* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 8th MAY, 2017
DECIDED ON : 22nd MAY, 2017
+ CRL.A. 414/2015
RAM SINGH ….. Appellant
Through : Mr.S.K.Sethi with Ms.Dolly Sharma,
STATE ….. Respondent
Through : Ms.Meenakshi Chauhan, APP.
HON’BLE MR. JUSTICE S.P.GARG
1. Challenge in this appeal is a judgment dated 22.12.2014 of
learned Addl. Sessions Judge in Sessions Case No.42/2013 arising out of
FIR No. 43/2013 PS Shalimar Bagh by which the appellant – Ram Singh
was held guilty for committing offences punishable under Section 10
POCSO Act and Section 342 IPC. By an order dated 23.12.2014, the
appellant was sentenced to undergo RI for seven years with fine `5,000/-
under Section 10 POCSO Act and RI for one year under Section 342 IPC.
The sentences were to operate concurrently.
2. Briefly stated the prosecution case is projected in the charge-
sheet was that on 26.01.2013 at around 08.30 a.m. the appellant sexually
assaulted the victim ‘X’ (changed name) aged around two and a half years in
Crl.A.414/2015 Page 1 of 7
his jhuggi No.437, Ayurvedic Hospital, Haiderpur, Delhi. Information about
the occurrence was conveyed to the police promptly and DD No.9A
(Ex.PW-13/A) came into existence at 09.50 a.m. at PS Shalimar Bagh. The
Investigating Officer after recording statement of the victim’s mother
(Ex.PW-11/A) lodged First Information Report. ‘X’ was taken for medical
examination. The appellant was arrested and medically examined.
Statements of the witnesses conversant with the facts were recorded. Upon
complete of investigation, a charge-sheet was laid before the Trial Court
against the appellant for commission of the aforesaid offences. To establish
its case, the prosecution examined thirteen witnesses. In 313 Cr.P.C.
statement, the appellant denied his complicity in the crime and claimed
himself to be innocent; he did not produce any witness in defence. Trial
resulted in conviction as aforesaid. Being aggrieved and dissatisfied, the
instant appeal has been preferred by him.
3. I have heard the learned counsel for the parties and have
examined the file. Undisputedly, the prosecutrix was aged around two and a
half years on the day of occurrence. PW-1 (Mukesh Kumar), Record clerk
from the office of Sub Registrar, North Zone, North Delhi Municipal
Corporation, proved various documents (Ex.PW-1/A to Ex.PW-1/C)
invariably disclosing X’s date of birth as 04.07.2010. Genuineness of these
documents has not been suspected in the cross-examination.
4. Admittedly, the victim’s family and the appellant lived in the
jhuggies under PW-7 (Chander Pal). He informed that jhuggi No.429 was a
double storey construction. There were two small rooms on the ground floor
and two on the first floor. All the four rooms were let out by him to different
tenants including the appellant – Ram Singh. PW-9 (Sunil) lived in jhuggi
Crl.A.414/2015 Page 2 of 7
No.307 in front of Ayurvedic Hospital, JJ Colony, Haiderpur. The appellant
was acquainted with the prosecutrix and her family members.
5. The incident took place on 26.01.2013 in between 08.30 to
08.45 a.m. in the appellant’s jhuggi. The victim’s father PW-9 (Sunil) was
away to his duty. PW-11 (Reena) – victim’s mother immediately informed
him on mobile about the unfortunate incident. Without wasting any time,
PW-9 (Sunil) rushed to the spot and made a telephone call at 100. DD
No.9A (Ex.PW-13/A) came to be recorded at PS Shalimar Bagh at 09.50
a.m. Information was recorded in the PCR form to the effect “Ek old aged
aadmi 10 sal ki larki ke sath galat kam karta hua pakra gaya”. Name of the
informant finds mention in the PCR form. The appellant was apprehended
at the spot and the public persons gathered there thrashed him after coming
to know the heinous crime committed by him.
6. In her complaint (Ex.PW-11/A), the complainant – Reena Devi
gave vivid account of the occurrence and implicated the appellant by name
to have defiled her daughter aged around two and a half years. Since the
FIR was lodged without any delay, there was least possibility of the
complainant to fabricate or concoct a false story in such a short interval.
7. Crucial testimony to infer the appellant’s guilt is that of PW-10
‘X’ aged around four years on the day of her Court examination. Before
recording her statement, the learned Presiding Officer conducted preliminary
inquiry to ascertain if she was capable to understand the questions put to her
and was able to give rationale answers. After recording her satisfaction that
the witness was capable to understand questions and answer them
reasonably, her statement was recorded in question-answer form without
oath. Victim’s statement was recorded under congenial atmosphere. She
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even prepared a drawing (Annexure ‘P1’) while deposing before the Court.
It can be inferred that the child was under no coercion or fear to make the
statement. Her testimony was recorded as under :
“Q. Beta batao kya hua tha ?
Ans. Kuch nahi hua.
Q. Beta Nepali ne apke sath kya kiya tha ?
Ans. Nanga karke niche sulla diya tha.
Q. Niche kaha par sulaya tha ?
Ans. Yaha par (the witness pointed with her hand at the floor).
Q. Uss samay Nepali kya kar raha tha ?
Ans. Woh nange hokar, mujhe pakad kar so raha tha.
Q. Aur bhi kuch kiya tha usne ?
Q. Beta batao apko kisne chudaya tha ?
Ans. Phir mummy ne mujhe le liya tha.
Q. Beta aap Nepali ko pehchan sakte ho?
The witness identified the accused as ‘Nepali’.
During cross-examination by learned L.A.C, the witness deposed as
Q. Beta apko Nepali ki shakal theek se yaad nahi hai na ?
Ans. Yaad hai yehi Nepali hai.
Q. Beta yeh batao ki aap aaj jo bhi bata rahe ho woh apki
mummy ne bataya tha ?
Ans. Nahi apne aap se bol rahi hu.”
8. On scanning the entire testimony of the child witness, it can be
inferred that she was emphatic to identify the appellant to be the perpetrator
of the crime. She affirmly claimed that the statement given by her was not
at her mother’s behest. She attributed specific and definite role to the
appellant. Nothing more can be expected from a child aged around two and
a half years. Material facts deposed by her remained unchallenged in the
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cross-examination. Nothing was suggested to her if the child was not taken
inside the jhuggi. It was not suggested if victim’s mother had not arrived
inside the jhuggi after getting no response from her daughter to her call. The
appellant did not deny his presence in the jhuggi at the relevant time. It is
unclear if other family members of the appellant were available in the jhuggi
9. PW-11 (Reena) – victim’s mother is an important witness who
has corroborated the victim’s statement in its entirety. She deposed that on
the night intervening 25/26.01.2013, her husband was on his duty at his
work place at Wazirpur Industrial Area. On 26.01.2013 at around 08.30
a.m. when she was giving oil message to her six months old son, the
appellant allured her daughter ‘X’ aged around two and a half years playing
in the jhuggi with 3 – 4 toffees in his hands. After 3 – 4 minutes, she called
her daughter by name but she did not get any response. The appellant rather
responded ‘abhi aa rahi hai’. Getting no response from her daughter, she
became suspicious and went to the appellant’s jhuggi. On opening it, she
saw that her daughter was lying naked on an old blanket on the floor; the
appellant who had no clothes on his body was touching his penis on the
private part of her daughter. On seeing it, she screamed and confronted the
appellant as to what he was doing. The appellant immediately stood up, ‘put
on’ his clothes and attempted to flee. Reena pushed her inside the jhuggi
and raised alarm. The appellant started apologizing with folded hands but
Reena asked her to wait till her husband arrived. In the cross-examination,
she denied if her husband used to pick quarrels with the appellant or that he
wanted to get his jhuggi vacated to take it on rent.
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10. On scanning entire statement of the complainant, it reveals that
despite lengthy cross-examination, no material infirmity or inconsistency
could be extracted. No ulterior motive was assigned to the witness to level
serious allegations of sexual assault upon an infant against the appellant who
lived in her neighbourhood since long. Material facts deposed by the victim
remained unchallenged in the cross-examination. Presence of the
complainant at the spot was quite natural and probable. When she did not
get any response from her daughter ‘X’ on her call, she got suspicious and
went to the appellant’s jhuggi. There, she was shocked to find that both the
child and the appellant were naked and the appellant had put his sexual
organ on X’s private part. Post-event conduct of the victim’s mother was
quite natural. She not only confronted the appellant as to what he was doing
but also she raised alarm and many public persons from the locality gathered
and thrashed the appellant for his misadventure. No valid reasons exit to
disbelieve the version given by the victim’s mother. PW-9 (Sunil) –
victim’s father has corroborated her version without any variation.
11. Minor inconsistencies or discrepancies highlighted by the
appellant’s counsel are inconsequential as they do not affect the core of the
prosecution case. In 313 Cr.P.C. statement, the appellant did not furnish
plausible explanation for his false implication. He did not elaborate when
any quarrel had taken place with the victim’s father over any specific issue.
No suggestion was put to PW-7 (Chander Pal) if victim’s father had ever
attempted to get the jhuggi vacated from him. PW-9 (Sunil) was categorical
to claim in the cross-examination that accommodation in his possession was
sufficient and he did not need any additional accommodation. PW-9 (Sunil)
was not the landlord or owner of the jhuggi to get it vacated from the
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appellant. Moreover for a trivial issue, the victim’s parents cannot be
expected to put the honour of their young child at stake. By no imagination
they would use their own tiny child to settle score.
12. Statements of the prosecutrix and other witnesses are
consistent. The post-event conduct of the prosecutrix and her parents was
quite natural and reasonable. They had put the police machinery into motion
without any delay. The impugned judgment based upon fair and proper
appreciation of the evidence deserves no intervention.
13. Regarding modification of the Sentence Order, I find no
substance in it. The victim in the instant case was a child aged around two
and a half years. She unsuspectingly accompanied the appellant jhuggi
where the appellant aged around 55 years aware of the consequence of his
act defiled or sexually assaulted her. Timely intervention / arrival of
victim’s mother prevented big harm. The appellant had no occasion to
disrobe the child and to touch his private part on her. The appellant ravished
the girl akin to her grand-daughter when the Nation was celebrating its
Republic Day; he deserves no leniency. Instead of providing security being a
good neighbour, he indulged in nefarious activity. Sexual assault on a
tender aged girl is bound to create a permanent impact and impression on the
mind of such a girl, which may permanently affect her adversely.
14. The appeal lacks in merits and is dismissed. Trial Court record
be sent back forthwith with the copy of the order. Intimation be sent to the
MAY 22, 2017 / tr
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