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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 487/2016
LOKESH ….. Appellant
Through: Mr. Aditya Vikram, Adv.
versus
STATE ….. Respondent
Through: Mr. G.M. Farooqui, APP for
State with SI Anita Kumar, PS
Delhi Cantt.
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
7th June, 2019
1. The appellant Lokesh stands convicted, by judgment dated 29 th
May, 2015, passed by the learned Additional Sessions Judge
(hereinafter referred to as ―the learned ASJ‖) under Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as ―the POCSO Act‖) and Section 376 of the Indian Penal
Code, 1860 (hereinafter referred to as ―the SectionIPC‖), and sentenced, vide
the consequential order, dated 4th June, 2015, to suffer rigourous
imprisonment for 10 years along with fine of ₹ 7500/-, with default
sentence of 6 months simple imprisonment, for the offence under
Section 6 of the POCSO Act.
CRL.A. 487/2016 Page 1 of 54
2. The case, as set out by the prosecution, may be adumbrated
thus.
3. On 28th December, 2013, the complainant Guddi, arrived at the
Police Station, with her daughter, the prosecutrix, about 4 years of
age, and tendered her statement, on the basis whereof prosecution was
lodged against the present appellant. According to the said statement,
(i) on 5th November, 2013, at about 2 p.m., Guddi, along with the
prosecutrix and her 9-year-old son, had gone to the Rama Market,
Munirka, to meet the appellant, who worked at a cycle shop, the
occasion being that of “Bhai Duj”, (ii) after performing the ceremony,
the appellant told her that his mother had invited them to his house,
(iii) she, i.e. Guddi, along with her son, proceeded to the house of the
appellant, at Kakrola Vihar, where he resided with his mother, (iv) the
appellant, however, reached his house, accompanied by the
prosecutrix only at about 10 p.m., (v) as the prosecutrix appeared
distressed, she asked her what had happened, whereupon the
prosecutrix informed her that the appellant had taken her to a jungle,
removed her clothes, inserted something in her vagina (referred to, by
her, as “susu” which, in the context, may be taken to be a euphemism
for ―genitals‖) and, thereafter, inserted his susu in her anus, (vi) the
prosecutrix further disclosed, to her mother, that, as the act had caused
her severe pain, she started crying, whereupon the appellant beat her
and threatened to kill her mother and brother, if she were to disclose,
to her mother what had happened, and (vii) on removing the
underwear of the prosecutrix, she found bloodstains in her pelvic
region, which was also swollen. She further stated that, as she was
CRL.A. 487/2016 Page 2 of 54
apprehensive, she did not disclose what had happened to anybody and
got her daughter, i.e. the prosecutrix, treated privately; however, when
she did not recover, and the pain continued, she informed her relatives,
who encouraged her to report the matter to the Police.
4. On the aforesaid complaint of Guddi, a First Information Report
(FIR) was registered, under Section 376 of the IPC and Sections 4,
5(m) and 6 of the POCSO Act.
5. Investigations were carried out by Sub- Inspector (SI) Dhara
Mishra, who also got the medical examination of the prosecutrix
conducted at the Safdarjung Hospital (hereinafter referred to as ―the
Hospital‖), and obtained her exhibits. The appellant was arrested, and
he, allegedly, pointed out the scene of incident, near the Underpass,
from where he had proceeded on his cycle, carrying the prosecutrix.
Site plan was prepared at his instance, and the medical examination of
the appellant was also done at the Hospital.
6. The prosecutrix was, thereafter, produced before the Child
Welfare Committee (CWC), where she was counselled. Her age
verification was undertaken and the relevant documents were verified,
by which her date of birth was asserted as 11th April, 2009.
7. The exhibits were sent to the Forensic Science Laboratory
(FSL).
CRL.A. 487/2016 Page 3 of 54
8. Consequent to completion of investigation, chargesheet was
filed, by the I/O, in the Court, on 17th January, 2014, under Sections
376, Section506 IPC and Sections 4, 5(m) and 6 of the POCSO Act. Charge
was framed, against the appellant, under the said provisions, on 25th
April, 2014. The appellant pleaded not guilty and sought trial.
Evidence
9. The prosecution examined 10 witnesses, who may be grouped
thus:
(i) PW-2 was the prosecutrix herself.
(ii) PW-6 (Guddi), PW-8 Const. Narender Kumar and PW-9
W/SI Dhara Mishra (the IO) were the witnesses to the incident,
and consequent investigations.
(iii) PW-1 Dr. Rajnish Kaushik, PW-4 Dr. Upasana Verma,
and PW-5 Dr. Mohd. Shadab Raheel were the ―hospital
witnesses‖.
(iv) PW-7 Const. Rajesh Dhaka testified regarding being
handed over the sealed exhibits and PW-10 Naresh Kumar,
Senior Scientific Officer in the FSL, testified regarding the
examination, and the report, thereof.
(v) PW-3 Mukesh Kumar testified regarding the date of birth
of the prosecutrix.
CRL.A. 487/2016 Page 4 of 54
10. Of necessity, the prime evidence, in this case, was the statement
of the prosecutrix (PW-2) herself. During the recording of her
statement, it was ensured that the appellant was not visible to her,
though she was visible to the appellant through a one-sided mirror
screen. Certain preliminary questions were put, by the learned ASJ, to
the prosecutrix, to ensure her capability to testify. The evidence
records that the prosecutrix stated that she was about 4 years of age
and had never been to school, that she resided, with her mother and
her brother at Rithala, that she had come to the court, that day, by
Metro, to ―tell‖, that she was telling the truth, that her mother had told
her that she was being taken to court, and that she was aware that one
should always speak the truth, though she did not respond, when
questioned as to what would happen if one did not tell the truth. On
being asked what her mother had told, she responded “mummy ne
kaha jo mama ne kaha woh bataeo” (“my mother told me to tell what
my uncle had told me”). On being asked to do so, the prosecutrix also
wrote her name, correctly, on a piece of paper.
11. The learned ASJ has specifically recorded the satisfaction,
regarding the capacity, to testify, of the prosecutrix and her
competence to give rational answers, if put to her in Hindi. In view of
her tender age, the statement of the prosecutrix was recorded without
oath.
12. The examination-in-chief of the prosecutrix, as conducted by
learned Additional Public Prosecutor (APP), may be reproduced, in
full, thus:
CRL.A. 487/2016 Page 5 of 54
―Q. What you used to call Lokesh?
Ans. Mama
Q. Where accused used to reside?
Ans. Munirka.
Q. Did you go to Munirka along with your mother?
Ans. Yes.
Q. Why you went to Munirka?
Ans. Mummy tika lagane gayee thee. (―Mummy had
gone to apply tika.)
Q. At which shop accused used to work?
Ans. Cycle ki. (―Of the cycle.‖)
Q. Where you went thereafter?
Ans. Mama ke ghar. (―To Mama’s house.‖)
Q. How you went to Mama ke ghar?
Ans. Mujhe cycle pe bitha kar le gaye. (―He seated me
on the cycle and took me.‖)
Q. Where you sat on the cycle front or back?
Ans. Aage mama seat par baithay thay. (―In front Mama
was seated on the seat.‖)
Q. Where mama took you thereafter?
Ans. Jungle me. (―To the jungle.‖)
Q. What he did with you?
CRL.A. 487/2016 Page 6 of 54
Ans. Jahan se susu karte hai us se kuch kiya tha mere
jahan se laterin karte hai. (―He did something, using his
penis, with my anus.‖)
Q. What happened thereafter?
Ans. Tail dala. (―He put oil.‖)
Q. Did Mama say anything?
Ans. Haan. Mama ne bola mummy se mat batana.
(―Yes. Mama told me not to tell Mummy.‖)
Q. Then what happened?
Ans. Mama apne ghar le aaye. Ek neeche ghar hai ek
uppar aur mujhe neche leta diya bed me. (―Mama
brought me to his house. One house is the ground floor
and the other upstairs. He made me lie down on the
bed.‖)
Q. Did you tell your mother about it?
Ans. No.
Q. Did you come earlier also to court?
Ans. Yes.
Q. Did you tell all these facts to an aunty?
Ans. Yes.
Q. Did you put your thumb impression on a paper?
(Witness has been shown the said thumb impression on
the statement u/s 164 SectionCr.P.C. which has been taken out
after opening a sealed envelope sealed with the seal of
―GM‖.)Ans. Haan. (―Yes.‖)
CRL.A. 487/2016 Page 7 of 54
At this stage, the appellant, who was concealed, thus far, behind the
screen, was made to come out. The prosecutrix correctly identified
him as ―Mama Lokesh‖.Statement of prosecutrix under Section 164, Cr. P.C.:
13. Before recording the statement of the prosecutrix, under
Section 164, Cr. P.C., during investigation on 02nd January, 2014, the
learned ASJ asserted her competence to testify, by posing her a few
questions, to which she responded. The said questions, and the
answers thereto, as tendered by the prosecutrix, may be reproduced
thus:―Q No. 1 What is your name?Ans. My name is _.
Q No. 2 How old are you?
Ans. I am 4 years old.
Q. No. 3 Do you go to school?
Ans. No. My mother teaches me at home.
Q. No. 4 What does your mother do?
Ans. My mother is a housewife.
Q. No. 5 Will you tell the truth?
Ans. I will tell the truth.
CRL.A. 487/2016 Page 8 of 54
The statement of the prosecutrix, recorded under Section 164, Cr.
P.C., which was exhibited as Ex. PW-2/A, may be translated thus:―Q. Tell us, child, what have you to say?
Ans. Lokesh mama took me to the jungle. He removed
my underwear and did something with me. I suffered a
lot of pain. I cried. Mama told me not to tell anything to
anyone. If I told my mother, he would severely beat me. I
am still suffering pain in my anal region (referred to, in
the statement, as ―latrine wali jagah"). It subsides when
my mother gives me medicine.‖Evidence of witnesses to the incident and subsequent investigatioin
14. Testifying as PW-6, Guddi, the mother of the prosecutrix,
deposed that, on 5th November, 2013, she had reached the shop, where
the appellant worked, at about 3 p.m., as it was ―Bhai Duj‖, and she
regarded the appellant as her brother. She stated that the appellant
reached the shop at about 4 p.m. and that, after performing the
ceremony, the appellant invited all of them to his house. She
proceeded to the appellant's house by bus, whereas the appellant
made her daughter, i.e. the prosecutrix, sit on his cycle, stating that he
would reach his house with her. She further testified that when the
appellant did not reach his house with her daughter, despite
considerable time having passed, and her having visited the bus stand
three or four times, without being able to obtain any information
regarding the appellant, or her daughter, she called the appellant's
father, who consoled her and asked her to wait. Ultimately, the
appellant reached his house, with her daughter, at about 10 to 10:30
p.m., by which time she had made two more calls to the appellant'sCRL.A. 487/2016 Page 9 of 54
father. On enquiry, the appellant informed her that her daughter, i.e.
the prosecutrix, was suffering from cold, and that he had covered her
with his shirt. The appellant, thereafter, made her daughter lie on the
bed. She was unconscious at the time. She further testified that, when
her daughter regained consciousness, she started crying and again
became unconscious. When she regained consciousness the second
time, she stated that she was having abdominal pain, and wanted to
visit the toilet. PW-6 further stated that, in the toilet, she noticed a cut
mark in the anal region of the prosecutrix, who was shivering. She
further deposed that her daughter, i.e. the prosecutrix, told her that the
appellant had taken her to a jungle, where he removed her
undergarments and inserted his private part in her anal and genital
regions, after gagging her with a cloth, so that she could not scream.
Thereupon, she deposed, she removed her daughter's clothes and
noticed injury marks, including two or three cut marks on her anus.
She further testified that, at about 12:30 p.m., the appellant's mother
and, a short while later, his father, returned home, and the appellant's
father took her daughter, i.e. the prosecutrix, to a private doctor. He
returned, a short while later, and told her that he had the prosecutrix
examined and that nothing had happened.15. PW-6 further deposed that she returned, to her home, the next
day, accompanied by the appellant's mother, who stayed with her for
about eight days, during which period she resisted the attempts of
PW-6 to have the prosecutrix taken to a Government hospital for
treatment. She deposed that the appellant's mother did not permit
anyone to meet them, either. Ultimately, four-five days after she hadCRL.A. 487/2016 Page 10 of 54
returned to her home, certain relatives of PW-6 visited her, and she
unburdened herself to them. On their advice, she went to PS Delhi
Cantt, where she narrated the entire episode to the Police, who
recorded her statement (Ex. PW-6/A). Thereafter, the Police took the
prosecutrix for her medical examination at the Safdarjung Hospital
and, thereafter, produced before the learned Magistrate, where her
statement was recorded. She further deposed that the appellant (who
was present in the court) was arrested, about five days later, vide
Arrest Memo Ex. PW-6/B.16. In cross-examination, PW-6 stated that, when she had reached
the appellant's house, on 5th November, 2013, she had found the
house locked. She reiterated the contents of her deposition in
examination-in-chief, and was confronted, several times, with the fact
that many of the details, contained therein, were not present in the
statement, recorded from her by the Police under Section 161 of the
Cr.P.C. The learned ASJ observed, however, that, in her statement
under Section 161, Cr. P.C., PW-6 had stated that she had removed
her daughter's clothes, and found blood marks and swelling on her
hip. She denied the allegation that she had got a false case registered
against the appellant as she owed ₹ 10,000/- to him, which she had
refused to return.17. W/SI Dhara Mishra, of the Crime Against Women (CAW) Cell,
who was the main Police witness in the case, deposed as PW-9. She
testified to recording the statement of PW-6 Guddi, on 28th December,
2013, and to preparing the Rukka, which she handed over, to the DutyCRL.A. 487/2016 Page 11 of 54
Officer for registration of FIR. She deposed that, thereafter, she had
the prosecutrix medically examined at the Safdarjung Hospital. The
exhibits handed over by the doctors at the Hospital were converted
into pullandas and taken into possession, by her, vide Seizure Memo
Ex. PW-9/A. She testified that Lokesh was arrested, vide Arrest
Memo Ex. PW-6/B, and personally searched vide Personal Search
Memo Ex. PW-9/B. She also deposed to recording the disclosure
statement of the appellant (Ex. PW-9/C), and stated that the appellant
led them to the place of incident, near the Underpass from Dwarka to
the Airport, where she prepared site plan Ex. PW-9/D and Pointing
Out Memo Ex. PW-9/E. She further deposed that, thereafter, the
appellant was medically examined at the Safdarjung Hospital, and
produced before the Duty Magistrate, who remanded him to Judicial
Custody. The prosecutrix was produced before the Child Welfare
Committee (CWC), who handed her custody over to her mother (PW-6). She further confirmed having obtained the documents regarding
the age of the prosecutrix, according to which the date of birth of the
prosecutrix was 11th April, 2009, and also confirmed that the
statement of the prosecutrix was recorded, by the learned
Metropolitan Magistrate (hereinafter referred to as ―the learned MM‖)
under Section 164, Cr. P.C. On her application, the Potency Test of
the appellant was conducted at the RML Hospital. She confirmed
having taken into possession the sealed exhibits, handed over by the
doctors, vide Seizure Memo Ex. PW-7/A. After completion of
investigation, she filed the chargesheet in the case.18. PW-9 was not cross-examined, despite grant of opportunity.
CRL.A. 487/2016 Page 12 of 54
19. PW-8 HC Narender Kumar supported the testimony of the I/O
(PW-9), by deposing, during trial, that, at about 1:20 a.m. on 28th
December, 2013, he received a Rukka from PW-9 W/SI Dhara
Mishra, on the basis whereof he lodged FIR No.509/13 (Ex. PW-8/A),
invoking Section 376 of the IPC and Sections 4, 5 of the POCSO Act,
as well as to endorsing the Rukka (Ex. PW-8/B). He also confirmed
having handed over the copy of the FIR and the original Rukka to HC
Rajbir, for being handed over to W/SI Dhara Mishra.Hospital Witnesses
20. Dr. Upasana Verma, Senior Resident, Department of Obstetrics
and Gynaecology, Safdarjung Hospital, testifying as PW-4, deposed
that, at 3 a.m. on 28th December, 2013, the prosecutrix was brought,
by Const. Nirmal, for medical examination, which was conducted vide
MLC Ex. PW-4/A and OPD reference card Ex. PW-4/B. She further
stated that PW-6 Guddi, the mother of the prosecutrix, accompanied
her. The signature of PW-6 Guddi and the right thumb impression of
the prosecutrix were obtained on the MLC. She also confirmed having
collected the nail scrapping, vagina culture, blood samples, vagina
secretion, rectal swab, urine and oxalate blood vial of the prosecutrix
and having sealed them in separate pullandas, with the seal of the
Hospital, whereafter she referred the prosecutrix to the paediatric
department for further management. She was not cross-examined,
despite grant of opportunity.CRL.A. 487/2016 Page 13 of 54
MLC of prosecutrix (Ex. PW-4/A):
21. The MLC of the prosecutrix, as prepared by PW-4 Dr. Upasana
Verma, read thus:―4 years old girl, named , d/o Mukesh, brought to
GRR by Lady Const. Nirma 2300/SW accompanied by
her mother Guddi at 3:00 a.m. on 28/12/13 with history
of intercourse rectally.According to mother, 24-year-old, Lokesh, had done
rectal intercourse with her daughter on 5/11/13 night near
Dwarka underpass at some forest. Following the act, the
girl was brought to home around 10 p.m. on 5/11/13 in
unconscious state and had loose motions and pain at
rectal site and bleeding at rectal site. After that, she took
various treatment from medical stores but not relieved.
Her mother is giving history that girl daily wakes up at
night and complains pain in rectal region and shouts.No H/O earlier illness.
O/E: GC fair, conscious.
P/A soft, non-tender.
Afebrile.
PR 86/-
BP: 100/60
P-/I-/PE-Chest, CVS - NAD
L/E: No injury mark around external genitalia. Slight
pigmentation present in perianal region.‖22. PW-1 Dr. Rajnish Kaushik and PW-5 Dr. Mohd. Shadab Raheel
deposed, during trial, with respect to the medical examination of the
accused Lokesh.CRL.A. 487/2016 Page 14 of 54
23. PW-1 Dr. Rajnish Kaushik, of RML Hospital, deposed that the
appellant had been brought to the Hospital, by HC Omprakash, for
DNA analysis of his blood sample, and that the blood sample of the
appellant was taken, sealed with the seal ―CMO RML Hospital‖ and
handed over to HC Omprakash. The MLC of the appellant was
exhibited as Ex. PW-1/A. PW-1 was not cross-examined, despite
grant of opportunity.24. PW-5 Dr. Mohd. Shadab Raheel, Senior Resident in Forensic
Medicine at the Safdarjung Hospital, deposed that, on 28th December,
2013, at about 11 a.m., the appellant had been brought to the hospital
by SI G. R. Meena, and that, on examining the appellant, he had
opined that there was nothing to suggest that the appellant was not
capable of performing sexual intercourse. His comment, to the said
effect, on the MLC of the appellant, was exhibited as Ex. PW-5/A. He
was not cross-examined, despite grant of opportunity.―Forensic‖ witnesses
25. PW-7, Const. Rajesh Dhaka, who was, at the relevant time,
posted at PS. Delhi Cantt, confirmed, in his testimony during trial,
having taken the appellant (who was present in Court and whom he
correctly identified) to the RML Hospital on 14th January, 2014,
where his blood sample was taken and two packets, containing the
said blood sample, sealed with the Hospital seal, were handed over,
by him, to SI Bharat Bhushan, who seized the said exhibits vide Ex.CRL.A. 487/2016 Page 15 of 54
PW-7/A. The suggestions, to the contrary, made to him, were denied,
by him, in cross-examination.26. PW-10 Naresh Kumar, Senior Scientific Officer in the FSL,
proved, in his testimony during trial, the Examination Report of the
FSL, which was prepared, signed and issued by him, and which was,
accordingly, exhibited as Ex. PW-10/A.27. The FSL report (Ex. PW-10/A) certified that, except for the
blood samples themselves, no blood was detected on any of the
exhibits, and that no semen was, either, detected on any of the
exhibits. As such, no DNA examination was conducted, either. The
FSL report, therefore, remained totally inconclusive.28. The learned ASJ recorded, on 7th November, 2014, the
statement of learned Counsel appearing for the appellant, in which he
admitted the MLC of the appellant (Ex. P-1) as well as the
proceedings under Section 164, Cr. P.C., along with the statement of
the prosecutrix (Ex. PW-2/A), all of which was exhibited as Ex. P-2,
accordingly.Other witnesses
29. The only other witness was PW-3 Mukesh Kumar, Record
Clerk in the office of the Registrar, Births and Deaths, who proved the
photo copy of the birth reporting form of the prosecutrix (Ex. PW-
3/A), according to which her date of birth was 11 th April, 2009. TheCRL.A. 487/2016 Page 16 of 54
original copy of the birth certificate, issued and verified from the
office of the Registrar of Births and Deaths on 16th January, 2014, was
exhibited as Ex. PW-3/B. He was not cross-examined, despite grant of
opportunity.Statement of appellant under Section 313, Cr. P.C.
30. The statement of the appellant Lokesh, under Section 313, Cr.
P.C., was recorded on 27th March, 2015. The appellant admitted the
fact that, on 5th November, 2013, PW-6 Guddi had visited his shop,
for ―Bhai Duj", along with her children, including the prosecutrix,
who addressed him as Mama. He, however, denied the allegation that
he had invited PW-6 Guddi to his house, though she desired to
proceed to the native village, or that he asked Guddi to proceed to his
house with her son, ensuring that her daughter, i.e. the prosecutrix
would follow. Rather, he stated that he had asked Guddi to proceed to
his house by bus, along with the children, but that the prosecutrix
insisted on going with him, whereupon Guddi herself asked him to
bring the prosecutrix with him on his cycle. He denied knowledge
about the fact that his house was locked when PW-6 Guddi reached
there with her son, or that, as he was getting delayed, Guddi had
called his father, who assured her and requested to wait. He admitted
the fact that he had reached his house with the prosecutrix at night,
though he professed ignorance regarding the actual time when he
reached the house. He reiterated that he had covered the prosecutrix
with his sweater and tied her to himself, but stated that he had done so
she was sleeping and would have fallen off the cycle. He denied the
allegation that the prosecutrix was sick or unconscious, but admittedCRL.A. 487/2016 Page 17 of 54
that he had made her lie on the bed, at which time she was
unconscious. He also admitted the fact that, after some time, the
prosecutrix awoke and started crying loudly, and was unresponsive
when PW-6 Guddi asked her what had happened, whereafter she
again became unconscious, but asserted that the prosecutrix had
awoken from sleep, and not from any state of unconsciousness. He
denied the allegation that the prosecutrix had, later, requested for
being taken to the toilet, where her mother had noticed injuries on her
anus. He denied the allegation that the prosecutrix recited, to her
mother, the entire incident, as well as all the allegations against him,
stated to be contained therein. He admitted the fact that his father,
after returning, had taken the prosecutrix for examination to a private
doctor, but professed ignorance regarding his father having returned
and assured Guddi that there was nothing to worry. He asserted that,
next morning, Guddi and his family members belabour him and
threatened to call the police, whereupon he stated that he had done
nothing wrong. Regarding all other incidents, the appellant professed
ignorance, and alleged that Guddi used to come to his place of work
regularly and had demanded, from him, ₹ 40,000/-, whereafter she
made a false complaint against him. He denied the allegation that he
had led the Police to the scene of incident, where PW-9 W/SI Dhara
Mishra prepared site plan Ex. PW-9/D and Pointing Out memo Ex.
PW-9/D. He asserted that the witnesses, who deposed against him,
were false and interested. He stated that he did not desire to lead any
defence evidence, and insisted that he had been falsely implicated in
the case, and was innocent.CRL.A. 487/2016 Page 18 of 54
The impugned judgment
31. The learned ASJ has, vide the impugned judgment dated 29th
May, 2015, convicted the appellant under Section 6 of the POCSO
Act and Section 376 of the IPC. In so doing, she has reasoned thus:(i) Though learned counsel for the appellant had sought to
demonstrate contradictions, between the statement of PW-6
Guddi, as recorded under Section 161, Cr. P.C. (Ex. PW-6/A),
and her testimony during trial, there was no such contradiction.
PW-6 had, in her testimony in court, only explained her
conduct during the period when she was waiting for the
appellant at his house, and explained the events that transpired
between 5th November, 2013 and 28th December, 2013, when
she made the complaint to the Police.(ii) There was no significant cross-examination, by learned
counsel for the appellant, of PW-6, regarding the actual
incident. There was no explanation for the period between 5
p.m., when the appellant left the shop, carrying the prosecutrix
on the cycle, and after 10 p.m., when he reached his house. A
specific query, regarding this fact, was put to the appellant,
during the recording of his statement under Section 313, Cr.
P.C., but he remained noncommittal.CRL.A. 487/2016 Page 19 of 54
(iii) It was also not in dispute that the appellant had tied the
prosecutrix, on his cycle, with his shirt, and that her condition
was not good.(iv) The evidence of the prosecutrix, deposing as PW-2,
completely incriminated the appellant. She has provided details
of the manner in which she had been assaulted. Her testimony,
during trial, and her statement under Section 164, SectionCr.P.C., were
consistent, and corroborated each other. Moreover, the
appellant had not questioned the credibility of the testimony of
the prosecutrix, as PW-2.(v) Not much would be discerned from the medical
examination of the prosecutrix, as it had taken place more than
4 months after the assault.(vi) The appellant was a family friend of the prosecutrix, and
was regarded as a brother by her mother Guddi (PW-6). There
was no reason for the prosecutrix, or her family, to falsely
implicate the appellant.(vii) The unchallenged testimony of PW-2, which was fully
corroborated with the testimony of PW-6, as well as the
admissions made by the appellant in his statement under
Section 313, Cr. P.C., established the case, against the
appellant, of his having committed penetrative sexual assault
upon the prosecutrix, was about 4 ½ years of age.CRL.A. 487/2016 Page 20 of 54
(viii) However, as there was insufficient evidence regarding
the appellant having beaten the prosecutrix, or threatened her,
the offence, under Section 323, Section506 IPC was not made out.Rival submissions
32. Mr. Aditya Vikram, learned counsel appearing for the
appellant, advanced the following submissions, to attack the
impugned judgment of the learned ASJ:(i) There was inordinate delay (53 days) in registering the
FIR. This delay was fatal. Reliance was placed, for the said
purpose, on the judgment in SectionJai Prakash Singh v. State of
Bihar, (2012) 4 SCC 379.(ii) The MLC of the prosecutrix indicated that there was no
injury mark found on her person, even around her anal area.
This was impossible, had the appellant actually committed
penetrative anal assault on the prosecutrix, given the fact that
he was an adult and she was a 4-year-old child.(iii) The competence of the prosecutrix to testify before the
learned ASJ was not established. The questions put to her, by
the learned ASJ, to satisfy herself regarding the competence of
the prosecutrix to testify, were simple questions, and
insufficient to demonstrate testifying ability.CRL.A. 487/2016 Page 21 of 54
(iv) The appellant was not defended properly, as only two
witnesses were cross examined, and the prosecutrix herself was
not cross-examined.(v) In the course of her testimony during trial, the
prosecutrix admitted that she had not informed her mother
about the incident, after she returned to the appellant's house.
This was inherently unbelievable.(vi) The testimony of the prosecutrix had not been scrutinised
with the requisite degree of care and circumspection, as was
required to be accorded while dealing with evidence of child
witnesses. Reliance was placed, for this purpose, on the
judgments of the Supreme Court in SectionState of U.P. v. Ashok
Dixit, 2000 SCC (Cri) 579, SectionState of Karnataka v. Shantappa
Madivalappa Galapuji, (2009) 12 SCC 731 and SectionJai Prakash
Singh v. State of Bihar, (2012) 4 SCC 379.33. Written submissions were also filed by learned counsel
appearing for the appellant, in which, additionally, the following
contentions were advanced:(i) To a query, from the Court during the recording of her
statement during trial, the prosecutrix answered that the
appellant had brought her home, that one home was on the
ground floor and one on the first floor, and that he made her lie
down on the bed. PW-6 Guddi, on the other hand, deposed that,
when the appellant reached home with the prosecutrix, theCRL.A. 487/2016 Page 22 of 54
prosecutrix was unconscious. This discrepancy was fatal to the
evidence of the prosecutrix, given that she was a child of tender
years and susceptible to tutoring.(ii) The testimony of PW-6, during trial, was unreliable, as
there were several additions, therein, when compared to the
statement, recorded from her under section 161, Cr. P.C.(iii) Though, according to the prosecution, the prosecutrix
had been treated at a private hospital, for the injuries sustained
by her at the time of commission of the alleged offence by the
appellant, no report/document of any private hospital had been
tendered in evidence, to prove the said allegation.(iv) The manner in which the offence/assault had been
perpetrated upon her, had not been clearly set out by the
prosecutrix, either in her statement under Section 164, Cr. P.C.
or in her evidence during trial.(v) In the absence of any proof of injury or penetration, the
decision, of the learned ASJ, to convict the appellant for having
committed penetrative sexual assault on the prosecutrix, could
not sustain.34. Arguing per contra, Mr. G.M. Farooqui, learned APP, would
submit that no case, whatsoever, existed, for this court to interfere
with the decision of the learned ASJ, as (i) the delay in lodging of FIR
had been explained by PW-6 Guddi, whose statement, to the effectCRL.A. 487/2016 Page 23 of 54
that she had been getting the prosecutrix treated by private doctors for
two months, was never questioned by the appellant, even by way of a
suggestion that it was wrong, (ii) the absence of any injury on the
prosecutrix was easily explained, as her medical examination was
conducted after she had undergone two months treatment for the
assault suffered by her, (iii) the capacity, of the prosecutrix, to testify,
was established by the answers to the questions put to her by the
learned ASJ, (iv) in any event, the statement, of the prosecutrix, under
Section 164, Cr. P.C., was very short, as she was only asked what had
happened, to which she responded satisfactorily, (v) there was no
explanation for the whereabouts of the appellant between 5 p.m. and
10 p.m. on 5th November, 2013 and (vi) the learned ASJ had correctly
appreciated the evidence on record, and arrived at findings which
were only sustainable in law.Analysis and conclusion
35. The appellant stands convicted under Section 376, SectionIPC (which
deals with punishment for commission of the offence of ―rape‖) and
Section 6 of the POCSO Act (which deals with punishment for the
commission of the offence of ―aggravated penetrative sexual
assault‖), though he has been sentenced only under the latter
provision, as the minimum, and maximum, punishments prescribed
under Section 6 of the POCSO Act, and Section 376 of the IPC are
the same, i.e. 10 years rigourous imprisonment and imprisonment for
life, respectively. The learned ASJ has held that, as she has awarded,CRL.A. 487/2016 Page 24 of 54
to the appellant, the minimum sentence which could be awarded
under Section 6 of the POCSO Act, no separate sentence was being
awarded under Section 376, SectionIPC.36. Section 5 of the POCSO Act defines ―aggravated penetrative
sexual assault‖, whereas Section 375, SectionIPC defines ―rape‖. The said
provisions are, to all intents and purposes, similar. The conviction of
the appellant is relatable to clause (m) of Section 5 of the POCSO
Act, which deals with the mission of ―penetrative sexual assault on a
child below 12 years‖. Cases which fall under Section 5 of the
POCSO Act, which deals with ―aggravated penetrative sexual assault‖
are treated as a class apart from cases which fall under Section 3 of
the said statute, which deals with ―penetrative sexual assault‖. Certain
―aggravated‖ cases of ―penetrative sexual assault‖ have, by Section 5
of the POCSO Act, been categorized as ―aggravated penetrative
sexual assault‖. In a similar vein, sub- section (1) of Section 375, SectionIPC,
deals with punishment for rape simplicitor, whereas certain
―aggravated‖ cases of rape are separately dealt with, under sub-
section (2) of Section 376. Given the age of the prosecutrix, either
statute treats the case as ―aggravated‖. Where the child is below 12
years of age, clause (m) of Section 5 of the POCSO Act reads the case
as one of ―aggravated penetrative sexual assault‖. In a similar vein,
clause (i) of Section 376 (2) of the SectionIPC prescribes higher punishments,
where the rate is committed ―on a woman when she is under 16 years
of age‖. Significantly, the age stipulation, in the said clause was
enhanced by the substitution of the pre-existing Section 376, in the
SectionIPC, by Section 9 of the Criminal Law (Amendment) Act, 2013. PriorCRL.A. 487/2016 Page 25 of 54
to the said Amendment, ―aggravated‖ cases of rape, as enumerated in
sub-section (2) of Section 376 of the IPC included commission of
―rape on a woman when she is under 12 years of age‖. As such, the
statutory position that obtains is that, prior to the substitution of
Section 376 of the IPC by Section 9 of the Criminal Law
(Amendment) Act, 2013, commission of ―aggravated penetrative
sexual assault‖ on a child below 12 years of age was punishable,
under Section 6 of the POCSO Act, and Section 376 (2) of the SectionIPC,
with the same enhanced punishment, which could range from 10 years
RI to life imprisonment. Consequent on the substitution of Section
376 of the IPC by Section 9 of the Criminal Law (Amendment) Act,
2013, however, while Section 6 of the POCSO Act continued to treat
commission of penetrative sexual assault on a child below 12 years of
age as ―aggravated penetrative sexual assault‖ and punishable with
enhanced punishment, for the purposes of Sectionsection 376 of the IPC, the
said enhanced punishment was imposable even where the child was
between 12 and 16 years of age.37. These statutory niceties, however, do not substantially impact
the present case, as the charge against the appellant, if confirmed,
would bring his case equally under clause (m) of Section 5 of the
POCSO Act and clause (i) of Section 376 (2) of the SectionIPC, and invites
the same minimum and maximum punishments, i.e. 10 years RI and
imprisonment for life, respectively.CRL.A. 487/2016 Page 26 of 54
38. The definition of ―penetrative sexual assault‖, as contained in
Section 3 of the POCSO Act is identical to the definition of ―rape‖ in
Section 375 of the IPC. Section 3 of the POCSO Act reads thus:―3. Penetrative sexual assault. - A person is said to
commit "penetrative sexual assault" if -(a) he penetrates his penis, to any extent, into
the vagina, mouth, urethra or anus of a child or
makes the child to do so with him or any other
person; or(b) he inserts, to any extent, any object or a part
of the body, not being the penis, into the vagina,
the urethra or anus of the child or makes the child
to do so with him or any other person; or(c) he manipulates any part of the body of the
child so as to cause penetration into the vagina,
urethra, anus or any part of body of the child or
makes the child to do so with him or any other
person; or(d) he applies his mouth to the penis, vagina,
anus, urethra of the child or makes the child to do
so to such person or any other person.‖Identically, Section 375 of the IPC defines ―rape‖, thus:
―375. Rape. - A man is said to commit ―rape if he -
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person;
or(b) inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, theCRL.A. 487/2016 Page 27 of 54
urethra or anus of the woman or makes her to do
so with him or any other person; or(c) manipulates any part of the body of a
woman so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman or
makes her to do so with him or any other person;
or(d) applies his mouth to the, vagina, anus,
urethra of a woman or makes her to do so with him
or any other person, her.‖39. Discounting, for a moment, clause (d) of Section 3 of the
POCSO Act, or Section 375 of the IPC - as the present case would
not attract either of the said provisions - it is apparent that penetration
is the sine qua non for applicability, either of Section 3 of the POCSO
Act - and, consequently, of Section 5 of the said Act as well - or of
Section 375 of the IPC. Sans penetration, the offence, even if
committed, would only amount to ―aggravated sexual assault‖, as
defined in Section 9 of the POCSO Act, which would, in turn, be
punishable under Section 10 of the said statute, with punishment
which may range from 5 to 7 years imprisonment, of either
description.40. It has to be examined, therefore, whether the evidence available
was sufficient to convict the appellant for having committed the
offence of ―aggravated penetrative sexual assault‖, as defined in
Section 5 of the POCSO Act. Needless to say, if the answer to this
poser is in the affirmative, the appellant would, equally, be liable to be
convicted under Section 375 of the IPC, for having committed ―rape‖.CRL.A. 487/2016 Page 28 of 54
41. In cases of sexual assault against children, the first, and most
important, piece of evidence, is always the statement of the child
prosecutrix herself/himself.42. Evaluation of the evidence of child witnesses, especially where
the child is the prosecutrix herself/himself, is always a tricky affair.
Combating, and, at times, conflicting, considerations come into play
in such cases. On the one hand, there exists a presumption that a child
of tender years would not, ordinarily, lie. The applicability, or
otherwise, of this presumption, would necessarily depend, to a large
extent, on the age of the child. No dividing line can be drawn in such
cases; however, one may reasonably presume that a child of the age of
four, or thereabouts, would be of an age at which, to questions
spontaneously put to the child, the answer would ordinarily be the
truth. As against this, the Court is also required to be alive to the fact
that children are impressionable individuals, especially when they are
younger in age, and are, therefore, more easily ―tutored‖. The
possibility of a small child, whose cognitive and intellectual faculties
are yet not fully developed, being compelled to testify in a particular
manner, cannot be easily gainsaid. Even so, the prevalent
jurisprudential approach proscribes courts from readily treating the
evidence of child witnesses as tutored and, ordinarily, where a child is
subjected to sexual assault, her, or his, statement possesses
considerable probative value.CRL.A. 487/2016 Page 29 of 54
43. This Court has, in the not-too-distant past, had an occasion to
examine the jurisprudential contours of appreciation of evidence of
child witnesses, in its judgment in SectionSanjay Kumar Valmiki v. State,
2018 SCC Online Del 9304. The following passages, from the said
judgment - which stands affirmed, by dismissal of SLP (Crl) No.
3050/2019 preferred, thereagainst - may be reproduced:―57. The child witness, like the child himself, has ever
remained, criminologically speaking, a jurisprudential
enigma. The judicial approach, to such evidence, has, at
times, advocated wholesome acceptance of such
evidence, subject to the usual precautions to be exercised
while evaluating any other evidence; however, the more
prevalent approach appears to prefer exercise of cautious
consideration by the Court, while dealing with such
evidence. The raison d'etre for advocating such an
approach, as is apparent from the various authorities on
the point, is that child witnesses are usually regarded as
susceptible to tutoring; consequently, Courts have
consistently held that, where the Trial Court is satisfied,
on its own analysis and appreciation, that the child
witness before it is unlikely to be tutored, and is deposing
of his own will and volition, it cannot treat such witness,
or the evidence of such witness, with any greater
circumspection, than would be accorded to any other
witness, or any other evidence. As has been often
emphasised by courts in this context, no express, or even
implied, embargo, on a child being a witness, is to be
found in Section 118 of the Indian Evidence Act, which
deals with the competency of persons to testify, and reads
as under:―118. Who may testify. --
All persons shall be competent to
testify unless the Court considers that they
are prevented from understanding the
questions put to them, or from giving
rational answers to those questions, byCRL.A. 487/2016 Page 30 of 54
tender years, extreme old age, disease,
whether of body or mind, or any other cause
of the same kind.Explanation.-- A lunatic is not incompetent
to testify, unless he is prevented by his
lunacy from understanding the questions put
to him and giving rational answers to them.58. Statutorily, therefore, it is clear that there is no
prohibition on children being witnesses, whether in civil
or criminal cases, irrespective of the nature of the
offence. The only circumstance in which the statute
proscribes reliance on such evidence, is where the child
is prevented from understanding the questions put to him,
or from giving rational answers to such questions, by
reason of his age. A duty is, therefore, cast, by the
statute, on the judge faced with the responsibility of
taking a decision on whether to allow, or disallow, the
testimony of the child witness, to arrive at an informed
decision as to whether the said evidence is vitiated on
account of the child having failed to understand the
questions put to him, or to provide rational responses
thereto. If the answer, to these two queries, is in the
negative, there is no justification, whatsoever, for
discarding, or even disregarding, the evidence of the
child witness.59. This Court has, in a recent decision in SectionLatif v. State,
2018 SCC OnLine Del 8832, observed as under, with
respect to the evidence of child witnesses:‗16. At this stage, it is necessary to recapitulate the
law regarding the appreciation of the evidence of
the child witness. In Dattu RaMr. ao
SectionSakhare v. State of Maharashtra, (1997) 5 SCC
341 the Supreme Court explained:―A child witness if found competent to
depose to the facts and reliable one such
evidence could be the basis of conviction. InCRL.A. 487/2016 Page 31 of 54
other words even in the absence of oath the
evidence of a child witness can be
considered under Section 118 of the
Evidence Act provided that such witness is
able to understand the questions and able to
give rational answers thereof. The evidence
of a child witness and credibility thereof
would depend upon the circumstances of
each case. The only precaution which the
court should bear in mind while assessing
the evidence of a child witness is that the
witness must be a reliable one and his/her
demeanour must be like any other competent
witness and there is no likelihood of being
tutored."17. SectionIn Ranjeet Kumar Ram v. State of Bihar,
2015 (6) Scale 529, it was observed:―Evidence of the child witness and its
credibility would depend upon the
circumstances of each case. Only precaution
which the court has to bear in mind while
assessing the evidence of a child witness is
that the witness must be a reliable one."18. SectionIn Nivrutti Pandurang Kokate v. The State
of Maharashtra, (2008) 12 SCC 565, the Supreme
Court highlighted the importance of the trial Judge
having to be satisfied that the child understands the
obligation of having to speak the truth and is not
under any influence to make a statement. The
Court explained:"The decision on the question whether the
child witness has sufficient intelligence
primarily rests with the trial Judge who
notices his manners, his apparent possession
or lack of intelligence, and the said Judge
may resort to any examination which will
tend to disclose his capacity and intelligenceCRL.A. 487/2016 Page 32 of 54
as well as his understanding of the
obligation of an oath. The decision of the
trial court may, however, be disturbed by
the higher court if from what is preserved in
the records, it is clear that his conclusion
was erroneous. This precaution is necessary
because child witnesses are amenable to
tutoring and often live in a world of make-
believe. Though it is an established
principle that child witnesses are dangerous
witnesses as they are pliable and liable to be
influenced easily, shaken and moulded, but
it is also an accepted norm that if after
careful scrutiny of their evidence the court
comes to the conclusion that there is an
impress of truth in it, there is no obstacle in
the way of accepting the evidence of a child
witness.‖'
(Emphasis supplied)60. SectionIn Yogesh Singh v. Mahabeer Singh, (2017) 11
SCC 195, the Supreme Court held thus, with respect to
the evidence of child witnesses:―22. It is well settled that the evidence of a child
witness must find adequate corroboration, before it
is relied upon as the rule of corroboration is of
practical wisdom than of law.(SectionSee Prakash v. State of M.P., (1992) 4
SectionSCC, Baby Kandayanathil v. State of
Kerala, 1993 Supp (3) SCC 667, SectionRaja Ram
Yadav v. State of Bihar, (1996) 9 SCC 287, Dattu
RaMr. ao SectionSakhare v. State of
Maharashtra, (1997) 5 SCC 341, SectionState of
U.P. v. Ashok Dixit, (2000) 3 SCC
and Suryanarayana v. State of Karnataka, (2001)
9 SCC 129.23. However, it is not the law that if a witness is
a child, his evidence shall be rejected, even if it is
found reliable. The law is that evidence of a childCRL.A. 487/2016 Page 33 of 54
witness must be evaluated more carefully and with
greater circumspection because a child is
susceptible to be swayed by what others tell him
and thus a child witness is an easy prey to
tutoring. (vide SectionPanchhi v. State of U.P., (1998) 7
SCC 177)
(Emphasis Supplied)61. One of the cardinal principles to be borne in mind,
while assessing the acceptability of the evidence of a
child witness, is that due respect has to be accorded to the
sensibility and sensitivity of the Trial Court, on the issue
of reliability of the child, as a witness in the case, as such
decision essentially turns on the observation, by the Trial
Court itself, regarding the demeanour, carriage and
maturity of the concerned child witness. An appellate
court would interfere, on this issue, only where the
records make it apparent that the Trial Court erred in
regarding the child as a reliable witness. Where no such
indication is present, the appellate court would be loath
to disregard the evidence of the child witness, where the
Trial Court has found it to be credible, convincing and
reliable. [Ref. SectionSatish v. State of Haryana, (2018) 11 SCC
300]62. SectionIn State of Madhya Pradesh v. Ramesh, (2011) 4
SCC 786, the following principles, regarding assessment
of the evidence of child witnesses, have been enunciated:―7. SectionIn Rameshwar v. State of Rajasthan, AIR
1952 SC 54 this Court examined the provisions of
Section 5 of the Oaths Act, 1873 and Section 118
of the Evidence Act, 1872 and held that (AIR p.
55, para 7) every witness is competent to depose
unless the court considers that he is prevented
from understanding the question put to him, or
from giving rational answers by reason of tender
age, extreme old age, disease whether of body or
mind or any other cause of the same kind. There is
always competency in fact unless the courtCRL.A. 487/2016 Page 34 of 54
considers otherwise. The Court further held as
under: (AIR p. 56, para 11)―11. ... it is desirable that Judges and
Magistrates should always record their
opinion that the child understands the duty
of speaking the truth and state why they
think that, otherwise the credibility of the
witness may be seriously affected, so much
so, that in some cases it may be necessary to
reject the evidence altogether. But whether
the Magistrate or Judge really was of that
opinion can, I think, be gathered from the
circumstances when there is no formal
certificate.‖8. SectionIn Mangoo v. State of M.P., AIR 1995 SC
959, this Court while dealing with the evidence of
a child witness observed that there was always
scope to tutor the child, however, it cannot alone
be a ground to come to the conclusion that the
child witness must have been tutored. The court
must determine as to whether the child has been
tutored or not. It can be ascertained by examining
the evidence and from the contents thereof as to
whether there are any traces of tutoring.9. SectionIn Panchhi v. State of U.P., (1998) 7 SCC
177, this Court while placing reliance upon a large
number of its earlier judgments observed that the
testimony of a child witness must find adequate
corroboration before it is relied on. However, it is
more a rule of practical wisdom than of law. It
cannot be held that "the evidence of a child
witness would always stand irretrievably
stigmatised. It is not the law that if a witness is a
child, his evidence shall be rejected, even if it is
found reliable. The law is that evidence of a child
witness must be evaluated more carefully and with
greater circumspection because a child is
susceptible to be swayed by what others tell himCRL.A. 487/2016 Page 35 of 54
and thus a child witness is an easy prey to
tutoring"10. SectionIn Nivrutti Pandurang Kokate v. State of
Maharashtra, (2008) 12 SCC 565, this Court
dealing with the child witness has observed as
under: (SCC pp. 567-68, para 10)―10. ‗... 7. ... The decision on the question
whether the child witness has sufficient
intelligence primarily rests with the trial
Judge who notices his manners, his
apparent possession or lack of intelligence,
and the said Judge may resort to any
examination which will tend to disclose his
capacity and intelligence as well as his
understanding of the obligation of an oath.
The decision of the trial court may, however,
be disturbed by the higher court if from what
is preserved in the records, it is clear that
his conclusion was erroneous. This
precaution is necessary because child
witnesses are amenable to tutoring and often
live in a world of make-believe. Though it is
an established principle that child witnesses
are dangerous witnesses as they are pliable
and liable to be influenced easily, shaped
and moulded, but it is also an accepted
norm that if after careful scrutiny of their
evidence the court comes to the conclusion
that there is an impress of truth in it, there is
no obstacle in the way of accepting the
evidence of a child witness.‖11. The evidence of a child must reveal that he
was able to discern between right and wrong and
the court may find out from the cross-examination
whether the defence lawyer could bring anything
to indicate that the child could not differentiate
between right and wrong. The court may ascertain
his suitability as a witness by putting questions toCRL.A. 487/2016 Page 36 of 54
him and even if no such questions had been put, it
may be gathered from his evidence as to whether
he fully understood the implications of what he
was saying and whether he stood discredited in
facing a stiff cross-examination. A child witness
must be able to understand the sanctity of giving
evidence on oath and the import of the questions
that were being put to him. (vide SectionHimmat
Sukhadeo Wahurwagh v. State of
Maharashtra, (2009) 6 SCC 712)12. SectionIn State of U.P. v. Krishna Master, (2010)
12 SCC 324, this Court held that there is no
principle of law that it is inconceivable that a child
of tender age would not be able to recapitulate the
facts in his memory. A child is always receptive to
abnormal events which take place in his life and
would never forget those events for the rest of his
life. The child may be able to recapitulate carefully
and exactly when asked about the same in the
future. In case the child explains the relevant
events of the crime without improvements or
embellishments, and the same inspire confidence of
the court, his deposition does not require any
corroboration whatsoever. The child at a tender
age is incapable of having any malice or ill will
against any person. Therefore, there must be
something on record to satisfy the court that
something had gone wrong between the date of
incident and recording evidence of the child
witness due to which the witness wanted to
implicate the accused falsely in a case of a serious
nature.13. Part of the statement of a child witness, even
if tutored, can be relied upon, if the tutored part
can be separated from the untutored part, in case
such remaining untutored part inspires confidence.
In such an eventuality the untutored part can be
believed or at least taken into consideration for the
purpose of corroboration as in the case of a hostileCRL.A. 487/2016 Page 37 of 54
witness. (vide SectionGagan Kanojia v. State of
Punjab, (2006) 13 SCC 516.)14. In view of the above, the law on the issue
can be summarised to the effect that the deposition
of a child witness may require corroboration, but
in case his deposition inspires the confidence of
the court and there is no embellishment or
improvement therein, the court may rely upon his
evidence. The evidence of a child witness must be
evaluated more carefully with greater
circumspection because he is susceptible to
tutoring. Only in case there is evidence on record
to show that a child has been tutored, the court can
reject his statement partly or fully. However, an
inference as to whether child has been tutored or
not, can be drawn from the contents of his
deposition.‖
(Emphasis supplied)63. The following guiding principles, governing the
admissibility and reliability of the evidence of child
witnesses, are readily discernible from the above cited
judicial pronouncements:(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 is reliable,
his evidence can be relied upon and can constitute
the basis of conviction.CRL.A. 487/2016 Page 38 of 54
(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, 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 to an extent mutually conflicting,
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 of tender years, are open to influenceCRL.A. 487/2016 Page 39 of 54
and could possibly be tutored. On the other hand,
the evidence of a competent child witness
commands credibility, 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.‖44. At the outset, one may note that there is no serious dispute, in
the present case, regarding the age of the child prosecutrix, which
stands established by the records from the office of the Registrar of
Births and Deaths (Ex. PW-3/A and Ex. PW-3/B) as 4 to 4 ½ years.Even otherwise, in the case of a child of such tender years, where it is
apparent that the child is below 12 years of age, it would also be open
to the Court, by a visual examination, to arrive at such a conclusion.
There has, predictably, been no opposition, on the part of the
appellant, to the finding, of the learned ASJ, that the prosecutrix, in
the present case, was around 4 ½ years of age.45. Adverting, now, to the evidence of the prosecutrix, I am unable
to subscribe to the submission, of Mr. Aditya Vikram, to the effect
that the capacity, of the prosecutrix, to testify, was not sufficiently
determined. The law, as enunciated by the Supreme Court in this
regard, proscribes this Court from interfering, on the aspect of
capacity, or capability, of the child prosecutrix to testify, with theCRL.A. 487/2016 Page 40 of 54
exercise of discretion, by the learned Trial Court, save and except in
rare cases, where it is apparent that the prosecutrix is not in a position
to testify reliably. In the present case, the learned ASJ posed certain
questions to the prosecutrix, which stand reproduced in para 13 supra,
before recording her statement under Section 164 of the Cr. P.C.. A
reading of the responses, of the prosecutrix, thereto, reveal that they
were natural and spontaneous, as well as true. I find no reason,
therefore, to differ with the finding, of the learned ASJ, that the
prosecutrix, in the present case, was competent to testify.46. In her statement, recorded under Section 164 Cr. P.C., the
prosecutrix stated that the appellant had taken her to the jungle, where
he removed her underwear and did something with her, which caused
a lot of pain. She complained that the pain was continuing, in her anal
region, till the date of recording of the statement. It would be seen that
the assault had taken place, on the appellant, on 5 th November, 2013,
whereas her statement, under Section 164, Cr. P.C., was recorded on
2nd January, 2014. Almost two months had elapsed, between the date
of commission of the assault and the date of recording of the
statement under Section 164 Cr. P.C.. Clearly, therefore, if the
prosecutrix was suffering pain, even after two months, the assault, on
the prosecutrix, was undoubtedly severe in intensity.47. In her testimony during trial, the prosecutrix deposed thus, to a
query as to what the appellant had done with her:"Jahan se susu karte hai us se kuch kiya tha mere jahan
se laterin karte hain.‖CRL.A. 487/2016 Page 41 of 54
Given the age of the prosecutrix, this would loosely translate to
testifying that the appellant had established peno-anal contact with the
prosecutrix. She went on to state that, after committing the act, the
appellant applied oil.48. PW-6 Guddi, in her testimony during trial, deposed, first, that,
in the toilet, she had noticed cut marks around the anal area of her
daughter, i.e. the prosecutrix, and that, on her carrying her as to what
had happened, the prosecutrix informed her that the appellant had, in
the jungle, taken off undergarments and, after gagging her with a
cloth, ―put her (penis) private organ in her anus as well as on her
urinating part.‖ PW-6 went on to state that, on further examination,
she noticed injury marks on the body of her daughter, along with
two-three cut marks on her anus. The testimony of PW-6 Guddi
remained unchallenged to the above effect, in cross examination.49. Seen holistically, these testimonies, in my view, leave no
manner of doubt that penetrative anal assault had been committed, by
the appellant, on the prosecutrix. Apart from the fact that PW-6 Guddi
had clearly testified that the prosecutrix had told her that the appellant
had inserted his penis in her anus, there could be no other explanation
for the injuries on the anal region of the prosecutrix, and the pain
which she was suffering as many as two months after the incident had
taken place. The MLC of the prosecutrix (Ex. PW-4/A) also indicates
that her mother, i.e. Guddi had informed the doctor, at the Hospital,
that, after she was brought home by the appellant, she was sufferingCRL.A. 487/2016 Page 42 of 54
loose motion, pain at the rectal site and was bleeding rectally. The
testimony of PW-6 Guddi during trial, therefore, was consistent with
the version of the incident, as recited by her to the doctor at the
Hospital. It is, therefore, inherently credible, and commands
acceptance.50. It is also trite that, in cases of sexual assault and rape,
conviction can rest on the sole testimony of the prosecutrix. Several
judicial pronouncements, on the issue, were digested, by the Supreme
Court in paras 9 to 14 of the report in SectionVijay @ Chinee v. State of
Madhya Pradesh, (2010) 8 SCC 191, which may be reproduced thus:―Sole evidence of prosecutrix
9. SectionIn State of Maharashtra v. Chandraprakash
Kewalchand Jain, (1990) 1 SCC 550 this Court held that
a woman, who is the victim of sexual assault, is not an
accomplice to the crime but is a victim of another
person's lust and, therefore, her evidence need not be
tested with the same amount of suspicion as that of an
accomplice. The Court observed as under: (SCC p. 559,
para 16)―16. A prosecutrix of a sex offence cannot be put
on par with an accomplice. She is in fact a victim
of the crime. SectionThe Evidence Act nowhere says that
her evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under Section
118 and her evidence must receive the same weight
as is attached to an injured in cases of physical
violence. The same degree of care and caution
must attach in the evaluation of her evidence as in
the case of an injured complainant or witness and
no more. What is necessary is that the court must
be alive to and conscious of the fact that it isCRL.A. 487/2016 Page 43 of 54
dealing with the evidence of a person who is
interested in the outcome of the charge levelled by
her. If the court keeps this in mind and feels
satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice
incorporated in the SectionEvidence Act similar to
Illustration (b) to Section 114 which requires it to
look for corroboration. If for some reason the
court is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for
evidence which may lend assurance to her
testimony short of corroboration required in the
case of an accomplice. The nature of evidence
required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a
prosecutrix is an adult and of full understanding
the court is entitled to base a conviction on her
evidence unless the same is shown to be infirm and
not trustworthy. If the totality of the circumstances
appearing on the record of the case disclose that
the prosecutrix does not have a strong motive to
falsely involve the person charged, the court
should ordinarily have no hesitation in accepting
her evidence.‖10. SectionIn State of U.P. v. Pappu, (2005) 3 SCC 594 this
Court held that even in a case where it is shown that the
girl is a girl of easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to absolve the
accused from the charge of rape. It has to be established
that there was consent by her for that particular
occasion. Absence of injury on the prosecutrix may not
be a factor that leads the court to absolve the accused.
This Court further held that there can be conviction on
the sole testimony of the prosecutrix and in case, the
court is not satisfied with the version of the prosecutrix, it
can seek other evidence, direct or circumstantial, by
which it may get assurance of her testimony. The Court
held as under: (SCC p. 597, para 12)CRL.A. 487/2016 Page 44 of 54
―12. It is well settled that a prosecutrix
complaining of having been a victim of the offence
of rape is not an accomplice after the crime. There
is no rule of law that her testimony cannot be acted
upon without corroboration in material
particulars. She stands at a higher pedestal than
an injured witness. In the latter case, there is
injury on the physical form, while in the former it
is both physical as well as psychological and
emotional. However, if the court of facts finds it
difficult to accept the version of the prosecutrix on
its face value, it may search for evidence, direct or
circumstantial, which would lend assurance to her
testimony. Assurance, short of corroboration as
understood in the context of an accomplice, would
do.‖11. SectionIn State of Punjab v. Gurmit Singh, (1996) 2 SCC
384, this Court held that in cases involving sexual
harassment, molestation, etc. the court is duty-bound to
deal with such cases with utmost sensitivity. Minor
contradictions or insignificant discrepancies in the
statement of a prosecutrix should not be a ground for
throwing out an otherwise reliable prosecution
case. Evidence of the victim of sexual assault is enough
for conviction and it does not require any corroboration
unless there are compelling reasons for seeking
corroboration. The court may look for some assurances
of her statement to satisfy judicial conscience. The
statement of the prosecutrix is more reliable than that of
an injured witness as she is not an accomplice. The Court
further held that the delay in filing FIR for sexual offence
may not be even properly explained, but if found natural,
the accused cannot be given any benefit thereof. The
Court observed as under: (SCC pp. 394-96 403, paras
8 21)―8. ... The court overlooked the situation in which
a poor helpless minor girl had found herself in the
company of three desperate young men who were
threatening her and preventing her from raisingCRL.A. 487/2016 Page 45 of 54
any alarm. Again, if the investigating officer did
not conduct the investigation properly or was
negligent in not being able to trace out the driver
or the car, how can that become a ground to
discredit the testimony of the prosecutrix? The
prosecutrix had no control over the investigating
agency and the negligence of an investigating
officer could not affect the credibility of the
statement of the prosecutrix. ... The courts must,
while evaluating evidence, remain alive to the fact
that in a case of rape, no self-respecting woman
would come forward in a court just to make a
humiliating statement against her honour such as is
involved in the commission of rape on her. In
cases involving sexual molestation, supposed
considerations which have no material effect on
the veracity of the prosecution case or even
discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such which
are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case. ... Seeking
corroboration of her statement before relying upon
the same, as a rule, in such cases amounts to
adding insult to injury. ... Corroboration as a
condition for judicial reliance on the testimony of
the prosecutrix is not a requirement of law but a
guidance of prudence under given circumstances.
...***
21. ... The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a
fatal nature, to throw out an otherwise reliable
prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without
seeking corroboration of her statement in material
particulars. If for some reason the court finds it
difficult to place implicit reliance on her testimony,
it may look for evidence which may lend assurance
to her testimony, short of corroboration requiredCRL.A. 487/2016 Page 46 of 54
in the case of an accomplice. The testimony of the
prosecutrix must be appreciated in the background
of the entire case and the trial court must be alive
to its responsibility and be sensitive while dealing
with cases involving sexual molestations."(emphasis in original)
12. SectionIn State of Orissa v. Thakara Besra, (2002) 9 SCC
86, this Court held that rape is not mere physical assault,
rather it often distracts (sic destroys) the whole
personality of the victim. The rapist degrades the very
soul of the helpless female and, therefore, the testimony
of the prosecutrix must be appreciated in the background
of the entire case and in such cases, non-examination
even of other witnesses may not be a serious infirmity in
the prosecution case, particularly where the witnesses
had not seen the commission of the offence.13. SectionIn State of H.P. v. Raghubir Singh, (1993) 2 SCC
622 this Court held that there is no legal compulsion to
look for any other evidence to corroborate the evidence
of the prosecutrix before recording an order of
conviction. Evidence has to be weighed and not counted.
Conviction can be recorded on the sole testimony of the
prosecutrix, if her evidence inspires confidence and there
is absence of circumstances which militate against her
veracity. A similar view has been reiterated by this Court
in SectionWahid Khan v. State of M.P. [(2010) 2 SCC 9 :
(2010) 1 SCC (Cri) 1208] placing reliance on an earlier
judgment in SectionRameshwar v. State of Rajasthan, [AIR
1952 SC 54 : 1952 Cri LJ 547].14. Thus, the law that emerges on the issue is to the
effect that the statement of the prosecutrix, if found to be
worthy of credence and reliable, requires no
corroboration. The court may convict the accused on the
sole testimony of the prosecutrix.‖
(Emphasis supplied)CRL.A. 487/2016 Page 47 of 54
51. Vijay @ Chinee (supra) was followed, by another Division
Bench of the Supreme Court in SectionState of Haryana v. Basti
Ram, (2013) 4 SCC 200. As in the present case, the prosecutrix, in
that case, who was less than 16 years of age, alleged misbehaviour
and, thereafter, rape, by her maternal uncle, intermittently over a
period of time. The High Court acquitted the accused, finding the sole
testimony of the prosecutrix to be insufficient to indict him. The
Supreme Court was critical of the approach of the High Court,
opining, thus, in paras 2 and 25 of the report:―2. In our opinion, the High Court committed an error
of law in not considering the evidence put forward by the
prosecutrix (who was less than 16 years when she was
raped) and ignoring the settled position in law that if the
sole testimony of the prosecutrix is credible, a conviction
can be based thereon without the need for any further
corroboration.*****
25. The law on the issue whether a conviction can be
based entirely on the statement of a rape victim has been
settled by this Court in several decisions. A detailed
discussion on this subject is to be found in SectionVijay v. State
of M.P., (2010) 8 SCC 191. After discussing the entire
case law, this Court concluded in para 14 of the Report as
follows: (SCC p. 198)―14. Thus, the law that emerges on the issue is to
the effect that the statement of the prosecutrix, if
found to be worthy of credence and reliable,
requires no corroboration. The court may convict
the accused on the sole testimony of the
prosecutrix.‖52. Profitable reference may also be made to one of the most recent
authorities on this point, State of Himachal Pradesh v. SanjayCRL.A. 487/2016 Page 48 of 54
Kumar, (2017) 2 SCC 51. There, too, a 9 year old girl was ravaged by
her uncle. The Supreme Court took pointed note of this fact, at the
very beginning of its reasoning in the judgment, in para 22 of the
report, thus:―Here is a case where charge of sexual assault on a girl
aged nine years is levelled. More pertinently, this is to be
seen in the context that the respondent, who is accused of
the crime, is the uncle in relation. Entire matter has to be
examined in this perspective taking into consideration the
realities of life that prevail in Indian social milieu.‖53. Para 31 of the report precisely sets out the legal position,
regarding the admissibility, and acceptability, of the evidence of a
victim of rape, and the advisability of seeking corroboration thereof,
before seeking to base conviction, thereon, in the following words:―31. After thorough analysis of all relevant and
attendant factors, we are of the opinion that none of the
grounds, on which the High Court has cleared the
respondent, has any merit. By now it is well settled that
the testimony of a victim in cases of sexual offences is
vital and unless there are compelling reasons which
necessitate looking for corroboration of a statement, the
courts should find no difficulty to act on the testimony of
the victim of a sexual assault alone to convict the
accused. No doubt, her testimony has to inspire
confidence. Seeking corroboration to a statement before
relying upon the same as a rule, in such cases, would
literally amount to adding insult to injury. The deposition
of the prosecutrix has, thus, to be taken as a whole.
Needless to reiterate that the victim of rape is not an
accomplice and her evidence can be acted upon without
corroboration. She stands at a higher pedestal than an
injured witness does. If the court finds it difficult to
accept her version, it may seek corroboration from some
evidence which lends assurance to her version. To insistCRL.A. 487/2016 Page 49 of 54
on corroboration, except in the rarest of rare cases, is to
equate one who is a victim of the lust of another with an
accomplice to a crime and thereby insult womanhood. It
would be adding insult to injury to tell a woman that her
claim of rape will not be believed unless it is
corroborated in material particulars, as in the case of an
accomplice to a crime. Why should the evidence of the
girl or the woman who complains of rape or sexual
molestation be viewed with the aid of spectacles fitted
with lenses tinged with doubt, disbelief or suspicion? The
plea about lack of corroboration has no
substance (SectionSee Bhupinder Sharma v. State of
H.P., (2003) 8 SCC 551). Notwithstanding this legal
position, in the instant case, we even find enough
corroborative material as well, which is discussed
hereinabove.‖
(Emphasis supplied)54. The legal position, therefore, is, quite unambiguous, that the
evidence of the prosecutrix, in a case of rape, is ordinarily to be
believed, and may form the sole basis for conviction, unless cogent
reasons, for the court to be hesitant in believing the statement at its
face value, and to seek corroboration thereof, exist.55. SectionIn Moti Lal v. State of M.P., (2008) 11 SCC 20, the Supreme
Cour held thus:―It is settled law that the victim of sexual assault is not
treated as accomplice and as such, her evidence does not
require corroboration from any other evidence including
the evidence of a doctor. In a given case even if the
doctor who examined the victim does not find sign of
rape, it is no ground to disbelieve the sole testimony of
the prosecutrix.‖
(Emphasis supplied)CRL.A. 487/2016 Page 50 of 54
56. In a similar vein, it was held, in SectionB. C. Deva @ Dyava v. State of
Karnataka, (2007) 12 SCC 122, as under:―The plea that no marks of injuries were found either on
the person of the accused or the person of the prosecutrix,
does not lead to any inference that the accused has not
committed forcible sexual intercourse on the prosecutrix.
Though the report of the gynaecologist pertaining to the
medical examination of the prosecutrix does not disclose
any evidence of sexual intercourse, yet even in the
absence of any corroboration of medical evidence, the
oral testimony of the prosecutrix, which is found to be
cogent, reliable, convincing and trustworthy has to be
accepted.‖57. The submission, of learned counsel for the appellant, that the
case against his client stood vitiated on account of the delay in lodging
the FIR, has only to be urged to be rejected. In cases of sexual assault,
especially on minors, delay in lodging of FIR, it is well settled, is,
ordinarily, not to be treated as fatal. The following passage, from
SectionMohd Ali @ Guddu v. State of U.P., (2015) 7 SCC 272, may be
reproduced, in this regard:―It is apt to mention here that in rape cases the delay in
filing the FIR by the prosecutrix or by the parents in all
circumstance is not of significance. The authorities of
this Court have granted adequate protection/allowance in
that aspect regard being had to the trauma suffered, the
agony and anguish that creates the turbulence in the mind
of the victim, to muster the courage to expose oneself in
a conservative social milieu. Sometimes the fear of social
stigma and on occasions the availability of medical
treatment to gain normalcy and above all the
psychological inner strength to undertake such a legal
battle. But, a pregnant one, applying all these allowances,
in this context, it is apt to refer to the pronouncement
in SectionRajesh Patel v. State of Jharkhand [(2013) 3 SCC
791 : (2013) 2 SCC (Cri) 279] wherein in the facts andCRL.A. 487/2016 Page 51 of 54
circumstances of the said case, delay of 11 days in
lodging the FIR with the jurisdictional police was treated
as fatal as the explanation offered was regarded as totally
untenable. This Court did not accept the reasoning
ascribed by the High Court in accepting the explanation
as the same was fundamentally erroneous.‖
(Emphasis supplied)58. PW-6 Guddi, the mother of the prosecutrix as, in the present
case, cited the trauma suffered by her daughter and by her, the
medical treatment which was being administered to her daughter, as
well as the efforts, of the parents of the appellant, in thwarting her
attempt at obtaining assistance or notifying others about the incident,
are factors which resulted in delay in lodging of the FIR. Her
testimony, to the said extent, remained undisturbed in cross
examination. Even otherwise, the MLC of the prosecutrix, too, records
the fact that medical treatment had been administered to her. These
factors, including the administration of medical treatment, have been
held, by the Supreme Court, in the afore extracted passage from Mohd
Ali (supra), to be sufficient to justify the delay in lodging of the FIR,
in a case of sexual assault. The delay, in the present case, is,
moreover, not so unconscionable, as to vitiate the prosecution, or the
consequent conviction and sentencing of the appellant.59. I am also entirely in agreement with the finding, of the learned
ASJ, that the appellant had failed to explain his absence from 5 p.m.,
when Guddi, along with her son, left him to reach his house with the
prosecutrix, at 10 p.m., when he actually reached his house. The onus
to explain this period was entirely on the appellant, by virtue ofCRL.A. 487/2016 Page 52 of 54
Section 114 of the Indian Evidence Act, 1872, and the appellant has
miserably failed to discharge it. I also endorse the finding, of the
learned ASJ, that there was no reason for Guddi to wrongly implicate
the appellant, especially as she regarded him as her brother. These
findings, of the learned ASJ are also, to my mind, unexceptionable,
and additionally serve to bring the guilt, for committing the offence,
home to the appellant.60. In view of the above discussion, I am of the opinion that the
impugned judgment of the learned ASJ, insofar as it convicts the
appellant, under Section 6 of the POCSO Act, and Section 376 of the
IPC, is unexceptionable, and does not call for any interference by this
Court.61. Perpetrators of sexual offences on innocent children are
psychosocial deviants, who cannot lay any claim to leniency. It is in
the order of nature, and is the sacred right of every living being to
blossom from infancy, to childhood, to adolescence and, finally, to
adulthood. This order of nature is thrown into violent disarray by the
sexual predators of children. The innocence of the prosecutrix in the
present case, who had barely savoured the first fragrance of
childhood, let alone adolescence, was brutally plundered by the
appellant, the deviancy of his act being augmented by the fact that he
chose to sodomise her. The trauma that the prosecutrix is bound to
suffer, on account of the appellant, is bound to be lifelong, and the
learned ASJ errs, therefore, if at all, on the side of leniency, in the
matter of awarding of sentence to the appellant. However, as the StateCRL.A. 487/2016 Page 53 of 54
is not in appeal against the impugned judgment and order on sentence,
I refrain from enhancing the sentence awarded.Conclusion
62. For the aforementioned reasons, the impugned appeal fails and
is dismissed.63. Trial Court record be returned forthwith.
C. HARI SHANKAR, J
JUNE 07, 2019/HJCRL.A. 487/2016 Page 54 of 54
