Full Judgement
Delhi High Court
Ajeet Singh vs The State Govt. Of Nct Of Delhi And ... on 31 October, 2023
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: September 05, 2023
Decided on: October 31, 2023
+ CRL.A. 612/2023 & CRL.M.(BAIL) 1089/2023
AJEET SINGH ..... Appellant
Through: Mr. Deepanshu, Advocate
V
THE STATE GOVT. OF NCT OF
DELHI AND ANOTHER ..... Respondents
Through: Mr. Utkarsh, APP for State
with SI Abhishek Guleria,
P.S. Kalyanpuri
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present appeal is filed under article 374(2) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code") on
behalf of the appellant Ajeet Singh (hereinafter referred to as "the
appellant") against the judgment on conviction dated 27.03.2023
and order on sentence dated 10.05.2023 passed by the court of
Sh. Ravinder Singh, Additional Sessions Judge (Special Court,
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 1 16:16:47 POCSO Act), East, Karkardooma Courts, Delhi in Sessions Case
no.463/2016 arising out of FIR bearing no.0558/2015 registered
under sections 377/506 of the Indian Penal Code, 1860 (hereinafter
referred to as "IPC") and under sections 6/8/12 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as
"POCSO Act") at P.S Kalyanpuri.
2. The factual background is that SI Sudhir Rathee after receipt of
DD no. 27A dated 24.06.2015 reached at LBS Hospital along with
the respondent no. 2 and her two sons J aged about 7 years and A
aged about 4 years where they were medically examined vide MLC
bearing no 9259/15 and 9260/15 with alleged history of sodomy.
The doctor referred them to SR surgery for further opinion and
examination. SI Sudhir Rathee again on 26.05.2015 took the
respondent no.2 and the victims J and A to LBS Hospital for
obtaining forensic opinion and the doctor after examination opined
that the possibility of sodomy/anal intercourse by erect penis of
adult/any structure resembling it cannot be ruled out.
2.1 The respondent no.2 handed over a written complaint dated
26.06.2015 to SI Sudhir Rathee (hereinafter referred to as "the
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 2 16:16:47 Investigating Officer") wherein she primarily stated that she was
residing at house bearing no. 20/144, Kalyanpuri along with family.
The appellant who is her husband has been sexually exploiting her
elder son J for the last three years and also started to sexually exploit
her younger son A. The appellant and her mother also threatened the
respondent no.2 and both the victims J and A were living under
threats and fear. The appellant on 22.06.2015 in the night again
committed the offence of aggravated penetrative sexual assault upon
victims J and A and said fact was disclosed by the victims J and A to
her.
2.2 The Investigating Officer on the basis of the MLCs of the
victims J and A and surgery and forensic opinions got registered FIR
bearing no 0588/2015 under sections 377/506 IPC and 6/8/12 of
POCSO Act at P.S. Kalyanpuri. The statements of victims J and A
were recorded under sections 161 and 164 of the Code. The appellant
was arrested on 07.07.2015. The exhibits were sent to FSL. The
charge sheet was filed after completion of investigation and the
appellant was put to trial for offences punishable under sections
377/506 IPC and 6/8/12 of POCSO Act. The case after complying
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 3 16:16:47 with the provision of section 207 of the Code was committed to the
Court of Sessions. The court of Sh. Raghubir Singh, ASJ-01, East,
Karkardooma Courts, Delhi vide order dated 24.01.2017 framed the
charge against the appellant for offence punishable under section 6 of
the POCSO Act on allegations that the appellant was sodomizing the
elder son J (aged about seven years) for the last about three years
prior to lodging of the complaint and also sodomized him on
22.06.2015 in the night and the appellant also sodomized the younger
son A ( aged about 4 years) for some times and particularly on
22.06.2015 in the night. The appellant pleaded not guilty and claimed
trial.
2.3 The prosecution during trial examined 9 witnesses including
victim J as PW1, victim A as PW2, the respondent no.
2/Complainant as PW3 and Investigating Officer as PW7. The
appellant as per section 294 of the Code admitted recording of
statements of the victims J and A as Ex.PW1/A and Ex.P1
respectively under section 164 of the Code by the court of Ms. Swati
Katiyar, MM, East, Karkardooma Courts, Delhi, FIR as Ex.P2, DD
no. 27A dated 24.06.2015 as Ex.P3, Potency Report as Ex.P4, age
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 4 16:16:47 proof of the victims as Ex.P5 and Ex. P6 and FSL Report no. 2015/B-
6381 BIO No. 1808/15 dated 29.09.2017 as Ex.A1. The prosecution
evidence appears to be closed vide order dated 13.02.2019. The
statement of the appellant was recorded under section 313 of the
Code vide proceedings dated 06.04.2019 wherein the appellant
alleged false implication and pleaded innocence. The appellant stated
that he and his wife i.e. the respondent no. 2/complainant used to
quarrel and the respondent no. 2 had lodged complaint against him at
P.S. Kalyanpuri but police did not take any action on her complaint.
Thereafter, the respondent no. 2 has falsely implicated him in this
case by lodging false complaint against him through both the victims.
The appellant preferred to lead defence evidence. The appellant
examined his mother Sat Kaur as DW1. The defence evidence was
ordered to be closed vide order dated 30.05.2019.
2.4 The court of Sh. Ravinder Singh-1, Additional Sessions Judge-
01 (POCSO), East, Karkardooma Courts, Delhi (hereinafter referred
to as "the trial court") vide judgment dated 27.03.2023 (hereinafter
referred to as "the impugned judgment") convicted the appellant
for the offence under section 6 of POCSO Act and under section 377
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 5 16:16:47 IPC by observing that the prosecution had proved beyond reasonable
doubt that the appellant had committed the offence of penetrative
sexual assault as defined in section (3)(a) of POCSO Act upon PW2
but the prosecution failed to prove that the appellant had committed
the offence of penetrative sexual assault upon PW1. The trial court
vide order on sentence dated 10.05.2023 sentenced the appellant to
undergo rigorous imprisonment for 10 years with a fine of
Rs.10,000/- for the offence punishable under section 6 of POCSO
Act and in default of payment of fine, to undergo further rigorous
imprisonment for six months. The benefit of section 428 of the Code
was extended to the appellant.
3. The appellant being aggrieved, filed the present appeal and
challenged the impugned judgment and order on sentence on the
grounds that the impugned judgment is bad in law and facts, the
impugned judgment is based on conjectures and surmises, the
prosecution has failed to prove its case beyond reasonable doubts and
as such the trial court should have given the benefit of doubt to the
appellant and should have acquitted him, the trial court has failed to
consider the testimonies of PW1, PW2 and PW3 in right perspective,
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 6 16:16:47 the trial court has failed to consider that the police officials and the
NGO have got registered the present FIR with false and fabricated
allegations against the appellant, the trial court has failed to consider
the real dispute which was matrimonial dispute between the appellant
and his wife i.e. the respondent no. 2 and no such incidents took
place as alleged by the prosecution, the trial court has failed to
consider that the appellant is the only care-taker & bread provider of
the family and the trial court has failed to consider that the
prosecution has failed to prove its case beyond all reasonable doubts.
The appellant prayed that the impugned judgment and order on
sentence be set aside.
3.1 The counsel for the appellant argued that the trial court has not
appreciated evidence led by the prosecution in right perspective as
PW1/victim J and the respondent no. 2/complainant as PW3 and
PW2/victim A in cross examination did not support the case of the
prosecution. The appellant was falsely implicated at instance of the
respondent no. 2 in present case due quarrel between them. The
counsel for the appellant also referred testimony of DW1 in
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 7 16:16:47 arguments. The counsel for the appellant argued that the impugned
judgment is liable to set aside and the appellant be acquitted.
3.2 The Additional Public Prosecutor argued that the prosecution
has proved the guilt of the appellant beyond reasonable doubt and
referred testimony of PW2/victim A. The Additional Public
Prosecutor argued PW1/victim A in examination in chief supported
the case of prosecution and his cross examination does not affect
credibility of testimony of PW2/victim A particularly in light of
medical evidence. The respective testimonies of PW1/victim J and
PW3 i.e. the respondent no. 2/complainant does not dilute criminality
of the appellant. He argued that the appeal is liable to be dismissed.
4. It is reflecting that the prosecution in support of its case
examined both the victims as PW1 and PW2 besides the respondent
no. 2/complainant as PW3. The trial court at the time of recording of
respective testimonies of the victim J as PW1 and the victim A as
PW2 after preliminary questions, observed that they were having
sufficient maturity to understand the questions put to them and to
give rational answers. The testimony of the victim J as PW1 was
recorded in question-answer form. PW1/victim J did not support the
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 8 16:16:47 case of the prosecution. PW1/victim J primarily deposed that the
appellant who is father of PW1/victim J is a good person and did not
do any wrong act either with him or with the victim A/PW2.
PW1/victim J could not tell about his statement under section 164 of
the Code. PW1/victim J admitted that he was living with the
appellant in same house and quarrel took place between the appellant
and the respondent no. 2/complainant. The appellant never removed
his knicker and did not do galat kaam (sodomy) with him any time
which caused pain in his anus. PW1/victim J deposed that he was
taken to the hospital due to bleeding from his anus but no injury had
ever been caused there. PW1/victim J admitted his signatures at point
A on statement Ex. PW1/A recorded under section 164 of the Code.
PW1/victim J denied that he deposed at the instance of his
grandmother. PW1/victim J was not cross examined by the defence
counsel on behalf of the appellant.
4.1 PW2/victim A deposed that he has been told by his mother i.e.
the respondent no. 2/ complainant to depose. PW2/victim A used to
be beaten by the appellant. The appellant removed his knicker 10
times and after removing knicker placed lulli (penis) at his private
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 9 16:16:47 part at back i.e. anus which caused pain to him. The respondent no. 2
i.e. mother of the victim A had beaten the appellant when the
appellant was placing lulli (penis) on his private part. The respondent
no. 2 had taken PW2/victim A to the hospital. PW2/victim A gave
statement to a lady judge and told her that the appellant is not a good
person. The appellant should be beaten and he deposed correctly. The
appellant used to place his lulli (penis) in night at sleeping time and
also used to do same act with his brother i.e. PW1/victim J.
PW2/victim A in cross examination by defence counsel on behalf of
the appellant deposed that the appellant had never beaten him and did
wrong act with him. The appellant never put/inserted his lulli (penis)
at his anus or anus of his brother i.e. PW1/victim J. PW2/victim A
never told police or judge that the appellant put/insert his lulli (penis)
on his anus. PW2/victim A deposed that he correctly deposed in cross
examination. PW2/victim A was also cross examined by the
Additional Public Prosecutor on behalf of the State wherein deposed
that he has not deposed at instance of either the appellant or the
respondent no. 2 and nothing had happened with him about 2-3 or 5
years back.
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 10 16:16:47 4.2 PW3 i.e. the respondent no. 2/complainant also turned hostile
and did not support case of prosecution. PW3 deposed that she had a
quarrel with the appellant who also gave beatings to her and both the
victims. The police did not register complaint of the respondent no.
2/complainant and thereafter with help of an NGO, present FIR was
registered by the police and the appellant was arrested. The police
obtained her signatures on some papers. She admitted her signature at
point A on the complaint Ex.PW3/A. PW3 was cross examined by
the Additional Public Prosecutor wherein she denied suggestions that
in complaint Ex.PW3/A she stated that for last three years prior to
registration of FIR on 26.06.2015, the appellant was committing
unnatural sex (sodomy) with her elder son i.e. the victim J and for
few days prior to registration of FIR started committing unnatural sex
with her younger son i.e. the victim A or that the victim J asked her
to sleep with him so that the appellant could not do wrong with him
or that when she asked for medical examination of the victims, the
appellant and her mother in law threatened her to turn her out of the
matrimonial home or that the appellant on 22.06.2015 committed
sodomy with both the victims and thereafter the victim A apprised
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 11 16:16:47 her about the wrong done by the appellant and thereafter she went to
P.S. Kalyanpuri and gave complaint Ex.PW3/A. PW3/complainant
admitted that on 24.06.2015 police took her and both the victims to
LBS Hospital for medical examination of victims but did not
remember that she and victims informed the doctor about anal
intercourse being done with them. PW3/complainant admitted that
30.06.2015 she along with both the victims came to Karkardooma
Courts and the statements of both the victims were recorded by a
Judge but expressed her ignorance about contents of the statements.
4.3 The prosecution during trial examined PW5 Dr. Abbas Ali,
Casualty Medical Officer, LBS Hospital, PW6 Dr. Narender, S.R
Surgery, LBS Hospital and PW9 Dr. Ashok Sagar, Assistant
Professor, G.S Medical College, Pilakhwa. PW5 Dr. Abbas Ali on
24.06.2015 being posted as Casualty Medical Officer, LBS Hospital,
Delhi medically examined PW1/victim J and PW2/victim A vide
MLC Ex.PW5/A and Ex. PW5/B with the alleged history of sodomy
and on examination found no external visible injury on the body of
victims and referred them to Surgery department for local
examination. PW5 in cross examination admitted that he had not
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 12 16:16:47 given opinion regarding sodomy upon the victims. PW6 Dr. Narender
deposed that vide MLC Ex. PW5/A and Ex. PW5/B Dr. Shailender
had examined both the victims on 24.06.2015 who had taken rectal
swab which were sent for forensic examination and expert opinion.
PW9 Dr. Ashok Sagar being Senior Resident on 26.06.2015
examined both the victims with the alleged history of sodomy and
after examination opined that possibility of sodomy/anal intercourse
by erect penis of adult or any structure resembling it, cannot be ruled
out.
4.4 The appellant in defence examined his mother Sat Kaur as
DW1 who primarily deposed that the appellant and the respondent
no. 2 used to be quarrel over trivial matters and the respondent no. 2
had made complaints to the police against the appellant who was
detained by the police. The respondent no. 2 used to threaten to
implicate the appellant in a serious case. The appellant is innocent.
5. The trial court in impugned judgment opined that both the
victims J and A were „child‟ as defined in section 2(l)(d) of POCSO
Act. The appellant also did not dispute age of both the victims. The
appellant has also admitted the date of birth certificates pertaining to
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 13 16:16:47 both the victims as Ex.P6 and Ex.P5 and as per certificates Ex.P6 and
Ex.P5, the date of birth of victim J is 20.07.2008 and the date of birth
of victim A is 01.12.2011. The trial court has rightly observed that
the prosecution has proved that the ages of the victims were less than
18 years at the time of commission of offence and as such POCSO
Act is applicable.
6. The trial court also judicially determined whether the appellant
had actually committed acts of sodomy with both the victims who
happened to be his minor sons. The appellant as per prosecution had
sexually exploited his elder son victim J for the last three years and
also started to sexually exploit his younger son Victim A. The
victims were also sexually exploited by the appellant in the night of
22.06.2015 and victims disclosed this to their mother i.e. the
respondent no. 2 who reported this incident to the police on
24.06.2015.
6.1 The prosecution to prove guilt of the appellant, examined
victim J as PW1, victim A as PW2 and the complainant i.e. the
mother of both the victims as PW3. PW1/victim J and the respondent
no. 2/PW3 turned hostile and did not support case of the prosecution.
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 14 16:16:47 As discussed by the trial court in the impugned judgment,
PW1/victim J deposed that the appellant is a good person and did not
remove his knicker and also did not do any wrong act with him
although he admitted that he was taken to the hospital as blood was
oozing from his anus but further deposed that the appellant has not
done any wrong act with him. PW1/victim J admitted that his
statement Ex.PWl/A was recorded under section 164 of the Code but
claimed that statement Ex.PW1/A was made at the instance of one
aunty. PW1/victim J has not supported version of the prosecution
that the appellant has sexually exploited him for the last three years
and also on 22.06.2015. PW1/victim J was cross examined by the
Additional Public Prosecutor but there is nothing material in his cross
examination to substantiate the allegations of penetrative sexual
assault by the appellant on 22.06.2015 or prior to it. The respondent
no. 2/the complainant also deposed that the appellant has not done
anything wrong either with PW1victim J or PW2/victim A although
during her cross examination, she admitted that police took her and
her sons i.e. PW1/victim J and PW2/victim A to LBS Hospital for
medical examination on 24.06.2015 and she also brought both
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 15 16:16:47 victims to Karkardooma Courts on 30.06.2015 for recording of their
statements. There is as such nothing in respective testimonies of
PW1/victim J and the respondent no. 2/PW3 which can connect the
appellant with alleged offence. It is relevant to mention that as per
testimony of PW9 Dr. Ashok Sagar, he examined PW1/victim J on
26.06.2015 with the alleged history of sodomy and thereafter opined
on MLC Ex.PW5/A that possibility of sodomy/anal intercourse by
erect penis of adult or any structure resembling it, cannot be ruled
out. However quality and quantity of evidence led by the prosecution
is not sufficient to connect the appellant with alleged offence qua
PW1/victim J.
6.2 PW2/victim A supported the case of the prosecution in part of
his testimony i.e. examination in chief wherein he primarily deposed
that the appellant removed his knicker 10 times and after removing
knicker placed lulli (penis) at his private part at back i.e. anus which
caused pain to him. PW2/victim A was taken to the hospital by the
respondent no. 2/PW3 i.e. his mother. PW2/victim A also admitted
about his statement Ex.P1 under section 164 of the Code.
PW2/victim A also deposed that the appellant used to place his lulli
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 16 16:16:47 (penis) in night at sleeping time and also used to do same act with his
brother i.e. PW1/victim J. PW2/victim A in his statement Ex.P1
recorded under section 164 of the Code also supported case of the
prosecution. This part of testimony of PW1/victim A is corroborated
by the testimony of PW9 Dr. Ashok Sagar who examined
PW2/victim A on 26.06.2015 with the alleged history of sodomy and
thereafter opined on MLC Ex.PW5/B that possibility of sodomy/anal
intercourse by erect penis of adult or any structure resembling it,
cannot be ruled out.
6.3 Every person accused of an offence is presumed to be innocent
and burden lies upon the prosecution to establish the guilt of the
accused beyond reasonable doubt. The Supreme Court in Shivaji
Sahabrao Bobade and Another V State of Maharashtra, (1973) 2
SCC 793 emphasized that our jurisprudential enthusiasm for
presumed innocence must be moderated by the pragmatic need to
make criminal justice potent and realistic. The Supreme Court in
State of U.P. V Shanker, AIR 1981 SC 897 observed that it is
function of the court to separate the grain from the chaff and accept
what appears to be true and reject the rest. The Supreme Court in
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 17 16:16:47 Gurbachan Singh V Sat Pal Singh and others, AIR 1990 SC 209
observed that exaggerated devotion to the rule of benefit of doubt
must not nurture fanciful doubts or lingering suspicions and thereby
destroy social defence. The Supreme Court in Krishna Mochi and
Others V State of Bihar, (2002) 6 SCC 81 observed that there is
sharp decline in ethical values in public life and in present days when
crime is looming large and humanity is suffering and society is so
much affected thereby duties and responsibilities of the courts have
become much more. It was further observed the maxim "let hundred
guilty persons be acquitted, but not a single innocent be convicted" is
in practice changing world over and courts have been compelled to
accept that "society suffers by wrong convictions and it equally
suffers by wrong acquittals". However, the Supreme Court in Sujit
Biswas V State of Assam, (2013) 12 SCC 406 also held that
suspicion, however grave, cannot take the place of proof and the
prosecution cannot afford to rest its case in the realm of "may be"
true but has to upgrade it in the domain of "must be" true in order to
steer clear of any possible surmise or conjecture. The trial court in the
impugned judgment referred section 29 of the POCSO Act by
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 18 16:16:47 observing that there is a presumption under section 29 of POCSO Act
that if any offence is committed under section 6 of POCSO Act, then
it shall be presumed to have been committed by the accused unless it
is proved to the contrary. However, section 29 of POCSO Act
provides that where a person is prosecuted for committing or abetting
or attempting to commit any offence under sections 3, 5, 7 and 9 of
POCSO Act, the Special Court shall presume that such person has
committed or abetted or attempted to commit the offence, as the case
may be unless the contrary is proved. Therefore, it is for the
prosecution to prove guilt of the appellant beyond reasonable doubt
who has been charged for offence punishable under section 6 of
POCSO Act which does not entail any dilution of doctrine of
presumption of innocence. The Supreme Court in Sunil Kumar V
State of NCT, 2021 SCC OnLine Del 2391 observed that 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
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 19 16:16:47 facts are proved, the onus is upon the accused to lead evidence to
rebut the presumption.
7. It is reflecting that entire prosecution is primarily based on
testimony of PW2/victim A. The witness is considered to be an
important factor or integral part of the administration of justice and
role of a witness is paramount in the criminal justice system. The
witness by giving evidence assists the court in discovery of the truth.
The Supreme Court in Mahender Chawla and Others V Union of
India and Others, (2019) 14 SCC 615 observed that witnesses are
important players in the judicial system, who help the judges in
arriving at correct factual findings. The instrument of evidence is the
medium through which facts, either disputed or required to be
proved, are effectively conveyed to the courts.
7.1 The trial court in establishing guilt of the appellant for offence
punishable under section 6 of POCSO Act relied on testimony of
PW2/victim A. The trial court observed that the conviction on the
sole evidence of child witness is permissible, if such witness is found
competent to testify and the court, after careful scrutiny of its
evidence believes it and referred Dattu Ramrao Sakhare and
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 20 16:16:47 Others V State of Maharashtra, (1997) 5 SCC 341. The trial court
while placing reliance on testimony of PW2/victim A further
observed that the evidence of PW2/victim A inspires confidence as
there is a thread of truth in the statements recorded by the
Investigating Officer, by the MM, East, Karkardooma Courts as
Ex.P1 and the testimony recorded in the court to the effect that the
appellant touched his private part into his anus. The trial court has
referred cross examination of PW2/victim A and observed that
PW2/victim A in his cross examination conducted on 07.04.2022
testified that his father i.e. the appellant never put/insert his penis into
his potty wali jagah (anus) and he never said anything to police or
Judge in this regard and he is speaking truth. The trial court did not
believe cross examination of PW2/victim A by observing that the
appellant is the father of victims. The testimony of PW2/victim A
was recorded on 22.08.2017 when he was four years of age and his
cross examination was recorded on 07.04.2022 i.e. after gap of
almost 56 months from his examination in chief and by that time
PW2/victim A might have gained sufficient maturity to understand
the consequence of his testimony recorded on 22.08.2017. Issues
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 21 16:16:47 which need judicial assessment and consideration are that what is the
evidentiary value of part testimony of PW2/victim A and whether the
appellant can be convicted on basis of part testimony of PW2/victim
A. PW2/victim A in cross examination conducted by the defence
counsel on behalf of the appellant deposed that the appellant had
never beaten him or did any wrong act with him. The appellant never
put/inserted his lulli (penis) at his anus or anus of his brother i.e.
PW1/victim J. PW2/victim A never told police or Judge that the
appellant put/insert his lulli (penis) on his anus. PW2/victim A
deposed that he correctly deposed in cross examination. PW2/victim
A was also cross examined by the Additional Public Prosecutor on
behalf of the State wherein deposed that he has not deposed at the
instance of either the appellant or the respondent no. 2 and nothing
had happened with him about 2-3 or 5 years back.
8. Section 118 of the Indian Evidence Act, 1872 deals with the
witnesses who can testify. It provides that all persons shall be
competent to testify, unless in the consideration of court they are
prevented from understanding the questions put to them or from
giving rational answers to those questions by tender years, extreme
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 22 16:16:47 old age, disease, whether of body or mind, or any other cause of the
same kind. The issue of evidentiary value of the testimony of child
witness has been considered by the Supreme Court on many
occasions. It is observed and held that the credibility of a child
witness depends upon the circumstances of each case and the
precaution which should have been taken while assessing the
testimony of a child witness is that the witness must be reliable and
demeanour of child witness must be like any other competent witness
without likelihood of being tutored. The Supreme Court in Dattu
Ramrao Sakhare and Others V State of Maharashtra, (1997) 5
SCC 341 also referred by the trial court in relation to child witnesses,
held as under:-
5. ...A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 23 16:16:47 8.1 The Supreme Court in Ratansinh Dalsukhbhai Nayak V
State of Gujarat, (2004) 1 SCC 64 also held as under:-
7. ...The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make- believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
8.2 The Supreme Court in P. Ramesh V State Rep by Inspector
of Police, (2019) 20 SCC 593 also held as under:-
15. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii)
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 24 16:16:47 give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.
8.3 The courts as a rule of prudence before accepting the testimony
of a child witness cautioned that the testimony has to be evaluated
carefully being susceptible to tutoring. The Supreme Court in State
of Madhya Pradesh V Ramesh and Another, (2011) 4 SCC 786
held as under:-
14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with grater circumspection because he is susceptible to tutoring. Only in case there is evidence or record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.
The Supreme Court in Ranjeet Kumar Ram @ Ranjeet Kumar
Das V State of Bihar, 2015 SCC OnLine SC 500 also observed that
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 25 16:16:47 evidence of the child witness and its credibility would depend upon
the circumstances of each case and only precaution which the court
has to bear in mind while assessing the evidence of a child witness is
that the witness must be a reliable one.
8.4 The acceptance of testimony of a child witness under
POCSO Act came into consideration before the Courts on many
occasions. The Supreme Court in Ganesan V State Rep. by Its
Inspector of Police, (2020) 10 SCC 573 while dealing with
conviction under POCSO Act held that the statement of the
prosecutrix, if found to be worthy of credence and reliable, requires
no corroboration and the court may convict the accused on the sole
testimony of the prosecutrix. A Coordinate Bench of this Court in
Rakesh @ Diwan V The State (GNCT of Delhi), 2021 SCC
OnLine Del 3957 accepted testimony of the child victim as
trustworthy, reliable and admissible.
The Calcutta High Court in Animesh Biswas V State of W.B., 2023
SCC OnLine Cal 2633 observed that the sole testimony of the victim,
a child witness, could be relied upon in cases of sexual assault
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 26 16:16:47 provided her evidence was trustworthy, unblemished, and of sterling
quality.
9. PW2/victim A supported case of prosecution in examination
in chief but did not support case of prosecution in cross examination.
The evidence of the hostile witness cannot be rejected but has to be
considered with caution. The Supreme Court in various decisions has
discussed admissibility of testimony of a hostile witness. The
Supreme Court in State of U.P. V Ramesh Prasad Misra and
Another, (1996) 10 SCC 360 held the evidence of a hostile witness
should not be totally rejected but it can be subjected to close scrutiny
and that portion of the evidence which is consistent with the case of
the prosecution or defence may be accepted. The Supreme Court in
C. Muniappan and Others V State of Tamil Nadu, (2010) 9 SCC
567 held that the evidence of a hostile witness cannot be discarded as
a whole, and relevant parts thereof which are admissible in law can
be used by the prosecution or the defence. The Supreme Court
in Mrinal Das and Others V State of Tripura, (2011) 9 SCC 479
held as under:
67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 27 16:16:47 admissible. 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. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.
The Supreme Court in Arjun V State of C.G., 2017 (2) MPLJ (Cri.)
305 held that merely because the witnesses have turned hostile in
part, their evidence cannot be rejected in toto. The evidence of such
witnesses cannot be treated as effaced altogether but the same can be
accepted to the extent that their version is found to be dependable and
the court shall examine more cautiously to find out as to what extent
he has supported the case of the prosecution.
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10. It is accepted position of law that testimony of a child witness
can be basis of conviction and testimony of a hostile witness cannot
be rejected completely if the testimony inspires confidence. The
testimony of PW2/victim A is required to be analysed with care and
caution. PW2/victim A in examination in chief deposed that the
appellant removed his knicker 10 times and after removing knicker
placed lulli (penis) at his private part at back i.e. anus which caused
pain to him. PW2/victim A was taken to hospital by the respondent
no. 2 and also indirectly admitted making of statement under section
164 of the Code wherein stated that the appellant is not a good
person. PW2/victim A also deposed that the appellant used to place
his lulli (penis) in night at sleeping time and also used to do same act
with his brother i.e. PW1/victim J. However PW2/victim A in cross
examination did not support prosecution and deposed that the
appellant never did wrong act with him and never put/inserted his
lulli (penis) at his anus or anus of his brother i.e. PW1/victim J.
PW3 i.e. the respondent no. 2/complainant although turned hostile
but admitted her signature at point A on the complaint Ex.PW3/A
which is genesis of registration of present FIR. PW3/complainant
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24.06.2015 by the police for medical examination and on 30.06.2015
she along with both the victims came to Karkardooma Courts and the
statements of both the victims were recorded by a Judge. The
testimony of PW2/victim A also finds support from testimony of
PW9 Dr. Ashok Sagar who on 26.06.2015 examined both the victims
with the alleged history of sodomy and after examination opined that
possibility of sodomy/anal intercourse by erect penis of adult or any
structure resembling it, cannot be ruled out. PW2/victim A also in
statement under section 164 of the Code also supported prosecution.
The Potency Report Ex.P4 pertaining to the appellant also reflects
that the appellant was capable of sexual intercourse. The part
testimony of PW2/victim A if analysed with quality and quantity of
evidence led by the prosecution inspires confidence and can be safely
relied on being trustworthy and credible. Mere fact that PW2/victim
A did not support prosecution and PW1/victim J and
PW3/complainant also turned hostile does not affect credibility of
part testimony of PW2/victim A. The legal system has laid emphasis
on value, weight and quality of evidence rather than on quantity,
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 30 16:16:47 multiplicity or plurality of witnesses. The test is whether the evidence
has a ring of truth, is cogent, credible and trustworthy or otherwise.
The Supreme Court in Kuna @ Sanjaya Behera V State of Odisha,
(2018) 1 SCC 296 observed that the conviction can be based on the
testimony of single eye witness if he or she passes the test of
reliability and that is not the number of witnesses but the quality of
evidence that is important. There is no legal force in arguments
advanced by the counsel for the appellant that the testimony of
PW2/victim A cannot be read into evidence as PW2/victim A did not
support case of the prosecution and further PW1/victim J and
PW3/the complainant also turned hostile. The courts should analyse
and appreciate evidence either prosecution or defence with care,
caution and lot of sensitivity in cases related to sexual exploitation of
the children. The evidence of the victim cannot be discarded merely
due to reason that he or she has not supported prosecution and other
witnesses turned hostile. It is solemn duty of the court to find out
truth which is founding stone of justice, after proper valuation and
appreciation of evidence and other material proved on record during
trial or otherwise. The evidence led by the prosecution proved
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 31 16:16:47 beyond reasonable doubt that the appellant subjected PW2/victim A
sodomy on 22.06.2015 and prior to this. The trial court has rightly
relied on the testimony of PW2/victim A in establishing guilt of the
appellant.
11. The statement under section 313 of the Code is not a
substantive piece of evidence. Section 313 of the Code ensures
principle of natural justice to the accused. It empowers the court to
examine the accused with the purpose to enable the accused to
explain incriminating circumstances in the prosecution evidence. The
Supreme Court in Samsul Haque V State of Assam, (2019) 18 SCC
161 held that the incriminating material is to be put to the
accused so that the accused gets a fair chance to defend him.
This is in recognition of the principles of audi alteram partem.
The Supreme Court in Reena Hazarika V State of Assam, (2019)
13 SCC 289 observed that a solemn duty is cast on the court in the
dispensation of justice to adequately consider the defence of the
accused taken under section 313 of the Code and to either accept or
reject the same for reasons specified in writing. It was also held that
section 313 of the Code cannot be seen simply as a part of audi
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 32 16:16:47 alteram partem rather it confers a valuable right upon an accused to
establish his innocence. The appellant in statement recorded under
section 313 of the Code in his defence stated that he and his wife i.e.
the respondent no. 2/complainant used to quarrel and the respondent
no. 2 due to this reason had lodged complaint in P.S. Kalyanpuri. The
respondent no. 2 has falsely implicated him by lodging false
complaint against him through the victims. The appellant also led the
defence evidence and examined his mother Sat Kaur as DW1 who
primarily deposed that the appellant was implicated due to quarrel
with the respondent no. 2 and the appellant is innocent. PW3 i.e. the
respondent no. 2/complainant also deposed that the appellant used to
give beatings to her and both the victims and thereafter present FIR
was got registered with help of an NGO by the police. The defence
taken by the appellant is considered in right perspective. The defence
so taken by the appellant is appearing to be false, sham and without
any basis and does not inspire any confidence.
12. The Trial Court has rightly held that the prosecution has
proved beyond reasonable doubt that the appellant has committed the
offence of penetrative sexual assault as defined in section (3)(a) of
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 33 16:16:47 POCSO Act upon PW2/victim A and said penetrative sexual assault
becomes aggravated penetrative sexual assault within section 5(m)
(n) of POCSO Act as PW2/victim A who is son of the appellant was
less than 12 years of age at the relevant time. However, the
prosecution has failed to prove that the appellant has committed the
offence of penetrative sexual assault upon PW1/victim J. The
arguments advanced by the counsel for the appellant and grounds of
appeal are considered and analysed in right perspective but these are
without any legal or factual force and cannot be accepted. The trial
court rightly held the appellant guilty and convicted him for the
offence punishable under section 6 of POCSO Act and under section
377 IPC. The impugned judgment passed by the trial court is well
reasoned and was passed after considering relevant facts proved on
record. There is no reason to interfere in impugned judgment. Hence,
the present appeal is dismissed.
13. The Trial Court vide order on sentence dated 10.05.2023
sentenced the appellant to undergo rigorous imprisonment for 10
years along with fine of Rs. 10,000/- and in default of payment of
fine, to undergo rigorous imprisonment for the period of six months
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 34 16:16:47 for the offence punishable under section 6 of the POCSO Act. The
trial court also observed that the appellant has been sentenced under
section 6 of the POCSO Act so, in terms of section 71 IPC, separate
sentence under section 377 IPC is not required to be passed. The
appellant has not paid the fine.
13.1 The counsel for the appellant submitted that the appellant is
married and belongs to lower strata of the society. The financial
condition of family of the appellant is very poor and the appellant
used to earn livelihood for the family as the appellant was working as
labourer. The counsel for the appellant prayed for lenient approach of
the court in the sentence of the appellant.
13.1.1 The Additional Public Prosecutor for the respondent
no.1/State argued that the appellant has committed heinous act of
sodomy with his own minor son who was just aged about 4 years on
the date of commission of offence. The appellant must be awarded
adequate punishment so that it may act as a deterrent for other
impending offenders.
14. The Child Sexual Abuse is a serious issue/problem being
pervasive and disturbing and large numbers of children are being
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 35 16:16:47 subjected to physical, emotional, and sexual abuse. The Child Sexual
Abuse deserves adequate attention of every stake holder directly or
indirectly connected with administration of justice and judicial
process. It requires to be addressed with lot of sensitivity and
sensibility. It is the solemn duty of the court to award adequate
punishment to the person accused of Child Sexual Abuse irrespective
of his social, economic background or other domestic
responsibilities. The Protection of Children from Sexual Offences
Act, 2012 was enacted to protect children from offences of sexual
assault, sexual harassment and pornography and to provide for
establishment of Special Courts for trial of such offences. The
preamble of the POCSO Act also reflects that the Government of
India has acceded on 11.12.1992 to the Convention on the Rights of
the Child, adopted by the General Assembly of the United Nations,
which has prescribed a set of standards to be followed by all State
parties in securing the best interests of the child. The POCSO Act
considered sexual exploitation and sexual abuse of children as
heinous crimes which need to be effectively addressed.
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15. In the present case, the appellant being the biological father of
PW2/victim A was under social, family, moral duty to protect
PW2/victim A but the appellant had sexually exploited PW2/victim
A on various occasions. The crime committed by the appellant cannot
be taken lightly. It is a crime not only against the individual but
against the fabric of the society and family.
16. Sentencing has significant role to play in the future prevention
of crime. One of the prime objectives of the criminal law is
imposition of an appropriate, adequate, just and proportionate
sentence commensurate with the nature and gravity of the crime and
the manner in which the crime is executed. The Supreme Court in
Deo Narain Mandal V State of UP, (2004) 7 SCC 257 opined that
sentence should not be either excessively harsh or ridiculously low
and while determining the quantum of sentence, the court should bear
in mind the principle of proportionality. It was further observed that
gravity of offence, manner of commission of crime, age and sex of
accused should be taken into account. The Supreme Court in State of
MP V Najab Khan and Others, (2013) 9 SCC 509 observed as
under :-
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16. ...in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment.
16.1 The Supreme Court in Shyam Narain V State (NCT of
Delhi), (2013) 7 SCC 77 observed that the fundamental purpose of
imposition of sentence is based on the principle that the accused must
realize that the crime committed by him has not only created a dent in
the life of the victim but also a concavity in the social fabric. The
purpose of a just punishment is that the society may not suffer again
by such crime.
17. The trial court while awarding punishment to the appellant
observed that the aim of the punishment is the protection of the
society and is cherished while imposing sentences upon the guilty.
The trial court referred Shailesh Jasvantbhai and Another V State
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 38 16:16:47 of Gujarat and Others, (2006) 2 SCC 359 wherein the Supreme
Court opined that protection of the society and stamping out criminal
proclivity must be the object of law which must be achieved by
imposing appropriate sentences. The trial court also observed and
considered that the child victim was aged 4 years at the time of
incident when the appellant sexually assaulted him. The trial court
has already taken lenient view against the appellant and there is no
reason to interfere in the punishment awarded to the appellant.
18. The present appeal is accordingly dismissed and pending
applications, if any, also stand disposed of.
19. A copy of this judgment be sent to trial court for information
and be also sent to the appellant through concerned Jail
Superintendent.
DR. SUDHIR KUMAR JAIN (JUDGE) OCTOBER 31, 2023 n/sm
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