* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 3rd May, 2017
Decided on: 31st May, 2017
+ CRL.A. 401/2016
JITENDER ….. Appellant
Represented by: Mr.Aditya Vikram, Advocate,
(DHCLSC)
versus
STATE (N.C.T) OF DELHI ….. Respondent
Represented by: Mr. Ravi Nayak, APP for the
State with SI Ravinder Kumar,
PS Prashant Vihar.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA
1. Jitender challenges the impugned judgment dated 1st April, 2016
convicting him for offences punishable under Sections 354 IPC and Section
8 of Protection of Children from Sexual Offences Act, 2012 (in short
‘POCSO Act’) and the order on sentence dated 4th April, 2016 directing him
to undergo rigorous imprisonment for a period of three years and to pay a
fine of `5,000/- each for offences punishable under Section 8 of POCSO Act
and Section 354 IPC.
2. Assailing the conviction, learned counsel for the appellant contends
that victim could not identify the appellant in the Court. Later when the APP
pointed out towards the appellant, victim stated “perhaps” he was the person
who misbehaved with her. Statement of the victim was not recorded under
Section 164 Cr.P.C. The owner of the Atta chakki was not examined by the
prosecution. There being no legal evidence against the appellant, he be
Crl.A. 401/2016 Page 1 of 8
acquitted.
3. Learned APP for the State on the other hand submits that there is no
illegality in the impugned judgment of conviction and the order on sentence.
The reason why the victim could not identify Jitender in Court was due to
the fact that the victim was only six years old at the time of incident and her
statement in Court was recorded nearly after 2½ years from the date of
incident.
4. Process of law was set into motion on 3rd April, 2013 around 7:10
P.M., when information was received stating that “Shakti Apartment ke
backside servant ne bachi ke saath galat kaam kiya” The aforesaid
information was recorded as DD No. 28A and assigned to PW-6 SI Karan
Singh, who along with PW-5 Ct. Mahesh reached the spot and met the
complainant/mother of the Victim, who produced Jitender @ Jatin and gave
a written complaint as under:
“I am resident of Rohini. On 3-4-13 my daughter was going
downstairs then Jiten s/o Durga (servant of Aggarwal Atta Chakki)
touch sex of my child with hand as well as by mouth in the stairs.
My daughter cried due to this. When we asked her then she
explained the incident. When we enquire from nearby flats then we
came to know that person came from Aggarwal Atta Chakki. When
we go to shop my daughter recognised him in front of police and
explained the incident.
I request you to punish him so that he not even think to repeat this
act in future.”
5. On the basis of the aforesaid complaint (Ex. PW-1/A), FIR No.
177/2013 was registered under Section 354A at PS Prashant Vihar. Jitender
Crl.A. 401/2016 Page 2 of 8
was arrested vide arrest memo Ex. PW-1/B. Charge for offences punishable
under Section 8 of POCSO Act and Section 354A IPC was framed against
Jitender.
6. During the course of trial, PW-2 Virender Kumar from the school
where the victim studied deposed that as per the copy of relevant entry of
admission and withdrawal register (Ex. PW-2/A), copy of admission form
(Ex. PW-2/B) and the copy of birth certificate (Ex. PW-2/C), the date of
birth of the victim is 23rd March, 2007.
7. PW-1, mother of the victim, deposed that on 3 rd April, 2013, they all
had to go to the doctor as her son was ill. Her husband had gone downstairs
with their son. When she was locking the door, she heard the victim crying
loudly. She immediately rushed towards her, who was on the stairs. She
pacified her, brought her inside the house and asked her as to why she was
crying. Her daughter told that the uncle who had then just left was very bad
and he touched her underwear, touched his mouth on her face and all over
the body. He had also strongly embraced her. When she made enquiries from
the neighbours about the person, she came to know that a boy had come from
Aggarwal Atta Chakki from the nearby market. She along with her husband
and the victim went to the aforesaid shop and victim identified the appellant
at the shop as the boy who assaulted her. She stated that the owner of the
said shop also confirmed that the said boy had gone to deliver flour at flat
which was opposite to their flat.
8. PW-8 the Victim deposed in Court that on the date of incident, she
was studying in class III and they were going to the doctor as her brother was
unwell. When they were alighting the stairs, her mother remembered
something to bring from the house and she went back to get it. In the
Crl.A. 401/2016 Page 3 of 8
meantime, when she started going downstairs, a boy came there, whom she
could identify. She further stated that she did not remember rest of the
things. When Jitender was shown to her in Court through wooden partition,
she stated that she was unable to identify Jitender and submitted that she was
unable to recollect the face of the accused. On being asked by the learned
APP she further stated that Jitender had caught hold of her and he touched
her hands and legs. He did not kiss her. She managed to run downstairs and
in the meantime, her mother came there. Her mother had seen Jitender while
he was leaving the premises on his bicycle. Then they went to the market
where they saw Jitender at the flour mill. When learned Addl. PP pointed
out towards Jitender, she stated perhaps he was the person who misbehaved
with her. During her cross- examination, she denied the suggestion that her
mother had tutored her before the deposition.
9. No doubt, the victim did not identify the appellant Jitender in the
Court and even on cross-examination by the learned APP, her identification
was not specific. The victim however supported the sequence of events and
what transpired to her at the time of incident. In respect of identity of
Jitender for having committed the offence alleged, it may be noted that
though the portion of testimony of mother of the victim stating that the
owner of the shop also confirmed that Jitender had gone to deliver flour at a
flat opposite to their flat cannot be read in evidence being hearsay however
the rest of her evidence is admissible as res-gestae evidence under Section 6
of the Indian Evidence Act. Immediately after the incident, the victim cried
and her mother reached her at the stairs, took her in the house where she
narrated the entire incident and it was found out that the person who had
come downstairs was a boy from Aggarwal Atta Chakki. Mother of the
Crl.A. 401/2016 Page 4 of 8
victim along with the victim went to the said place, where the victim
identified Jitender as the person who had sexually assaulted the minor
victim.
10. Dealing with the evidence of res-gestae, Supreme Court in the
decision reported as (2011) 7 SCC 130 Krishan Kumar Malik Vs. State of
Haryana held-
“34. We shall now deal with Section 6 of the Act, which reads as
under:
“6.Relevancy of facts forming part of same transaction.–
Facts
which, though not in issue, are so connected with a fact
in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at
different times and places.”
35.Black’s Law Dictionary defines res gestae as follows:
“(Latin: ‘things done’) The events at issue, or other events
contemporaneous with them. In evidence law, words and
statements about the res gestae are usually admissible under
a hearsay exception (such as present sense impression or
excited utterance).”
36. The said evidence thus becomes relevant and admissible as res
gestae under Section 6 of the Act.
37. Section 6 of the Act has an exception to the general rule
whereunder hearsay evidence becomes admissible. But as for
bringing such hearsay evidence within the ambit of Section 6, what
is required to be established is that it must be almost
contemporaneous with the acts and there could not be an interval
which would allow fabrication. In other words, the statements said
to be admitted as forming part of res gestae must have been made
contemporaneously with the act or immediately thereafter.
Admittedly, the prosecutrix had met her mother Narayani and
sister soon after the occurrence, thus, they could have been the
best res gestae witnesses, still the prosecution did not think it
proper to get their statements recorded. This shows the negligent
and casual manner in which the prosecution had conducted the
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investigation, then the trial. This lacunae has not been explained
by the prosecution. The prosecution has not tried to complete this
missing link so as to prove it, beyond any shadow of doubt, that it
was the appellant who had committed the said offences.”
11. A Division Bench of this Court in the decision reported as ILR (2009)
Supp. 3 Delhi 380 Tejinder Virdi @ Dolly Vs. State dealing with the law of
res gestae held-
“128. Section 6 of Evidence Act embodies the principle of law
usually known as the rule of res gestae recognized in English law.
The essence of the doctrine is that facts, though not in issue, but so
connected with the fact in issue as to form part of the same
transaction, become relevant and hence admissible. The reason is
that the circumstances, facts and declarations which grow out of
the main facts are contemporaneous with it and serve to illustrate
the fact in issue. In that sense, they can safely be said to be an
incident of the event under circumstances, and being made or done
under the immediate influence of the principal transaction,
characterize or explain the principal transaction.
129. Thus, spontaneity and immediacy of the statements or facts
in relation to the fact in issue which are made without
premeditation or artifice and without a view to the consequences
are admissible, because they are the natural result of the act they
characterize or elucidate. To form a particular statement as a part
of the same transaction, utterances must be simultaneous with the
incident or soon after it so as to make it reasonably certain that
the speaker is still under stress of excitement in respect of the
transaction in question. To put it simply: Everything that may be
fairly considered an incident of the event under consideration
would be admissible. However, it has to be guarded that there
should be no time interval to allow fabrication or to reduce the
statements to the mere narrative of a past event. If there is an
interval, however slight it may be, which was sufficient for
fabrication then the statement is not part of res gestae.
130. The principles relatable to the rule of res gestae are four in
number:
Crl.A. 401/2016 Page 6 of 8
I The declarations (oral or written) must relate to the act which
is in issue or relevant thereto; they are not admissible merely
because they accompany an act. Moreover the declarations
must relate to and explain the fact they accompany, and not
independent facts previous or subsequent thereto.
II The declarations must be substantially contemporaneous
with the fact and not merely the narrative of a past.
III The declaration and the act may be by the same person, or
they may be by different persons, eg, the declarations of the
victim, assailant and by-standers.
IV Though admissible to explain or corroborate, or to
understand the significance of the act, declarations are not
evidence of the truth of the matters stated.”
12. The incident took place on 3rd April, 2013 and the victim was
examined before Court on 19th September, 2015 i.e. nearly more than 2 years
and five months after the incident. The reason for delayed examination of
the victim is noted in the order sheet dated 30th October, 2014 passed by
learned Additional Sessions Judge wherein the mother of the victim who got
her testimony recorded and was cross-examined and discharged stated that
she does not want to produce the victim in Court for her deposition as the
victim is still under fear psychosis and gets afraid in such circumstances.
The victim was of tender age of six years. Though she was not able to
identify with certainty Jitender in Court, however the same does not nullify
the evidence of the mother of the victim who though not an eye witness but
was associated with the victim soon after the incident and the events that
unfolded thereafter.
Crl.A. 401/2016 Page 7 of 8
13. The explanation of Jitender in his statement under Section 313 Cr.P.C.
is that he was innocent and falsely implicated by the parents of the victim in
connivance with the police officials and that he had been wrongly identified
by the mother of the victim. No such suggestion has been given to the
mother of the victim stating that false implication was in connivance with the
police official though the suggestion of false implication has been given.
14. In view of the evidence of the mother of the victim, the victim and
Virender Kumar, who deposed about the date of birth of the victim, this
Court finds no illegality in the impugned judgment of conviction and the
order on sentence. The appeal is accordingly dismissed. The sentence of the
appellant was suspended by the learned Trial Court for filing the present
appeal which interim order continued pending hearing of the appeal. The
bail bond and surety bond of Jitender are discharged. Jitender will surrender
to custody to undergo the remaining sentence.
15. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
16. TCR be returned.
(MUKTA GUPTA)
JUDGE
MAY 31, 2017
‘v mittal’
Crl.A. 401/2016 Page 8 of 8
