IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : JUNE 01, 2017
DECIDED ON : JUNE 06, 2017
HUNNY ….. Appellant
Through : Mr.Tarun Khanna for Ms.Saahila Lamba, Advocate.
STATE ….. Respondent
Through : Ms.Meenakshi Dahiya, APP.
CORAM: HON’BLE MR. JUSTICE S.P.GARG
1. Aggrieved by a visualisation antiquated 12.04.2016 of schooled Additional Sessions Judge in Sessions Case No. 192/14 outset out of FIR No. 402/14 purebred during Police Station Bharat Nagar by that a appellant Hunny was hold guilty for committing offences punishable underneath Sections 363/323 IPC and Section 10 POCSO Act, a present interest has been elite by him.
By an sequence antiquated 19.04.2016, a appellant was condemned to bear Rigorous Imprisonment for 5 years with excellent `5,000/- underneath Section 10 POCSO Act; Rigorous Imprisonment for dual years with excellent `1,000/- underneath Section 363 IPC and Simple Imprisonment for one month with excellent of `500/-, underneath Section 323 IPC. The sentences were to work concurrently.
2. Briefly settled a charge box as set adult in a charge- piece was that on 21.07.2014 during around 9.00 am, a appellant kidnapped a prosecuritex/victim ‘X’ (changed name), aged around 5 years from a official safekeeping of her relatives when she was going along with her hermit to her school. The appellant after abduction took a child to Police Colony, Narela with an vigilant to force/seduce her for unlawful intercourse. The appellant intimately assaulted a child and also slapped her.
3. On 21.07.2014, when a plant ‘X’ had left along with her hermit ‘Y’ (changed name) to propagandize during around 8.15 a.m., she was kidnapped. ‘Y’, on lapse to a home sensitive his relatives that an particular had kidnapped ‘X’ nearby a propagandize gate. Efforts were finished to find out ‘X’ though she could not be traced. Hiralal (PW1), victim’s father, lodged blank news (Ex.PW-5/A) with a Police Station Bharat Nagar. The Investigating Officer after recording his matter lodged FIR underneath Section 363 IPC.
4. At around 12:30 p.m., Neelam (PW-3), who lived in a community of victim’s relatives beheld ‘X’ station nearby Gol Chakkar of Partap Bagh. She brought a child to her home. The military was intimated. ‘X’ was taken for medical hearing though her mom did not assent her inner medical examination. Her matter underneath Section 164 Cr.P.C. was recorded. The appellant was arrested and was medically examined. Statements of a witnesses conversant with contribution were recorded. Upon execution of investigation, a charge-sheet was submitted opposite a appellant for a elect of aforesaid offences. The charge examined thirteen witnesses to settle a case. In 313 Cr.P.C. statement, a appellant denied his complicity in a crime and pleaded fake implication. The hearing resulted in self-assurance as mentioned previously. The pronounced self-assurance underneath plea in this appeal.
5. we have listened a schooled warn for a parties and have examined a file. Learned warn for a appellant urged that a Trial Court did not conclude a justification on record in a correct viewpoint and fell into grave blunder to bottom self-assurance on a solitary testimony of a child declare who was incompetent to respond to a questions put to her. In her deposition before a Court, she did not complete if passionate attack was committed on her. CCTV footage relied on by a charge is not accessible in justification in a scarcity of Certificate underneath Section 65B Evidence Act.
Material discrepancies rising in a statements of a charge witnesses have been abandoned though reasoning reasons. Learned Additional Public Prosecutor refuting a contentions urged that a justification of a prosecutrix is over think and can be believed.
6. The plant in a present box is a child, aged around 5 years. On a day of occurrence she had left with ‘Y’, his elder hermit aged around 10 years to her school. She was, however, kidnapped nearby a propagandize gate. PW-4 ‘Y’, victim’s hermit aged around 10 years seemed in a court. The schooled Presiding Officer conducted rough enquiry to discern if he was means to know a questions and answer them properly. The justice was confident that a declare was means to know a questions and answer them reasonably. His matter was available though oath. He deposed that during around 8.30 a.m. he had taken her sister ‘X’ to propagandize and an particular who was wearing a pinkish shirt and jeans breathe came and gave him a 10 rupee note to squeeze some eatables. He serve sensitive that a pronounced particular took her sister and fled. He chased him and lifted alarm though he could not find him. Thereafter, he came to home tears and sensitive his parents. They also attempted to hunt her though of no use. At around 1.00 p.m. her sister could be traced. He identified a appellant to be a particular who had taken ‘X’ with him. The declare also elaborated as to how a appellant was apprehended when he was forked out by him during a ‘dhaba’. He also identified garments (Ex.PW-1 and P-2), that a appellant was wearing during a time of ‘X’s kidnapping. In a cross-examination, he sensitive that progressing also he used to take his sister to a propagandize in a bus. He elaborated that when his sister was kidnapped, he had lifted alarm; and had sensitive ‘X’s dame also. To a doubt if he had seen a appellant before, a child responded that he had not seen a appellant before to it. He combined that ‘wo hamare pados mein nahin rehta hai.’ To a doubt as to what happened to a 10 rupee note given by a appellant, a trusting answer of a child was ‘mami ne breathe dho di thin, wo `10/- usme gal gaye honge’. The declare denied if a matter given by him was during his parents’ behest.
7. On scanning a whole testimony of a child, it reveals that notwithstanding acid cross-examination, no element inequality could be elicited to think his version. No distant ground was attributed to a child for secretly implicating a appellant in a abduction of his sister. The child was not proficient with a appellant before to a occurrence and did not maintain any passion or malignity to make a fake matter in a court.
8. PW-10 is a victim; her matter was available in ‘camera’. She was supposing a baby doll (Ex.P-1) carrying top and reduce garments to keep her occupied. She was finished gentle and her matter was available in good-natured atmosphere. Learned Presiding Officer put several questions to discern if she was means of bargain and answer them. After recording compensation that she was means to give receptive answers, her matter was available in question-answer form reproduced as under:
Q: Beta Kya hua tha”
A: Ek ladka mujhe pakad kar le gaya tha.
Q: Beta, kab pakad kar le gaya tha?
A: Jab bhai mujhe propagandize chodne gaya tha.
Q: Beta, phir kya hua?
A: (Witness did not answer notwithstanding steady questions and she was
holding a baby doll in her hands and she started putting one of her finger of right palm in a reduce wear of a doll). The doll was taken on record as Ex. P1. (hereinafter referred to as ‘doll’ for a consequence of convenience) Q: Beta, kya uss ladke ne aapke saath wahi keya tha jo abhi aap doll ke saath ker rehe ho?
A: Haan (the child started scratching a vaginal segment of a doll with her nails).
Q: Beta, kya uss ladke ne aapko waise hi nakhun mare a jaise aap doll ko maar rahe ho?
A: Haan (the child had all of a remarkable turn dull and was not responding to serve questions. She was again finished gentle by a Ld. Addl. PP and a Ld. Advocate from DCW).
Q. Beta, phir kya hua?
A. Woh mujhe train mein Pratap Bagh chod gaya. Uss ladke ne mujhe gaal standard thapad bhi mara tha.
Court observation: The Ld. Addl. PP has asked questions w.r.t a garments being ragged by a declare during a time of occurrence and as to possibly a indicted carrying private a same and a place where a same was done. The declare notwithstanding steady questions, has answered usually to a outcome that a indicted had put her dress in her propagandize bag.
Q: Beta kya aap us ladke ko pehchan sakte ho?
A: Haan. (the child rightly identified a indicted from the
designs finished in a wooden partition).
During interrogate by a schooled counterclaim counsel, a declare settled as under:-
Q: Beta, kya aapke bhai aapko daily propagandize chodne jata hai?
A Ab bhai nahi jata, pappy chodne jate hai school.
Q: Beta, poke aapko woh bhaiya le kar jaa rahe the, to kya aapne
shor machaya tha?
Court observation: The child is too little to firstly know this doubt and secondly to conflict to it.
Q: Beta aapne shor kyon nahin machaya tha?
A: Jab bhaiya le kar jaa rahe the, add-on wah aur record nahin the.
Q; Beta, poke bhaiya aapko train mein le kar jaa rahe a to kya
aapne kisi ko bataya tha?
Court observation: The child is too little to firstly know this doubt and secondly to conflict to it.
Q: Beta, jahan wo bhaiya aapko le gaye the, kya uss ghar mein aur
bhi koi tha?
A: Haan the.
Q: Beta, kya wo bhaiya aapko lekar gaye a yaa aaj aap ye sab
apne ma pappy ke kehne standard keh rahe ho?
A: Nahi, bhaiya lekar gaye the.
Q: Beta, dekho aapko koi bhaiya nahi lekar gaye a aur na hi
aapko mara tha?
Court observation: The child has denied this idea through
9. Scrutinizing a testimony of a little child, it stands determined that a appellant had kidnapped ‘X’ when she had accompanied her elder hermit to a school. No discrepancies or infirmities have emerged in her cross-examination. Again, no distant ground or unconnected care has been reserved to a child declare for fake implication. The matter of a child is consistent. She identified a appellant to be a perpetrator of a crime though hesitation.
10. True, a child was wavering to respond to some questions put during a time of recording her statement. Obviously, a child was demure to answer annoying questions that were derogative in nature. The justice can know prudery of proposal aged lady to answer unwashed or coarse questions. She has given answers to other questions. Nevertheless, she had definitely forked out as to what a appellant had finished with her by referring it to a doll in her hand. She had conveyed as to what was finished by a appellant with her. Nothing some-more can be approaching from a child aged around 5 years deliberation her singular understanding. Her testimony can't be rejected merely given ‘X’ in specific/express difference did not tell that nails were scratched on her vagina by a appellant after putting off her underwear.
11. PW-3 (Neelam) who lived in a community of a victim’s relatives saw her nearby Gol Chakkar of Pratap Bagh when she was entrance to her chateau after bringing her possess daughter from a propagandize situated during Gur Mandi after 12.30 p.m. She saw ‘X’ daughter of her neighbour Laxmi weeping. She sensitive that during that time ‘X’ was wearing usually shirt and underwear. She was not wearing her dress and carrying her propagandize bag. When she enquired as to what had happened, a child was incompetent to respond. She brought a child to her mom Laxmi. Then she came to know that ‘X’ was blank given morning. She was not cross-examined; her testimony remained unchallenged. PW-3’s deposition has suggested as to underneath what terrible conditions, ‘X’ was found alone though a dress during a place divided from her residence.
12. PW-8 (Rajiv Verma) is an eccentric declare who had no laxity possibly with a appellant or a victim’s family to make a fake statement. He deposed that he was staying along with his family during A-16, Rana Pratap Bagh, Near Mother Dairy Gol Chakkar. He had commissioned dual CCTV cameras outward his chateau in a gali. On 21.7.2014, a military sensitive him about a abduction of a child aged around 5 years study in a primary propagandize situated in a subsequent gali. The military asked for CCTV footage. He showed a CCTV footage to a military where a teenager lady wearing propagandize uniform was being taken by a child wearing pinkish colour shirt and blue jeans. He supposing a duplicate of CCTV footage to a police. He serve deposed that on a day his CCTV cameras were operative in correct sequence underneath his control and no tampering was finished to a CCTV footage supposing to a police. Recording in a CCTV was in common march and a complement on that a footage got stored was operative in excellent order; there was no scarcity of any kind therein. He valid a photographs (Ex.PW8/A1 to Ex.PW8/A4). In a cross-examination, he sincerely certified that certificate underneath Section 65B of Evidence Act was not asked for from him. He volunteered to supplement that he was prepared to give a certificate that day too. The appellant did not insist for prolongation of certificate underneath Section 65B of Evidence Act. The testimony of a declare is essential where a appellant was found holding a child with him. No idea was put to PW-8 in a interrogate that a photos (in Ex.PW8/A1 to Ex.PW8/A4) were not that of a appellant with ‘X’.
13. From a statements of a charge witnesses referred above, it stands valid that a appellant had kidnapped a child out of official control of her relatives though their consent. It was for a appellant to offer reason as to what had stirred him to take a child with whom he had no before familiarity to a isolated place. No such reason has come on record. In a avowal matter (Ex.PW4/C) a appellant has disclosed about his rapist antecedents. Though he was a married man, though his mom had left a matrimonial home due to his bonds in some rapist case. Merely given no spike outlines were found on a private tools of a child, it can't be unspoken that no such occurrence had taken place. ‘X’ was taken for medical hearing though to strengthen her honour, seemingly, a victim’s mom did not assent her inner medical examination. The essential justification per spike outlines on a private tools could not be gathered. It, however, does not intermix a verbal testimony of a plant whereby by referring to a private tools of a ‘doll’ in her palm she conveyed a information as to what had happened with her. There was no arise for a appellant to take a child on a enticement of handing over a 10 rupee note to her brother.
14. The impugned visualisation formed on correct appreciation of a justification deserves no intervention. The self-assurance is affirmed.
15. The crime committed is really serious. The plant a child aged around 5 years was intimately assaulted and defiled. When she was beheld by Neelam (PW-3), ‘X’ was not wearing her skirt. The justice can good know a mishap of a child whereby she suffered passionate attack during such a little age. The appellant aged around 23 years was good wakeful of as to what he was doing. The Trial Court has already taken a kindly perspective and no alteration of a judgment sequence is called for; there being a ‘minimum’ judgment underneath Section 10 POCSO Act.
16. The interest lacks in merits and is dismissed.
17. Trial Court record along with a duplicate of a sequence be sent behind forthwith.
(S.P.GARG) JUDGE JUNE 06, 2017