt. Rekha
Tiwari (Mother of Prosecutrix), PW-8 Shiv Kumar (Uncle of
Crl. A. 727/2014 Page 6 of 27
Prosecutrix) and PW-16, S.I. Mahavir Singh (Investigating
Officer):
11. PW-6 Smt. Sunita / Mausi (OT Technician, Siddarth Hospital)
deposed as under: -
".....On 20.03.2011 at about 2/2.30 p.m. I had
received a call from Rekha, to whom I treat as
sister (Muboli Sister). She told me that, Roshini‟s
condition was not well, and she asked me to reach
at her house. Therafter, i reached at the house of
Rekha which is situated near Parvesh Model
School, Parvesh Nagar, Mubarakpur, Delhi and
saw that Roshini D/o. Rekha, who was ten year
girl, was lying on the bed and she was having pain,
then i asked her, what had happened with her‟,
then she told about the incident. I also noticed that
there was heavy bleeding from the private parts of
the Roshini. She had also told me that, her Mausa
Rajesh ( who is present in the court, correctly
identified by the witness) had committed sexual
intercourse with her. I know the accused Rajesh,
as he along with his wife have once visited to my
house on earlier occasion for home work and I had
also seen him on many occasion at the house of
Rekha.
Thereafter, I called the Maternal uncle (Mama) of
the Roshni, namely Shiv Kumar, he came with his
motorcycle and Ialongwith her mama took her to
the SGM Hospital. Her mother also reached there
in the hospital in a separate vehicle.XXXXXX"
...After sometime, police officials also reached
there and I also narrated them about the incident
and recorded my statement.XXXX "
Crl. A. 727/2014 Page 7 of 27
12. PW-7, Smt. Rekha Tiwari (Mother of the Prosecutrix) deposed as
under: -
"XXXXXX On the next day i.e. 20.03.2011 at
about 2/2.30p.m. I went to take bath. My mother
told me that, Roshni is not feeling well, then I came
on the ground floor of the house, where Roshni
was lying on the bed, then I asked her, what has
happened beta, she told me that, she is having pain
in her stomach, when i removed her quilt (Razai)
to see her stomach, I noticed that blood on that
pant, which she was wearing near the
stomach.Then I asked from her, what has
happened, then she told me the entire incident and
asked me not to take any action against Rajesh
Mausa. She told me that, Mausa Rajesh, (who is
present in the court today who is husband of my
real sister namely Geeta) had asked her to bring
milk and when went to the house of Rajesh, the
accused Rajesh also came there and committed
sexual intercourse with her.
Thereafter, I made a call to my friend Sunita and
asked her to reach my house immediately. She
came to my house and checked my daughter
Roshni and she called my brother Shiv Kumar. She
and my brother Shiv Kumar took my daughter
Roshni to the SGM Hospital on the motorcycle of
Shiv Kumar. I also reached there in a private auto.
My daughter Roshni was admitted in the hospital
for her treatment, I had given address of my
mother‟s house to the doctors in the MLC of my
daughter‟s Roshni.XXXXXX
Thereafter, police officials also reached there and
recorded the statement of my daughter „P‟, as well
as my statement.The clothes of my daughter ,
which she was wearing was taken by the doctor.
Crl. A. 727/2014 Page 8 of 27
Roshni is my daughter and at present she is 11
years of age and studying in class 5th in the
Government Girls School, Mubarkpur,
DelhiXXXXXX.
At this stage, clothes i.e; One jeans and
undergarment (Kachi), which was taken out from
the pullanda, opened earlier at the time of
recording statement of the Prosecutrix, is shown to
the witness, which she correctly identified i.e;
jeans and undergarment as of her daughter, which
are already exhibited as Ex.P1 and Ex. P2.XXXX "
13. PW-8, Shiv Kumar (Maternal uncle) deposed as under: -
"XXXX At about 3/3.15 pm, I received phone call
from Sunita, who was working with me at the said
hospital and she called me immediately at my
house, as the condition of „P‟ was not good. I
immediately reached my house and found that
condition of my Bhanji„P‟ was not good and
thereafter, I alongwith Sunita immediately took „P‟
was not good and thereafter, I alongwith Sunita
immediately took „P‟ to SGM Hospital. On the way
to the hospital, Sunita told me that, Rajesh Tiwari
(my brother in law) committed rape with „P‟.
Thereafter, „P‟ was admitted in the hospital and
she was medically examined.
Thereafter,police reached at the hospital and they
conducted their proceedings.‟P‟ is aged about ten
years.XXXXX
On the next day, i.e. 21.3.201, accused Rajesh
Tiwari was arrested from the Nangloi Railway
Fatak at about 2-2.15 p.m. in my presence, by the
police, vide memo Ex.PW8/A, which bears my
signatures at point A. His personal search was
taken vide Ex. PW8/B, which bears my signature at
point A. His personal search was taken vide
Crl. A. 727/2014 Page 9 of 27
Ex.PW8/B, which bears my signature at point A.
During the personal search of the accused, one key
with key ring recovered. Police interrogated
accused Rajesh Tiwari and he confessed about the
commission of rape with „P‟and his disclosure
statement was recorded, vide ExPW8/C, which
bears my signatures at point A.
Thereafter, at the instance of the accused Rajesh
Tiwari, one Gudri(handmade mattress) was
recovered from his house, which was having blood
stains. The said Gudri was taken into possession
by the police and sealed with the seal of MS and
seized the same vide seizure memo Ex.PW8/D,
bearing my sign at point A.
Accused Rajesh Tiwari is present in the court
today(correctly identified by the witness). I can
also identify the seized article if shown to me. At
this stage, MHC(M) has produced one cloth
pullanda in sealed condition, sealed with the seal
of the court and the same is opened and a Gudri
(Mat) already Ex.P3 is taken out alongwith one
cloth pullanda bearing the seal of MS and same
are shown to the witness, which he identifies
correctly Gudri ( already Ex. PW), as recovered at
the instance of accused from his house.
Accused Rajesh was not with us on the day of holi
festival.I had not seen the accused Rajesh on that
day as I was participating holi with my
friends.XXXXX.
No other tenant was residing in the house in which
accused Rajesh Tiwari was residing. XXXXXX
Wife of accused Rajesh Tiwari was not present at
her house. Vol- she came at our house on 19.3.201
and she was present at our house on 20.03.201
and 21.03.2011.XXXXXX
Crl. A. 727/2014 Page 10 of 27
Accused Rajesh Tiwari was arrested at about 2-
2.15 p.m. After his arrest the accused was
straightaway taken to his house. The writing work
was done by the police where accused was
arrested and also at the house of accused where
recovery was made.XXXXXX "
14. According to PW-16 SI Mahavir Singh (Investigating Officer), On
20.03.2011, he was posted as SI in PS Aman Vihar, PP Nagar. ON
the day, Ct. Sunil handed over him the copy of FIR and original
rukka and investigations of the case was handed over to him. He
then, along with Ct. Sunil reached SGM Hospital, where he met SI
Prem Singh, who handed over all the investigation papers and
exhibits to him. It was stated by him that Prosecutrix was found
under treatment in the hospital. The statement of Rekha (mother of
„P‟), Shiv Kumar (Maternal Uncle of „P‟) and Sunita (OT,
Technician) was recorded by him. He along with Ct. Sunil went in
search for the accused Rajesh Tiwari but his house was locked.
Even Shiv Kumar joined them later. On the basis of information
received by the secret informer, the accused was caught at Nangloi
Railway Station, Prem Nagar. The appellant was interrogated;
personal search was conducted and arrested. He was taken to his
house which was opened with the help of a key which was
recovered from his possession. In his house one blood stained
Gudri was produced by him, which was thereafter sealed with seal
MS. On 22.3.2011, the age proof certificate was collected by him
from MC Primary School, Mubarakpur Dabas. He obtained the
copy of the statement of the prosecutrix by priorly moving an
Crl. A. 727/2014 Page 11 of 27
application for recording of such statement and also obtained the
FSL report and filed the same in the court."
15. From the perusal of the above statements of the prosecution
witnesses, it is evident that the testimonies of other witnesses
clearly corroborate and lend support to the testimony of the
prosecutrix. After going through the statement made by the
prosecutrix and the other prosecution witnesses, it is established
that the story of the prosecutrix is well established, reliable and
purely matches/corroborates with the statements of other witnesses.
MEDICAL EVIDENCE
16. Medical evidence here gains importance as to whether the
prosecution was able to establish its case against the appellant that
the act was committed by him. PW-13, Dr. Ashoo Gupta
(Specialist, SGM Hospital) deposed as under: -
"MLC No. 190 of Roshni d/o Arjun Tiwari, aged
10 years, dt. 20.3.20111 is seen by me and same
was prepared at the SGM Hospital, Mangolpuri at
the casualty and the same is ExPW13/A and the
patient was referred to gynae department. In the
gynae department Dr. Suman medically examined
Roshni and gave her observations in the encircled
portion at pt.A to A1 of Ex.PW13/A. The same is in
the handwriting of Dr. Suman and bears her
signature at pt.B. According to the MLC Roshni
was brought for examination with alleged history
of sexual assault at 12pm(20.05.2011) as told by
the patient. According to the MLC in the local
examination, hymen was torn and there was tear
around 2cm in the posterior introitius. According
to this MLC, all the samples including vaginal
smear and clothes of patient were taken and
Crl. A. 727/2014 Page 12 of 27
handed over to police in sealed condition along
with the sample seal. According to this MLC Dr.
Suman medically examined the above said patient
Roshni at 5 pm on 20.3.2011.
The patient Roshni was admitted in the gynae ward
of GSM Hospital on 20.3.2011 and she was
discharged from the hospital after her medical
treatment on 25.3.2011. During medical treatment
the vaginal care was sutured in the operation
theatre because it was bleeding. I have also
brought the medical treatment documents of the
patient which are ExPW13/B."
17. PW-15, SI Prem Singh (PS AmanVihar) deposed as under: -
"On 20.03.2011,I was posted as SI in PS
AmanVihar. On that day after receiving DD
No.59B, I along with Ct. Sushil Kumar reached at
SGM Hospital and collected the MLC of "P‟ d/o
Arjun Tiwari age around 10 years. Prosecutrix
found in the hospital and i recorded her statement
ExPW5/A and attested her signature at point A
bearing my signature at point B. I prepared rukka
Ex.PW15/A bearing my signature at PointA.
Rukka was handed over to Ct. Sunil Kumar for
registration of FIR.Doctor handed over to me the
exhibits of the prosecutrix. He got the FIR
registered and came back in the hospital along
with SI Mahavir Singh to whom further
investigation was handed over. I handed over all
the investigation papers and exhibits.XXXXXX "
18. From the evidence of both the doctors/ specialists and records of
SGM Hospital, it would not be out of place to state here that it is
evidently clear that prosecutrix was under critical/ intensive care at
SGM Hospital, under the supervision of the doctor, who has
testified for the same. The prosecutrix was admitted in the said
Crl. A. 727/2014 Page 13 of 27
SGM Hospital on 20.03.2011 and was only discharged on
25.03.2011, and remained in intensive care and observation for a
period of 5 days, the prosecutrix's vaginal care was sutured in the
operation theatre as it was continuously bleeding. The prosecutrix's
vagina wall was ruptured and also confirmed that hymen was torn
around 2cm in the posterior introituses. 20cc of clots were removed
from her vagina. The medical examination proves beyond any
reasonable doubt that the victim was physically assaulted.
IMPUNGED JUDGEMENT - GROUNDS OF CHALLENGE
19. The contention raised by the appellant as to the fact that the Trial
Court erred in completely relying on the sole testimony of the
prosecutrix in deciding the present case and that the prosecution
was not able to prove the fact beyond reasonable doubt.
20. The Law in relation to the testimony of the Prosecutrix has been
settled by the Hon'ble Supreme Court and the Courts of Law, in a
catena of judgments. The settled proposition of law in relation to
the facts and circumstances of the present case is no more res
integra and can thus, be clearly seen from the decision and/ or
observation of the Hon'ble Courts of Law. In State of Madhya
Pradesh v. DayalSahu (2005, 8 SCC 122), it was held as under:
"it was held that once the statement of the
prosecutrix inspires confidence and the same is
accepted by the Court, conviction can be based
only on the solitary evidence of the prosecutrix and
no corroboration of her testimony is required
unless there are compelling reasons which
necessitate the same."
Crl. A. 727/2014 Page 14 of 27
In Vijay v. State of M.P. : (2010 8 SCC 91), it was held as under:
"14. Thus, the law that emerges on the issue is to
the effect that the statement of the prosecutrix, if
found to be worthy of credence and reliable,
requires no corroboration. The court may convict
the accused on the sole testimony of the
prosecutrix."
In State of Himachal Pradesh vs. Raghubir Singh (18.02.1993 -
SC), it was held as under:
"There is no legal compulsion to look for
corroboration of the evidence of the prosecutrix
before recording an order of conviction. Evidence
has to be weighed and not counted. Conviction
can be recorded on the sole testimony of the
prosecutrix, if her evidence inspires confidence
and there is absence of circumstances which
militate against her veracity. In the present case
the evidence of the prosecutrix is found to be
reliable and trustworthy. No corroboration was
required to be looked for, though enough was
available on the record."
The Hon'ble Supreme Court in State of Rajasthan v. Om Prakash,
reported in (2002) 5 SCC 745, dealing with a similar question in
the case of a child rape, while upholding the conviction of the
appellant therein and reversing the decision of the High Court
therein, relied upon earlier decisions and made the following
observations:
"13. The conviction for offence under Section 376
IPC can be based on the sole testimony of a rape
victim is a well-settled proposition. In State of
Punjab v. Gurmit Singh[SCC 384 : 1996 SCC
Crl. A. 727/2014 Page 15 of 27
(Cri) 316], referring to State of Maharashtra v.
ChandraprakashKewalchand Jain:(1990) 1 SCC
550 : 1990 SCC (Cri) 210] this Court held that it
must not be overlooked that a woman or a girl
subjected to sexual assault is not an accomplice to
the crime but is a victim of another person's lust
and it is improper and undesirable to test her
evidence with a certain amount of suspicion,
treating her as if she were an accomplice. It has
also been observed in the said decision by Dr
Justice A.S. Anand (as His Lordship then was),
speaking for the Court that the inherent
bashfulness of the females and the tendency to
conceal outrage of sexual aggression are factors
which the courts should not overlook. The
testimony of the victim in such cases is vital and
unless there are compelling reasons which
necessitate looking for corroboration of her
statement, the courts should find no difficulty to
act on the testimony of a victim of sexual assault
alone to convict an accused where her testimony
inspires confidence and is found to be reliable.
Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases
amounts to adding insult to injury.
21. A reference deserves to be made to the binding ruling of the
Supreme Court in the case of Bharwada BhoginbhaiHirjibhai v.
State of Gujarat, 1983(3) Supreme Court Cases 217, guidelines
with respect to appreciation of the evidence of a minor girl as a
victim of the offence punishable under Section 376 of the IPC have
been laid down, which are as under:-
"10. By and large these factors are not relevant
to India, and the Indian conditions. Without the
fear of making too wide a statement, or of
Crl. A. 727/2014 Page 16 of 27
overstating the case, it can be said that rarely will
a girl or a woman in India make false allegations
of sexual assault on account of any such factor as
has been just enlisted. The statement is generally
true in the context of the urban as also rural
society. It is also by and large true in the context of
the sophisticated, not so sophisticated, and
unsophisticated society. Only very rarely can one
conceivably come across an exception or two and
that too possibly from amongst the urban elites.
Because : - (1) A girl or a woman in the tradition
bound non-permissive society of India would be
extremely reluctant even to admit that any incident
which is likely to reflect her chastity had ever
occurred, (2) she would be conscious of the danger
of being ostracized by the society or being looked
down by the society including by her own family
members, relatives, friends, and neighbours, (3)
she would have to brave the whole world. (4) She
would face the risk of losing the love and respect
of her own husband and near relatives, and of her
matrimonial home and happiness being shattered.
(5) If she is unmarried, she would apprehend that
it would be difficult to secure an alliance with a
suitable match from a respectable or an
acceptable family. (6) It would almost inevitably
and almost invariably result in mental torture and
suffering to herself. (7) The fear of being taunted
by others will always haunt her. (8) She would feel
extremely embarrassed in relating the incident to
others being overpowered by a feeling of shame on
account of the upbringing in a tradition bound
society where by and large sex is taboo. (9) The
natural inclination would be to avoid giving
publicity to the incident lest the family name and
family honour is brought into controversy. (10)
The parents of an unmarried girl as also the
husband and members of the husbands' family of a
Crl. A. 727/2014 Page 17 of 27
married woman, would also more often than not,
want to avoid publicity on account of the fear of
social stigma on the family name and family
honour. (11) The fear of the victim herself being
considered to be promiscuous or in some way
responsible for the incident regardless of her
innocence. (12) The reluctance to face
interrogation by the investigating, agency, to face
the Court, to face the cross-examination by
counsel for the culprit, and the risk of being
disbelieved, act as a deterrent."
22. There can be no iota of doubt that on the basis of the sole
testimony of the prosecutrix, as it is unimpeachable and beyond
reproach, conviction can be based solely upon it. The law permits
that the testimony of a prosecutrix can be accepted without any
corroboration in material particulars, for she has to be placed on a
higher pedestal than an injured witness.
23. It is evident from the above observations and judgments as quoted
above that the testimony put forward by the prosecutrix can be
totally relied upon. She remained categorically clear that rape was
committed upon her. There is no hesitation to hold that from
the sole testimony of PW5 coupled with medical evidence and
testimonies of the other relevant witnesses, the prosecution has
established its case against the accused beyond shadow of
reasonable doubt. The testimony of the prosecutrix 'P' (PW-5) is
coherent, cogent and successfully corroborated in the cross
examination. Her testimony is further proved by the medical
evidence, MLC Ex.PW13/B. The remaining circumstances are
corroborated by PW-6 Smt. Sunita (OT Technician, Siddarth
Crl. A. 727/2014 Page 18 of 27
Hospital), PW-7 Smt. Rekha Tiwari (Mother of Prosecutrix), PW-8
Shiv Kumar (Uncle of Prosecutrix).
24. In view of the facts and circumstances of the case, after going
through the prosecution witnesses, exhibits and other materials and
evidence it becomes evident that the testimony of the prosecutrix
was convincing and the corroboration of other witnesses is not
required so far direct evidence is concerned. The sole testimony of
the prosecutrix inspires confidence.
No Eye Witness and Circumstantial Evidence
25. Learned counsel for the Appellant argued that the entire case was
based on circumstantial evidence and all the links in the chain were
not complete and prosecution has miserably failed to prove its case
in order to establish the conviction of the appellant.
26. In cases where evidence is of a circumstantial nature,
the circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established. Each fact
must be proved individually and only thereafter the Court should
consider the total cumulative effect of all the proved facts, each
one of which reinforces the conclusion of the guilt. If the
combined effect of all the facts taken together is conclusive in
establishing the guilt of the accused, the conviction would be
justified even though it may be that one or more of these facts, by
itself is not decisive. The circumstances proved should be such as
to exclude every hypothesis except the one sought to be
proved. But this does not mean that before the prosecution case
succeeds in a case of circumstantial evidence alone, it must exclude
Crl. A. 727/2014 Page 19 of 27
each and every hypothesis suggested by the accused, howsoever
extravagant and fanciful it might be. There must be a chain of
evidence so far complete as not to leave any reasonable ground for
conclusion consistent with the innocence of the accused and it must
be such as to show that within all human probability, the act must
have been done by the accused. Where the various links in a chain
in themselves are complete, then a false plea or a false defence may
be called into aid only to lend assurance to the Court.
27. The law on the circumstantial evidence is, by now, settled.
In Sharad Birdhichand Sarda v. State of Maharashtra : 1984 (4)
SCC 116, this Court drew out the following test for relying upon
the circumstantial evidence:
(1) The circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
(2) The facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except
that the accused is guilty.
(3) The circumstances should be of a conclusive
nature and tendency.
(4) They should exclude every possible
hypothesis except the one to be proved, and
(5) There must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must show
that in all human probability the act must
have been done by the accused.
Crl. A. 727/2014 Page 20 of 27
28. The principle of this judgment was thereafter followed in number
of decisions, they being Tanviben Pankaj Kumar Divetia v. State
of Gujarat 1997 (7) SCC 156, State (NCT of Delhi) v. Navjot
Sandhu @ Afsan Guru 2005 (11) SCC 600, Vikram Singh and
Ors. v. State of Punjab 2010 (3) SCC 56, Aftab Ahmad Anasari
v. State of Uttaranchal 2010 (2) SCC 583 etc. It is to be noted
that in the last mentioned decision of Aftab Ahmad Anasari v.
State of Uttaranchal (supra), the observation made is to the
following effect:
"In cases where evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should, in the
first instance, be fully established. Each fact must
be proved individually and only thereafter the
Court should consider the total cumulative effect
of all the proved facts, each one of which
reinforces the conclusion of the guilt. If the
combined effect of all the facts taken together is
conclusive in establishing the guilt of the accused,
the conviction would be justified even though it
may be that one or more of these facts, by
itself/themselves, is/are not
decisive. The circumstances proved should be such
as to exclude every hypothesis except the one
sought to be proved. But this does not mean that
before the prosecution case succeeds in a case of
circumstantial evidence alone, it must exclude
each and every hypothesis suggested by the
accused, howsoever extravagant and fanciful it
might be. There must be a chain of evidence so
far complete as not to leave any reasonable
ground for conclusion consistent with the
innocence of the accused and it must be such as to
show that within all human probability, the act
Crl. A. 727/2014 Page 21 of 27
must have been done by the accused. Where the
various links in a chain are in
themselves complete, then a false plea or a false
defence may be called into aid only to lend
assurance to the Court.
(Emphasis supplied)."
In Pawan Vs State Of Uttaranchal : (2009) 15 Supreme Court
Cases 259, it was held as under:
"There is no eye witness account and the case depends
wholly upon circumstantial evidence.
12. When a case rests on circumstantial evidence, such
evidence must satisfy oft-quoted tests viz: (1) the
circumstances from which an inference of guilt is sought
to be drawn, must be cogently and firmly established; (2)
those circumstances should be of definite tendency
unerringly pointing towards the guilt of the accused; (3)
the circumstances taken cumulatively should form a
chain so complete that there is no escape from the
conclusion that within all human probabilities the crime
was committed by the accused and none else; and (4) the
circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any
other hypothesis than that of the guilt of the accused and
such evidence should not only be consistent with the
guilt of the accused but should be inconsistent with his
innocence.
13. Where the entire case hinges on circumstantial
evidence, great care must be taken in evaluating
circumstantial evidence to ensure that the circumstances
on which the prosecution relies are wholly consistent
with the sole hypothesis of the guilt of the accused."
29. It is a well settled law that while appreciating circumstantial
evidence, the court must adopt a very cautious approach and should
record a conviction only if all the links in the chain are
Crl. A. 727/2014 Page 22 of 27
complete pointing to the guilt of the accused and every hypothesis
of innocence is capable of being negatived on evidence. Great care
has to be taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two inferences, the one
in favour of the accused must be accepted.
The circumstances relied upon must be found to have been fully
established and the cumulative effect of all the facts so established
must be consistent only with the hypothesis of the guilt.
30. In a case resting on circumstantial evidence if the accused fails to
offer a reasonable explanation in discharge of the burden placed on
him, that itself provides an additional link in the chain of
circumstances proved against him. Section 106 does not shift the
burden of proof in a criminal trial, which is always upon the
prosecution. It lays down the rule that when the accused does not
throw any light upon facts which are specially within his
knowledge and which could not support any theory or hypothesis
compatible with his innocence, the Court can consider his failure to
adduce any explanation, as an additional link which completes the
chain.
31. It is, therefore, in the light of above mentioned judgment, pertinent
to mention that it needs no emphasis that while evaluating
circumstantial evidence, which of course has to be done carefully,
the circumstances must be of such a nature as to be capable of
supporting the exclusive hypothesis that the accused is guilty of the
crime of which he is charged and the circumstances so shown by
Crl. A. 727/2014 Page 23 of 27
the prosecution are compatible with no other reasonable
hypothesis.
32. Though there was no other eye witness during the commission of
the crime but the remaining circumstances were sufficiently proved
and the chain of events are complete cumulatively, and therefore,
there is no escape from the conclusion that within all human
probabilities the crime was committed by the accused and none
else as proved circumstances unerringly point towards the guilt of
the accused. The medical evidence of PW-5 further establishes that
the victim was subjected to physical assault. It is, therefore,
observed that in the present case, while dealing with the
testimonies and various facts of the case as stated herein, it is clear
that the prosecution had proved his case above and beyond
reasonable doubt and the circumstantial evidence can be totally
relied upon in order to ascertain the guilt of the accused.
33. As per the Scientific evidence, there was a detection of human
blood on the Gudri, and it is also admitted that Gudri was
recovered from the residence (kitchen) of the appellant, where the
crime took place.
CONCLUSION
34. In my view, the contradictions pointed out by learned counsel for
the accused are not of such magnitude that they may materially
affect the impunged judgement. It has been held above that the
testimony of the prosecutrix is trustworthy. Minor contradictions,
inconsistencies, embellishments or improvement on trivial matters
Crl. A. 727/2014 Page 24 of 27
without affecting the case of the prosecution, should not be made a
ground to reject the evidence in its entirety.
35. Thus, from a bare perusal of the testimonies of the Prosecutrix and
the witness of the Prosecution as elucidated and reproduced in the
preceding paragraphs above, it can be easily perceived that the
testimonies of the witness corroborate and supplement each other.
The testimonies of the witness do not dither on either of the
relevant and/ or material aspects. The facts and the circumstances
of the case that the incident took place can be identified and
distinguished in lime line and the argument of the Counsel for the
appellant fails as the testimonies are unfettered and unrebutted and
corroborate each other well. It is a settled proposition of law that
the testimonies of the witness(es) cannot be connoted as tutored on
the aspect that they are akin to each other. True facts as and when
they happen would always be stated by the witness(es) in their
entirety and therefore would not take the aspect of them being
tutored. In the present facts and circumstances, after going through
the prosecution witnesses, exhibits and other materials and
evidence, it becomes evident that the testimony of the prosecutrix
was convincing and the corroboration of other witnesses is not
required so far direct evidence is concerned and the sole testimony
of the victim/prosecutrix inspires confidence. Testimonies of
witness(es) being akin to each other is in itself conveys
corroboration.
36. There is nothing which could shatter the veracity of the prosecution
witnesses or falsify the claim of the prosecution. All the
Crl. A. 727/2014 Page 25 of 27
prosecution witnesses have materially supported the prosecution
case and the testimonies of the prosecution witnesses do not suffer
from any infirmity, inconsistency or contradiction and are
consistent and corroborative. The evidence of the prosecution
witnesses is natural and trustworthy and corroborated by
circumstantial evidence and the witnesses of the prosecution have
been able to build up a continuous link.
37. Having done the survey of the evidence, it is amply clear that the
ocular evidence, documentary evidence, medical evidence and
more particularly, testimony of P.W.5, which is eloquent and self-
explicit, connects the accused / appellant with the crime.
Simultaneously, it cannot be overlooked that the appellant has
committed heinous crime against a tender aged minor girl and not
only caused physical harm, but also shattered the privacy, integrity
and personality of the victim girl, and caused psychological harm
to her, and degraded her very soul.
38. The Hon'ble Apex Court while dealing the case of State vs
Karnataka Vs. Krishnappa, reported as AIR 2000 SC 1470 has
categorically observed that the following notions must be borne in
mind by a Court of Law while adjudicating upon the quantum of
punishment to be accorded to the accused; the relevant paragraph
whereof is reproduced as under: -
"........The measure of punishment in a case of rape
cannot depend upon the social status of the victim
or the accused. It must depend upon the conduct of
the accused, the stage and age of sexually
assaulted female and gravity of the criminal act.
Crl. A. 727/2014 Page 26 of 27
Crimes of violence upon women need to be
severelly dealt with. Socio-economic, status,
religion, race, caste or creed of the accused or the
victim are irrelevant consideration in sentencing
the policy. Protection of society and deterring the
criminal is the avowed object of law that is
required to be achieved by imposing an
appropriate sentence. The sentencing Courts are
expected to consider all relevant facts and
circumstances bearing on the question of sentence
and proceed to impose a sentence commensurate
with the gravity of the offence. Courts must hear
the loud cry for justice by the society in the
heinous crime of rape on innocent helpless girls of
tender years, and respond by imposition of proper
sentence. Public abhorrence of the crime needs
reflection, therefore, imposition of proper sentence
by the court......."
39. In the circumstances, having comprehensive view of the matter,
and more particularly, after scrutinizing and re-appreciating the
evidence on record, there is no infirmity in the impugned judgment
and order of conviction.
40. As a result, present appeal stands dismissed, and the conviction and
sentence imposed upon the appellant/accused, by the impugned
judgment and order on sentence, stands confirmed.
41. Copy of the judgment be sent to the Superintendent Jail, Tihar for
information and to be communicated to the appellant.
42. Trial Court record be also sent back.
SANGITA DHINGRA SEHGAL, J.
___ September, 2017 gr// Crl. A. 727/2014 Page 27 of 27