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Shambhu Yadav vs State on 24 May, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 920/2018

Reserved on: 29.04.2019
Date of decision: 24.05.2019
IN THE MATTER OF:
SHAMBHU YADAV ….. Appellant
Through: Mr. S.S. Ahluwalia, Advocate
(DHCLSC) with Mr.Mohit Bangwal, Advocate

versus

STATE …Respondent
Through: Ms. Kusum Dhalla, APP

CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MR. JUSTICE VINOD GOEL

HIMA KOHLI, J.

1. The appellant has assailed the judgment and order on sentence
dated 16.05.2018 and 19.05.2018 respectively passed by the Court of the
learned ASJ-01/Special Judge, POCSO Act, North, Rohini, Delhi in
Sessions Case No.58941/16 arising from FIR No.80/2016, registered at
Police Station: Alipur under Section 377 IPC and under Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as ‘the POCSO Act’). In the impugned judgment, the appellant
has been convicted for the offence of aggravated penetrative sexual
assault on the victim, who is a minor boy aged 4 years, which is
punishable under Section 6 of the POCSO Act and for the offence
punishable under Section 377 IPC. By the order on sentence dated

CRL.A. 920/2018 Page 1 of 26
19.05.2018, observing that the punishment under Section 6 of the
POCSO Act is more stringent than the punishment prescribed under
Section 377 IPC, the learned ASJ has awarded a sentence of rigorous
imprisonment for life alongwith a fine of Rs.30,000/- under Section 6 of
the POCSO Act. In default of payment of fine, the appellant has been
directed to undergo simple imprisonment for 90 days.

2. The facts of the case as gathered from the record are that on
27.01.2016, SI Gajender Singh, who was posted at Police Station: Alipur,
received a PCR call that one male person had committed a wrong act
with a small boy at Teekri Khurd. The said information was recorded
vide DD no.12A and the case was marked to SI Gajender Singh for
investigation. SI Gajender Singh accompanied by another police
personnel went to the spot and found that the beat constable was already
present there. The beat constable produced the appellant and on inquiry,
SI Gajender Singh came to know that the appellant had sodomized a four
year old boy. The name of the victim has been anonymized in the
impugned judgment as A, that of his mother as Smt. U and of his father
as Sh. K. On coming to know that the victim had already been taken to
SRHC Hospital, SI Gajender Singh proceeded there and met his parents.
The appellant was also present at the hospital. Smt. U pointed towards
the appellant as the aggressor. Both, the victim and the appellant were
got medically examined by the concerned doctor.

3. In the meantime, the I.O., W/SI Tejwati arrived at the hospital
alongwith an official belonging to an NGO and took over the
investigation. The statement of the victim’s mother, Smt. U was
recorded. She stated that she has two sons and the victim, A is her elder

CRL.A. 920/2018 Page 2 of 26
son. On 27.1.2016, at 3 PM, when she was sitting on the terrace and
knitting, her son, A went to the room of the appellant situated in the same
building for eating chicken rice. After some time, A rushed upstairs and
told her that he was bleeding from the anus. On asking him how the
bleeding had taken place, A informed her that the appellant had done
something wrong with him. At this, the complainant raised a hue and cry
and people from the locality gathered there. Arun Kumar, a distant
relative of Smt. U, who was also residing in the same building,
apprehended the appellant from a nearby shop and reported the matter to
the police on phone. Based on her statement, the rukka was prepared and
forwarded to the Police Station.

4. While at the hospital, the I.O. received a sealed pullanda of the
exhibits of the appellant and the victim. The appellant was arrested and
his disclosure statement was recorded. Thereafter, the police officers
accompanied the appellant, the victim and his family members to the
scene of the crime. At the instance of the appellant, one plastic mattress
having blood stains and some yellowish liquid were found in his room
and the relevant portion was cut out, placed in a plastic poly bag and
seized. The I.O. prepared a site plan at the instance of the victim, duly
witnessed by SI Gajender Singh. She also recorded the statement of the
witnesses, including Arun Kumar, who had informed the police about the
incident. On the basis of the rukka, an FIR was registered.

5. On completion of the investigation, the charge-sheet was filed and
vide order dated 08.04.2016, the appellant was charged for committing
penetrative sexual assault on the victim punishable under Section 6 of the
POCSO Act. Alternatively, he was charged for committing an offence

CRL.A. 920/2018 Page 3 of 26
punishable under Section 377 IPC to which he pleaded not guilty and
claimed trial. During the course of trial, the original charge was amended
on 21.03.2018 and the appellant was charged for committing penetrative
sexual assault upon the victim by committing carnal intercourse and for
an offence defined under Section 5(m) of the POCSO Act, punishable
under Section 6 of the POCSO Act. He was also charged for committing
carnal intercourse punishable under Section 377 IPC. The appellant
pleaded not guilty to the said charge and claimed trial.

6. To bring home the guilt of the appellant, the prosecution examined
11 witnesses in all.

PUBLIC WITNESSES

7. Smt. U, mother of the victim, (PW-1) deposed as follows:-

“I have two children. Victim is aged about 4 years. Victim is
my elder child. On 27.01.2016, my husband was working on
private job and he left for his job at 8:30 am. I was doing
household chores. At about 3 pm, I was knitting on my
terrace. At that time, my son was going to the room of
accused for eating chicken rice. After some time, victim
came upstairs. Victim told me that he was bleeding. When I
asked him that from where he is bleeding, he told me that he
was bleeding from his anus. When I asked him as to how he
bleed. Victim told me that Shambhu (Accused present in the
Court, Correctly identified) caused it. Then I made hue and
cry.

Then I came downstairs and saw that the door of the room
of accused was latched. People from locality gathered
there. Arun who is my distant relative apprehended accused
from a nearby shop. Arun reported the matter to police on
phone. Police arrived at the spot. Victim was taken to

CRL.A. 920/2018 Page 4 of 26
hospital for his medical examination. Accused was also
taken by the police. My husband accompanied victim.
Police recorded my statement in the police station.

At this stage, statement of witness recorded by police is
shown to her. Witness identifies her signatures at point A.
The statement is now Ex.PW1/A.

Accused was arrested in my presence. I had shown the
place of incident to police. When I saw the room of accused,
I found some blood stains and yellow material on the bed
sheet. Police seized the same in my presence.

My statement in the present case was recorded by Ld. MM.

At this stage, an envelope is opened sealed with the seal of
SJ and a statement U/s 164 SectionCr.P.C. is taken out. The
witness has been shown the statement and she identifies her
signatures at point A and the same is Ex. PW1/B.”

8. The victim (PW-2) deposed as follows:-

“Shambhu (present in the Court, correctly identified) ne
apni nunu meri gand mein ghusa di.

Court Question: Did Shambhu removed your clothes?

Answer: Witness nodded in affirmation.
Court Question: Did you receive any injury?
Answer: Witness nodded in negative.
Court Question: Did you bleed?
Answer : Witness nodded in affirmative.

Court Question: Is Shambhu good person or bad person?

Answer: He is bad person.”

Though an opportunity was afforded to the appellant to cross-examine
the said witness, except for making him a suggestion that he had been
tutored by his mother, the defence did not cross-examine him on any
other aspect.

CRL.A. 920/2018 Page 5 of 26

9. Sh. K, father of the victim (PW-5) deposed that he had two
children. The victim was his older child, aged about 4 years. On
27.01.2016, he had gone to his factory situated at Bhorghar, Delhi. His
wife called him up in the afternoon and stated that the appellant, who
was residing on the second floor of the tenanted premises, where they too
were living, had committed an act of sodomy with their son, who was
bleeding from his anus. When PW-5 reached home, he saw that his son
was bleeding from his anus. By then, the appellant had been apprehended
by the public and the police had also reached at the spot. The victim was
got medically examined by the police at SRHC Hospital and a case was
registered against the appellant.

10. Arun Kumar (PW-4), who had first reported the matter to the
police, and stated that on 27.01.2016, he was present in his house when
PW-1 came to him crying and told him that somebody had committed a
wrong act with her son. He saw blood smeared on the thigh of the victim,
who uttered the name of the appellant. He then went to the
appellant’s room but found him missing. He noticed blood on the
appellant’s bed and on looking for him, found him near the house, where
he apprehended him and called the police. He handed over the appellant
to the police and the victim, A was got medically examined. The police
had seized the blood stained piece of plastic mattress in the presence of
the said witness.

POLICE WITNESSES

11. HC Vinod Kumar (PW-3) and HC Jaswant (PW-6) are the formal
witnesses to the investigation. PW-3 recorded DD No.12A (Ex.PW3/A1)
and got the FIR registered (Ex.PW3/A). He made an endorsement on the

CRL.A. 920/2018 Page 6 of 26
rukka (Ex.PW3/B) and issued a certificate under Section 65(B) of the
Indian Evidence Act (Ex.PW3/C). HC Jaswant (PW-6) posted as the
Malkhana Moharrar at Police Station: Alipur, deposed that he had made
entries in the register in respect of nine sealed samples, (Ex.PW6/A) and
released the sealed samples for being sent to the FSL, Rohini for an
opinion, (Ex.PW6/B), against acknowledgement receipt (Ex.PW6/C).
He deposed that as long as the exhibits had remained in his custody, they
were intact and untampered.

12. Ms. Sadhika Jalan (PW-9) posted as the Metropolitan Magistrate
at the relevant time, deposed that on receiving an application from the
police, she had recorded the statement of the victim’s mother (PW-1)
under Section 164 Cr.PC (Ex.PW1/B).

13. SI Gajender Singh (PW-7) was the initial Investigating Officer,
who proved the exhibits seized from the scene of the crime and collected
the sealed exhibits relating to the appellant and the victim from SRHC
Hospital. Thereafter, he had handed over the investigation to W/SI
Tejwati (PW-10), who recorded the statement of the complainant, took
over the sealed exhibits from PW-7 vide seizure memo (Ex.PW7/A and
PW7/B) and arrested the accused. The disclosure statement of the
appellant was recorded (Ex.PW7/E) and at his instance, the pointing out
memo was prepared in respect of the scene of the crime (Ex.PW7/F). The
exhibits collected from the scene of the crime were seized vide seizure
memo (Ex.PW7/G). The site plan prepared at the instance of the victim is
marked as Ex.PW7/H. On an application moved under Section 164
Cr.P.C. the statement of the PW-1 and PW-2 were recorded. PW-10
deposed that since the victim was of a tender age and his parents had not

CRL.A. 920/2018 Page 7 of 26
registered his birth, his age proof could not be obtained and his
ossification test was also not recommended for the same reason. She
stated that except for PW-4, no other public witness was present when
they returned from the hospital and reached back to the spot. She had
tried to make inquiries from the nearby residents of the room but none
had co-operated.

MEDICAL EVIDENCE

14. Besides the material public witnesses, the medical and forensic
evidence in the instant case is of great significance. Dr. Vinod Dahiya,
Medical Officer, SRHC Hospital (PW-8) proved the MLC of the victim
(Ex.PW8/A), wherein it was recorded that on local examination, bleeding
was found around the anal area. PW-8 also examined the appellant on
the same day and proved his MLC as Ex.PW8/B. Both the victim and
the appellant were referred by him to SR Surgery for further
examination.

15. Since the prosecution did not cite the doctor in the Surgery
Department of SRHC Hospital, as a witness, the trial court summoned
Dr. Jitender Nath Jha, Senior Resident, SRHC Hospital as Court Witness
No.1. He testified that on local examination of the victim, he had
observed, “blood clot in the perianal area, fresh anal tear noted, anal
spasm was present” and opined that “the findings are suggestive of anal
penetration”. He proved his detailed noting endorsed on the back of the
victim’s MLC, (Ex.CW1/A) and the detailed noting on the back of the
appellant’s MLC (Ex.CW1/B) and stated that thereafter, he had referred
the appellant to the Forensic Department for a final opinion on his
potency.

CRL.A. 920/2018 Page 8 of 26

16. Dr. R.K. Anand, Chairman and Additional Medical Superitendent,
Safdarjung Hospital, New Delhi (PW-11) stated that on 04.08.2017, a
Medical Board was constituted under the orders of the court to conduct
the potency test on the appellant. On examining the appellant, the Board
opined in the potency test report (Ex.PW11/11) that there was nothing to
suggest that he could not perform sexual intercourse.
FSL REPORT

17. Last, but not the least is the expert opinion of the FSL (Ex.F-1).
The report records that on a biological examination, blood of the
appellant (Ex.6) and rectal swab of the victim (Ex.8) were detected on
the plastic mattress seized from the appellant’s room (Ex.9). Further,
human semen was detected on the appellant’s underwear (Ex.1a) and
rectal swab of the victim (Ex.8). The results of the DNA examination
were that the alleles from the blood gauze of the appellant (Ex.6) were
accounted for in the alleles from his underwear (Ex.1a) and the victim’s
cotton wool swab (Ex.8). Further, the alleles from the plastic mat piece
(Ex.9) were accounted for in the alleles from the victim’s cotton wool
swab (Ex.8). Thus the DNA report established that there was sufficient
material in the exhibits to conclude that semen stains present in the
appellant’s underwear and the victim’s cotton wool swab were similar to
the blood gauze of the appellant and blood stains present on the victim’s
cotton wool swab were similar to those found on the plastic mat piece.

18. On conclusion of the prosecution evidence, the statement of the
appellant was recorded under Section 313 Cr.PC, wherein he denied the
prosecution case. In reply to question No.1, he admitted that on

CRL.A. 920/2018 Page 9 of 26
27.01.2016, at about 3 PM, the victim, A, aged 4 years, had gone to his
room to eat chicken rice. In reply to question No.14, he stated that PW-4
had falsely testified because he had to return him a sum of Rs.15,000/-
that he had borrowed from the appellant prior to the incident. He claimed
that he was falsely implicated in the case by PW-4 and PW-5 to extort
money. He sought to attribute the bleeding in the anus region of the
victim to his scratching his anus by using a sua.

19. In view of the testimony of PW-1 and PW-2 duly corroborated by
the medical evidence, the trial court convicted the appellant for the
offence punishable under Section 6 of the POCSO Act and under Section
377 IPC.

ARGUMENTS

20. To assail the impugned judgment, three pronged arguments were
advanced by Mr. S.S. Ahluwalia, learned counsel for the appellant.
Firstly, that there are material contradictions between the statement of
PW-1 under Sections 161 Cr.PC and 164 SectionCr.PC vis-a-vis her testimony
in court. Secondly, that PW-4 was an unreliable witness, since he is
related to the victim’s mother and though there were several public
witnesses present at the scene of the crime, the prosecution failed to
produce any independent witness. Lastly, it was urged that the
prosecution failed to show the spot from where the appellant had been
apprehended and contradictory statements in this regard were made by
PW-1 and PW-4.

21. On the point of sentence, learned counsel for the appellant cited
the decision of a co-ordinate Bench of this Court in SectionJabbar vs. State
reported as 251 (2018) DLT 71 (DB) and argued that simply because

CRL.A. 920/2018 Page 10 of 26
Section 6 of the POCSO Act contemplates punishment for aggravated
penetrative sexual assault as punishable with rigorous imprisonment for a
term that shall not be less than ten years, but may extend to
imprisonment for life besides fine, could not be a ground for the trial
court to have imposed the maximum punishment of rigorous
imprisonment for life on the appellant.

ANALYSIS AND DISCUSSION

22. We have heard the arguments advanced by Mr. S.S. Ahluwalia,
learned counsel for the appellant and Ms. Kusum Dhalla, learned APP
and carefully scanned the evidence brought on record.

23. Broadly speaking, the trial court has convicted the appellant by
relying on the testimonies of PW-1 and PW-2 and noted that the same
stand duly corroborated by medical and forensic evidence brought on
record. The victim was four years old at the time of the crime. Being a
child witness, his testimony was recorded in-camera and the learned ASJ
asked him general questions so as to satisfy herself that he was
competent to answer questions. The reply of the victim to the questions
posed was brief and to the point. He identified the appellant, who was
present in court, confirmed the fact that he had removed his clothes and
stated that “Shambhu (present in the Court, correctly identified) ne apni
nunu meri gand mein ghusa di”. On asking the victim if he had received
any injury, he had nodded in the negative. The court then re-framed the
question and asked him as to whether he had suffered any bleeding, to
which he nodded in the affirmative. On asking him as to whether the
appellant was a good person or a bad person, the victim answered that he
was a bad person. Though an opportunity to cross-examine PW-2 was

CRL.A. 920/2018 Page 11 of 26
available to the defence, except for suggesting that he had been tutored
by his mother, no other question was asked.

24. Similarly, PW-1 to whom the victim had come running after the
ghastly act was committed by the appellant, corroborated her son’s
version and stated that on the fateful day, her son had gone to the
appellant’s room for eating chicken-rice and when he came to the terrace,
where she was present, the child had told her that he was bleeding from
his anus. On asking him as to how he had suffered the injury, PW-2
named the appellant as the perpetrator of the crime. It is noteworthy that
at the time her statement was recorded under Section 164 Cr.PC, she had
narrated the very same facts. During her testimony, there was no attempt
on the part of PW-1 to embellish her statement, or improve upon the
same in any manner. Though she was cross-examined by the defence,
nothing material had emerged therefrom.

25. The touchstone for evaluating the testimony of a child victim in
cases of sexual assault is well settled. The judicial dicta is that as long as
the victim’s testimony is found to be credible, sincere and rings true, it is
sufficient to convict the accused. It is equally true that there is no
impediment in accepting the uncorroborated testimony of a child victim.
The only pre-condition is that such a testimony should be carefully
scrutinized before accepting or rejecting it.

26. SectionIn Panchhi Ors. vs. State of U.P. reported as AIR 1998 SC
2726, the Supreme Court observed that the evidence of a child witness
cannot be rejected outright. However, the said evidence ought to be
carefully evaluated and scrutinized with greater circumspection because

CRL.A. 920/2018 Page 12 of 26
a child is susceptible to be swayed by what others tell him and can be an
easy prey to tutoring. The Court must assess as to whether the statement
of the victim is his voluntary expression of what had transpired or was it
made under the influence of others. A similar view was expressed in
SectionMohd. Kalam vs. State of Bihar reported as (2008) 7 SCC 257.

27. SectionIn State of H.P. vs. Gian Chand reported as (2001) 6 SCC 71, the
Supreme Court observed that the court has first to assess the trustworthy
intention of the evidence adduced and available on record. If the court
finds the evidence adduced worthy of being relied on, then the testimony
has to be accepted and acted upon, though there may be other witnesses
available who could have been examined but were not examined.

28. SectionIn State of Rajasthan vs. Om Prakash reported as (2002) 5 SCC
745, the Supreme Court elaborated the approach that courts must adopt
in the cases of child rape, as follows:-

“13. The conviction for offence under Section 376 IPC
can be based on the sole testimony of a rape victim is
a well-settled proposition. SectionIn State of
Punjab v. Gurmit Singh [(1996) 2 SCC 384],
referring to SectionState of Maharashtra v. Chandraprakash
Kewalchand Jain [(1990) 1 SCC 550], this Court held
that it must not be overlooked that a woman or a girl
subjected to sexual assault is not an accomplice to the
crime but is a victim of another person’s lust and it is
improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she
were an accomplice. It has also been observed in the
said decision by Dr Justice A.S. Anand (as His
Lordship then was), speaking for the Court that the
inherent bashfulness of the females and the tendency
to conceal outrage of sexual aggression are factors
which the courts should not overlook. The testimony
CRL.A. 920/2018 Page 13 of 26
of the victim in such cases is vital and unless there
are compelling reasons which necessitate looking for
corroboration of her statement, the courts should
find no difficulty to act on the testimony of a victim
of sexual assault alone to convict an accused where
her testimony inspires confidence and is found to be
reliable. Seeking corroboration of her statement
before relying upon the same, as a rule, in such cases
amounts to adding insult to injury.” (emphasis added)

29. SectionIn Mohd. Kamal vs. State of Bihar reported as (2008) 7 SCC 257,
where it was argued that the evidence of the child witness in a rape case
should not have been accepted in the absence of any corroboration, the
Supreme Court dismissed the appeal filed by the accused by observing
that the trial court and the High Court had found the evidence of the child
witness as cogent, credible, free from any influence and reliable.

30. SectionIn State of Himachal Pradesh vs. Sanjay reported as (2017) 2 SCC
51, where the prosecutrix at the relevant time was 9 years old and charge
was framed against the accused under Sections 376 (2) (f) and 506 SectionIPC,
the Supreme Court made the following pertinent observations, which in
our view, would apply with equal force to a victim of a sexual offence
covered under the POCSO Act :-

“30. By no means, it is suggested that whenever such
charge of rape is made, where the victim is a child, it has
to be treated as a gospel truth and the accused person has
to be convicted. We have already discussed above the
manner in which the testimony of the prosecutrix is to be
examined and analysed in order to find out the truth
therein and to ensure that deposition of the victim is
trustworthy. At the same time, after taking all due

CRL.A. 920/2018 Page 14 of 26
precautions which are necessary, when it is found that the
prosecution version is worth believing, the case is to be
dealt with all sensitivity that is needed in such cases. In
such a situation one has to take stock of the realities of life
as well. Various studies show that in more than 80% cases
of such abuses, perpetrators have acquaintance with the
victims who are not strangers. The danger is more within
than outside……………. ”

“31………………..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 insist 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?…………..” (emphasis added)

CRL.A. 920/2018 Page 15 of 26
[Also Refer: SectionRameshwar vs. State of Rajasthan; AIR 1952 SC 54,
SectionMangoo vs. State of M.P.; AIR 1995 SC 959, SectionGagan Kanojia and Anr.
vs. State of Punjab; (2006) 13 SCC 516, SectionNivrutti Pandurang Kakote and
Ors. vs. State of Maharashtra; AIR 2008 SC 1460, SectionState of Madhya
Pradesh vs. Ramesh; (2011) 4 SCC 786 and SectionRaj Kumar vs. State of
Madhya Pradesh (2014) 5 SCC 353]

31. Besides the testimony of PW-1 and PW-2, the learned trial court
also relied on the testimony of PW-4, a resident of the very same
building, who had noticed blood on the thigh of the victim and had gone
to the room of the appellant, who was found missing. PW-4 had noticed
blood on the bed of the appellant and apprehended him from a nearby
place.

32. The plea of the learned counsel for the appellant that PW-4 is an
interested witness being a distant relative of the victim’s mother, is found
to be devoid of merits. It is no doubt a well settled rule of prudence that
the evidence of a related or interested witness should be examined
meticulously, but once the court is satisfied that his/her testimony is
credible, then the said evidence can be relied upon even without
corroboration. Further, unless it is proved that such a witness harbours
some enmity against the accused or he wished to implicate him falsely,
for all effects and purposes, he can be treated as an independent witness.

CRL.A. 920/2018 Page 16 of 26

33. In Seeman alias SectionVeeranam vs. State reported as (2005) 11 SCC
142, the Supreme Court had explained the above legal position in the
following manner:-

“4. It is now well settled that the evidence of witness
cannot be discarded merely on the ground that he is a
related witness or the sole witness, or both, if otherwise the
same is found credible. The witness could be a relative but
that does not mean to reject his statement in totality. In
such a case, it is the paramount duty of the court to be
more careful in the matter of scrutiny of evidence of the
interested witness, and if, on such scrutiny it is found that
the evidence on record of such interested sole witness is
worth credence, the same would not be discarded merely
on the ground that the witness is an interested witness.
Caution is to be applied by the court while scrutinizing the
evidence of the interested sole witness. The prosecution’s
non-production of one independent witness who has been
named in the FIR by itself cannot be taken to be a
circumstance to discredit the evidence of the interested
witness and disbelieve the prosecution case. It is well
settled that it is the quality of the evidence and not the
quantity of the evidence which is required to be judged by
the court to place credence on the statement.” (emphasis
added)

34. SectionIn Waman v. State of Maharashtra reported as (2011) 7 SCC 295,
while dealing with the case of a related witness, the law was summarized
by the Supreme Court in the following words:-

“20. It is clear that merely because the witnesses are
related to the complainant or the deceased, their evidence
cannot be thrown out. If their evidence is found to be
consistent and true, the fact of being a relative cannot by
itself discredit their evidence. In other words, the
relationship is not a factor to affect the credibility of a
witness and the courts have to scrutinize their evidence
meticulously with a little care.” (emphasis added)
CRL.A. 920/2018 Page 17 of 26

35. The law relating to related/interested witness was distilled by a
Division Bench of this Court of which one of us (Hima Kohli, J) was a
member, in a recent decision in the case of SectionGovind Raj vs. The State
(NCT of Delhi) reported as 2019 (257) DLT 633, wherein the conclusion
drawn was as follows:-

“32. A glance at the above decisions makes it clear that the
evidence of an interested and/or related witnesses should
not be examined with a coloured vision simply because of
their relationship with the deceased. Though it is not a rule
of law, it is a rule of prudence that their evidence ought to
be examined with greater care and caution to ensure that it
does not suffer from any infirmity. The court must satisfy
itself that the evidence of the interested witness has a ring
of truth. Only if there are no contradictions and the
testimony of the related/interested witness is found to be
credible, consistent and reasonable, can it be relied upon
even without any corroboration. At the end of the day, each
case must be examined on its own facts. There cannot be any
sweeping generalisation.” (emphasis added)

[Also refer: SectionDalip Singh vs. State of Punjab 1954 SCR 145, SectionSarwan
Singh vs. State of Punjab (1976) 4 SCC 369, SectionKartik Malhar vs. State of
Bihar (1996) 1 SCC 614 and SectionJayabalan vs. UT of Pondicherry (2010) 1
SCC 199 and SectionRaju vs. State of Tamil Nadu (2012) 12 SCC 701]

36. In the instant case, PW-4 is a natural witness, who was at home on
the relevant date and time and residing in the very same building, where
the appellant, the victim and his family were residing as tenants. By no
stretch of imagination can he be treated as an interested witness for the
simple reason that the word, ‘interested’ connotes that a witness ought to

CRL.A. 920/2018 Page 18 of 26
have had some animus against the accused or he harboured a hostility
against him. The appellant’s version that PW-4 had reason to depose
falsely since he had borrowed some money from him prior to the date of
the incident, rings hollow particularly in the light of yet another version
of the incident sought to be offered by him to the effect that both, PW-3
and PW-4 had planned to extort money from him. Though the appellant
was afforded an opportunity to lead evidence, he failed to prove the said
allegations.

37. Another defence taken by the appellant was that the victim had
started bleeding from his anus having scratched the same with a sua, used
to stitch jute cloth. The said argument was tested and negated by the trial
court for the following reasons:-

“35. The victim bleeding from his anus is a
factum, which is not disputed by the accused, the
same having been otherwise, emphatically established by
the testimony of the victim, his mother and the MLC of the
victim Ex. PW 8/A, as well as the testimony of Mr. Arun
Kumar examined as PW 4, who testified that he also
noticed blood on the thighs of the victim, soon after the
incident. The suggestion given to PW 1 / the mother of
the victim on behalf of the accused, was that the victim
was bleeding from his anus because he had scratched
himself with a ‘Sua’. However, had this been the case, and
the visit of the victim at the house of the accused, not
having been disputed, where did the alleged Sua come
from, was not thrown any light upon. Presumably, had
this been the case, the Sua would have also been present
in the house of the accused, and if a four year old child
starts scratching himself and that too on his anal region,
with a Sua, surely the adult person i.e. the accused would
have stopped him from doing so. Going a little further, if
the child had been wanting to scratch himself with a Sua,
the child would have to extend his arm towards his back
CRL.A. 920/2018 Page 19 of 26
and only then, with great difficulty, could he have
succeeded in being able to scratch just the exact place i.e.
the anus without causing injury on his hips or the
surrounding anal region. Going one step ahead, if the
child had so succeeded and had started bleeding, the first
person who noticed the blood, would have been the
accused, and if he had no guilty conscience, he would
have brought the child to his home and informed his
mother that the child had injured himself with a Sua. The
accused, however, did no such thing but rather put a
latch on his room and went away. The MLC of the victim
Ex. PW8/A does not note the presence of any injuries on
the area surrounding the anus of the child, but
merely blood being present there. The suggestions
put to the witnesses and part of the defence taken by the
accused therefore, is found to be too far fetched to be
believable.”

38. The logic given by the trial court in the para extracted above is
sound and we find no reason to disagree with the same. In any event,
besides the ocular evidence, there is sufficient medical evidence brought
on record by the prosecution to squarely indict the appellant. The Doctor
(PW-8) who was the first one to examine the victim at the hospital had
recorded in the MLC that bleeding was noticed around his anal region.
Further, SR Surgery, (Court Witness No.1) had corroborated the said
observations on examining PW-2 and had recorded in the MLC that the
findings are suggestive of anal penetration. The said opinion stands
further corroborated on the basis of the scientific evidence. The analysis
of the exhibits forwarded to the FSL clearly nails down the appellant as
the perpetrator of the crime. The biological examination and the DNA
examination results of the FSL leave no manner of doubt that the victim

CRL.A. 920/2018 Page 20 of 26
was subjected to aggravated penetrative sexual assault by none other than
the appellant.

39. Coming lastly to the plea of the learned counsel for the appellant
that there were contradictions in the statements of PW-1, as recorded
under Section 161 Cr.PC and 164 SectionCr.PC, vis-à-vis her testimony in court,
it is trite that contradictions in matters of detail cannot be a ground to
disbelieve a witness if his/her testimony is corroborated in material
particulars. In our opinion, the contradictions sought to be pointed out by
learned counsel for the appellant are not so material as to dilute the entire
prosecution case. In the case of SectionState (Delhi Administration) and Ors. vs.
Laxman Kumar and Ors. reported as AIR 1986 SC 250, referring to the
contradictions in the deposition of witnesses, the Supreme Court had
observed as below:-

“43. …..It is common human experience that different
persons admittedly seeing an event, give varying
accounts of the same. That is because the perceptiveness
varies and a recount of the same incident is usually at
variance to a considerable extent. Ordinarily, if several
persons give the same account of an event, even with
reference co minor details, the evidence is branded as
parrot like and is considered to be the outcome of
tutoring. Having read the evidence of these witnesses with
great care, we are of the view that the same has the touch
of intrinsic truth and the variations are within reasonable
limits and the variations instead of providing the ground
for rejection, add to the quality of being near to truth.
…..” (emphasis added)

40. It has also been held by courts that identical testimonies without
any contradictions, can in fact be suspect. SectionIn Shivaji Sahabrao Bobade
vs. State of Maharashtra reported as AIR 1973 SC 2622, speaking for the

CRL.A. 920/2018 Page 21 of 26
Bench, Justice V.R. Krishna Iyer made the following observations when
it comes to evaluation of evidence of a witness, which may not be found
to be completely credible:-

“19. We must observe that even if a witness is not
reliable, he need not be false and even if the Police have
trumped up one witness or two or has embroidered the
story to give a credible look to their case that cannot
defeat justice if there is clear and unimpeachable
evidence making out the guilt of the accused. Certainly,
it is a primary principle that the accused must be and not
merely may be guilty before a court can convict and the
mental distance between `may be‟ and `must be‟ is long
and divides vague conjectures from sure conclusions.”
(emphasis added)

41. In the instant case, the defence has not been able to shake the
testimony of any of the witnesses in their cross-examination. Their
testimonies stand duly corroborated in all material particulars. To top it
all, there is sufficient medical and forensic evidence placed on record by
the prosecution to bring home the guilt of the appellant.

42. As for the plea that no independent witness was produced by the
prosecution though the I.O. (PW-10) and SI Gajender Singh (PW-7) had
stated that many public persons had gathered at the spot when PW-1 had
raised an alarm, we are of the opinion that nothing would turn on the
absence of public witnesses in the present case when the testimony of
the child victim itself has been found to be truthful, reliable and sincere
and went unrebutted in cross-examination. Moreover, the testimony of
PW-1 fully corroborates the victim’s version and is found to be equally
reliable and trustworthy. [Refer: SectionPala Singh and Anr. vs. State of Punjab
AIR 1972 SC 2679; SectionParas Ram vs. State of Haryana AIR 1993 SC 1212;

CRL.A. 920/2018 Page 22 of 26

SectionPradeep Narayan Madgaonkar and Ors. vs. State of Maharashtra AIR
1995 SC 1930; SectionBalbir Singh vs. State (1996) 11 SCC 139; Kalpnath Rai
vs. State (Through CBI) AIR 1998 SC 201 and SectionM. Prabhulal vs.
Assistant Director, Directorate of Revenue Intelligence AIR 2003 SC
4311].

43. Here is a case where for once, the police did not lose any time in
conducting the investigation and the sequence of the events that stand
amply corroborated in all material aspects, are borne out from the
independent evidence brought on record, all which when taken together,
endorse the testimony of the victim that it was the appellant who had
committed carnal intercourse with him. For the aforesaid reasons, we
have no hesitation in upholding the impugned judgment and the order of
conviction.

44. This takes us to the last plea taken on behalf of the appellant,
which is on the quantum of sentence. It has been canvassed that the trial
court has been unduly harsh in awarding rigorous imprisonment for life
to the appellant and remained unmindful of the fact that it was his first
offence and he is the main bread earner of his family comprising of a
wife and a child.

45. As noted above, the victim was a four year old boy, who was lured
by the appellant in his room as he offered to feed him chicken rice. The
victim had innocently accepted the said offer at its face value and had
willingly gone to the appellant’s room situated in the same premises,
where he and his family were residing. Since the appellant was known to
the victim being a neighbour, there was no reason for the victim to have
distrusted him. By committing such a perverse act, the appellant has not

CRL.A. 920/2018 Page 23 of 26
only caused physical injuries to the victim but more than that, the said act
would have left deep emotional scars on him likely to stay on in his mind
for a long long time to come. This reprehensible animality demonstrated
by the appellant would have caused the victim such trauma that he will
be wary of reposing trust in an adult or live a joyous and carefree life in
his formative years. There will always remain a shadow of fear and
anxiety looming over him. This trust deficit caused to the victim by none
other than a neighbour whom he knew well, is an irreparable damage to
his psyche. What could be more damaging than this? It is said that
“Better broken bones than broken spirit”. When the spirit is broken, and
that too at such a tender age, it is bound to stultify the healthy all rounded
growth of the child victim. It is noteworthy that the appellant was 25
years old on the date of committing the offence. He was married and had
a child. But that did not deter him from lusting for the 4 year old victim.
The fact that the appellant was himself father of a small child and yet he
had no compunction in committing such a heinous crime, gives strength
to our resolve to uphold the judgment. In this context, we can do no
better than extract the following passage of the judgment in Om Prakash
(supra):-

“19. Child rape cases are cases of perverse lust for sex
where even innocent children are not spared in pursuit
of sexual pleasure. There cannot be anything more
obscene than this. It is a crime against humanity. Many
such cases are not even brought to light because of the
social stigma attached thereto. According to some
surveys, there has been a steep rise in child rape cases.
Children need special care and protection. In such
cases, responsibility on the shoulders of the courts is
more onerous so as to provide proper legal protection

CRL.A. 920/2018 Page 24 of 26
to these children. Their physical and mental immobility
call for such protection. Children are the natural
resource of our country. They are the country’s future.
Hope of tomorrow rests on them. In our country, a girl
child is in a very vulnerable position and one of the
modes of her exploitation is rape besides other modes
of sexual abuse. These factors point towards a different
approach required to be adopted. The overturning of a
well-considered and well-analysed judgment of the trial
court on grounds like non-examination of other
witnesses, when the case against the respondent
otherwise stood established beyond any reasonable
doubt was not called for. The minor contradiction of
recovery of one or two underwears was wholly
insignificant.”

46. In the light of the aforesaid discussion, we do not find any
mitigating circumstance for interfering with the order on sentence, which
is accordingly maintained. As a result of the above discussion, the
present appeal is dismissed as being devoid of merits, while upholding
the judgment of conviction and the order on sentence awarded to the
appellant.

47. We may note that the learned ASJ has invoked the provision of
Section 357 Cr.P.C. and directed that out of the fine realized from the
appellant, a sum of Rs.20,000/- be given to the victim through his mother
by way of compensation. Additionally, further compensation of Rs.4
lakhs has been granted in favour of the victim under Section 33(8) of the
POCSO Act, 2012 read with Rule 7 (2) of the POCSO Rules, 2012.
Having regard to the nature of the crime and the tender age of the victim,
we are of the opinion that the compensation amount awarded by the trial
court ought to be enhanced under the Delhi Victims Compensation

CRL.A. 920/2018 Page 25 of 26
Scheme, 2015. A copy of this order shall be forwarded forthwith to the
Secretary, DSLSA for passing appropriate orders.

48. Trial court record be released forthwith alongwith a certified copy
of the judgment. Copy of this judgment shall be sent to the concerned
Jail Superintendent for updating the jail record.

(HIMA KOHLI)
JUDGE

(VINOD GOEL)
JUDGE
MAY 24, 2019
rkb/ap/na

CRL.A. 920/2018 Page 26 of 26

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