Sunday 5 May 2013

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

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




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.
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 vagina and external genitalia. On 
separation of labias fresh marks of injury were noticed around the 
vaginal 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 sexual 
assault. As per CFSL report neither blood nor semen was detected 
in the vaginal 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 
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 vaginal orifice of the 
prosecutrix. It was held that injury marks on vaginal orifice 
indicated that the penetration was made by the accused; Absence 
of blood and semen in the vaginal 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 vaginal orifice of the prosecutrix. As per PW1 and 
PW2, incident had taken place near a nala. Dust and grass CRL. 
material found around the vaginal 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 
vaginal orifice i.e. vaginal cavity. PW6 Dr. Chandra Kanta Arya has
opined that the injuries were possible by sexual assault. In these 
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 vaginal 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 
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 sexual 
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 vaginal 
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 
possible that the young infant and unfortunate 
victim passed urine and thereby diminishing 
the possibility of blood being detected in her 
vaginal 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 vaginal swab of 
prosecutrix, by itself, would not indicate that no rape had been 
committed by the accused. Injuries on the vaginal 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. 
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. 
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



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