Hans Raj @ Bhola vs State on 21 September, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on:30.08.2017
Judgment Pronounced on: 21.09.2017

+ CRL.A 1061/2016

HANS RAJ @ BHOLA ….. Appellant
Through: Mr. Ajay Verma, Advocate

versus

STATE ….. Respondent
Through: Ms. Aashaa Tiwari, APP for State
with SI Ramesh Kumar, PS Sultan
Puri

CORAM:
HON’BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J.

1. This Criminal Appeal has been filed against the impugned judgment
dated 06.10.2015 in Sessions Case No.28/14 arising out of FIR no.
834/13 registered under Sections 376(2)(i)/511 of the Indian Penal
Code, 1860 (in short ‘
IPC’) whereby the Trial Court convicted the
appellant under
Section 10 of the Protection of Children from Sexual
Offences Act, 2012 (in short ‘POCSO Act’). By order dated
8.10.2015, the Trial Court sentenced him to undergo rigorous
imprisonment for five years and imposed a fine of Rs.5,000/-.

2. On 05.12.2013, after receipt of DD No.57-B, PW-13 W/SI Rakhi
along with L/Ct. Kamlesh went to House No.S-168, Dhabe Wali Gali,

CRL.A. 1061/2016 Page 1 of 12
C-3 Block, Sultan Puri, Delhi where SI Vikas Sahu and Ct. Raj Kumar
met her. SI Vikas Sahu introduced the complainant Smt. Sushma to
PW-13 SI Rakhi. The complainant informed PW-13 SI Rakhi that his
neighbour Bhola (appellant) had attempted to molest her daughter “K”
(child victim) and her neighbour’s daughter “I” (second child victim),
both aged about five years on 05.12.2013. In the meanwhile, Nazma
Khan, who was an official from an NGO, had also arrived at the spot
and counselled the complainant. The complainant got her statement
recorded in which she stated that on the same day at about 9 PM she
was getting mehendi inscribed on her hand in the lane in front of her
house when suddenly her child victim “K” came running to her and
informed her that the appellant had kissed her and child victim “I” and
that the appellant was removing underpant of child victim “I”. The
complainant stated that on hearing this she along with child victim
“K” rushed to the park where she saw that the appellant had removed
child victim “I”s underpant down to her knees and was urinating in her
presence. On seeing this, the complainant called the mother of child
victim “I” through child victim “K” to the park where they
apprehended the appellant and brought him to the lane in front of their
house and called the police. The complainant further stated that the
appellant started apologizing and she along with mother of child
victim “I” thrashed the appellant several times after which the
appellant managed to escape. The police arrived at the scene of crime
after all this had happened.

3. On the basis of this statement made by the mother of child victim “K”,
FIR no.834/13 was registered. Both child victims were medically

CRL.A. 1061/2016 Page 2 of 12
examined at the Sanjay Gandhi Memorial Hospital and a site plan was
prepared, the appellant was arrested on the next day of the incident
and his disclosure statement was recorded. Statements of both the
child victims were recorded under
Section 164 of the Code of
Criminal Procedure, 1973 (in short ‘the Code’).

4. The prosecution examined 13 witnesses in order to bring home the
guilt of the appellant.

5. The Trial Court convicted the appellant relying primarily on the
testimony of both the child victims. The Trial Court found the
testimony of both the child victims to be reliable and corroborating
each other and that of the testimony of their respective mothers i.e.
PW-4 Sushma (mother of child victim “K”) and PW-9 Preeti (mother
of child victim “I”) who are also eye witnesses in the present case.

6. Learned counsel for the appellant had argued that the judgment of the
Trial Court is based on conjectures and surmises and therefore needs
to be set aside.

7. He argued that the appellant had been falsely implicated in the present
case which is clear from the call made by PW-12 Karamvir Singh to
PW-1 Ct. Usha Rani informing that a boy aged about 18 years had
been apprehended whereas the appellant was about 40 years of age.

8. He further argued that the appellant was not arrested at the spot but
was arrested on the next day of the alleged incident. He urged that no
parent would allow her daughter to play in the streets at 9 PM during
the winter when it gets very dark around 9 PM.

9. He had further urged that the testimony of the child victims were not
reliable as both the victims had been tutored by their family members

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and Police officials. He relied upon the judgment of this Court in
Samey Singh v State 1998 (1) JCC (Delhi) 217 to add weight to this
contention.

10. He had contended that without prejudice to the aforesaid arguments,
the appellant deserves leniency as he had no previous criminal
antecedents and has been in jail since the date of arrest and therefore
his punishment should be converted to the period prescribed under
Section 8 of the POCSO Act.

11. Per contra, Learned APP for the State had argued that the judgment of
the Trial Court was based on sound appreciation of evidence and law
and therefore does not warrant interference.

12. Learned APP had contended that the testimony of the child witnesses
were completely reliable and corroborated by the testimony of other
witnesses. He argued that the testimony of the child victims proved the
guilt of the appellant beyond all reasonable doubt.

13. I have heard the learned counsel for the appellant and learned APP for
the State.

14. The appellant has challenged the impugned judgment on three
grounds:-

i. The testimony of both the child victims cannot be relied
upon as they have been tutored by their family members
and Police personnel.

ii. The appellant was falsely implicated in this case as PW-1
Ct. Usha Rani, who had received the phone call from the
father of child victim “I” (PW-12), had testified in her
examination-in-chief that PW-12 had informed her over

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the phone that a male aged about 18 years had been caught
as he was found molesting his daughter whereas the
appellant at the time of the incident was aged about 40
years.

iii. Without prejudice to the above stated grounds, the
appellant should be punished under Section 8 of the
POCSO Act for the offence of Sexual Assault and not
under
Section 10 for Aggravated Sexual Assault as he had
no previous criminal antecedent.

15. Coming to the first issue which is whether the testimony of child
witnesses are reliable at all? This question was answered by the
Hon’ble Supreme Court in the case of
Panchhi v. State of U.P.,
(1998) 7 SCC 177 where it was held as under:

“11. Shri R.K. Jain, learned Senior Counsel, contended
that it is very risky to place reliance on the evidence of PW
1, he being a child witness. According to the learned
counsel, the evidence of a child witness is generally
unworthy of credence. But we do not subscribe to the
view that the evidence of a child witness would always
stand irretrievably stigmatized. It is not the law that if
a witness is a child, his evidence shall be rejected, even
if it is found reliable. The law is that evidence of a child
witness must be evaluated more carefully and with
greater circumspection because a child is susceptible to
be swayed by what others tell him and thus a child
witness is an easy prey to tutoring.

12. Courts have laid down that evidence of a child
witness must find adequate corroboration before it is
relied on. It is more a rule of practical wisdom than of
law (vide
Prakash v. State of M.P. [(1992) 4 SCC 225 :
1992 SCC (Cri) 853] ;
Baby Kandayanathil v. State of

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Kerala [1993 Supp (3) SCC 667 : 1993 SCC (Cri) 1084]
;
Raja Ram Yadav v. State of Bihar [(1996) 9 SCC 287 :
1996 SCC (Cri) 1004 : AIR 1996 SC 1613] and
Dattu
Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC
341 : 1997 SCC (Cri) 685] ).”

16. The Hon’ble Supreme Court again reiterated its views in Panchhi’s
case (supra) in
State of Rajasthan v. Om Prakash, (2002) 5 SCC
745 where it was held as under:

“17. The evidence of a child witness is required to be
evaluated carefully as the child may be swayed by what
others may tell him or her as the child is an easy prey
to tutoring. Wisdom requires that the evidence of a
child witness must find adequate corroboration before
it is relied on (
State of U.P. v. Ashok Dixit [(2000) 3 SCC
70 : 2000 SCC (Cri) 579 : JT (2000) 2 SC 107] ). We have
already held that in the present case we have carefully
examined the evidence of the child and the other evidence.
We find the reasons given by the High Court for rejecting
the said evidence wholly unconvincing. It is unfortunate
that what to talk of considering, the High Court has not
even noticed the testimony of the prosecutrix in the
judgment under appeal.”

17. Therefore the testimony of a child victim is required to be scrutinized
carefully and corroborated before being accepted. In the present case,
child victim “K” testified as PW-3. The statement of the other child
victim “I” was recorded as PW-8.

18. Child victim “K” in her examination-in-chief testified that on the
fateful day she was playing with child victim “I” outside her house
when the appellant took both of them to the nearby park and started
kissing them both on their cheeks. She further deposed that the
appellant then took off child victim “I”s underpants after which she

CRL.A. 1061/2016 Page 6 of 12
(child victim “K”) ran away from the park and informed her mother
(PW-4) about the incident. She then correctly identified the appellant.
In her cross-examination, she stated that it was night time and she was
playing with child victim “I” when the appellant took them to the
nearby park.

19. Child victim “I” who appeared as PW-8 stated in her examination-in-

chief that while she was playing with child victim “K” in the lane in
front of child victim “K”s house, the appellant came there and took
both of them away to the park. She stated that the appellant then took
off her and child victim “K”s underpants and kissed them. She further
stated that the appellant then urinated in front of them. She further
stated that afterwards child victim “K” told her mother about the
incident after which her mother came to the park and slapped the
appellant twice and called the police. Child victim “I” then correctly
identified the appellant. In her cross-examination she stated that it was
night time and she knew the appellant as he was residing nearby her
house, near the toffee shop.

20. The other two eye witnesses in the present case were mother of child
victim “K” who deposed as PW-4 and mother of child victim “I” who
deposed as PW-9.

21. PW-4 deposed that on 05.12.2013 at about 9 PM she was getting
henna applied to her hands on the occasion of marriage of her brother-
in-law (Dewar) while both the child victims were playing in the lane
in front of her house. After some time, her daughter i.e. child victim
“K” came running to her and informed her that the appellant had taken
her and child victim “I” to the park and had kissed her on the cheek

CRL.A. 1061/2016 Page 7 of 12
and removed child victim “I”s underpants. She called the mother of
child victim “I” and they went to the said park and saw the appellant
urinating while holding child victim “I”s hand. She deposed that PW-9
then slapped the appellant twice or thrice and called the police.
Thereafter the appellant started to apologize and then fled away. She
stated that the police came at the spot and made enquiries from her
and other people who had gathered there. Nothing material which
could affect the prosecution’s case came from her cross-examination.

22. PW-9 who is the mother of child victim “I” deposed in her
examination-in-chief that on the fateful day at about 9:30 PM, she was
cooking at home when child victim “K” who was also residing in their
neighbourhood came to her and informed her that the appellant was
kissing her daughter i.e. child victim “I” in the park. She further
deposed that on reaching the park, she saw her daughter’s underpants
removed till her knees. She deposed that she slapped the appellant and
brought him into the ‘gali’ with the help of PW-4 and called the
police. She deposed in her cross-examination that the appellant was
apprehended within 30 minutes after police arrived at the spot.

23. After going through the testimony of both the child victims i.e. PW-3
and PW-8 and the testimony of other eye witnesses (PW-4 and PW-9),
it is found that they corroborate each other. Both the child victims
corroborate each other’s testimony and the testimony of their mothers
i.e. PW-4 and PW-9. It is established that the appellant took both the
child victims aged 5 and 4 years from the ‘gali’ to the nearby park
where he kissed child victim “K” on her right cheek and removed
child victim “I” underpants and urinated in front of them.

CRL.A. 1061/2016 Page 8 of 12

24. The appellant in his statement under Section 313 of the Code had
stated that he had been falsely implicated in the case and the real
culprit was an 18 year old boy who had fled away from the spot. He
emphasised on the testimony of PW-1 Ct. Usha Rani to strengthen his
point. PW-1 Usha Rani in her examination-in-chief had stated that in
the initial call made to her by PW-12 (father of child victim I) it was
stated that an 18 year old boy had been apprehended as he was
molesting his daughter.

25. It is important to note here that PW-1 had not seen the appellant at this
moment as this was the first call made to the Police reporting the
incident. Further, in light of the testimony of both the child victims
and PW-4 and PW-9 who had all seen the appellant and caught him
red handed at the scene of crime, the identity of the appellant stands
proved beyond reasonable doubt. Further, no questions were put to
PW-12 in his cross-examination as to why he made the assumption
that the appellant was aged around 18 years. It was possible that the
identity of the appellant was not completely established at the time
when the first call to the Police was made, but subsequent events and
depositions show that the identity of the appellant is proved beyond all
doubts.

26. In the cross-examination of both the victims, the appellant had not
disputed his identity. He did not challenge his involvement in the
crime in the cross-examination of both the child victims i.e. PW-3 and
PW-8. The Hon’ble Supreme Court in
Sarwan Singh v. State of
Punjab, (2003) 1 SCC 240 held that whenever an accused had failed
to cross-examine any witness on any part of his testimony, the same

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must be believed to be true unless proved otherwise. Relevant
paragraph of this judgment is reproduced below:

“9. Incidentally, in the early nineties, terrorist activities
were on a peak in the border districts of Punjab and it has
practically been an axiomatic truth in the area in question
that no one would in fact come out of the residential
houses after dusk unless perforced at 3 o’clock in the
morning. There exists no other evidence nor even there
being any suggestion of existence of any other factor for
such perforced outing at 3 a.m. It is a rule of essential
justice that whenever the opponent has declined to
avail himself of the opportunity to put his case in cross-
examination it must follow that the evidence tendered
on that issue ought to be accepted. A decision of the
Calcutta High Court lends support to the observation
as above. [See in this context A.E.G. Carapietv. A.Y.
Derderian [AIR 1961 Cal 359] (opinion of P.B.
Mukherjee, J., as he then was).]”

27. The appellant apart from making this assertion of mistaken identity
and false implication in the present case has not brought forward any
evidence or witness to prove the same. There is no history of enmity
or misunderstanding between the appellant and the victim’s family
and therefore the argument that he was falsely implicated only appears
illusory.

28. Learned counsel for the appellant had prayed that the appellant should
be convicted under Section 8 of the POCSO Act rather than
Section 10
because the appellant is a first time offender and has remained in jail
since his arrest on 05.12.2013.

29. Section 7 and 8 of the POCSO Act deal with Sexual Assault, they read
as under :

“Sexual Assault and punishment therefor.

CRL.A. 1061/2016 Page 10 of 12

7. Sexual assault:

Whoever, with sexual intent touches the vagina, penis,
anus or breast of the child or makes the child touch the
vagina, penis, anus or breast of such person or any other
person, or does any other act with sexual intent which
involves physical contact without penetration is said to
commit sexual assault.

8. Punishment for sexual assault:

Whoever, commits sexual assault, shall be punished with
imprisonment of either description for a term which shall
not be less than three years but which may extend to five
years, and shall also be liable to fine.”

30. Section 9 and10 of the POCSO Act which deal with Aggravated
Sexual Assault and its punishment, relevant portion of
Section 9 and
Section 10 read as under:

“Aggravated sexual assault and punishment therefor.

9. Aggravated sexual assault:

………

(m) whoever commits sexual assault on a child below
twelve years; or
………

is said to commit aggravated sexual assault.

10. Punishment for aggravated sexual assault:
Whoever, commits aggravated sexual assault shall be
punished with imprisonment of either description for a
term which shall not be less than five years but which may
extent to seven years, and shall also be liable to fine.”

31. A plain reading of Sections 7 and 9 brings out the difference between
‘sexual assault’ and ‘aggravated sexual assault’. It becomes clear after
reading
Section 9(m) that anyone who commits ‘sexual assault’ on a

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‘child below the age of 12 years’ is to be ‘punished under
Section 10′
for “aggravated sexual assault”. Admittedly, both the child victims
“K” and “I” are 5 and 4 years of age respectively. Therefore, other
factors which the learned counsel for the appellant submitted are of no
consequence as no criminal antecedents or exemplary behaviour while
in custody can entitle an appellant to punishment under a section
which defines a different crime than the one committed by the
appellant.

32. Therefore in light of the facts and circumstances of the case, I find no
infirmity at all with the judgment of the Trial Court sentencing the
appellant to rigorous imprisonment for a period of 5 years along with
fine of Rs.5000/-for the offence under Section 10 of the POCSO Act
and the same is upheld.

33. Appeal is dismissed.

(VINOD GOEL)
JUDGE
SEPTEMBER 21, 2017
//

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