Ms. Saahila Lamba and Ms. Nidhi Sharma, Advocates v. STATE

Judgment

1. The appellant stands convicted vide the impugned judgment dated

05.05.2018 for the offences punishable under Sections 354/376/506(1) IPC and Section 6 POCSO. By way of the impugned order on sentence dated

10.05.2018, he was sentenced as under: Under Section 4 POCSO: (i) RI for a period of 10 years and, (ii) Fine of Rs.5,000/-, in default whereof he would undergo SI for 3 months. Under Section 354 IPC: Signature Not Verified Digitally Signed By:PREM MOHAN CHOUDHARY Signing Date:12.12.2025 22:19:34 CRL.A. 969/2018 Pg. 1 of 14 (i) RI for 2 years and, (ii) Fine of Rs.1,000/-, in default whereof he would undergo SI for 1 month. Under Section 506(1) IPC: (i) RI for a period of 2 years and, (ii) Fine of Rs.1,000/-, in default whereof he would undergo SI for 1 month. All sentences were directed to run concurrently and the benefit under Section 428 Cr.P.C. was extended to the appellant. 2.

The impugned judgment was rendered in the context of FIR registered on

05.08.2016 on the statement of the victim wherein she stated that her parents had abandoned her at a young age, and since then she had been residing with her grandparents. She further stated that on account of family disputes, the appellant had been residing at the house of her grandmother for the last 1-1/2 months. He used to consume liquor and beat her grandmother. She alleged that on 29.07.2016 at about 1.30 PM, the appellant came to her room and moved his hand over her chest. On 30.07.2016 at about 11.30 PM, the appellant asked her to play ludo with him and thereafter put a condom on his penis and committed rape upon her. The next morning, she disclosed all the facts to her grandmother, and they went to Bangla Sahib Gurudwara. They stayed in the Gurudwara till

04.08.2016. Thereafter, her aunt came there and then she took prosecutrix to the police station. 3. The medical examination of the victim was conducted, and the relevant exhibits were duly seized. Her statement under Section 164 Cr.P.C. was also recorded. On completion of investigation, the chargesheet came to be filed; and Signature Not Verified Digitally Signed By:PREM MOHAN CHOUDHARY Signing Date:12.12.2025 22:19:34 CRL.A. 969/2018 Pg. 2 of 14 charges were framed subsequently, to which the appellant pleaded not guilty and claimed trial. 4. In support of its case, the prosecution examined 15 witnesses in total. The primary witnesses among them being the victim, who was examined as PW-7; her grandmother as PW-4; her aunt as PW-2; and one neighbour „M‟ as PW-3. The victim‟s MLC was exhibited through the testimony of Dr. Vinamrata Singh, who was examined as PW-10; and the appellant‟s MLC was proved by Dr. Ankit Gupta (PW-5). The FSL report was proved though Manish Gupta, examined as PW-13. The I.O. of the case, SI Monika, was examined as PW-14. Ms. Preeti Agarwal, MM (Mahila Court), NE District, Karkardooma Courts, who was examined as PW-12, exhibited the statement of the victim recorded under Section 164 Cr.P.C. The other witnesses deposed about various aspects of the investigation. 5. The appellant, while denying the prosecution case, in his statement recorded under Section 313 Cr.P.C., claimed false implication on account of him having objected to the victim‟s affair with her neighbour „M‟. 6. Learned counsel for the appellant contended that though the alleged incidents are stated to have been committed on 29th and 30th July 2016, the FIR was lodged after a delay of 4 days, i.e., on 5th August 2016, which casts doubt on the reliability of the victim‟s allegations. The testimony of the victim also does not find any support in her medical examination, where she refused to undergo internal examination; and the FSL report on record is unsupportive, as well. The incident is also doubtful as the victim, her grandmother, and the Signature Not Verified Digitally Signed By:PREM MOHAN CHOUDHARY Signing Date:12.12.2025 22:19:34 CRL.A. 969/2018 Pg. 3 of 14 appellant, were concededly sharing one room. Rather, the conduct of the appellant shows that he is not involved in the incident, as it was him who informed the aunt of the prosecutrix that the victim and her grandmother were missing; and as he continued to stay in the same house. Lastly, it was contended that the neighbour „M‟ has not supported the case of the prosecution in its entirety as he did not say that he was informed by the victim/grandmother that rape was committed upon the victim by the appellant. 7. The said contentions, however, are repelled by learned APP for the State and Ms. Sagarika Kaul, the learned counsel appointed as Amicus Curiae to represent the victim. Learned Amicus submitted that the version of the victim is captured in the rukka, as well as in her statement recorded under Section 164 Cr.P.C., and that the same is consistent with her Court deposition. In all aspects relating to the incidents that took place on 29th and 30th July 2016, while placing reliance on State of HP Vs. Sanjay Kumar1, it is submitted that once the testimony of the prosecutrix is held to be cogent and consistent, it can form the sole basis for conviction. It has come on record that the appellant has a history of being an alcoholic and continued assault. In his statement recorded under Section 313 Cr.P.C., the appellant provided evasive answers and further, did not lead any defence evidence. Though the appellant has claimed that the grandmother and aunt are interested witnesses, once the Court reaches the conclusion that their testimonies inspire confidence, their testimonials cannot be discounted. In this regard, reference is made to the decision of the Supreme 1 (2017) 2 SCC 51 Signature Not Verified Digitally Signed By:PREM MOHAN CHOUDHARY Signing Date:12.12.2025 22:19:34 CRL.A. 969/2018 Pg. 4 of 14 Court in Subal Ghorai and Ors. Vs. State of West Bengal2. Lastly, on the aspect of delay of 4 days in lodging of the FIR, the deposition of the victim and her grandmother provides sufficient explanation for the same, namely, that they were scared of the appellant, that they found a temporary shelter at Bangla Sahib Gurudwara, and that they found the prosecutrix‟s aunt from there, which led to the lodging of the present FIR. In this regard, learned Amicus Curiae refers to the decision of the Supreme Court in Tulshidas Kanolkar Vs. State of Goa3. 8. The prosecutrix was examined as PW-7. She deposed that she was abandoned by her parents in childhood and brought up by her grandmother. In fact, in school records, the name of her grandfather was recorded in place of her father. She further deposed that the appellant is her real uncle and was a TSR driver. The appellant started residing in her grandmother‟s house sometime in July 2016 as the appellant‟s wife had started residing at her parental house along with their son. The witness further stated that the appellant used to come home after consuming liquor. On 29.07.2016, the appellant did not permit the victim to go to school and asked her to study at home. On that day at about

01.00-01.30 PM, when her grandmother had gone out of the house for some work, the appellant, taking advantage of the same, touched her breast. Upon this, she pushed him and went out of the house. She stated that on earlier occasion(s) also, while playing ludo, he used to touch her on her back and on