New Delhi, May 26 (ILNS): The Delhi High Court has dismissed an appeal filed by a man convicted and sentenced to 10 years rigorous imprisonment for raping his 12-year-old (at the time of incident) step-daughter. The court stated that the testimony of the child victim was trustworthy, reliable and admissible.
Case: Sunil Kumar vs state of NCT of Delhi
Justice Manoj Kumar Ohiri yesterday noted that the trial court had also awarded compensation of Rs two lakh to the 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 the Delhi Victim Compensation Scheme, 2015, approved by the Central government.
The Court rejected the contentions of the appellant/convict and said the absence of semen in the DNA examination report on the pyjama of the child victim is immaterial, as in the offence of rape, mere penetration is enough.
The 12-year-old victim had been residing with her two younger siblings, mother and step father (the accused) for 2-3 years. On August 20, 2013, their mother went to their native place along with the accused.
On August 24, 2013 the accused returned to Delhi without their mother. The victim, along with her two younger brothers, went to sleep at the neighbour’s house. At about midnight the accused came there and took victim, along with her two brothers to his jhuggi.
It is further stated in the charge sheet that after reaching the jhuggi, the accused beat up the brothers of victim and sent them upstairs. It is further alleged that thereafter, the accused removed the victim’s clothes and his own clothes and penetrated her vagina. It is stated that neighbour Rafiq, having seen the incident, raised an alarm.
Seeing this, the accused tried to run away, but the neighbours caught hold of him. It is further stated that police came to the spot and recorded the statement of the victim.
After completing the investigation, a charge sheet was filed by the police, and in total 17 witnesses were examined by the prosecution. According to the FSL report, the pyjama of the victim was subjected to DNA examination. However, no male DNA profile could be generated from it.
Furthermore, the court finds 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.
Case ref: State of Himachal Pradesh vs Manga Singh reported as (2019) 16 SCC 759.
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 August 25 and 26 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.” ILNS\AY\SJ\RJ