CRL.A./1241/2018 of JITENDER SHARMA Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: 11.03.2019Judgment delivered on: 29.04.2019

CRL. A. 1241/2018

JITENDER SHARMA...... AppellantversusSTATE (NCT OF DELHI)...... RespondentAdvocates who appeared in this case:For the Appellant: Mr. Manu Sharma, Ms. Mahima Wahi and Mr. Kartik Khanna,AdvocatesFor the Respondent: Mr. Ravi Nayak, APP with SI Sandeep, PS-Begampur and InspectorSuman Kumari, Community Policing Cell, Outer DistrictCORAM:HON’BLE MR. JUSTICE SIDDHARTH MRIDULHON’BLE MR. JUSTICE MANOJ KUMAR OHRIJ U M N T

SIDDHARTH MRIDUL, J.

1.The present appeal under section 374(2) of the Code of CriminalProcedure, 1973 (hereinafter referred to as 'Cr.P.C') assails the judgment andorder of conviction and order on sentence dated 30.05.2018 and 05.06.2018respectively, in Sessions Case No. 21/2013, titled as 'State vs. JitenderSharma s/o Sh Om Prakash Sharma’, emanating from FIR No. 19/2013

(hereinafter referred to as the 'subject FIR') under Section 376/328 of theIndian Penal Code, 1860 and under section 4/6 of the Protection of Childrenfrom Sexual Offences Act, 2012registered at Police Station - Begumpur,Delhi.

2.By way of the impugned judgment and order of conviction and orderon sentence dated 30.05.2018 and 05.06.2018 respectively, Jitender Sharma

(hereinafter referred to as 'Appellant') was convicted for the offences underthe provision of section 10 read with section 9 (m)(n) of The Protection ofChildren from Sexual Offences Act, 2012 (hereinafter referred to as‘POCSO’) and sentenced to Rigorous imprisonment for period of sevenyears along with fine of Rs. 5,000, as well as, under section 328 of theIndian Penal Code, 1860 (hereinafter referred to as 'IPC') to Rigorousimprisonment for period of five years along with fine of Rs. 5,000. Indefault of payment of fine, the Appellant has been sentenced to undergosimple imprisonment for further period of one month. However, the benefitof the provision under section 428 Cr.P.C has been granted to the appellant.Both sentences were ordered to run concurrently.

3.The gravamen of the charge, for which the appellant has beenconvicted, is for having committed rape upon his own daughter/the

prosecutrix, girl aged about 8 years, at the time of commission of theoffence.

4.The facts of the case as borne out from the record are that on17.01.2013 vide DD No.26A, PCR call was recorded regarding rape byfather with his own daughter, aged 8 years, at H.No B-1970, KashmiriBlock,Jain Nagar, Delhi. SI Dinesh along with Ct. reached the house where

they met the mother of the victim who reported the rape committed by heraccused husband, on their two minor daughters, V aged 8 years and M aged

13 years. NGO was called and victims were taken to SGM hospital wherethey were medically examined.The complainant S, PW-13, gave herstatement that she is house wife and has four daughters and son and herhusband runs factory. On 11.01.2013, her husband committed wrong actwith daughter V after taking her to some other room of their residentialdwelling, and also threatened her not to tell anything to anyone or else shewill be killed. On 13.01.2013 when she was cleaning the house, she foundone blood stained underwear of V under the bed. On inquiry from theprosecutrix PW-3, told by the latter that her father lifted her from the bed inthe night and lay her on sofa and gave her tablet after which she beganfeeling sleepy, and then he inserted his ‘shushu wali jagah’ in her ‘shushuwali jagah’; and when the prosecutrix felt pain, her father again brought her

back to the bed. PW-3 stated that she conferred about this incident with herfamily members and did not report the commission of the offence to thepolice at that stage, but when her elder daughter M, who was living with hermaternal grandmother came and informed her that, her father committedwrong act with her as well, which the former did not disclose because offear, the complainant came to Police Station and lodged the subject FIR.

After medical examination of the victim, her exhibit (one underwear havingdarker stains) was seized and her statement u/s 164 Cr.P.C. was recorded.IO collected the date of birth proof of the victim and sent samples toForensic Science Laboratory (hereinafter referred to as ‘FSL’). The accusedwas arrested and was medically examined; and while awaiting FSL result,the present chargesheet was filed.

5.By way oforder dated 20.05.2013, charge was framed against theappellant for offence u/s 6 of POCSO Act read with u/s 376(2)(f) IPC andu/s 328 IPC for the offences committed against daughter V, to which theappellant pleaded not guilty and claimed trial.

6.In order to prove the charges against the accused, prosecutionexamined as many as 15 witnesses, whereafter the statement of the accusedu/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent andhaving been falsely implicated in the case by his wife PW-13 (the mother of

the child victim) due to matrimonial dispute. The Appellant chose toexamine three witness in his defence including himself.

7.Broadly, the Trial Court has based the conviction of the Appellant on

the testimony of victim V, PW-3 as hereunder :

“24.08.2011

Q.Kya hua tha ?Ans. Me so rahi thi, papa aaye mujhedawai khilayi. Meri kachhi uttari, apnikachhi uteri aur meri susu me apni susulaga rahe the.Q.Aap kaha so rahethe ?Ans. Hall meQ.Papa kahan so rahe the ?Ans. Lakdi wale kamre me. Hamare gharme 3 kamre hain.2 me farsh (floor) parmate lagawaya tha aur ek me lakdilagawayi thi.Q.Lakdi wale kamre me kaun kaunsota hai?Ans. Wahan par mummy papa sota haiQ.Kya aap pehle bhi court me ho ?Ans. HaAt this stage, the witness has been shownher statement u/s 164 Cr.P.C. i.e. Ex-PW-2/D and identifies her signatures at point“A” thereupon.Q.Kya apne yeh baat kisi ko batayi thi?Ans. NahiQ.Mummy ko bataya tha ?Ans. Nahi, mummy ki tabiyat kharab thisara din behosh padi rehti thiQ.Aur kisi ko bataya tha?Ans. Nahi, papa ne dhamka rakha tha kikisi ko nahi batana hai

XXXX By Sh.Ravi Kant Singh, learnedcounsel for accused.Q.Aap kashmiri colony se pehle kaharehte the ?Ans. Shashtri NagarQ.Aapko mummy jyada pyar karti hai yahpapa ?Ans. MummyQ.Aap ko papa ne goli kaise khilayi thi.Paani se yah kisi aur chij se ?Ans. Aise hi khilayi thi.”

(Emphasis supplied)

8.Learned counsel appearing on behalf of the appellant, would canvass

that the learned Trial Judge has erred in convicting the appellant, inasmuchas, the appellant has been falsely implicated in the case at the instance ofPW-13, complainant/ mother of prosecutrix, who herself turned hostile. Itwould be apposite in this regard to extract the testimony of PW-13 ashereunder :

“I am housewife and residing at the abovementionedaddress with my five children out of which four are daughtersand one son. My husband, who is present in the court today asaccused Jitender Sharma (witness has correctly identified theaccused), was having his own work and running factory ofhydraulic machines. My eldest daughter M, who is aged about15 years at present, is residing at the house of my mother.I do not want to say anything about the present case as to whyand how this case has been registered against my husband.One day quarrel took place between me and my husbandand my husband gave beatings to me and my daughters, dueto which I got annoyed and went to PS. I had told to thepolice officials that my husband was harassing me but thepolice officials did not record my said statement and I do not

know why the police official had recorded my statement insuch manner.

At this stage, witness is shown her complaint from the judicialfile and she identifies her signatures at point “A” thereupon.The complaint is now exhibited as Ex-PW-13/A.My daughter V is aged about 10 years at present. The presentcomplaint was lodged by me in the month of January, 2013.My husband did not do anything wrong with my daughters Mand V. Vol. He only gave 2/3 slaps to them. At present Iwant that my husband should be released as there is noearning member in my family and I generally remain ill.It wasa simple quarrel between me and my husband which wasgiven colour in the present form of complaint by the police.(At this stage, Ld. Addl.PP for the State seeks permissionto cross examine the witness as she is resiling from herearlier statement. Heard. Allowed.)XXXXXXX by Ld.Addl.PP for the State.

I have studied upto 9[th]class. I did not go through the contentsof Ex.PW-13/A before signing the same. Police officials alsodid not read over the contents of Ex.PW-13/A to me.With great hardship, I am managing my household affairs andexpenses. I get some stitching work from the tailors and dothe same at home. All my children are school going andstudying in different classes. Neither my in-laws nor myparental side are financially supporting me. The house where Iam residing is belonging to my husband, which is constructedon plot of 67 sq. yards. It is constructed upto first floor. I amresiding on the first floor with my children and the groundfloor is lying vacant. I am looking for tenant to let out theground floor.

It is correct that my both daughters M and V were gotmedically examined. It is in correct to suggest that I got myboth the daughters internally examined vide my statementencircled at point “Y” on MLC already Ex.PW-9/B. It iswrong to suggest that I had the doctors regarding the sexualassault upon my daughters in the alleged history on the MLC.I have no knowledge if the statement of my daughters wasrecorded by the police wherein both the daughters hadnarrated the incident regarding the sexual assault upon themby the accused Jitender Sharma. It is correct that my both thedaughters were brought to the Court earlier also where theywere examined by the learned MM in chamber.

At this stage, witness is shown site plan from the judicial fileand she identifies her signatures at point “A” thereupon. Thesite plan is now exhibited as Ex.PW-13/B.

It is wrong to suggest that my daughters had even disclosedabout the conduct of my husband before NGO Anuradha inmy presence. It is wrong to suggest that I found blood stainedunderwear of my daughter V from under the bed or that I gotsuspicious and I asked about the reason from my daughter V,who had told me that my husband had lifted her from the bedand committed wrong act with her, after giving her some pillsto eat.

It is correct that me and my children are completely hand tomouth and there is no other earning member in my family, Iwant to get my husband released. My father died in the monthof February, 2012. It is also correct that my both daughterswere produced before CWC and from there the custody of mydaughters were handed over to me.

It is wrong to suggest that I have left my daughter M at mymother’s house due to acts of sexual assault upon her by myhusband. It is wrong to suggest that I have been won over bythe accused and in order to save him being my husband, I amnot deposing true and correct facts before the court. It iswrong to suggest that I am deposing falsely.XXXXXX By Ms. Shivani Gautam, learned counsel foraccused

My signatures were obtained on the blank papers by thepolice. It is correct that I did not give any complaint written inmy hand in PS.”

9.The counsel for the appellant would also submit that PW-13,

complainant (mother of prosecutrix ), who turned hostile clearly stated thatone day quarrel took place between her and her husband, due to which shegot annoyed and went to police station and told them about the harassment

caused by her husband but police did not record her statement in the present

manner. PW-13 further deposed that her husband did not do anything wrongwith her daughter except slapping her. PW-13 was, however, cross examinedby Ld. APP, where she admitted that her daughter was medically examinedand statement of her daughter was recorded u/s 164 Cr.P.C [Ex.PW-2/D], butcontented that since no oath was administered by the Magistrate to the childwitness, her testimony before Court lacks credence. In the cross examinationby the defence counsel, she stated that her signatures were obtained on blankpapers.

10.The counsel for the appellant would also submit that there has been adelay of seven days in registration of the FIR in the present case and noreasonable cause has been brought on record by the prosecution for the saiddelay. In this behalf, it would also be contended that, the Rukka [Ex.PW-13/A] was registered on 18.01.2013 which relates to an incident of11.01.2013, whereas PW-13, mother of prosecutrix had discovered bloodstained underwear of PW-3 and had become aware of the alleged sexualassault week before, and yet no complaint was made by her promptly to thepolice, in this regard.

11.It would then be urged on behalf of the appellant that mother of thevictim did not support the prosecution case and stated that accused nevercommitted any wrong act with the victim V, and that the victim V is

inconsistent and made improvements in her testimony and cannot bebelieved. Further, the FSL result [Ex.PW-PX] is not conclusive. In this

regard, our attention is drawn to the relevant portion thereof as hereunder:-

“Exhibit ‘2K’: One underwear having darker stains (ofProsecutrix Vanshika)Exhibit ‘5’: Brown Gauze cloth piece described as ‘Bloodsample’ ( of accused)

RESULTS

Exhibit ‘2k’, i.e. underwear (of Prosecutrix Vanshika) it couldnot be compared with that of exhibit ‘5’, i.e. blood stainedgauze cloth piece (of accused).”

(Emphasis supplied)

12.It was further urged that even the MLC [Ex.Pw-9/B] does not mentionas to how and when the hymen got ruptured. It is also argued that as perModi’s Medical Jurisprudence regarding sexual assault, the doctor shouldhave noted the extent and position of the vaginal tear and the merementioning that the hymen is ruptured, does not satisfy the ingredients ofestablishing the offence that the victim was sexually assaulted beyondreasonable doubt. The doctor did not find any fresh external injury on theprivate parts of the victim in MLC [Ex.Pw-9/B], which is not possible if 8years old girl child is forcibly sexually assaulted by fully grown up adult.The prosecution has, therefore, failed to prove that accused had sexuallyassaulted his daughter. No further grounds were urged by the appellant.

13.Per Contra, Mr. Ravi Nayak, Ld. APP appearing on behalf of the Statewould urge that the victim V was minor and there is no reason to disbelieveher testimony since there was no reason for her to falsely implicate herfather. The MLC of the victim shows that the hymen was ruptured becauseof sexual assault perpetrated by her father and the testimony of the victim isreliable and trustworthy. It was urged that the prosecution has proved theguilt of the accused, beyond reasonable doubt. The Ld. APP, would furtherurge that the law enunciated with regard to the conviction of the accused forthe offence under sections 376 IPC, on the basis of sole testimony of theprosecutrix, is well-settled proposition in view of various decisionsrendered by the Hon’ble Supreme Court. The Ld. APP, would lastly assertthat the clear, creditworthy and unshattered testimony of the prosecutrix issufficient to establish the case of the prosecution, and the same is reliable.

14.We have heard counsel appearing on behalf of the parties, examinedthe material on record documents and perused the entire evidence. The soleissue that arises for consideration in the present appeal is- whether thetestimony of the victim/prosecutrix deserves acceptance and ultimately,whether the prosecution has established the guilt of the appellant-accusedbeyond reasonable doubt.

15.It is pertinent to observe that, the question whether conviction of anaccused can be based on the sole testimony of the victim in cases of sexualassault/rape, is no longer res integra. The Hon’ble Supreme Court has dealtwith the issue in catena of judgments and has held that, the sole testimonyof the prosecutrix if found reliable, can be the sole ground for convicting theaccused; and that the credit-worthy testimony of the victim in cases of suchnature deserves acceptance.

16.The Hon’ble Supreme Court, in State of Rajasthan v. Om Prakash,

reported as (2002) 5 SCC 745, dealing with similar question in the case ofa child rape, while upholding the conviction of the appellant therein andreversing the decision of the High Court in that behalf, relied upon earlierdecisions and made the following observations:

“13. The conviction for offence under Section 376 IPC can bebased on the sole testimony of rape victim is well-settledproposition. In State of Punjab v. Gurmit Singh [(1996) 2SCC384], referring to State of Maharashtra v. ChandraPrakash Kewalchand Jain [(1990) 1 SCC 550] this Courtheld that it must not be overlooked that woman or girlsubjected to sexual assault is not an accomplice to the crimebut is victim of another person's lust and it is improper andundesirable to test her evidence with certain amount ofsuspicion, treating her as if she were an accomplice. It hasalso been observed in the said decision by Dr Justice A.S.Anand (as His Lordship then was), speaking for theCourt thatthe inherent bashfulness of the females and the tendency toconceal outrage of sexual aggression are factors which thecourts should not overlook. The testimony of the victim insuch cases is vital and unless there are compelling reasonswhich necessitate looking for corroboration of her statement,the courts should find no difficulty to act on the testimony ofa victim of sexual assault alone to convict an accused whereher testimony inspires confidence and is found to be reliable.Seeking corroboration of her statement before relying uponthe same, as rule, in such cases amounts to adding insult toinjury.

14. In State of H.P. v. Gian Chand [(2001) 6 SCC] JusticeLahoti speaking for the Bench observed that the court hasfirst to assess the trustworthy intention of the evidenceadduced and available on record. If the court finds theevidence adduced worthy of being relied on, then thetestimony has to be accepted and acted on though there maybe other witnesses available who could have been examinedbut were not examined.”

17.Justice Krishna Iyer, whilst documenting his observations on absenceof injuries on the victim, as well as, importance of corroborative evidence inrape cases, in his celebrated judgment inRafiq v. State of Uttar Pradeshreported as (1980) 4 SCC 262 has very eloquently observed as follows:

“5.Corroboration as condition for judicial reliance onthe testimony of prosecutrix is not matter of law, but aguidance of prudence under given circumstances. Indeed,from place to place, from age to age, from varying life-stylesand behavioural complexes, inferences from given set offacts, oral and circumstantial, may have to be drawn not withdead uniformity but realistic diversity lest rigidity in theshape of rule of law in this area be introduced through newtype of precedential tyranny. The same observation holdsgood regarding the presence or absence of injuries on theperson of the aggressor or the aggressed.

6.When rapists are revelling in their promiscuouspursuits and half of humankind — womankind — isprotesting against its hapless lot, when no woman of honourwill accuse another of rape since she sacrifices thereby whatis dearest to her, we cannot cling to fossil formula and insiston corroborative testimony, even if taken as whole, the casespoken to by the victim strikes judicial mind as probable.”

18.Insofar as, age of the victim on the date of the commission of theoffence is concerned, she was admittedly eight years old at the time of theunsavoury incident. In this behalf, it is relevant to observe that, the accusedhimself gave an affidavit regarding the date of birth of the victim at the timeof admitting her to the school she first attended. The IO PW-15 has provedon record the birth certificate of victim V Ex.PW-15/K issued by theMunicipal Corporation of Delhi. As per the certificate, the date of birth ofvictim V is 07.12.2004. The prosecution has resultantly proved that thevictim was minor at the time of alleged sexual assault and that victim Vwas less than 12 years of age, when she was sexually assaulted by theaccused.

19.Further, upon perusal of the testimony made by the victim V, in herstatement u/s 164 Cr.P.C it is observed that she has clearly stated that herfather inserted his ‘peshab wali jagah in her peshab wali jagah’ .In herdeposition before the court too, she has been consistent and stated that herfather was touching ‘his shu shu wali jagah to her shu shu wali jagah’. Thereis, therefore, no reason to disbelieve the testimony of victim V which isconsistent and reliable and has ring of truth in it. It was argued for theappellant that in her statement u/s 164 Cr.P.C she has stated that appellant

inserted his penis in her vagina whereas in court and to the police she statedthat he only touched his penis on vagina, and as such she is not reliable.There is no force in this contention as the victim V was only 8 years oldwhen she was examined and the subtle variation that exists is understandablein the testimony of an eight year old child, who is grappling to comprehendthe complexity and enormity of what has actually happened with her.

20.A perusal of the testimony made by the prosecutrix which hasremained unshattered in cross-examination unequivocally reveals that thecommission of the offence by the appellant is described in clear andunambiguous words and her testimony has remained consistent during crossexamination. The prosecutrix has clearly stated that her father/the appellanthad committed rape upon her and thereafter threatened her with direconsequences if she told anyone about the incident.

21.Further, upon plain appraisal of the testimonies of the prosecutrixand her mother, the contention raised on behalf of the appellant to the effectthat the prosecutrix is tutored witness, cannot be accepted and is dehors anymerit. The appellant has failed to controvert the testimony of the prosecutrix,which has remained unchallenged despite being subjected to thorough crossexamination.

22.In view of the foregoing, it is clear that the defence raised by theappellant that he has been falsely implicated in the case by PW-13/his wifeand mother of the prosecutrix, because of some matrimonial dispute with him

, is mere after-thought. It is also relevant to observe that no cogent materialapart from the suggestions made in the cross-examination has been broughton record by the appellant to establish his defence.

23.In this view of the matter, the bald defence raised on behalf of theabove mentioned appellant that he has been falsely implicated in the case byhis wife, the mother of the prosecutrix, PW-13, is rejected, in view of thecogent and trustworthy evidence adduced on record, which fully establishesthe case of the prosecution.24.Coming now to the medical evidence adduced; the medical opinioncontained in the MLC report, dated 17.01.2013, [Ex. PW-9/B], qua thevictim V, returned finding to the effect that, “no fresh external injury markspresent; hymen is ruptured ”. No conclusive FSL Result has been obtained.

25.The position of law on the question, whether absence of injuries foundon the person of the prosecutrix, in case of rape, would result in finding ofacquittal, is well settled. Dealing with this issue in case of child rape, aCoordinate Bench of this Court in Lokesh Mishra v. State of NCT of Delhi,in Criminal Appeal No. 768 of 2010, decided on 12.03.2014, relying on

earlier decisions of the Apex Court, while upholding the conviction undersection 376 IPC, made the following observations:

“38. …In the case ofRanjit Hazarika v. State of Assam,reported in (1998) 8 SCC 635, the opinion of the doctor wasthat no rape appeared to have committed because of theabsence of rupture of hymen and injuries on the private partof the prosecutrix, the Apex Court took view that themedical opinion cannot throw overboard an otherwise cogentand trustworthy evidence of the prosecutrix.

39.The apex court inB.C. Deva v. State of Karnataka,reported at(2007) 12 SCC 122, inspite of the fact that noinjuries were found on the person of the prosecutrix, yetfinding her version to be reliable and trustworthy, the ApexCourt upheld the conviction of the accused. The Courtobserved that:

“18. The plea that no marks of injuries were found either onthe person of the accused or the person of the prosecutrix,does not lead to any inference that the accused has notcommitted forcible sexual intercourse on the prosecutrix.Though the report of the gynecologist pertaining to themedical examination of the prosecutrix does not disclose anyevidence of sexual intercourse, yet even in the absence of anycorroboration of medical evidence, the oral testimony of theprosecutrix, which is found to be cogent, reliable, convincingand trustworthy has to be accepted.”

26.Thus, it is needless to state that, corroboration of the testimony of the

prosecutrix, is not an essential requirement in case of rape, and the same is

not sine qua non to bring home the guilt of the accused. The testimony ofthe prosecutrix, if well founded & trustworthy, is by itself sufficient toconvict the accused.

27.Although, in the present case, it is observed that vide the MLC[Ex.PW-9/B], it has been opined that, no fresh external injury marks were foundto be present, in keeping with the settled position of law as discussedhereinabove. Injuries are not sine qua non to prove charge of rape.

28.The Hon’ble Supreme Court of India inAbdul Sayeed vs State of

Madhya Pradeshreported as (2010) 10 SCC 259, has enunciated that, whilst

appreciating variance between medical evidence and ocular evidence, oralevidence of eye-witness has to get primacy as medical evidence is basically

opinionative.The relevant paragraphs of the said decision are extractedhereinbelow:-

“34.Drawing on Bhagirath's case (supra.)[1], this Court has heldthat where the medical evidence is at variance with ocular evidence,it has to be noted that it would be erroneous to accord undueprimacy to the hypothetical answers of medical witnesses to excludethe eyewitnesses' account which had to be tested independently andnot treated as the "variable" keeping the medical evidence as the"constant".

35.Where the eyewitnesses' account is found credible andtrustworthy, medical opinion pointing to alternative possibilitiescan not be accepted as conclusive. The eyewitnesses' accountrequires careful independent assessment and evaluation for itscredibility, which should not be adversely prejudged on the basis ofany other evidence, including medical evidence, as the soletouchstone for the test of such credibility.

“ 21… The evidence must be tested for itsinherentconsistencyandtheinherentprobability of the story; consistency with theaccountofotherwitnessesheldtobecreditworthy; consistency with the undisputed

1 State of Haryana vs. Bhagirath, (1999) 5 SCC 96

facts,the"credit"ofthewitnesses;theirperformance in the witness box; their power ofobservation etc. Then the probative value ofsuch evidence becomes eligible to be put intothe scales for cumulative evaluation.[2]”

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX39. Thus, the position of law in cases where there is contradictionbetween medical evidence and ocular evidence can be crystallised tothe effect that though the ocular testimony of witness has greaterevidentiaryvaluevis-a-vismedicalevidence,whenmedicalevidence makes the ocular testimony improbable, that becomes arelevant factor in the process of the evaluation of evidence.However, where the medical evidence goes so far that it completelyrules out all possibility of the ocular evidence being true, the ocularevidence may be disbelieved.”

29.In light of the above, we find no weight in the contention urged on

behalf of the appellant that the medical evidence does not support the case of

the prosecution. We also observe that the MLC (Ex.PW-9/B) clearly findsthat the hymen of the victim V was ruptured.

30.In view of the foregoing discussion, in our considered view, theprosecution has established the guilt of the appellant beyond reasonabledoubt. There is no gainsaying in position of law and there can be no quarrelwith the proposition that when the testimony of the prosecutrix iscreditworthy,trustworthy,unimpeachedandinspiresconfidence;theconviction of the appellant can be sustained based solely on it.

2 Thaman Kumar vs. State (UT of Chandigarh) (2003) 6 SCC 380

31.In view of the foregoing legal position and the facts and circumstancesof this case, the issue raised in the present appeal is decided against theappellant.

32.Further, let it not be forgotten that this is case of rape on girl child,

only 08 years old at the time of commission of the offence, by her ownfather. Nothing can be more heinous than crime committed on the person of

child by her father, the one who is duty-bound to provide her unflinchingprotection from all harm.

33.It is trite to state that it is necessary for the Courts to have sensitiveapproach when dealing with cases of child rape. The effect of such crimeon the mind of the child is likely to be lifelong. special safeguard has beenprovided for children in Article 39 of the Constitution of India which, interalia, stipulates that the State shall, in particular, direct its policy towardssecuring that the tender age of the children is not abused and that children aregiven environment opportunities and facilities to develop in healthy mannerand in conditions of freedom and dignity; and that childhood and youth areprotected against exploitation and against moral and material abandonment.[Ref: State of Rajasthan v. Om Prakash (supra)]

34.In our view, consequently, the sentence awarded to the appellant bythe Ld. Trial Court also does not warrant any modification. Therefore, the

judgment and order on conviction dated 30.05.2018 and the order onsentence dated 05.06.2018 are both hereby upheld.

35.The present appeals are accordingly dismissed, with no order as tocosts.

36.The Trial Court Record be sent back forthwith.

37.A copy of this judgment be communicated to the appellant through the

Superintendent, Tihar Jail and also be sent for updation of the records.

SIDDHARTH MRIDUL(JUDGE)MANOJ KUMAR OHRI(JUDGE)APRIL 29, 2019dn/di