State Nct Of Delhi vs Ghasita Khan on 22 May, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 9th MAY, 2017
DECIDED ON : 22nd MAY, 2017

+ CRL.A.540/2014
STATE NCT OF DELHI ….. Appellant
Through : Mr.Amit Gupta, APP.
versus
GHASITA KHAN ….. Respondent
Through : Mr.Mayank Jain, Advocate with
Ms.Madhu Jain, Advocate.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. State has preferred the instant appeal under Section 377 Cr.P.C.
to challenge the legality and correctness of an order dated 01.11.2013 of
learned Addl. Sessions Judge in Sessions Case No.36/2013 arising out of
FIR No. 407/2012 PS Shahdara by which the respondent was released on
probation for a period of three years for commission of offence punishable
under Section 8 POCSO Act. The appeal is contested by the respondent.

2. I have heard the learned counsel for the parties and have
examined the file. Learned APP urged that considering the gravity of the
offence and serious allegations against the respondent, the Trial Court
committed grave error to release the respondent on probation. The POCSO

Crl.A.540/2014 Page 1 of 7
Act specifies the minimum period of sentence i.e. three years and it cannot
be reduced or altered.

3. Learned counsel for the respondent urged that the Trial Court
had taken into consideration all the relevant aspects while granting probation
to the respondent. The respondent aged around 75 years is to provide
company to his wife aged around 74 years in her old age. The respondent is
not a previous convict and has no criminal antecedents whatsoever. Learned
counsel further urged that conviction recorded under Section 8 of POCSO
Act is not sustainable as there are material inconsistencies and infirmities in
the case of the prosecution. No independent public witness was associated
at any stage of the investigation. The victim has given a false statement at
her mother’s behest with whom the respondent had dispute over non-
payment of amount in the committee run by her. He further urged that the
Investigating Officer did not follow the procedure laid down under the Act
and statement of the prosecutrix was not got recorded under
Section 164
Cr.P.C.

4. Admitted position is that the respondent lived in the
neighbourhood of the complainant in the same vicinity. The occurrence
took place on 20.12.2012 at around 08.00 p.m. The incident was reported to
the police without any delay. PW-1 (Kamlesh) – victim’s grand-mother
made telephone call at 100 as a result of which DD No.73B (Ex.PW-4/A)
came into existence at PS Shahdara at around 09.10 p.m. The Investigating
Officer after recording statement of victim’s grand-mother (Ex.PW-1/A)
lodged First Information Report. In the complaint PW-1 (Kamlesh) gave
detailed account of the incident and named the respondent to have

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Crl.A.540/2014 Page 2 of 7
committed sexual assault upon her grand-daughter aged around 9 years
when she had gone to his shop to make certain purchases.

5. In her deposition before the Court as PW-1, Kamlesh proved
the version given to the investigating agency at first instance without any
variation. She deposed that after her return from the shop, the prosecutrix
‘X’ (assumed name) aged around 10 years came weeping and apprised her
about the entire incident. She rushed to the respondent’s shop but he had
gone upstairs after closing it. Many neighbourers collected at the spot but
the respondent did not come down. Thereafter, she made a call at 100. Her
statement (Ex.PW-1/A) was recorded. In the cross-examination, she denied
if she was operating and running any committee or that members of the
committee were present in her house that time. She further denied if the
respondent was implicated due to demand of committee amount from her.
She further denied if a quarrel had taken place with the respondent in 2012
on issue of dry-cleaning of clothes.

6. Material testimony is that of PW-3 ‘X’. Before recording her
statement, preliminary enquiry was made by the learned Presiding Officer to
ascertain if she was capable to understand the questions put to her and was
able to give rationale answers. After recording his satisfaction, the Trial
Court recorded her statement without oath. She deposed that on 20.12.2012
at around 08.00 p.m. she had gone to the respondent’s shop to buy Maggi.
The respondent became nude and asked her to hold his penis and he would
give her two packets of Maggi. She started crying and tried to escape but
the respondent caught hold of her hand and asked her not to disclose the
incident to anyone. She returned to her house and narrated the facts to her
grand-mother who called the police. In the cross-examination, she admitted

Crl.A.540/2014 Page 3 of 7
that there were various shops nearby were open. She further admitted that
their families were on visiting terms. She remained at the respondent’s shop
for about 4 or 5 minutes. She was unaware if her grand-mother was running
any ‘committee’.

7. On scanning the victim’s statement, it reveals that no material
infirmity or inconsistency has emerged to discard her natural version. No
ulterior motive was assigned to the child to make serious allegations of
sexual assault against the respondent who lived in the neighbourhood for the
last two / three years. Material facts deposed by the witness remained
unchallenged and uncontroverted in the cross-examination. The respondent
did not deny victim’s arrival at his shop to purchase Maggi. No cogent
evidence has emerged to infer if victim’s grand-mother was running any
‘committee’ or that the respondent was a member of it. The respondent did
not examine any member of the ‘committee’ to buttress his claim that on
05.12.2012, he had lifted the ‘committee’ at a loss of `25,000/- or that the
‘committee’ was started on 05.06.2012 for an amount of `1,05,000/- or that
he was to be paid `74,666/- by the victim’s grand-mother on or before
10.12.2012. This specific defence was not put to PW-1 (Kamlesh) in the
cross-examination. The respondent did not produce any document showing
himself to be the member of the ‘committee’. It is unbelievable that victim’s
grand-mother aged around 60 years would level false allegations of sexual
assault to bring her own grand-daughter aged around 10 years to disrepute.
For petty amount, the grand-mother is not expected to use her tiny child to
settle score. The defence deserves outright rejection. Statement of the
complainant is consistent throughout and no sound reasons exist to
disbelieve her. Well settled position is that if the testimony of the child

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Crl.A.540/2014 Page 4 of 7
witness is a voluntary expression and is an accurate impression of the same,
no corroboration of testimony is required.

8. The prosecution has established that ‘X’ was below 12 years of
age on the day of occurrence. Birth certificate (Ex.PW-1/F) has been proved
on record showing X’s date of birth as 22.02.2003. X’s age has not been
challenged in the cross-examination.

9. Learned counsel for the respondent has failed to show as to
what mandatory procedure was not followed by the investigating agency
during investigation. Recording of statements under Section 164 Cr.P.C. is
not mandatory. Moreover, no prejudice is shown to have been caused to the
respondent for not recording statement under
Section 164 Cr.P.C. For
remissness of the Investigating Officer (if any), otherwise cogent and natural
statement of the victim cannot be suspected or doubted.

10. Respondent’s conviction under Section 8 POCSO Act based
upon fair appreciation of the evidence cannot be faulted and is affirmed. It
is relevant to note that the respondent did not challenge conviction under
Section 8 POCSO Act and this plea has been taken only in the present
appeal under
Section 377 Cr.P.C. filed by the State to challenge grant of
probation.

11. Offence committed by the respondent is serious and grave. The
unsuspecting child aged around 10 years had gone to buy eatables at the
respondent’s shop. The respondent aged around 75 years was akin to X’s
grand-father. He sexually assaulted the child exploiting her innocence. The
act of victim’s molestation was intentional. The respondent has betrayed the
trust reposed by ‘X’ and her family members in him. ‘X’ had no reasons to
suspect amiss as the families were having visiting terms. Though there were

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Crl.A.540/2014 Page 5 of 7
mitigating circumstances regarding the respondent’s age and other factors,
considering the incident whereby a tiny child aged around 10 years was
ravished for no fault of hers, the respondent does not deserve any leniency
and there were no good grounds to release him on probation. The
respondent was well aware of the consequence of his act; he being aged
around 75 years having retired from a Government job. He attempted to
shift the blame on victim’s grand-mother and alleged false implication on
non-payment of his alleged amount in a ‘committee’. The respondent was
not remorseful at any stage of trial.

12. Besides above, there is minimum sentence i.e. 3 years
prescribed under Section 8 POCSO Act which cannot be modified or altered.
Recently, in Crl.A.Nos. 1232/2015 ‘State vs. Sunil and 288/2017 ‘Sunil vs.
State (NCT) of Delhi’ decided on 02.05.2017, the Co-ordinate Bench of this
Court held that despite mitigating factors noted by the learned Addl.
Sessions Judge, the convict could not have been granted the benefit of
probation under the
Probation of Offenders Act.

13. Consequently, affirming the impugned judgment on conviction
dated 30.10.2013 holding the respondent’s guilt under Section 8 POCSO Act
Order on Sentence dated 01.11.2013 is modified and the respondent –
Ghasita Khan is directed to undergo RI for a period of three years and to pay
a fine of `10,000/-; default sentence being SI for fifteen days.

14. The appeal stands disposed of in the above terms.

15. The respondent shall surrender before the Trial Court on
05.06.2017 to serve the sentence awarded to him in the present appeal. He
shall, of course, be entitled to the benefit under
Section 428 Cr.P.C. and the

Crl.A.540/2014 Page 6 of 7
period (if any) already undergone by him in the case shall be counted and set
off.

16. Trial Court record be sent back forthwith with the copy of the
order. Intimation be sent to the Superintendent Jail.

(S.P.GARG)
JUDGE
MAY 22, 2017 / tr

Crl.A.540/2014 Page 7 of 7

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