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Chhotu vs State on 20 March, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Decided on: 20th March, 2017
+ CRL.A. 1567/2014

CHHOTU ….. Appellant
Represented by: Mr.Krishan Kumar with
Ms.Vidushi Sharma, Advs.

versus

STATE ….. Respondent
Represented by: Mr.Ravi Nayak, APP for State.

CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. By the present appeal, the appellant challenges his conviction for
offences punishable under Sections 8 10 of the Protection of Children
from Sexual Offences Act, 2012 (in short ‘POCSO Act’) and order on
sentence directing him to undergo rigorous imprisonment for a period of 3
years and 5 years and to pay a fine of ₹5,000/- in default to undergo simple
imprisonment of 3 months on each count for offences punishable under
Sections 8 10 POCSO Act respectively.

2. Assailing the conviction, learned counsel for the appellant submits that
though charged for offence defined under Section 5(m) and punishable under
Section 6 POCSO Act, he has been convicted for offence punishable under
Sections 8 10 of POCSO Act. There are material contradictions in the
testimony of the victim PW-2 and her father PW-3. The place of occurrence
was not visible from where he was standing in view of the fact that the bus

CRL.A. 1567/2014 Page 1 of 5
was parked in between. Thus, the occurrence as unfolded by PW-3 is highly
improbable. The appellant has been falsely implicated. In any case, the
appellant has undergone nearly 4 years and 8 months of imprisonment out of
5 years awarded and in the alternative, he be released on the period already
undergone.

3. FIR No. 67/2013 under Section 377 IPC and Section 6 of the POCSO
Act was registered at PS Parliament Street, Delhi after receipt of wireless
message vide DD No.29A on 29th April, 2013 at about 10.45 AM informing
that a man had been apprehended while doing wrongful act with a girl child
aged about 8 years behind Gurudwara Bangla Sahib at Jai Singh Road.
Statement of PW-2 victim was recorded who stated that she was studying in
3rd standard in NDMC school, Hanuman Road and while she was sleeping on
the footpath along with her friend, the appellant who resides on the footpath
nearby came and covered her with a blanket. After coming under the blanket,
her removed her undergarments and started touching his penis with her anal
portion. In the meanwhile, her father took off the blanket and caught hold of
the appellant.

4. During the course of the trial, statement of PW-1 In-charge Primary
School Hanuman Road was recorded who deposed that as per the admission
record (Ex.PW1/A and PW1/B), the date of birth of the prosecutrix was 4th
March, 2004. The alleged incident being of 29th April, 2013, the prosecutrix
was 9 years old at the time of incident and hence, provisions of POCSO Act
were applicable.

5. Before Court, the prosecutrix deposed in sync with the statement on
the basis of which FIR was registered. She stated that the appellant lay by
her side, that is, on her right side and not between the two girls. After

CRL.A. 1567/2014 Page 2 of 5
covering himself and her with the blanket, he tried to touch his penis with
her anus. In the meantime, her father came and took off the blanket. In cross-
examination, she stated that she did not feel anything and it was when her
father raised the alarm, she came to know what appellant was doing with her.

6. PW-3 the father of the prosecutrix deposed that on 29 th April, 2013 at
about 10.30 AM, one bus was parked on the right side of YWCA footpath.
He could not see what was happening on the back side of the bus where his
daughter was sleeping. When he went to search his daughter, he could see
the head of his daughter but could not see who the person was sleeping
besides her under the blanket. Since there was some movement under the
blanket, he pulled off the blanket and saw that the appellant had removed his
pant and pyjama of his daughter and was touching his private part with the
back portion of his daughter. He got infuriated and beat the appellant. In the
meantime public persons also came and started beating him. The PCR van
arrived at the spot and apprehended the appellant.

7. It is not the case of PW-3 that he saw the incident from the opposite
side. He went to search his daughter and when he crossed the road and came
behind the bus, he saw someone else besides the girls sleeping and
movement under the blanket so he pulled off the blanket. Thus, the
contention of counsel that as per the site plan, PW3 could not have witnessed
the incident deserves to be rejected. There are no contradictions in the
testimony of PW-2 and PW-3, the main prosecution witnesses much less any
material contradictions.

8. The appellant was charged for offence defined under Section 5(m) and
punishable under Section 6 POCSO Act which is aggravated penetrative
sexual assault but convicted for offences punishable under Sections 8 10

CRL.A. 1567/2014 Page 3 of 5
of POCSO being minor offences of Section 6 POCSO Act. Thus there is no
illegality in the conviction of the appellant on this count.

9. Section 7 of the POCSO Act defines sexual assault as under:-

“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”.

10. Section 9(m) provides that whoever commits sexual assault on a child
below 12 years would be committing offence of aggravated sexual assault.
As per the testimony of the prosecutrix, she did not feel anything and came
to know when she heard the alarm raised by her father but from the evidence
of the father he saw the appellant touch the anus of the prosecutrix with his
penis though there was no penetration. Hence, the appellant has rightly been
convicted for offences punishable under Sections 8 and 10 of the POCSO
Act.

11. Section 8 POCSO Act prescribes for a minimum punishment for 3
years imprisonment which may extend to 5 years and Section 10 provides for
a minimum imprisonment for a period of 5 years which may extend to 7
years. The appellant has been awarded the minimum sentence prescribed on
both the counts. Hence, the sentence awarded to the appellant cannot be
reduced.

12. Finding no merit in appeal the same is dismissed.

13. Copy of this order be communicated to the Superintendent, Tihar Jail
for updation of record and intimation to the appellant.

CRL.A. 1567/2014 Page 4 of 5

14. Trial Court record be sent back.

(MUKTA GUPTA)
JUDGE
MARCH 20, 2017
‘neelam’

CRL.A. 1567/2014 Page 5 of 5

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