social worker who witnessed rape can not be treated as profe


 

Social worker who witnessed Rape can not be treated as professional witness

 

 Learned Amicus Curiae next contended that the presence of 
Sandhya Verma at the spot is doubtful. She appears to be a stock 
witness as she has admitted in her cross examination that she had 
appeared in several other cases as well. I do not find any force in 
this contention either. PW3 Sandhya Verma claim herself to be a 
social worker. She had been espousing the cause of the down 
trodden and the oppressed class. In this background she has 
deposed that when she notices any injustice being done to a 
member of deprived classes she raises her voice and does not 
hesitate in appearing in their support in court. Her this statement 
would not make her a stock witness of the Police, inasmuch as, in 
answer to next very question she denied that she had been regularly 
appearing in court as a witness. Her presence at the place of 
incident cannot be found suspicious as she had produced the 

accused before the Police officials in the hospital immediately after 
the incident and a categorical assertion has been made in this 
regard by PW8 SI V.K. Sharma. PW8 has deposed that Sandhya 
Verma along with five-seven people came in the hospital and 
produced Shankar (accused) who was arrested by him. In his cross 
examination PW8 has reiterated this fact by saying that accused 
was handed over by Sandhya Verma in the hospital. 


HIGH COURT OF DELHI: NEW DELHI
 CRL. APPEAL No. 37/2009

Judgement delivered on 15th July, 2010
SHANKAR KUMAR ……Appellant
 
Reply   
 
Advocate/ nadeemqureshi1@gmail.com

 

Appellate Court would interfere only if findings of the learned trial court are manifestly absurd or based on 

wrong appreciation of law

 

 

CRL. APPEAL 37/2009 Page 1 of 10

HIGH COURT OF DELHI: NEW DELHI

+ CRL. APPEAL No. 37/2009

%

Judgment reserved on 7th July, 2010

Judgement delivered on 15th July, 2010

SHANKAR KUMAR ……Appellant

Through: Mr. Sumeet Verma, Adv. 

Versus

STATE (N.C.T.) OF DELHI ....Respondent

Through: Mr. M.P. Singh, APP for State

Coram:

HON’BLE MR. JUSTICE A.K. PATHAK

1. Whether the Reporters of local papers Not necessary

may be allowed to see the judgment? 

2. To be referred to Reporter or not? Not necessary

3. Whether the judgment should be

reported in the Digest? Yes

A.K. PATHAK, J. 

1. Appellant has been convicted under Section 366/376 IPC by 

learned trial court and sentenced to undergo rigorous imprisonment 

for ten years and fine of Rs. 1,000/- and in default to face simple 

imprisonment for one month under Section 366 IPC; rigorous 

imprisonment for ten years and fine of Rs. 1,000/- and in default to 

face simple imprisonment for one month under Section 376 IPC. 

Both the sentences have been directed to run concurrently and 

benefit of Section 428 CrP.C has also been given to the Appellant.CRL. APPEAL 37/2009 Page 2 of 10

2. Aggrieved by his conviction Appellant has preferred this 

appeal.

3. Briefly stated, facts of the case are that FIR under Section 376 

of Indian Penal Code (IPC) was registered in the Police Station 

Pandav Nagar on the basis of statement of Shyam Lal, father of the 

prosecutrix aged about 3 years, wherein he had stated that on 17th

March, 2005 at about 8:30 pm he was sitting outside his juggi

bearing no. 197, Dr. Ambedkar Camp, Mayur Vihar Phase – I, Delhi 

along with his daughter; he went inside the juggi for a short while

and on his return he noticed that his daughter was missing; He

along with three or four persons of the locality went out in search of 

his missing daughter towards Delhi Police Apartment where they 

heard scream of a girl child coming from the side of a nala; He went 

towards that side and saw the accused lying on his daughter and 

doing “galat kaam”; He and the persons accompanying him 

separated the accused from his daughter; He noticed that his 

daughter was bleeding; Accused was thrashed by the persons 

accompanying him. Thereafter, he took his daughter to Lal 

Bahadur Shastri Hospital where she was medically examined.

4. On clinical examination of the prosecutrix, dust and grass 

material was found around her v**gina and external genitalia. On 

separation of labias fresh marks of injury were noticed around the 

v**ginal orifice. Vaginal swab, grass and dust material was collected 

by the doctor and sealed and handed over to the Investigating 

Officer. Doctor opined that injury was possible due to fall or s*xual CRL. APPEAL 37/2009 Page 3 of 10

assault. As per CFSL report neither blood nor semen was detected 

in the v**ginal swab and clothes of the prosecutrix. 

5. Accused was also medically examined wherein multiple 

bruises and abrasion in red colour all over his body were noticed 

besides tenderness over his nasal bridge with clot in both nostrils.

One Clean Lacerated Wound measuring 1 cm x 0.2 cm over the 

right cheek with fresh clot was also noticed. Underwear and vest of 

the accused besides his blood sample were sealed by the doctor and 

handed over to Investigating Officer. Accused told the doctor that 

he had sustained injuries on being assaulted by the mob. 

6. Prosecution has examined eight witnesses in all. Shyam Lal 

was examined as PW1. Another eye witness Sandhya Verma was 

examined as PW2. Dr. R.N. Dass, who had medically examined the 

accused, was produced as PW4. He proved the MLC of the accused 

as PW4/A. Dr. Chandrakanta Arya, who had medically examined 

the prosecutrix, was produced as PW6. She proved the MLC of the 

prosecutrix as Ex.PW6/A and her opinion as PW6/B. SI V.K. 

Sharma, Investigation Officer of the case, was examined as PW8. 

All other witnesses are formal in nature being Police officials who 

had either recorded the FIR, participated in the arrest of the 

accused or were with the Investigating Officer during the 

investigation. 

7. After prosecution closed its evidence, entire incriminating 

material, which had come on record, was put to the accused and CRL. APPEAL 37/2009 Page 4 of 10

his statement was recorded under Section 313 Cr.P.C. Accused 

simply denied his involvement in the offence. He claimed himself to 

be innocent. According to him, father of the prosecutrix was 

inimical towards him as they had a quarrel on some earlier 

occasion. Accused did not lead any evidence in his defence. 

8. Learned trial court has found the testimony of PW 1 and PW2 

trustworthy and reliable, duly corroborated by the medical evidence, 

since fresh injury was noticed on the v**ginal orifice of the 

prosecutrix. It was held that injury marks on v**ginal orifice 

indicated that the penetration was made by the accused; Absence 

of blood and semen in the v**ginal swab would not by itself wash 

away the guilt of the accused. Plea of accused that he was falsely 

implicated by the father of the prosecutrix due to an earlier quarrel 

was discarded on the ground that no such suggestion was put to 

PW1, inasmuch as, no evidence was led by the accused on this 

point. Rather in his cross examination, PW1 had admitted that he 

had no enmity with the accused. On the basis of evidence adduced 

before it learned trial court concluded that it is the Appellant who 

had kidnapped and raped the prosecutrix, consequently, convicted 

him under Section 366/376 IPC.

9. I have also perused the depositions of PW1 and PW2 and find 

them to be trustworthy and reliable, inasmuch as, their version is 

duly corroborated by the medical evidence, as the injuries were 

found on the v**ginal orifice of the prosecutrix. As per PW1 and 

PW2, incident had taken place near a nala. Dust and grass CRL. APPEAL 37/2009 Page 5 of 10

material found around the v**ginal orifice of the prosecutrix 

supports this version. That apart, injuries found on the person of 

accused also support the version of these two witnesses that he was

given beatings by the mob after they found accused raping the 

prosecutrix. I also find that PW1 has fully corroborated his 

statement recorded by the Police as contained in the FIR Ex. PW3/A

recorded on the date of the incident. He has fully supported the 

prosecution case. He has deposed that on 17th March, 2005 at 

about 8:30 pm he was sitting outside his juggi along with his 

daughter aged about three years. He went inside the jhuggi for a 

short while and when he came out he found his daughter missing. 

He along with three/four persons went towards Delhi Police 

Apartments. Sandhya Verma had also joined them. They heard 

shrieks of a girl child coming from the side of the nala. He along 

with his companions went towards that side and found the accused, 

who was also residing in the same area, committing rape of his

daughter by lying upon her. His daughter was naked below her 

frock and the accused was wearing baniyan only. They separated 

accused from his daughter. Accused was caught hold of by the 

persons accompanying him and was thrashed. His this version has 

been duly supported by the PW2 Sandhya Verma. As already stated 

above, medical evidence corroborates this version, as on the 

separation of labias fresh mark of injuries were found around the 

v**ginal orifice i.e. v**ginal cavity. PW6 Dr. Chandra Kanta Arya has

opined that the injuries were possible by s*xual assault. In these CRL. APPEAL 37/2009 Page 6 of 10

circumstances, I do not find any reason to disbelieve the statements 

of PW1 and PW2. In my view, their statements have rightly been 

accepted by the learned trial court. 

10. Learned Amicus Curiae has vehemently contended that in 

absence of presence of blood and semen in the v**ginal swab it 

cannot be said that accused had committed rape upon the 

prosecutrix. PW1 had stated that his daughter was bleeding but no 

blood was noticed by the doctor. I am of the view that this 

contention needs to be rejected outrightly being devoid of any merit.

It is not necessary that in each and every rape case ejaculation has 

to take place. It cannot be said that unless there is emission of 

seminal fluid, rape is not complete. Similarly, it cannot be said that 

for rape to be complete, there must be full penetration. Even slight 

penetration without emission would be sufficient to complete the 

offence of rape. Absence of blood is also of no consequence as it 

might wash away while victim passes urine. In my view, to 

constitute the offence of rape it is not necessary that there should 

be complete penetration of the male organ with emission of semen 

and the rupture of hymen. Partial penetration of the penis within 

the labia majora or even an attempt at penetration is quite sufficient 

for the purpose of rape. In this context, opinion expressed by Modi 

in Medical Jurisprudence and Toxicology (Twenty First 

Edition) 369, would be relevant and is thus quoted as under :-

“Thus to constitute the offence of rape it is not 

necessary that there should be complete 

penetration of penis with emission of semen and CRL. APPEAL 37/2009 Page 7 of 10

rupture of hymen. Partial penetration of the 

penis within the Labia majora or the vulva or 

pudenda with or without emission of semen or 

even an attempt at penetration is quite sufficient 

for the purpose of the law. It is therefore quite 

possible to commit legally the offence of rape 

without producing any injury to the genitals or 

leaving any seminal stains. In such a case the 

medical officer should mention the negative

facts in his report, but should not give his 

opinion that no rape had been committed. Rape 

is crime and not a medical condition. Rape is a 

legal term and not a diagnosis to be made by the 

medical officer treating the victim. The only 

statement that can be made by the medical 

officer is that there is evidence of recent s*xual 

activity. Whether the rape has occurred or not 

is a legal conclusion, not a medical one.”

11. Similar view has been expressed in Parikh’s Textbook of 

Medical Jurisprudence and Toxicology, which reads as under:-

“Sexual intercourse: In law, this term is held to 

mean the slightest degree of penetration of the 

vulva by the penis with or without emission of 

semen. It is therefore quite possible to commit 

legally the offence of rape without producing any 

injury to the genitals or leaving any seminal 

stains.”

12. The first explanation to Section 375 of Indian Penal Code, 

which defines rape also provides that “penetration is sufficient to 

constitute the offence of rape”.

13. In Pappu vs. State NCT of Delhi reported in 

Manu/DE/0924/2010 a Division Bench of this Court in the similar 

facts, held as under :-

“That no blood was detected on the v**ginal 

swab of Kumari „P‟ and no semen was detected 

therein is neither here nor there in view of the

ocular evidence of afore-noted four witnesses; 

the testimony of Dr.Sangeeta Kumari PW-3 and 

the MLC Ex. PW-3/A of Kumari „P‟. It is CRL. APPEAL 37/2009 Page 8 of 10

possible that the young infant and unfortunate 

victim passed urine and thereby diminishing 

the possibility of blood being detected in her 

v**ginal swab. As regards no semen being 

detected therein, there is no law that unless 

there is ejaculation, rape is not complete. 

There is no law that for rape to be complete 

there must be full penetration.”

14. In the backdrop of the above legal position, I am of the view 

that non availability of blood and semen in the v**ginal swab of 

prosecutrix, by itself, would not indicate that no rape had been 

committed by the accused. Injuries on the v**ginal orifice of the 

prosecutrix clearly demonstrates that penetration was there, even 

though it may be without emission of the seminal fluid. Arguments 

of the learned Amicus Curiae to the contrary are hereby rejected.

15. Learned Amicus Curiae next contended that the presence of 

Sandhya Verma at the spot is doubtful. She appears to be a stock 

witness as she has admitted in her cross examination that she had 

appeared in several other cases as well. I do not find any force in 

this contention either. PW3 Sandhya Verma claim herself to be a 

social worker. She had been espousing the cause of the down 

trodden and the oppressed class. In this background she has 

deposed that when she notices any injustice being done to a 

member of deprived classes she raises her voice and does not 

hesitate in appearing in their support in court. Her this statement 

would not make her a stock witness of the Police, inasmuch as, in 

answer to next very question she denied that she had been regularly 

appearing in court as a witness. Her presence at the place of 

incident cannot be found suspicious as she had produced the CRL. APPEAL 37/2009 Page 9 of 10

accused before the Police officials in the hospital immediately after 

the incident and a categorical assertion has been made in this 

regard by PW8 SI V.K. Sharma. PW8 has deposed that Sandhya 

Verma along with five-seven people came in the hospital and 

produced Shankar (accused) who was arrested by him. In his cross 

examination PW8 has reiterated this fact by saying that accused 

was handed over by Sandhya Verma in the hospital. 

16. Learned trial court has awarded minimum sentence to the 

Appellant as envisaged under Section 376 (2) IPC which provides 

that if a person commits rape on a woman under twelve years of age 

he shall be punished with rigorous imprisonment for a term which 

shall not be less than ten years. Proviso to this Section empowers 

the Court to impose a sentence of imprisonment of less than ten 

years but for adequate and special reasons to be recorded. In this 

case no special reason has been brought forward to award lesser 

sentence than what has been prescribed under the Act. Appellant 

has committed rape upon a child of tender age which itself shows 

depravity on his part. Thus sentence awarded by the learned trial 

court need not to be interfered with. 

17. It is well settled that Appellate Court would interfere only if 

findings of the learned trial court are manifestly absurd or based on 

wrong appreciation of law. I find the judgment of the trial court to 

be in consonance with the evidence adduced before it and the law

applicable on such facts. I do not find any material illegality, CRL. APPEAL 37/2009 Page 10 of 10

irregularity or perversity in the impugned judgment and the order 

on sentence. 

18. Accordingly, appeal is dismissed. 

19. A copy of this order be sent to Superintendent Jail with the 

direction that the same be served on the Appellant. 

A.K. PATHAK, J

July 15, 2010

ga

 
Reply   
 


LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

  Search Forum








×

  LAWyersclubindia Menu

Join the MasterClass     |    x