Amit Yadav @ Raju v. State

11. The solitary testimony of the victim, if the same inspires confidence, is sufficient to record the conviction. If the testimony is credible and inspires confidence, no corroboration is required. In State of Himachal Pradesh vs. Manga Singh reported as 2018 SCC Online SC 2886, Supreme Court held as under:- “11. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law; but a guidance of prudence under the given facts and circumstances. Minor contradictions or small discrepancies should not a be a ground for throwing the evidence of the prosecutrix.

12. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence. As a general rule, there is no reasons to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court.”

12. It has been repeatedly held that “courts should find no difficulty to act on the testimony of a victim of a sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable”. Reliance is placed on the decision rendered in State of Punjab v. Gurmit Singh and Ors reported as 1996 (2) SCC 384, which has been reaffirmed in Manga Singh (supra).

13. The child victim in all her statements, whether taken during investigation or the trial, had consistently stated that, prior to the two incidents witnessed by her mother, the appellant used to put his finger in her vagina and because of the pain, she used to cry. She stated that “mein uchhal jati thi”. She also stated that the appellant tried to insert his penis in her vagina and anus about 20-25 times.

14. The mother of the child victim was examined as PW-2, She deposed on the lines of the testimony of PW-3. The relevant portion of her testimony is reproduced as under: “On 26.6.13 at about 11 p.m. I was washing utensils outside my room and Rahul was playing outside the room and the victim and accused were inside the room. I went inside the room to collect the remaining utensils I saw that the accused had pressed mouth of victim and her undergarments were already removed and accused was trying to insert his penis into her vagina of my daughter i.e. victim and when I tried to rescue my daughter victim from the accused he gave beatings to victim and myself also and threatened that if I told about the incident to anyone I would be killed alongwith the victim. On the next date accused had gone to his work and I took my children to Chilla Gaon and left them with my mother and after sometimes I started living alongwith my children on rent at the house of Subhash in Chilla Gaon. After about 10-15 days later accused came to us at Chilla Gaon and he felt sorry for the said incident and on his repeated requests I forgave him. Thereafter on 13.8.13 at about 3.15 p.m. At this stage witness started crying and she is consoled and after about 3-4 minutes her examination is resumed. I alongwith the accused and my daughter victim were taking rest in the room and my daughter i.e. victim was sleeping. I saw the panty of victim was halfly removed and accused with toe of his foot was touching the vagina of victim and even prior to my objection he started quarrelling with us and started beating me and victim and also threatened that he would sell myself and victim to someone and thereafter I alongwith victim were confined by the accused there.”

15. Learned counsel for the appellant contended that the child victim’s testimony does not inspire confidence as there are material inconsistencies in the statements of the victim and her mother. He submitted that whereas the child victim stated that only one incident was witnessed by her mother, the mother deposed that she was witness to two incidents committed by the appellant. In support of his submission, Ld. Counsel has relied on the following portion of the cross examination of the child victim:

16. A perusal of the statements made during examination-in-chief, it is seen that both the child victim as well as her mother stated that the initially the first incident witnessed by the mother happened at the house in Greater Noida and the second incident had taken place at the house in Chilla Gaon. The mother had deposed that while the first incident happened on 26.06.2013, the second incident took place on 13.08.2013. Looking at the totality of the statements of the child victim as well as the mother during the trial, the inconsistencies pointed out by the learned counsel for the petitioner are immaterial. The victim as well as her mother have consistently stated that the mother was witness to both the incidents.

17. The fact that the child victim lived at the Greater Noida and later at Chilla Gaon is also proved by the testimony of two neighbors i.e, Satbiri and Subhash who were examined as PW-6 & PW-4 respectively. Satbiri deposed that the appellant had lived as a tenant for about 3-4 months during summer of the year 2013. She deposed that the appellant lived with his wife (mother of the victim) and two children. She also stated that they often used to quarrel and whenever she used to go to their room to intervene, she was told not to interfere as it was their personal problem. Subhash deposed that he had given a room on rent to the mother of the victim in Harijan Basti, Chilla Village at the rent of Rs.700/- per month where she used to reside with her children.

18. Learned counsel for the appellant also contended that the MLC of the victim did not corroborate her testimony as neither any injury on account of sexual act nor any injury on account of physical beatings has been mentioned. In this regard, it is relevant to note that the offence was lastly committed on 13.08.13; whereas the present FIR came to be registered on 15.08.13. The MLC was conducted on the same day. As per the prosecution case, on 13.08.13 the appellant after removing the underwear of the victim with the toe of his foot was trying to insert his toe in her anus and vagina. As such, although mother of the victim had refused the internal examination of the victim, however, since no penetration was alleged there could not have been any injury on account of sexual assault. In so far as the physical injury on account of beating is concerned, the mother of the victim had stated in the cross-examination that the victim did not sustain any visible injury on 13.08.13. The child victim when confronted answered as under:

A perusal of the MLC would show that a small abrasion on the right leg of the victim was noted in her MLC. As the FIR was registered two days after the last incident and the exhibits were collected thereafter, no blood or semen could be found on the same in the FSL examination. Even otherwise, there were no allegations of either any injury or penetration/ejaculation.

19. Learned Counsel for the appellant also contended that on 26.06.13, i.e., the first date, when the mother had witnessed the incident, the appellant was not at his house but was rather at the site at village in Bisrakh of Rudra Company. So far as this contention is concerned, it is relevant to note that the said stand was taken for the first time by the appellant at the time of recording of his statement under Section 313 Cr.P.C. Neither such suggestion was given to the child victim nor to her mother during their cross-examination. This belated stand of the appellant was clearly afterthought.

20. Lastly, it was contended that the appellant was falsely implicated by the child victim at the instance of her mother on account of frequent quarrels between them. He has referred to the suggestions given to the victim, her mother as well as to the witness Satbiri. It is relevant that when the victim was given the aforesaid suggestion, she denied that on the date of lodging the complaint there was any quarrel between her mother and appellant because of which the appellant was falsely implicated at the instance of her mother.

21. A perusal of the testimony of the child victim would show that the appellant, despite being her step father, repeatedly sexually exploited her over a long period of time. She has given graphic details of the incidents. This Court has no doubt that the testimony of the prosecutrix supported in material points by the testimony of her mother is both credible and trustworthy.

22. In Bhardwada Bhoginbhai Hirjibhai Vs. State of Gujarat reported as (1983) 3 SCC 217, it was held as under:- “11. … On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the western world. Obeisance to which has perhaps become a habit presumably on account of the colonial hangover. We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the ‘probabilities factors’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of selfpreservation. Or when the ‘probabilities factor’ is found to be out of tune.”

23. The prosecution has successfully proved the charges under Section 376 IPC and Section 6 of the POCSO Act against the appellant. However, in terms of statement of the child victim that has come on record, the appellant is also liable to be convicted for offence punishable under Section 377/511 IPC and Section 6/18 POCSO Act. In terms of Section 222 Cr.P.C., the offence under Section 377/511 IPC being a minor offence as compared to offence under Section 377 IPC and even if no charge was framed for the same, the appellant can be convicted for the same.

24. As a consequence of the above analysis, the appeal is dismissed. Resultantly, the conviction of the appellant for the offence punishable under Section 376 and Section 6 of the POCSO Act, 2012 is upheld. The trial court while awarding the sentence, took note of Section 42 of the POCSO Act, and sentenced the appellant to undergo RI for 10 and fine of Rs. 2000/- under Section 6 of the POCSO Act only. The sentence awarded to the appellant under Section 6 of the POCSO Act is upheld. As the appellant is also liable to be convicted for the offence of attempt, he is also convicted for an offence punishable under Section 6/18 POCSO and is sentenced to undergo RI for five years along with fine of Rs.500/- in default whereof to undergo SI for 15 days. The sentences are directed to run concurrently.

25. The appellant was granted regular bail vide order dated 18.01.2019 by this Court, however, as per the nominal roll dated 11.11.2019, it is reported that the appellant did not furnish surety despite reduction of the surety amount and is still in jail.

26. In Laxmi Vs. Union of India and Ors. reported as (2014) 4 SCC 427, the Supreme Court while emphasizing the need for rehabilitation of the victims or their dependents held as under:- “12. Section 357A came to be inserted in the Code of Criminal Procedure, 1973 by Act 5 of 2009 w.e.f. 31.12.2009. Inter alia, this Section provides for preparation of a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

13. We are informed that pursuant to this provision, 17 States and 7 Union Territories have prepared “Victim Compensation Scheme” (for short “the Scheme”). As regards the victims of acid attacks, the compensation mentioned in the Scheme framed by these States and Union Territories is un-uniform. While the State of Bihar has provided for compensation of Rs.25,000/- in such scheme, the State of Rajasthan has provided for Rs.[2] lakhs of compensation. In our view, the compensation provided in the Scheme by most of the States/Union Territories is inadequate. It cannot be overlooked that acid attack victims need to undergo a series of plastic surgeries and other corrective treatments. Having regard to this problem, learned Solicitor General suggested to us that the compensation by the States/Union Territories for acid attack victims must be enhanced to at least Rs. 3 lakhs as the after care and rehabilitation cost. The suggestion of learned Solicitor General is very fair.

14. We, accordingly, direct that the acid attack victims shall be paid compensation of at least Rs.[3] lakhs by the State Government/Union Territory concerned as the aftercare and rehabilitation cost. Of this amount, a sum of Rs.[1] lakh shall be paid to such victim within 15 days of occurrence of such incident (or being brought to the notice of the State Government/Union Territory) to facilitate immediate medical attention and expenses in this regard. The balance sum of Rs.[2] lakhs shall be paid as expeditiously as may be possible and positively within two months thereafter. The Chief Secretaries of the States and the Administrators of the Union Territories shall ensure compliance of the above direction.

15. The Chief Secretaries of the States and Administrators of the Union Territories shall take necessary steps in getting this order translated into vernacular and publicise the same appropriately for the information of public at large. List the matter on 3-12-2013.”

27. In exercise of powers conferred under Section 357A of CrPC, 1973, the Lieutenant Governor of NCT of Delhi in coordination with the Central Government approved the Delhi Victim Compensation Scheme, 2015 for providing funds for the purpose of compensation to the victim or her dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. The State, through Delhi State Legal Services Authority, is directed to provide compensation to the victim in accordance with the aforesaid Scheme within a period of two months from the date of passing of this judgment.

28. A certified copy of this judgment be supplied to the appellant free of costs through the concerned Jail Superintendent and a copy of the same shall also be communicated to the trial court as well as to the Member Secretary, Delhi State Legal Services Authority for information and compliance.

JUDGE NOVEMBER 13, 2019 ‘dc’