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Jabbar vs State on 30 May, 2018

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28thApril, 2018
Pronounced on:30th May, 2018

+ CRL.A. 1444/2013

JABBAR ….. Appellant
Through: Mr. B.S. Chowdhary and Ms.Sneh
Lata Rana, Advocates
Appellant is present in JC

versus
STATE ….. Respondent
Through: Ms. Aashaa Tiwari, APP for the State
SI Sunil Kumar, PS Begumpur, Delhi

CORAM:
HON’BLE MR. JUSTICE S.P.GARG
HON’BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT

C. HARI SHANKAR, J.

1. The impugned judgement, dated 26th September, 2013, passed
by the learned Additional Sessions Judge (hereinafter referred to as
―the learned ASJ‖) finds the appellant Jabbar guilty of sodomising
and, thereby, committing ―aggravated penetrative sexual assault‖ on, a
6-year-old boy (who shall be referred to, hereinafter, as ‗S’) and,
accordingly, convicts him under Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as
―the POCSO Act‖). Vide order, dated 28th September, 2013, passed as
CRL.A. 1444/2013 Page 1 of 51
a sequel thereto, the learned ASJ has sentenced the appellant to
undergo imprisonment for life, along with fine of ₹ 5000/- with
default rigorous imprisonment of 6 months. The benefit of Section 428
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
―the Cr.P.C.‖) has been extended to the appellant.

2. The appellant appeals, thereagainst.

The Facts and the Evidence

Statements of parents of the victim

3. We may pitch the starting point, for the recital of the facts in the
present case, as the statement of Noor Jahan Begum, the mother of the
victim ‗S’, who deposed, during trial, as PW-3. Her deposition reads
thus:

―On SA
I have three children i.e. two boys and one daughter.
My elder son is aged about 17-18 years and daughter is 10
years old. The victim child is my youngest child, who is 6
years old. I am residing on the above mentioned address with
my family. We are permanent residents of District Purniya,
Bihar. Prior to 6 months from today at about 10:00-10:30
p.m., my son i.e. the victim child went for laterine near the
house. After about one hour, I saw that my son was coming
while crying. I saw the accused, present in the Court today
(witness has correctly identified the accused), was with my
son who on seeing me ran away from there. I made inquiries
from my son, who told me that accused Jabbar took him to
jungle and did wrong act with him from his backside. My
husband called the police by dialling 100 number. Police took
my son, my husband and myself to SGM Hospital where

CRL.A. 1444/2013 Page 2 of 51
medical examination of my son was conducted. My statement
was recorded by the police.

XXXXXX By Sh. Rajnish Kumar Antil, learned amicus
curiae for accused.

My statement was recorded by the police at the time
when my son was brought from the hospital to the PS. I have
stated in my statement to the police that I saw accused Jabbar
coming with my son at that time and who, on seeing me, ran
away from the spot. Confronted with statement Ex. PW-3/DA
where it is not so recorded.

It is wrong to suggest that my son had told me about
the incident after coming back to my house. I do not recollect
if I told to police that after coming home, my son had told me
about the incident. The house of accused is situated at a
distance of about 3-4 houses from my house. We had gone to
the house of accused after the incident. Accused Jabbar was
present at his house. All other family members were sleeping
at that time including his father and brother. It is correct that
accused Jabbar was apprehended by me at that time and
handed over to the police. Again said, the accused was not
brought by me from his house at that time. The accused was
taken by the police on the day of Jumma (Friday) at 2:00 PM.
It is wrong to suggest that there were many other children
present. It is wrong to suggest that the accused was falsely
implicated in the present case. It is wrong to suggest that I am
deposing falsely being the mother of the victim child.‖

4. Mohd Saleem (PW-6), the father of ‗S’ deposed, during
trial, thus:

―On SA.

I am residing on the above said address with my
wife and three children. I have two sons and one daughter.
The victim child is my youngest born child who is aged about
6 years. We are permanent resident of District Purnia, Bihar.
About 6 months back at about 10.30 p.m. my son i.e. victim
child went for laterine outside near the house. But he did not

CRL.A. 1444/2013 Page 3 of 51
return thereafter. I made efforts with my wife to search for
him. My wife while searching went towards the fields and she
heard some noise and at about 11:30 PM she found my son
coming while crying. Accused Jabbar present in the court
today ran away after seeing my wife. I also went there and
brought the child back to home. On enquiry my son i.e. the
victim child told that accused Jabbar took him to jungle side
and caused him hurt from his backside (anal region). On
hearing this I went to the house of accused Jabbar who is
residing in the same locality. I found all the family members
were sleeping in the house. Accused Jabbar was not present at
home at that time. Thereafter, I came back to my home and
found that my son was not feeling well as he was feeling
giddiness. On seeing the condition of my son, I called the
police at 100 number. PCR van came and took me, my wife
and my son to SGM Hospital where the medical examination
of my son was conducted. Two police officials came in the
night at the hospital itself and recorded my statement which is
Ex. PW-6/A and bears my signature at point A. Again Said:
Thereafter, one lady police also came there who had recorded
my statement Ex. PW-6/A. We remained in the hospital for
two days for treatment of my son S. My son was discharged
on 22.3.2013 at 3:00 p.m. and thereafter we brought him back
to our house. The police officials also came to my house and
from there we went to the house of accused Jabbar who was
not present at his home. I along with the police officials went
in search of the accused who was apprehended from Begum
Pur Chowk, Main Kanjhawala Road at 6:00 p.m. on the same
day. He was arrested vide his arrest memo Ex. PW-6/B and
was personally searched vide memo Ex. PW-6/C, both of
which bear my signatures at point A. I can identify accused
Jabbar. (The witness has correctly identified accused Jabbar in
the court today).

I had brought my son ‗S’ to the court for his statement
and his statement was recorded by learned MM. I do not
remember the date of the said statement.

At this stage learned Addl PP prays that she be
permitted to put a leading question to the witness regarding
the date on which statement of child ‗S’ was recorded by
learned MM.

Heard. Allowed.

CRL.A. 1444/2013 Page 4 of 51

It is correct that statement of ‗S’ was recorded by
learned MM on 25.3.2013. It is correct that I could not
remember the said date as I am illiterate.

XXXXXX By Sh. Arun Shehrawat and Sh. Rajnish
Kumar, learned amicus curiae for accused Jabbar.

My statement was recorded in the hospital by the
police. I cannot tell time. House of accused Jabbar is three
houses away from my house. I am a mason and my timings
are from 8.00 a.m. to 5.00 p.m. Police came at about 11.30-

12.00 midnight after my call at 100 number. Public persons
collected at the spot from where accused was arrested. The
arrest and personal search memo of accused was prepared at
that spot itself by the I/O and my signatures were also taken
there on said papers. Accused has tried to run away from the
spot before police apprehended him. It is wrong to suggest
that accused has been falsely implicated in this case or that I
am deposing falsely being the father of the victim.‖

Police Witnesses

7. We may, refer, now to the evidence of the various police
witnesses, who deposed in this case.

8. PW-1 HC Chander Singh deposed that, on 21st March, 2013, at
about 11.16 p.m, he received information, through the wireless
operator of PS Begumpur, that, at H.No.C-18, Rajni Vihar, Begumpur,
someone had committed a wrong act with a six year-old girl, which
information he reduced to writing vide DD No.30/A (Ex.PW-1/A).

9. PW-7 Const. Poonam and PW-11 SI Manju Yadav [who was
the Investigating Officer (IO) at that time] of PS Begumpur, deposed,

CRL.A. 1444/2013 Page 5 of 51
during trial, that, consequent on receipt of DD No. 30/A, on the night
between 21st and 22nd March, 2013, informing them that a case under
the POCSO Act was to be investigated, they reached the Hospital,
where they were met by SI Sandeep Tushir (PW-10) and HC Suresh
(PW-14). SI Sandeep Tushir and HC Suresh handed over, to them,
copies of DD No.30/A (Ex.PW-1/A) and the MLC of ‗S’ (Ex.PW-
12/A), along with exhibits taken from ‗S’ by the doctor. The IO SI
Manju Yadav seized the exhibits vide Seizure Memo (Ex.PW-7/A)
and recorded the statement of Mohd. Saleem (PW-6), on which she
made an endorsement (Ex.PW-11/A) and prepared rukka. The rukka
was given to Const. Suresh, for registration of FIR. SI Manju Yadav
further deposed that, at about 3.00 p.m. on 22 nd March, 2013, she,
along with Const. Suresh (PW 14), went to the house of Mohd.
Saleem (PW 6), who took them to the place of incident, the site plan
whereof was exhibited as Ex.PW-11/B. Later, on the same day, they
found Jabbar at Begumpur Chowk. Though Jabbar tried to flee, he
was apprehended, with the help of Const. Suresh, interrogated and
arrested vide Arrest Memo (Ex.PW-6/B). Thereafter, Jabbar was
brought to the Police Station, where his disclosure statement (Ex.PW-
11/C) was recorded. The appellant led them to an open place of land
near an electric pole, which was pointed out by him, vide Pointing Out
Memo (Ex. PW-11/D), as the spot where he had committed sodomy
on ‗S’. SI Manju Yadav further deposed that, thereafter, the appellant
was medically examined at the Hospital, after which exhibits relating
to him, and his clothes, were handed over, to Const. Suresh, by the
doctor, which were seized vide Seizure Memo Ex.PW-11/E, and
thereafter, deposited with the MHCM HC Ram Kumar (PW-5). She

CRL.A. 1444/2013 Page 6 of 51
correctly identified Jabbar who was present in court. She further
testified that, two days after his admission, ‗S’ was discharged from
the Hospital, whereafter his statement was recorded under Section
164, Cr.P.C., by the learned Metropolitan Magistrate (hereinafter
referred to as ―the learned M.M.‖), after which the resumed exhibits
were sent to the Forensic Science Laboratory (FSL) and statements of
other witnesses were recorded. She also confirmed having collected
the Aadhar Card of ‗S’ (Ex. PW-11/H), from Mohd. Saleem, as proof
of the age of ‗S’, and that, after completion of investigation, charge
sheet was filed by her through the SHO. In the course of examination,
SI Manju Yadav deposed that the appellant had been arrested at 6:00
P.M. on 22nd March, 2013 and that, though she had requested certain
members of the public, who were present at the spot, to join the
investigation, no one agreed to do so. We have perused the Aadhar
Card (Ex.PW-11/H) and find that, in the said Card, the age of ‗S’ is,
indeed, reflected as six years. We may also note that the veracity of
the said Aadhar Card has not been questioned by the defence, at any
stage of proceedings.

10. The above depositions, of PW-7 Const. Poonam and PW-11 SI
Manju Yadav, are corroborated by the evidence of other police
witnesses, i.e. PW-5 HC Ram Kumar [the MHC(M)], PW-8 HC Vijay
Kumar, PW-10 SI Sandeep Tushir and PW-14 HC Suresh.

11. PW-5 HC Ram Kumar confirmed the deposit, with him, of
seven pullandas, sealed with the seal of the Hospital, by SI Manju
Yadav on 22nd March, 2013; the handing over by him, of the said

CRL.A. 1444/2013 Page 7 of 51
pullandas to Const. Ashok, on 25th March, 2013, for being deposited
in the FSL; the deposit of the said pullandas, in the FSL vide RC
41/21/13, and the handing over, to him, of the acknowledgment issued
by the FSL (Ex.PW-5/C), by Const. Ashok.

12. PW-8 HC Vijay Kumar, in his deposition during trial,
confirmed receipt of the rukka, sent by SI Manju Yadav (PW-11), by
him, at 2.45 a.m, on 22nd March, 2013, and registration of FIR No.
96/13 (Ex.PW-8/B) under Section 377 of the IPC, on the basis thereof.

13. SI Sandeep Tushir, deposing as PW-10 confirmed, in his
examination-in-chief on 11th September, 2013, having visited the
Hospital, where ‗S’ was found admitted vide MLC No.488 (Ex.PW-
12/B), and his placing a request for sending a lady police officer, as
the case related to the POCSO Act, whereupon SI Manju Yadav (PW-

11) and Const. Poonam (PW-7) reached the Hospital.

14. HC Suresh, deposing as PW-14, confirmed having received the
rukka, from SI Manju Yadav (PW-11), and of having had the FIR
registered on the basis thereof. He also confirmed the apprehension
and arrest of Jabbar, at 6.00 p.m. on 22 nd March, 2013, from
Begumpur Chowk, vide Arrest Memo (Ex.PW-6/B), and the making
of the disclosure statement (Ex.PW-11/C) by Jabbar, thereafter. He
further confirmed the fact that Jabbar pointed out the place of incident
vide Pointing Out Memo (Ex.PW-11/D), and that he was taken to the
Hospital, where he was medically examined.

CRL.A. 1444/2013 Page 8 of 51

15. None of the aforementioned police witnesses was cross-
examined by the defence, despite grant of opportunity.

16. The facts of the case, from the point where Noor Jahan Begum
(PW-3) met ‗S’, in the company of the appellant, till the filing of
charge-sheet, by SI Manju Yadav (PW-11) on 22nd March, 2013, stand
clearly and consistently mapped out, by the evidence referred to
hereinabove.

Testimony of the victim ‗S’

17. Inasmuch, in such cases, the evidence of the victim of assault is
of prime importance, it would be necessary to set out, in extenso, the
statements of ‗S’, recorded under Section 164 of the Cr.P.C, and,
thereafter, during trial.

18. The proceedings relating to the statement of ‗S’, under Section
164 of the Cr.P.C. may be reproduced as under:

―FIR No. 96/13
PS: Begumpur
U/s: 376 IPC and Section 6 of POCSO Act

Date: 25.03.2013

Statement u/s 164 Cr.P.C of ‗S’ S /o. Salim aged about 6
years R/o B-18, Rajni Vihar, Begumpur, Delhi

An application for recording of the statement of victim
‗S’ aged about 6 years u/s 164 Cr.P.C is moved by IO, PS
Begumpur, Delhi. The same is moved before me being the Ist
Link MM of Sh. Sumedh Kr. Sethi, Ld. M.M., Rohini Courts,
Delhi. IO has produced the victim. He has been identified by
the IO.

CRL.A. 1444/2013 Page 9 of 51

Statement of IO/WSI, Manju Yadav No.D-5293, PS-
Begumpur, Delhi.

On SA

I identify the victim ‗S’ S/o Salim aged about 6 years
R/o B-18, Rajni Vihar, Begumpur, Delhi.

ROAC

Sd/-

(AJAY NAGAR)
LMM/Rohini/Delhi/25/03/13

I have already taken off my coat and tie so that child
may feel comfortable and fearless.

At this stage I have asked IO to leave the chamber,
she/he has left the chamber and at this stage except myself,
victim and mother of victim nobody is present inside the
chamber.

I have asked the mother of the victim to sit in the
chamber, so that victim may feel comfortable to make the
statement. Let the statement of the victim be recorded.

Before recording the statement of victim, I have also
asked him whether he understands the meaning of oath to
which the victim answered in affirmative. He also stated that
after taking oath, one should also speak truth. However, he
has not been administered the oath as he has not completed
the age of 12 years. Having thus satisfied myself, I am of the
opinion that the victim is ready to give his statement without
any fear, influence or tutoring. Hence, I proceed to record his
statement. I have asked certain questions to the victim as
mentioned below to know about his state of mind and
voluntariness.

Q. What is your name?

A. ‗S’

Q. What is your father’s name?

CRL.A. 1444/2013 Page 10 of 51
A. Salim

Q. What is your mother’s name?

A. Noor Jan

Q. What is your address?/Who has come with you?

A. Mother.

Q. Which class are you studying in?

A. I am not studying

Q. In which class will you be promoted?/What is name of
your friends?
A. Mithun, Altaf, Bitoo, one more Sohaib.

Q. Which School are studying in?

A. Studying in Masjid

Before recording his statement, I have asked certain
number of questions to ensure that the victim has not been
tutored by any one. Before recording his statement, I have
instructed Mother of victim not to tutor him during recording
of statement of victim.

The victim has given rational answers and it seems that
he is able to understand the situation and is in fit state of
mind. His statement is recorded separately.

ROAC

Sd/-

(AJAY NAGAR)
LMM/Rohini/Delhi/25/03/13

Certified that statement of victim has been recorded by
me in his presence and in the presence of his mother and I
have ensured that mother of victim does not tutor or prompt

CRL.A. 1444/2013 Page 11 of 51
him during the recording of statement and contains the true
and correct account of statement given by him before me.

Sd/-

(AJAY NAGAR)
LMM/Rohini/Delhi/25/03/13

Proceedings stand concluded. It be put in a sealed
cover and sent to the concerned Court.

Sd/-

(AJAY NAGAR)
LMM/Rohini/Delhi/25/03/13‖

19. The statement of ‗S’ under Section 164 of the Cr.P.C, translated
from the vernacular into English, reads thus:

―Q Yes my son, what happened on the night of 21st / 22nd
March, 2013?

A I had gone there to do potty. From there Jabbar took
me into the jungle. He then started hitting me from behind. He
was threatening me while taking me. He, Jabbar, removed his
pant as well as my underwear. Thereafter, he sodomised me.
He then told me that we would return via the pansari. I told
him that three men were standing there and I would return
only via that route. Then Jabbar, while threatening me, was
returning with me.

Q Son, was anyone else present on that day?

A No, there was only one man.

Q Son, do you want to say anything else?

A No.

Q Son, has anyone done any wrong act with you?

A Yes

Q Who has done wrong act with you?

CRL.A. 1444/2013 Page 12 of 51
A Jabbar has.

Q Son, do you want to say anything else?

A No

Q Where do you want to go and with whom?

A Home, with my mother.‖

20. The fact of recording of the above statement and statement of
‗S’ under Section 164 Cr.P.C., was proved by the learned M.M. Ajay
Nagar, who deposed as PW-4, during trial.

21. The record of the deposition of the victim ‗S’ during trial, may
be reproduced, in extenso, thus (along with the translations, into
English, of the questions/responses in vernacular):

―On SA

The victim child is small tender age child aged about 6
years and so his statement is recorded in the Chamber of the
undersigned in camera proceedings. Sh. Salim, father of the
victim child, has been permitted to remain present with the
child as support person. Learned amicus curie Sh. Rajnish
Kumar Antil and learned Additional PP are also present. The
accused is sitting in the Court room itself and he has not been
called inside the Chamber so that the witness does not get
overawed or apprehensive by the presence of the accused.

Since the victim is a small child, he has been provided
some chart books to keep him occupied. He is now playing
comfortably and identifying fruits and vehicles from the
books. In order to ascertain whether the witness is capable of
understanding questions and answering them, some questions
have been put to him.

Q. Aap ka naam kya hai? (―What is your name?‖)

CRL.A. 1444/2013 Page 13 of 51
A. ‗S’

Q. Aap ke papa ka kya naam hai? (―What is your father’s
name?‖)

A. Salim

Q. Aap ki mummy ka kya naam hai? (―What is your
mother’s name?‖)

A. Mummy

Q. Aapke kitne bhai behein hai? (―How many brothers
and sisters do you have?‖)

A. Ek bada bhai and ek bahin hai. (―I have one elder
brother and one sister.‖)

Q. Aap School jate ho? (―Do you go to school?‖)

A. Haa, dusri class me. (―Yes, to second-class.‖)

Q. Aap ke school ka kya naam hhai? (―What is the name
of your school?‖)

A. Nahi pata. (―I don’t know.‖)

Q. School kaise jate ho? (―How do you go to school?‖)

A. Paidal (on foot).

Q. Aap ke school me dost hai? (―Do you have friends in
school?‖)

A. Haa. (―Yes.‖) Altaf, Bitoo, Mithun.

Q. Aap ko khane me kya pasand hai? (―What food do you
like?‖)

A. Sualeen ki goli. (―Sualin tablets.‖)

Q. Sach bolna sahi hai ya juth bolna? (―Is it right to tell
the truth or to tell lies?‖)

CRL.A. 1444/2013 Page 14 of 51
A. Sach bolna. Juth bolne se jail wale pakad lete hai.

(―To tell the truth. If you tell lies, person from the jail
will catch you and take you away.‖)

After being satisfied that the witness is capable of
understanding questions and answering them reasonably,
considering his age, his testimony is recorded in question
answer form as under. However, considering his tender age he
has not been administered oath.

      Q.      Kya hua tha? (―What happened?‖)

A. Bahut din hue the, muje Jabbar ne dard kiya tha.

(―Many days ago, Jabbar caused pain to me.‖)

Q. Aap kahan the? (―Where were you?‖)

A. Main latrine karne gaya tha. (―I had gone to do
latrine.‖)

Q. Aap kahan gaye the? (―Where had you gone?‖)

A. Main ghar ke pass light ke khambe ke pass latrine
karne gaya. (―I had gone near the electric pole near my
house, to do latrine.‖)

Q. Phir kaya hua tha? (―Then what happened?‖)

A. Jabbar mujhe uthake jungle mein le gaya. (―Jabbar
picked me up and took me into the jungle.‖)

Q Phir kya hua? (―What happened thereafter?‖)

A. Maine payjama pahna hua tha, Jabbar ne payjama
utar diya. (―I was wearing pyjama. Jabbar removed my
pyjama.‖)

Q. Phir kya hua? (―What happened thereafter?‖)

A. Phir Jabbar ne kiya tha (―Thereafter Jabbar did‖)
(witness has stood up and touched his anal region with
his hand)

Q. Tumhe kya hua tha? (―What happened to you?‖)

CRL.A. 1444/2013 Page 15 of 51
A. Dard hua tha. (―It caused pain.‖)

Q. Phir kya hua? (―What happened thereafter?‖)

A. Usne 10 rupye diya, biscuit diya or "O-Yes" kurkare
ka packet diya. (―He gave me ₹ 10, a biscuit and a
packet of kurkure.‖)

Q. Phir kay hua? (―What happened thereafter?‖)

A. Phir wo muje ghar la raha tha. (―Thereafter he was
bringing me home.‖)

Q. Phir kya hua? (―What happened thereafter?‖)

A. Meri mummy aa rahi thi, mummy ne dekh liya aur
mummy ko dekhkar wo bhag gaya. (―My mother was
coming, mother saw us, and on seeing mother he ran
away.‖)

Q. Phir kya hua? (―What happened thereafter?‖)

A. Phir hum Jabbar ke ghar gaye the. (―Thereafter we
went to Jabbar's house.‖)

Q. Phir kaya hua? (―What happened thereafter?‖)

A. Phir police wale ko phone kiya. (―Thereafter we
phoned the Police.‖)

Q. Kya Jabbar ko jante ho? (―Do you know Jabbar?‖)

A. Haa. (―Yes.‖)

At this stage, the glass pane of the window in the
chamber has been opened. The window is overlooking the
corridor outside the court room where accused is present in
police custody. The witness has looked through the window at
the accused and states that he is the same boy who had taken
him away in jungle and hurt him from back side.

XXXX By Sh. Rajnish Kumar Antil, Learned amicus
curie for accused.

CRL.A. 1444/2013 Page 16 of 51
Q. Kya apne Jabbar ko pahle bhi dekha tha kabi? (―Have
you seen Jabbar ever earlier?‖)

A. Haa. (―Yes.‖)

Q. Kab dekha tha? (―When did you see him?‖)

A. Wo sharab lekar aya tha. Main latrine karne gaya,

muje uthkar mera muh band kar diya. Main, muh band
karne se pahle chilaya, koi aya nahi. (―He came after
buying liquor. I had gone to do latrine, he picked me
up and covered my mouth. Before he covered my
mouth, I shouted, but no one came.‖)

Q. Tum Jabbar ka naam kaise jante ho? (―How do you
know Jabbar's name?‖)

A. Pahle pahle, wo hamare pados me rahta tha. (―In the
beginning, he used to stay in our neighbourhood.‖)

Q. Jab tum latrine karne gaya the, wahan aur bhi bache
or admi the? (―When you went to do latrine, were any
other children or men present there?‖)

A. Ek Jabbar hi tha. (―Only Jabbar was there.‖)

Q. Waha par light thi? (―Was that light in the area?‖)

A. Bahut sare khambo par light thi. (―There was light on
several poles.‖)

Q. Waha par as-pass ghar hai? (―Were there any houses
in the area?‖)

A. Haa. (―Yes.‖)

Q. Kya apke chilane par koi admi aya tha? (―Did anyone
come when you shouted?‖)

A. Nahi. (―No.‖)

Q. Jab apne mummy ko dekha tha, to tum chilaye the?

(―When you saw your mother, did you shout?‖)

CRL.A. 1444/2013 Page 17 of 51
A. Haa. (―Yes.‖)

Q. Kya waha par koi dukan hai? (―Was there any shop in
the area?‖)

A. Nahi, Jab wo vapas la raha tha, tab maine kaha tha,
pansari ki dukan ke wahan par se chal, usne kaha
nahi. Dusri jagah se le gaya, mummy aa gayi. (―No.
When he was bringing me back, I asked him to go via
the shop of the paan-seller, but he refused. He took me
via another route, mother came there.‖)

Q. Jab app aa rahe the, tab waha par teen admi the?

(―While you were coming were three persons there?‖)

A. Nahi. Sab so gaye the. (―No everyone had gone to
sleep.‖)

Q. Aaj apko mummy aur papa ne bataya hai ki aaj kya
batana hai? (―Today, did your mother or father tell
you what to say?‖)

A. Nahi mummy aur papa ne nahi bataya hai. Main apne
apse bataya hai. (―No, mother and father did not tell
me. I have spoken of my own accord.‖)

RO AC
ASJ(N-W)-01
Rohini/Delhi
10.09.2013‖

Medical Evidence

22. With that, we proceed to the medical evidence available in this
case. ‗S' was examined by the doctors at the Hospital on two
occasions; on 21st March, 2013, on which date his MLC (Ex. PW-
12/A) was prepared and, thereafter, on 1st May, 2013.

CRL.A. 1444/2013 Page 18 of 51

23. PW-12 Dr. Binay Kumar, Sr. Medical Officer in the Hospital
deposed, during trial, that on 21st March, 2013, ‗S' was brought to him
by ASI Bhagna Ram with an alleged history of sodomy, having taken
place at about 10:33 PM on the same day. He testified that, on
inspection, he observed blood stains and mucosal tear over the
perianal region of ‗S' which, on palpation, also indicated perianal
tenderness. He proved his MLC (Ex. PW-12/A), and further deposed
that, after examination, he referred ‗S' for surgical and forensic
opinion, vide an endorsement on the said MLC. To a question put by
the Court, as to whether the findings entered by him on the MLC were
affirmative of sodomy, he answered that the said injuries, as
mentioned by him, on the MLC, were ‗possible by sodomy'. He was
not cross examined, despite grant of opportunity.

24. Dr. Chittaranjan Nayak (PW-15), Sr. Resident, Surgery, in the
Hospital, who examined ‗S', consequent to his reference, to him, by
PW-12 Dr. Binay Kumar, deposed, during trial, that, on examining ‗S'
on 21st March 2013, he found the following injuries:-

― On local examination of anal region, there was blood
stain.

2. Tenderness ++ in the perianal region.

3. Mucosal tear in 6 O'clock, 7 O'clock and 12 O'clock.

4. Per rectal examination :- Anal spasam ++ (present).‖

He further testified that ‗S' was admitted in the Hospital for
treatment, and was discharged on 22nd March, 2013. He also
confirmed having entered the above observations on the body of MLC
of ‗S' (Ex. PW-12/A). To a question, by the Court, as to whether the
observations entered by him, on the MLC of ‗S', were affirmative of

CRL.A. 1444/2013 Page 19 of 51
sodomy, he responded that ―they may be‖. On his being further
queried as to whether similar injuries could result from any other
condition, Dr. Nayak opined that such injuries were possible only if
the patient fell directly on a sharp object, but that the probability, in
cases where such injuries were sustained, was always of sodomy
having taken place.

25. As already noted hereinabove, ‗S' was again examined, in the
Hospital, on 1st May, 2013. Dr. Manoj Dhingra (PW-13), who
examined ‗S' on the said occasion, deposed, during trial, that, he did
not find any injury mark on ‗S' but that there was pain and tenderness
in the anal region. He also confirmed having given his opinion, to the
said effect, on the MLC (Ex.PW-12/A). He confirmed that as the
injury had been sustained by ‗S' on 21st March, 2013, his examination,
of ‗S' had taken place about a month and a half thereafter. He, too,
when questioned as to whether the pain and tenderness, present in the
anal region of ‗S' was affirmative of sodomy, responded that ―they
may be‖. In response to another question, he clarified that it was
possible that even after a month and half following an incident of
sodomy pain and tenderness in the anal region of the patient persisted.
He confirmed that the pain and tenderness could not be attributed to
constipation as it was present in and around the entire anal region.

26. The MLC of ‗S' (Ex. PW-12/A) as prepared by PW-12 Dr.
Binay Kumar read thus:-

―Informant: Father (Saleem)
A/H/O unnatural sexual Act (Sodomy) at around 10.30 PM on
21/03/2013 as told by father of pt.

CRL.A. 1444/2013 Page 20 of 51

No H/o /vomiting/ ENT Bleeding
O/s pt. in conscious oriented
Pulse 82/100
B.P. 20/WS
Chest -

      EVS -         - Cl.WNL
CNS -
PIA Bold B (+)

L/E Inspection: Blood stain over perianal region and
mucosal tear in perianal region.

Palpation : perianal tenderness present

Adv
Preservaiton of full pant (as patient not wearing
undergarment)
Preservation of anal and perianal swab.

A/H/O Unnatural Sexual Act
(Anal penetration by penis)
At 10.30 IM on 21/03/2013
Pt. examined on 21/3/2013
O/E pt. conscious oriented
No H/O LOC/Cavil
No h/o Clinc cstpal bleeding P/R
No H/o any recent injury in and around perianal region
Blood stained
Tender in perianal region
Mucosal tear in 6 O'clock, 7 O'clock and 12 O'clock.
PIR - Anal spasam

1/5/2013
After examination there is no injury mark present but there is
pain, tenderness present anal region.

- No bleeding

- Preservation of anal perianal swab is already done when
MLC has been made.

CRL.A. 1444/2013 Page 21 of 51

27. None of the above witnesses i.e. Dr. Binay Kumar (PW-12), Dr.
Manoj Dhingra, (PW-18) and Dr. Chittaranjan Nayak (PW-15) was
cross examined, despite grant of opportunity.

28. The appellant Jabbar was also medically examined, on 22 nd
March, 2013, whereupon his MLC (Ex. PW-9/A) was prepared by Dr.
Niranjan under the supervision of Dr. Bina (PW-9), CMO in the
Hospital. Dr. Bina confirmed, during trial, the fact of examination, of
‗S', by Dr. Niranjan, who was working under her supervision. She
confirmed that, on examination of the appellant, no fresh external
injuries were seen and there was nothing to suggest that the appellant
was not capable of performing sexual intercourse. She proved the
MLC (Ex. PW-9/A) prepared by Dr. Niranjan, and identified his
handwriting and signatures, stating that she was familiar therewith.
She was not cross-examined, despite grant of opportunity. The
relevant portion of the MLC of the appellant Jabbar may be
reproduced thus:-

O/E: Pt. is stable conscious oriented

BP- 122/80

PR -86

CNS
CVS
P/A NAD clinically
Chest

L/E: No Fresh External injuries are seen

- Pelvis, testis, and scrotum are (N) adult size.

CRL.A. 1444/2013 Page 22 of 51

- Secondary ―sexual characters are well developed‖

- No signs of venereal disease

From the above examination there is nothing to suggest that
this person is not capable of performing sexual intercourse.

Statement of appellant under Section 313 Cr.P.C.

29. The statement of the appellant was recorded under Section 313
Cr.P.C., by the learned ASJ on 25th September, 2013. As is usual in
such cases, the statement reads as an omnibus denial of all allegations
and imputations put to him and professes complete ignorance,
regarding ‗S' having ever been sodomised or taken to the Hospital and
treated therefor. The appellant insisted that he was innocent and that
the prosecution witnesses had falsely deposed against him as they
were interested witnesses. He alleged that the case against him was
false and fabricated and stated that he did not wish to lead any defence
evidence.

The Impugned Judgement

30. As has already been noted hereinabove, consequent to leading
of above evidence, the learned ASJ proceeded to hear the parties and
pronounce the impugned judgment, thereafter, on 26th March, 2013.

31. Regarding the recording of the evidence of ‗S', during trial, the
learned ASJ has noted, in the impugned judgment, that in order for ‗S'
to identify the appellant, the glass pane of the window in the chamber
attached to the Court room, was opened. She has observed that ‗S'
CRL.A. 1444/2013 Page 23 of 51
identified that appellant by pointing through the window and stated
that the appellant was the boy who had taken him to the jungle and
sodomised him. She has observed, that, from the testimony of the
appellant, it was seen that he had not only identified the accused but
had also elaborated the manner in which the offence of penetrative
sexual assault was committed upon him by the appellant.

32. The learned ASJ, even while holding that the testimony of ‗S'
itself went to prove the commission, by the appellant, of the said
offence of aggravated penetrative sexual assault on ‗S', has also
observed that the testimonies of ‗S', PW-3 Noor Jahan Begum and
PW-6 Mohd. Saleem were consistent and trustworthy in the narration
of the incident in which ‗S', who had gone to ease himself at about
10-10:30 P.M. at night outside his house, was taken to the
jungle/fields nearby where penetrative sexual assault was committed,
on him, by the appellant, by ―penetrating his penis in the anus of the
child ‗S' ‖. She has relied on Surjan and Others vs State of M.P.,
AIR 2002 SC 476 and State of Maharashtra vs Chandraprakash
Kewal Chand Jain, (1990) 1 SCC 550 as authorities on the point that
conviction could be based on the evidence of the solitary witness of
sexual assault, where the evidence inspired judicial confidence and
was reliable in nature. She has also noticed, in this context, the
presumption of guilt contained in Section 29 of the POCSO Act and
the fact that there was no reason why a six year old such as the
appellant would implicate an innocent person for having committed an
offence against him. She has relied on the judgment in State of U.P. vs
Krishan Master, AIR 2010 SC 3071, for the proposition that there

CRL.A. 1444/2013 Page 24 of 51
was no presumption that a child of tender age would not be able to
recapitulate facts, and that seeking corroboration for the evidence of
such a child would be unjustified. The learned ASJ has further
observed that minor contradictions could not erode otherwise reliable
testimonies of their evidentiary value. She has also relied on the
medical evidence available on record, which revealed blood-stains and
mucosal tear in the perianal region of ‗S' along with perianal
tenderness. She noted that, even a month and a half after the incident,
pain and tenderness in the anal region continued to persist as observed
by Dr. Manoj Dhingra (PW-13). She has also relied on the responses
of Dr. Binay Kumar (PW-12) and Dr. Manoj Dhingra (PW-13), to
questions posed to them by the Court, in which they opined that the
injury in the perianal region of ‗S' could possibly be due to sodomy.
In these circumstances, the learned ASJ has proceeded to hold the
charge of sodomy having been committed by the appellant and,
thereby, the charge of having committed the offence of ―aggravated
penetrative sexual assault‖, punishable under Section 6 of the POCSO
Act, proved against the appellant beyond reasonable doubt. She, has,
therefore, proceeded to convict the appellant under Section 6 of the
POCSO Act.

33. Vide subsequent order dated 28th September, 2013, the learned
ASJ observed that the act of sodomy perpetrated by the appellant on
‗S' was cruel in the extreme, the cruelty whereof stood documented by
the fact that even a month and a half after the commission of the said
act, tenderness persisted in the anal region of ‗S'. She has, thereby,
held the appellant to have insulated himself, by his own act, from any

CRL.A. 1444/2013 Page 25 of 51
claim to leniency. She has, therefore, sentenced him under Section 6
of the POCSO Act to suffer rigorous imprisonment for life, with a fine
of ₹ 5000/- and default rigorous imprisonment for six months as noted
at the commencement of this judgment.

Submissions before this Court

34. Arguing for the appellant, Mr. B.S. Chowdhary submitted that
the entire evidence, even if holistically viewed, was insufficient to
confirm, against his client, the charge of committing sodomy on ‗S'.
He relied on the fact that there were discrepancies and inconsistencies,
inter se, between the statements of the mother and father of the victim
‗S', i.e. PW-3 Noor Bano Begum and PW-6 Mohd Saleem. He also
relied on the fact that the MLC of the appellant (Ex.PW-9A)
specifically found no fresh injury, on his person. He emphasised the
fact that, in his deposition, during trial, the only complaint, of ‗S' was
of pain in the anal region, and not of sodomy. He submitted that the
area where the crime was alleged to have taken place was a well lit
area, as was admitted by ‗S' himself, in response to a query, put to
him in cross-examination, as to whether there was light in the area.
Mr. B.S. Chowdhary submitted that it was highly improbable that
such a crime would take place without any objection by any public
person. Finally, and without prejudice to his other submissions, Mr.
B.S. Chowdhary complained against the sentence awarded to his
client by the learned ASJ, submitting that it was excessive, and prayed
for the reduction thereof.

CRL.A. 1444/2013 Page 26 of 51

35. Per contra, Ms. Aashaa Tiwari, learned APP, submitted that, in
view of Section 29 of the POCSO act, read with the testimony of ‗S',
as also the medical evidence available in the case, there was no scope,
whatsoever, for interference with the decision of the learned ASJ,
either in the matter of conviction or in the matter of sentence awarded
therefor. She, therefore, prayed that the appeal be dismissed.

Analysis

Age of the victim ‗S'

36. Inasmuch as the appellant has been convicted, by the learned
ASJ, under Section 6 of the POCSO Act, it is essential, before
proceeding further, to deal with the aspect of the age of ‗S'. The
POCSO Act defines ―child‖, in clause (d) of Section 2 (1), as ―any
person below the age of eighteen years‖. The manner in which the age
of a person is to be determined, in order to ascertain whether she, or
he, is a juvenile, now stands codified in Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 (hereinafter referred to
as ―the JJ Rules‖), which was approvingly relied upon, by the
Supreme Court, in Jarnail Singh vs State of Haryana, (2013) 7 SCC
263, which has been followed, by this Court, in State vs Charan
Singh, MANU/DE/1263/2017 and State vs Mohan,
MANU/DE/1766/2017. Paras 22 and 23 of the report in the said case
read thus:

―22. On the issue of determination of age of a minor, one
only needs to make a reference to Rule 12 of the Juvenile
Justice (Care and Protection of Children) Rules, 2007

CRL.A. 1444/2013 Page 27 of 51
(hereinafter referred to as "the 2007 Rules"). The aforestated
2007 Rules have been framed under Section 68(1) of the
Juvenile Justice (Care and Protection of Children) Act, 2000.
Rule 12 referred to hereinabove reads as under:

―12. Procedure to be followed in determination of
age.-- (1) In every case concerning a child or a
juvenile in conflict with law, the court or the Board or
as the case may be, the Committee referred to in Rule
19 of these Rules shall determine the age of such
juvenile or child or a juvenile in conflict with law
within a period of thirty days from the date of making
of the application for that purpose.

(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of
the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis
of physical appearance or documents, if available, and
send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall
be conducted by the court or the Board or, as the case
may be, the Committee by seeking evidence by
obtaining--

(a)(i) the matriculation or equivalent certificates, if
available; and in the absence whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;

(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the
margin of one year, and, while passing orders in such
case shall, after taking into consideration such

CRL.A. 1444/2013 Page 28 of 51
evidence as may be available, or the medical opinion,
as the case may be, record a finding in respect of his
age and either of the evidence specified in any of the
clauses (a)(i), (ii), (iii) or in the absence whereof,
clause (b) shall be the conclusive proof of the age as
regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile
in conflict with law is found to be below 18 years on
the date of offence, on the basis of any of the
conclusive proof specified in sub-rule (3), the court or
the Board or as the case may be the Committee shall in
writing pass an order stating the age and declaring the
status of juvenility or otherwise, for the purpose of the
Act and these Rules and a copy of the order shall be
given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of Section 7-
A, Section 64 of the Act and these Rules, no further
inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any
other documentary proof referred to in sub-rule (3) of
this Rule.

(6) The provisions contained in this Rule shall also
apply to those disposed of cases, where the status of
juvenility has not been determined in accordance with
the provisions contained in sub-rule (3) and the Act,
requiring dispensation of the sentence under the Act
for passing appropriate order in the interest of the
juvenile in conflict with law.‖

23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are of the
view that the aforesaid statutory provision should be the basis
for determining age, even of a child who is a victim of crime.
For, in our view, there is hardly any difference insofar as the
issue of minority is concerned, between a child in conflict
with law, and a child who is a victim of crime. Therefore, in
our considered opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to determine the age of the
prosecutrix VW, PW 6. The manner of determining age
conclusively has been expressed in sub-rule (3) of Rule 12

CRL.A. 1444/2013 Page 29 of 51
extracted above. Under the aforesaid provision, the age of a
child is ascertained by adopting the first available basis out of
a number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is expressed in
a preceding clause, it has overriding effect over an option
expressed in a subsequent clause. The highest rated option
available would conclusively determine the age of a minor. In
the scheme of Rule 12(3), matriculation (or equivalent)
certificate of the child concerned is the highest rated option.
In case, the said certificate is available, no other evidence can
be relied upon. Only in the absence of the said certificate,
Rule 12(3) envisages consideration of the date of birth
entered in the school first attended by the child. In case such
an entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and conclusive,
and no other material is to be relied upon. Only in the
absence of such entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or a municipal
authority or a panchayat. Yet again, if such a certificate is
available, then no other material whatsoever is to be taken
into consideration for determining the age of the child
concerned, as the said certificate would conclusively
determine the age of the child. It is only in the absence of any
of the aforesaid, that Rule 12(3) postulates the determination
of age of the child concerned, on the basis of medical
opinion.‖
(Emphasis supplied)

37. Rule 12 of the JJ Rules, therefore, assigns, in descending order
of importance, primacy, as proof of age, to (i) the matriculation, or
equivalent, certificate, (ii) the date of birth as recorded by the school
first attended, and (iii) the certificate of birth, given by a Corporation,
municipal authority, or panchayat. No specified format, for these
certificates, is prescribed in the said Rules. The Aadhar Card, being a
document issued by the Government of India is, in our view,
equivalent - in fact, superior - to a certificate given by a Corporation,
municipal authority, or panchayat. The entry, in the said Aadhar card
(Ex. PW-11/H), of the age of ‗S' as 6 years, must be taken, therefore,
CRL.A. 1444/2013 Page 30 of 51
as proof of the fact that, on the date of issuance of the said card (2 nd
March, 2013), ‗S' was, in fact, 6 years of age. We may mention, here,
that a Division Bench of the High Court of Madras, in Panneerselvam
vs. Inspector of Police, MANU/TN/1054/2014, opined that the
Aadhar Card could not satisfy the requisites of Rule 7 of the JJ Rules,
as proof of age of the holder thereof, as it did not mention the date of
birth, and mentioned, instead, the age in years. This, in our view, is a
distinction without a difference. After all, the determination of the
date of birth is only for the sake of ascertaining the age of the person
concerned. That apart, Rule 7 (3) of the JJ Rules states that ―the age
determination inquiry shall be conducted by the court or the Board or,
as the case may be, the Committee by seeking evidence by obtaining‖
one of the documents enlisted thereunder. As such, the document is
only to be referred to, by way of evidence for ascertaining the age of
the person concerned, and the Rule does not require, either expressly
or by necessary implication, that the date of birth of the person should
figure on the body of the said document. Indeed, when the document
mentions the age itself, no better proof could be sought, for
ascertaining the age of the person concerned. We, therefore,
regretfully express our inability to subscribe to the view adopted by
the High Court of Madras in Paneerselvam (supra).

38. Besides, the learned ASJ has also opined that, having seen ‗S'
in court, it was obvious that he was about 6 years of age. Due respect
has to be accorded to this view. After all, the issue was not concerning
a boy or girl of around fifteen to eighteen years of age, where the age
could not be gauged by a mere visual appraisal of the person

CRL.A. 1444/2013 Page 31 of 51
concerned. The POCSO Act applies to every person below 18 years of
age. If, on seeing ‗S' in court, the learned ASJ felt that he was, indeed,
around 6 years of age, it can hardly be sought to be contended that she
erred in applying, to the present case, the POCSO Act. By no stretch
of imagination can it be sought to be contended that a boy, who, at a
bare glance, appeared to be around 6 years of age - as contended by
him and his parents, and as borne out by the Aadhar Card issued in his
name - may have actually been over the age of eighteen.

39. It is obvious, therefore, that ‗S' was a ―child‖, within the
meaning of clause (d) of Section 2(1) of the POCSO Act and that,
therefore, the learned ASJ was justified in so holding.

Applicable interpretative principles

40. The Supreme Court, in a recent decision in Alakh Alok
Srivsatava vs U.O.I., 2018 SCC Online 478, after extracting certain
paragraphs of the Statement of Objects and Reasons, and the Preamble
to the POCSO Act, examined the raison d' etre behind its enactment,
thus:

―12. In Eera through Dr. Manjula Krippendorf v. State
(NCT of Delhi), (2017) 15 SCC 133 one of us (Dipak Misra,
J), dwelling upon the purpose of the Statement of Objects and
Reasons and the Preamble of the POCSO Act, observed:--

―20. ... the very purpose of bringing a legislation of
the present nature is to protect the children from the
sexual assault, harassment and exploitation, and to
secure the best interest of the child. On an avid and
diligent discernment of the preamble, it is manifest that
it recognizes the necessity of the right to privacy and

CRL.A. 1444/2013 Page 32 of 51
confidentiality of a child to be protected and respected
by every person by all means and through all stages of
a judicial process involving the child. Best interest and
well being are regarded as being of paramount
importance at every stage to ensure the healthy
physical, emotional, intellectual and social
development of the child. There is also a stipulation
that sexual exploitation and sexual abuse are heinous
offences and need to be effectively addressed. The
statement of objects and reasons provides regard being
had to the constitutional mandate, to direct its policy
towards securing that the tender age of children is not
abused and their childhood is protected against
exploitation and they are given facilities to develop in
a healthy manner and in conditions of freedom and
dignity. There is also a mention which is quite
significant that interest of the child, both as a victim as
well as a witness, needs to be protected. The stress is
on providing child friendly procedure. Dignity of the
child has been laid immense emphasis in the scheme of
legislation. Protection and interest occupy the seminal
place in the text of the POCSO Act.+‖

13. At the very outset, it has to be stated with authority
that the POCSO Act is a gender neutral legislation. This
Act has been divided into various Chapters and Parts therein.
Chapter II of the Act titled ―Sexual Offences Against
Children‖ is segregated into five parts. Part A of the said
Chapter contains two Sections, namely Section 3 and Section

4. Section 3 defines the offence of ―Penetrative Sexual
Assault‖ whereas Section 4 lays down the punishment for the
said offence. Likewise, Part B of the said Chapter titled
―Aggravated Penetrative Sexual Assault and Punishment
therefor‖ contains two sections, namely Section 5 and Section

6. The various sub-sections of Section 5 copiously deal with
various situations, circumstances and categories of persons
where the offence of penetrative sexual assault would take the
character of the offence of aggravated penetrative sexual
assault. Section 5(k), in particular, while laying emphasis on
the mental stability of a child stipulates that where an
offender commits penetrative sexual assault on a child, by
taking advantage of the child's mental or physical disability, it
shall amount to an offence of aggravated penetrative sexual
assault.

CRL.A. 1444/2013 Page 33 of 51

14. That apart, Section 28 which occurs in Chapter VII
titled ―Special Courts‖ requires for designation of a Court of
Session in each district as Special Court specifically, to try
offences under the POCSO Act for ensuring a speedy trial
which is one of the fundamental objectives of the Act.
Further, Section 32 stipulates that State Government shall
appoint a Special Public Prosecutor for every Special court,
so designated under Section 28, for conducting cases only
under the POCSO Act.

15. Chapter VIII of the Act deals with the procedure and
powers of these Special Courts and the procedure for
recording evidence of the child victim. Section 33 falling
under Chapter VIII provides for various safeguards at the trial
stage and ensures that various manifold interests of the child
are protected. We think it appropriate to reproduce the
relevant part of Section 33:--

―33. Procedure and powers of Special Court - (1)
A Special Court may take cognizance of any offence,
without the accused being committed to it for trial,
upon receiving a complaint of facts which constitute
such offence, or upon a police report of such facts.

(2) The Special Public Prosecutor, or as the case
may be, the counsel appearing for the accused shall,
while recording the examination-in-chief, cross-
examination or re-examination of the child,
communicate the questions to be put to the child to the
Special Court which shall in turn put those questions to
the child.

(3) The Special Court may, if it considers
necessary, permit frequent breaks for the child during
the trial.

(4) The Special Court shall create a child-friendly
atmosphere by allowing a family member, a guardian,
a friend or a relative, in whom the child has trust or
confidence, to be present in the court.

(5) The Special Court shall ensure that the child is
not called repeatedly to testify in the court.

CRL.A. 1444/2013 Page 34 of 51

(6) The Special Court not permit aggressive
questioning or character assassination of the child and
ensure that dignity of the child is maintained at all
times during the trial.

(7) The Special Court shall ensure that the identity
of the child is not disclosed at any time during the
course of investigation or trial:

Provided that for reasons to be recorded in writing, the
Special Court may permit such disclosure, if in its
opinion such disclosure is in the interest of the child.

Explanation. - For the purposes of this sub-section, the
identity of the child shall include the identity of the
child's family, school, relatives, neighbourhood or any
other information by which the identity of the child
may be revealed.‖

17. The aforesaid provisions make it clear as crystal that
the legislature has commanded the State to take various steps
at many levels so that the child is protected and the trial is
appropriately conducted.

18. Section 37 provides that the Special Court shall try
cases in camera and in the presence of the parents of the child
or any other person in whom the child has trust or confidence;
Section 36 casts a duty on the Special Court to ensure that the
child is not exposed in any way to the accused at the time of
recording of the evidence while at the same time ensuring that
the accused is in a position to hear the statement of the child
and communicate with his advocate. The objective of the
POCSO Act is to protect the child from many an aspect so
that he/she does not feel a sense of discomfort or fear or is
reminded of the horrified experience and further there has to
be a child friendly atmosphere.

19. Speaking about the child, a three-Judge Bench in M.C.
Mehta vs State of T.N, (1996) 6 SCC 756, opined that:--

―... ―child is the father of man‖. To enable fathering of
a valiant and vibrant man, the child must be groomed
well in the formative years of his life. He must receive

CRL.A. 1444/2013 Page 35 of 51
education, acquire knowledge of man and materials
and blossom in such an atmosphere that on reaching
age, he is found to be a man with a mission, a man
who matters so far as the society is concerned.‖

20. In Supreme Court Women Lawyers Association
(SCWLA) v. Union of India, (2016) 3 SCC 680, this Court
has observed:--

―In the case at hand, we are concerned with the rape
committed on a girl child. As has been urged before us
that such crimes are rampant for unfathomable reasons
and it is the obligation of the law and law-makers to
cultivate respect for the children and especially the girl
children who are treated with such barbarity and
savageness as indicated earlier. The learned Senior
Counsel appearing for the petitioner has emphasised
on the obtaining horrendous and repulsive situation.‖

21. Alice Miller, a Swiss psychologist, speaking about
child abuse has said:--

―Child abuse damages a person for life and that
damage is in no way diminished by the ignorance of
the perpetrator. It is only with the uncovering of the
complete truth as it affects all those involved that a
genuinely viable solution can be found to the dangers
of child abuse.‖

22. Keeping in view the protection of the children and the
statutory scheme conceived under the POCSO Act, it is
necessary to issue certain directions so that the legislative
intent and the purpose are actually fructified at the ground
level and it becomes possible to bridge the gap between the
legislation remaining a mere parchment or blueprint of social
change and its practice or implementation in true essence and
spirit is achieved.‖

41. While it is true that the above decision deals more with the
procedural, rather than the substantive, aspects of the POCSO Act, we
have, nevertheless, referred to it as it emphasises the child-centric

CRL.A. 1444/2013 Page 36 of 51
character of the legislation, an aspect which is more than amply
underscored by the Statement of Objects and Reasons to the said Act,
already extracted hereinabove in extenso.

42. The character and lustre of gold metamorphoses over a period
of time, and the ―golden rule‖ of statutory interpretation, today, is not
what it was a decade ago. A. K. Sikri, J., in his concurring opinion in
Shailesh Dhairyawan vs Mohan Balkrishna Lulla, (2016) 3 SCC
619, explained the position thus:

―31. The aforesaid two reasons given by me, in addition to
the reasons already indicated in the judgment of my learned
Brother, would clearly demonstrate that the provisions of
Section 15(2) of the Act require purposive interpretation so
that the aforesaid objective/purpose of such a provision is
achieved thereby. The principle of ―purposive interpretation‖
or ―purposive construction‖ is based on the understanding
that the court is supposed to attach that meaning to the
provisions which serve the ―purpose‖ behind such a
provision. The basic approach is to ascertain what is it
designed to accomplish? To put it otherwise, by interpretative
process the court is supposed to realise the goal that the legal
text is designed to realise. As Aharon Barak puts it:

―Purposive interpretation is based on three
components: language, purpose, and discretion.
Language shapes the range of semantic possibilities
within which the interpreter acts as a linguist. Once the
interpreter defines the range, he or she chooses the
legal meaning of the text from among the (express or
implied) semantic possibilities. The semantic
component thus sets the limits of interpretation by
restricting the interpreter to a legal meaning that the
text can bear in its (public or private) language.‖
[Aharon Barak, Purposive Interpretation in
Law (Princeton University Press, 2005).]

32. Of the aforesaid three components, namely, language,
purpose and discretion ―of the court‖, insofar as purposive

CRL.A. 1444/2013 Page 37 of 51
component is concerned, this is the ratio juris, the purpose at
the core of the text. This purpose is the values, goals,
interests, policies and aims that the text is designed to
actualise. It is the function that the text is designed to fulfil.

33. We may also emphasise that the statutory
interpretation of a provision is never static but is always
dynamic. Though the literal rule of interpretation, till some
time ago, was treated as the "golden rule", it is now the
doctrine of purposive interpretation which is predominant,
particularly in those cases where literal interpretation may
not serve the purpose or may lead to absurdity. If it brings
about an end which is at variance with the purpose of statute,
that cannot be countenanced. Not only legal process thinkers
such as Hart and Sacks rejected intentionalism as a grand
strategy for statutory interpretation, and in its place they
offered purposivism, this principle is now widely applied by
the courts not only in this country but in many other legal
systems as well.‖
(Emphasis supplied)

43. Richa Mishra vs State of Chhatisgarh, (2016) 4 SCC 179,
reiterates the principle, thus:

―30. In order to gather the intention of the lawmaker, the
principle of "purposive interpretation" is now widely
applied. This has been explained in Shailesh
Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC 619
in the following words: (SCC pp. 641-42, paras 31-33)

―31. The aforesaid two reasons given by me, in
addition to the reasons already indicated in the
judgment of my learned Brother, would clearly
demonstrate that provisions of Section 15(2) of the Act
require purposive interpretation so that the aforesaid
objective/purpose of such a provision is achieved
thereby. The principle of "purposive interpretation" or
"purposive construction" is based on the
understanding that the court is supposed to attach that
meaning to the provisions which serve the "purpose"
behind such a provision. The basic approach is to
ascertain what is it designed to accomplish? To put it
otherwise, by interpretative process the court is

CRL.A. 1444/2013 Page 38 of 51
supposed to realise the goal that the legal text is
designed to realise. As Aharon Barak puts it:

‗Purposive interpretation is based on three
components: language, purpose, and discretion.
Language shapes the range of semantic
possibilities within which the interpreter acts as
a linguist. Once the interpreter defines the
range, he or she chooses the legal meaning of
the text from among the (express or implied)
semantic possibilities. The semantic component
thus sets the limits of interpretation by
restricting the interpreter to a legal meaning that
the text can bear in its (public or private)
language.' [Aharon Barak, Purposive
Interpretation in Law (Princeton University
Press, 2005).]

32. Of the aforesaid three components, namely,
language, purpose and discretion ―of the Court‖,
insofar as purposive component is concerned, this is
the ratio juris, the purpose at the core of the text. This
purpose is the values, goals, interests, policies and
aims that the text is designed to actualise. It is the
function that the text is designed to fulfil.

33. We may also emphasise that the statutory
interpretation of a provision is never static but is
always dynamic. Though literal rule of interpretation,
till some time ago, was treated as the "golden rule", it
is now the doctrine of purposive interpretation which
is predominant, particularly in those cases where
literal interpretation may not serve the purpose or may
lead to absurdity. If it brings about an end which is at
variance with the purpose of statute, that cannot be
countenanced. Not only legal process thinkers such as
Hart and Sacks rejected intentionalism as a grand
strategy for statutory interpretation, and in its place
they offered purposivism, this principle is now widely
applied by the courts not only in this country but in
many other legal systems as well.‖
(Emphasis Supplied)

CRL.A. 1444/2013 Page 39 of 51

44. Applying the principle of purposive construction, it is essential,
therefore, that the provisions of the POCSO Act are interpreted in a
child-centric manner, the avowed intention and purpose of the statute
being prevention of sexual offences against children. While doing so,
however, the Court is, needless to say, to be ever-mindful of the fact
that, in its zeal to secure justice to child-victims of sexual oppression,
the axe never falls on the neck of the innocent.

45. Also, as noticed in Alakh Alok Srivsatava (supra), the POCSO
Act is gender-neutral. It does not, therefore, discriminate or
distinguish between a boy and a girl, as victims of sexual offences.
The jurisprudence that has developed, with respect to the testimonies
of girl-victims, as witnesses would, therefore, apply, so far as the
POCSO Act is concerned, mutatis mutandis to boy-victims.

Statement of the child-victim

46. In our recent decision, dated 24th May, 2018 in Sanjay Kumar
Valmiki vs State [Crl Appeal 773/2015], we have, on the basis of
earlier judicial pronouncements, of the Supreme Court in Yogesh
Singh vs Mahabeer Singh, (2017) 11 SCC 195, Satish vs State of
Haryana, (2018) 11 SCC 330 and State of Madhya Pradesh vs
Ramesh, (2011) 4 SCC 786, and of this Court in Latif vs State, 2018
SCC Online Del 8832, culled out the following principles, regarding
the treatment of the evidence of child witnesses, and the value to be
attached thereto:

CRL.A. 1444/2013 Page 40 of 51

(i) There is no absolute principle, to the effect that the
evidence of child witnesses cannot inspire confidence, or be
relied upon.

(ii) Section 118 of the Indian Evidence Act, 1872 discounts
the competence, of persons of tender age, to testify, only where
they are prevented from understanding the questions put to
them, or from giving rational answers to those questions, on
account of their age.

(iii) If, therefore, the child witness is found competent to
depose to the facts, and reliable, his evidence can be relied
upon and can constitute the basis of conviction.

(iv) The Court has to ascertain, for this purpose, whether (a)
the witness is able to understand the questions put to him and
give rational answers thereto, (b) the demeanour of the witness
is similar to that of any other competent witness, (c) the witness
possesses sufficient intelligence and comprehension, to depose,

(d) the witness was not tutored, (e) the witness is in a position to
discern between the right and wrong, truth and untruth, and (f)
the witness fully understands the implications of what he says,
as well as the sanctity that would attach to the evidence being
given by him.

(v) The presumption is that every witness is competent to
depose, unless the court considers that he is prevented from
doing so, for one of the reasons set out under Section 118 of the
Indian Evidence Act, 1987. It is, therefore, desirable that judges
and Magistrates should always record their positive opinion that
the child understands the duty of speaking the truth, as,

CRL.A. 1444/2013 Page 41 of 51
otherwise, the credibility of the witness would be seriously
affected, and may become liable to rejection altogether.

(vi) Inasmuch as the Trial Court would have the child before
it, and would be in a position to accurately assess the
competence of the child to depose, the subjective decision of the
Trial Court, in this regard, deserves to be accorded due respect.
The appellate court would interfere, therewith, only where the
record indicates, unambiguously, that the child was not
competent to depose as a witness, or that his deposition was
tutored. Twin, and mutually opposing, considerations, have to
be borne in mind, while ascertaining the competency of a child
witness to justify. On the one hand, the evidence of the child
witness has to be assessed with caution and circumspection,
given the fact that children, especially those of tender years, are
open to influence and could possibly be tutored. On the other
hand, credibility is attached, to the evidence of a competent
child witness, as children, classically, are assumed to bear no
ill-will and malice against anyone, and it is, therefore, much
more likely that their evidence would be unbiased and
uninfluenced by any extraneous considerations.

(vii) It is always prudent to search for corroborative evidence,
where conviction is sought to be based, to a greater or lesser
extent, on the evidence of a child witness. The availability of
any such corroborative evidence would lend additional
credibility to the testimony of the witness.

CRL.A. 1444/2013 Page 42 of 51

47. Applying the above tests, we find no reason to discredit or
disbelieve the testimony of ‗S', which was consistent, in all material
particulars, as recorded under Section 164 of the Cr.P.C. on 25th
March, 2013 and, thereafter, during trial on 10th September, 2013. The
learned ASJ satisfied herself, regarding the credibility and competence
of ‗S' to testify, by putting leading questions to him, and eliciting
answers thereto. As has already been noted herein above, the position,
in law, is that the Trial Court is the best authority to arrive at an
impression regarding the competence of the child witness to testify,
and, unless there is an obvious reason to feel that such an impression
has been arrived at, without any valid justification, this Court would
be loath to interfere therewith. Nevertheless, we have perused the
preparatory questions, put by the learned ASJ who recorded the
statement of ‗S', under Section 164 of the Cr.P.C., and have also gone
through Ex. PW-4/C, which sets out the steps taken and precautions
observed before recording the said statement, and we are satisfied that
the learned ASJ exercised all care and caution to assess and ascertain
the competence of ‗S', to testify, before recording his statement.
Equally, we have gone through the questions put by the learned ASJ
who, later, recorded the statement of ‗S' during trial, and find that all
necessary precautions were taken by the said learned ASJ as well,
before recording the testimony of ‗S'. We have also gone through the
statements of ‗S', as recorded under Section 164 of the Cr.P.C. and,
thereafter, during trial, and find that they are coherent, confident and
detailed, and do not disclose any hesitation, or prevarication, on the
part of ‗S', at any stage. It is also significant to note, in this regard,
that, in his cross-examination, ‗S' specifically denied the suggestion,

CRL.A. 1444/2013 Page 43 of 51
put to him, that he had been tutored, either by the Police or by his
parents, before giving the said statements, and asserted, categorically,
that he was giving his statements of his own accord.

48. We are satisfied, therefore, that ‗S' was a competent and
credible witness, and that, being the victim, his statement, if it
inculpated the appellant, could legitimately constitute the sole basis
for his conviction.

49. Having gone through the depositions of ‗S', under Section 164
of the Cr.P.C. and, thereafter, during trial, we find that they allege,
quite categorically, that the appellant had sodomised him. The
suggestion, to the contrary, by Mr. B. S. Chowdhary, during
arguments before us, that ‗S', in his statement during trial, only
alleged that the appellant had caused pain to him, deserves to be
rejected outright. A reading of the said deposition makes it clear that
‗S' asserted, unequivocally, that, when he had gone to ease himself,
the appellant picked him up, carried him towards the jungle, removed
his pyjama, and assaulted him in his anal region. The reference to pain
having resulted therefrom was only to indicate the trauma suffered by
him as a consequence of the assault committed by the appellant. It is
clear, on the face of it, that ‗S', in his depositions, categorically held
the appellant liable for having sodomised him in the fields, where he
had gone to ease himself at night.

50. The depositions of ‗S' stand corroborated by the testimonies,
during trial, of his parents, Noor Bano Begum (PW-3) and Mohd

CRL.A. 1444/2013 Page 44 of 51
Saleem (PW-6), who deposed, consistently, that (i) about six months
prior to the recording of their statements, i.e. around March, 2013, at
about 10.30 p.m, Noor Jahan Begum saw ‗S' returning from the fields,
where he had gone to ease himself, (ii) he was accompanied by the
appellant, who fled on seeing her, (iii) ‗S' was crying, (iv) her
husband Mohd. Saleem also reached the spot and they brought ‗S'
home with them, (v) on enquiry, from him, ‗S' revealed that the
appellant had taken him towards the jungle and sodomised him, (vi)
Mohd. Saleem, thereupon contacted the P.C.R. Van, which arrived
and took them to the Hospital, where the medical examination of ‗S'
was conducted, (vii) ‗S' remained in the Hospital for two days and,
consequent to his discharge on 22nd March, 2013 at 3.00 p.m, was
brought back home, (viii) at 6.00 p.m, on the same day, the appellant
was apprehended from Begumpur Chowk and arrested vide Arrest
Memo Ex.PW-6/D. It is true that, in her deposition, Noor Jahan
Begum (PW-3) initially said that, after returning home with their son,
on 20th March, 2013, they had proceeded to the appellant's house,
where he had been arrested; however, immediately, thereafter, she
corrected herself to say that the appellant was arrested on the day of
jumma (Friday). There is also discrepancy regarding the time of arrest
of the appellant, with Noor Jahan Begum (PW-3) stating that he was
arrested at 2.00 p.m, and Mohd. Saleem (PW-6) stating that he was
arrested at 6.00 p.m. However, these inconsistencies do not impinge
on the main issue of the appellant having sodomised ‗S'; accordingly,
we are not inclined to attach much importance thereto. Besides,
absolute consistency cannot be expected, of parents of a six years old
boy who had been sodomised six months prior thereto.

CRL.A. 1444/2013 Page 45 of 51

51. The fact of the appellant having been sodomised also stands
proved by the MLC (PW-12/A) of the appellant, which contained the
comments of as many as three doctors, i.e. Dr. Binay Kumar (PW-12),
Dr. Chittaranjan Nayak (PW-15) and Dr. Manoj Dhingra (PW-13),
and was proved by each of them, during trial. The MLC, read with the
statements of the said three doctors during trial, make it clear that,
when ‗S' was examined, on 21st March, 2013, first by PW-12 Dr.
Binay Kumar and, thereafter, by Dr. Chittaranjan Nayak, bleeding was
noted around his anal area, along with mucosal tears at three places in
the perianal region, aggravated anal spasm and perianal tenderness
observed on palpation. Both the doctors, on being questioned, further
deposed that the anal injuries suffered by ‗S' could be attributed to
sodomy, with Dr. Nayak further clarifying that the only other situation
in which such injuries could be suffered were if the patient were to
directly fall on a sharp object. There is no dispute that no such fall was
sustained by ‗S'; that apart, Dr. Nayak went on to opine that, in any
case, the probability, in the case of such injuries, was always of
sodomy having taken place. Dr. Manoj Dhingra (PW-13), who
examined ‗S' almost a month and a half after his examination by Dr.
Binay Kumar and Dr. Chittaranjan Nayak, observed that, even at that
distance of time, there was pain and tenderness in the anal region. He
was also of the opinion that such pain and tenderness could be
attributed to sodomy, and clearly rejected the suggestion that
constipation could be the cause thereof, noting that the pain and
tenderness were present in and around the entire anal region.

CRL.A. 1444/2013 Page 46 of 51

52. Clause (m) of Section 5 of the POCSO Act defines ―aggravated
penetrative sexual assault‖ as including, inter alia, ―penetrative sexual
assault on a child below 12 years‖. ―Penetrative sexual assault‖ is, in
turn, defined in Section 3, which states that a person is said to commit
―penetrative sexual assault‖ if, inter alia, ―he penetrates his penis, to
any extent, into the vagina, mouth, urethra or anus of a child...‖ In
view of our findings hereinabove, it is obvious that the decision, of the
learned ASJ, to hold the appellant guilty of having committed
―aggravated penetrative sexual assault‖ on ‗S', is both unassailable
and unexceptionable.

53. The residuary evidence available in the case, too, fortifies the
above conclusion. It was consistently deposed, by PW-10 SI Sandeep
Tushir and PW-11 SI Manju Yadav, that, on seeing the Police, the
appellant tried to flee. These testimonies, too, sustained cross-
examination. We may also rely, for our conclusion, on the fact, as
deposed by SI Manju Yadav and HC Suresh (PW-14), that the
appellant correctly pointed out the spot where he had committed
sexual assault on ‗S'. While HC Suresh was not cross-examined, the
deposition of SI Manju Yadav, was subjected to cross-examination, no
specific suggestion, questioning the correctness of her deposition to
this effect, is to be found therein.

54. Per sequitur, we uphold, unhesitatingly, the conviction, of the
appellant, under Section 6 of the POCSO Act.

CRL.A. 1444/2013 Page 47 of 51

Sentence

55. Psychosocial deviancy and aberrant sexual proclivities are writ
large on the offence committed by the appellant on ‗S', a helpless 6
year old boy. We wholeheartedly agree with the learned ASJ, when
she holds that the persistence, of the pain and tenderness, in the
perianal region of ‗S', a month and a half after he had been
sodomised, was indicative of the brutality of the act. As against this,
however, we also bear in mind the fact that the appellant is only 30
years of age as on date, and that there is no evidence to indicate that
he was a habitual offender, or incorrigibly inclined towards
committing such acts. There is no reason to believe that the offence
committed by the appellant on ‗S' was not a one-off, or that, having
tasted blood as it were, he would continue to repeat such offences in
future. In these circumstances, we are of the view that a sufficiently
long period of incarceration would be sufficient to chasten the
appellant, and deter him from contemplating the commission of such
deviant acts in future.

56. While, therefore, we are of the view that the minimum
punishment imposable for aggravated penetrative sexual assault, under
Section 6 of the POCSO Act, i.e. 10 years' rigorous imprisonment,
would be insufficient in the present case, directing incarceration of the
appellant, for life, would certainly be disproportionate to the offence
committed by him. The right to breathe free, in the open air, is a
constitutional guarantee, preambularly promised to every Indian
denizen, and, for the citizenry of the country, stands sanctified by
Article 21 of the Constitution of India. Permanent extinction of the

CRL.A. 1444/2013 Page 48 of 51
said right, for life, must, therefore, necessarily visit only the most
hardened of offenders, in the most extreme cases. The ―quality of
mercy‖, unstrained, must always temper the hard scales of the law, if a
just balance is to be achieved.

57. Section 6 of the POCSO Act stipulates, as punishment for
aggravated penetrative sexual assault, ―rigorous imprisonment for a
term which shall not be less than 10 years but which may extend to
imprisonment for life", along with fine. Guidance, for the manner in
which such an expression is to be understood, may be found in a
recent judgement, of a 3-Judge Bench of the Supreme Court, in
Rakesh Kumar Paul vs State of Assam, MANU/SC/0993/2017, in
which, dealing with the situation in which the statutory provision
prescribed maximum, and minimum, periods of imprisonment, it was
held thus (in para 25 of the judgement):

―While it is true that merely because a minimum sentence is
provided for in the statute it does not mean that only the
minimum sentence is imposable. Equally, there is also
nothing to suggest that only the maximum sentence is
imposable. Either punishment can be imposed and even
something in between. Where does one strike a balance? It
was held that it is eventually for the court to decide what
sentence should be imposed given the range available.‖

(Emphasis supplied)

58. Rakesh Kumar Paul (supra) relied, in turn, on Bhupender
Singh vs Jarnail Singh, (2006) 6 SCC 277. That case related to
Section 304-B of the IPC which postulated, for dowry death,
punishment by way of ―imprisonment for a term which shall not be
less than 7 years but which may extend to imprisonment for life‖,
which, clearly, is similar to Section 6 of the POCSO Act, with which
CRL.A. 1444/2013 Page 49 of 51
we are concerned. The Supreme Court held thus (in para 11 of the
report):

―The position is different in respect of the offence punishable
under Section 304-B IPC. In the case of Section 304-B the
range varies between 7 years and imprisonment for life. What
should be the adequate punishment in a given case has to be
decided by the court on the basis of the facts and
circumstances involved in the particular case.‖

(Emphasis supplied)

59. Reference may also usefully be made, in this context, to another
recent judgement of the Supreme Court in State of Himachal Pradesh
vs Nirmala Devi, (2017) 7 SCC 262, in which, dealing with Sections
307 (which prescribed punishment of imprisonment ―which may
extend to life imprisonment‖) and 392 (which prescribed of rigorous
imprisonment ―which may extend to 10 years‖) of the IPC, the
Supreme Court held that these provisions conferred ―a wide discretion
... to the court to impose any punishment which may be from one day
(or even till the rising of the court) to 10 years/life.‖

60. Dealing specifically with a case of rape of an 8-year-old girl,
the Supreme Court held, in Shyam Narain vs State, (2013) 7 SCC 77,
thus (in para 26 of the report):

―It is seemly to note that the legislature, while prescribing a
minimum sentence for a term which shall not be less than 10
years, has also provided that the sentence may be extended up
to life. The legislature, in its wisdom, has left it to the
discretion of the court.‖

61. The above decisions make it clear that, under Section 6 of the
POCSO Act, while no sentence, of imprisonment for less than 10

CRL.A. 1444/2013 Page 50 of 51
years, may be awarded, the court may award any higher sentence,
which may extend to life imprisonment. Balancing all factors, to
which allusion has already been made herein above, we are of the
considered opinion that, in the present case, a period of 15 years'
rigorous incarceration (with the benefit of Section 428 of the Cr. P.C
remaining available to the appellant) would suffice.

62. Resultantly, while the impugned judgement, dated 26th
September, 2013, whereby the learned ASJ has convicted the
appellant under Section 6 of the POCSO Act, is maintained, the order
of sentence, dated 28th September, 2013, passed by the learned ASJ, is
modified by reducing the punishment awarded to the appellant to 15
years' rigorous imprisonment. The fine of ₹ 5000/-, as well as the
default sentence of 6 months rigorous imprisonment, awarded by the
learned ASJ, remains undisturbed. The appellant would also be
entitled to the benefit of Section 428 of the Cr.P.C., as stands
extended, to him, by the learned ASJ.

63. The appeal is partly allowed, in the above terms. Trial Court
record be sent back with copy of the judgment. Intimation be sent to
Superintendent Jail.

C.HARI SHANKAR
(JUDGE)

S. P. GARG
(JUDGE)
May 30, 2018
gayatri

CRL.A. 1444/2013 Page 51 of 51

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