Delhi District Court
Fir No. 575/09; State vs . Naresh Sharma Page 1 Of 43 on 17 December, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 39/10
FIR No. 575/09
P.S. Saraswati Vihar
U/S: 376/109/34 IPC
STATE
Versus
NARESH SHARMA
s/o late Sh. Ram Kumar Sharma
r/o 64, Kapil Vihar,
Pitampura, Delhi
Date of Institution: 10112010
Date of arguments: 29112012
Date of judgement: 17122012
JUDGMENT
1. The case of the prosecution, in brief, is that Prosecutrix "S" (name withheld) was raped by her father. The date of birth of the Prosecutrix "S" is 22021987. When the Prosecutrix was 17 years old, her father raped her in the presence of her mother in the evening time in the year 2003 and her father threatened that if she disclosed this fact before anybody, it would be against her and for her reputation. The grandparents and younger brother and sister FIR No. 575/09; State Vs. Naresh Sharma Page 1 of 43 were not at home at that time. After the said incident and death of her grandfather, the accused and her mother started harassing her and her grandmother. They were given beatings and even they were not provided food sometimes which continued for about 2 2½ years. The Prosecutrix had been doing the job since 2004. Further, the grandmother of the Prosecutrix shifted to her Bua's house due to harassment made to the Prosecutrix. Her father used to try to do sex with her but she always prevented him to do such an act. On 27092009 at night, the accused tried to rape her and torn her clothes and when the Prosecutrix resisted, she was given severe beatings. The Prosecutrix called the police at 100 number. However, the police came but no action was taken despite her insistence to examine her medically and the police went away and thereafter she was locked in a room by her father till next day. On 28092009, the accused and her mother twisted her hand and gave slaps to her. The Prosecutrix again called the police at 100 number on the same day and at her request, she was medically examined by police at Mahavir Hospital but again no action was taken by the police against the accused and her mother. The accused further continued to harass the Prosecutrix, therefore, the Prosecutrix filed a complaint case before the Ld. MM.
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2. It is also the case of the Prosecution that about 45 days before 21112009, the Prosecutrix "S" filed a partition suit in Rohini Courts and on coming to know, her mother lodged a false report of theft only for taking out a quilt from trunk. On 21112009, the Prosecutrix "S" was told by her mother that her father had performed sexual intercourse with her many times after intoxicating the Prosecutrix in her presence and she was raped by him for more than once. The Prosecutrix then realised that she felt pain in her private parts and contacted to her gynaecologist. However, her doctor did not conduct internal examination since she was unmarried and opined that it could be due to hormonal problem or some weakness. Therefore, on hearing this, she rang up the police at 100 number and she was taken by police in PCR van to Bhagwan Mahavir Hospital. On 21112009, the grandmother of the Prosecutrix was also present there. After medical examination at Bhagwan Mahavir Hospital, the Prosecutrix was brought to PS and her statement was recorded. Thereafter, police registered FIR on 25112009 u/s 376/34 IPC. One day before arrest, the accused had beaten the Prosecutrix badly and put his hand in her shirt for which she also made a complaint at 100 number. Later, the accused was arrested on 16122009. After completion of investigation, chargesheet was FIR No. 575/09; State Vs. Naresh Sharma Page 3 of 43 filed u/s 109/376/34 IPC.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 376 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case, Prosecution has examined 17 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Accused opted to lead defence evidence and examined DW1 Smt. Manju Sharma and DW2 Naresh Kumar Bhardwaj.
5. I have heard Ld. Defence counsel and the Ld. APP for State and have perused the entire records.
6. Ld. Counsel for accused argued that the statement of the Prosecutrix was recorded on 21112009 and FIR was registered on 25112009. There is no explanation to the belated delay in lodging the FIR. The Prosecutrix falsely implicated her father and mother in collusion with her grandmother and Bua. The father and mother of the Prosecutrix never harassed her. The mother of the Prosecutrix was discharged at the time of charge. Motive behind this case is to grab the property of the parents. The property belonged to the grandfather of the Prosecutrix and she has no right in the property. FIR No. 575/09; State Vs. Naresh Sharma Page 4 of 43 The Ld. Defence counsel further argued that Prosecutrix lives a life of immorality and she is a lady of easy virtue. She used to come late at night after indulging with others. As per doctor report, the Prosecutrix was habitual in sexual intercourse. Therefore, the medical evidence goes against her. There are major contradictions in her complaint and testimony recorded in the court and she again and again improved her statement. This is not the only case filed by the Prosecutrix but she filed a number of cases i.e. case for molestation u/s 354 IPC, partition suit, complaint case u/s 156 (3) Cr.P.C., a case under DV Act and so on. The Ld. Defence counsel further argued that why Prosecutrix did not mention about continuing sex by the accused in her complaint u/s 354 IPC. The mother of the Prosecutrix filed the theft case against the Prosecutrix. To counter the said case, the Prosecutrix filed this case of rape. The Ld. Defence counsel, in support of his arguments, relied upon the judgement dated 10032010 delivered by the Hon'ble High Court of Delhi in Crl. Appeal no. 735/2001 titled Surjit Singh & Anr. Vs. State=2010 (4) JCC 2898; Kishan Singh Vs. Gurpal Singh and other 2010 (4) JCC 2547 and Bhajan Singh @ Harbhajan Singh & ors. Vs. State of Haryana in Crl. A. no. 562 of 2007 with other Criminal Appeal. Nos. 982 and 983 of 2008.
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7. Ld. APP for State argued that the accused, father of the Prosecutrix committed her rape in the year 2003 and thereafter the accused along with his wife harassed and beaten her and also tried to rape her which continued till 20112009 due to such conduct by the accused, the Prosecutrix called the police and filed complaint and cases against him. On 21112009, the mother of the Prosecutrix told her that her father had performed sexual intercourse with her many times. After realizing that, she was feeling pain in her private parts, she consulted her gynaecologist but the internal examination of the Prosecutrix was not conducted by the gynaecologist and the gynaecologist said to the Prosecutrix that it might be due to hormonal problem or some weakness. If the parents were doing such acts against her, then to whom she would tell, thereafter, the Prosecutrix told about the said act of the accused and her mother to her grandmother. Thereafter, she called police at 100 number and she was taken by PCR van to the hospital where she was medically examined and after medical examination, her statement was recorded. Later on, accused was arrested. The date of birth of Prosecutrix is 22021987 which is not disputed. The Ld. APP for State further argued that MLC show series of acts committed against the Prosecutrix and how she was tortured and FIR No. 575/09; State Vs. Naresh Sharma Page 6 of 43 raped. The accused committed rape lastly on 21112009 and FIR was registered on 21112009 and the delay in registering the FIR has been explained by the Prosecutrix. Therefore, the accused cannot take benefit of the delay in FIR, if any, in such matter. The Ld. APP also argued that this case is altogether different from other cases of rape since in this case, parents are involved and tried to defame her so that they could debar her from the property which she was demanding and father of the Prosecutrix committed her rape. Therefore, conviction can be made only on the sole testimony of the Prosecutrix which is more cogent and reliable. If there are some contradictions in the statement of the Prosecutrix, the same do not go to the root of the case since such minor contradictions are bound to occur in each and every case. Therefore, the accused cannot take benefit of such minor contradictions or discrepancies. Ld. APP for the State, in support of his arguments, has relied upon the judgments reported in the case of State of Punjab Vs. Gurmit Singh and ors. AIR 1996 SC 1393; Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1) and State of UP Vs. Krishna Master & Ors., 2010 CRI. L.J. 3889.
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8. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon by them, let us examine the evidence led in this case as to whether the accused had committed rape of her daughter, the Prosecutrix "S" or whether he has been falsely implicated. The Prosecutrix has examined herself as PW3 and deposed in her examination in chief that accused Naresh Sharma is her father. In the year 2003, while she was 17 years old, in the evening time, her father raped her in the presence of her mother. Her father threatened that in case she disclosed this fact before anybody, it would not be good for her and for her reputation. At the time of commission of rape that day, her grandparents and younger brother and sister were not at home. After the death of her grandfather, accused and her mother started harassing her and her grandmother. They were given beatings and sometimes were not even provided food. This continued for about 2--2½ years. Her mother and father started sexually harassing her and also used to torture her. PW3 further deposed in her examination in chief that on the night of 27092009, accused tried to rape her by tearing her clothes but when she resisted, accused gave her severe beatings. PW3 informed the police at 100 number and police came at their house FIR No. 575/09; State Vs. Naresh Sharma Page 8 of 43 but took no action despite her insistence for her medical examination and went away. After the departure of the police, PW3 was locked in a room by her father. PW3 remained locked in the room till next day afternoon when the room was unlocked. She was threatened by her father that in case she made any complaint in future, she would be killed. Accused and her mother twisted her hand and gave her slaps. PW3 again called the police at 100 number on 28092009 and police came at their house. At the request of PW3, she was medically examined at Mahavir Hospital but again no action was taken. The accused continued harassing PW3 physically even thereafter and therefore she filed a complaint case before the court of Ld. Metropolitan Magistrate.
9. PW3 further deposed in her examination in chief that on 21112009, her mother told her that her father had performed sexual intercourse with her many times after intoxicating her in her presence and that PW3 was raped by him more than once. Then PW3 realized that sometimes she used to feel pain in her private parts which could be due to sexual intercourse conducted by her father while she was in an intoxicating condition. For that pain, PW3 had also consulted gynaecologist but till then she was not knowing that it was due to the sexual intercourse and her doctor also did not FIR No. 575/09; State Vs. Naresh Sharma Page 9 of 43 conduct the internal examination as she was unmarried and therefore she had opined that the same could be due to hormonal problem or some weakness. On hearing this, PW3 called the police at 100 number and PCR van took her to Bhagwan Mahavir Hospital. On 21112009, her grandmother was also present at their house. Father of PW3 had called some of his relatives in order to pressurize PW3 to hush up the matter. Her Chacha Rakesh had accompanied her to the hospital as police wanted that someone from the family should also accompany her. After medical examination, PW3 was brought to the Police Station where at about 11:30 pm, her statement Ex. PW3/A was recorded by a lady police officer Seema. At that time, PW3 was under lot of stress and it was late night and therefore she gave in writing Ex. PW3/B that she did not want to give her statement in the presence of NGO. PW3 was then escorted to her house by a lady Constable. Next day, Ms. Taruna from Sampurna NGO came for counselling and made inquiry from PW3. The police had registered the FIR on 25112009. On 26112009, SI Rajbala came at her house and recorded her statement. Despite the registration of FIR on 26112009, accused was not arrested for 10--12 days and during this period he continued harassing PW3 and pressurizing her to withdraw her complaint and allegations. One FIR No. 575/09; State Vs. Naresh Sharma Page 10 of 43 day before his arrest, accused had beaten PW3 badly and had also put his hand in her shirt and she made a complaint at 100 number and reported the matter to the police. PW3 further deposed that she was still being pressurised to withdraw the case failing which she was being threatened that she would be killed. In response to leading question put up by Ld. APP for State, PW3 deposed that about 4--5 days before 21112009, she filed a partition suit in Rohini Courts and on coming to know, her mother lodged a false report of theft when she took out a quilt from trunk.
10. During crossexamination, PW3 deposed that she has filed four cases against the accused including the present case. The first case filed by her against him was of sexual and physical harassment. PW3 further deposed in her crossexamination that she has the proof of rape by way of her medical evidence which was conducted on 21112009 and the MLC of Bhagwan Mahavir Hospital dated 21112009 is on record and the same is Mark E. Her statement was recorded by SI Rajbala on 26112009. PW3 also deposed in her crossexamination that on 21112009, there was a quarrel between her and her mother because she had taken out a quilt from the trunk. PW3 denied the suggestion that her mother did not tell her that accused had performed sexual FIR No. 575/09; State Vs. Naresh Sharma Page 11 of 43 intercourse with her many times after intoxicating her in her presence. PW3 further denied the suggestion that same is a cooked up story. PW3 had told to police lady Seema who recorded her statement Ex. PW3/A that she realized that she used to feel pain in her private parts which could be due to sexual intercourse conducted by her father while in an intoxicating condition. However, PW3 volunteered that the lady police officer stated that she would record in her own way. PW3 denied the suggestion that with a view to get right in the property of her grandfather, she has filed the present case against her father to pressurize to part share in the property to her. PW3 further deposed in her cross examination that she has also filed a case under Domestic Violence Act against her father and mother and Ex. PW3/D3 is the certified copy of the complaint filed by her under DV Act. PW3 denied the suggestion that her father always had complaint with her that she used to leave the house at 8 am and would return back in the late night at 1 am. PW3 also denied the suggestion that on being questioned by the accused about her late coming, she used to hurl abuses at him. PW3 also deposed in her crossexamination that her Bua and her grandmother are financially supporting her. Her grandmother is getting pension of Rs. 6500/ and she and her FIR No. 575/09; State Vs. Naresh Sharma Page 12 of 43 grandmother are managing from the pension amount of Rs. 6500/. PW3 denied the suggestion that in collusion with her grandmother and Bua she has implicated her father in the present case in order to grab the share in property. PW3 denied the suggestion that she was never intoxicated or molested or raped by the accused.
11. So far as the legal position is concerned, explanation to Section 375 IPC makes it clear that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. To constitute penetration it must be proved that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The only thing to be ascertained is whether the private parts of the accused did enter into the person of the woman. Therefore, it is not necessary to decide how far they entered. It is not essential that the hymen should be ruptured, provided it is clearly proved that there was penetration even though partial. For the offence of rape to be committed, it is not necessary that there should be complete penetration. Similarly, seminal emission is not necessary to establish rape. What is necessary is that there must be penetration. Absence of spermatozoa cannot negative rape. Slightest degree of penetration with or without ejectment attracts the ingredients of Section 375 IPC. Thus, FIR No. 575/09; State Vs. Naresh Sharma Page 13 of 43 absence of spermatozoa cannot negative rape. Reference can be had in this regard of Modi in his well known work "Medical Jurisprudence & Toxicology" therein it is stated that "thus to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
12. In the present case, PW4 Dr. Priyanka Gupta, SR Gynaecologist, Bhagwan Mahavir Hospital examined the Prosecutrix "S" on 21112009. PW4 deposed in her examination in chief that Prosecutrix "S" gave the alleged history of rape by her father. After examination, PW4 prepared the details as per examination kit for victims of sexual abuse. PW4 proved the medical examination report for age estimation as Ex. PW4/A, medical examination report for sexual exploitation as Ex. PW4/B and MLC of Prosecutrix "S" as Ex. PW4/C. PW4 further deposed that after medical examination, the blood sample, nail scrubbing, hair and vaginal swab were kept in FIR No. 575/09; State Vs. Naresh Sharma Page 14 of 43 sealed pullandas which were sealed with the seal of Bhagwan Mahavir Hospital. Vaginal slides were also prepared and sealed. During crossexamination PW4 could not tell the duration since when the Prosecutrix had been indulging in sexual intercourse. PW15 Dr. Neeraj Dhamija, Department of Surgery, SR, Bhagwan Mahavir Hospital, Pitampura, Delhi proved MLC no. 2104/09 Ex. PW15/A of the accused dated 16122009. There was no external injury evident on the genitals of the patient and his external genitalia were within normal limits. PW15 also identified the handwriting and signatures of Dr. Manideepa, posted as CMO at point B and C on MLC Ex. PW15/A who had initially examined the accused Naresh Sharma. Dr. Manideepa also gave the opinion in her writing regarding the capability of the person to perform sexual activity. PW17 Ms. L. Babyto Devi SSO (Biology) FSL proved the detailed FSL report as Ex. PW17/A which reveals that blood was detected on exhibits 1p(a), 1p(b) & 2. Ex. 1p(a) was the one vial having dark brown foul smelling liquid labelled as blood collection of victim. Ex. 1p(b) was also one vial having dark brown foul smelling liquid labelled as blood collection of victim. Ex. 2 was the dark brown foul smelling liquid described as blood sample of the accused. PW17 also proved the serological report as Ex. PW17/B which reveals that FIR No. 575/09; State Vs. Naresh Sharma Page 15 of 43 samples of Ex. 1p(a), Ex. 1p(b) and Ex. 2 were putrefied, hence no opinion. In this regard, I am of the view that the doctor cannot give the finding of sexual assault or rape. Rape is a crime and not a medical condition. Therefore, rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement which can be made by the medical officer/ doctor is that there is evidence of sexual activity. Whether the rape has occurred or not is a legal conclusion and not a medical one. Thus, the doctor proved the medical examination report as Ex. PW4/B for sexual exploitation of the Prosecutrix and MLC Ex. PW4/C of alleged history of rape by her father which also do not rule out the possibility of rape. In this context, I would place a reliance upon the judgement reported in the case of Ranjeet Hazarika Vs. State of Assam 1998 (8) SCC 635, medical evidence did not prove any injury on the private parts of the prosecutrix and her hymen was found to be intact, the Hon'ble Court held that the opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of hymen and injuries on the private parts of the prosecutrix. It was held that opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix.
13. In the present case, as per the Medical Examination FIR No. 575/09; State Vs. Naresh Sharma Page 16 of 43 Report for Sexual Exploitation Ex. PW4/B of Prosecutrix "S", her hymen injury was found old and it was opined consistent and habitual sexual intercourse. Admittedly, there was no fresh injury either on the person of the accused or the prosecutrix. Admittedly, as per FSL result, no traces of semen were found on the articles/ exhibits mentioned in the FSL report Ex. PW17/A. The absence of support from the medical or forensic evidence would not impeach the credibility of the testimony of the prosecutrix. The absence of fresh injury upon the prosecutrix shows that the absence of injury is not itself sufficient to hold that she was not sexually assaulted. May be being intoxicated by her father, she was unnerved, she had not resisted. Therefore, the Prosecutrix cannot be disbelieved. In taking this view, I am also supported by the case of B.C. Deva @ Dyeva Vs. State of Karnataka (2007) 12 Supreme Court Cases 122. In the said case, medical evidence did not corroborate the alleged forced sexual intercourse. There was absence of marks of injury either on the person of the accused or on the prosecutrix. Medical examination of the prosecutrix did not disclose the evidence of sexual intercourse but the Hon'ble Court found the oral testimony of the prosecutrix to be cogent, reliable, convincing and trustworthy which stood corroborated by other PWs and the narration of events FIR No. 575/09; State Vs. Naresh Sharma Page 17 of 43 in the FIR.
14. The evidence of the victim of sexual assault has great probative force and the conviction of the accused on the basis of the testimony of the prosecutrix alone is permissible where the evidence of the prosecurix inspires confidence and appears to be natural and truthful. A plethora of decisions by Hon'ble Supreme Court would show that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for the corroboration of her statement. The testimony of the prosecutrix is to be appreciated on the principle of probability just as the testimony of any other evidence. In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat 1983 (3) SCC 217, it was held that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. The Hon'ble Court further held that we FIR No. 575/09; State Vs. Naresh Sharma Page 18 of 43 must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless crossexamination. And we must do so with a logical and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values; and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile." Similarly, in the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain 1990 (1) SCC 550, the court held that a prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence....... What is necessary is FIR No. 575/09; State Vs. Naresh Sharma Page 19 of 43 that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration........... If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted."
15. The Ld. Defence counsel argued that there are improvements in the testimony of prosecutrix 'S' and on the basis of the improvements, it is not safe to rely on the testimony of the prosecutrix 'S'. In this context, I am of the considered opinion that minor contradictions or insignificant discrepancies in the testimony of the prosecutrix 'S' should not be a ground for throwing out an otherwise reliable prosecution case. In so far as certain inconsistencies or minor contradictions in the narration or FIR No. 575/09; State Vs. Naresh Sharma Page 20 of 43 embellishment are concerned, the Apex Court in the case of Randhir Basu Vs. State of West Bengal AIR 2000 SC 908 held that some inconsistencies of a minor nature in the evidence of the witness can be regarded as natural giving more details while disposing before the court are not to be treated as improvements by such a nature as would create any doubt regarding the trustworthiness of a witness. Minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence. The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. The discrepancies which do not go to the root of the matter and shake the basic version of the witness, cannot be annexed with undue importance. More so, when all the important probability factors echoes in favour of the version narrated by the witness. In the case of Jamir Ahmad Vs. State 1996 Crl. L. J. 2354, the Hon'ble Court held that embellishment, exaggeration, contradictions and inconsistencies are bound to creep in with the passage of time. If witnesses are not tutored, they would come out with a natural and spontaneous version of their own. Similarly, in the case of Kanwar Singh Vs. State of Rajasthan 1996, Crl. L. J. 4056, it has been held that there is bound to occur FIR No. 575/09; State Vs. Naresh Sharma Page 21 of 43 contradictions and inconsistencies in the statement of witnesses with the passage of time or for any other reasonable cause, but on account of this, by itself, benefit of doubt cannot be extended to the accused. In the case of Markandaya Naik Vs. State 1993 Crl. L. J. 3328 (Orissa) it has been held that there is tendency amongst the witnesses in our country to back up a good case by false or exaggerated version. The witnesses also add embroidery to Prosecution version, perhaps for the fear of being disbelieved. But that is no ground to throw the case over board, if truth in the main. If there is a ring of truth, the case should not be rejected.
16. In the present case, the discrepancies pointed out by the Ld. Counsel for the accused are not major discrepancies or contradictions which may affect the core of testimony of the prosecutrix 'S' which being that accused had raped her. In this context, I would also place a reliance upon the judgement reported in the case of State of Punjab Vs. Gurmit Singh and others, AIR 1996 SC 1393, it was held that testimony of victim in cases of sexual offences 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 and accused where her testimony inspires FIR No. 575/09; State Vs. Naresh Sharma Page 22 of 43 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. Why should the evidence of a girl or a women who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit. The evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault FIR No. 575/09; State Vs. Naresh Sharma Page 23 of 43 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. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
17. PW5 Smt. Parmeshwari, grandmother of the Prosecutrix "S" deposed that she is residing at 64, Kapil Vihar, Pitampura, Delhi with her granddaughter Prosecutrix "S" in one room of the premises. In the other room, her son Naresh, his wife Manju and their son Sameer and daughter Dolly resides. Her husband expired in the year 2004 and after the death of her husband, her son and daughterinlaw started quarrelling with her. Again said, they used to quarrel during the lifetime of her husband also. The above said house was in the name of her husband. After the death of her husband, her son Naresh and his wife Manju got the property transferred in their names fraudulently from her. Since her son FIR No. 575/09; State Vs. Naresh Sharma Page 24 of 43 Naresh and his wife Manju used to harass PW5 and were not giving food properly to her after the death of her husband, she went to the house of her daughter at Rohtak at her own. PW5 further deposed in her examination in chief that one day, her granddaughter Prosecutrix "S" telephoned her and started weeping on the phone. PW5 asked her as to what had happened. Her granddaughter told her that "Mere Saath Galat Kaam Hua Hai." PW5 told her that "Telephone Par Aisi Baat Nahin Hoti, Jab Main Milungi, Tab Poori Baat Batana." When PW5 came to Delhi at her house bearing No. 64, Kapil Vihar, Pitampura, her granddaughter Prosecutrix "S" met her and told "Mere Baap Ne Mere Saath Galat Kaam Kiya Hai." PW5 asked Prosecutrix "S" "Aisa Nahin Kahte." One day, Manju kept quarrelling with PW5 and her granddaughter Prosecutrix "S" throughout the day and during the quarrel, Manju herself told that "Ladki Ke Saath Galat Kaam Maine Hi Karvaya Hai, Kucch Khila Pila Ke Aur Behosh Karke." PW5 was shocked after listening the same. Then granddaughter Prosecutrix "S" made a call to the police at 100 number and police reached there. Statement of PW5 was recorded by the police after two days. PW5 further deposed that at the time of rape, the age of Prosecutrix "S" was 17 years and she did not tell PW5 anything else. Prosecutrix "S" also told her that the rape was FIR No. 575/09; State Vs. Naresh Sharma Page 25 of 43 committed by her father in the presence of her mother. PW5 identified accused Naresh being her son.
18. During crossexamination, PW5 deposed that she had stated in her statement to the police that Prosecutrix "S" started weeping on telephone. PW5 had stated before the police that Prosecutrix "S" told her on telephone that "Mere Saath Galat Kaam Hua Hai. PW5 further stated before the police that "Telephone Par Aisi Baat Nahin Hoti, Jab Main Milungi, Tab Poori Baat Batana." PW5 volunteered that she had stated to the police but she does not know whether the same was recorded by the police. PW5 further deposed in her crossexamination that she had stated to the police in her statement that when Prosecutrix "S" met her and told "Mere Baap Ne Mere Saath Galat Kaam Kiya Hai." PW5 asked Prosecutrix "S" "aisa nahin kehte". PW5 denied the suggestion that Prosecutrix "S" had not made any telephone call to her. PW5 further denied the suggestion that Prosecutrix "S" had not told her that her father had done Galat Kaam with her. PW5 had stated to the police in her statement that her son and daughter in law used to harass her after the death of her husband. PW5 denied the suggestion that because of property dispute, she and her granddaughter have falsely implicated the accused in the present case only with a view to FIR No. 575/09; State Vs. Naresh Sharma Page 26 of 43 pressurize them. PW5 further denied the suggestion that accused Naresh and his wife Manju had never harassed her. After discussing the above evidence of PW5, I am of the considered opinion that relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze the evidence to find out whether it is cogent and credible. It cannot be said that a witness being a close relative and consequently being a partisan witness should not be relied upon. It is not the case against any other person or stranger but the case of rape committed by the father himself of the Prosecutrix "S" and PW5, grandmother of the Prosecutrix, who is also close relative of the Prosecutrix "S" has come forward and deposed against the accused who is the son of PW5. In taking this view, I am supported by the judgment of Hon'ble Supreme Court in the case of Sucha Singh & Anr. Vs. State of Punjab AIR 2003 SC 3617 (1). Similarly, in the case of Harbans Kaur & Anr. Vs. State of Haryana AIR 2005 SC 2989, the Hon'ble Supreme Court held that there is no proposition in law that the relatives are to be treated as untruthful witnesses. Reason has to FIR No. 575/09; State Vs. Naresh Sharma Page 27 of 43 be shown when plea of partiality is raised to show that witnesses had reason to shield the actual culprit and falsely implicate the accused.
19. The Ld. Counsel for the accused argued that the accused has been falsely implicated in this case. In this regard, I am also of the considered view that in the traditional nonpermissive bounds of society of India, no girl or woman of self respect and dignity would depose falsely, implicating her father of ravishing her chastity by sacrificing and jeopardising her future prospect. Not only this, the girl would invite the wrath of being ostracised and cast out from the society to which it belongs. It appears highly improbable that the prosecutrix 'S' would get her father falsely implicated. The defence taken by the accused is, therefore, not acceptable.
20. PW1 ASI Santosh who was working as DO at PS Saraswati Vihar on 25112009, received rukka handed over by ASI Seema and recorded the FIR no. 575/09 u/s 376/34 IPC as Ex. PW1/A. PW2 HC Santosh Yadav who was also working as DO in PS Saraswati Vihar recorded DD no. 33A as Ex. PW2/A on the basis of information received from PCR regarding incident of rape. Let us examine whether there is a delay in lodging the FIR and if so, its effect. So far as the aspect of delay in lodging the FIR is concerned, FIR No. 575/09; State Vs. Naresh Sharma Page 28 of 43 in this regard, I would rely upon the judgement reported in the case of State of Punjab Vs. Gurmit Singh and others, AIR 1996 SC 1393 wherein it was held that even if there is some delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter. In the case of Ranjan Dwivedi Vs. CBI through Director General, 2012 CRI.L.J. 4206 it was held that criminal offence is considered as a wrong against the State and the society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. In the present case, the delay in lodging the FIR has been explained by the prosecutrix 'S' as well as the other witnesses as discussed above. Therefore, the accused cannot get the benefit of delay, if any, in lodging the FIR in this case.
21. PW6 Ct. Vijayan deposed that on 30122009, he was posted as Ct. at PS Saraswati Vihar and took two sealed pullandas from the Malkhana along with two sample seals vide RC no. 117/21/09 and got them deposited at FSL Rohini and thereafter handed over receipt of the same to MHCM. PW7 Dr. Pankaj Shah deposed that Prosecutrix "S" was brought in the hospital by HC FIR No. 575/09; State Vs. Naresh Sharma Page 29 of 43 Kailash Chand with alleged history of rape by her father. The patient was formally examined by PW7 in the Casualty Department vide MLC Ex. PW4/C. There was no fresh injury found on the body of Prosecutrix "S". The patient was further referred to Department of Gynaecology for further opinion. PW8 ASI Seema deposed that on 21112009 she reached H. No. 64, Kapil Vihar, Pitampura, on the call of SI Sanjay Kumar who had gone to attend DD no. 33A. Prosecutrix "S" met her at the spot and she recorded her statement and took her to Bhagwan Mahavir Hospital for her medical examination. After medical examination, the Duty Constable handed over an examination kit, a sealed pullanda having seal of Bhagwan Mahavir Hospital, Pitampura and a sample seal. The senior officers were apprised. On the instructions of senior officers, the matter was kept pending. The pullandas were deposited in Malkhana. Next day i.e. 22112009, the counselling of Prosecutrix "S" was done through an NGO Sampurna. On 25112009, PW8 made endorsement Ex. PW8/A on the statement of Prosecutrix and got the FIR registered and thereafter, investigation was handed over to SI Rajbala. In response to leading question put up by Ld. APP for State, PW8 deposed that at the asking of SI Sanjay Kumar, she went straight to Bhagwan Mahavir Hospital, Pitampura where Prosecutrix "S" and FIR No. 575/09; State Vs. Naresh Sharma Page 30 of 43 her uncle Rakesh Bhardwaj met her. During crossexamination, PW8 deposed that on 21.11.2009, she had gone straight to Mahavir hospital on receipt of call from SI Sanjay Kumar and she had not gone to H. No. 64, Kapil Vihar. SI Sanjay Kumar was not present in the hospital at that time. It took her about one hour in the hospital. PW8 further deposed that after taking the pulanda and sample seal, she came straight to PS Saraswati Vihar. PW8 denied the suggestion that registration of FIR was kept pending for five days because the SHO was having doubts regarding the truthfulness of the allegations. PW8 further denied that no inquiries were made by her or by SI Sanjay Kumar during the said period. PW8 also denied that the complainant was threatening that she would set herself on fire in the PS if FIR was not registered against her mother and father or that due to that compulsion and threat, FIR was got registered against the accused.
22. PW9 Lady Ct. Poonam deposed that on 21112009, she was posted as Ct. at CPCR, PHQ, Delhi. At around 17:56 an information was given by Prosecutrix "S" from mobile no. 9213199871 regarding serving some intoxicated material by her parents and also used to commit rape upon her. The said information was recorded in the PCR form by her as Ex. PW9/A and FIR No. 575/09; State Vs. Naresh Sharma Page 31 of 43 passed on to the concerned Operator at PHQ who further forward the information to the concerned District. PW10 Ct. Devender deposed that on 16122009, he joined investigation of the present case with SI Rajbala and accompanied IO to H. NO. 64, Kapil Vihar, Pitampura, Delhi where accused Naresh Kumar (correctly identified) met them and was interrogated by the IO. Accused was arrested vide arrest memo Ex. PW10/A and his personal search memo Ex. PW10/B was prepared. Accused was taken to Bhagwan Mahavir Hospital for his medical examination. After medical examination, blood sample and one sample seal with the seal of hospital was received to PW10 and he handed over same to the IO who seized the same through seizure memo Ex. PW10/C. PW11 HC Kailash Chand, deposed that on 21112009, he was posted as Incharge, Commander 20, PCR within the area of Madhuban Chowk. On that day, at 6 pm a PCR call was received regarding the incident of rape from mobile no. 9213199871 which was reduced into writing in the call book as Ex. PW11/A. PW11 along with the driver and other Constable reached at the spot at H. No. 64, Kapil Vihar, at 6:07 pm and after making inquiry at 6:14 pm the facts were narrated to Control Room, PCR. At 7:05 pm the victim was taken to Bhagwan Mahavir Hospital, Pitampura. During crossexamination, PW11 FIR No. 575/09; State Vs. Naresh Sharma Page 32 of 43 deposed that he had visited the spot on the day of incident i.e. 21112009 and remained there for about one hour. The entire family was present at the spot. The Prosecutrix did not tell anything except that "mere pita ne mere saath kai bar behosh kar ke rape kiya hai, me medical karanu chahti hu". PW12 HC Ram Charan deposed that on 21112009, he was posted as MHCM at PS Saraswati Vihar and he proved entry no. 3949 of register no. 19 in DD no. 33A u/s 376 IPC as Ex. PW12/A; entry no. 3976 as Ex. PW12/B. On 30122009, the box and exhibit were sent to FSL Rohini through Ct. Vijayant vide RC no. 117/21/2009 and he made endorsement against exhibits PW12/A and PW12/B at points X and Y respectively and proved the copy of RC as Ex. PW12/C and receipt of the FSL as Ex. PW12/D. On 07102010, the report of FSL was received through Ct. Ghasi Ram and he made endorsement at point Z on Ex. PW12/B. PW13 Ct. Veluswami deposed that on 26112009, he along with IO SI Raj Bala went to H. NO. 64, Kapil Vihar where the victim/ Prosecutrix "S" met them and IO prepared site plan at her instance and her statement was recorded.
23. PW14 SI Sanjay Kumar deposed that on 21112009, on receipt of DD no. 33A Ex. PW2/A regarding the incident of rape FIR No. 575/09; State Vs. Naresh Sharma Page 33 of 43 upon Prosecutrix "S" at H. No. 64, Kapil Vihar, he along with Ct. Manoj reached at the spot where the complainant and her uncle Rakesh Bhardwaj met him. On inquiry, PW14 came to know that on that day quarrel had taken place on the pretext of taking out quilt from the box. The Prosecutrix further disclosed that her father had committed rape upon her many times in which her mother was also involved as she administered some intoxicating substance to her. PW14 called ASI Seema after coming to know about the facts of the case. The PCR van took the Prosecutrix and her uncle to the hospital. PW14 also reached the hospital where WASI Seema had also reached. Duty Ct. Bhim Singh handed over one sealed pullanda containing box with one sample seal of the hospital which was taken into possession by WASI Seema and the same was deposited by her with the MHCM. PW16 W/SI Rajbala deposed that on 26.11.2009, she was posted at SubDivision, Rape Crisis Cell, Ashok Vihar, Delhi. On that day, she was called by the DO at PS Saraswati Vihar and entrusted the investigation after registration of case as per the directions of SHO. She along with Ct. Vellu Swami went to spot i.e H. No. 64, Kapil Vihar, Pitampura, Delhi where prosecutrix "S" met her. She made inquires from Prosecutrix and at her instance she prepared site plan Ex. PW16/A. PW16 recorded FIR No. 575/09; State Vs. Naresh Sharma Page 34 of 43 supplementary statement of prosecutrix "S" and also interrogated Rakesh Bhardwaj, uncle of prosecutrix "S". On 30.11.2009, PW16 again visited the house of prosecutrix and recorded statement of her grandmother. On 16.12.2009, PW16 along with Ct. Devender went to the house of prosecutrix where accused Naresh Kumar (correctly identified) met and she interrogated accused Naresh and arrested him vide arrest memo Ex. PW15/A and his personal search memo Ex. PW15/B was also prepared. Thereafter, accused was got medically examined at Bhagwan Mahavir Hospital and after medical examination, Ct. Devender handed over her a sealed pulanda sealed with the seal of BMH, Pitampura, Delhi and sample seal which were seized by her vide seizure memo Ex. PW10/C. On 30.12.2009, the exhibits were deposited to FSL Rohini through Ct. Vijay. On 12.02.2010, the mother of prosecutrix came to PS and after formal interrogation, she was arrested vide memo Ex. PW16/B and her personal search was also conducted vide memo Ex.PW10/D. During crossexamination, PW16 deposed that FIR of this case was registered on 25.11.2009. She inquired that before registration of case some calls regarding quarrel between accused and complainant were received. PW16 further deposed that she had gone into the PCR call vide DD No. 33A dated 21.11.2009 as FIR No. 575/09; State Vs. Naresh Sharma Page 35 of 43 Ex.PW2/A received in the PS Saraswati Vihar. PW16 further deposed that prosecutrix had lodged a complaint u/s 156 (3) Cr.P.C. against the accused. PW16 came to know during the investigation of this case that initially a quarrel had taken place between prosecutrix and her mother on the issue of taking out a quilt from the box. PW16 denied the suggestion that due to the cause of above quarrel, prosecutrix had converted the same into rape case against her father five days later i.e on 25.11.2009. PW16 also denied that a false case has been registered against the accused. PW16 denied the suggestion that because of the above dispute, a false case was lodged by the prosecutrix against her parents to twist their arm. PW17 also proved the detailed report of FSL as Ex. PW17/A and also the serological report as Ex. PW17/B. Let us also examine if there is a defect into the investigation of the case, whether the accused can get benefit of it. In this context, I would place a reliance upon the judgement reported as Karnel Singh Vs. State of MP, AIR 1995 SC 2472=AIR 2004 SC 1920 it was held that in the case of defective investigation, the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting the accused persons solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the FIR No. 575/09; State Vs. Naresh Sharma Page 36 of 43 investigation is designedly defective.
24. DW1 Smt. Manju Sharma wife of the accused deposed that Prosecutrix "S" is her daughter and is a lady of bad manners and does not come home in time. DW1 further deposed that she had never told to the Prosecutrix that while she was unconscious, her husband i.e. accused Naresh Sharma used to rape her. Prosecutrix used to come to house in between 8.30 to 10.00 pm and she was also caught with many boys by her husband in the evening times. Whenever Prosecutrix was asked why she was roaming with so many boys, she always reacted that she will get DW1 and her husband implicated in false cases. When one boy came to see her daughter at their house for the purpose of marriage, Prosecutrix ran away from their house and stayed with Pooja whole night, who was residing in Income Tax Colony, Pitampura, Delhi but she could not recall the exact date, month and year and deposed that it could have been five years ago. Prosecutrix never complained of any kind to DW1 as well as her husband before the year 2009 i.e. for the period of five years till 2009. DW1 further deposed that Prosecutrix is demanding share in their property situated at 64, Kapil Vihar, Pitampura, Delhi, which was earlier in the name of her fatherinlaw, but now the ownership of the said property has been changed in the FIR No. 575/09; State Vs. Naresh Sharma Page 37 of 43 name of her husband. There is no share of Prosecutrix in the said property. During crossexamination DW1 deposed that Prosecutrix might have passed her B.A. examination in the year 2005. DW1 was not aware whether she had passed B.A. in the year 2008. She could not say from which year her daughter Prosecutrix "S" was of bad manners. DW1 volunteered to say that Prosecutrix was studying th in 11 standard when her complaints started coming from teachers of the school concerned. DW1 deposed that she did not receive any notice in writing from the school authority regarding bad manners of her daughter. No complaint was lodged by DW1 in the PS when Prosecutrix run away from the house when a boy was coming to see her for the purpose of marriage. Prosecutrix had married with a boy namely Sunder, but DW1 has not seen any photograph or proof of her marriage with the said Sunder.
25. DW2 Naresh Kumar Bhardwaj deposed that Prosecutrix "S" is his sister's daughter living at 64, Kapil Vihar, Pitampura, Delhi, which is his sister's house. The accused is the husband of his sister. DW2 often used to meet his sister and found that the Prosecutrix used to come late in the night and when she was inquired about his late coming, she used to retort that he has no business to ask her as to why she was late and from where she was FIR No. 575/09; State Vs. Naresh Sharma Page 38 of 43 coming. In the first week of October 2007, DW2 received a telephone call from accused Naresh Kumar that Prosecutrix did not come whole night and her whereabouts were not known. DW2 went to the house of his brotherinlaw at Pitampura in the morning and went in search of the complainant. DW2 and the accused went to Lal Bahadur Institute of Fashion Designing where the complainant used to teach and on inquiry from her colleagues they came to know that she might be available at the residence of her friend namely Pooja in Income Tax Colony. When they reached at the house of Pooja, they found that Pooja, her parents and a boy by the name of Ankit, were present there. With great difficulty, they were able to persuade her to come back to her house. They reprimanded the complainant as to why she was staying with Ankit. DW2 touched her feet to persuade her to come back to the house and with great difficulty they were able to bring her back. DW2 deposed that he feels shame to say that the complainant is a lady of bad character and is awara and has brought disgrace to her family. In order to grab the aforesaid property, she has lodged the present criminal case only to pressurize her father. DW2 had been constantly visiting the house of his sister but the complainant had never made any complaint to him that her father had ever raped her or molested her or sexually FIR No. 575/09; State Vs. Naresh Sharma Page 39 of 43 harassed her. She visited his house at Dwarka several times during the past so many years, but she never made any complaint that her father had ever raped her or molested her. During cross examination conducted by Ld. APP for State, DW2 deposed that he used to visit his sister's house on occasions i.e. Teej, Diwali & other festivals. Otherwise also he used to visit his sister's house two or three times in a month. DW2 could not tell the date or month when he visited the house of his sister and the Prosecutrix "S" come late in the night. It was in the year 2008 and beginning of 2009, DW2 waited at the house of his sister and noticed that Prosecutrix came at the house at around 10.30 - 11.00 pm but he did not make any complaint to the bua of Prosecutrix regarding her coming late to the house. DW2 further could not tell the exact date when he received a telephonic message on his mobile in the morning from the accused to inform him that Prosecutrix had not come to the house during whole night, but it was first week of October, 2007. DW2 further deposed in his crossexamination that he along with his Jija i.e. accused went in search of Prosecutrix at Lal Bahadur Institute in the area of Wazirpur but it is strange that DW2 is not sure about its exact location. Further, DW2 even does not remember the flat number where they had visited to locate the Prosecutrix. DW2 stated FIR No. 575/09; State Vs. Naresh Sharma Page 40 of 43 in his statement during crossexamination that he had not seen Prosecutrix with any boy with his own eyes. DW2 also deposed in his crossexamination that house in question was owned by grandfather of the Prosecutrix.
26. It has emerged from the testimony of defence witnesses that DW1 is not aware as to when the Prosecutrix passed her BA examination. Even DW1 could not tell from which year the Prosecutrix was of bad manners. On the one hand DW1 volunteered in her statement at the time of crossexamination that complaints concerning to the Prosecutrix were coming from the th school when she was studying in 11 standard, on the other hand DW1 deposed no such notice was received regarding bad manners of the Prosecutrix in this regard. Further, DW1 had every opportunity to lodge a complaint in the PS when the Prosecutrix run away from the house. If the Prosecutrix had married with the boy namely Sunder, the accused has failed to produce any document or photograph of her marriage with Sunder. Moreover, DW2 did not make any complaint to the Bua of Prosecutrix regarding her late coming to the house. Even DW2 also did not tell the exact date when he received a telephonic message from the accused to inform him that Prosecutrix had not come to the house during the whole FIR No. 575/09; State Vs. Naresh Sharma Page 41 of 43 night. DW2 was also not sure about the exact location of Lal Bahadur Institute. DW2 also did not remember the flat number where they had visited to locate the Prosecutrix. DW2 categorically admitted during crossexamination that he had not seen Prosecutrix with any boy with his own eyes. Thus, DW1 and DW2 have not been able to establish and prove the case in favour of the accused that the Prosecutrix was of bad character and used to come late at night.
27. Hence, in my considered view, the evidence of the Prosecutrix 'S', no doubt, has inspired confidence which is natural and truthful and there are no compelling reasons for requirement of the corroboration of her statement in view of the facts and circumstances of the case. The Prosecutrix 'S' is in fact the victim of crime and her evidence has also received the same weightage as that of injured person in case of physical violence. As already discussed above, partial penetration of the penis within the labia majora or vulva or pudenda with or without emission of semen or even an attempt of penetration is quite sufficient for attracting the ingredients of section 375 IPC and to convict the accused u/s 376 IPC. Further, it is also quite possible to commit legally the offence of rape without producing any injury to the genitals. Therefore, the Prosecutrix has withstood the test of crossexamination. Her FIR No. 575/09; State Vs. Naresh Sharma Page 42 of 43 testimony is cogent and nothing concrete has been pointed out in crossexamination which may shake her credibility or trustworthiness. Further, the circumstances appearing on record have no where reflected that the Prosecutrix 'S' has falsely involved the accused, her father. If the complainant filed a number of complaints/ cases, the accused cannot get benefit by taking plea/ defence in such a case of rape that the complainant is in the habit of lodging complaints/ cases against the accused. Thus, it has been proved on record that the accused Naresh Sharma committed rape with her daughter i.e. Prosecutrix "S". The aforesaid judgements relied upon by the Ld. Counsel for the accused are not applicable to the facts and circumstances of the present case.
28. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against accused beyond reasonable doubt. I, therefore, hold accused Naresh Sharma guilty and convict him u/s 376 IPC. Copy of the judgement be given to the convict free of cost.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 17122012 FIR No. 575/09; State Vs. Naresh Sharma Page 43 of 43