On 8th October 2020, a Single Judge Bench of Hon’ble Justice Vibhu Bakhru heard the case of Mahipal @ Lala v. State. The Appellant filed the present appeal seeking to challenge a judgment passed by the ASJ-01, North Rohini Courts, New Delhi, whereby the appellant was convicted for committing aggravated penetrative sexual assault on a child victim – an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.
Facts of the Case
The Prosecutrix stated that the Accused and her mother got married and they started residing in a rented house in Mangol Puri. After their marriage, both of them used to quarrel quite often, which would often be violent. She stated that about four months ago, her mother committed suicide by hanging herself. Thereafter, the Accused moved to a rented accommodation at Pansali and took her along as well. After about one month of her mother committing suicide, the Accused started forcibly raping her. She stated that he continued to rape her. She also alleged that he would threaten her that if she mentioned the same to anyone, he would kill her.
She alleged that on 5th August 2014, the accused had once again raped her. He had also beaten her and she could not leave the house. On that date, while the Accused was sleeping, she took the opportunity to escape from the house. On the way, she met one Shweta and she informed her about being assaulted by the Accused. Later, Shweta brought the Prosecutrix to the police station. The biological father of the Prosecutrix brought her to Delhi and informed the Investigating Officer that she was pregnant. The Prosecutrix was produced before the Child Welfare Committee and permission for her medical examination was obtained. With the permission of her biological father, her pregnancy was terminated.
Contentions of the Appellant
Learned Counsel for the Appellant submitted that the Prosecution’s case mainly rested on the testimony of the Prosecutrix. It was evident that the same could not be relied upon. He submitted that the initial statement made by the Appellant was in variance with her statement made before the Trial Court. He contended that the medical evidence also did not support the Prosecution’s case. He stated that the prosecutrix’s medical examination was conducted on 7th August 2014. The MLC indicated that she was not pregnant on the said date. The report also indicated that her hymen was not torn. Further, no injuries were found on the Prosecutrix. Lastly, he submitted that the FSL Report could not be relied upon as the Prosecution had failed to establish that the samples remained intact and were not tampered with.
Contentions of the Respondent
Learned Counsel appearing for the State submitted that the evidence in the present case established that the Appellant was guilty of committing the offence for which he was charged. He stated that the MLC of the Prosecutrix in respect of her medical examination, conducted did not mention that she was pregnant as the UPT result was negative. He further stated that it is well settled that even if the hymen was found to be intact, it did not necessarily overrule a penetrative sexual assault. He further submitted that the FSL report indicated that the DNA of the appellant matched with the DNA of the fetus.
The Court opined that the contention that the medical evidence was inconsistent and does not support the case of the prosecution was unpersuasive. The Prosecutrix was medically examined for the first time on 7th August 2014. The MLC recorded that the UPT is negative. In other words, the pregnancy test was done that day had yielded a negative result. The Court opined that the contention that the Prosecutrix had not been subject to any sexual assault because her hymen was found to be not torn, was without substance. Merely, because the hymen of the prosecutrix was found not torn, does not necessarily mean that she had not been subjected to a sexual assault. The Court further stated that the contention that the samples of the Prosecutrix or the Appellant were tampered with was also unmerited. It was contended that since the said samples were sealed with the seal of “MB Hospital Pooth Khurd”, the same indicated that the seals were fabricated because the seals ought to have been of MV Hospital. The said contention was plain and unmerited.
The Court dismissed the appeal since the sentence awarded to the appellant did not suffer from any error and did not require any reduction. The Appellant was guilty of committing aggravated penetrative sexual assault, punishable under Section 6 of the POCSO Act, 2012.
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