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Sofyan vs State on 30 March, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON: MARCH 27, 2017
DECIDED ON : MARCH 30, 2017

+ CRL.A. 166/2016

SOFYAN ….. Appellant
Through : Mr.Jitendra Bharti with Mr.Naushad
Alam, Advocates.

VERSUS

STATE ….. Respondent
Through : Mr.Amit Gupta, APP.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in this appeal is a judgment dated 10.12.2015 of
learned Addl. Sessions Judge in Sessions Case No. 176/2014 arising out of
FIR No. 756/2014 PS Prashant Vihar whereby the appellant-Sofyan was
convicted for committing offences punishable under Section 10 of POCSO
Act and Section 354 IPC. By an order dated 15.12.2015, he was sentenced to
undergo Rigorous Imprisonment for five years with fine `5,000/- under
Section 10 POCSO Act and Rigorous Imprisonment for five years with fine
`5,000/- under Section 354 IPC. The sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-
sheet was that on 02.07.2014 in the evening, at the changing and shower

Crl.A.166/2016 Page 1 of 6
room near swimming pool, Bal Bharti Public School, Sector-14 Rohini,
Delhi, the appellant committed aggravated sexual assault upon the victim ‘X’
(changed name) aged around eight years by inserting his hand into her panty
with sexual intent. On return to home, ‘X’ narrated the incident to her
mother. On the next day, complaint was lodged with the Principal of the
school. The Investigation Officer after recording victim’s statement
(Ex.PW-2/A), lodged First Information Report. ‘X’ was medically examined;
she recorded her 164 Cr.P.C. statement. The appellant was arrested and
medically examined. Statements of the witnesses conversant with the facts
were recorded. Upon completion of investigation, a charge-sheet was filed
against the appellant. In order to establish its case, the prosecution examined
eleven witnesses. In 313 Cr.P.C. statement, the accused denied his
involvement in the crime and pleaded false implication. The trial resulted in
conviction as mentioned previously.

3. Appellant’s counsel urged that the impugned judgment is based
on conjectures and surmises. Material infirmities and inconsistencies
emerging in the statements of the prosecution witnesses have been
overlooked. No independent/public witness was associated at any stage of
the investigation. Learned Addl. Public Prosecutor urged that no sound
reasons exist to disbelieve the minor victim of sexual assault.

4. The crime took place on 02.07.2014 in the evening. On return
to home ‘X’, aged around eight years, reported the incident to her mother.
Without any delay, the complaint was lodged with the Principal of the
School next day. In her statement (Ex.PW-2/A) given to the police ‘X’ gave
detailed account as to how and in what manner the appellant outraged her
modesty when she was taking shower before going for swimming in the

Crl.A.166/2016 Page 2 of 6
swimming pool. The appellant was named in the FIR and specific and
definite role was assigned to him. In her 164 Cr.P.C. statement (Ex.PW-
2/B) recorded on 07.07.2014, ‘X’ reiterated the version given to the police
and implicated the appellant to be the perpetrator of the crime.

5. In her court statement while appearing as PW-2, ‘X’ proved the
version given to the police and one before the Presiding Officer under
Section 164 Cr.P.C. without any variation. She identified the appellant to be
the individual who had outraged her modesty. She deposed that during her
presence in the changing room to put her swimming costume, the appellant
arrived and told that ‘main seedha kar deta hu’. He took her costume and
asked her to take out her panty till then. Despite her resistance to take out
her panty, the appellant insisted for it saying that it would get wet. The girl
was intelligent enough not to take off her panty. She went to shower room
to take shower. The appellant again followed her there. When she was
wearing her cap, the appellant pushed her towards the shower. When she
was taking shower, the appellant intervened and pushed down the stripes of
her costume (on the shoulder side) on the lower side and put his hand inside
her costume from the top. He put his hand inside her costume in such a
manner that it touched her body and even reached to her panty, it further
touched her private part. She was constantly trying to stop the appellant but
in vain. Thereafter the appellant left the spot.

6. In the cross-examination, the child witness clarified that female
maid was not present when she had gone to the changing room. She
reasoned that it was because most of the students had already left to the
swimming pool. She fairly admitted that no hue and cry was raised by her at

Crl.A.166/2016 Page 3 of 6
the time of occurrence. She volunteered to add that she was constantly
asking the appellant to stop.

7. On perusal of the entire statement of the prosecutrix, it reveals
that despite searching cross-examination, no material infirmity could emerge
to disbelieve her version. No ulterior motive was assigned to the witness to
make false allegations of serious nature. The victim did not nurture any
‘grievance’ or ‘ill-will’ against the appellant to rope him in this case. Her
statement throughout is consistent. Soon after the occurrence, she intimated
her mother. Her mother lost no time to make complaint to the Principal of
the school next day. All employees of the school except the appellant were
present for identification. The appellant did not furnish any plausible reason
as to why he opted not to report for duty next day. The appellant did not
deny his presence at the spot at the relevant time.

8. PW-3, victim’s mother, has corroborated ‘X’s version in its
entirety. She also deposed that her daughter ‘X’, aged around eight years,
narrated the entire incident to her as to how she was sexually assaulted by a
plant operator employed at the swimming pool area of the school. On the
very next day, she went to her school and reported the matter to the
Principal. Again, this witness had no ulterior motive to falsely implicate the
accused with whom she had no familiarity.

9. No sound reasons exist to discard the statement of the
prosecutrix. The appellant had no occasion go to the changing room, the
place where ‘X’ was taking shower. It was not his duty to assist the children
in any manner at the changing room or the shower place. It is highly
unbelievable that the minor child would level serious allegations of
outraging her modesty to bring herself in disrepute. When the photographs

Crl.A.166/2016 Page 4 of 6
of the suspects were shown to her next day in the school, she was fair
enough to exonerate all of them. When she was shown appellant’s photo,
she recognized him to be the perpetrator of the crime. In court also, she had
no hesitation to recognize the individual who violated her body. The child
who was subjected to sexual assault is not expected to bring it to the notice
of the strangers soon after the occurrence. Her conduct is quite natural as on
return to home in the evening she immediately apprised her mother about the
occurrence. The defence that on the previous day, ‘X’ was did not come out
of the swimming pool after the time was over, inspires no confidence. No
such complaint was lodged by the appellant to the concerned Principal or
‘X’s parents about ‘X’s conduct in not adhering to the rules to remain in the
swimming pool beyond the time. Moreover, for that petty issue, ‘X’ and her
parents were not imagined to implicate the appellant using their own tiny
daughter ‘X’. No valid reasons, whatsoever, exist to suspect the version of
the child and to disbelieve her.

10. Prosecution was able to establish beyond reasonable doubt that
‘X’ was aged around eight years at the time of incident. As per the
testimony of PW-1 (K.D.Sharma), Dealing clerk, MCD office, Civil Line
Zone, date of birth recorded was 11.10.2005. He proved the relevant
document (Ex.PW-1/A) and (Ex.PW1/B). The age recorded in the birth
certificate cannot be suspected as the victim’s parents had not anticipated
such an unfortunate incident to happen in future to manipulate her age.
Moreover, no other date of birth, whatsoever, has been suggested to the
prosecution witnesses.

11. The crime committed by the appellant is horrible as a child
aged around eight years was ravished by an individual aged around 27 years.

Crl.A.166/2016 Page 5 of 6

Sexual assault on a tender aged girl is bound to create a permanent impact
and impression on the mind of such a girl, which may permanently affect her
adversely.

12. The impugned judgment based upon fair appreciation of the
evidence deserves no intervention.

13. The sentence order is based upon fair reasoning. Minimum
sentence prescribed under Section 10 of POCSO Act cannot be altered or
modified.

14. The appeal lacks in merits and is dismissed.

15. Trial Court record be sent back forthwith with the copy of the
order. A copy of the order be sent to the Superintendent Jail for information.

(S.P.GARG)
JUDGE
March 30, 2017/sa

Crl.A.166/2016 Page 6 of 6

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