Nabi Hasan vs The State (Govt.Of Nct) Delhi & Anr.
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 13.05.2026
Judgment pronounced on: 16.05.2026
+ CRL.A. 189/2025
NABI HASAN .....Appellant
Through: Mr. Shivek Trehan, (DHCLSC) with
Ms. Manika Pandey, Advocate.
versus
THE STATE (GOVT.OF NCT) DELHI & ANR. .....Respondents
Through: Mr. Utkarsh, APP for the State.
Ms. Vasundhara Nongmeikapam,
(DHCLSC), Advocate for R-
2/Victim.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 415(2) read with
Section 528 Bhartiya Nagarik Suraksha Sanhita, 2023 (the
B.N.S.S.), the sole accused, in Sessions Case No. 623/2017 on the
file of the Additional Sessions Judge, Special Court (PoCSO),
South District, Saket Court, New Delhi, assails the judgment dated
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02.09.2024 and the order on sentence dated 14.10.2024 as per
which, he has been convicted and sentenced for the offences
punishable under Section 377 of the Indian Penal Code, 1860 (the
IPC) and Section 6 read with Section 5 of the Protection of
Children from Sexual Offences Act, 2012 (the PoCSO Act).
2. The prosecution case is that in the morning of
21.08.2017 between 08:00 AM to 10:15 AM, at the house of ‘R’, a
minor boy aged about 6 to 7 years, the accused, taking advantage
of the mental and physical disability of the boy, committed
sodomy. Hence, as per the charge-sheet/final report dated
14.11.2017, the accused was alleged to have committed the
offences punishable under Section 377 IPC and Sections 4 and 6 of
the PoCSO Act.
3. On the basis of Ext. PW1/C FIS/FIR of PW1, the
mother, given on 21.08.2017, crime no. 310/2017, Malviya Nagar
Police Station, that is, Ext. PW7/B FIR dated 21.08.2017 alleging
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the commission of offences punishable under Section 377 IPC and
Sections 4 and 6 of the PoCSO Act was registered by PW7,
Assistant Sub-Inspector. PW17 conducted the investigation into
the crime and on completion of the same, submitted the charge-
sheet/final report dated 14.11.2017 before the Court, alleging the
commission of the offences punishable under the aforementioned
sections.
4. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him, as
contemplated under Section 207 of the Code of Criminal
Procedure, 1973 (the Cr.P.C.). After hearing both sides, the trial
court, vide order dated 05.04.2018, framed a charge under Section
6 read with Section 5 of the PoCSO Act and Section 377 IPC,
which was read over and explained to the accused to which he
pleaded not guilty.
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5. On behalf of the prosecution, PWs 1 to 18 were
examined and Exts. PW1/C, PW1/H, PW7/B, and PW12/A were
marked in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. He claimed that he had been falsely
implicated. PW1, the mother of the victim, used to indulge in
gambling and used to take money from him. PW1took about
₹70,000/- from him on different occasions. After demonetization
(note bandi), when he demanded his money back, the same led to
quarrels. On the date of the incident, he was called by PW5, the
father of the victim. A quarrel took place between them after
which he was brutally beaten by them and thereafter, this false
case of sexual assault was registered against him.
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7. After questioning the accused under Section. 313(1)(b)
Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.P.C. is seen done by the trial court. However, non-compliance
of the said provision does not, ipso facto vitiate the proceedings,
unless omission to comply with the same is shown to have resulted
in serious and substantial prejudice to the accused (See Moidu K.
vs. State of Kerala, 2009 (3) KHC 89: 2009 SCC OnLine Ker
2888 ). Here, the accused has no case that non-compliance of
Section 232 Cr.P.C. has caused any prejudice to him.
8. No oral or documentary evidence were adduced on
behalf of the defence.
9. Upon consideration of the oral and documentary
evidence on record, and after hearing both sides, the trial court,
vide the impugned judgment dated 02.09.2024, held the accused
guilty of the offences punishable under Section 377 IPCand
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Section 6 read with Section 5 of the PoCSO Act. Vide order on
sentence dated 14.10.2024, the accused has been sentenced to
undergo rigorous imprisonment for a period of 10 years, along
with fine of ₹25,000/-, and in default of payment of fine, to simple
imprisonment for a period of 1 year for the offence punishable
under Section 6 of the PoCSO Act. No separate sentence has been
awarded for the offence punishable under Section 377 IPC.
Aggrieved, the accused has come up in appeal.
10. It was submitted by the learned counsel for the
appellant/accused that the prosecution case will have to be rejected
for the sole reason that the victim was never examined by the
prosecution. The non-examination of the victim has caused
considerable prejudice to the accused. The prosecution has not
placed on record any evidence to satisfy the court that the victim
was incapable of being examined or that the victim was completely
incapable of communicating either through gestures or sign
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language. The only document placed on record to prove the
disability of the victim is Ext. PW1/H Disability Certificate, which
states the disability to be ‘Locomotor Disability’ at 73.3% which
means that the person has very low muscle function or motor
skills, that is, restricted use of arms, hands, legs, limbs, etc. The
disability certificate does not say about any speech impairment or
about the extent of the victim’s cognitive disability. PW11, who
issued the disability certificate at no point, has deposed that the
victim is completely incapable of communicating. In addition,
there are several inconsistencies and contradictions in the
testimony of the witnesses examined. The learned counsel also
took serious exception to the opinion recorded by the doctor in
Ext. PW12/A MLC. Further, it was also pointed out that going by
the prosecution case the police seized various articles from the
scene, that is, a bed sheet, 500ml plastic bottle containing oil, the
pant of the accused, the victim’s diaper, etc. However, Ext. PX
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FSL report says that DNA analysis could not be conducted as no
biological fluid, that is, blood/semen had been detected. It was
lastly submitted that PW3, a cousin of the victim, in his testimony
deposed that when he had peeped inside the jhuggi, he had only
seen the accused lying beside the victim. PW3 never has a case
that he had seen the accused sexually assaulting the victim. The
aforesaid aspects, according to the learned counsel, are more than
sufficient to doubt the prosecution case and acquit the accused.
11. Per contra , the learned Additional Public Prosecutor
supported the impugned judgment and order on sentence and
submitted that it does not suffer from any legality or infirmity
calling for an interference by this Court.
12. Heard both sides and perused the records.
13. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
judgment calling for an interference by this court.
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14. I shall briefly refer to the evidence on record relied on
by the prosecution in support of the case. Ext. PW1/C FIS/FIR
dated 21.08.2017 of PW1, the mother of the victim, recorded in
Hindi roughly translated, reads thus: - “I work as a maid in A-115,
Shivalik, Malviya Nagar, New Delhi. On 21.08.2017 at 8:00 AM
in the morning, I went for work; at which time, my husband, my
sister's son, who had come from Calcutta on 09.08.2017, my
middle son (the victim aged 7 years), and my youngest son (aged 4
years) were at home. My middle son has been disabled since birth
and cannot speak, sit, eat or drink on his own; he always remains
lying on the bed. His treatment has been ongoing at AIIMS
Hospital, Delhi, since after three months of his birth. At
approximately 10:15 AM, while I was at work, my brother-in-law
came to me and said that Nabi Hassan (the accused) had entered
my house, locked the door from inside, and was not opening it, and
that my disabled son (the victim)is also inside. Hearing this, I ran
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to my home. The door was locked from inside. I started banging on
the door loudly, after which Nabi Hassan opened the door. My son
was lying on the bed, and the diaper I had put on him was missing.
There were faeces on and around his anal area. There was swelling
and redness around his anal area. When I saw this, I realised that
Nabi Hassan (the accused) had committed a wrong act on my
child, who was crying. I raised an alarm. The public who gathered
there beat up Nabi Hassan, causing injuries on his body and face.
My husband also arrived home and called the police. The police
arrived and apprehended Nabi Hassan. Medical examination of my
son was done at AIIMS Hospital. I handed over the bed sheet
spread to the police who seized it. Nabi Hassan is a distant brother-
in-law of my husband and lives in the slum behind us. Nabi
Hassan and his wife Naini often visit us.”
15. PW1, when examined before the trial court, stood by
her version in the FIS/FIR. PW1 in her cross-examination admitted
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that prior to the incident, her family had cordial relations with the
accused and that he used to visit her house regularly. Her younger
son used to remain at the house for taking care of the victim. Her
place of work is situated near her house and so she used to come
back home during work hours to check on her disabled child. She
also admitted that the accused used to join PW5, her husband in
taking the victim for treatment. She denied having taken money
from the accused. She further denied the suggestion that she has
falsely implicated the accused because he had been demanding
repayment of his money.
16. PW2, uncle of the victim, deposed that on 21.08.2017
after he reached his workplace at about 09:00 AM, PW3 came to
him and informed that the accused after consuming alcohol had
entered PW1’s jhuggi and had bolted the door from inside. He
accompanied PW3 to PW1’s jhuggi . The door was found bolted
from inside. They knocked on the door. He heard the victim’s
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cries. He instructed PW3 to remain there and proceeded to inform
PW1, at her work place situated nearby. He returned with PW1,
who knocked on the door. After some time, the accused opened the
door. In the meantime, neighbours also gathered. The accused
came out of the jhuggi . He did not see the victim as he did not
enter the jhuggi , but he heard the victim crying. According to
PW2, the victim aged about 7 years is a child with disability who
cannot speak, walk or do any daily task. PW2 in his cross-
examination admitted that the accused, his brother-in-law, prior to
the incident had cordial relations with the family of the victim.
When PW3 informed him that the accused was inside the house of
the victim, he did not then intimate PW1, but instead went to the
house of the latter. When he along with PW1 reached the jhuggi ,
the brother of the victim and PW3 were already there. He is
unaware of any financial dealings between the accused and the
father of the victim.
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17. PW3, cousin brother of the victim, deposed that on
21.08.2017, at approximately 09:00 - 09:30 AM, he noticed the
victim’s younger brother crying, who informed him that the door
of his jhuggi was bolted from inside. Despite knocking on the
door, no response came from inside, but he heard the victim’s
cries. The victim is a differently-abled child (both mentally and
physically). So, he thought that the boy might have fallen down
and hence crying. Therefore, he removed the grill of the cooler
near the door and looked inside. He found the victim lying on the
bed with the accused lying beside him. He asked the accused to
open the door, but he did not open. He found PW2 present there
and so informed him. PW2 knocked on the door, but to no avail.
PW2 instructed him to stay there and went to call PW1. After
some time PW1 and PW2 reached there. PW1 knocked on the door
and raised her voice. Thereafter the accused opened the door and
came out from the jhuggi . PW3 in his cross-examination admitted
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that he had not entered the jhuggi after the accused opened the
door. He was unable to recall whether PW5, the father of the
victim had beaten the accused or a fistfight had occurred between
them. PW3 denied the suggestion that as there was a fight between
the parents of the victim and the accused over some financial
issues, the accused has been falsely implicated.
18. PW5, the father of the victim, deposed that his second
child, the victim, approximately 7 years old at the time of the
incident, from birth has been unable to walk, eat, or speak. On the
morning of 21.08.2017, the accused came to his house at about
08:00 AM. He left for work at about 09:00 AM, requesting the
accused to take care for his son. At 10:30 AM, he received a call
from his wife informing him that the accused had committed
" galat kaam " with their son. He reached his jhuggi at around 11:00
AM. His family members had apprehended the accused. He
noticed that his son’s diaper had been removed and there was an
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open bottle of mustard oil on the slab. He informed the police. The
police had seized a bed-sheet, diaper and the bottle of mustard oil
from his house. The bed sheet and bottle were marked as Ext. P1
and P2 respectively. PW5 in his cross-examination admitted that
the accused, a distant relative used to visit his home frequently,
though he denied any quarrels between the accused and his family.
PW5 categorically denied suggestions of prior money transactions
with the accused or that the accused used to consume liquor at his
residence. PW5 denied the suggestion that his wife had taken a
loan of ₹1 lakh from the accused and that they had falsely
implicated the accused due to a financial dispute.
19. PW11, Dr. A.K. Mishra, the then Chairman of
Disability Board, G.B. Pant Hospital deposed that as per records,
the victim aged about 5 years had been examined and a disability
certificate (Ext. PW1/H) issued on 28.12.2015. The victim had
been examined by a neurologist also. The patient was a case of
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cerebral palsy having 73.3% permanent physical and mental
disability. The date of birth of the victim is 01.01.2011. PW11 in
his cross-examination deposed that there is no separate prescribed
range to describe the disability as permanent or temporary. In the
present case, as the patient was a case of cerebral palsy, resulting
in permanent disability of 73.3%, making it impossible for the
patient to walk or perform daily routine activities. According to
PW11, cerebral palsy is a disease which mostly affects the patient
from birth. Normally, cerebral palsy is diagnosed by a neurologist.
By seeing a patient itself, the doctor can say that the patient is
suffering from cerebral palsy for which no separate test is required.
A patient of cerebral palsy is normally not able to express himself
by speaking or by making proper gestures. A person with such
disability would be able to make some gestures, but it would
depend on case to case. PW11 denied that the disability mentioned
in the certificate was given on the basis of his personal opinion and
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not as per proper medical rules or established medical practices.
PW11 further denied the suggestion that a patient having the
above-said disability can normally make gestures and indications
to express himself.
20. PW12, Dr. Adarsh Kumar, Professor, Department of
Forensic Medicine, AIIMS, New Delhi, deposed that Dr. Pooja
Prajapati and Dr. Rajesh Kumar had left the services of the
hospital and their current whereabouts are not known. Both the
doctors had worked under him and so he can identify their
handwriting and signature. As per Ext. PW12/A MLC, the victim
was brought to the hospital on 21.08.2017 with a history of sexual
assault. Dr. Rajesh Kumar had recorded the brief history of the
case. Dr. Rajesh Kumar has also opined that there was insertion of
penis or penis like object. The exhibits of the victim were sealed
and handed over to the police.
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21. The question is, whether the aforesaid evidence is
sufficient to find the accused guilty of having committed the
offences punishable under Section 377 IPC and Section 6 read
with Section 5 of the PoCSO Act beyond reasonable doubt. One of
the main arguments advanced by the learned counsel for the
appellant/accused is regarding the non-examination of the victim.
The argument is that the prosecution has not placed on record any
material indicating the victim’s speech impairment, that is, the
victim was unable to communicate in any manner, either by sign
language or gestures, or with the help of an interpreter. The non-
examination has caused great prejudice to the accused. The
prosecution relies on Ext. PW1/H disability certificate of the
victim, which says that it is a case of cerebral palsy and that the
victim suffers from locomotor disability, resulting in 73.3%
permanent mental and physical impairment. It is true that apart
from the locomotor disability recorded, the other columns in the
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certificate are seen left blank. Therefore referring to this, the
argument advanced relying on the dictums in Sampath vs. State
2018 SCC OnLine Mad 14515 , Bhim Bahadur Basnett vs. State
of Sikkim , Crl.A.No.03/2022 dated 06.12.2023 (The High Court
of Sikkim: Gangtok) and State of Rajasthan vs. Darshan Singh
(2012) 5 SCC 789 is that there is absolutely no materials to
conclude that the victim was unable to speak and hence in such
circumstances the victim ought to have been examined.
22. PW1, the mother of the victim, in her Ext. PW1/C
FIS/FIR has stated that her son is disabled since birth and that he
cannot speak, sit or eat. It is true that PW1, when examined did not
specifically state in the box that her son cannot speak. But PW2,
the uncle of the victim, and PW5, the father of the victim, have
categorically deposed that the victim is disabled and unable to
speak, walk or eat. This part of the testimony of PW2 and PW5
was never cross-examined. Their testimony is corroborated by the
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testimony of PW11, the doctor who also deposed that a patient
with cerebral palsy is normally not able to express himself. Their
testimony has not been discredited in anyway and hence I find no
reason(s) to disbelieve them. Further, the accused neither during
the trial or during the questioning under Section 313(1)(b) Cr.P.C.
has a case that the victim was capable of expressing himself. When
the testimony of PW11, the doctor that the victim is suffering from
cerebral palsy was put to the accused, the latter only feigned
ignorance. He never had a case that though the victim was capable
of expressing himself, the prosecution had deliberately kept the
child away from the Court.
23. The argument of the learned counsel for the
appellant/accused that the prosecution could have resorted to the
provisions of Section 119 of the Evidence Act or engaged an
interpreter or special educator for the purpose of examining the
victim cannot also be accepted. As held in Bhim Bahadur
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Basnett ( supra ) relied on by the learned counsel, so far as the
question of interpreter, special educator or person familiar with the
manner of communication with the victim is concerned, the
background from which the victim is coming must also needs to be
kept in mind. Apparently, the victim was about 6 to 7 years old.
There is no case for the accused that the victim was formally
educated in sign language. Therefore, even if a special educator or
interpreter was appointed, they would have been incompetent to
translate the gesticulations of the victim, as the victim was never
formally educated with sign language. It is only in cases where the
victims have been educated in sign language that the assistance of
a special educator would be of any assistance to the Court in
interpreting the gesticulations. That being the position, the
decisions relied on by the learned counsel for the
appellant/accused are not applicable to the facts of the present
case. As far as attempting to record the testimony of the victim
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through sign language is concerned, materials have come on record
through the testimony of PW2 and PW5 that the victim is unable to
do so. In the absence of any other evidence on record, there is no
ground for the Court to hold otherwise that the prosecution had
deliberately kept the child away from the Court.
24. Here, it would be apposite to refer to the dictum in the
Apex Court in State of Karnataka v. N.G. Naik, 1992 KHC 236:
AIR 1992 SC 2043 . In the said case the accused was acquitted of
the offence punishable under Section 376 IPC as the victim was
never examined due to her non-availability. About two months
after the incident, the victim committed suicide. The question
arose was whether the case of the prosecution could be thrown
overboard because of the non-availability of the victim for
examination on account of her death or whether the court could
record a conviction for any offence that was made out from the
available evidence addressed by the prosecution. The Apex Court
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found from the testimony of the witnesses coupled with the
medical evidence on record that there was an attempt of rape if not
the offence of rape, and so merely because the victim was dead
and consequently could not be examined could never be taken as a
ground to acquit the accused if there was evidence otherwise
available in proving the criminal act of the accused. On an
assessment and evaluation of the evidence on record, it was found
that the accused therein was liable to be punished for the offence
of attempt to commit rape, that is, Section 511 read with Section
376 IPC. Holding so, the appeal was allowed.
25. In the case on hand, as noticed earlier the testimony of
PW2 and PW5 that the victim was unable to speak is not seen
disputed or discredited. Therefore, I find no reasons to disbelieve
or discard the testimony regarding the speech impairment of the
victim in this case. That being the position non-examination of the
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victim in the case on hand is not fatal to the prosecution case in the
facts and circumstances of this case.
26. It was further pointed out that there are inconsistencies
and contradictions in the testimony of PW2 and PW3. PW2
deposed that PW3 had come to his workplace and informed him
that the accused had locked the door of the jhuggi . In the cross-
examination, however, PW2 admitted that when he along with
PW1, the mother of the victim, reached the jhuggi , PW3 was
present there. PW3 on the other hand deposed that on the date of
the incident seeing the victim's brother crying he had gone to the
jhuggi , where he found the door of the jhuggi bolted. Despite
knocking the accused did not open the door. He then found PW2
present there and so informed him. This was pointed out as a major
inconsistency in the testimony of PW2 and PW3.
27. There does not appear to be any inconsistency because
PW2 deposed that it was PW3 who had come to his workplace and
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informed him that the accused had locked the door of PW1's
jhuggi, at which time, the victim was inside the jhuggi . He along
with PW3 proceeded to the jhuggi of PW1 where he found the
door of the jhuggi bolted from inside. Though he knocked, the
accused did not open the door. Therefore, he instructed PW2 to
remain at the scene and he proceeded to the workplace of PW1. He
informed PW1 about the accused not opening the door and
thereafter he along with PW1 proceeded to the jhuggi at which
time PW3 was present there. PW3 also deposed that when he
informed PW2 that the accused was not opening the door the latter
directed him to stay there and then had proceeded to inform PW1
about the matter. Shortly thereafter, PW2 returned along with
PW1. PW1 knocked on the door pursuant to which the accused
opened the door. Therefore, it can be seen that there is no
inconsistency as such in the testimony of PW2 and PW3. Even
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assuming that there is an inconsistency, that has not in any way
affected the core of the prosecution case.
28. The learned counsel for the appellant took strong
exception to the opinion expressed by the doctor in Ext. PW12/A
MLC. The doctor in the certificate has opined thus:-“ After
thorough medical examination of the above-mentioned child. I am
of the considered opinion that insertion of penis or penis like
object is present. ”Referring to this it was submitted that the doctor
could never have given such a conclusive opinion and normally
doctors only opine that there is possibility or probability of
penetration by penis or some other object. On the other hand, the
doctor in this case has asserted that penetration with penis or some
object had taken place. This was beyond the powers and authority
of the doctor and hence, the same cannot be relied on, argued the
learned counsel.
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29. The opinion that is given by a doctor, an expert,
admissible under Section 45 of the Evidence Act is only opinion
evidence and not binding on the Court. It is for the Court to decide
on the basis of the materials on record whether the offence charged
against the accused has been made out or not. In Ext. PW12/A
MLC the following injuries are noted: - “ Reddish abrasion of skins
around anal and perianal region are present with tear at 6 & 7
o’clock position (fresh in nature). Pain and tenderness is present
around perianal and anal region.”
30. The injuries noted on the victim are not seen disputed
by the accused. The presence of the accused inside the locked
jhuggi at the time of the incident is also not disputed. It is true that
none of the witnesses had actually witnessed the accused
committing penetrative sexual assault on the victim. Even
according to PW3, he had only seen the accused lying beside the
victim on the bed inside the jhuggi . But the fact that when the door
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of the jhuggi was opened by the accused, there was no one other
than the accused inside the jhuggi at the relevant time is proved
through the testimony of the prosecution witnesses. This coupled
with the other circumstances like the child found with injuries on
his private part and the medical examination conducted
immediately thereafter, corroborates the prosecution case of
penetrative sexual assault.
31. It was further pointed out that the prosecution failed to
examine the doctors who had actually examined the victim in this
case. Admittedly PW12 had not examined the victim and therefore
his testimony is insufficient to prove Ext. PW12/A MLC.
32. PW12 in his examination-in-chief itself deposed that
the two doctors who had examined and issued the certificate are no
longer in the services of the hospital and that their present
whereabouts are not known. This part of the testimony of the
doctor has not been challenged, discredited or disproved. In this
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context I refer to Section 32 of the Evidence Act which reads
thus:-
32. Cases in which statement of relevant fact by person
who is dead or cannot be found, etc., is relevant .
Statements, written or verbal, or relevant facts, made by a
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance
cannot be procured, without an amount of delay or expense
which under the circumstances of the case appears to the
Court unreasonable, are themselves relevant facts in the
following cases:
Xxxxxxx
(2)Or is made in course of business - When the statement
was made by such person in the ordinary course of business,
and in particular when it consists of any entry or
memorandum made by him in books kept in the ordinary
course of business, or in the discharge of professional duty;
or of an acknowledgement written or signed by him of the
receipt of money, goods, securities or property of any kind;
or of a document used in commerce written or signed by
him, or of the date of a letter or other document usually
dated, written or signed by him.
(Emphasis supplied)
32.1 Prithi Chand v. State of Himachal Pradesh, AIR
1989 SC 702 , it has been held that Section 32 of the Evidence Act
provides that when a statement written or verbal, is made by a
person in the discharge of professional duty whose attendance
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cannot be procured without an amount of delay, the same is
relevant and admissible in evidence.
32.2 In Rambalak Singh v. State of Bihar AIR 1964
Patna 62 , it has been held that if the doctor who had performed the
autopsy was not available at the time of trial or he is abroad, the
post-mortem certificate prepared by him would be admissible in
evidence if the handwriting and signature of the autopsy surgeon
on the post-mortem certificate are proved.
32.3 I also refer to the dictum in Kochu and Ors. v. State of
Kerala, 1978 KHC 321: 1978 SCC OnLine Ker 79 . In the said
case, an argument was advanced on behalf of the accused that the
burden cast on the prosecution cannot be said to have been
discharged by the mere examination of the medical officer who is
familiar with the handwriting and signature of the doctor who
issued the post mortem certificate; but the prosecution must prove
the contents of the document and also elicit from the witness
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examined, his independent opinion as an expert on the conclusions
reached by the doctor who held the autopsy. It was held that it was
not always necessary and the law also does not insist that in all
such cases the witness should give his independent opinion on the
findings in the post mortem certificate or speak to each and every
statement made therein. Of course, if an expert witness, who has
been examined to prove the post mortem certificate issued by a
doctor who was dead or was not available for examination in court
under the circumstances stated in S.32 (1) of the Evidence Act,
also gives independent evidence as an expert on the conclusions
arrived at in the post mortem certificate, it would constitute an
additional piece of evidence of an expert. Under S.32, statements,
written or verbal, of relevant facts made by a person who is dead,
or who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured without an
amount of delay or expense which, under the circumstances of the
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case, appears to the court unreasonable, are themselves relevant
facts in cases falling under sub-s.1 to 8. A post mortem certificate
is not substantive evidence. It is only the evidence given in court
by the doctor who held the autopsy that constitutes substantive
evidence. A post mortem certificate, being a document containing
the previous statement of a doctor who examined the dead body,
can be used only to corroborate his statement under S.157 or to
contradict his statement under S.145 or to refresh his memory
under S.159 of the Evidence Act. But, S.32 (2) is an exception to
this. If the doctor who held the autopsy is dead or is not available
for examination under the circumstances mentioned in S.32 of the
Evidence Act, the certificate issued by him is relevant and
admissible under S.32(2) of the Evidence Act. The weight to be
attached to such a report or its probative value depends upon the
facts and circumstances of each case. The court can come to its
independent conclusion on the cause of death, if there is
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independent evidence on record in support of it. Then the question
is whether the statements made in the post mortem certificate,
containing what was observed by the doctor during autopsy and
the conclusion arrived at by him therein have been properly proved
in accordance with law. S.67 of the Evidence Act speaks of the
mode of proof of a document. Under S.67 if a document is alleged
to be signed or to have been written wholly or in part by any
person, the signature or the handwriting of so much of the
document as is alleged to be in that person's handwriting must be
proved to be in his handwriting. When in cases the prosecution is
not able to procure the attendance of the doctor who held autopsy
without unreasonable delay or expense, the statement coming
under S.32(2) of the Evidence Act has to be proved by one of the
various modes prescribed in S.47 of the same Act.
33. As noticed earlier PW12 has clearly deposed that the
present whereabouts of the doctors who had examined the victim
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and issued the MLC are not known. Hence, their presence could
not have been secured without an amount of delay or expense. This
part of the testimony of PW12 has never been challenged by the
appellant/accused. Therefore, the prosecution has succeeded in
establishing one of the circumstances contemplated under Section
32 of the Evidence Act, that is, the attendance of the doctors who
had examined the victim could not be procured without an amount
of delay or expense. Ext. PW12/A MLC had been prepared by the
doctors in discharge of their official duties. In such circumstances,
the certificate becomes relevant under Section 32(2) of the
Evidence Act. Section 47 of the Evidence Act which deals with
situations when opinions as to handwriting are relevant, says that
when the court has to form an opinion as to the person by whom
any document was written or signed, the opinion of any person
acquainted with the handwriting of the person by whom it is
supposed to be written or signed that it was or was not written or
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signed by that person is a relevant fact. Section 67 of the Evidence
Act says that if a document is alleged to be signed or to have been
written wholly or in part by any person, the signature or the
handwriting of so much of the document as is alleged to be in that
person's handwriting must be proved to be in his handwriting.
34. PW12 has deposed that he is familiar with the
handwriting and signature of the two doctors who had examined
and issued the MLC. PW12 also identified the handwriting and
signature in the MLC. Therefore even in the absence of the doctors
who had examined and issued the MLC of the victim, the
prosecution has proved the MLC by resorting to the provisions of
Section 32(2) read with Sections 47 and 67 of the Evidence Act,
which is permissible and therefore, the arguments to the contrary
are liable to be rejected.
35. Another argument advanced is that Ext. PX FSL report
does not support the prosecution case. The report says that DNA
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analysis could not be performed, as no biological fluid, that is,
blood or semen was detected on the victim’s exhibits. This was
pointed out as yet another defect in the prosecution case.
36. To constitute an offence of penetrative sexual assault,
ejaculation of semen is not necessary. Penetration to any extent is
sufficient. Absence of seminal stains on the clothes, etc. is not
evidence of absence of penetrative sexual assault. As held by the
Apex Court, that the mere absence of spermatozoa cannot cast a
doubt on the correctness of the prosecution case [See Prithi
Chand ( supra )]. Hence, the absence of semen is not a ground to
disbelieve the case of the prosecution.
37. That being the position, I am of the considered opinion
that the trial court has rightly convicted and sentenced the accused
for the offences punishable under Section 377 IPC and Section 6
read with Section 5 of the PoCSO Act. Hence, I find no infirmity
in the impugned judgment calling for an interference by this court.
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38. In the result, the appeal, sans merit , is thus dismissed.
Application(s), if any, pending shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MAY 16, 2026
mj/p’ma
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