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Testimony of child victim is reliable and trustworthy: Delhi High Court

When the statements of the child victim are consistent against the abuser, then the testimony of the child victim is trustworthy, reliable and admissible. Once such facts are proved, the onus is upon the accused to lead evidence to rebut the presumption. This was held by the Hon’ble Justice Manoj Kumar Ohri in the case of Rakesh @ Diwan Vs. The state (GNCT of Delhi) [CRL.A. 454/2020] on the 10th of august 2021, before the Hon’ble High Court of Delhi at New Delhi.

The brief facts of the case are, at the time of alleged incident, PW-1/Victim and accused were residing in the jhuggi cluster of Sanjay Colony, Okhla Industrial Area Phase-II, New Delhi. The FIR bearing No.513/2013 under Section 376 IPC & Section 6 of the POCSO Act came to be registered on the complaint of PW- 2/’CD’ (mother of the victim). The mother of the victim was a widow, who was supporting his family by doing odd jobs at various houses. It has been alleged that on 20.09.2013, at around 02.00 PM, the victim went outside her jhuggi and after a while, the mother of the victim started looking for her as she was not traceable. She made inquiries from the neighbors and came to know from PW-4/Sangam (age around 6 years) that accused had taken her daughter to his jhuggi. On gaining this information, she went along with PW- 4 to the jhuggi of accused and knocked on the entrance door. The accused opened the door and ran away from there. The mother of the victim entered the jhuggi and saw her daughter lying naked on a cot with discharged semen on her mouth. The victim disclosed her mother that accused had committed penetrative sexual assault upon her by inserting his penis in her mouth. The mother of the victim wiped the mouth of her daughter and took her home. On reaching home, she informed her husband. On gaining this information, the father of the victim called his relatives and spoke with the father of the accused. He requested him to produce the accused but the father of the accused kept avoiding it. Finally, on the next day, at around 10.08PM, the mother of the victim made a call at 100 number and reported the matter to the police. On receiving this information, police officials arrived at the spot and recorded the statement of the mother of the victim and FIR was registered. On registration of FIR, necessary investigation was carried out and accused was arrested. Medical examination of the victim and the potency test of the accused were done at AIIMS Hospital. Samples including the vaginal swab of the victim & the semen of accused were collected by the doctors during the examination of the accused and the victim. The clothes of the accused & the victim were seized. Samples and the seized clothes were sent for analysis to the FSL. Statement of the victim was recorded under Section 164 Cr.P.C. Site plan was prepared and the statement of other witnesses were recorded. The investigation concluded and the charge-sheet was put to the court Subsequently, the Investigating Officer collected the FSL report but the same remained inconclusive. The report was submitted in the court with the supplementary charge-sheet under Section 173(8) Cr.P.C.

The counsel for the prosecution submitted that the child victim Baby ‘K’ during her examination initially could not identify the appellant however, on being put leading questions by the prosecutor if the accused has done some wrong act with her, she nodded in affirmative and stated that “Haa Kiya tha”. She further stated that the appellant had removed her underwear as well as his own underwear and thereafter closed the door. She further stated that the appellant was giving money to her and removed her vest; and that he put his penis in her mouth. In cross examination, suggestion of tutoring was given, to which the child victim replied that her parents had neither stated anything to her nor tutored her. Again, on a specific question, that her mother had told her to depose that the appellant closed the door of the room, to which the child victim replied that her mother had not told her to depose in this manner. She had further described the room, where incident had taken place that there was only one door in the room and there was no ceiling fan. The child victim, on seeing the appellant’s face on the screen, identified him as Diwan and stated that he had removed her underwear. She also stated that when the appellant was trying to give her money neither any child nor any other person was present. She denied that no such incident took place on that day and that she was deposing at the instance of her mother. Learned counsel for the appellant has contended that there are contradictions in the statement of the child victim and her mother. While the child victim, during her cross examination, stated that when the appellant had removed her clothes, no other person was present; and when he was trying to give money, no other child was present. Further, the child victim stated that her mother had not come to the room to take her. However, the mother of the child victim deposed that when she knocked at the door of the appellant’s Jhuggi, the appellant came out and she found her daughter lying in the bed with her lower removed and she also saw semen in her mouth.

The learned judge heard both the parties and relied on the judgement in the case of State of Himachal Pradesh v. Sanjay Kumar alias Sunny reported as (2017) 2 SCC 51, wherein it was held that, “After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove”. The court upheld the sentence passed by the trial court and dismissed the appeal.

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