The Delhi High Court on Tuesday dismissed an appeal filed by a rape convict who has been sentenced to 10 years rigorous imprisonment for raping his 12-year-old step-daughter while stating that the testimony of the child victim is trustworthy, reliable and admissible. (Sunil Kumar Vs State of NCT of Delhi)
A single-judge bench of Justice Manoj Kumar Ohiri noted that the trial court also awarded compensation of Rs 2 lakh to the child victim. The High Court directed the state, through the Delhi State Legal Services Authority, to provide compensation to the victim within two months in accordance with Delhi Victim Compensation Scheme, 2015, approved by the Central government.
The Court rejected the contentions of appellant/convict and said the absence of semen in the DNA report on the victim’s pyjama is immaterial as for the offence of rape, mere penetration is enough.
The case was registered on the complaint of prosecutrix, who was residing with her two younger brothers, mother and step-father (accused herein) for the last 2-3 years. On August 20, 2013, the victim’s mother went to their native place with the accused, who returned to Delhi on August 24 without her. The victim and her younger brothers went to sleep at the neighbour’s house. At about midnight, the accused took the victim and her brothers to his jhuggi. In the jhuggi, the accused beat up the boys and and sent them upstairs. Thereafter, the chargesheet says, the accused removed the victim’s clothes and his and penetrated her. It is stated that neighbour Rafiq saw the incident and raised an alarm. The neighbours then caught the accused, the police came and recorded the statement of the victim.
After completing the investigation, the police filed the chargesheet and 17 witnesses were examined by the prosecution. According to the FSL report, the pyjama of the child victim was subjected to DNA examination but no male DNA profile could be generated from it.
Furthermore, the court found that in so far as the testimony of the child victim is concerned, it has been repeatedly held that if the testimony of the child victim inspires confidence, it is sufficient to record the conviction. (State of Himachal Pradesh v. Manga Singh reported as (2019) 16 SCC 759).
A perusal of the statements made by the child victim during investigation and the trial show that she had consistently stated that on the night of the incident, the child victim along with her siblings had gone to sleep in the house of their neighbour from where they were called by the appellant. Thereafter, both her brothers after being beaten were sent upstairs and thereafter, the appellant removed her clothes as well as his own clothes and inserted his male organ and committed rape upon her. The child victim had also stated that the appellant had inserted his male organ in her mouth. She had also stated that the appellant had committed the offence two-three times earlier also. The statement of the child victim to the effect that an incident had occurred on the intervening night of 25th and 26th find support not only from the testimony of her two minor younger brothers, but also from the testimony of Mohd Rafiq.
Prior to recording the testimony of the child victim, the Trial Court had recorded its satisfaction as to her maturity and competency for understanding the questions and giving their answers. Accordingly, this Court, in absence of submissions to the contrary, concurs with the opinion of the Trial Court that the child victim was competent to stand as a witness.
As per Section 29 of the POCSO Act, there is a presumption regarding guilt of the accused. The burden of proof on the prosecution is not of beyond reasonable doubt. The prosecution has to lay down and prove the fundamental facts regarding the guilt of the accused. Once such facts are proved, the onus is upon the accused to lead evidence to rebut the presumption. The appellant has failed to dislodge the statutory presumption under Section 29 of the POCSO Act.
The Delhi High Court has held, “Consequently, the impugned judgment and the order on sentence herein, are upheld and the present appeal along with, is dismissed.”