State vs Munna Kumar

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20.07.2026
Pronounced on: 02.09.2026
# CNR No: DLHC011535302010
+ CRL.A. 584/2011
STATE .....Appellant
Through: Mr. Aman Usman, APP with
Mr. Manvendra Yadav, Adv.
Insp.O.P.Vishnoi,P.S.Najafgarh
versus
MUNNA KUMAR .....Respondent
Through: None has appeared.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
RAVINDER DUDEJA, J.
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1. The State takes exception to the impugned judgment dated 29
April, 2010, passed by the learned Additional Sessions Judge/ Special
Judge (NDPS), in SC no. 16/1/10, in case FIR no. 454/2008 registered
under Section 376(2)(f) of the Indian Penal Code, 1860 (“ IPC ”) at
Police Station [ “PS” ] Najafgarh, whereby, the respondent Munna
Kumar has been acquitted of charge under Section 376 IPC and was
convicted only under Section 354 IPC.
FACTUAL MATRIX:
2. The brief facts of the case, as per the charge sheet are that on
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11 August, 2008, an information was received at PS Maya Puri that
prosecutrix ‘N’ ( name withheld ), aged about 4 ½ years, was admitted
in DDU Hospital by her father with the alleged history of rape. Such
information was recorded vide DD No. 27 (Ex. PW-12/A). On receipt
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of Ex. PW-12/A, SI Zile Singh (PW-1) along with Constable Prem
Prakash (PW-6) went to DDU Hospital and obtained the MLC of the
minor child. She was declared ‘unfit’ for statement. The statement of
her father, that is, complainant ‘X’ ( name withheld ) was recorded (Ex.
PW-1/A), which was to the effect that he was residing at the house of
Ramesh, son of Kulbir near (complete address withheld) on rent and
that Munna, son of Paras Nath, aged about 20-21 years was residing in
the same house in the opposite room. His daughter, that is, the
prosecutrix, aged about 4 ½ years, used to visit his room for tuition.
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On 10 August, 2008, at about 7:00 pm, she went for tuition and
returned back home at 11:30 pm. She complained of pain. Her mother
(PW-7) noticed that she was bleeding from her private part and there
was blood on her legs and underwear. Upon hearing the same, the
complainant went to the room of the respondent, but the same was
found locked. He then, along with his wife, took the prosecutrix to
Gandhi Nursing Home, Om Vihar, where the lady doctor examined
her and advised them to remove the child to DDU Hospital. Next day,
they brou ght their daughter at DDU Hospital.
3. On the aforesaid statement of the complainant, FIR No. 454/08,
under Section 376 IPC (Ex. PW-5/A) was registered. Further
investigation was taken over by WASI Kamlesh (PW-13). Respondent
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was arrested on 11 August, 2008 from Mansa Ram Pa r k, Uttam
Nagar, vide Arrest Memo (Ex. PW-4/B), on the pointing out of the
complainant. On interrogation, he gave disclosure statement (Ex. PW-
13/A). He was then taken to his house, from where, at his instance, a
towel, one bed sheet and one red colour cloth were recovered, which
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were seized vide separate memos Ex. PW-6/A to Ex. PW-6/C. The site
plan Ex. PW-13/B of the place of occurrence was prepared by PW-13.
4. Respondent was got medically examined at RTRM Hospital.
After medical examination, the doctor handed over the sealed
pullandas , which were taken into possession vide seizure memo Ex.
PW-13/C.
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5. On 13 August, 2008, the father of the prosecutrix handed over
the underwears of the prosecutrix, which were seized vide memo Ex.
PW-4/A.
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6. On 19 August, 2008, the statement of prosecutrix was
recorded by the learned Metropolitan Magistrate under Section 164
Cr.P.C (Ex. PW-14/A).
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7. On 22 August, 2008, the exhibits were sent to FSL through
PW-10/Ct. Pratap and upon completion of the investigation, charge
sheet under Section 376 IPC was prepared and the respondent was
sent to Court for trial.
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8. The learned Trial Court, on 27 March, 2009, framed charge
under Section 376 (2)(f) IPC against the respondent. He pleaded not
guilty and claimed trial.
9. In order to bring home the guilt of the respondent, prosecution
examined 14 witnesses, including prosecutrix ‘N’ (PW-2), her parents
(PW-4 & PW-7), the medical witnesses (PW-8, PW-9 & PW-11) and
the IOs, namely, SI Zile Singh (PW-1) and ASI Kamlesh (PW-13).
10. After the completion of prosecution evidence, the statement of
respondent was recorded under Section 313 Cr. PC, wherein, he
denied all the incriminating circumstances on record against him.
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However, he admitted that on the relevant date, he was residing
opposite the victim’s house, working as a tailor, used to teach the
prosecutrix and that she often used to play in his house. Respondent
claimed that he had given Rs. 50,000/- to the mother of the prosecutrix
for safe keeping, and when he asked for the return of the money, she
denied and threatened to falsely implicate him in a criminal case for
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demanding back the money. According to him, on 10 August, 2008,
when he again demanded the money from her, she got him falsely
implicated in the present case and did not return the money.
Respondent did not lead any evidence in his defence.
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11. The learned Trial Court, vide the impugned judgment dated 29
April, 2010, acquitted the respondent of the charge under Section 376
(2)(f) IPC but convicted him under Section 354 IPC and vide order on
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sentence dated 29 April 2010, the respondent was sentenced with
Rigorous Imprisonment for a period of one year and six months under
Section 354 IPC.
12. The learned Trial Court was of the view that the prosecution has
failed to prove its case against the respondent beyond reasonable
doubt under Section 376 IPC. The relevant paragraphs of the
impugned judgment read as under:-
“34. Applying the aforesaid principal to the
facts and circumstances of the present case,
the prosecution has failed to prove the case
against the accused beyond reasonable doubt
u/s 376 IPC . As neither the prosecutirx has
testified as to how she had suffered pain at the
instance of the accused after he removed her
underwear and his pant. No doubt the
prosecutrix did testify that accused lied her on
Bichauna before giving pain to her however at
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the same time this by itself does not lead to the
inference that there was penetration of the
male organ of the accused in vagina of the
prosecutrix to attract the provision of Section
376 IPC. So far the argument of the Ld. Add.
PP to the effect that inference of rape should
be drawn from the fact that the prosecutrix
was made to lie down and then accused gave
her pain and subsequently she was found
bleeding from her private part, in my opinion
is of no consequence as the prosecutrix has not
stated a word that the accused had used his
male organ to cause pain in her private part.
There is also no evidence on record that
accused had laid himself upon her or in any
other manner raped her. Besides, so far the
bleeding from the private part of the
prosecutrix is concerned, as per the MLC of
the prosecutrix Ex. PW8/A , it is mentioned
that there was no active bleeding and there
was not even reference of fresh injury on her
private part though it is observed that her
hymen was torn and admitted a tip of finger.
Similarly in her MLC Ex. PW9/A also there is
no mention that when the prosecutrix was
examined in the hospital there was any
bleeding found on her private part. The clothes
of the prosecutrix i.e two blood stained
underwears which were handed over to the
police on 13.8.08 do not inspire any credence
since PW-4 the father of the prosecutrix did
not hand over these two panties to the police
on 11.8.08 when the police visited the room of
the accused after his arrest and claimed to
have recovered one towel, bed sheet and a
piece of cloth of red colour at the instance of
accused. Besides, the prosecution has also
failed to prove on record that blood group 'A'
found on all these exhibits in terms of the FSL
report Ex. PB was of the prosecutrix, as no
blood group of prosecutrix has been proved on
record. Besides, there is no cogent evidence on
record that the bed sheet, towel a red colour
piece of cloth were seized from the room of the
accused at his instance as PW-4 the father of
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the prosecutrix admitted in his cross
examination that he had handed over these
items to the police. It is the case of the
prosecution that after the incident when PW-4
came to know about the same , he went to the
room of accused , it was found locked and
there is no evidence on record that till his
arrest on 11.8.08 the room was ever opened
that he could have access to these exhibits in
the room of the accused. Thus his testimony to
this effect that he had handed over these items
to the police leads to the inference that these
exhibits were not recovered at the instance of
the accused. Besides, these exhibits, the
baniyan and the underwear of the accused
were seized at RTRM hospital. However, as
per the FSL report though human blood was
detected on the baniyan but there was no
reaction and on the underwear also the human
blood was detected but there was inconclusive
result. It is pertinent to mention that in the
absence of any proof of blood group of the
prosecutrix it cannot be said that the blood
found on any of the exhibit was of the
prosecutrix. In these circumstances, in my
opinion the prosecution has failed to prove
beyond reasonable doubt that the accused had
committed rape upon the prosecutrix but in
view of the unrebutted testimony of the
prosecutrix, it is proved by the prosecution
that the accused is guilty of outraging the
modesty of the prosecutrix. The accused is thus
acquitted of the charge u/s 376(2)(f) IPC and
is convicted for the offence punishable u/s 354
IPC.”
13. Feeling aggrieved, the State preferred Criminal Leave Petition
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before this Court. The leave was granted vide order dated 05 May,
2011.
SUBMISSIONS MADE ON BEHALF OF THE STATE:
14. Mr. Usman, learned Additional Public Prosecutor [“ APP ”] for
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the State, submitted that the learned Trial Court erred in acquitting the
respondent of the offence under Section 376 IPC while simultaneously
convicting him under Section 354 IPC on the very same set of facts
and evidence. It was contended that the learned Trial Court
erroneously held that the prosecution had failed to prove rape merely
because the victim had not expressly used the word "penetration" in
her testimony. The learned APP submitted that the testimony of the
minor victim(PW-2) clearly established that the respondent had
removed her underwear, removed his own pant, made her lie down on
the bed and thereafter caused pain in her private part by laying on top
of her, following which blood started oozing from her private part. It
was argued that the learned Trial Court accepted the testimony of the
victim to convict the respondent under Section 354 IPC and, therefore,
there was no justification for discarding the very same testimony
while considering the charge under Section 376 IPC. It was
accordingly submitted, the victim had narrated the entire incident and
the only omission was the absence of the specific expression
"penetration", which ought not to have resulted in an acquittal for the
offence of rape.
15. It was further submitted that the ocular testimony of the
prosecutrix, who was just a four and a half year old child victim, stood
fully corroborated by the medical and scientific evidence on record.
Reliance was placed upon the MLC (Ex. PW-8/A), wherein, Dr.
Preeti, recorded that the hymen of the victim was torn 1.2 cm and that
she was bleeding from her private part. The learned APP further relied
upon the FSL Reports (Ex. PA and Ex. PB), which confirmed the
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presence of human semen on Exhibits IX-a and IX-b, being the
underwear (panty) of the girl child victim. It was submitted that the
victim was first taken by her parents to a private hospital on
10.08.2008 and, on being advised from there, she was taken to a
Government hospital the following day, where her medical
examination was conducted and the FIR came to be registered. The
clothes of the victim were subsequently handed over to the police
within three days. It was argued that the medical evidence, coupled
with the FSL reports and the testimony of the victim, sufficiently
established the commission of the offence under Section 376 IPC.
16. The learned APP further submitted that although the
investigating agency failed to collect the blood group of the victim,
thereby preventing a conclusive determination that the blood stains
recovered from the respondent's bedsheet belonged to the victim, such
lapse could not enure to the benefit of the respondent. It was
contended that the attending circumstances remained incriminating, as
blood-stained clothes including a bedsheet were recovered from the
respondent's house at his instance during police custody remand, as
deposed to by the Investigating Officer (PW-13), whose testimony
was not properly appreciated by the learned Trial Court.
17. It was further argued that the place of occurrence was the
respondent's house, the incident took place on the night of 10.08.2008,
and the testimonies of the victim's parents (PW-4 and PW-7) fully
supported the prosecution case. According to the learned APP, the
scope of challenge was limited to the Trial Court's refusal to convict
the respondent under Section 376 IPC despite relying upon the same
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evidence to record a conviction under Section 354 IPC, and in view of
the victim's testimony read together with the medical and scientific
evidence, the respondent ought to have been convicted for the offence
of rape. Reliance was placed upon the judgement of this Court in State
v. Inderpal 2025:DHC:11880-DB.
SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT/
ACCUSED:
18. Per contra, learned counsel for the respondent submitted that
the testimony of the prosecutrix was fraught with material
contradictions and could not be relied upon to sustain a conviction
under Section 376 IPC. It was pointed out that, during her cross-
examination, the prosecutrix stated that the uncle of the respondent
was also present in the house at the relevant time. However, both PW-
4 (father of the victim) and PW-7 (mother of the victim) had initially
stated that the respondent's uncle was residing in the same house,
while PW-4 specifically deposed that his younger brother, Ranjay,
who resided with the respondent, had gone to Bahadurgarh on the day
of the incident and was, therefore, not present in the room at the
relevant time. It was further submitted that the prosecutrix admitted in
her cross-examination that she had made her statement before the
learned Judge as instructed by her parents and the lady counsel present
in the Trial Court, thereby indicating that she had been tutored before
her deposition.
19. Learned counsel further submitted that the prosecutrix herself
admitted during her cross-examination that she had been suffering
from pain in her private part even prior to the alleged incident. It was
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argued that although the incident was alleged to have occurred on the
night of 10.08.2008, the medical examination was conducted only at
about 12:30 p.m. on the following day. Moreover, the MLC (Ex. PW-
8/A) recorded that there was no active bleeding at the time of the
medical examination. According to the learned counsel, these
circumstances cast serious doubt on the prosecution's version and
weakened the evidentiary value of the medical evidence relied upon
by the prosecution. Reliance was further placed upon testimony of
PW-3, the doctor who conducted MLC of the Respondent, wherein he
had stated that, semen sample could not be procured.
20. It was further submitted that the prosecution case suffered from
additional inconsistencies. While the mother of the prosecutrix
deposed that she confronted the respondent immediately after learning
of the incident and found him present, the father (PW-4) stated that
when he went to confront the respondent, the latter's house was found
locked. Learned counsel also pointed out that although it was alleged
that the respondent used to teach the prosecutrix, the mother failed to
give any definite answer regarding whether the respondent was even
literate. It was lastly contended that the prosecution had failed to
prove its case beyond reasonable doubt, particularly in view of the
investigating agency's failure to ascertain the blood group of the blood
stains recovered during the investigation. As a result, it could not be
established whether the blood belonged to the prosecutrix or the
respondent, and such lapse in the investigation ought to enure to the
benefit of the respondent.
ANALYSIS AND FINDINGS:
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21. The learned counsel for the respondent is right in his
submission that the burden is on the prosecution to prove beyond
reasonable doubt that the respondent is guilty of offence under Section
376 IPC and this burden is to be discharged by adducing reliable
evidence in proof of guilt of the respondent. In the present case, the
prosecution seeks to establish the guilt of the respondent through the
evidence of victim ‘N’ (PW-2). The law is well settled that prosecutrix
is a victim of, and not an accomplice in a sexual offence, and there is
no provision in the Indian Evidence Act, 1872 (“ Evidence Act ”)
requiring corroboration in material particulars of the evidence of the
prosecutrix as is in the case of accomplice. Prosecutrix is thus a
competent witness under Section 118 of the Evidence Act and her
evidence must receive the same weight as is attached to an injured
witness in the cases of physical violence.
22. The age of the victim at the time of commission of the offence
was hardly 4 ½ years. The Indian Evidence Act, 1872 does not
describe any particular age as a determinative factor to treat a witness
to be a competent one. On the contrary, Section 118 of the Evidence
Act envisages that all persons shall be competent to testify, unless the
Court considers that they are prevented from understanding the
questions put to them or from giving rational answers to these
questions, because of tender years, extreme old age, disease, weather
of mind or any other cause of the same kind. A child of tender age can
be allowed to testify if he has intellectual capacity to understand
questions and give rational answers thereto.
23. In Radhey Shyam v. State of Rajasthan (2014) 5 SCC 389, the
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Hon’ble Supreme Court reiterated that the evidence of a child witness
must be subjected to a close scrutiny to rule out the possibility of
tutoring. It can be relied upon if the Court finds that the child witness
has sufficient intelligence and understanding of the obligation of an
oath. As a matter of caution, the Court must find adequate
corroboration to the child witness evidence. If found reliable, truthful
and corroborated by other evidence on record, it can be accepted
without hesitation.
24. In Pradeep v. State of Haryana, 2023 SCC OnLine SC 777, the
Hon’ble Supreme Court emphasized on the importance of preliminary
examination of a child witness. It held that although oath cannot be
administered to a child witness under 12 years of age, yet, as per
Section 118 of the Evidence Act, it is duty of a Trial Judge to conduct
a preliminary examination before recording the evidence of the child
witness to ascertain if the child is able to understand the questions put
to him and that he is able to give rational answers to the questions put
to him. It held that the Trial Judge must record its opinion and
satisfaction that the child witness understands the duty of speaking the
truth and states why he is of the opinion that the child understands the
duty of speaking the truth. It further held that the questions put to the
child in the preliminary examination must also be recorded so that the
appellate court can go into the correctness of the opinion of the Trial
Court. The Hon’ble Court further held that the corroboration of the
testimony of a child witness is not a rule but a measure of caution and
prudence. A child witness of tender age is easily susceptible to
tutoring. However, that by itself, is no ground to reject the evidence of
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the child witness. The Court must make a careful scrutiny of the child
witness and apply its mind to the question whether there is possibility
of a child witness being tutored.
25. In interpreting the evidence given by a child victim of sexual
assault, the Hon’ble Supreme Court in the case of State of H.P. v.
Sanjay Kumar (2017) 2 SCC 51, held that social realities have to be
given due attention. The relevant para of the judgment reads as under:-
“30. By no means, it is suggested that
whenever such charge of rape is made, where
the victim is a child, it has to be treated as a
gospel truth and the accused person hasto be
convicted. We have already discussed above
the manner in which the testimony of the
prosecutrix is to be examined and analysed in
order to find out the truth therein and to
ensure that deposition of the victim is
trustworthy. At the same time, after taking all
due precautions which are necessary, when it
is found that the prosecution version is worth
believing, the case is to be dealt with all
sensitivity that is needed in such cases.In such
a situation one has to take stock of the realities
of life as well. Various studies show that in
more than 80% cases of such abuses,
perpetrators have acquaintance with the
victims who are not strangers. The danger is
more within than outside. Most of the time,
acquaintance rapes, when the culprit is a
family member, are not even reported for
various reasons, not difficult to fathom. The
strongest among those is the fear of attracting
social stigma. Another deterring factor which
many times prevents such victims or their
families to lodge a complaint is that they find
whole process of criminal justice system
extremely intimidating coupled with absence
of victim protection mechanism. Therefore,
time is ripe to bring about significant reforms
in the criminal justice system as well. Equally,
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there is also a dire need to have a survivor-
centric approach towards victims of sexual
violence, particularly, the children, keeping
in view the traumatic long-lasting effects on
such victims. ”
26. Having considered the rival submissions and on an appreciation
of the evidence on record, in the light of principles enunciated above,
we are of the considered view that the findings returned by the learned
Trial Court, thereby acquitting the respondent of the offence
punishable under Section 376 IPC, cannot be sustained. The learned
Trial Court proceeded mainly on the premise that the prosecution had
failed to establish penetration merely because the prosecutrix did not
expressly depose to the same. Such an approach overlooks that the
testimony of a child victim cannot be assessed with undue emphasis
on technical or anatomical terminology. The incident in question took
place prior to the enactment of the POCSO Act, therefore, the
presumption provided under Section 29 of the POCSO Act is not
applicable. However, the testimony of a 4 ½ years old victim is
required to be considered keeping in mind her age and the mental
agony that she had undergone. The extract of the statement of the
statement of victim (PW-2) is as follows:-
“Courts Questions:
Q. What is your name?
Ans. N.[Name withheld]
Q. What is your father's name and mother's
name?
Ans. S and R.[Names withheld]
Q. What is the name of your school?
Ans. Mercy school.
Q. Should we speak truth or lie?
Ans. Truth.
After asking the abovementioned
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questions from the witness, the Court is of the
opinion that the witness is fit for statement.
Accused Munna who is today present
in court, I used to call him "Bhai" and he used
to teach me and one day he removed my panty
and he gave pain in my private part and he
had also removed his pant before giving pain
to me.
At this stage, witness indicated towards
her private part i.e vagina. Blood had started
oozing from my private part and I had told the
entire incident to my mother on the same day.
Thereafter, I was taken to hospital by my
parents and I was medically examined in the
hospital. My statement was recorded by one
judge in a court and I had already told the
Judge the all facts. At the time of incident,
accused used to reside in our neighbourhood.
The accused had made me lying on Bichauna
before giving pain. It was evening/night when
the incident took place.
Xxxxxxxx Ms. Neelma Chaudhary, Ld. Counsel
for accused.
The uncle of the accused was also present in
the house. He is also my uncle. It is correct
that I had given my statement before the Judge
what my parents had told me. My parents and
Lady Advocate who is present in court had
instructed me before giving evidence. It is
correct that I was suffering from pain in my
private part prior to the incident.”
27. In order to corroborate the testimony of the victim, prosecution
placed reliance on the testimonies of her parents examined as PW-4
and PW-7 respectively. The relevant extracts of their testimonies are
as follows:-
“PW-4 S s/o K, aged 29 years r/o xxx, New
Delhi. On SA
Accused Munna, today present in court
belonged to my village, was also living in a
room in front of our house and he used to
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teach my daughter namelyN. My daughter
used to play in the house of accused oftenly.
On 10.8.2008 at about 10 PM I came back
from my job and thereafter I went to purchase
some articles from nearby shop and at about
11.30 PM I came back my home after
shopping. My wife told me that the blood was
oozing from the private part of my daughter N.
N had gone to the house of Munna for tuition
on that day and she came back from his house
in that condition. Thereafter, I went to the
room of Munna and found the door closed of
his room. Thereafter, I along with my wife took
N to Gandhi Nursing Home situated at Om
Vihar, Uttam Nagar. On examination one lady
doctor asked us to take the girl to DDU
hospital as it was rape case.
On the next day I took my daughter N to DDU
hospital and doctor asked me that it was a
rape case and asked me to lodge a complaint
to the police. The doctor informed to the police
and after some time police reached there in the
hospital. Police recorded my statement
already Ex.PW1/A which bears my signatures
at point B. Thereafter, my daughter was
medically examined in the hospital. N
remained admitted in the hospital for two
days.
On 11.8.2008 accused was arrested from Gali
No.5, Mansa Ram Park, Uttam Nagar vide
arrest memo Ex.PW1/A which bears my
signatures at point A.
On 13.8.2008 I handed over the panty of N to
police officer and same was taken into
possession vide seizure memo Ex.PW4/B
which bears my signatures at point A.
My younger brother namely R was also
residing with accused Munna in the same
room but on the day of incident R had gone to
Bahadurgarh to meet my one another brother
namely D. At the time of incident R was not
present in the room.
One towel was taken into possession by police
from the house of the accused.
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PW7: Mrs R wife of S, 25 yrs, r/o xxx, New
Delhi on SA:-
On 10.08.2008, my daughter namely Ms N
after taking the dinner went to the house of the
accused. At about 10.30 p.m. when she came
back she was weeping. I found blood stains on
her both legs. Thereafter, I removed her panty
and found that the same was in pool of blood.
At that time, my husband was not present at
the house. When I asked from my daughter she
told that Bhaiya had given pain to me. She was
having injury on her private part. Thereafter, I
went to the house of Munna and enquired from
him but he did not tell anything. After one hour
my husband reached at the house and I told
him about the entire fact. My husband also
went to the house of Munna but the house of
Munna was found to be locked. Thereafter, I
along with my husband taken to my daughter
to Gandhi Nursing Home, Uttam Nagar, New
Delhi. My daughter was not admitted there
and they referred to DDU Hospital, New Delhi
but during night we came back to my house.
On the next day at about 11/11.30 a.m, I along
with my husband Sanjay as also my daughter
Nisha went to DDU Hospital. Police was
called at DDU Hospital. Police officer
enquired from me.”
(The statements gave the name of the victim as
also some of the relatives. We have used
abbreviations for the same to hide the identity
of the victim.)
28. A careful perusal of the cross examination reveals that no
suggestion whatsoever was given to PW-2, PW-4 and PW-7, disputing
the genesis of the occurrence, questioning the manner in which the
injuries were caused, or even suggesting that the prosecutrix had not
suffered pain or bleeding as alleged. The complete absence of any
confrontation on these material aspects leaves the prosecution version
substantially unchallenged and lends considerable assurance to its
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truthfulness.
29. The medical evidence on record unequivocally corroborates the
prosecution case and completely belies the findings returned by the
learned Trial Court. The gynae examination of the victim was
conducted at the hospital. The MLC Ex. PW-9/A records that the
hymen of the prosecutrix was torn, there was 1.2 cm tear, thereby,
establishing the existence of injury to her genital parts. Although, the
MLC notes that there were "no active bleeding" at the time of
examination, such observation cannot be construed to mean that the
prosecutrix had never bled. The evidence on record establishes that the
incident had occurred several hours prior to the medical examination,
and that, prosecutrix was first taken to a private hospital before being
referred to a government hospital, thereby, adequately explaining the
absence of active bleeding at the time of her medical examination.
30. The testimonies of PW-4 and PW-7 consistently establish that
the child had returned home bleeding from her private part, which is in
complete consonance with the medical findings of a torn hymen. The
FSL Reports (Ex. PA & Ex. PB) further provide substantial scientific
corroboration by recording the presence of human semen on Ex. IX-a
and IX-b, being the underwears of the prosecutrix. The FSL report
also confirmed the presence of blood and semen on Ex. V and VII,
namely, the towel and cloth piece, recovered from the respondent's
room at his instance during police remand. The detection of blood on
these articles effectively dispels the contention advanced by the
respondent that the prosecutrix was not bleeding after the incident.
31. Although, the investigating agency failed to determine the
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blood group, such lapse is merely an investigation lapse and cannot
outweigh the otherwise cogent medical and scientific evidence. More
importantly, the respondent has offered no explanation whatsoever,
either in his statement under Section 313 Cr. PC or by leading any
defence evidence, as to how the blood and semen came to be present
on the towel and bed-sheet recovered from his room. The presence of
semen on the underwear of a four-year-old victim, is a circumstance
which strikes at the very core of the respondent’s defence. No
suggestion was put to the prosecution witnesses during cross-
examination, nor was any alternative explanation advanced by the
respondent regarding the presence of semen on the underwear of the
prosecutrix. The scientific evidence in the form of FSL report and the
MLC, when read conjointly with the testimony of the prosecutrix and
the medical findings, forms a complete and consistent chain of
incriminating circumstances pointing unerringly towards the guilt of
the respondent.
32. The respondent sought to assail the prosecution case by
emphasising that there is a contradiction between the testimonies of
PW-4 and PW-7 regarding the respondent's presence in his room after
the incident. We are unable to accept the said contention. PW-7, the
mother of the prosecutrix, deposed that immediately after the
prosecutrix disclosed the incident to her, she went to the respondent's
room at about 10:30 pm and confronted him. PW-4, the father of the
prosecutrix, on the other hand, deposed that upon returning home from
outside after purchasing some articles at 11:30 p.m. and upon being
informed of the occurrence by his wife, he proceeded to the
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respondent's room, by which time, it was found locked. It is evident
from their testimonies that PW-7 confronted the respondent
immediately after the incident, whereas, PW-4 reached the spot
approximately an hour later, by which time, the respondent had
already left. Thus, there is no contradiction in the statements of PW-2
and PW-7 regarding the presence of the respondent in his room. Both
witnesses consistently deposed that the prosecutrix disclosed the
occurrence immediately to the mother (PW-7), that she was bleeding
from her private part and that the respondent, who used to live with
the uncle of the victim, was the person who had committed the
offence.
33. Furthermore, the contention of the respondent that since the
semen sample could not be procured, it can be presumed that
respondent was incapable to commit sexual intercourse, needs to be
discarded. After arrest, the respondent was medically examined. PW-3
Dr. Shankar Narayanan, Medical Officer, RTRM Hospital, upon
examination, found that the external genetelia of the respondent was
normal. However, the semen sample could not be procured after
sufficient effort. No suggestion was put to the doctor that the semen
sample could not be procured because the respondent was incapable of
performing sexual intercourse. Moreover, the respondent was further
examined at DDU Hospital by Dr. Komal Singh (PW-11) after being
referred from RTRM Hospital. On examination, the doctor opined that
there was nothing to suggest that respondent was incapable of
performing sexual intercourse. His detailed report is Ex. PW-11/A.
Respondent did not cross examine Dr. Komal Singh. Therefore, the
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defence taken that respondent was incapable of sexual intercourse, is
not acceptable.
34. The testimony of victim cannot be regarded as “tutored” merely
because, in cross examination, she stated that her parents and the lady
Advocate, present in court, had instructed her before giving evidence.
There is nothing on record which may indicate that the parents or the
lady Advocate had proded the prosecutrix during deposition. Hence, it
cannot be said that the victim was tutored.
35. The victim, in her cross examination, stated that her uncle was
also present in the house, while according to PW-4 and PW-7, R,
uncle of the prosecutrix, was not present with the accused at the time
of incident. The statement of the prosecutrix under Section 164
Cr.P.C. was recorded on 19.08.2008 by the learned Metropolitan
Magistrate, wherein she stated that “ bhai ”, i.e., the Respondent, used
to reside in the house of her chacha , though her chacha was not
present on the day of the incident. The testimony of the victim was
recorded in court on 04.09.2009, that is, more than a year after the
incident. The prosecutrix, being only four and a half years of age at
the time of the incident, was able to remember the material facts of the
case, including what had happened to her and what had transpired in
relation to the sexual assault. Minor variation on ancillary details need
not be given undue importance.
36. Another significant circumstance not duly considered by the
learned Trial Court is that there was absolutely no material on record
to suggest any previous enmity or motive on the part of the family of
the prosecutrix to falsely implicate the respondent in an offence of
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such grave nature. Respondent himself took a contradictory defence,
inasmuch as, during cross examination of PW-4 and PW-7, it was
suggested that the respondent was having illicit relations with PW-7,
and over this issue, a quarrel took place between him and PW-4,
which led to his false implication. However, in his statement recorded
under Section 313 Cr. PC, he stated that he had given Rs. 50,000/- to
PW-7, mother of the prosecutrix, for safe keeping, but when he asked
for the return of money, she refused and threatened to falsely
implicate him in a criminal case, if he demanded back the money
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again and on 10 August, 2008, when he again demanded the money,
she falsely implicated him in this case and did not return the money.
37. The reasons stated for false implication are contradictory to
each other. Either way, no effort was made to prove the same.
Respondent has, therefore, failed to prove that the family of the victim
had any motive for his false implication. Thus, in the absence of any
established motive for false implication, the testimony of prosecutrix
and her parents, acquire greater credibility.
38. We are also unable to comprehend to the reasoning of the
learned Trial Court that the offence of rape remained unproved merely
because the prosecutrix did not expressly use the word "penetration"
in her testimony. The testimony of a child witness cannot be assessed
on the touchstone of technical, legal or medical terminology, but must
be appreciated by considering its substance, the surrounding
circumstances and the natural manner in which the child of such a
tender age narrates such a traumatic incident of rape. The Court must
remain sensitive to the fact that a child of four years is incapable of
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understanding or articulating the legal ingredients of the offence and
cannot be expected to describe the act in precise language. A perusal
of the statement of the prosecutrix recorded under Section 164 Cr. PC
(Ex. PW-14/B) by PW-14 reveals that she was hesitant, fearful, and
shy while recounting the incident, reflecting the trauma she had
undergone. Nevertheless, the prosecutrix consistently stated that
respondent removed her underwear, removed his own clothes, made
her lie on the bed, lay on top over her, caused pain in her private part,
and that blood started coming from her private part thereafter. After
this incident she straight way went to her mother and narrated the
incident to her. The narration of the incident immediately after the
occurrence to the mother, corroborates the testimony of the
prosecutrix. Her narration of the incident, though expressed in
childlike language, clearly conveys the occurrence of penetrative
sexual assault and cannot be discarded merely because she did not use
the specific expression "penetration."
39. In the case of State of Rajasthan v. Chatra (2025) 8 SCC 613,
the facts were somewhat similar. The child victim did not utter even a
single word and had just shed her tears in the court at the time of her
depositions. Dealing with the traumatic condition which the victim
had undergone, the Hon’ble Supreme Court set aside the order of
acquittal passed by the Rajasthan High Court and restored the
conviction and sentence awarded to the accused by the Trial Court,
while observing that even if the child witness could not depose what
had actually happened with her, the other corroborated evidence,
including the medical report, should be taken into account and in case
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of a child witness, her testimony alone cannot play a decisive role.
The relevant paragraphs of the judgment reads as under:-
“26. Having considered the principles of law
as above, let us now proceed further. We have
independently examined the evidence of the
witness, by placing reliance on whom the trial
court recorded the conviction of the
respondent-accused, which was erroneously
appreciated by the High Court, the same was
reversed by the High Court. The child witness
(victim), it is true, has not deposed anything
about the commission of the offence against
her. When asked about the incident, the trial
Judge records that 'V' was silent, and upon
being further asked, only shed silent tears and
nothing more. Nothing could be elicited from
the testimony regarding the commission of the
offence. This, in our view, cannot be used as a
factor in favour of the respondent. The tears of
'V', have to be understood for what they are
worth. This silence cannot accrue to the
benefit of the respondent. The silence here is
that of a child. It cannot be equated with the
silence of a fully realised adult prosecutrix,
which again would have to be weighed in its
own circumstances.
27. It has been held in Hemudan Nanbha
Gadhvi v. State of Gujarat [(2019) 17 SCC
523 :(2020) 3 SCC (Cri) 400], that a nine year
old prosecutrix turning hostile would not be a
fatal blow to the prosecution case when other
evidence can establish the guilt of the accused.
In these facts, “V‟ has not turned hostile.
Trauma has engulfed her in silence. It would
be unfair to burden her young shoulders with
the weight of the entire prosecution. A child
traumatised at a tender age by this ghastly
imposition upon her has to be relieved of being
the basis on which her offender can be put
behind bars. In almost all other cases, the
testimony of the prosecutrix is present and
forms an essential part of the conviction of an
accused, but at the same time, there is no
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hard-and-fast rule that in the absence of such
a statement a conviction cannot stand,
particularly when other evidence, medical and
circumstantial, is available pointing to such a
conclusion. Reference can be made to State of
Maharashtra v. Bandu [(2018) 11 SCC 163 :
(2018) 2 SCC (Cri) 458], wherein the
prosecutrix was “deaf and dumb and mentally
retarded”. The Court
held that even in the absence of her being
examined as a witness, other evidence on
record was sufficient to record conviction of
the accused. The principle of law, therefore, is
that if the prosecutrix is unable to testify, or
for some justifiable reason remains
unexamined, the possibility of conviction is
automatically excluded. At this stage, it is
important to record that we should not for a
moment be understood saying that a person
with a disability is by definition an
incompetent witness.”
40. In almost similar facts and circumstances, in the case of
Inderpal (supra), in her court statement, the prosecutrix merely stated
that the uncle pulled off her underwear, laid her on the floor and
thereafter laid upon her body and except that he did nothing. The Trial
Court acquitted the accused, holding that the said act did not constitute
“sexual assault”. While placing reliance on the judgement of Chatra
(supra), the Division Bench of this Court set aside the judgement of
acquittal, observing that the victim was under trauma and fear even
after months of the incident and held that the omission on her part to
aver the actual act of sexual assault cannot be said to be a discrepancy.
It was at the best an omission. It was further held that in the case of a
child in her preteens, the omission cannot be taken as a discrepancy.
41. The learned Trial Court failed to appreciate the cumulative
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effect of the ocular, medical and forensic evidence, and instead,
assessed each circumstance in isolation, resulting in an erroneous
conclusion. Consequently, we are of the considered opinion that the
findings of the learned Trial Court are contrary to the evidence on
record and suffer from a manifest mis-appreciation of the medical and
scientific evidence, warranting interference by this Court.
42. In view of the foregoing discussion, we are of the opinion that
the learned Trial Court misdirected itself in its appreciation of both the
ocular and scientific evidence and adopted an unduly narrow approach
while examining the ingredients of Section 376 IPC. The evidence on
record reveals the ordeal of a child, barely four and a half years of age,
who was betrayed and sexually assaulted by a neighbour, whom she
used to call “ Bhai ” and would ordinarily have trusted. Her prompt
disclosure of the incident to her mother (PW-7), her consistent
narration before the Magistrate (PW-14) under Section 164 Cr. PC and
her testimony before the Trial Court inspires confidence. The Courts
recognise that a child of such tender age cannot be expected to
describe the act with clinical precision; what is material is whether the
substance of the testimony is natural, truthful, and consistent. In the
present case, the testimony of the prosecutrix stands amply
corroborated by medical evidence of a torn hymen and a 1.2 cm tear at
the posterior fourchette with erythematous inflammation as also the
scientific evidence, confirming the presence of semen on the seized
panty ( Ex. IX-a and IX-b ) of the victim, leaving no room for
reasonable doubt.
CONCLUSION :
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43. The prosecution has been able to prove beyond reasonable
doubt that the respondent committed penetrative sexual assault upon
the minor prosecutrix and the investigative lapses, including the
failure to determine the blood group of the prosecutrix and the
accused, do not detract from the otherwise cogent, reliable, and
corroborated evidence on record. Consequently, the impugned
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judgment dated 29 April, 2010, insofar as it acquits the respondent of
the offence punishable under Section 376 IPC, and instead convicts
him under Section 354 IPC, is liable to be set aside.
44. The respondent/accused Munna is accordingly held guilty and
convicted for the offence punishable under Section 376(2)(f) IPC and
the impugned judgement and the order on sentence is hereby set aside.
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45. The matter be listed on 10 September, 2026, for hearing the
respondent/convict Munna on the point of quantum of sentence.
46. Since the respondent/convict is not present today, Non-Bailable
Warrants be issued against him, for his production on the next date of
hearing.
47. In the meanwhile, fresh Nominal Roll of the respondent/convict
be requisitioned from the Jail Superintendent.
RAVINDER DUDEJA, J.
NAVIN CHAWLA, J.
SEPTEMBER 02, 2026/NA
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