Mr. Vikramjeet Singh and Mr. Paramjeet Singh, Advocates v. THE STATE

Judgment

1. The present appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) has been filed assailing the judgement of conviction dated 22.09.2023 and order on sentence dated 18.01.2024 passed by the learned Additional Sessions Judge (POCSO), ASJ-01, South District, Saket Courts, Delhi whereby the appellant has been convicted in Sessions Case No. 6706/2016 arising Signature Not Verified Digitally Signed By:BHASKAR SINGH RAWAT Signing Date:12.08.2025 19:23:11 CRL.A. 222/2024 out of FIR No. 120/2012 under Sections 342/363/376 of the Indian Penal Code, 1860 (for short, ‘IPC’) registered at Police Station South Campus.

2. The appellant by way of the impugned judgment of conviction dated

22.09.2023 has been convicted for the offences punishable under Sections 363/376 of the IPC and the appellant was acquitted of the charge under Section 342 of the IPC. Vide the order on sentence dated 18.01.2024, the appellant was sentenced to undergo rigorous imprisonment for 7 years along with a fine of Rs.20,000/-, for the offence punishable under Section 376 of the IPC, and in default of payment of fine, he was further sentenced to undergo simple imprisonment for 6 months. The appellant has also been sentenced to undergo rigorous imprisonment for 2 years along with a fine of Rs. 10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of 2 months for the offence punishable under Section 363 of the IPC. Benefit of Section 428 of the Cr.P.C. was given to the appellant and both the sentences were directed to run concurrently.

FACTUAL BACKGROUND 3. The brief facts relevant for the disposal of the present appeal are as follows:-

3.1 The case of the prosecution is that on 20.09.2012, on receipt of DD No. 17A/18/A, (Ex. PW-4/A and Ex.PW-4/B), the Investigating Officer Sub Inspector Rita (PW-15) along with Constable Sardool Singh (PW-8) had received information regarding a man being beaten up. Upon reaching the spot of the occurrence, i.e., Shri Ram JJ Camp near Venkateswara College, they found a mob Signature Not Verified Digitally Signed By:BHASKAR SINGH RAWAT Signing Date:12.08.2025 19:23:11 CRL.A. 222/2024 of public persons who were gathered and beating a person who upon inquiry was revealed to be the present appellant-Hari Ram who was later taken to the Trauma Centre, AIIMS Hospital by Constable Sardool Singh for examination where his MLC No. 330744/2012 was conducted vide Ex. PW-5/A and his blood sample was collected vide Seizure Memo (Ex.PW-8/A). Later, the crowd was dispersed and the survivor, Ms. ‘E’, and her mother Mrs. ‘A’ (PW-1) were present at the spot. The mother of the survivor then gave a complaint (Ex. PW-1/A), where it was revealed that the mother of the survivor who worked as a housemaid, after returning from work, at around 12:00 P.M. when her younger daughter (the ‘survivor’), aged about 10 years who had gone to her brother’s shop in JJ Camp had not returned home for some time, she went out to search for her daughter who could not be found.

3.2 However, after a while, the survivor came running towards her mother/the complainant and hugged her and she subsequently revealed to her, that the appellant had removed her underwear and had made it wet. When the complainant tried to ask the survivor more questions, she was unable to do so since she was suffering from certain mental ailments since childhood. Then, the complainant came outside and asked the appellant whether he had committed a wrong act with her daughter, to which he denied the said allegations. Based on the aforesaid complaint, the case FIR No. 120/2012 was registered on 20.09.2012 at P.S. South Campus for the offence under Section 354 of the IPC. On 20.09.2012, the first arrest memo of the appellant (Ex. PW-8/B) was prepared after which he was arrested and released on bail.

3.3 During investigation, the Investigating Officer collected exhibits which Signature Not Verified Digitally Signed By:BHASKAR SINGH RAWAT Signing Date:12.08.2025 19:23:11 CRL.A. 222/2024 were sealed and she further prepared the site plan of the area (Ex. PW15/D). Further, MLC No. 174844/2012 of the survivor was conducted at Safdarjung Hospital vide Ex. PW-10/A.

3.4 On 25.09.2012, the mother of the survivor/complainant came to the Police Station after which her supplementary statement under Section 161 of the Cr.P.C. was recorded vide Ex.PW-15/E, wherein, she stated that the survivor informed her that she had gone to shop in the jhuggi to buy something when the appellant called her towards him and took her in his jhuggi. Thereafter, the appellant removed the survivor’s underwear and tried to perform a wrongful act with her due to which her underwear became wet and the latter started crying. It was stated by the complainant that the appellant tried to commit ‘galatkaam’ with her daughter, after which the latter ran towards her home.

3.5 After the statement of mother of the survivor was recorded, Sections 376/366/342/511 of the IPC was added to the case FIR. Disclosure Statement of the appellant was also recorded vide Ex. PW15/H. On 25.09.2012, a Medical Examination of the appellant was conducted to assess his capability/incapability to perform sexual intercourse vide Ex. PW-9/A. Thereafter, medical examination of the appellant was conducted vide MLC No. 180763/2012 at Safdarjung Hospital (Ex. PW-15/K) on 26.09.2012. A second arrest memo (Ex.PW-15/F) was prepared on 26.09.2012, after which the appellant was arrested. Further, the DNA samples of the appellant and the survivor were also seized and sent to the Forensic Science Laboratory for examination on 27.09.2012. The said DNA reports were received from the FSL, Rohini on 04.12.2012 (Ex. PW-12/A and PW-12/B). Signature Not Verified Digitally Signed By:BHASKAR SINGH RAWAT Signing Date:12.08.2025 19:23:11 CRL.A. 222/2024

3.6 On 05.10.2012, the survivor was examined at the Department of Psychiatry, AIIMS, for determination of her mental age vide Ex. PW-11/A, wherein, it was opined that she had a mental age of 4 years and an IQ of 40. In the said report, it was also noted that she suffered from moderate mental retardation.

3.7 After the completion of investigation, chargesheet was filed under Sections 376/342/363 of the IPC on 07.12.2012. Learned Trial Court vide order dated

31.08.2013 framed charges under Sections 376/342/363 of the IPC, against the appellant- Hari Ram who pleaded not guilty and claimed trial.

3.8 The prosecution examined 16 witnesses to prove the charges levelled against the appellant, which was closed on 10.11.2022. The statement of the appellant under Section 313 of the Cr.P.C. was recorded on 20.05.2023 and appellant did not opt to lead any evidence in his defense. The appellant in his statement stated that the case was registered against him on the false accusations by the complainant because of his caste. In his statement, the appellant further stated that during the time of the incident, he was working as a guard on night duty in South Extension and on 20.09.2012, he was apprehended by police officials who came to his house while he was sleeping after his night shift. After hearing final arguments on behalf of the parties, and examining the evidence on record, the impugned judgment of conviction dated 22.09.2023 and order on sentence dated 18.01.2024 was passed. Hence, the present appeal has been filed assailing the aforesaid impugned judgement of conviction and order on sentence. Signature Not Verified Digitally Signed By:BHASKAR SINGH RAWAT Signing Date:12.08.2025 19:23:11 CRL.A. 222/2024 SUBMISSIONS ON BEHALF OF THE APPELLANT

4. Learned counsel for the appellant submits that at the very outset the prosecution has been unable to prove the charges levelled against the appellant. The initial complaint dated 20.09.2012 on the basis of which the FIR under Section 354 of the IPC was registered at P.S. South Campus did not consist of any allegation involving the offence of rape. It is further submitted that no history of sexual assault has been recorded in the MLC of the survivor (Ex. PW-10/A) as well as in the Gynaecological report (Ex.PW-7/A). It is submitted that during the course of the trial the factum of penetration has not been proved either by way of medical evidence which suggests sexual assault or through the statements of the PW-1/the complainant who is considered to be the star witness. It is, therefore, submitted that the learned Trial Court has erred in convicting the appellant for the offence of rape punishable under Section 376 of the IPC.

5. It is submitted by the learned counsel that PW-1, i.e., the mother of the survivor, cannot be considered as a reliable witness as there are material contradictions in her testimony. It is further stated that the site plan which was made during the investigation is contradictory to the statement of PW-1. Learned counsel submits that during her initial statement dated 20.09.2012, PW-1 stated that the alleged spot of the incident was Jhuggi No. 113, where the appellant used to reside. The same was reiterated by PW-1 in her supplementary statement dated

25.09.2012. However, during her examination before the Court, she had stated the alleged place where the offence had occurred was Jhuggi No. 136, which is where PW-1 resided herself. During her examination dated 15.05.2014, PW-1 Signature Not Verified Digitally Signed By:BHASKAR SINGH RAWAT Signing Date:12.08.2025 19:23:11 CRL.A. 222/2024 claimed to be an eyewitness to the incident, which was not mentioned in her previous statements given to the police. The charge of kidnapping against the appellant was framed on the basis of the place of occurrence, i.e., Jhuggi No. 113, however, later during her examination before the Court, PW-1 stated that the offence occurred at her own residence i.e., Jhuggi No. 136 which was contrary to her earlier statements as well as the site plan. Thus, the appellant was held guilty for the offence of kidnapping punishable under Section 363 of the IPC by the learned Trial Court on the basis of the place of occurrence.

6. To support this contention, learned counsel has placed reliance on the judgement of the Hon’ble Supreme Court in Suraj Mal v. State (Delhi Administration)1, wherein, it has been held that when there are two inconsistent statements by a witness either at one stage or two stages, the testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness.

7. Learned counsel for the appellant further submits that the prosecution has failed to produce the case property (i.e., the underwear) as the same was material evidence which ought to have been produced and proved by the prosecution. Reliance has been placed upon the judgement of a learned Division Bench of this Court in Krishan Kumar v. State2, wherein, it has been held that effect of non- production of case property during trial before the Court is to be held to be a serious infirmity being fatal to the prosecution case. 1 AIR 1979 SC 1408 2 1987 SCC OnLine Del 318 Signature Not Verified Digitally Signed By:BHASKAR SINGH RAWAT Signing Date:12.08.2025 19:23:11 CRL.A. 222/2024

8. It is further submitted that the medical and forensic evidence are inconclusive, insofar as the MLC of the survivor (Ex. PW-10/A) as well as the Gynaecological Report (Ex.PW-7/A) shows that there were no injuries, abrasions, bleeding or swelling in the private parts of the survivor and the hymen was found intact upon examination by the doctor. It is submitted that medical and forensic evidence are not conclusive pieces of evidence and merely corroborative in nature subject to other material evidences. The forensic and medical reports are neither corroborating nor supplementing each other and, therefore, the conviction of the appellant by the learned Trial Court cannot sustain.

9. It is further submitted that the learned Trial Court has erred in invoking the amended provisions of Section 375 of the IPC which came into force on

13.02.2013. The law which ought to have been applicable on 20.09.2012 was not invoked in the present case even though the charges were framed on the basis of Section 375 of the IPC as it existed on 20.09.2012. Prior to the 2013 amendment, under Section 375 of the IPC, penetration was one of the key ingredients to prove the offence of rape, however, since there was no evidence of penetration in the present case, the appellant has been wrongly convicted in the instant case.

10. Learned counsel for the appellant further submits that the survivor has not been examined by the police and neither was she examined as a prosecution witness before the learned Trial Court. Further, other material witnesses have also not been examined by the prosecution. Thus, it has been finally submitted that the case of the prosecution is filled with material contradictions, and is based on conjectures and surmises. There are inconsistencies in the statements of Signature Not Verified Digitally Signed By:BHASKAR SINGH RAWAT Signing Date:12.08.2025 19:23:11 CRL.A. 222/2024 prosecution witnesses especially PW-1, the complainant, who is a wholly unreliable witness. SUBMISSIONS ON BEHALF OF THE STATE/PROSECUTION

11. Per contra, learned APP for the State assisted by the learned Amicus Curiae appearing on behalf of the survivor submits that the appellant was medically examined on 25.09.2012 to assess his capability to perform sexual intercourse, where it was opined that there was nothing to suggest that the appellant is not capable of performing sexual intercourse. The commission of the offence of rape was corroborated by forensic evidence vide Ex. PW-12/A, wherein, the DNA profile generated from the microslides as well as the underwear of the survivor matched with the blood of the appellant. The survivor had categorically described as ‘galatkaam’ or a wrongful act being committed upon her by the appellant which caused her undergarment to become wet.

12. It is submitted that the semen which was found on the underwear of the survivor suggests the commission of the offence of rape. It is submitted that the said garment containing the semen of the appellant was promptly recovered during investigation. Despite no external injury or bleeding or swelling was found in the MLC of the survivor and the hymen was intact, the presence of semen on the latter’s underwear is not disputed. It is also submitted that the medical jurisprudence is also settled insofar as the offence of rape can be committed without causing any injury to the genitals of the victim and even slight penetration is sufficient to convict an accused for the offence of rape. Signature Not Verified Digitally Signed By:BHASKAR SINGH RAWAT Signing Date:12.08.2025 19:23:11 CRL.A. 222/2024

13. Learned counsel further submits that the defence of the appellant regarding forcible procurement of his semen and planting of the same also cannot stand ground. Further, the claim of the appellant that he was falsely implicated due to a caste bias has not been supported by him or proved in any manner. It is further contended that the offence of rape can be committed without causing any injury to the genitalia or without leaving any seminal stains. It is settled law that even partial or slight penetration or an attempt to penetrate or emission of semen would be enough to attract the provisions under Sections 375 and 376 of the IPC. It is also submitted that corroboration is not a sine qua non in the conviction for the offence of rape and the learned Trial Court was justified in convicting the appellant for the offence punishable under Section 376 of the IPC.

14. It is also submitted by the learned counsel that the complainant/PW-1 had stated that her daughter, i.e., the survivor had been suffering from some psychiatric illness since childhood due to which her statement was not recorded before the police and neither did she testify before the Court due to her mental condition. It is thus submitted that the prosecution has proved its case beyond reasonable doubt through medical and forensic evidence as well as through the testimonies of relevant witnesses.

15. Reliance has been placed on the following judgments: i. ii. Aman Kumar v. State of Haryana3 State of U.P. v. Babul Nath4