State Vs Mohd. Arif

The present criminal appeal under Section 378 of the Code of Criminal Procedure (hereinafter ‘ CrPC ’) has been preferred by the State assailing the Impugned Judgment of Acquittal dated 10^th May, 2013, passed by the Ld. Additional Sessions Judge-01 (North East): Karkardooma Courts, Delhi, whereby the Respondent/Accused has been acquitted in Sessions Case No. 37/2012 , arising out of FIR No. 22/2012 , registered at Police Station Seelampur, under Section 376(2)(f) of the Indian Penal Code, 1860 (hereinafter ‘IPC’ ).

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FACTUAL MATRIX:

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The factual genesis of the present case is as follows. On the intervening night of 21^st and 22^nd January, 2012, DD No. 36-A was recorded at Police Station Seelampur in connection with an alleged attempt of rape upon a minor girl aged approximately 6 years, at House No. E-1/56, Near Kabari Pulia, Lakri Market, Seelampur, Delhi. The said DD was assigned to S.I. Fateh Singh (PW-9), who reached the spot accordingly.

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Upon arrival at the spot, S.I. Fateh Singh was met by certain members of the public who produced the Respondent/Accused- Mohd. Arif, before him. It was stated by the people present there, that the Respondent/Accused had lured the victim, aged about 6 years, from the gali and taken her to his Jhuggi bearing No. E-1/12, Seat Market, New Seelampur, Delhi, and had thereupon attempted to commit rape upon her. The Prosecutrix/Victim was also produced before S.I. Fateh Singh at the spot, along with her mother PW-4.

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S.I. Fateh Singh thereafter called Lady Constable Sumitra (PW-5) from the Police Station and sent the Prosecutrix/Victim along with her mother (PW- 4) to GTB Hospital for medical examination. The victim was medically examined at GTB Hospital vide MLC bearing Mark ‘X’. The Respondent/Accused was simultaneously sent in the custody of Ct. Ashok Kumar (PW-8) to GTB Hospital for his medical examination, which was conducted vide MLC Ex.PW3/A, proved by PW3 Dr. Mohd. Parvez, J.R., GTB Hospital. The relevant portions of MLCs of both the Prosecutrix/Victim and the Respondent/Accused are extracted hereinbelow:

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Victim MLC:

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“History & Clinical Examination

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History: 6-year-old female, alleged history (as told by patient & her mother) of sexual assault by neighbor, Mohd. Arif, on 21/01/12 at 11:00 AM, when she was sent to buy something from a shop nearby.

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General Condition: Patient is conscious and oriented.

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Local Examination (P/A & L/E):

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P/A (Per Abdomen): Soft, no organomegaly.

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o L/E (Local Examination): * Hymen: Intact.

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Local Findings: Small abrasion at

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posterior fourchette.

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Pain/Tenderness: Tenderness present, no active bleeding.

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Anal Opening: Intact.”

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Respondent/Accused MLC:

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“Local Examination:

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Secondary sexual character beard, Moustache, Axillary hair, Pubic hair well developed.

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Both testes are in scrotal sac.

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Penis is well developed, normal and circumscribed.

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Opinion:

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There is nothing suggestive that patient is not capable of performing sexual intercourse.”

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The relevant medical opinion regarding the Respondent/Accused and Prosecutrix/Victim MLC is reproduced hereinbelow:

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*Witnesses*	*Statement* In *Chief*	*Statement* In	*Cross*
	*Examination*	*Examination*
*PW- 13 Dr.*	I have worked with Dr.

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*Modesta*	Shruti B at GTB Hospital
*(victim* *MLC)*	and as such I am acquainted with her writing and signature. She has left service from GTB Hospital and her present whereabouts are not known to me. I have seen the MLC No.G-8/12 available on judicial file which was prepared by Dr. Shruti B and I identify her signature at point A. The MLC Mark X is now Ex.PW13/A.
*PW- 3 Dr.* *Mohd.* *Parvez*	On 22.01.2012, at about 02:45am, patient Mohd. Arif (accused), S/o Mohd. Hanif, 26 years male, brought by Ct. Ashok Kumar was medically examined, vide MLC Ex.PW3/A which bears my signature at point A. Alleged history 'sexual assault' was recorded by me as given by brought by aforesaid constable. I recorded general condition of patient. He was conscious and oriented. At the time of medical examination, smell of alcohol was present in his breath. I also recorded secondary sexual character of the	I had not noticed any external injury on the penis of patient.

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patient at encircled portion X on MLC Ex.PW3/A. I gave impression “there is nothing to suggest that patient is not capable of performing sexual intercourse”.

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On the basis of the statement of PW-4, mother of the victim, recorded by S.I. Fateh Singh vide Ex.PW4/A, endorsed vide Ex.PW1/A. FIR No. 22/2012 under Sections 376/511 of the IPC, was registered at P.S. Seelampur, vide Ex.PW1/B. Subsequent to registration of the FIR, investigation of the present case was handed over to W/S.I. Sarita (PW-10). Ex.PW/4/A is reproduced hereinbelow:

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“ बयानिकयािकम�पताउपरो�परमयप�रवाररहती �ँऔरघरेलूकाय�करती�ँतथामेरेपित�र�ाचलाते ह�।मेरेदोब�ेह� , िजनम�छोटीलड़की रकशा ै उ� 6 सालकीहै।जोकलिदनांक 21-1-2012 कोसमय करीब 10-30 बजेरातकोहमारेपड़ोसम�रहनेवाला मो०आ�रफ s/o मो०हनीफ R/o झु�ी E-1/12 New Seelampur, हमारेघरपरआयाऔरमेरीलड़क ीरकशा ै कोपैसेदेकरदुकानसेगुटकालानेकोकहातथायह कहकरिकगुटकामेरीझु�ीम�देआना , अपनीझु�ीम� चलागयाऔर रकशा ै गुटकाखरीदकरआ�रफकी झु�ीम�चलीगईजबकुछदेरतक रकशा ै वापसनहीं आईतोम� रकशा ै कोतलाशकरती�ईआ�रफकी झु�ीपरप�ंचीजोआ�रफकीझु�ीकादरवाजाब� थामेरीधमकदेखकरआ�रफकीझु�ीकादरवाजा खोलातोदेखाकीआ�रफनेअपनािन�रनीचेउतार रखाथातथा रकशा ै केसारेकपड़ेउताररखेथेतथाउसे बेडपरलेटारखाथाजो रकशा ै तुर�रोती�ईदौड़कर

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मेरेपासआईतथाकहनेलगीिक UNCLE अपनी पेशाबकरनेकीजगहपरअपनीडालनेकीकोिशशकर रहेथेजो रकशा ै काफीडरी�ईथीजोमेरेशोरमचाया तोमेराभा ईिफरोज वअ�लोगइक�ाहोगयेम�नेसारी बात�उ��बताईतोमेरेभाई िफरोज ने 100 नं०पर Phone करिदयाजोआ�रफने मरीलड़कीे रकशा ै के साथगलतकामकरने कीकोिशशकीह।ै उसके �खलाफकानूनीकाय�वाहीकीजावे ”

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During the course of investigation, the Respondent/Accused was arrested, his personal search was conducted, and seizure memos were prepared. The site plan of the place of occurrence was also prepared.

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During the course of investigation, the statement of the Prosecutrix/Victim was recorded under Section 164 CrPC on 18^th February 2012 by PW-11 the Ld. Metropolitan Magistrate hereinafter referred to as the ‘Ld. MM’ ), vide Ex.PW2/A. The relevant portion of the statement made by Prosecutrix/Victim under section 164 CrPC is reproduced hereinbelow:

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“ म�अपनेपापा - म�ीकेसाथरहती�ँ।पड़ोसम�आ�रफ अंकलरहतेह�।वोमेरेघर 10 बजेआएऔरमुझसेकहा िकशेखरऔरकुबेरअ�ाकीदुकानसेलेआओ। हमारीगलीकेबाहरअ�ाकीदुकानहै।िदनमुझेपता नहींपरकाफीिदनहोगएह�।म�शेखरऔरकुबेरलेकर आईऔरआ�रफअंकलनेअपनेघरकेबाहरमुझे रोकाऔरघरपरबुलाया।अ�रबुलाकेमेरीपजामी उतारीऔरअपनालु�ीमेरीपेशाबवालीजगहम� डालने कीकोिशशकरने लग।े थोड़ासीलु�ीउन अंकलनेडालदीथी।िफरपापानेघरसेबाहरसेमुझे आवाजदीथी।आ�रफअंकलनेपूरेहाथसेमेरामुँह दबारखाथा।आवाजसुनतेहीउ�ोंनेमुझेछोड़िदया , म�नेपजामीपहनीऔरउ�ोंने ( अंकल ) नेचेनबंदकर दी।म�घरसेभागकरअपनेघरचलीगईऔरम�ीको

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सबकुछबताया।भागतेसमयमुझेआ�रफअंकलके घरकेपासपापाभीिमलेथे। “

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Upon completion of investigation, a charge sheet was filed against the Respondent/Accused under Sections 376/511 of the IPC. Vide order dated 15^th May, 2012, the Ld. Trial Court framed charges against the Respondent/Accused for the offence punishable under Section 376(2)(f) of the IPC. The Respondent/Accused did not plead guilty and claimed trial. 10. In order to prove its case, the prosecution examined 14 witnesses. The material witnesses and their testimonies, are summarised hereinbelow.

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*Witnesses*	*Statement* In *Chief* *Examination*	*Statement* In *Cross* *Examination*
*PW-* 2	Accused Mohd. Arif,	xxxx by Sh. S.N.
*(Prosecutrix* */Victim)*	present in court (correctly identified), is known to me being my neighbour. One day in night hours accused had	Qureshi, counsel for accused. I do not remember date, month and year of the incident. Accused had
	sent me to bring Dilbagh and Kuber (tobacco) from a nearby shop. I had brought the same and handed over him at his house. Accused had taken me inside his house and he put off my pajami and inserted his finger into my private part. I felt pain. On asking by this court “what accused done with you”, witness	not done anything wrong with me. It is correct that on last date of hearing I had deposed before this court at the instance one police official who had tutored me outside the court. At this stage, ld. APP requests to re-examine this witness as witness is suppressing the material truth. Heard. Allowed.

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states that “accused had It is wrong to suggest inserted his penis into that today I have come her vagina”. along with brother of My father had called me accused. It is further from outside when wrong to suggest that accused had left me. I today I am deposing dressed up and came falsely at the instance out from the Jhuggi of of brother of accused in accused. I had narrated order to save the the aforesaid incident to accused. It is further my mother at my house. wrong to suggest that I My maternal uncle had am deposing falsely on called police. Police the facts that on took me to P.S., 22.05.2012, I had been thereafter, I was taken tutored by police to GTB Hospital by official. police along with my mother. PW-4 Nilofer Name of my daughter is It is wrong to suggest (Mother Of - Kehkasha and her aged that accused Mohd. Prosecutrix/ is about 06 years at Arif had also left the my Victim) present. On 21.01.2012 house after some time at about 10:30 p:m. she and that by that time had gone outside my victim had not returned house in the gali after back to my house, 10-15 minutes she confronted portion B to returned weepingly, and B of statement told me that she fell. Ex.PW4/A where it is down and sustained so recorded. It is wrong injury. Someone from to suggest that I had public called police on reached at the house of seeing the condition of accused in search of my daughter as she was victim and that I had semi unconscious and seen him lying on the weeping loudly. Police bed and that victim was had taken my daughter also lying on the same to GTB Hospital. I had bed naked or that I had

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also gone there where police had obtained my signature on one paper, same is Ex.PW4/A which bears my signature at point A. Vol. Said. At the time when I put my signature it was blank. Police never visited my house after 22.01.2011. Accused present in court is known to me being resident of our mohalla. Accused did not commit any wrong act with my daughter. I do not know other facts of this ease.

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pushed the door of the Jhuggi of accused or that my daughter came to me immediately and that victim had told me that accused Arif had tried to insert his penis into her vagina, confronted portion C to C of statement Ex.PW4/A where it is. so recorded. It is wrong to suggest that I had raised alarm on seeing the wrong act committed by accused Arif and that my brother Firoz and some other mohalla people gathered or that my brother Firoz had made call at 100 number, confronted portion D to D of statement Ex.PW4/A where it is so recorded. XXX It is wrong to suggest that police had inspected place of occurrence i.e. Jhuggi of accused in my presence or that I had told to police that accused had committed wrong act upon victim in my presence at that time. It is further wrong

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		to suggest that accused was arrested at about 6;30 a.m. on 22.01.2012 in my presence or that I had told to police at that time that accused had committed wrong act with my daughter.
*PW-6 Nilofer* *(Uncle* of *the Victim)*	On the intervening night of 21^st & 22^nd, January'2012, I was returning to my house and I noticed gathering of some people there. Some people had told me there that some wrong act had been committed upon the victim. I had informed to police at 100 number about the incident. I do not know by whom wrong act had been committed upon victim. Police reached at the spot. Father of victim was present among the public persons. I do not know the other facts of this case.	… it is wrong to suggest that accused Arif had been arrested at the spot in my presence on being produced by father of victim. Voi. I had put my signature on arrest memo lateron at the request of police.
*PW-7 Nilofer* *(Father* of *the Victim)*	… My daughter, victim is 7 years old at present. On intervening night of 21-22 January'2012, I returned to my house on completion of my duty.	XXX by ld. APP for the State XXX … It is further wrong to suggest that police had arrested accused Arif in

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At that time, victim was my presence. It is watching T.V. at my further wrong to house. Accused present suggest that I had told in court had come at to police at the time of our house at about arrest that accused Arif 10:30 p.m. when I was had committed wrong taking meal. Accused act upon victim. It is had sent victim to bring further wrong to two pouch of tobacco suggest that police had (gutka) from market. prepared arrest memo Victim did not return Ex.PW6/B at spot in my and we started search presence and that I had after 15 minutes. put my thumb During search victim impression at point B. was found inside the Vol. said. I had put my room of accused when thumb impression on accused was repairing the arrest memo later electricity in his house. on at Police Station. Accused had left my … it is further wrong to house after about five suggest that I have minutes after sending been won over by the the victim for accused or that I am purchasing gutka from deposing falsely in market. On reaching at order to save the the house of accused accused. It is further there was dark and I wrong to suggest that I took her back to my have settled the matter house. Thereafter, I with accused outside went to market and the court. returned after two and half hours. At that time police officials were present and they took victim to GTB Hospital for her medical examination, I do not know other facts of this case.

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*PW-* 8 *Ct.*	Victim aged about 6
*Ashok*	years along with her
*Kumar*	mother Smt. Nilofer met
	us there. S.I. Fateh
	Singh interrogated
	them. Accused Arif,
	present in court
	(correctly identified),
	was produced before us
	by the public. Smt.
	Nilofer told us that
	accused Arif had taken
	victim and attempted to
	commit rape upon
	victim. XXX
	S.I. Fateh Singh
	statement of Smt.
	Nilofer and made
	endorsement to get the
	FIR of present case
	registered for offence
	u/s 376/511 IPC. Ct.
	Ram Kumar was sent to
	P.S. along with rukka
	for registration of FIR.
	Investigation of this
	case was assigned to
	S.I. Sarita.

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The medical evidence, including the MLC of the victim, indicated that the hymen was intact and only a small abrasion was present. The FSL report being Ex. PW- 10/B, also did not detect semen on the exhibits examined. 12. Upon the closure of the prosecution evidence, the statement of the Respondent/Accused was recorded under Section 313CrPC. The Respondent/Accused denied all the incriminating circumstances and

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evidence put to him, claimed to be innocent, and stated that he had been falsely implicated in the present case. The Respondent/Accused did not lead any defence evidence.

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The Ld. Trial Court vide the Impugned Judgment dated 10^th May, 2013, acquitted the Respondent/Accused of the charge under Section 376(2)(f) of the IPC extending to him the benefit of doubt. The operative reasoning of the Ld. Trial Court, as recorded in the Impugned Judgment, reads as under:

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“56. Considering the circumstances coupled with the facts of the case and evidence available on record, this court is of the view that testimony of minor should be scrutinized carefully while relying upon her testimony. In the present case, victim had stated that she had deposed at the instance of police official who had tutored her outside the court and complainant had also suggest that victim had sustained abrasion while fallen down and MLC also suggest that small abrasion but doctor had not explained any fact to this effect. Hence, in these circumstances, testimony of victim and her mother are not sufficient to convict the accused. Hence, he is acquitted from charges u/s 376 (2) (f) IPC by giving him benefit of doubt.

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57.1n terms of section 437 A Cr.P.C., accused Mohd. Arif is directed to execute bail bond in sum of Rs. 15,000/- with one surety in the like amount for the period of months. File be consigned to record room.”

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The Ld. Trial Court thus rested its finding of acquittal principally on three considerations: first, that the Prosecutrix/Victim had herself stated in cross-examination that she had been tutored by a police official; second, that

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the complainant/PW-4 had stated that the abrasion on the Prosecutrix/Victim was the result of a fall and third, that the MLC did not affirmatively support the prosecution's version and no medical explanation was forthcoming from the examining doctor.

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The State being aggrieved by the aforesaid Impugned Judgment and order of acquittal has preferred the present appeal under Section 378 of the CrPC.

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SUBMISSIONS ON BEHALF OF THE APPELLANT:

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Mr. Bahri, Ld. APP appearing for the state submits that the Prosecutrix/Victim (PW-2), who was approximately six years of age at the time of the incident, had categorically supported the case of the prosecution in her examination-in-chief dated 22^nd May 2012, wherein she clearly identified the Respondent/Accused and narrated the incident in detail. The said testimony is stated to be consistent with her statement recorded under Section 164 of theCrPC.

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It is further submitted that the Ld. Trial Court erred in discarding the said testimony merely on account of the Prosecutrix/Victim turning hostile at a later stage, i.e., during her cross-examination conducted on 8th August 2012, after a lapse of about two and a half months. It is contended that the Prosecutrix/Victim had initially narrated the incident in detail, and her subsequent retraction ought to have been scrutinized in light of the surrounding circumstances, including the possibility of her being influenced or won over.

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The Ld. APP submits that the Ld. Trial Court has wrongly acquitted the Respondent/Accused by placing undue reliance on the subsequent

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statement of the Prosecutrix/Victim wherein she claimed that the Respondent/Accused had not committed any wrongful act and that her earlier testimony was allegedly given under tutoring by a police official. It is contended that such a statement could not have been accepted at face value, particularly in the absence of any material suggesting any motive on the part of the police to falsely implicate the Respondent/Accused. Rather, it is submitted that the circumstances indicate that the Prosecutrix/Victim may have been won over, leading to her hostility.

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It is further submitted that the prompt registration of the FIR, the immediate medical examination and the apprehension of the Respondent/Accused at or near the spot, lend assurance to the prosecution case and corroborate the version of the Prosecutrix/Victim. 20. The Ld. APP thereafter points out the testimony of the hostile witnesses, submitting that the Ld. Trial Court erroneously characterised PW6 and PW-7 as witnesses who had not supported the prosecution at all. On the contrary, it was submitted that PW-6 had deposed that on the intervening night of 21^st and 22^nd January, 2012, he noticed a gathering of people at the spot, was informed that a wrong act had been committed upon the victim, and had immediately called the police at the 100 number. It was urged that this testimony of PW-6 which was made immediately after the incident and cannot be dismissed as non-supportive. Similarly, it was submitted that PW7, the father of the victim, had in his deposition stated that the Respondent/Accused had come to their house at about 10:30 p.m. and had sent the victim to the market to purchase tobacco and that the victim did not return for fifteen minutes. Then upon searching, the victim was found inside the room of the Respondent/Accused. It was submitted that these are

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material pieces of corroboration and go to the root of the prosecution's case, none of which were adverted to or considered by the Ld. Trial Court in the Impugned Judgment.

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The Ld. APP submits that the MLC of the Prosecutrix/Victim vide Ex.PW13/A records abrasion marks on the Prosecutrix/Victim. It is submitted that PW-13 Dr. Modesta, who proved the said MLC, was not cross-examined by the defence at all, and the MLC must therefore be treated as having been admitted and accepted. It is further submitted that the presence of abrasions, when read alongside the consistent account given by the Prosecutrix/Victim in her statement and examination-in-chief, lends material corroboration to the prosecution's case. Ld. APP urged that the Ld. Trial Court erred in treating the MLC as not supporting the prosecution, without there being any expert opinion or medical evidence to suggest that the abrasions were consistent with a fall rather than with sexual assault. 22. The Ld. APP further submits that the Ld. Trial Court committed an error of law in ignoring the examination-in-chief of PW-2 and placing reliance exclusively upon the improved and retracted version given by her in cross-examination. It was urged that settled law, as laid down by the Supreme Court in Khujji @ Surendra Tiwari v. State of M.P., AIR 1991 SC 1853, holds that where a witness substantially supports the case of the prosecution in examination-in-chief and thereafter turns hostile in crossexamination, the cross-examination cannot be used to wipe out or efface the examination-in-chief altogether. The credible portions of the evidence, particularly the examination-in-chief, are required to be accepted and acted upon after careful scrutiny. It is submitted that this settled legal position found no reference whatsoever in the Impugned Judgment.

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It is further submitted that the Ld. Trial Court has failed to consider that even in the statement of the Respondent/Accused under Section 313 of the CrPC, there is no substantive defence taken, and the Respondent/Accused has merely denied the allegations without offering any explanation. It is argued that once the foundational facts were established through the testimony of the Prosecutrix/Victim and corroborative circumstances, the burden to rebut the same was not discharged by the Respondent/Accused.

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The Ld. APP also submits that the Impugned Judgment is extremely cursory and lacks proper reasoning, with the analysis being confined to a limited discussion and without dealing with crucial aspects such as the examination-in-chief of the Prosecutrix/Victim, her statement under Section 164 CrPC, the medical evidence, and the settled legal position regarding hostile witnesses.

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SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

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Per contra, Ld. counsel appearing for the Respondent/Accused opposes the present appeal and supports the Impugned Judgment of Acquittal, submitting that no interference is warranted in the facts and circumstances of the case.

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At the outset, it is contended that the entire prosecution case has failed to meet the threshold of proof beyond reasonable doubt, which is the foundational requirement of a criminal case. It is submitted that the Ld. Trial Court, upon appreciation of the evidence, has rightly concluded that the prosecution has failed to establish the guilt of the Respondent/Accused. 27. Ld. counsel submitted that an appraisal of the evidence on record

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reveals that not a single material prosecution witness has supported the case of the prosecution. It is submitted that out of the four principal material witnesses examined by the prosecution, not one has deposed in terms of the prosecution's case. PW-2, the Prosecutrix/Victim herself, retracted from her earlier version and categorically stated in her deposition that the Respondent/Accused had not done anything wrong with her. PW-4, the mother of the victim and the original complainant, deposed that the victim had gone outside her house in the gali and returned weeping after 10-15 minutes, stating that she had fallen down and sustained injury. She categorically denied that the Respondent/Accused had committed any wrong act with her daughter. PW-6 and PW-7, uncle and the father of the victim, also did not support the prosecution's case in material particulars and were accordingly declared hostile by the State. It is submitted that when the totality of the evidence is seen in this light, the entire edifice of the prosecution's case stands demolished.

¶135

The Ld. Counsel for the respondents further submits that even the father of the Prosecutrix/Victim (PW-7) has given a vague version, merely stating that the child was found in the vicinity of the Accused juggi , which by itself does not establish the commission of any offence. It is argued that such testimony, being hearsay in nature and lacking specificity, cannot form the basis of conviction. 29. The Ld. counsel places reliance upon the deposition of PW-4, the mother of the Prosecutrix/Victim, to submit that the abrasion noted in the MLC of the Prosecutrix/Victim has been adequately explained. It is submitted that the mother herself, the natural guardian of the child and the person best positioned to know the circumstances, has deposed before the

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court that the victim returned home weeping and informed her that she had fallen down and sustained injury. The Ld. Counsel submits that this explanation consistent as it is with the MLC finding of a small abrasion with an intact hymen provides a credible account of the victim’s injuries, wholly inconsistent with the prosecution’s theory of sexual assault.

¶141

On the medical evidence, the Ld. Counsel submits that the MLC of the Prosecutrix/Victim vide Ex.PW13/A records that the hymen was intact and that there was merely a small abrasion. It is submitted that the MLC, far from supporting the prosecution's case, effectively goes against it. The Ld. Counsel drew the attention of this Court to the observations made during the course of hearing, noting that the MLC discloses no bleeding, no significant injury to any vital part, and no finding consistent with penetrative sexual assault. It is submitted that a small abrasion, standing alone and unexplained by the examining doctor as being referable to the alleged act, cannot be treated as corroborating the version of the Prosecutrix/Victim with respect to rape or attempt to rape.

¶142

It is further contended that the entire case of the prosecution suffers from lack of corroboration, and there is no independent evidence to support the allegations made in the examination-in-chief of the Prosecutrix/Victim. It is submitted that when multiple prosecution witnesses have failed to support the case, the benefit of doubt must necessarily go to the Respondent/Accused.

¶143

ANALYSIS AND FINDINGS:

¶144

The Court has considered the matter.

¶145

The principal issue before this Court is whether the Ld. Trial Court

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was justified in extending the benefit of doubt to the Respondent/Accused and acquitting him of the charge under Section 376(2)(f) of the IPC on the basis of the evidence led during the trial.

¶151

Before adverting to the aforesaid issues and the submissions advanced by the parties, it would also be necessary to briefly notice the nature of evidence led by the prosecution during the course of the trial.

¶152

A reading of the evidence led by the prosecution would show that the case primarily rests upon the testimony of the Prosecutrix/Victim and the statement allegedly made by her immediately after the incident. While the Prosecutrix/Victim, in her examination-in-chief, supported the allegations against the Respondent/Accused, the same witness, in her crossexamination, resiled from the allegations and stated that the Respondent/Accused had not committed any wrong act with her. The complainant i.e ., PW-4 the mother of the Prosecutrix/Victim, who made the complaint on the basis of which the FIR came to be registered, also did not support the prosecution case before the Court and attributed the injuries suffered by the child to a fall outside the house. The remaining public witnesses and family members similarly did not support the prosecution version in material particulars.

¶153

The medical and forensic evidence led by the prosecution also does not furnish conclusive corroboration to the allegations levelled against the Respondent/Accused. The MLC of the Prosecutrix/Victim records that the hymen was intact and notes a small abrasion, however, no medical opinion was brought on record conclusively connecting the said injury with the offence alleged. The FSL reports also did not detect semen on the exhibits examined. The medical examination of the Respondent/Accused similarly

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did not reveal any external injuries.

¶159

It is in the backdrop of the aforesaid evidence that the findings returned by the Ld. Trial Court and the submissions advanced by the parties are required to be examined. 38. The principal submission of the Prosecution is that the Ld. Trial Court committed an error in placing reliance upon the cross-examination of the Prosecutrix/Victim while disregarding her examination-in-chief and her statement under Section 164 CrPC. According to the Prosecution, the testimony of the Prosecutrix/Victim in examination-in-chief clearly established the role of the Respondent/Accused and the subsequent hostility of the witness ought not to have resulted in acquittal.

¶160

It is a well settled principle the merely because a witness is declared hostile, the entirety of the testimony does not become inadmissible. The Court is entitled to rely upon those portions of the testimony which inspire confidence and are corroborated by other material available on record. At the same time, the Court cannot selectively read only one portion of the evidence while completely ignoring another material portion of the same testimony.

¶161

In the present case, the Prosecutrix/VictimPW-2, in her examination-in-chief, supported the prosecution case. She identified the Respondent/Accused as her neighbour and stated that he had taken her inside his jhuggi , removed her lower garment and inserted his finger into her private part. She further stated, in response to a question put by the Court, that the accused had inserted his penis into her vagina. The relevant portion of the statement made by the PW-2 Prosecutrix/Victim are reproduced hereinbelow:

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Witnesses Statement In Chief Examination
PW- 2 Accused Mohd. Arif, present in court
(Prosecutrix (correctly identified), is known to me
/Victim) being my neighbour. One day in night
hours accused had sent me to bring
Dilbagh and Kuber (tobacco) from a
nearby shop. I had brought the same and
handed over him at his house . Accused
had taken me inside his house and he
put off my pajami and inserted his finger
into my private part. I felt pain.
On asking by this court “what accused
done with you”, witness states that
“accused had inserted his penis into her
vagina”.

¶167

However, in her cross-examination conducted the Prosecutrix/Victim categorically stated that the accused had not done anything wrong with her. She further stated that on the earlier date she had deposed before the Court at the instance of a police official who had tutored her outside the court. The relevant portion of the statement made by the PW-2 Prosecutrix/Victim are reproduced hereinbelow:

¶168

*Witnesses*	*Statement In Cross Examination*
*PW-* 2	xxxx by Sh. S.N. Qureshi, counsel for
*(Prosecutrix*	accused.
*/Victim)*	I do not remember date, month and year
	of the incident. *Accused had not done*
	*anything wrong with me. It is correct*
	*that on last date of hearing I had*
	*deposed before this court at the instance*

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¶172

one police official who had tutored me outside the court. At this stage, ld. APP requests to reexamine this witness as witness is suppressing the material truth. Heard. Allowed.

¶173

The submission made by the Prosecution is that the subsequent retraction by the Prosecutrix/Victim ought to have been ignored on the ground that she had been won over by the Respondent/Accused. However, except for the suggestion put to the witness by the Ld. APP, there is no substantive material on record to establish that the witness was won over, threatened or coerced. On the contrary, the witness herself attributed her earlier statement before the Ld. Trial Court to tutoring by a police official. 43. The cross-examination of a witness is an integral part of the evidence and cannot be excluded from consideration. Once the Prosecutrix/Victim herself resiled from the allegations and attributed her earlier statement to tutoring.

¶174

The Prosecution has also placed reliance upon the statement of the Prosecutrix/Victim recorded under Section 164 CrPC. The relevant portion of the statement is reproduced hereinbelow:

¶175

“अ�रबुलाकेमेरीपजामीउतारीऔरअपनालु�ी मेरीपेशाबवालीजगहम�डालनेकी कोिशशकरने लग।े थोड़ासीलु�ीउनअंकलनेडालदीथी।िफर पापानेघरसेबाहरसेमुझेआवाजदीथी।आ�रफ अंकलनेपूरेहाथसेमेरामुँहदबारखाथा।आवाज सुनतेहीउ�ोंनेमुझेछोड़िदया , म�नेपजामीपहनीऔर उ�ोंने ( अंकल ) नेचेनबंदकरदी।म�घरसेभागकर अपनेघरचलीगईऔरम�ीकोसबकुछबताया।“

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However, it is a settled law that a statement under Section 164 CrPC is not substantive evidence. Such a statement can only be used for the purpose of corroboration. Once the witness herself withdraws from the allegations while deposing before the Court, the statement under Section 164 CrPC by itself cannot form the sole basis for conviction unless there exists reliable corroborative evidence

¶181

In the present case, the testimony of PW-4, the mother of the Prosecutrix/Victim and the complainant upon whose statement the FIR was registered, assumes considerable importance. PW-4 did not support the prosecution case in the Court. She stated that the child had gone outside the house and after some time returned weeping and informed her that she had fallen down and sustained injuries. She categorically stated that the Respondent/Accused had not committed any wrong act with her daughter. The relevant portion of the statement made by PW-4 is reproduced hereinbelow:

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Witness Statement in Examination in Chief
PW- 4 . On 21.01.2012 at about 10:30 p:m. she
(Mother Of had gone outside my house in the gali
Prosecutrix after 10-15 minutes she returned
/Victim) weepingly, and told me that she fell. down
and sustained injury. Someone from
public called police on seeing the
condition of my daughter as she was semi
unconscious and weeping loudly. Police
had taken my daughter to GTB Hospital. I
had also gone there where police had
obtained my signature on one paper, same
is Ex.PW4/A which bears my signature at
point A. Vol. Said. At the time when I put
my signature it was blank. Police never
visited my house after 22.01.2011 .

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¶187

Accused present in court is known to me being resident of our mohalla. Accused did not commit any wrong act with my daughter. I do not know other facts of this case .

¶188

Even during her cross-examination by the Ld. APP for the State, PW4 denied the suggestions put to her regarding the allegations of sexual assault. She denied that the Respondent/Accused had taken the Prosecutrix/Victim to his jhuggi or attempted to rape her. The relevant portion of the statement made by PW-4 in cross-examination is reproduced hereinbelow:

¶189

*Witness*	*Statement in Cross Examination*
*PW4*	*It is wrong to suggest that I had reached*
*(Mother of*	*at the house of accused in search of*
*Prosecutrix*	*victim and that I had seen him lying on*
*/Victim)*	*the bed and that victim was also lying on*
	*the same bed naked or that I had pushed*
	*the dopr of the Jhuggi of accused or that*
	*my daughter came to me immediately and* *that victim had told me that accused Arif*
	*had tried to insert his penis into her*
	*vagina, confronted portion C to C of*
	*statement* *Ex.PW4/A* *where* it *is.* so
	*recorded. XXX*
	*I had told to police at that time that*
	*accused had committed wrong act with my* *daughter.*

¶190

Thus, the complainant herself did not support the prosecution case before the Court. The Ld. Trial Court has rightly observed that the very foundation of the prosecution case stood substantially weakened by the

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testimony of PW-4.

¶196

PW-6(uncle of the prosecutrix) and PW-7(father of the prosecutrix), who are also material witnesses in the present case, did not support the prosecution version in material particulars. The relevant portion of the statement made by PW-6 and PW-7 are reproduced hereinbelow:

¶197

*Witnesses*	*Statement In Exa*	*mination In Chief*
*PW-* 6	*On the intervenin*	*g night of 21*^{_st & _}22^nd,
*(Uncle* of	_January'2012, I _	*was returning to my*
*the Victim)*	*house and I noti*	*ced gathering of some*
	*people there. So*	*me people had told me*
	_there that some _	*wrong act had been*
	*committed* *upon*	*the* *victim.* I *had*
	*informed to polic* *the incident. I d*	*e at 100 number about* *o not know by whom*
	_wrong act had _	*been committed upon*
	*victim*.
*PW-7*	_Accused had left _	*my house after about*
*(Father of*	*five minutes after*	*sending the victim for*
*the Victim)*	*purchasing* *gutk*	a *from* *market.* On
	_reaching at the _	*house of accused there*
	*was dark and I too* *Thereafter, I went*	*k her back to my house.* *to market and returned*
	*after two and ha*	*lf hours.* At that time
	police officials we victim to GTB H _examination, I do _ this case.	re present and they took ospital for her medical not know other facts of

¶198

On a perusal of the aforesaid testimony, it emerges that PW-6 merely stated that certain persons informed him that some wrong act had been committed with the Prosecutrix/Victim, pursuant to which he informed the police regarding the incident. However, he specifically stated that he did not know who had allegedly committed the act in question.

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¶203

Similarly, the testimony of PW-7, who is the father of the Prosecutrix/Victim, also does not substantively establish the commission of the offence alleged against the Respondent/Accused. PW-7 merely stated that upon reaching the house of the Respondent/Accused, he did not witness anything incriminating and thereafter took the Prosecutrix/Victim with him to his house and subsequently proceeded towards the market. Thus, the testimonies of PW-6 and PW-7 do not furnish material corroboration to the prosecution case nor do they inspire sufficient confidence regarding the occurrence alleged by the prosecution.

¶204

The remaining witnesses examined by the prosecution are primarily police officials and formal witnesses. Their testimonies establish the steps taken during investigation such as registration of the FIR, arrest of the accused, preparation of the site plan, seizure of exhibits and dispatch of samples to the FSL. However, these witnesses do not provide substantive corroboration regarding the actual occurrence alleged by the prosecution. 53. In light of the aforesaid inconsistencies, it becomes necessary to examine whether the medical evidence lends any support to the prosecution case. The relevant portion of the MLC of Prosecutrix/victim is extracted hereinbelow:

¶205

“Local Examination (P/A & L/E): P/A (Per Abdomen): Soft, no organomegaly. L/E (Local Examination): * Hymen: Intact. Local Findings: Small abrasion at posterior fourchette. Pain/Tenderness: Tenderness present, no active bleeding.”

¶206

The prosecution has argued that the presence of injury i.e. the small

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abrasion noted in the MLC lends corroboration to the version initially given by the Prosecutrix/Victim. However, the evidentiary value of the MLC has to be appreciated in light of the entirety of the medical evidence brought on record.

¶212

A perusal of the MLC also shows that the hymen of the Prosecutrix/Victim was found to be intact during medical examination. Though the hymen being intact by itself cannot rule out sexual assault or attempted penetrative assault, the same nevertheless constitutes a relevant circumstance while appreciating the overall evidentiary value of the medical record, especially in a case where the ocular testimony itself suffers from substantial inconsistencies.

¶213

PW-13 Dr. Modesta, who proved the MLC on behalf of the examining doctor, did not depose that the injuries recorded in the MLC were indicative of forcible sexual assault or attempted rape. No categorical medical opinion was brought on record to establish that the abrasion noted in the MLC could only have been caused in the manner alleged by the prosecution. The relevant portion of the statement made by PW-13 is reproduced hereinbelow:

¶214

*Witnesses*	*Statement In Chief Examination*
*PW- 13 Dr.*	I have worked with Dr. Shruti B at GTB
*Modesta*	Hospital and as such I am acquainted with
*(victim*	her writing and signature. *She has left*
*MLC)*	*service* *from* *GTB* *Hospital* *and* *her*
	*present whereabouts are not known to me.*
	*I have seen the MLC No.G-8/12 available*
	*on judicial file which was prepared by Dr.*
	*Shruti B and I identify her signature at*

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point A. The MLC Mark X is now Ex.PW13/A.

¶220

It is also significant that PW- 4, the mother of the Prosecutrix/Victim, in her deposition before the Court stated that the child had informed her that she had fallen down outside the house and had sustained injuries. This explanation furnished by PW-4 regarding the source of injury assumes relevance because the medical evidence itself does not conclusively attribute the abrasion to sexual assault.

¶221

The forensic evidence led by the prosecution also requires careful consideration. The prosecution placed reliance upon the FSL reports Ex. PW10/B and Ex. PW10/C which were collected during the course of investigation by PW10 W/SI Sarita.

¶222

However, a perusal of the FSL reports would show that semen could not be detected on the exhibits examined by the forensic laboratory. The Ld. Trial Court has specifically noticed that the reports Ex. PW10/B and Ex. PW10/C recorded negative findings insofar as detection of semen on the relevant exhibits was concerned. The findings of the relevant FSL reports are extracted hereinbelow:

¶223

Ex.PW10/B:

¶224

Parcel '1 : One sealed cloth parcel sealed with the seal of "MLC GTB HOSPITAL DELHI-95" containing exhibit '1' kept in paper stated to be of accused.

¶225

Exhibit '1' : Gauze cloth piece having yellowish sticky stains described as 'Semen sample'.

¶226

Parcel '2' : One sealed cloth parcel sealed with the seal of "MLC GTB HOSPITAL DELHI-95" containing exhibit '2' stated to be of accused.

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Exhibit '2' : Gauze cloth piece having dark brown stains described as 'Blood sample' .

¶232

Parcel '3' : One sealed cardboard box sealed with the seal of "MLC GTB HOSPITAL DELHI-95" containing exhibits '3a1', '3a2', '3a3', '3b1', '3b2', '3b3', '3c1', '3c2', '3c3', '3d1', '3d2', '3e' each kept in-separate envelope stated to be of victim. Exhibit ‘3a1’ : One dirty small sized paijami. Exhibit ‘3a2’ : One dirty small sized underwear. Exhibit ‘3a3’ : One dirty small sized woollen jersey.

¶233

Exhibit ‘3b1’ : One Cotton wool swab on stick described as ‘Vaginal Secretion’.

¶234

Exhibit ‘3b2’ & ‘3b3’ : Two microslides having very faint smear described as ‘Vaginal Secretion’. Exhibit ‘3c1’ : One Cotton wool swab on stick, kept in tube described as ‘Oral Swab’. Exhibit ‘3c2’ & ‘3c3’ : Two microslides described as ‘Oral Examination’.

¶235

Exhibit ‘3d1’ & ‘3d2’ : Dark brown foul smelling liquid kept in tubes described as ‘Blood sample of victim’.

¶236

Exhibit ‘3e’ : Dirty liquid kept in plastic container described as ‘Urine sample’.

¶237

RESULTS OF ANALYSIS

¶238

1. Blood was detected on exhibit ‘2’ ‘3d1’ & ‘3d2’

¶239

2. Blood could not be detected on exhibits ‘3a1’, ‘3a2’, ‘3a3’, ‘3b1’, ‘3c1’ & ‘3e’.

¶240

3. Human semen was detected on exhibit ‘1’.

¶241

4. Semen could not be detected on exhibits ‘3a1’, ‘3a2’, ‘3a3’, ‘3b1’, ‘3b2’, ‘3b3’, ‘3c1’, ‘3c2’, ‘3c3’ & ‘3e’.

¶242

5. Report of serological analysis in original is attached here with.”

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Ex.PW10/C

Exhibits	Species Origin	ABO Grouping/R	emarks
Blood
Stains:-
‘2’ Gauze
clothpiece	Human	‘B’ Group
‘3d1’		Blood	sam	ple
Blood		putrefied,	hence	no
sample	-----	opinion
		Blood	sam	ple
‘3d2’Blood sample	-----	putrefied, opinion	hence	no
Semen
Stains:-
‘1’ Gauze clothpiece	-----	No Reactio	n

¶248

From the above Report it is clear that apart from Exhibit 1, there was no presence of semen on any sample. Exhibit 1 was the semen sample given by the Respondent/Accused himself.

¶249

The absence of semen or a negative forensic report, by itself, cannot be treated as conclusive proof negating the allegation of sexual assault. However, the negative FSL findings, when read conjointly with the inconsistent testimony of the Prosecutrix/Victim and the inconclusive medical evidence, this court is of the view that the Ld. Trial Court was justified in extending the benefit of doubt to the Respondent/Accused.

¶250

The Supreme Court in Nirmal Premkumar and Anr. V. State Rep. by Inspector of Police., 2024 INSC 193 , held as under:

¶251

11. Law is well settled that generally speaking,

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¶255

oral testimony may be classified into three categories, viz.: (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the Court in arriving at its conclusion(s). However, in the third category of cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.

¶256

12. In Ganesan v. State , this Court held that the sole testimony of the victim, if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused. 13. This Court was tasked to adjudicate a matter involving gang rape allegations under section 376(2)(g), I.P. C in Rai Sandeep v. State (NCT of Delhi)5. The Court found totally conflicting versions of the prosecutrix, from what was stated in the complaint and what was deposed before Court, resulting in material inconsistencies. Reversing the conviction and holding that the prosecutrix cannot be held to be a ‘sterling witness’, the Court opined as under:

¶257

“22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting

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point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

¶263

(underlining ours, for emphasis)

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14. In Krishan Kumar Malik v. State of Haryana, this Court laid down that although the victim's solitary evidence in matters related to sexual offences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient due to identified flaws and lacunae. It was held thus:

¶269

XXX

¶270

15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistences excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded. ”

¶271

The Supreme Court in Santosh Prasad v. State of Bihar, (2020) 3 SCC 443, held that where the testimony of the prosecutrix suffers from material contradictions and does not inspire confidence, and where medical as well as forensic evidence do not support the prosecution case, conviction cannot be sustained solely on such testimony. The Supreme Court further held that in such circumstances, the accused would be entitled to the benefit of doubt. The relevant paragraphs of the judgement are reproduced

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hereinbelow:

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“6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable . In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall the accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 o'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4.00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW 1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW 5, prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness ”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix, PW 5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is

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Signature Not Verified

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no scope to sustain the conviction and sentence imposed on the appellant and the accused is to be given the benefit of doubt.”

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A similar principle was reiterated in Dola v. State of Odisha, (2018) 18 SCC 695 , wherein the Supreme Court held that where the testimony of the prosecutrix is inconsistent and unsupported by medical evidence, conviction would not be sustainable merely on assumptions. The relevant paragraphs of the judgement are reproduced hereinbelow:

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“In our considered opinion, the trial court as well as the High Court have convicted the appellants without considering the aforementioned factors in their proper perspective. The testimony of the victim is full of inconsistencies and does not find support from any other evidence whatsoever. Moreover, the evidence of the informant/victim is inconsistent and self-destructive at different places. It is noticeable that the medical record and the doctor's evidence do not specify whether there were any signs of forcible sexual intercourse. It seems that the first information report was lodged with false allegations to extract revenge from the appellants, who had uncovered the theft of forest produce by the informant and her husband. The High Court has, in our considered opinion, brushed aside the various inconsistencies pointed out by us only on the ground that the victim could not have deposed falsely before the Court. The High Court has proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence.

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Keeping in view the aforesaid judgments and the material inconsistencies emerging in the testimony of Prosecutrix/Victim PW-2 and

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CRL.A. 126/2015

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Signed By:RENUKA NEGI Signing Da te:2 2.05.2026 14:42:43

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the other material witnesses, this Court is of the considered view that the prosecution's case does not inspire confidence and gives rise to a reasonable doubt. Moreover, the medical evidence does not support or corroborate the prosecution case and, therefore, does not lend any assurance to the case set up by the prosecution.

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CONCLUSION:

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In the considered opinion of this Court, the prosecution has failed to prove its case beyond reasonable doubt. The view taken by the Ld. Trial Court is plausible and no perversity, illegality, or manifest error is made out so as to warrant interference with the order of acquittal.

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