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Niranjan vs State on 15 January, 2020

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A. 1271/2019
NIRANJAN ….. Appellant
Through Mr.Sumit Choudhary with
Ms.Aakanksha Bansal, Advocates.

versus

STATE ….. Respondent
Through Ms.Aashaa Tiwari, APP for the State
with Inspector Ravi Kant,
PS Mahendra Park and SI Seema,
PS Dwarka South.

Reserved on: 07th January, 2020
% Date of Decision: 15th January, 2020

CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

JUDGMENT

MANMOHAN, J:-

1. Present appeal has been filed on behalf of appellant-convict
challenging the judgment dated 17th July, 2019 and the order on sentence
dated 20th July, 2019 passed by the Additional Sessions Judge-01/Special
Judge: POCSO Act (North), Rohini Courts, Delhi in Sessions Case No.
58825/2016 arising out of FIR No.1123/2015 registered with Police Station
Mahendra Park, whereby the appellant-convict has been convicted under

CRL. A. No.1271/ 2019 Page 1 of 15
Section 376(2) IPC and Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter referred to as “POCSO Act”) and sentenced
to undergo rigorous imprisonment for life with fine of Rs.10,000/- under
Section 376(2) IPC.

BRIEF FACTS OF THE CASE

2. The facts of the present case, as noted by the Trial Court, are
reproduced hereinbelow:-

“2. The facts in brief, which are borne out from the record are
that in the year 2015, victim A, aged about 13 years, alongwith
her family including her mother, two younger brothers and her
father/accused, was residing in village Bhadola, Delhi. Her
mother used to work in a factory, while her father accused used
to work in Mandi. On 08.12.2015, when she returned back from
her school she found her father/accused at home, while her
mother was at her work and her younger brothers in school. Her
father asked her to take her meal and go to sleep. When the
victim went to her bed to sleep, accused/her father came to her
and started fondling with her, pressed her breast and thereafter
removed her legging and inserted his finger in her urinal part.
The victim started crying, where-after the accused told her not to
disclose about the incident to anyone. Again on 09.12.2015,
when the victim came back from her school, the accused
repeated the same incident. However, this time, the victim
narrated the entire incident to her mother, after she returned
back from her work, where-after a quarrel took place. On
11.12.2015, the victim called the Women Helpline number i.e.
1098, pursuant whereto an official from Women Helpline came
to her house on 12.12.2015, who inquired from the victim and
called the police at 100 number.

xxx xxx xxx

5. On appearance in the court, the accused was supplied with
the copies, and after hearing the counsel for the accused and Ld.
Addl. P.P. for the State, since prima facie case was made out, the
accused was charged for the offence u/s 6 POCSO Act and in

CRL. A. No.1271/ 2019 Page 2 of 15
alternative u/s 376(2)(f) IPC, on 06.02.2016 by the Ld.
Predecessor of this court, to which he pleaded not guilty and
claimed trial. However, since the offence of penetrative sexual
assault/rape, which was alleged to be committed by the accused,
was covered under general law i.e. u/s 376 (2)(f) IPC as well as
u/s 6 POCSO Act simultaneously and not in alternative, the
charge was amended accordingly, and amended charge for the
offence punishable u/s 6 POCSO Act and u/s 376(2)(f) IPC, was
framed against the accused on 04.07.2019, to which he pleaded
not guilty and claimed trial…..”

FINDING OF THE TRIAL COURT

3. The Trial Court convicted the appellant-convict under Section 6
POCSO Act and Section 376(2) IPC. The conclusion of the Trial Court is
reproduced hereinbelow:-

“47. In view of my discussions above, it emerges that :

(i) on the day of incident, the victim was aged about 12 years
and 8 months;

(ii) testimony of the material witnesses i.e. victim (PW1) and
her mother (PW2) are reliable and trustworthy,

(iii) the medical evidence, corroborates the version of the
victim that fingering was done in the vagina of the victim,

(iv) on 08.12.2015 and 09.12.2015, the accused started
fondling with his daughter / victim, and then inserted his
finger in her vagina repeatedly,

(v) the defence of the accused is a sham one, which do not
inspire any confidence,

(vi) the prosecution has succeeded in proving its case against
the accused.

48. Conclusion: In the light of my discussion above, the
testimony of prosecution witnesses are found to be trustworthy
and reliable, and the prosecution has succeeded in proving that
the accused, being the father in a position of trust of the victim,
subjected her to aggravated penetrative Sexual assault by
inserting his fingers in vagina on 08.12.2015 and 09.12.2015

CRL. A. No.1271/ 2019 Page 3 of 15
repeatedly and thus having committed an offence of aggravated
penetrative sexual assault as described u/s 5(l) (n) of the
POCSO Act, and punishable U/s 6 of POCSO Act and for the
offence punishable u/s 376 (2) IPC.”

ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT

4. Mr. Sumit Choudhary, learned counsel for the appellant-convict stated
that the prosecutrix (PW-1) had been tutored by her mother to falsely
implicate the appellant-convict i.e. her father, on account of matrimonial
discord. He contended that since the statement made by the prosecutrix
(PW-1) before the Court was identical to her statement before the police, the
possibility of the prosecutrix (PW-1) being tutored could not be ruled out.
He submitted that since the prosecutrix was a minor, the possibility of her
being tutored was higher and therefore, her deposition required
corroboration. However, according to him, in the present case the
prosecution had failed to furnish any corroboration. In support of his
submission, he relied upon Nivrutti Pandurang Kokate and Ors. vs. State of
Maharashtra (2008) 12 SCC 565.

5. He pointed out that as per the medical evidence i.e. the MLC (Ex.
PW-5/A), there was no history of „penetration‟. He also laid emphasis on
the fact that in the MLC (Ex. PW-5/A), the date of the incident of 09th
December, 2015 had been subsequently added and word “harassment” was
crossed out and replaced with the word “assault”. According to him these
changes/overwriting had been done to falsely implicate the appellant-
convict.

6. Learned counsel for the appellant-convict stated that there was an
inordinate and unexplained delay in the registration of the FIR in the present

CRL. A. No.1271/ 2019 Page 4 of 15
case as the first alleged incident had happened on 8th December, 2015 but
the FIR was registered on 11th December, 2015. He contended that delay in
lodging the FIR casts a serious doubt on the story of the prosecution. He also
stated that the PCR call allegedly made to the police had not been proved as
no one from the helpline/NGO was examined by the prosecution.
Consequently, he prayed that the appellant-convict should be given benefit
of doubt and the impugned order be set aside.

ARGUMENTS ON BEHALF OF THE STATE

7. Per contra, Ms. Aashaa Tiwari, learned APP for the State stated that
the appellant-convict had not given any details of the alleged matrimonial
discord to support the contention that he had been falsely implicated. She
pointed out that the mother of the prosecutrix (PW-2) had stated in her
cross-examination that the appellant-convict used to beat her but she had not
reported the same due to the fear of social stigma and the same had not been
controverted by the appellant-convict. Learned APP for the State
emphasised that the present case had been reported only because of the
gravity and seriousness of the offence committed by the appellant-convict
upon his daughter repeatedly.

8. Ms.Aashaa Tiwari, learned APP for the State contended that the
prosecutrix (PW-1) had accounted for the delay between the incident and the
FIR. She stated that the prosecutrix (PW-1) had called the helpline number
1098 on 11th December, 2015 and the next day i.e. 12th December, 2015,
helpline personnel arrived at her house and reported the matter to the police.
She further stated that the PCR call received regarding the incident was
reduced into DD No. 15 PP (Ex. PW-13/A) by Constable Monika (PW-13)

CRL. A. No.1271/ 2019 Page 5 of 15
and marked to HC Prem Ram (PW-11). The relevant portion of their
testimonies are reproduced hereinbelow:-

A) Testimony of Constable Monika (PW-13)
“On 12.12.2015, I was posted as DD Writer in PS Mahendra
Park, and was on duty from 8 am to 4 pm. On that day at about
12:45 pm wireless operator informed about sexual assault
happening on a 13 year old child at (address of the prosecutrix). I
recorded this information vide DD No.15PP. I further informed
about this incident to HC Prem Ram via telephone…..”

B) Testimony of HC Prem Ram (PW-11)
“On 12.12.2015, I was on emergency duty from 8 AM to 8 PM.
ON that day at about 12.45 PM, DD No.15PP was marked to me
for investigation. I alongwith Ct. Babloo reached at (address of
the prosecutrix). There, victim A, her mother and her father
(accused) (present in the court today and identified correctly)
were present. An NGO official was also there. On enquiry, it was
revealed that victim was sexually assaulted. I informed the Duty
Officer in this regard. Thereafter, SI Seema, Lady Ct. Santosh and
Ct. Pradeep came at the spot. I handed over the spot to SI Seema.
IO recorded my statement.”

9. In support of her contention, she relied upon the Supreme Court
judgment in State of Rajasthan vs. N.K. The Accused, (2000) 5 SCC 30,
wherein it has been held as under:-

“15. We may however state that a mere delay in lodging the FIR
cannot be a ground by itself for throwing the entire prosecution
case overboard. The court has to seek an explanation for delay
and test the truthfulness and plausibility of the reason assigned.
If the delay is explained to the satisfaction of the court it cannot
be counted against the prosecution…….”

CRL. A. No.1271/ 2019 Page 6 of 15

COURT‟S REASONING
IT IS AN ADMITTED FACT THAT THE PROSECUTRIX (PW-1) i.e. THE
DAUGHTER OF THE APPELLANT-CONVICT WAS A MINOR ON THE
DATE OF THE INCIDENT AS THE APPELLANT-CONVICT HAD
ACCEPTED THE SAID FACT IN HIS SECTION 313 CR.P.C STATEMENT.

10. Having heard the learned counsel for the parties and having perused
the evidence on record, this Court is of the view that it is an admitted fact
that the prosecutrix (PW-1) i.e. the daughter of the appellant-convict was a
minor aged about thirteen years on the date of the incident i.e. 8 th and 9th
December, 2015 as the appellant-convict had accepted the said fact in his
statement recorded under Section 313 Cr.P.C.

THIS COURT IS OF THE OPINION THAT THE TESTIMONY OF THE
PROSECUTRIX (PW-1) HAS A RING OF TRUTH, IS CLEAR, COGENT,
CONSISTENT, CREDIBLE, TRUSTWORTHY AND IS ALSO
CORROBORTED BY HER MLC AND THE DEPOSITION OF HER
MOTHER. THE CONTENTION THAT THERE WAS NO HISTORY OF
“PENETRATION”MENTIONED IN THE MLC IS CONTRARY TO FACTS
AS THE MLC SPECIFICALLY MENTIONS IN CONCLUSION “MAY BE
FINGERING DONE BY FATHER IN VAGINA”. CONSEQUENTLY,
PENETRATIVE SEXUAL ASSAULT AS DEFINED UNDER SECTION 3(b)
AND AGGRAVATED PENETRATIVE SEXUAL ASSAULT AS DEFINED
UNDER SECTION 5(1) AND (n) OF POCSO ACT ARE MADE OUT.

11. The prosecutrix (PW-1) had categorically deposed that her
father/appellant-convict had committed penetrative sexual assault upon her
on the aforesaid two dates. This Court is of the view that in order to examine
the veracity of her statement, it is essential to examine the same. The
relevant portion of the testimony of the prosecutrix (PW-1) is reproduced
hereinbelow:-

“On 08.12.2015, when I returned from my school, my
father at home and my mother had gone to her job. My brothers

CRL. A. No.1271/ 2019 Page 7 of 15
had gone to their School. My father asked me to take meals and
sleep. After taking sleep, I went to sleep. Then, my father
(Present in the Court today and correctly identified by witness)
came near me and after inserting his hands in my clothes, he
started pressing my breast. Then he removed my legging and he
inserted his finger in my urinating part. I started crying. He
asked me to hush down and told me not to disclose the same to
anybody. I did not tell this to anybody out of fear. Next day,
when I returned from my School, my father again inserted his
finger in my urinating part and I started crying loudly. Then my
father left me. When my mother returned from her work, I
narrated the incident to her. My parents quarrelled with each
other.

As my mother was not in her senses, on 11.12.2015, I
called at 1098 from mobile of my mother. Next day, one aunty
came at our residence and she called at 100 number. Police
reached at our house. My mother produced our father before
police….”

(emphasis supplied)

12. The fact that there were no contradictions in the deposition of the
prosecutrix shows that the prosecutrix has remained consistent with her
previous statement in the form of tehrir (Ex.PW-1/A) as well as her
statement recorded under Section 164 Cr.P.C (Ex.PW-1/B).

13. The mother of the prosecutrix had also deposed along similar lines
and supported the version of the prosecutrix. The relevant portion of the
testimony of the mother of the prosecutrix (PW-2) is reproduced
hereinbelow:-

“…On 09.12.2015 when I returned from my duty, my
daughter narrated the whole incident to me. She told me that
accused (present in the Court, correctly identified) who is my
husband, had removed her leggings and inserted his finger in her
urinating part. She also told me that on 08.12.2015 also accused
had committed wrong act with her, when I confronted accused

CRL. A. No.1271/ 2019 Page 8 of 15
about his act, he started quarrelling with me and left from there.

On 11.12.2015, my daughter called at helpline from my
mobile and informed them about the incident. On 12.12.2015,
one madam came at our residence and she made inquiries from
my daughter. That madam called at 100 number. Police
officials arrived at my residence. In the meantime accused also
came back. I produced accused before the police. IO recorded
statement of my daughter and my daughter was taken to medical
examination. I also accompanied her….”

(emphasis supplied)

14. The aforesaid testimony of the prosecutrix finds corroboration in her
MLC (Ex. PW-5/A) wherein the prosecutrix had stated that her father i.e. the
appellant-convict had sexually assaulted her. The examining medical officer
had observed “reddish area near hymen” and concluded that “may be
fingering done by father in vagina”. The relevant portion of the MLC (Ex.

PW-5/A) is reproduced hereinbelow:-

“BABU JAGJIVAN RAM MEMORIAL HOSPITAL, DELHI-110033
MLC REGISTER
xxx xxx xxx
Date of Examination 12/12/15

xxx xxx xxx
PARTICULARS OF INJURIES OR SYMPTOMS, IN CASE OF
POISONING
B/B Police for ME
(sd/-)
A/H/O Sexual harassment assault by father told by Patient
xxx xxx xxx
On 8 9 of December her father sexually assaulted her at 2 pm that
time no family member present in home. Her father touched her chest
and lower side.

CRL. A. No.1271/ 2019 Page 9 of 15

No h/of penetration given by her.

xxx xxx xxx
Reddish area near hymen
No bleed
No tear
Hymen intact
xxx xxx xxx

Conclusion- may be fingering done by father in vagina.”

(emphasis supplied)

15. The contention of the learned counsel for the appellant-convict that
there was no history of “penetration” mentioned in the MLC (Ex. PW-5/A)
is contrary to facts as the MLC (Ex. PW-5/A) specifically mentions in
conclusion “may be fingering done by father in vagina”. It is relevant to
note that insertion of any object or part of body amounts to penetrative
sexual assault as defined under Section 3 (b) of the POCSO Act, which
reads as under:-

“3. Penetrative sexual assault.–A person is said to commit
“penetrative sexual assault” if–

xxx xxx xxx

(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.”

(emphasis supplied)

16. Since the appellant-convict is the father of the prosecutrix i.e. „relative
of the child through blood‟ and he had committed the penetrative assault on
two separate occasions i.e. 08th and 09th December, 2015, the offence of
aggravated penetrative sexual assault as defined under Section 5 (l) and (n)
of POCSO Act are also made out. Section 5 (l) and (n) of POCSO Act read
as under:-

CRL. A. No.1271/ 2019 Page 10 of 15

“5.Aggravated penetrative sexual assault.–

xxx xxx xxx

(l) whoever commits penetrative sexual assault on the child more
than once or repeatedly; or
xxx xxx xxx

(n) whoever being a relative of the child through blood or adoption
or marriage or guardianship or in foster care or having a domestic
relationship with a parent of the child or who is living in the same
or shared household with the child, commits penetrative sexual
assault on such child; or”

(emphasis supplied)

17. As far as the alleged overwriting/changes in the MLC (Ex. PW-5/A)
are concerned, this Court is of the view that the same are not fatal to the case
of the prosecution. Firstly, the fact that the date of the second incident i.e. 9th
December, 2015 was added subsequently could be possible due to an
error/omission by the examining medical officer. Secondly, the examining
medical officer had signed next to where the word “harassment” had been
struck off and the word “assault” was written. This proves that these
changes were done contemporaneously. In any event, since no question
regarding overwriting was put to the witness, it cannot be raised at this
stage. The Supreme Court in Mahavir Singh Vs. State of Haryana, (2014) 6
SCC 716 has held as under:-

“16. It is a settled legal proposition that in case the question is
not put to the witness in cross-examination who could furnish
explanation on a particular issue, the correctness or legality of
the said fact/issue could not be raised. (Vide Atluri
Brahmanandam v. Anne Sai Bapuji and Laxmibai v.
Bhagwantbuva.”

(emphasis supplied)

CRL. A. No.1271/ 2019 Page 11 of 15

18. Though this Court finds merit in the submission of the learned
counsel for the appellant-convict that minor witnesses are susceptible to
being tutored and their statements should be corroborated; yet in the present
case there is nothing on record to suggest that the prosecutrix was tutored.

In fact, the testimony of the minor prosecutrix is corroborated by her MLC
(Ex.PW-5/A) and evidence of her mother. Consequently, the judgment of
the Supreme Court in Nivrutti Pandurang Kokate (supra) offers no
assistance to the appellant-convict.

19. Keeping in view the aforesaid, this Court is of the opinion that the
testimony of the prosecutrix (PW-1) has a ring of truth, is clear, cogent,
consistent, credible, trustworthy and is also corroborated by other evidence
on record.

IT IS SETTLED LAW THAT IF THE TESTIMONY OF THE PROSECUTRIX
INSPIRES CONFIDENCE, THE SAME CAN BE RELIED UPON TO
CONVICT THE ACCUSED PERSON.

20. It is also settled law that if the testimony of the prosecutrix inspires
confidence, the same can be relied upon to convict the accused person. The
Supreme Court in State (Govt. of NCT of Delhi) vs. Pankaj Chaudhary
2018 SCC OnLine SC 2256 has held as under:-

“26. It is now well-settled principle of law that conviction can be
sustained on the sole testimony of the prosecutrix if it inspires
confidence. [Vishnu alias Undrya v. State of Maharashtra,
(2006) 1 SCC 283]. It is well-settled by a catena of decisions of
this Court that there is no rule of law or practice that the
evidence of the prosecutrix cannot be relied upon without
corroboration and as such it has been laid down that
corroboration is not a sine qua non for conviction in a rape case.
If the evidence of the victim does not suffer from any basic

CRL. A. No.1271/ 2019 Page 12 of 15
infirmity and the „probabilities factor‟ does not render it
unworthy of credence, as a general rule, there is no reason to
insist on corroboration except from medical evidence, where,
having regard to the circumstances of the case, medical evidence
can be expected to be forthcoming. [State v. N.K. The
accused (2000) 5 SCC 30]”

(emphasis supplied)

THE CONTENTION OF THE APPELLANT-CONVICT THAT HE HAD
BEEN FALSELY IMPLICATED AT THE INSTANCE OF HIS WIFE IS
UNSUBSTANTIATED AND CANNOT BE ACCEPTED.

21. Further, this Court is in agreement with the contention of the learned
APP that the appellant-convict has failed to give any details or evidence
with respect to the matrimonial discord between him and the mother of the
prosecutrix. Consequently, the contention of the appellant-convict that he
had been falsely implicated at the instance of his wife is unsubstantiated and
cannot be accepted.

THE DELAY OF A FEW DAYS IN REGISTRATION OF THE FIR IS NOT
FATAL TO THE PROSECUTION‟S CASE AS IT HAS BEEN DULY
EXPLAINED BY THE PROSECUTRIX.

22. This Court is in agreement with the learned APP for the State that the
PCR call regarding the incident had been duly proved by the testimonies of
Constable Monika (PW-13) and HC Prem Ram (PW-11) and that there was
no inordinate delay in registration of the FIR inasmuch as the prosecutrix
had informed her mother about the incident on 09th December, 2015 and her
mother had quarrelled with the appellant-convict but had not taken any
further action. Thereafter, the prosecutrix called the helpline number 1098
on 11th December, 2015 and the helpline personnel arrived at her house on

CRL. A. No.1271/ 2019 Page 13 of 15
12th December, 2015 and informed the police. It is settled law that mere
delay in registration of FIR cannot be a reason to disbelieve the case of the
prosecution. The Supreme Court in State of Punjab vs. Gurmit Singh
Ors., (1996) 2 SCC 384 has held as under:-

“8. …The courts cannot overlook the fact that in sexual
offences delay in the lodging of the FIR can be due to
variety of reasons particularly the reluctance of the
prosecutrix or her family members to go to the police and
complain about the incident which concerns the reputation
of the prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of sexual
offence is generally lodged… ”

(emphasis supplied)

23. Consequently, this Court is of the view that the delay of a few days
in registration of the FIR is not fatal to the prosecution‟s case as it has been
duly explained by the prosecutrix.

THE APPELLANT-CONVICT HAS FAILED TO REBUT THE
PRESUMPTION ENSHRINED UNDER SECTIONS 29 30 OF POCSO
ACT.

24. Further, the appellant-convict has failed to rebut the presumption
enshrined under Sections 29 30 of POCSO Act.

CONCLUSION

25. In view of the aforesaid, this Court is in agreement with the findings
of the Trial Court. Consequently, the impugned judgment and order on
sentence passed by the Trial Court are upheld and the present appeal, being

CRL. A. No.1271/ 2019 Page 14 of 15
bereft of merit, is dismissed. A copy of the judgment be supplied to the
appellant-convict through the concerned Jail Superintendent.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J
JANUARY 15, 2020
js/rn

CRL. A. No.1271/ 2019 Page 15 of 15

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