Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
rd
DECIDED ON : 3 FEBRUARY, 2018
+ CRL.A. 715/2017
ASHOK KUMAR ..... Appellant
Through : Ms.Manika Tripathy Pandey,
Advocate.
Versus
THE STATE (NCT OF DELHI) ..... Respondent
Through : Ms.Aashaa Tiwari, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
HON'BLE MR. JUSTICE C.HARI SHANKAR
S.P.GARG, J. (OPEN COURT)
1. The appellant – Ashok Kumar impugns a judgment dated
30.01.2017 of learned Addl. Sessions Judge in Sessions Case
No.8967/2016 arising out of FIR No.136/2014 PS Delhi Cantt. by
which he was held guilty for committing offences punishable under
Section 376 IPC and Section 6 Protection of Children from Sexual
Offences Act (in short ‘POCSO Act’). By an order dated 31.01.2017,
he was sentenced to undergo imprisonment for life with fine ` 50,000/-
each under both the offences.
2. Briefly stated, the prosecution case as set up in the charge-sheet
was that on 28.02.2014 at around 04.30 p.m. in Jhuggi No.T-61, East
Mehram Nagar, Delhi Cantt., New Delhi, the appellant committed
aggravated penetrative sexual assault upon the prosecutrix ‘X’
CRL.A. 715/2017 Page 1 of 10
(assumed name) aged around 4 years. Incident was reported to the
police and DD No.32A (Ex.P-4) came into existence at PS Delhi
Cantt. at around 08.19 p.m. The investigation was entrusted to SI
Kaptan Singh who along with Const. Shiv Ram and lady Const.Renu
went to the spot. After recording statement of the victim’s father
Deenanath (Ex.PW-5/A), FIR was lodged. In the complaint (Ex.PW-
5/A), Deenanath gave graphic account as to how and in what manner
the appellant had sexually assaulted his daughter ‘X’. ‘X’ was taken
for medical examination; she recorded her 164 Cr.P.C. statement. The
appellant was arrested and medically examined. Statements of the
witnesses conversant with the facts were recorded. Upon completion
of investigation, a charge-sheet was filed against the appellant for the
commission of the offences under Section 376 IPC and Section 6
POCSO Act. To establish its case, the prosecution examined eighteen
witnesses in all. In 313 Cr.P.C. statement, the appellant denied his
involvement in the crime and pleaded false implication due to his
declining to pay certain amount demanded by victim’s mother Usha to
discharge the rent. The appellant did not opt to examine any witness
in defence. The trial resulted in conviction as mentioned previously.
Being aggrieved and dissatisfied, the present appeal has been
preferred.
3. We have heard the learned counsel for the parties and have
examined the file. The victim, indisputably, was aged around 4 years
at the time of incident. PW-4 (Jairam Singh), Sub-Registrar, Birth and
Death Department, brought the summoned record and proved the
documents (Ex.PW-4/A & Ex.PW-4/B) depicting date of birth of the
CRL.A. 715/2017 Page 2 of 10
victim as 05.05.2010. In 313 Cr.P.C. statement, the appellant
admitted that the age of the victim was around 5 years. Since this date
of birth came to be recorded much prior to the happening of the
incident, there was hardly any possibility of the victim’s parents to
manipulate it.
4. It is not at issue that the appellant was familiar with the victim’s
family; he lived in a rented accommodation nearby. The victim and
other siblings addressed him ‘Mama’; he being distantly related to
PW-3 (Usha) – victim’s mother. Relations between the two families
were cordial. Nothing has emerged on record to infer if there was any
previous animosity with the appellant to falsely implicate him in the
case. It has come on record that on the day of incident, victim’s
family was in the process to vacate the rented accommodation in their
possession.
5. The occurrence took place on 28.02.2014 at around 04.30 p.m.
After the victim’s parents came to know about X’s ordeal, the
appellant was called and slapped. The matter was reported to the
police vide DD No.32A (Ex.P-4) at around 08.19 p.m. Soon
thereafter the victim was taken for medical examination at Safdarjung
Hospital. MLC (Ex.PW-8/A) records the arrival time of the patient at
09.45 p.m. The alleged history recorded in the MLC implicates the
appellant by name for committing sexual assault upon the child. The
Investigating Officer lodged FIR sending rukka (Ex.PW-13/A) at
11.20 p.m. In the complaint (Ex.PW-5/A), victim’s father attributed
specific and definite role to the appellant in the commission of the
CRL.A. 715/2017 Page 3 of 10
crime. Since the FIR was lodged promptly, there was least possibility
of the victim’s father to concoct a false story in such a short period.
6. Victim’s statement came to be recorded under Section 161
Cr.P.C.; she also recorded her 164 Cr.P.C. statement (Ex.PW-1/A) on
01.03.2014. Before recording her statement, the learned Presiding
Officer put several questions to ascertain if ‘X’ was competent to
make the statement without any fear or pressure. After recording her
satisfaction, the learned Presiding Officer recorded X’s statement
without oath. In 164 Cr.P.C. statement, the prosecutrix again assigned
specific role to the appellant by name for committing sexual assault
upon her.
7. ‘X’ also appeared as PW-1 in the Court to record her statement.
Before recording the statement again preliminary inquiry was
conducted by the learned Presiding Officer to ascertain if the witness
was able to give rational answers to the questions put to her. After
recording the satisfaction that the witness was capable and competent
to give rational answers, her statement was recorded without oath. In
her Court statement ‘X’ disclosed that the appellant was her ‘Mama’
who lived in a nearby house. On the day of occurrence, in the
evening, he had taken her from the house to his house. He gave her
two “O Yes packets”, one for her and the other for her sister. The
appellant also gave her some raw vegetables in a packet to give to her
‘Bua’. Thereafter, the appellant locked the door and asked her to lie
down on the mattress. Then the appellant removed his clothes and
rubbed his ‘susu’ from which some liquid came out on her forehead,
cheeks and also in her mouth; she was made to drink it. Thereafter,
CRL.A. 715/2017 Page 4 of 10
the appellant put his ‘susu’ in her ‘susu’ after opening her panty. In
the meantime, her sister ‘Y’ (assumed name) aged about 11 years
arrived and knocked at the door. The appellant opened the door and
she went out along with her sister. On the way, she narrated the
occurrence to her sister and at house, her parents were apprised of the
incident. The appellant was brought to the house and was slapped.
She was taken to the hospital for medical examination. Her statement
(Ex.PW-1/A) was recorded under Section 164 Cr.P.C. The victim
identified the appellant to be the perpetrator of the crime. In the cross-
examination, the witness reiterated that the appellant had taken her in
the evening to his house when all her family members were present in
the house. No person was present near the appellant’s house. She
denied if her father had demanded any money from the appellant.
8. On perusal of the statement of the child in its entirety, it stands
established that it was the appellant who has defiled the prosecutrix at
his room after taking her there on the allurement to give certain
snacks. Material facts deposed by the witness remained unchallenged
and undisturbed in the cross-examination. No ulterior motive was
attributed to the child to make a false statement for this heinous
offence. In the absence of any prior animosity or ill-will, the victim
aged around 4 years was not expected to level serious allegations of
commission of rape upon her to bring herself in disrepute. Nothing
was suggested in the cross-examination if victim’s mother - Usha had
demanded any money from the appellant. It is unbelievable that the
victim would falsely implicate an individual to whom she used to call
‘Mama’.
CRL.A. 715/2017 Page 5 of 10
9. PW-1 - X’s statement has been corroborated on all aspects by
PW-2 ‘Y’ – her sister, aged around 11 years. When ‘X’ did not return
after a considerable delay, after being taken by the appellant to his
room, PW-2 ‘Y’ went to appellant’s room; she found the room locked.
From a crack in the door, she peeped through it and saw that the
appellant was lying on ‘X’ and had opened his underwear as well as
that of ‘X’. She then banged the door; it was opened by the appellant
and she brought ‘X’ to home. The incident was informed to her by
‘X’ on the way. They apprised their parents at home. In the cross-
examination, she reaffirmed that the appellant had taken ‘X’ with him
in evening hours to his house situated at some distance. She further
informed that her father had brought the accused from his house. She
denied that the appellant’s house was not visited by her.
10. Again, the testimony of this child witness is without any flaw.
Nothing material has been elicited in the cross-examination to suspect
her version. Nothing was suggested either to ‘X’ or PW-2 that the
appellant was not present in his room at the relevant time or had not
taken ‘X’ there.
11. Similar are the testimonies of PW-3 (Usha) and PW-5
(Deenanath) – victim’s parents. They have also spoken that on the
day of occurrence in the evening hours, the child ‘X’ was taken by the
appellant to his room on the pretext to give some snacks. When ‘X’
did not return, PW-2 went to the appellant’s room and found her
inside the locked room. On their return, ‘X’ and PW-2 narrated the
incident to them. They confronted the appellant and he denied his
CRL.A. 715/2017 Page 6 of 10
involvement in the crime. The cross-examination did not yield any
worthwhile infirmities to discard their statements.
12. Statement of the prosecutrix ‘X’ is consistent throughout. Her
ocular version has been confirmed and supported by PW-2 ‘Y’, PW-3
(Usha) and PW-5 (Deenanath). No extraneous consideration was
attributed to the victim’s parents for appellant’s false involvement in
the crime. Appellant’s defence for false implication was that on the
day of occurrence when the victim’s parents were to vacate the rented
accommodation, they had demanded certain amount to discharge the
rent and on his refusal to do so, he was involved in the crime. This
defence deserves outright rejection. Nothing has emerged on record as
to when any such demand of money was raised by the victim’s parents
from the appellant, and if so, how much. The allegations are without
any foundation. Moreover, for this trivial issue, the victim’s parents
are not believed to use their tiny daughter, aged around 4 years, to
falsely implicate the accused for this grave offence.
13. Victim’s statement has been confirmed and strengthened by
medical and scientific evidence too. Soon after the occurrence, the
victim was medically examined by PW-8 (Dr.Neha Rani) vide MLC
(Ex.PW-8/A). On local examination, it was found that there was
yellowish white discharge on the folds of labia minora and majora;
labia minora was congested; hymen was congested and intact. The
history of oral sex was present; ejaculate seen on the forehead between
two eye-brows and on the outer side of the left eye.
14. At the time of appellant’s medical examination vide MLC
(Ex.PW-9/A), PW-9 (Dr.Mohd.Shadab Raheel) sealed blood sample
CRL.A. 715/2017 Page 7 of 10
on gauge, one shirt, inner thermal, vest, jeans and underwear of the
appellant and handed over to W/SI Sushil. During investigation, the
exhibits collected were sent to Forensic Science Laboratory for
examination. As per FSL report (Ex.PW-14/A), blood was detected
on Ex. ‘1d’ (cotton wool swab), ‘1g3’ (cotton wool swab), ‘1i3’
(cotton wool swab), ‘1f’ (cotton wool swab), ‘1k1’ (dark brown foul
smelling liquid), ‘1k2’ (dark brown foul smelling liquid), ‘1L2’ (dark
brown foul smelling liquid) & ‘7’ (brown gauze cloth piece along with
fungal growth). Semen was detected on Ex. ‘1f’ (cotton wool swab),
‘1g3’ (cotton wool swab), ‘1i3’ (cotton wool swab), ‘2a’ (one dirty
high neck baby t-shirt), ‘2b’ (one dirty woolen inner), ‘2d’ (one baby
pyjami), ‘2e’ (one baby underwear) and ‘6e’ (one underwear). These
exhibits were subjected to DNA examination and as per DNA report
performed on Ex. ‘1f’ (cervical mucus), ‘1g3’ (vaginal secretion),
‘1i3’ (anal swab), ‘2a’ (baby T-shirt), ‘2b’ (baby inner), ‘2d’ (baby
pyjami) and ‘2e’ (baby underwear), it was opined that it was sufficient
to conclude that DNA profile generated from the source of Ex. ‘1f’
(cervical mucus), ‘1g3’ (vaginal secretion), ‘1i3’ (anal swab), ‘2a’
(baby T-shirt), ‘2b’ (baby inner), ‘2d’ (baby pyjami) and ‘2e’ (baby
underwear) matched with the DNA profile generated from the source
of Ex. ‘7’ (blood stained gauze cloth piece of accused). The medical
and scientific evidence thus confirmed the participation of the
appellant in the crime at the relevant time whereby he sexually
assaulted the child ‘X’. The identity of the appellant is not at issue.
15. In 313 Cr.P.C. statement, the appellant did not give plausible
explanation to the incriminating circumstances proved against him.
CRL.A. 715/2017 Page 8 of 10
Nothing was suggested as to where else he was at the relevant time.
He did not examine any witness in defence to prove his presence at
somewhere else. No evidence came on record to infer if any money
was ever demanded by the victim’s parents from the appellant or he
was financially capable to give it. The ample evidence on record
establishes the guilt of the appellant beyond reasonable doubt. The
findings of the Trial Court based on fair appreciation of the evidence
deserve no intervention on conviction.
16. The prosecution has proved commission of offences under
Section 376 IPC as well as Section 6 of POCSO Act. Under Section
42 of the POCSO Act, there is a provision for alternate punishment;
where an act or omission constitutes an offence punishable under
POCSO Act and also under various Sections of India Penal Code
including 376 IPC, then, notwithstanding anything contained in any
law for the time being in force, the offender found guilty of such
offence is liable to be punished under POCSO Act or under the Indian
Penal Code as provides for punishment which is greater in degree.
Apparently, only one punishment can be awarded either under the
POCSO Act or under India Penal Code. In the present case, the
learned Trial Court has sentenced the appellant both under Section 376
IPC as well as Section 6 POCSO Act, which cannot be sustained.
Learned APP fairly admits that only one sentence is to be awarded to
the appellant either under India Penal Code or POCSO Act.
17. The offence committed by the appellant is highly grave. The
appellant who was acquainted with the victim’s family defiled the
child taking advantage of her innocence and incapability to desist and
CRL.A. 715/2017 Page 9 of 10
resist him. The appellant betrayed the trust of X’s parents who had
unsuspectingly permitted their daughter of tender age to accompany
him to his room. Considering the inhuman conduct of the appellant,
no leniency is called for; ‘X’ was akin to his daughter.
18. In the light of above discussion, confirming the conviction,
Sentence Order is modified to the extent that the appellant shall be
punishable under Section 376 IPC and the sentence shall be
imprisonment for life with fine ` 50,000/-; default sentence being SI
for three months.
19. The appeal stands disposed of in the above terms.
20. Trial Court record be sent back forthwith with the copy of the
order. Intimation be sent to the Superintendent Jail.
S.P. GARG
(JUDGE)
C.HARI SHANKAR
(JUDGE)
FEBRUARY 03, 2018 /
tr
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