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Prem Bahadur @ Bhoj Bahadur vs State on 22 July, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A. 888/2017
PREM BAHADUR @ BHOJ BAHADUR ….. Appellant
Through: Mr. S.B. Dandapani, Adv.

versus

STATE ….. Respondent
Through: Mr. G.M. Farooqui, APP for
State with SI Narander Pal
Singh, PS GTB Enclave
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR

% JUDGMENT
22.07.2019

1. The appellant Prem Bahadur @ Bhoj Bahadur stands convicted,
by judgment dated 29th July, 2017, passed by the learned Additional
Sessions Judge (hereinafter referred to as ―the learned ASJ‖) of having
committed the offences punishable under Sections 363, 366, 376(2)(i)
and 506 of the Indian Penal Code, 1860 (hereinafter referred to as ―the
IPC‖) and Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter referred to as ―the POCSO Act‖).
Resultantly, vide order dated 31st July, 2017, he also stands sentenced
to (i) 10 years’ rigorous imprisonment (RI), for the offences
punishable under Section 366, IPC, with fine of Rs. 15,000/- and
default sentence of 3 months simple imprisonment (SI), (ii) 10 years’
RI for the offence punishable under Section 376(2)(i) of the IPC,
along with fine of Rs. 15,000/-, and default sentence of 3 months

CRL.A. 888/2017 Page 1 of 40
simple imprisonment (SI), (iii) 3 years’ RI for the offence punishable
under Section 506 IPC, with fine of Rs. 3,000/- and default sentence
of 1 month SI. The sentences have been directed to run concurrently
and the benefit of Section 428 of the Code of Criminal Procedure,
1973 (hereinafter referred to as ―Cr.P.C.‖) stand extended to the
appellant. The victim was also entitled to compensation to the tune of
Rs.5,00,000/- (Rupees Five Lakh only).

2. The learned ASJ has found that the appellant had enticed the
prosecutrix (who shall remain unnamed) from the custody of her
mother on the pretext of buying clothes for her and had taken her, with
him, to a house at Village Bishad, Pithoragarh, Uttarakhand, where he
had repeatedly raped her, also threatening to eliminate her, were she to
disclose the incident to anyone. As such, the learned ASJ has held the
offence of ―aggravated penetrative sexual assault‖ as defined in
Section 5 of the POCSO Act, to have been brought home to the
appellant and has, therefore, returned the impugned findings of
conviction and sentence.

3. One may directly proceed to the evidence, in order to gauge the
sustainability of the impugned judgment and order on sentence.

Evidence

4. The prosecution led the evidence of twenty-three witnesses,
whereas the appellant did not choose to lead evidence of any defence
witness. The twenty-three prosecution witnesses (hereinafter referred

CRL.A. 888/2017 Page 2 of 40
to as ―PWs‖) may conveniently be sub-divided into the following five
categories:

(i) Witnesses to the incident, i.e.

(a) PW-1 (the prosecutrix),

(b) PW-2 Meena (the mother of the prosecutrix),

(c) PW-4 Amrit Bahadur (the uncle of the
prosecutrix),

(d) PW-5 Ramu Ram (the owner of the house where
the prosecutrix was allegedly subjected to rape by
the appellant),

(e) PW-6 Rajender Prasad (the gram pahri of village
Bishad, Pithoragarh) and

(f) PW-7 SI Narender Giri,

(ii) Police witnesses, i.e.

(a) PW-8 Woman Constable (W/Const.) Prakash,

(b) PW-12 Head Const (HC) Shobhender Pal,

(c) PW-19 W/SI Pooja,

(d) PW-20 SI Vinit Kumar and

(e) PW-23 SI Vinita,

(iii) Hospital witnesses, i.e.

(a) PW-13 Dr. Rainy Pangtey (who testified as to the
medical examination of the prosecutrix),

(b) PW-16 Dr. B.S. Yadav (who testified as to the
medical examination of the appellant) and

(c) PW-21, Dr. Parmeshwar Ram (who testified as to
the medical examination of the appellant),

CRL.A. 888/2017 Page 3 of 40

(iv) the learned Metropolitan Magistrate Muneesh Garg (who
had recorded the statement of the prosecutrix under Section 164
Cr.P.C.), who testified as PW-22, and

(v) witnesses as to the age of the prosecutrix, i.e.

(a) PW-3 Raj Kumari (Principal of the School), and

(b) PW-18 Dr. N.S. Gunjial (radiologist).

5. Brief reference, to the evidence of the witnesses may now be
made.

Witnesses to the incident

The prosecutrix

6. The evidence of the prosecutrix was recorded on 12 th August,
2013. The learned ASJ recorded the age of the prosecutrix as ―about
nine years‖. Certain questions were put to the prosecutrix, in order to
estimate her capacity and competence to testify. After being satisfied
in this regard, the statement of the prosecutrix was recorded.

7. The prosecutrix deposed that, on 14th February, 2013, while she
was playing with her friends, the appellant asked her to accompany
him, stating that he would purchase clothes for her, and took her, with
him, to Anand Vihar in a taxi, where he took her, further, to village
Bishad, Pithoragarh, where she was kept confined in a house
belonging to PW-5 Ramu Ram. She further deposed that the appellant

CRL.A. 888/2017 Page 4 of 40
told PW-5 that she was his daughter. Having thus confined her in the
house of Ramu Ram, the prosecutrix alleged that the appellant
subjected her, at night, to repeated rape, after removing her clothes as
well as his, covering her mouth with his hand so that she could not
raise an alarm. The exact words of the prosecutrix, regarding the act
committed with her, merits reproduction thus:

―The accused Prem Bahadur told Ramu that I was
daughter of accused. The accused Prem Bahadur had
kept me in a room below the house of Ramu uncle.
Accused used to do ‗ganda kam’ with me. The witness
has been asked to explain ‗ganda kam’, The accused used
to put his male part used for urination called susu in my
part used for susu. Accused used to remove my garments
and also used to remove his own clothes. I was kept there
for two months‖

8. The prosecutrix further deposed that the appellant used to
threaten to kill her, were she to disclose, to anyone, what was
transpiring with her, and that she was, thereby, frightened into silence.
However, she stated, one day, finding no one present, she fled, and
was noticed by one aunty. The said aunty informed the appellant, who
followed her. She further deposed that she called her brother using the
telephone of the owner of the house, who intimated the Police.

9. The prosecutrix identified the appellant in court and also
identified and proved the statement, dated 25th March, 2013 recorded
from her under Section 164 Cr.P.C., which was, therefore, exhibited as
Ex. PW-1/A.

CRL.A. 888/2017 Page 5 of 40

10. In cross-examination, the prosecutrix deposed that the house, in
which she was confined, had three rooms and that, in the second and
third room cows, buffaloes and goats were kept. She denied a
suggestion, put to her, that the appellant owed money to her mother
and that she had, therefore, falsely implicated the appellant.

11. Deposing as PW-2, Meena, the mother of the prosecutrix also
testified, that on 14th February, 2013, the prosecutrix, while playing
outside her house, had gone missing, and that the appellant who used
to stay next door, was also missing. She, however, stated the age of
her daughter, i.e. the prosecutrix at the time, to be 13 years. She
further deposed that, after being unable to locate her daughter for ten
days, she filed a complaint in P.S. GTB. Enclave.

12. She further testified that, on 21st March, 2013, i.e. a month and
seven days after her daughter had gone missing, her son Vikas
informed her that he had received a phone call from the prosecutrix,
informing him that she was at PS Pithoragarh, and that he had
intimated the said fact to the police authorities who, along with her
brother-in-law Amrit Bahadur (PW-4), reached PS Pithoragarh the
very next day, where they found the prosecutrix in a house where she
had been provided sanctuary by the police. The providing of such
sanctuary was also testified by PW-17 Bhagirathi, the owner of the
house in question. PW-2 further testified that, on seeing her, the
prosecutrix started weeping and informed her that the appellant, on the
pretext of buying clothes for her, had taken her with him, and had

CRL.A. 888/2017 Page 6 of 40
brought her to Pithoragarh where he confined her in a house and
subjected her to regular sexual assault.

13. In cross-examination, PW-2 denied any financial dealing with
the appellant or that a false case has been registered against the
appellant for this reason.

14. Amrit Bahadur, deposing as PW-4, the brother-in-law of PW-2
Meena and uncle of the prosecutrix, confirmed having accompanied
PW-2 Meena and the police officials to Pithoragarh on 22nd March,
2013, where they found the prosecutrix, who, on being asked, stated
that she had been enticed away by the appellant on the pretext of
purchasing clothes, and that the appellant had taken her to his village
where he used to beat her regularly. He further deposed that they had
been informed, by the police, that the appellant had had ―illicit
relations with the prosecutrix many times‖. He also confirmed that the
appellant had been medically examined in the local Hospital at
Pithoragarh. On a specific query, PW-4 confirmed that the prosecutrix
had informed that the appellant had told the villagers that the
prosecutrix was his niece, and had also alleged that the appellant had
―made illicit relations with her without her consent many times‖.
Nothing substantial resulted from the cross-examination of PW-4.

15. PW-5 Ramu Ram testified, during trial, that in the Hindu month
of Magh (roughly corresponding to January), in 2013, the appellant
had come to his house with the prosecutrix, who was about 10-11
years of age, and had stated that he was his niece. He further testified

CRL.A. 888/2017 Page 7 of 40
that he had provided, to the appellant, the room, lying vacant in his
brother’s house, where the prosecutrix remained alone while the
appellant went for work. He also deposed that the prosecutrix did not
correspond with them frequently and that he had subsequently come to
know that the prosecutrix had been brought to the village by the
appellant, from Delhi. Nothing substantial resulted from his cross-
examination.

16. PW-6, Rajender Prasad, who was working as Gram Pahri at
Village Patti, Supauli, District Pithoragarh, deposed that, at 01:30 to
2:00 PM on 23rd March, 2013, while returning from Supauli, he saw
the prosecutrix, who was fleeing, crying that she was being chased by
the appellant. He deposed that, on being asked, the prosecutrix
revealed her name and informed that she had been brought, from
Delhi, to Pithoragarh, by the appellant. He further deposed that the
appellant attempted to snatch the prosecutrix from his custody,
whereupon he informed his area Patwari Sub-Inspector Narender Giri
(PW-7), who reached the spot with three to four other persons, and
questioned the appellant, who disclosed his name as Prem Bahadur.
He further testified that PW-7 SI Narender Giri detained the appellant
for breach of peace. He identified the appellant, who was present in
court. Nothing substantial resulted from his cross-examination.

17. Revenue Sub-Inspector Narender Giri, deposing as PW-7,
supported the above testimony of PW-6 Rajender Prasad, by testifying
that, on 21st March, 2013, on being contacted, telephonically, by
PW-6, he had reached the spot, where he found the prosecutrix and the

CRL.A. 888/2017 Page 8 of 40
appellant, who had been apprehended by PW-6 with the help of other
villagers. He further deposed that, on enquiry, the prosecutrix
disclosed her name and stated her age to be 11 years, and that the
prosecutrix had alleged that the appellant had, after inducing her,
enticed her away from Delhi. In view of the offensive attitude of the
appellant, PW-7 booked him under Sections 107/151 of the Cr.P.C.,
for committing breach of peace, and arrested him. He further testified
that he contacted Vikas, the brother of the prosecutrix, on his
telephone number being disclosed by the prosecutrix. He also
confirmed that, on instructions from the police, he ensured that the
prosecutrix remained in the safe custody of PW-17 (Bhagirathi), till
they arrived the next day, and took him with them. He further deposed
that the Arrest Memo of the appellant (Ex.PW-7/A) was prepared by
the Delhi Police, who also prepared the personal search memo
(Ex. PW-7/B) and recorded the disclosure statement of the appellant
(Ex. PW-7/C). He further confirmed that the prosecutrix, as well as the
appellant, had been medically examined. He identified the appellant in
court. Nothing substantial resulted from his cross-examination.

Police witnesses

18. W/Const. Prakash, deposing as PW-8, testified, during trial,
that, on 22nd March, 2013, she had joined the investigation of the
present case with SI Vinit Kumar (PW-20) and that, accompanied by
PW-20, HC Shobhender Pal (PW-12) and Meena (PW-2), they had
proceeded to Pithoragarh on the said day, where they met Revenue SI
Narender Giri (PW-7), who produced the prosecutrix ―aged about 7

CRL.A. 888/2017 Page 9 of 40
years‖, before them. She further stated that the I/O SI Vinit Kumar
(PW-20) recorded the statement of the prosecutrix under Section 161
Cr.P.C. and took, into custody, the appellant, who was subsequently
arrested vide Arrest Memo Ex. PW-7/A. She correctly identified the
appellant in court. Nothing substantial emerged from her cross-
examination.

19. HC Shobhender Pal deposed as PW-12 and testified that, on
22nd March, 2013, he joined the investigation in the present case, with
the I/O SI Vinit Kumar (PW-20), W/Const. Prakash (PW-8), as well as
Meena (PW-2), the mother of the prosecutrix, and the aunt of the
prosecutrix. He further stated that, accompanied by the mother and
aunt of the prosecutrix, they had proceeded to Pithoragarh, where they
reached at 10:00 AM on 23rd March, 2013. He further confirmed that
SI Narender Giri (PW-7) had met them at Pithoragarh and had
produced, before the I/O Vinit Kumar (PW-20), the prosecutrix, who
was interrogated by him and was taken to the Hospital for her medical
examination. He also confirmed the taking into custody, and
subsequent arrest, of the appellant, by the I/O Vinit Kumar (PW-20),
as well as his interrogation and the recording of his disclosure
statement (Ex. PW-7/C). He further deposed that the appellant had
taken them to the house where he confined the prosecutrix, regarding
which Pointing Out Memo (Ex. PW-12/A) was prepared.

20. In cross-examination, he testified that the custody of the
accused had been taken over by the I/O pursuant to the orders passed

CRL.A. 888/2017 Page 10 of 40
by the Sub-Divisional Magistrate (SDM). Nothing further emerged
from the cross-examination of PW-12.

21. PW-19 W/SI Pooja merely confirmed having received the
statement of the prosecutrix, under Section 164, Cr.P.C., recorded on
25th March, 2013, and having sent the exhibits of the case, on 28 th
March, 2013, to the Forensic Science Laboratory (FSL), for
examination. The I/O SI Vinit Kumar, deposing as PW-20, testified
that, on 23rd February, 2013, PW-2 (Meena) had arrived at PS GTB
Enclave and recorded her statement regarding the prosecutrix, aged
about seven years, having been missing since 14 th February, 2013,
whereupon he prepared rukka (Ex. PW-20/A), on the basis whereof
First Information Report (FIR) was registered. He further confirmed
that, on 22nd March, 2013, he received information from SI Narender
Giri (PW-7), to the effect that the prosecutrix was with them and that
they had apprehended the appellant as well. The information was
recorded in the roznamcha and conveyed to the SHO, whereafter he,
along with HC Shobhender Pal (PW-12), W/Const. Prakash (PW-8),
Meena (PW-2) and Amrit Bahadur (PW-4) proceeded to Pithoragarh,
where they reached on 23rd March, 2013. At Pithoragarh, they met SI
Narender Giri (PW-7), who produced the prosecutrix, and that, after
recording her statement under Section 161, Cr.P.C., he proceeded,
with W/Const. Prakash (PW-8) to the hospital where the prosecutrix
was medically examined. He further testified that he was informed, by
SI Narender Giri (PW-7), that the appellant had been arrested under
Sections 107/151 Cr.P.C. and was, in that context, produced before the
court of the learned SDM, Pithoragarh, who released the appellant on

CRL.A. 888/2017 Page 11 of 40
personal bond, whereafter PW-20 arrested the appellant vide Arrest
Memo (Ex.PW-7/A) and recorded his disclosure statement (Ex. PW-
7/C). The medical examination of the appellant was, thereafter,
conducted, and Pointing Out Memo, of the place where the appellant
had confined the prosecutrix (Ex.PW-12/A) was prepared. He also
confirmed having seized the date of birth record of the prosecutrix
(PW-3/A), from M.C. Primary School, Dilshad Garden, according to
which her date of birth was 7th February, 2006. He correctly identified
the appellant in court. Nothing substantial emanated from his cross-
examination.

22. PW-23 SI Vinita confirmed in her deposition, during trial,
having had the medical examination of the appellant conducted on 28 th
May, 2013, vide MLC report (Ex. PW-21/A). She identified the
appellant in court.

Hospital witnesses

23. Of the hospital witnesses, the evidence of Dr. Rainy Pangtey
(PW-13) pertained to the medical examination of the prosecutrix,
whereas Dr. B.S. Yadav (PW-16) and Dr. Parmeshwar Ram (PW-21)
deposed with respect to the medical examination of the appellant.

24. Dr. Rainy Pangtey (PW-13) confirmed that, on 23rd March,
2013, when she was posted as Lady Medical Officer at Mahila
Chikatsalya, Pithoragarh, the prosecutrix, about seven years of age,
had been brought to the hospital by W/Const. Prakash (PW-8) with an

CRL.A. 888/2017 Page 12 of 40
alleged history of kidnapping and sexual assault. She deposed that
there was no fresh injury on the body of the prosecutrix though there
was some redness in her perineal region. She further testified that
there was slight swelling, redness and infection on the labia majora of
the prosecutrix and that her hymen was found slightly torn. She
proved the MLC of the prosecutrix (Ex.PW-13/A). Paras 11 and 12 of
the said MLC alone are significant and may be reproduced, therefore,
in extenso, as under:

―11. Examination for injuries

(Look for Bruises, Systemic Physical torture injuries,
Nail abrasions, Teeth bite marks, Cuts, lacerations, head
injury, any other injury.)

Injury State Size Colour Swelling Simple/
Grievous

1. No Injury in any Part of the body

2. Expect redness in the perineal region.

12. Local examination of genital parts:

A. Pubic hair combing – not present

B. External Genitalia

i. Labia Mijora Any swelling, tears, edematous,
bruises or abrasion:- slight swelling

ii. Labia Minora Scratch, bruising, finger nail,
marks tear, infection….red,
infected

iii. Fourchette Bleeding tear :- No

CRL.A. 888/2017 Page 13 of 40
iv. Vulva Any injury, bleeding, discharge:- No

v. Perineum Redness (+)

C. Hymen-intact/Torn Slight torn (part pret)

Injury-fresh/oedema/congestion/
tenderness: tenderness

D. Vagina Cervix (Any bleeding/
tear/discharge/oedema/tenderness)*

Injury-fresh/oedema/congestion/
tenderness: Redness

Sd./-

23/03/2013
Lady Medical Officer
District Mahila Chikatsalya
Pithoragarh

*P/v examination only if medically
indicated. Digitally done, with admitting
little finger

E. Anus (encircle the relevant) Nil

Bleeding/tear/discharge/oedemat/tenderness.‖

25. The testimony of Dr. B. S. Yadav (PW-16) and Dr. Parmeshwar
Ram (PW-21), who testified with respect to the medical examination
of the appellant, are not of any serious significance, except for the fact
that they deposed that the appellant was capable of sexual intercourse
and had suffered certain injuries.

Evidence of the learned MM

CRL.A. 888/2017 Page 14 of 40

26. The learned Metropolitan Magistrate (hereinafter referred to as
―the learned MM‖) Muneesh Garg, deposing as PW-22, confirmed
having recorded the statement of the prosecutrix under Section 164 of
the Cr.P.C..

Witnesses regarding the age of the prosecutrix

27. Smt. Raj Kumari, Principal of M.C. School, deposing as PW-3,
confirmed having brought, with her, the original school record of the
prosecutrix, according to which she was born on 7th February, 2006.
She proved the admission form of the prosecutrix as Ex.PW-3/B, and
the certificate issued at the time of the admission as Ex.PW-3/A. In
cross-examination she admitted having mentioned the date of birth of
the prosecutrix in the record, on the basis of the unattested affidavit
given by PW-2, i.e. the mother of the prosecutrix. She, however,
denied that the date of birth of the prosecutrix, as entered in the
application form, was not correct.

28. Dr. N. S. Gunjial (PW-18), Senior Radiologist in the District
Hospital, Pithoragarh, testified, during trial, that, on the basis of the
X-ray of the prosecutrix, taken on 23rd Mach, 2013, he opined that the
prosecutrix was between five and ten years of age, and also proved his
report (Ex.PW-18/A), given in that regard.

29. After recording the statements of the above-mentioned
prosecution witnesses, the statement of the appellant was recorded
under Section 313 Cr.P.C. on 25th May, 2017. The appellant denied

CRL.A. 888/2017 Page 15 of 40
having enticed the prosecutrix from Delhi on the pretext of purchasing
clothes for her, or having taken her with him to the house of Ramu
Ram (PW-5). He also denied having confined her in the said premises
and having subjected her to sexual assault. He also denied his
disclosure statement. He insisted that he was innocent and had been
wrongly implicated and stated that he did not wish to lead any defence
evidence.

Other evidence

Statement of the prosecutrix under Section 164, Cr. P. C.

30. The statement of the prosecutrix was recorded under Section
164, Cr.P.C., on 25th March, 2013, after eliciting her response to
certain queries, so as to assess her capacity and competence to justify.
The age of the prosecutrix was recorded by the learned MM as ―about
7 years‖. The prosecutrix deposed, in her statement, that, on
14th February, 2013, when she was playing outside her house, the
appellant enticed her away, with him, on the pretext of finding her
some work, and that, at about 5:00 PM on the same day, he took her,
with him, by bus, to village Bishad, Pithoragarh, where he introduced
her, to the residents of the village, as his daughter. She further stated
that, out of fear, she did not disclose these facts to anyone.

31. She further alleged, in her statement, that the appellant used to
commit sexual assault, on her, at night, after removing their clothes, as
a result of which she suffered severe pain. Her descriptions of the acts

CRL.A. 888/2017 Page 16 of 40
perpetrated on her by the appellant, as provided in the said statement,
were in sync with her version in her testimony during trial. She further
testified that, one day, she managed to escape from the house, where
she disclosed to some villagers that she had been enticed away, from
Delhi, by the appellant, who also used to beat her, whereupon the
villagers apprehended the appellant, who was searching for her. She
confirmed that the Police reached the area and, after taking the
appellant away with them, asked an aunty to take custody of her.

Other exhibits/evidence

32. Ex. PW-3/A was the certificate, dated 23rd March, 2013, issued
by the School, to the effect that the prosecutrix was a student of Class
II in the School and that, from the record of the School, her date of
birth was 7th February, 2006. The Admission Form of the prosecutrix,
which also recorded the same date of birth, was also exhibited as
Ex. PW-3/B.

33. The report, dated 6th April, 2016, of the FSL, which was
exhibited as Ex.A-1, did not find any semen on any of the exhibits,
except the semen sample of the appellant. As such, no DNA profiling
was done, either. The FSL report is, therefore, of scant assistance in
the present case.

CRL.A. 888/2017 Page 17 of 40

The impugned judgment of learned ASJ

34. Having reconnoitered the evidence, the learned ASJ has, by the
impugned judgment, proceeded to convict the appellant in the terms
stated in para 1 (supra). He has, in so doing, ratiocinated thus:

(i) Addressing first, the issue of age of the prosecutrix, the
learned ASJ has, while noting the fact that the age of the
prosecutrix was variously mentioned in various documents, with
her own testimony being to the effect that she was 9 years of age,
her mother Meena (PW-2), having stated her age as 13 years, the
School Certificate (PW-3/A) having borne her out to be about
7 years at the time of incident, and witnesses, who had interacted
with her, having stated her to be 10 to 11 years of age, and
Dr. N.S. Gunjial (PW-18) having opined that she was 5 to 10
years of age, observed that, except for mother of the prosecutrix,
who had stated that she was 13 years of age, the consistent
position, emerging from other evidence on record, was that she
was between 5 and 10 years of age. Even so, giving the benefit of
doubt, the learned ASJ has treated the prosecutrix to be 13 years
of age.

(ii) Apropos the alleged inconsistency, in the evidence of the
prosecutrix, regarding the manner in which she reached
Pithoragarh, the learned ASJ notes that the evidence of the
witnesses was consistent to the extent of the prosecutrix having
been enticed away by the appellant to Pithoragarh, on the pretext
of buying her clothes, and that she had been taken by taxi till

CRL.A. 888/2017 Page 18 of 40
Anand Vihar and by bus, thereafter. In any event, notes the
learned ASJ, there was no dispute about the fact that she had
reached Pithoragarh, so that this aspect of the matter, lost its
significance.

(iii) Apropos the actual incident, the learned ASJ notes that
the victim was a child of 10 to 11 years of age, and came from a
poor socio-economic background so that, having been taken by
the appellant to Pithorgarh and confined in a house and subjected
to repeated assault, she would, naturally, not be in a frame of
mind in which she could complain or raise an alarm. The learned
ASJ has relied on the testimony of the prosecutrix as sufficient to
bear out the charge against the appellant. He has also, in this
context, noticed that, though the FSL report was unhelpful,
Dr. Rainy Pangtey (PW-13), who had examined her, confirmed
that there was swelling, redness and infection on her labia mijora
and partial hymen tear, as well as redness in the perineal region,
which indicated ―penetrative sexual assault‖ and rape. Relying on
the testimony of the prosecutrix, the learned ASJ has found that
the incident of rape was not an isolated one but that the
prosecutrix had been subjected to repeated sexual assaults,
thereby making out a case of commission of the offence of
―aggravated penetrated sexual assault‖ as defined in Section 5 of
the POCSO Act.

In view of these findings, the learned ASJ has convicted and sentenced
the appellant, in the manner already set out in para 1 hereinabove.

CRL.A. 888/2017 Page 19 of 40

Rival submissions

35. Mr. S.B. Dandapani, learned counsel arguing for the appellant,
first drew attention to the MLC of the prosecutrix, which found no
injury except redness in her perineal region, which according to him,
could also be attributed to infection. He also pointed out that the report
was to the effect the vagina admitted only to the tip of a little finger,
which was inconsistent with the finding of ―penetrative sexual
assault‖, which was a sine qua non for conviction of the appellant
under the POCSO Act. In this context, Mr. S.B. Dandapani also
emphasized the fact that the FSL was also unable to detect any semen
on any of the exhibits of the prosecutrix.

36. In the circumstances, he submitted that a case for conviction
under Section 366 IPC may have been made out, but certainly not only
for conviction under Section 376 IPC. He also sought to submit that
the entire conviction was founded on the evidence of the prosecutrix,
and that the said evidence, being an evidence of a child witness, was
required to be treated with extreme caution.

37. In fine, Mr. Dandapani submitted that his client had already
undergone 5.5 years of the sentence awarded by the learned ASJ.

38. Mr. G.M. Farooqui, learned APP, appearing for the State,
basically reiterated the findings of the learned ASJ and sought to
submit that the very finding of partial tearing of hymen of the

CRL.A. 888/2017 Page 20 of 40
prosecutrix was sufficient to make out a case of sexual assault, so that
the invocation against the appellant, of the provisions of the POCSO
Act, was unexceptionable.

Analysis

39. Having examined the case in all its aspects and contours, and
having addressed myself to the evidence on record and the
submissions advanced by learned Counsel, I find no reason,
whatsoever, to differ with the conclusion arrived at, by the learned
ASJ.

40. Regarding the age of the prosecutrix, it is correct that the
evidence of different witnesses, as orally tendered during trial or the
documents exhibited by them, is not uniform. If one were, however, to
discount the opinions, regarding the age of the prosecutrix, as
tendered merely on a visual approximation, one is left only with (i)
the oral testimony of PW-2 Meena, the mother of the prosecutrix, to
the effect that the prosecutrix was 13 years of age on the date of
incident, (ii) the school record of the prosecutrix, which, as per the
testimony of PW-3 Raj Kumari, the School Principal, was based on
the affidavit submitted by the mother of the prosecutrix at the time of
securing admission for her, according to which she was born on
7th February, 2006, thereby rendering her 7 years of age at the time of
incident, and (iii) the report of PW-18 Dr. N. S. Gunjial, Senior
Radiologist (Ex. PW-18/A), according to which she was between 5
and 10 years of age on 23rd March, 2013 and, consequently, also on

CRL.A. 888/2017 Page 21 of 40
the date of incident, which was approved by him in his testimony
during trial, which the learned counsel appearing for the appellant did
not choose the subject to cross-examination, despite grant of
opportunity. Inasmuch as the evidence of Dr. Gunjial (PW-18) was
based on medical opinion, and was not questioned by the appellant by
cross-examining him, his opinion merits acceptance. The learned ASJ
has, nevertheless, granted the benefit of doubt to the appellant in this
regard, and has treated the prosecutrix was 13 years of age, based on
the statement of her mother Meena (PW-2). Viewed any which way,
the prosecutrix would, on the date of incident, be less than 18 years of
age, thereby bringing her within the purview of the POCSO Act.

41. Adverting, now, to the commission of the actual offence itself,
the learned ASJ has found the appellant guilty of having committed
―aggravated penetrative sexual assault‖ on the prosecutrix.
―Aggravated penetrative sexual assault‖ is defined in Section 5 of the
POCSO Act as penetrative sexual assault on a child, which answers
one or more of the descriptions enlisted in clauses (a) to (u) of the said
Section. Clause (i), in Section 5, deals with commission of
―penetrative sexual assault causing grievous hurt or causing bodily
harm and injury or injury to the sexual organs of the child‖, clause (l)
deals with commission of ―penetrative sexual assault on the child
more than once or repeatedly‖ and clause (m) deals with commission
of ―penetrative sexual assault on a child below 12 years‖.

42. ―Penetrative sexual assault‖ is defined, in Section 3 of the
POCSO Act the following manner:

CRL.A. 888/2017 Page 22 of 40

―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
make 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.‖

Penile penetration, to any extent, therefore, is sufficient to answer the
description of ―penetrative sexual assault‖, as contained in Section 3
of the POCSO Act. This single factor, even by itself, is sufficient to
discountenance the reliance, of Mr. Dandapani, on the MLC of the
prosecutrix, and the opinion, therein, that the hymen of the prosecutrix
was only ―slightly torn‖. Penile penetration, even without reaching the
hymen, would be sufficient to answer the definition of ―penetrative
sexual assault‖, as contained in Section 3 of the POCSO Act and,
consequently, even if the hymen were intact, that would not belie the
allegation of penetrative sexual assault having been committed by the
accused. That apart, in the present case the hymen of the prosecutrix

CRL.A. 888/2017 Page 23 of 40
was not intact, but was found ―slightly torn‖ and, in a child, any
aberration of the hymen can legitimately give rise to an inference of
penetrative sexual assault having taken place. One may also refer, in
this context, to the judgment of the Supreme Court in Ranjit Hazarika
v. State of Assam, (1998) 8 SCC 635, which clearly holds that injury,
or rupturing of the hymen, are not necessary concomitants to
commission of penetrative sexual assault.

43. In the present case, the prosecutrix has, consistently, testified,
firstly under Section 164 of the Cr.P.C. and, later, during trial, that the
appellant had inserted his penis into her vagina, without her consent.

This testimony would, therefore, be more than sufficient to bring
home, to the appellant, the offence of having committed ―penetrative
sexual assault‖ on the prosecutrix.

44. The submission, of Mr. Dandapani, that, as there were no
injuries found on the prosecutrix, and her hymen was found only to be
―slightly torn‖, the offence of committing penetrative sexual assault,
or rape, could not be brought home to the appellant is, therefore,
entirely devoid of merit and is accordingly rejected.

45. Mr. Dandapani has also sought to question the testimony of the
prosecutrix on the ground that she was a child witness and her
evidence was, therefore, liable to be treated with caution. This
submission, too, is, in my view, devoid of substance. It is hardly
necessary to recount, at this point of time, keeping in mind the
development of the law over the years, the catena of authorities, the

CRL.A. 888/2017 Page 24 of 40
Supreme Court, to the effect that the sole testimony of a prosecutrix is
sufficient to convict an accused, provided the testimony is found to be
reliable and trustworthy. The statements of the prosecutrix, under
Section 164 of the Cr.P.C., as well as during trial, were cogent and
consistent. They were also in sync with the version of the incident, as
narrated, by the prosecutrix, to her mother (PW-2) and her uncle
Amrit Bahadur (PW-4). The learned ASJ has proceeded to record the
statement of the prosecutrix, on both occasions, only after putting
leading questions to her, and assessing her capacity and competence to
testify. On this aspect, in my view, the learned ASJ would be the best
judge and, unless this Court were to find that the questions put by the
learned ASJ were demonstrably insufficient as an index to gauge the
capacity, of the prosecutrix, to testify, or there were other attendant
circumstances which rendered her capacity and competence, to do so,
suspicious, as, for example, the case of a prosecutrix of extremely
tender age, or of unstable mental equilibrium, or where the questions
put to the prosecutrix were unreasonably perfunctory in nature, this
Court would be hesitant to unseat the view of the learned ASJ in that
regard. That apart, a reading of the testimony of the prosecutrix, first
under Section 164 of the Cr.P.C. and, thereafter, during trial,
convinces this Court that she was a reliable witness, and entirely
competent and capable to testify.

46. On the evidence of a child witness, and its value during trial,
this Court has, in Sanjay Kumar Valmiki v. State, 2018 SCC Online
Del 9304, had occasion to observe thus:

CRL.A. 888/2017 Page 25 of 40

―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, by
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

CRL.A. 888/2017 Page 26 of 40
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 Latif 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 Ramrao
Sakhare 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. In
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

CRL.A. 888/2017 Page 27 of 40
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. In 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. In 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 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

CRL.A. 888/2017 Page 28 of 40
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. In 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.

(See Prakash v. State of M.P., (1992) 4 SCC
225, Baby Kandayanathil v. State of Kerala, 1993
Supp (3) SCC 667, Raja Ram Yadav v. State of
Bihar, (1996) 9 SCC 287, Dattu Ramrao
Sakhare v. State of Maharashtra, (1997) 5 SCC
341, State of U.P. v. Ashok Dixit, (2000) 3 SCC
70 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 child
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 Panchhi 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

CRL.A. 888/2017 Page 29 of 40
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. Satish v. State of Haryana, (2018) 11 SCC
300]

62. In 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. In 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 court
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

CRL.A. 888/2017 Page 30 of 40
circumstances when there is no formal
certificate.‖

8. In 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. In 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 him and thus a child witness is an
easy prey to tutoring”

10. In 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

CRL.A. 888/2017 Page 31 of 40
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 to
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 Himmat
Sukhadeo Wahurwagh v. State of
Maharashtra, (2009) 6 SCC 712)

CRL.A. 888/2017 Page 32 of 40

12. In 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 hostile
witness. (vide Gagan 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

CRL.A. 888/2017 Page 33 of 40
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.

(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

CRL.A. 888/2017 Page 34 of 40
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 influence
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.

(vi) It is always prudent to search for
corroborative evidence, where conviction is sought
to be based, to a greater or lesser extent, on the

CRL.A. 888/2017 Page 35 of 40
evidence of a child witness. The availability of any
such corroborative evidence would lend additional
credibility to the testimony of the witness.‖

47. Sanjay Kumar Valmiki (supra) stands affirmed by the
Supreme Court, with the dismissal of the Appeal preferred
thereagainst.

48. Applying the above principles with the present case, there is no
reason, whatsoever, to doubt the correctness of the testimony of the
prosecutrix, regarding the assault committed, on her, by the appellant.
The evidence of other witnesses, too, supports the statement of the
prosecutrix. Meena (PW-2) and Amrit Bahadur (PW-4), in their
evidence during trial, consistently deposed that the prosecutrix was
weeping when they found her, and narrated, to them, the details of the
assault committed, on her person, by the appellant, including, in
specific detail, the manner in which the offence of ―penetrative sexual
assault‖ was perpetrated on her. These versions corroborate each
other. Further, Ramu Ram (PW-5) deposed that the appellant had
misrepresented, to him, that the prosecutrix was his niece. Rajender
Prasad (PW-6), the gram pahri of the village, in his testimony during
trial, also deposed that the prosecutrix was crying when he found her,
and was being chased by the appellant, who tried to snatch the
prosecutrix from his grip. Owing to the offensive attitude of the
appellant, the Revenue SI Narender Giri (PW-7) was, in fact,
constrained to arrest him for committing breach of the peace, invoking
Sections 107 and 151 of the Cr.P.C. SI Narender Giri, too, in his
evidence, deposed that the prosecutrix had told him that she had been

CRL.A. 888/2017 Page 36 of 40
induced away from Delhi, to Pithoragarh, by the appellant. These
facts, too, cumulatively seen, bear out the reliability and truth of the
deposition of the prosecutrix, firstly under Section 164 of the Cr.P.C.
and later during trial.

49. No exception, whatsoever, can, therefore, be found, to the
decision, of the learned ASJ, to convict the appellant for having
committed the offence of ―aggravated penetrative sexual assault‖,
within the meaning of Section 5 of the POCSO Act.

50. The conviction of the appellant under Section 376(2) (i) of the
IPC is, also, in my view, entirely sustainable. The said clause (as it
then existed) deals with commission of rape on a woman when she is
under 16 years of age. The assault committed by the appellant on the
prosecutrix entirely answers the definition of ―rape‖, as contained in
clause (a) of Section 375 of the IPC, which is in pari materia and in
haec verba with clause (a) of Section 3 of the POCSO Act, which
already stands reproduced hereinabove. Penetration of the penis, to
any extent, into the vagina, mouth, urethra or anus, of the prosecutrix,
therefore, answers the definition of ―rape‖, as contained in Section
375 of the IPC and, when committed on a child of less than 16 years
of age, justifies invocation of clause (i) of Section 376(2). The learned
ASJ has rightly relied on Section 42 of the POCSO Act, whereunder,
―where an act or omission constitutes an offence punishable under this
Act and also under sections 166A, 354A, 354B, 354C, 354D, 370,
370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian
Penal Code, then, notwithstanding anything contained in any law for

CRL.A. 888/2017 Page 37 of 40
the time being in force, the offender found guilty of such offence shall
be liable to punishment under this Act or under the Indian Penal Code
as provides for punishment which is greater degree.‖ As has been
correctly observed by the learned ASJ, the punishment contemplated,
for commission of ―aggravated penetrative sexual assault‖, in Section
6 of the POCSO Act, is RI for not less than 10 years, but which may
extend to imprisonment for life, along with fine. As against this, the
punishment for rape, which falls within any of the clauses in Section
376(2) of the IPC, is RI for not less than 10 years, but which may
extend to imprisonment for life, which shall mean imprisonment for
the remainder of that person’s natural life, along with fine. Though,
in the context of the present case, the distinction in punishment,
between Section 376(2) of the IPC and Section 6 of the POCSO Act,
may be somewhat superficial, it remains a matter of fact that the
punishment contemplated by Section 376(2) is, textually, more
stringent than that contemplated by Section 6 of the POCSO Act. The
learned ASJ has, therefore, correctly held that the offence perpetrated
by the appellant on the prosecutrix in the present case, inasmuch as it
falls both within clause (i) of Section 376 (2) of the IPC and Section
6 of the POCSO Act, merits punishment under the former provision.

51. Interestingly, in fact, a juxtaposed reading of clause (i) of
Section 376(2) of the IPC and Sections 4 (which deals with the
punishment for ―penetrative sexual assault‖) and 6 (which deals with
the punishment for ―aggravated penetrative sexual assault‖) of the
POCSO Act, in the backdrop of Section 42 of the latter statute, results
in the position, in law, in which every case of penetrative sexual

CRL.A. 888/2017 Page 38 of 40
assault, whether aggravated or not, on a child of less than 16 years of
age, would invariably attract clause (i) of Section 376(2) of the IPC,
and the applicability of Sections 4, or 6, of the POCSO Act would
stand completely foreclosed.

52. In the facts of the present case, the conviction, of the appellant,
by the learned ASJ, of having committed the offence under Section
366 of the IPC, which deals with kidnapping or abduction of any
woman, in order that she may be forced or seduced to illicit
intercourse, is also entirely sustainable in law, and calls for no
interference.

53. On the aspect of sentence, the learned ASJ has, if anything,
erred on the side of leniency. The appellant had enticed the
prosecutrix, who was playing with her friends, away from their
company, deprived her of the warm sanctuary of her parents and loved
ones, and transported her to what may be only termed a veritable hell-
hole, in a distant village, where she was confined, under threat of her
life, in a desolate room, for over a month, and subjected to repeated
acts of sexual assault. The acts of the appellant betoken complete
disregard for the bodily, mental and psychological integrity of the
prosecutrix, solely with a view to satisfy his unnatural sexual urges.
The degree of damage to the child, in such cases, is physical and
psychological in equal measure. It is impossible for a court, peopled,
after all, by lay human beings, to even conceptualize, let alone
visualize, what a child, such as the prosecutrix, must have undergone,
every traumatic second of the span of her confinement.

CRL.A. 888/2017 Page 39 of 40

54. Rape is, on every occasion and without exception, a crime of
power, more than one of lust, and, when committed on a child, is a
brute and unrelentingly savage expression thereof. No clemency or
mercy, whatsoever, can be shown to the perpetrator of such an act,
especially when the perpetration is in full possession of the senses and
faculties of the perpetrator.

55. As already observed by me hereinabove, the learned ASJ has, if
anything, been lenient, in sentencing the appellant only to 10 years’
RI. There being no appeal, by the State, however, for enhancement of
sentence, this Court is handicapped from opining further on that score.

Conclusion

56. No occasion, therefore, exists, for this Court to interfere with
the impugned judgment, and order on sentence, passed by the learned
ASJ, which are upheld in their entirety.

57. The appeal is accordingly dismissed.

58. Trial Court record be returned forthwith.

C. HARI SHANKAR, J
JULY 22, 2019
dsn

CRL.A. 888/2017 Page 40 of 40

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