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Afzal vs State (Govt. Of Nct Of Delhi) on 30 November, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.No. 996/2016

Judgment reserved on : 26.10.2018
Date of decision : 30.11.2018

AFZAL ….. Appellant
Through: Ms. Naomi Chandra, Advocate
versus

STATE (GOVT. OF NCT OF DELHI) ….. Respondent
Through: Ms.Kusum Dhalla, Addl. PP for
the State.
CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

ANU MALHOTRA, J.

1. The appellant, Afzal S/o Abdul Rehman, vide the present appeal
under Section 374(2) of the Code of Criminal Procedure, 1973, assails
the impugned judgment dated 26.8.2016 and also the impugned order
on sentence of the learned Additional Sessions Judge-01 (North-East),
Karkardooma Courts, Delhi in SC No. 44297/2015 in relation to FIR
No. 161/2013, Police Station Gokalpuri, registered under Sections
363/377/323 of the Indian Penal Code, 1860, and Section 6 of the
POCSO Act whereby the appellant herein was convicted for the
offences punishable under Sections 363/377 of the Indian Penal Code,
1860, and Section 6 of the POCSO Act, 2012 and was sentenced to
rigorous imprisonment for a period of five years for the offence
punishable under Section 363 of the Indian Penal Code, 1860 and to
pay a fine of Rs.1000/- failing which he would further undergo simple

Crl.A. 996/2016 Page 1 of 16
imprisonment for a period of fifteen days. The convict, i.e., the
appellant herein was further sentenced to rigorous imprisonment for a
period of 10 years for the offence punishable under Section 377 Indian
Penal Code, 1860, and to pay a fine of Rs. 1000/- failing which to
undergo simple imprisonment for 15 days and also sentenced to
rigorous imprisonment for a period of ten years for the offence
punishable under Section 6 of the POCSO Act and to pay a fine of
Rs.1000/- failing which to undergo simple imprisonment for fifteen
days and all the three sentences were to run concurrently with the
benefit under Section 428 Code of Criminal Procedure, 1973 having
been extended to the convict. Further more, a sum of Rs.50,000/- was
directed to be paid as compensation to the victim through the Delhi
Legal Services Authority under the Delhi Victim’s Compensation
Scheme.

2. The impugned judgment indicates that the charge under Section
323 of the Indian Penal Code, 1860, against the accused/convict, i.e.,
the appellant herein was held to have not been proved.

3. In terms of order dated 7.8.2018, the appellant was produced
from the judicial custody and his nominal roll received from the
Superintendent, Prison, Central Jail No.12 Mandoli, Delhi, indicates
that the convict, i.e., the appellant herein has undergone 5 years 2
months and 2 days of incarceration from the period 16.5.2013 and has
earned remission of 2 months and 6 days with the unexpired portion of
the sentence being 4 years 7 months and 22 days as on the date of the
report, i.e., 18.7.2018.

Crl.A. 996/2016 Page 2 of 16

4. Arguments were addressed on behalf of the appellant by the
learned legal aid counsel Ms. Naomi Chandra and on behalf of the
State by the learned Addl. PP for the State Ms. Kusum Dhalla.

5. Crl. M. A. 16473/2016 is an application seeking condonation of
delay of about seven days’ delay in filing the appeal. For the reasons
explained therein that the appeal could be filed only when the legal aid
counsel visited the Tihar Jail No.4, the same is allowed in the
circumstances of the case.

6. As per the prosecution version, through the said report of the
police station Gokalpuri on 29.4.2013, a PCR call vide DD No. 25 A
in relation to an eight year old boy being missing was received which
was marked to ASI Ram Kishore for necessary action and
investigation and on his reaching the spot, the complainant, namely,
Shokeen r/o H. No. 2133, Gali No.2, Mustafabad, Delhi met him and
informed that his eight year old son had gone to school in the morning
and had not returned home as a consequence of which the FIR No.
161/2013, Police Station Gokalpuri, under Section 363 Indian Penal
Code, 1860, dated 29.4.2013 was registered and the search of the
missing child was carried out.

7. The complainant raised suspicion on his tenant named Afzal,
i.e., the appellant herein who was also not found present at his house.
During the course of investigation, the suspect Afzal made a call to his
brother Mohd.Shoaib on 15.5.2013 from mobile No.07665597625
after which the location of the suspect was found out to be at village
Sabrada, District Jaipur, Rajasthan and thereafter the team
immediately rushed to the said place and reached a person named

Crl.A. 996/2016 Page 3 of 16
Mohan S/o Kana Ram, whose mobile phone had been used by the
accused/convict Afzal, i.e. the appellant herein, to call his brother.
The said Mohan on being shown the photographs of the missing child
and the suspect Afzal, i.e. the appellant herein, stated that both of them
had met him around 4 p.m. on 15.5.2013 and had left for Jaipur and on
the clue provided by the witness Mohan, the police team straightaway
went towards the said direction and after reaching 2-3 Kms, the police
found the suspect Afzal and the missing child i.e. the victim, walking
on the road. The child was recovered and stated that he had been
kidnapped by the accused/convict Afzal uncle who had taken him to
Ajmer where he continuously did unnatural sex with the minor child
several times. Both the accused/convict, i.e., the appellant herein, and
the minor child were got medically examined at the GTB hospital vide
MLC No.A 1883/13 and P-116/13. The accused/convict, i.e., the
appellant herein was arrested on 16.5.2013 and the statement of the
minor victim was recorded under Section 164 of the Code of Criminal
Procedure, 1973 on 18.5.2013.

8. After the recording of the statement under Section 164 Code of
Criminal Procedure, 1973, the minor child was produced before the
CWC and was handed over into the custody of his father. The charge
sheet indicates that the exhibits were sent to the FSL (Rohini) on
20.5.2013 vide RC No. 78/21/13 and the mobile phone No.
9891099861 (the subscriber of which was Mohd. Shahid PW-12, and
which SIM card was given to PW-2 Mohd. Shoaib, brother of the
accused/appellant herein) and the call details report thereof were
obtained and the subscriber details of the phone No. 07665597625 of

Crl.A. 996/2016 Page 4 of 16
Mohan were also obtained and after the institution of the charge sheet,
the charge of allegations was framed against the accused/convict, i.e.,
the appellant herein on 13.12.2013 under Section 363/323 of the
Indian Penal Code, 1860, and Section 6 of the POCSO Act, 2012 to
which the accused/convict, i.e., the appellant herein pleaded not guilty
and claimed trial and an additional charge is also indicated to have
been framed on 9.9.2014 against the accused/convict, i.e., the
appellant herein, qua the offence punishable under Section 377 of the
Indian Penal Code, 1860.

9. Seventeen witnesses were examined by the prosecution, the
details of which have been set forth by the learned Trial Court in para
3 of the impugned verdict to the effect:

” PW1 Shokeen Ahmed was the father of the victim
and complainant of this case.

PW2 Ct. Anand Kumar deposited the exhibits of
this case at FSL

PW3 was the victim and he deposed about the
incident.

PW4 Mohan was an independent witness, having a
tyre puncture shop at Main Highway Road, Ajmer
Highway, from whose mobile phone accused made
call to his brother.

PW5 ASI Ram Kishore was the initial IO who
prepared ruqqa on the statement of Shokeen
Ahmed and got the present FIR registered.

Crl.A. 996/2016 Page 5 of 16

PW6 Ct. Narender Kumar joined the raiding party
and was a witness to the recovery of the victim and
arrest of accused.

PW7 Mohsin @ Bhura was the brother of
complainant/PW1. He deposed that he had a
quarrel with the accused on 29.4.2013 and the
accused had extended theats to him to see him in
future.

PW8 Mohd. Shoiab was the brother of accused to
whom accused had made a call and he accordingly
informed the IO about it.

PW9 HC Sanjay Kumar was the Duty Officer who
proved the FIR.

PW10 Ct. Budh Prakash handed over ruqqa and
copy of FIR to the IO.

PW11 Ct. Feru Bhagat took the victim and the
accused to GTB Hospital where they both were
medically examined.

PW12 Mohd. Shahid was the registered subscriber
of mobile number 9891099861, which was used by
Shoaib on which accused made call.

PW13 Dr.Manish Narang proved the MLC of the
victim.

PW14 Ins. Jaswant Singh was the IO and he
deposed about the investigation conducted by him
and proved the relevant documents.

PW15 Shri Amrender Patel– Nodal Officer
proved the call detail records of mobile number
9891099861.

Crl.A. 996/2016 Page 6 of 16

PW16 HC Ashok Pal was the MHC(M) who
proved the entries made in Register No.19.

PW17 Dr. Abhay Kumar medically examined the
victim in the Surgery Department of GTB
Hospital.”

10. Through his statement under Section 313 Code of Criminal
Procedure, 1973, the appellant herein denied the incriminating
evidence led against him and stated that he had been falsely implicated
in the case by the PW-1, the father of the minor child as there was
some dispute of a tenancy between them and that the child had been
tutored by his parents. The appellant also denied that he ever
kidnapped the victim and or committed any carnal intercourse with
him and also stated that Mohan was a fabricated and stock witness of
the police and had deposed in several other matters at the instance of
the police. No evidence in relation to that effect howsoever was led
by the accused/convict, i.e., the appellant herein.

11. A contention that was raised on behalf of the appellant was to
the effect that the appellant has been falsely implicated because of the
quarrel between the brother of the complainant and the
accused/convict, i.e., the appellant herein, and the statement in the
cross-examination of Mohsin vide which he admitted that there had
been an incident for which PW-7 did not make any complaint to the
police and it was also contended on behalf of the appellant that the
testimony of PW-4 Mohan, whose mobile phone was allegedly
utilized by the accused/convict, i.e., the appellant herein, to make a
call to his brother which call details stand confirmed, as per the record,

Crl.A. 996/2016 Page 7 of 16
is wholly inconclusive, in as much as it has been mentioned that the
first call was made to PW8 (brother of the accused/convict, i.e., the
appellant herein on 15.5.2013 at about 09:41 p.m. and the second call
was made on 16.05.2013 at about 07:37 a.m. and that the mention of a
second call on 16.05.2013 to PW8 from the cell of PW4 creates an
impregnable doubt on the theory of the prosecution.

12. A perusal of the testimonies of the father of the victim Shokeen
Ahmed examined as PW-1, the testimony of PW-7 Mohsin, the uncle
of the victim as also the brother of PW-1, and the testimony of PW-8
Mohd. Shoiab, the brother of the accused/convict, i.e., the appellant
herein and the testimony of PW-4 Mohan s/o Kana Ram whose mobile
phone bearing No. 0766559765 was used by the accused/convict, i.e.,
the appellant herein, to call his brother, coupled with the statement
under Section 164 of the Code of Criminal Procedure, 1973 of the
victim Master X and the testimony of the victim Master X examined
as PW-3 corroborate the prosecution version in toto for though there
are minor discrepancies in the testimonies of the prosecution
witnesses, the testimonies of all the witnesses are consistent in relation
to all material particulars.

13. A contention was raised on behalf of the appellant that the
testimony of PW-4 Mohan had falsely implicated the appellant herein
in as much as he was a stock witness as admitted by him also in his
cross-examination. It is essential to observe that PW4 Mohan in his
cross-examination has stated to the effect that he has deposed in
several other matters like accidents and the police had taken his

Crl.A. 996/2016 Page 8 of 16
statement but categorically denied that he had identified the accused at
the instance of the police.

14. It is essential to observe that PW-15 Mr.Amrender Patel–
Nodal Officer, Idea Cellular Limited, indicates that he had brought the
CDR of the said mobile Phone numbers from 14.5.2013 to 16.5.2013
EX.PW-15/C and also issued a certificate under Section 65-B of the
Evidence Act, in relation to the said call details Ex.PW-15/D and
though he stated that he could not tell the exact location or place of the
mobile phone by the call details but he could tell the location of the
tower which is stated to be at about 2-3 kms in the surrounding area.
The call details placed on record as Ex.PW-14/D reflect both numbers,
i.e., the number of Mohan Lal and the number of the brother of the
accused/convict, i.e., the appellant herein Shoiab Ali. The said call
detail reports at serial No. 24 to 35 are as under:

24. 919891099861 308309837861343 16:05:13 7:40:04 84 31602 New MOC 35831004368
Seelampur 6300
25. 919891099861 3025917665597625 16:05:13 7:37:20 48 31602 New MOC 35831004368
Seelampur 6300
26. 919891099861 8860546998 16:05:13 6:59:07 42 16351 #N/A MTC 35831004368
6300
27. 919891099861 8860546998 16:05:13 0:08:33 65 31602 New MTC 35831004368
Seelampur 6300
28. 919891099861 3025917665597625 15:05:13 21:41:45 116 31481 Dayalpur MOC 35831004368
6300
29. 919891099861 8860546998 15:05:13 20:04:57 97 31602 New MTC 35831004368
Seelampur 6300
30. 919891099861 3025917665597625 15:05:13 19:53:38 302 31601 New MOC 35831004368
Seelampur 6300
31. 919891099861 3025917665597625 15:05:13 19:47:19 51 31602 New MOC 35831004368
Seelampur 6300
32. 919891099861 4108918860546998 15:05:13 19:42:50 74 31602 New MOC 35831004368
Seelampur 6300
33. 919891099861 919891030955 15:05:13 19:39:11 0 31602 New SMT 35831004368
Seelampur 6300
34. 919891099861 30257665597625 15:05:13 19:08:05 229 31602 New MTC 35831004368
Seelampur 6300

Crl.A. 996/2016 Page 9 of 16

the same itself thus negates the contention of the appellant that the
witness Mohan was examined in the instant case as a stock witness
even if he has been examined in several other accident cases by the
police.

15. Another contention raised on behalf of the appellant was that
there were several discrepancies in the testimonies of the prosecution
witnesses including that of the minor child who had stated that he had
not been taken by the police to the place where the appellant had
committed sodomy on him, in contrast with what was stated by the
Investigating Officer.

16. A bare perusal of the testimony of the child victim PW3 Master
X and his statement under Section 164 of the Code of Criminal
Procedure, 1973 also makes it apparent that there is nothing on record
to indicate any inherent consistency in the testimony of the child
witness for the statement under Section 164 of the Code of Criminal
Procedure, 1973 of the child and his testimony in Court are consistent
qua the incident as testified by the child victim of his having been
kidnapped by the appellant on 29.4.2013 and of carnal intercourse
committed by the appellant against the child which offences thus stand
conclusively established against the appellant herein. The same
however does not suffice to negate the categorical testimony of the
minor child which is consistent in relation to all material particulars
qua his having been kidnapped by the appellant herein and having
been taken away in a rickshaw by the appellant and taken thereafter to
Ajmer on foot and of the appellant having committed carnal
intercourse on the minor child on a hill at Ajmer which he continued

Crl.A. 996/2016 Page 10 of 16
to do so and even went to the extent of making the minor child beg on
the false pretext that his mother has expired. The minor child was also
categorical that the accused/convict, i.e., the appellant herein, apart
from committing carnal intercourse also inserted his penis into his
mouth. That the minor child did not complain to anyone during the
period he remained in the company of the appellant however does not
reflect on the veracity of the testimony of the minor child and there is
nothing to indicate that the minor child had in any manner been
tutored.

17. The absence of any injuries on the person of the minor child
also in the facts and circumstances of the instant case in view of the
consistent evidence on record does not assist the appellant in any
manner.

18. In the circumstances thus of the instant case, the reliance placed
on behalf of the appellant on the verdict of the Hon’ble Division
Bench of this Court in State (Govt. of NCT of Delhi) v. Mullah
Muzib; Criminal Leave Petition No. 62/2015 a verdict dated 9.2.2015
to contend that the testimony of the minor necessarily needs to be
corroborated, is misplaced in as much as the reliance placed on behalf
of the appellant on the observations in para 24 of the said verdict itself
brings forth the observation in the verdicts in Dattu Ramrao Sakhare
v. State of Maharashtra; (1997) 5 SCC 341 , Panchhi vs. State of
UP; (1998) 7 SCC 177 and Hamza v. Muhammedkutty; (2013) 11
SCC 150; which nowhere lay down that the testimony of the minor
child cannot be relied upon without corroboration and only spell forth
that as a rule of prudence the Court always finds it desirable to have

Crl.A. 996/2016 Page 11 of 16
the corroboration of such evidence from the testimonies of the
witnesses and that it is not the law that if a witness is child, his
evidence shall be rejected, even if it is found reliable.

19. As already observed herein in the facts and circumstances of the
instant case, the testimony of the prosecution witnesses are categorical
and consistent in relation to the recovery of the minor child from the
accused/convict, i.e., the appellant herein, of the conversation between
the mobile numbers of PW-4 Mohan whose mobile was utilized by the
Appellant to talk to PW-8 Mohd. Shoiab, the brother of the
accused/convict, i.e., the appellant herein after the occurrence of the
incident and of the apprehension of the /convict, i.e., the appellant
herein soon after the stated conversation and of the recovery of the
minor child in the presence of the police officials. In the facts and
circumstances of the instant case, it is apparent thus that there is no
infirmity in the impugned judgment.

20. The learned Trial Court has thus rightly convicted the appellant
for the proved commission of the offences punishable under Sections
363/377 Indian Penal Code, 1860, and under Section 6 of the POCSO
Act, 2012.

21. In terms of Section 5 (m) of the POCSO Act, 2012, the
accused/convict, i.e., the appellant herein having committed the
penetrative sexual assault on a child below the age of 12 years, the
offence falls within the ambit of the appellant having committed
aggravated penetrative sexual assault on the child and he thus is liable
for punishment in terms of Section 6 of the POCSO Act, 2012 which
provides for the punishment to the effect:

Crl.A. 996/2016 Page 12 of 16

” 6. Punishment for aggravated penetrative
sexual assault.- Whoever, commits aggravated
penetrative sexual assault, shall be punished with
rigorous imprisonment for a term which shall not
be less than ten years but which may extend to
imprisonment for life and shall also be liable to
fine.”

22. The appellant having been proved to have sodomized the minor
child in terms of Section 377 Indian Penal Code, 1860, punishable
thereunder, which proves as follows:

” Section 377. Unnatural offences.–Whoever
voluntarily has carnal intercourse against the order
of nature with any man, woman or animal, shall be
punished with 1[imprisonment for life], or with
imprisonment of either description for a term which
may extend to ten years, and shall also be liable to
fine.

Explanation.–Penetration is sufficient to constitute
the carnal intercourse necessary to the offence
described in this section.”

23. In terms of Section 363 Indian Penal Code, 1860, for the
commission of such offence kidnapping, the appellant has been rightly
held to have been convicted is punishable as under:

“363. Punishment for kidnapping.–Whoever
kidnaps any person from 1[India] or from lawful
guardianship, shall be punished with imprisonment
of either description for a term which may extend
to seven years, and shall also be liable to fine.”

24. The learned Trial Court has categorically observed to the effect
that the minor child apart from having been kidnapped and sexually
abused was tormented and forced to beg for food and money and the
same was also so done to take revenge from the victims uncle without

Crl.A. 996/2016 Page 13 of 16
realizing the damage that could be caused to the psyche and future of
the minor child and that the accused/convict, i.e., the appellant herein
deserved no leniency or mercy especially when he was also facing
trial for a similar offence which the nominal roll also so indicate that
the appellant was also in judicial custody in relation to the FIR
No.496/06 Police Station Bhajan Pura for the offences punishable
under Sections 368/363 Indian Penal Code, 1860. There is thus no
infirmity in the impugned order on sentence dated 26.8.2016 and the
Crl.A.996/2016 is thus dismissed.

25. The medical status of the appellant as per the report attached
with the nominal roll however indicates that the appellant has been
suffering from psychiatric and behavioral disorder and has been
referred to the IHBAS multiple times for his further management and
follow up and that he has been attempting to commit suicide inside the
Mandoli Jail and has also injured himself with self inflicted injuries on
multiple occasions, though he is otherwise physically and mentally
stable and was so on 19.7.2018.

26. In the circumstances, whilst upholding the impugned judgment
dated 26.8.2016 and the impugned order on sentence dated 26.8.2016
passed by the learned Trial Court in relation to the FIR No. 161/2013,
Police Station Gokalpuri under Sections 363/377/323 Indian Penal
Code, 1860, and Section 6 of the POCSO Act, 2012, it is considered
appropriate that the carceral period reforms the appellant in terms of
the verdict of Supreme Court in Phul Singh Vs. State of Haryana in
Criminal Appeal No. 506/1979 decided on 10.09.1979 and directions
laid down by us in Sanjay vs. State 2017 III AD (Delhi) 24¸ dated

Crl.A. 996/2016 Page 14 of 16
20.02.2017 it is essential that the following directives detailed
hereunder are given qua the remaining sentence of imprisonment so
that the sentence acts as a deterrent and is simultaneously reformative
with a prospect of rehabilitation. The Superintendent, Central Jail,
Mandoli where the appellant shall be incarcerated for the remainder of
the term of imprisonment as hereinabove directed shall consider an
appropriate programme for the appellant ensuring, if feasible:

 appropriate correctional courses through
meditational therapy;

 educational opportunity, vocational training
and skill development programme to enable a

livelihood option and an occupational status;

 shaping of post release rehabilitation
programme for the appellant well in advance before
the date of his release to make him self-dependent,

 ensuring in terms of Chapter 22 clause 22.22
(II) Model Prison Manual 2016, protection of the
appellant from getting associated with anti – social
groups, agencies of moral hazards (like gambling
dens, drinking places and brothels) and with
demoralised and deprived persons;

 adequate counselling being provided to the
appellant to be sensitized to understand why he is in
prison;

 conducting of Psychometric tests to measure the
reformation taking place; and

Crl.A. 996/2016 Page 15 of 16
 that the appellant may be allowed to keep

contact with his family members as per the Jail rules
and in accordance with the Model Prison Manual.

27. Furthermore, it is directed that a Bi-annual report is
submitted by the Superintendent, Central Jail, Mandoli, New
Delhi to this Court till the date of release, of the measures being
adopted for reformation and rehabilitation of the appellant.

28. Copy of this judgment be also sent to the Director General,
Prisons, Delhi and to the Secretary, Law, Justice and Legislative
Affairs, GNCTD, Delhi to ensure compliance of the above
directions. The copy of this judgment be supplied to the appellant
and be sent to the Superintendent Jail, Tihar.

29. The record of the Trial Court be returned forthwith.

ANU MALHOTRA, J.

NOVEMBER 30, 2018/SV/vm

Crl.A. 996/2016 Page 16 of 16

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