Read Order: Veer Kumar v. State of Haryana

Monika Rahar

Chandigarh, March 17, 2022: While dealing with a case wherein a father committed shameful and abominable act of rape upon his own daughter and defiled her body for a small fling of lust, the Division Bench of Justice Ritu Bahri and Justice Ashok Kumar Verma of Punjab and Haryana High Court showed their displeasure with this act of the accused-father while recalling the golden of Sigmund Freud, when he said, “I cannot think of any need in childhood as strong as the need for a father’s protection”.

These words of Sigmund Freud clearly demonstrate that father is one of the pillars in the development of a child’s emotional well-being. Children look to their fathers to lay down the socio-moral rules and enforce them. They also look to their fathers to provide a feeling of security, both physical and emotional”, said Bench while adding that in the present case all these parameters of a fatherhood were maligned by the accused-father. 

Also, the Court opined that merely because semen could not be found, it did not indicate that an offence under Section 6 of the POCSO Act was not committed.   

In this case, an FIR was registered on the complaint of a 15-year daughter, who leveled allegations of rape upon her very own father. Between May 29, 2015 to July 29, 2015, her father committed rape upon her about 4-5 times when she was alone at her home. She informed her mother and school teachers about the same. The appellant/accused-Veer Kumar was found guilty by the Trial Court under Sections 6 of the POCSO Act. 

The appellant’s case was primarily based on the arguments that the prosecution case was based on circumstantial evidence and the evidence led by the prosecution was highly contradictory.Also, the counsel submitted that the FSL report also did not support the prosecution’s case as no semen was detected. 

The State counsel submitted that the appellant had rightly been convicted and sentenced by the trial court. There was cogent evidence on record to show that the appellant had committed the offence and the prosecution had examined as many as 10 witnesses to prove its case. It was argued that after appreciation of the evidence on record, the Trial Court had rightly convicted and sentenced the appellant. 

At the outset, the Court perused the statement of the prosecutrix given under Section 164 of Cr.P.C. and also her statement before the Trial Court where she was examined as a  prosecution witness. After this perusal, the Court opined that it found no substance in the argument of the counsel for the appellant. 

Further, on the main argument of the appellant’s counsel that the victim turned hostile and mother and the teachers were not examined as PWs by the prosecution, the Court termed it as misconceived. Regarding this, the Court added that the aforesaid deposition of the victim  could be read in its entirety and not piecemeal manner. 

The Court also added that the statement of the victim was corroborated by the deposition of ASI Kailash Kaur (another prosecution witness) by which she proved receipt of application of complainant, the registration of the FIR, the  recording of statements of School teachers of the victim, the medico-legal examination of victim, the recording of the statement of the victim under Section 164 of the Cr.P.C., the medical examination of the accused, the birth certificate of the victim being taken into possession of  and the preparation of a charge-sheet. The Court also noted that in her cross-examination, the victim- prosecutrix verbally told her (the ASI) about the fact that from May 29, 2015 to July 29, 2015, her father committed rape upon her about 4-5 times.  

Also, negating the argument of the appellant’s counsel on non-recovery of semen, the Court opined that merely because semen could not be found, it did not indicate that an offence under Section 6 of the POCSO Act was not committed. The Bench added that Section 6 (1) of the POCSO Act stipulates that whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. 

Regarding this argument, the Court looked in the affidavit given by the medical officer in the case, who stated in the MLR that the hymen of the victim was torn and vagina admitted two fingers easily, thus concluding that the possibility of sexual intercourse with the victim- prosecutrix could not be ruled. 

Further, addressing the argument of the appellant’s counsel regarding the prosecutrix turning hostile, the Court opined that this argument was of no help. The Court noted that the prosecutrix duly supported the case of the prosecution in her examination-in-chief, and later on in cross examination, she has turned hostile. 

On the legality governing this aspect, the Court opined, “The fact that the witness was declared hostile at the instance of the public prosecutor and he was allowed to cross- examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it.”

Reference to the judgment of the Supreme Court in Rajendra vs. State of UP, (2009) 13 SCC 480, was also made wherein it was observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. A similar view was taken by the Supreme Court in Govindappa vs. State of Karnataka, (2010) 6 SCC 533 that the deposition of a hostile witness can be relied upon at least upto the extent he supported the case of the prosecution. 

In this light, the Court opined that in the present case, the prosecutrix testified to her rape or sexual assault at the hands of her father-appellant twice- first time before the Magistrate in her statement recorded under Section 164 of the Cr.P.C. and secondly, before the Trial Court in the witness box as the first prosecution witness. The Court added that no reasonable explanation was given by the appellant/accused as to why his own daughter leveled such serious allegations against him. 

Lastly, regarding the appellant’s argument on non-examination of any independent witness, the Court referred to the Supreme Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753, where, while discussing in detail the plight of the victim of sexual assault, the Top Court observed that the testimony of victim, in such cases, is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused, where her testimony inspires confidence and is found to be reliable.  

Thus, in view of the above, the Court opined that there was no illegality in the judgment of conviction and order of sentence passed by the Trial Court. Accordingly, the present appeal was dismissed and the judgment of conviction and order of sentence passed by the trial court were upheld. 

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