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Crl. L.P. 589/2018

Decided On: 29.04.2019

Appellants: State (NCT of Delhi) Vs. Respondent: Jitender Sharma

Hon'ble Judges/Coram:
Siddharth Mridul and Manoj Kumar Ohri


Siddharth Mridul, J.

1. There can be no manner of doubt that a conviction for committing penetrative sexual assault can be sustained on the sole testimony of the prosecutrix. [Ref: State (GNCT Of Delhi) vs. Vicky @ Karan & Anr. reported as MANU/DE/4800/2018 : 2019 (1) JCC 322; State (GNCT Of Delhi) vs. Kuldeep @ Kallu & Anr. reported as MANU/DE/4648/2018 : 2019 (1) JCC 298 (Del); Boby vs. State, Crl. A 1119/2014; Vishnu (alias) Undrya vs. State of Maharashtra reported as MANU/SC/2156/2005 : (2006) 1 SCC 283; State of M.P. vs. Dayal Sahu, reported as MANU/SC/0965/2005 : (2005) 8 SCC 122)]. However, it is equally well established that, the testimony of the prosecutrix must be creditworthy and inspire confidence.

2. The State has instituted the present petition seeking grant of leave to assail the judgment dated 30.05.2018, in Session Case No. 21/2013, arising out of FIR No. 19/2013 (hereinafter referred to as the 'subject FIR') under sections 376 Indian Penal Code, 1860, read with sections 4 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO') registered at Police Station-Begumpur, Delhi; whereby the respondent Jitender Sharma was acquitted of the aforementioned charges.

3. The gravamen of the charge, for which the appellant has been convicted, is for having committed rape upon his own daughter/the prosecutrix, a girl aged about 13 years, at the time of commission of the offence.

4. The facts of the case as borne out from the record are that on 17.01.2013 vide DD No. 26A, on a PCR call was recorded regarding rape by father with his daughter, aged 8 years at H. No. B-1970, Kashmiri Block, Jain Nagar, Delhi. SI Dinesh along with Ct. reached the house where the mother of the victim met and reported rape by her accused husband with two minor daughters V aged 8 years and M aged 13 years. NGO was called and victims were taken to SGM hospital where they were medically examined and the complainant S gave her statement that she is a house wife and has four daughters and a son and her husband runs a factory. On 11.01.2013, her husband committed wrong act with daughter V after taking her to some other room and also threatened her not to tell anything to anyone or else she will be killed. On 13.01.2013 when she was cleaning the house, she found one blood stained underwear of victim V under the bed. On inquiry, she told that her father lifted her from the bed in the night and lied her on a sofa and gave her some tablet after which she was feeling sleepy and then he inserted his 'shushu wali jagah in her shushu wali jagah' and when she was feeling pain then her father again brought her back to the bed. She was conferring about this incident with her family members and did not report the commission of the offence to the police, but when her elder daughter M who was living with her maternal grandmother came and informed that, her father committed wrong act with her, as well, which the former did not disclose because of fear, the complainant came to Police Station and lodged the FIR. After medical examination of the victim M, her statement u/s. 164 Cr.P.C. was recorded. IO collected the date of birth proof of the victim and sent sample (cotton wool swab on a wooden stick of victim M) to the Forensic Sci........