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Jitender vs State on 19 March, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 19th March, 2020

+ CRL.A. 564/2019 CRL.M.A. 8945/2019

JITENDER ….. Appellant
versus
STATE ….. Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Gautam Khazanchi, Advocate.

For the Respondents: Ms. Meenakshi Dahiya, APP for the State

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT

SANJEEV SACHDEVA, J

1. Appellant impugns order on conviction dated 08.01.2019 and
order on sentence dated 23.02.2019, whereby the appellant has been
convicted for an offence under Section 8 of the Prevention of Children
from Sexual Offences Act, 2012 (hereinafter referred to as the
POCSO Act) and sentenced to undergo simple imprisonment for a
period of three years and to pay fine of Rs. 15,000 and in default to
further undergo a simple imprisonment for a period of six months.

2. Case of the prosecution is that FIR No. 505/2015 under section
354 Indian Penal Code and Section 8 POCSO Act, Police Station :

CRL.A.564/2019 Page 1 of 8

Mundka, was registered pursuant to a complaint lodged by the
prosecutrix.

3. It is alleged that on 03.10.2015 when the prosecutrix aged 13
years was watching television in her veranda, appellant who was a
tenant at her house, after fetching water from her kitchen, came and
sat next to her and started to watch a cricket match. After about ten
minutes he pressed her breasts and she thereafter shouted and her
mother, who was in the adjoining room and caught hold of the
Appellant and police was called.

4. Prosecution in support of their case examined as many as 5
witnesses.

5. The trial court after considering the submissions made by the
parties and on perusal of material on record held that:

“27. The prosecution is successful to establish the facts
beyond reasonable doubts through the testimony of PW1,
the prosecutrix corroborated through her previous
versions given to the police in her statement Ex.PW1/A
and to the Ld. MM In her statement Ex. PW1/B recorded
u/s 164 Cr.P.C and also corroborated through the
testimony of her mother Ms. S, examined as PW2, that
the accused has committed sexual assault upon her, that
leads to one and only one hypothesis that the accused has
committed the offence of sexual assault upon the
prosecutrix of the age of 13 years, as described u/s 7
punishable u/s 8 of POCSO Act.”

CRL.A.564/2019 Page 2 of 8

6. It is submitted by learned counsel for the Appellant that
Appellant has been falsely implicated and the trial court has erred in
convicting him for offence under section 8 POCSO Act.

7. It is submitted that the family of the prosecutrix has roped the
Appellant into a false case. It is alleged that the Appellant had a
quarrel with the mother of the prosecutrix regarding increase of rent.
Further, it is submitted that it is highly improbable for the Appellant,
who was a tenant, to sexually harass the daughter of the landlord,
while the parents of the prosecutrix were present in the room right
next to the veranda where the incident is alleged to have taken place.

8. It is contended by the learned counsel for the Appellant, that the
brother and the father of the prosecutrix were not examined and no
public witness was produced. Further, it is submitted that there is
discrepancy in the statements made by the prosecutrix. It is alleged
that the prosecutrix at first deposed that appellant touched her chest
and later it was changed to pressed her chest.

9. Trial Court has noted that the entire prosecution case was based
on the testimony of the prosecutrix (PW1). It has been held by the
Trial Court that the versions of the prosecutrix; in her testimony
before the court, her statement under section 164 Cr.P.C and in her
complaint, are consistent regarding the allegations of sexual assault.

CRL.A.564/2019 Page 3 of 8

10. Further, it is held that the version of PW1 was corroborated by
the testimony of the mother of the prosecutrix who was examined as
PW2, thereby proving the allegations of sexual assault.

11. Trial Court, in the impugned judgment, has noted the provisions
of Section 29 of POCSO Act, which stipulate that in case a person is
prosecuted for committing, abetting, attempting to commit offence
under section 3,5,7 9 of POCSO Act, court shall presume that such
person has done so, unless contrary is proved.

12. Trial Court has taken into account the testimony of DW1 who
deposed regarding an alleged quarrel between the Appellant and the
mother of the prosecutrix regarding increase of rent. Trial Court has
held that Appellant could not prove anything contrary to the case of
the prosecution and further there was no reason to disbelieve the
version of the prosecutrix.

13. Trial court has relied on the decision of the Supreme Court in
Narender Kumar vs. State (NCT of Delhi) (2012) 7 SCC 171, wherein
the Supreme Court has held that :

” 20. It is a settled legal proposition that once the
statement of the prosecutrix inspires confidence and is
accepted by the court as such, conviction can be based
only on the solitary evidence of the prosecutrix and no
corroboration would be required unless there are
compelling reasons which necessitate the court for
corroboration of her statement. Corroboration of

CRL.A.564/2019 Page 4 of 8
testimony of the prosecutrix as a condition for judicial
reliance is not a requirement of law but a guidance of
prudence under the given facts and circumstances. Minor
contradictions or insignificant discrepancies should not
be a ground for throwing out an otherwise reliable
prosecution case.”

14. Trial Court on appreciation of the evidence of the child victim
observed that the prosecutrix in her testimony as PW1 is consistent
with her versions given in her complaint Ex. PW1/A and her
statement Ex. PW1/B recorded under section 164 Cr.P.C.

15. In her testimony before the Trial Court, the prosecutrix deposed
as under:

“On 03.10.2015, 1 had my birth day on that day and at
about 10.30 pm, I was watching TV and lying down in
gallary ( Veranda), at that time, our tenant Jitender came
there for taking water and after taking the water he sat
there for watching TV as the Cricket match was going on
in the TV. He sat near me and started pressing my breast.
I shouted then my mother came and caught hold of
Jitender and called the other members of the family.
My mother called the police at 100 number. Police came
and inquired from me. I gave my complaint to the
Police.”

16. In her complaint given to the police exhibited as Ex. PW l / A ,
she had reported as under:

CRL.A.564/2019 Page 5 of 8

“On 03.10.2015 at about 10:30 PM, I was watching TV
in the Bramda while lying on a cot. Our tenant Jitender
came there on the pretext of fetching water and started
watching TV. Jitender did eve teaching with me and
touched my chest. On my shouting my mother came from
the room and we caught hold Jitender and my mother
called at 100 number.”

17. Later in her statement recorded under section 164 Cr.P.C.
exhibited as Ex. PW1/B, she had stated as under:

“On 03.10.2015 at about 10:30 PM – 11:00 PM, I was
watching TV in the Bramda while lying. Our tenant
Jitender came there on the pretext of fetching water and
after taking water he sit down there and on seeing there
is no one, he started pressing my chest. On my saying
that uncle what you are doing, he did not stop and on my
shouting my mother came from the room and then we
made a complaint.

18. All the three versions of the prosecutrix are consistent with each
other. It must also be kept in mind that the prosecutrix at the time of
the commission of the offence was aged only 13 years.

19. The contention of learned counsel for the Appellant that the
evidence of the prosecutrix is not reliable because the version of the
prosecutrix has changed from touching her chest to pressing her chest
is not sustainable.

20. Firstly because the statement of the prosecutrix was recorded in
Hindi language and a word used in a different language during

CRL.A.564/2019 Page 6 of 8
translation can convey different meaning. Secondly, even if the
contention of learned counsel for the Appellant was to be accepted,
even then it would make no difference because the appellant has been
convicted of the offence under section 8 POCSO Act which prescribes
for the punishment for committing sexual assault. Sexual Assault has
been defined in Section 7 of the POCSO Act which inter alia uses the
expression “with sexual intent touches….”. Whether the appellant had
touched or pressed her breast, the offence would be complete.

21. Further, the Trial Court has also taken note of Section 30 of
POCSO Act which stipulates that the Special Court shall presume
culpable mental state and it shall be a defense for the accused to prove
that he had no such mental state.

22. The defense of the appellant is that he has been falsely
implicated because he had a quarrel with the mother of the prosecutrix
regarding increase of rent and that it was highly improbable for the
Appellant to sexually harass the daughter of the landlord while the
parents of the prosecutrix were present in the room right next to the
veranda where the alleged to have incident taken place, is also not
sustainable.

23. In view of the presumptions arising under section 29 and 30 of
POCSO Act, it was for the appellant to prove his defense, however the
Appellant has not been able to rebut the presumption or discharge the

CRL.A.564/2019 Page 7 of 8
onus. No cogent evidence has been produced by the appellant in his
defense to establish false implication.

24. Trial Court has held that the prosecutrix satisfies the test of a
sterling witness and as such the conviction can be based solely on the
testimony of the prosecutrix who has been consistent in her version
throughout.

25. I find no error in the view taken by the Trial Court or any
infirmity in the judgment.

26. I find no merit in the appeal. The Appeal is accordingly
dismissed.

27. Order Dasti under signatures of the court master

SANJEEV SACHDEVA, J
MARCH 19, 2019
HJ

CRL.A.564/2019 Page 8 of 8

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