SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

State (Gnct Of Delhi) vs Samay Chand on 2 July, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 29.05.2018

% Judgment delivered on: 02.07.2018

+ CRL.A. 474/2018
STATE (GNCT OF DELHI) ….. Appellant
Through: Mr. Rajat Katyal, Additional Public
Prosecutor for the State with SI Sunil
Kumar, PS – Govind Puri.
versus

SAMAY CHAND ….. Respondent
Through: Mr. Haneef Mohammad and
Mohammad Mustafa, Advocates.
CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE P.S. TEJI

JUDGMENT

VIPIN SANGHI, J.

1. Upon grant of leave, the State preferred the present appeal against the
judgment dated 09.06.2016 delivered by the learned Additional Sessions
Judge -01, South East District, Saket Courts, New Delhi in Sessions Case
No.79/2013 titled as State vs. Samay Chand, arising out of FIR No.19/2013
registered under Section 363/323/342/377 IPC at Police Station Govind
Puri, Delhi, whereby the accused/respondent was acquitted from the charges
leveled against him.

Crl.A.474/2018 Page 1 of 37

2. The facts in brief are that on 11.01.2013 at 2.48 hours, an information
was received by the police about a quarrel at house no.330-B Block, Pocket-
4, Navjeewan Camp, Govindpuri which was recorded vide DD No.46B
(Mark-A). The said DD was marked to SI Ramakant (PW-13) for inquiry
who reached at the spot and met the complainant. The complainant gave her
statement that on that day at about 12 noon, her son „S‟ aged 6 years was
playing with another boy „I‟ ( also mentioned as „M‟ in the impugned
judgment) aged about 5 years on the roof, and after some time both of the
boys were not found there. Searches were made to trace them and
announcements were made through loudspeakers from Mosque, but they
could not be found. At about 2 p.m., son of the complainant came weeping
and told that they were playing on the roof when uncle Samay Chand- the
accused, who was residing at the backside, came and allured them on the
pretext of moving boxes and took them to his house where they were
confined in a room. Then the accused removed the pants of the boys and
also opened his pant to do wrong act with them. Accused tried to insert his
penis into the anus of the son of the complainant, upon which they both
started weeping. Accused tied a cloth (chunni) on the mouth of the
complainant‟s son „S‟ to keep him mum and also gave beatings on his hands
by a stick. After hearing the announcement on loudspeaker, the accused let
them go. On coming to know about the incident, people went to the house
of the accused, upon which he tried to flee, but was caught and was given
beatings. The IO met both the children who were found frightened and did
not say anything. On the basis of the statement of the complainant (Ex. PW-
1/A), FIR was registered.

Crl.A.474/2018 Page 2 of 37

3. Accused was arrested on the same day at 5:10 PM vide Ex. PW-1/B
and the case property i.e the stick and cloth (chunni) were taken into
possession vide Ex. PW-1/D and Ex. PW-1/E respectively. Accused was
sent to the hospital for medical examination. The site plan was prepared at
the instance of the complainant vide Ex. PW-13/B. Both the children were
also medically examined -first on 11.01.2013 at 11:45 PM vide Ex. PW-8/A
and Ex. PW-8/B, and thereafter on 12.01.2013 at 1 AM vide Ex. PW-7/A
and Ex.PW-7/B. Statements of the children were got recorded under Section
164 Cr.P.C on 29.01.2013 vide Ex. PW-4/B and Ex. PW-4/D.

4. Victim „S‟ in his statement under section 164 CrPC (Ex. PW-4/D)
states that he and victim „I‟ were playing on the terrace. The accused came
to the terrace and and asked them for help in moving boxes and told them
that he would give them 10 rupees for the same. He took him and „I‟
downstairs to his room and shut the room. He made them watch TV and
bolted the door. He tied the hands and legs of both the victims. Thereafter,
the accused removed his pant and removed the pyjama of „S‟. Accused got
oil and applied it on his anus. He then stated that he does not remember what
the accused did to him, and „I‟ will narrate whatever happened thereafter.
The learned MM, recorded―After this, the witness has started looking here
and there in the chamber and he states that he does not want to say
anything.‖

5. Victim „I‟, in his statement under section 164 CrPC (Ex. PW-4/B)
stated that on that day, he was playing with „S‟ and Lucky. The accused
came and told them that if they remove boxes from his room, he will give
them 10 rupees each. He and „S‟ moved the boxes and went to his room.

Crl.A.474/2018 Page 3 of 37

They were playing at his house. Accused locked the door and tied the hands
and legs of „S‟, and tied a cloth on the eyes and hands of „I‟. „I‟ took a knife
and cut the cloth wrapped over his eyes. The accused had tied the eyes of
victim „S‟. He saw that the accused put oil on the anus of victim „S‟ and he
put his penis in the anus of „S‟. The accused tried to remove his pant too, but
was unsuccessful. „S‟ was wearing a pyjama.

6. After completion of investigation, charge sheet was filed under
Section 363/323/342/377 IPC and Sections 4 and 8 of the POCSO Act.

7. Charge for the offence punishable under Sections 4 8 of the
POCSO Act and Section 363 IPC was framed against the accused to which
he pleaded not guilty.

8. To prove its case, the prosecution examined 13 witnesses, including
the complainant- mother of victim „S‟ (PW1), the two victim children („S‟-
PW2 „I‟- PW3), PW-4 the learned Metropolitan Magistrate who recorded
the statements under Section 164 Cr.P.C., PW5 and PW6 (fathers of the
victim children) and the two doctors (PW7 PW8).

9. In his testimony, the child victim „S‟ (PW2)- who was seven years
old, deposed that he and „I‟ were playing at the terrace. Accused Samay
Chand asked them to help him to fetch the boxes and he would give them
Rs.10/-. „I‟ asked PW2 to do the same. Accordingly, they accompanied the
accused who took them inside the room. Accused removed the pant of PW2
and applied oil. The accused also tried removing the pant of „I‟, but he
started weeping so the accused left him. The accused let them go when
there was an announcement made from the mosque. On being questioned by

Crl.A.474/2018 Page 4 of 37
the learned APP, PW2 stated that the accused had bolted the room from
inside. After the accused applied oil on his anus, „S‟ started crying. At this,
the accused had beaten him by a wooden stick and tied his mouth by a piece
of cloth. During cross-examination by the defence counsel, PW2 stated that
the accused tied his mouth and also the mouth of „I‟. He further stated that
neither his eyes, nor the eyes of „I‟ were closed by the accused.

10. PW3, the other victim „I‟, who was aged 6 years deposed that he and
his friend „S‟ were playing on the terrace. Thereafter, they both went to the
room of the accused to keep the box. Accused tied his hands with a cloth
(chunni) and hit on the hands of „S‟ with a cane. „I‟ untied the cloth by
applying force. The accused had inserted his penis into the mouth of „S‟.
Thereafter, the accused applied oil around the anus of „S‟ by removing his
trouser. He and „S‟ kicked on the face of the accused and ran away from the
spot. They both went to their respective houses. PW3 told the entire
incident to his parents. His father called up the police and the police
inquired from him about the incident.

11. PW1- mother of PW2-„S‟ deposed that „S‟ aged about 6 years and
„I‟, son of her neighbor were playing together at the terrace. After
sometime, grandmother of „I‟ told her that „I‟ was not around and asked
about „S‟, and she saw that „S‟ was not there at the place where he was
playing. They made efforts to locate them but they could not be traced.
They got announcements made from the loudspeaker of the Mosque, after
which her son „S‟ came home weeping. Her son told that the accused
Samay Chand took him and „I‟ to his place on the pretext of removing some
box and allured them saying that he would pay them Rs.10. The accused

Crl.A.474/2018 Page 5 of 37
locked them in the room. Her son further told that the accused removed his
pyjama and applied oil on his anus and tried to insert his penis in the anus of
her son. When her son wept and objected, the accused had beaten him with
a danda. When he was crying, the accused tied his mouth with a piece of
cloth and after the announcement made from the mosque, accused let them
free. Public persons gathered there and had beaten the accused. A call was
made to the police and police recorded her statement Ex.PW1/A.

12. After completion of prosecution evidence, statement of the accused
under Section 313 Cr.P.C. was recorded in which he claimed that both the
victims used to play on the terrace and used to make noise and disturb his
old ailing mother. He objected to the complainant, and requested not to
disturb her. On his objection, parents of the boy came and quarreled with
him, threatening him that they will teach him a lesson; and he has been
falsely implicated in the present case. He had not examined any defence
evidence.

13. The learned Additional Sessions Judge acquitted the accused/
respondent from the charges framed against him, holding that the
prosecution failed to establish its case. He has doubted the case of the
prosecution since, according to him, certain witnesses were not examined;
the version narrated by the parents of the two child victims about the time
when they learnt about the incident and when they went to the police station
did not match; The statement of the child witness „S‟ as recorded under
Section 164 Cr.P.C did not match with his statement recorded in Court; the
child witness „I‟-PW3 had introduced a new fact about oral penetration with
„S‟, and that they unshackled themselves by kicking on the face of the

Crl.A.474/2018 Page 6 of 37
accused. Before the Ld. MM PW-3 had stated that the hands and feet of the
victims were tied and his eyes were covered with cloth and he cut the cloth
with a knife. He saw the accused insert his penis into the anus of the victim
„S‟. The Ld. ASJ observes that „I‟-PW3 is a good story teller. Non-
examination of any public witness about the announcement made from the
mosque has been taken as a failure on the part of the prosecution. Being
aggrieved by the judgment of acquittal, the State has preferred the instant
appeal upon grant of leave.

14. Mr. Rajat Katyal, learned APP for the State argued that the impugned
judgment suffers from perversity. The learned ASJ erred in determination
of all the relevant issues in the case. It is argued that the trial court has
failed to notice the corroboration of the statement of the victims found on
record in the form of statements of their parents particularly, PW-1 and PW-
6; medical evidence brought on record, viz. the MLC of PW-2 „S‟ PW-7/A
dated 12.01.2013 and; the recovery of the stick and dupatta used by the
accused – as per the statements of the two child victims. The two victims
have categorically deposed against the appellant during their testimony and
have even elaborated upon the role of the accused qua each of them. It is
further argued that the statements of the victims recorded under Section 164
Cr.P.C. further corroborate the case of the prosecution.

15. On the other hand, learned counsel for the respondent/ accused argued
that there are material contradictions in the testimony of the victims and
their parents. The accused has been falsely implicated in the present case as
he objected to the playing and creating noise by the victims. The victims are
the children of tender age and possibility of they being tutored cannot be

Crl.A.474/2018 Page 7 of 37
ruled out. It is submitted that there is no error in the impugned judgment of
acquittal, calling for interference by this Court.

16. Ld. Counsel for the respondent submits that there are discrepancies in
the statements of the victims under section 164 CrPC and their depositions.
He further submits that in Ex. PW-4/B, which is the statement of victim „I‟
(PW-3) recorded under section 164 CrPC, he stated that the two children
were playing with another child „Lucky‟. However, „Lucky‟ was never
examined. He submits that as per the version of the victims, the eyes of
victim „I‟ were tied with a cloth and, thus, it is highly unlikely that he could
have seen what happened in the room. He further submits that according to
PW-1, it was the grandmother of PW-3 who notified her about the children
going missing. However, the grandmother of PW-3 has not been examined.
He submits that the whole story is concocted only to falsely implicate the
accused. He submits that PW-13 SI Ramakant, who was the IO of the case,
in his cross examination admits the fact that he did not record any statement,
which is contrary to the case of the prosecution. Ld. Counsel further submits
that DD No. 46-B, vide which the information was received at the police
station, only records a quarrel having taken place, which probablises the fact
that the accused has been falsely implicated.

17. We have heard the learned counsels and have carefully perused the
impugned judgment and the records of the case. We have considered the
submissions of learned counsel and the evidences brought on record.

18. We are conscious of the principles applicable to examination of a
judgment of acquittal in appeal. The Supreme Court has applied the said

Crl.A.474/2018 Page 8 of 37
principles and elaborated further on the same from time to time. In Ghurey
Lal v. State of U.P., (2008) 10 SCC 450, after analyzing the earlier
decisions, the Supreme Court in para 70 crystallised the principles that the
High Court should follow if it is going to overrule, or otherwise disturb the
Trial Court‟s acquittal. Para 70 of the said judgment reads:

―70. In light of the above, the High Court and other appellate
courts should follow the well-settled principles crystallised by
number of judgments if it is going to overrule or otherwise
disturb the trial court’s acquittal:

1. The appellate court may only overrule or otherwise disturb
the trial court’s acquittal if it has ―very substantial and
compelling reasons‖ for doing so.

A number of instances arise in which the appellate court would
have ―very substantial and compelling reasons‖ to discard the
trial court’s decision. ―Very substantial and compelling
reasons‖ exist when:

(i) The trial court’s conclusion with regard to the facts is
palpably wrong;

(ii) The trial court’s decision was based on an erroneous view
of law;

(iii) The trial court’s judgment is likely to result in ―grave
miscarriage of justice‖;

(iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;

(v) The trial court’s judgment was manifestly unjust and
unreasonable;

(vi) The trial court has ignored the evidence or misread the
material evidence or has ignored material documents like dying
declarations/report of the ballistic expert, etc.

Crl.A.474/2018 Page 9 of 37

(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and
consideration to the findings of the trial court.

3. If two reasonable views can be reached–one that leads to
acquittal, the other to conviction–the High Courts/appellate
courts must rule in favour of the accused.‖

19. We proceed to examine the impugned judgment in the light of the
aforesaid principles laid down by the Supreme Court.

20. To begin with, we find that there is a fundamental and serious lacuna
in the approach of the learned ASJ in the matter of appreciation and
evaluation of the testimonies of child witnesses. The learned ASJ has, in a
mechanical, casual and cavalier manner dealt with the case. He observes:

―6. … … … It is well settled principle of law that the
evidence of a child witness must be evaluated 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. The court has to assess as to whether the
statement of the victim before the court is the voluntary
expression of the victim and that he was not under the influence
of others.‖

21. No doubt, prudence demands that the evidence of a child witness must
be evaluated carefully and with greater circumspect, because the child
witness is susceptible to be swayed by what others tell him and he is an easy
prey to tutoring. However, that does not mean that the Court has to begin
with the presumption that the child witness is untruthful and unreliable.
Unfortunately, that is the approach displayed by the Ld. ASJ in the present
case. Despite the fact that there were several other pieces of evidence which

Crl.A.474/2018 Page 10 of 37
corroborated the core of the testimonies of the two child witnesses „S‟ -PW2
and „I‟-PW3, the Ld. ASJ has completely ignored the said corroborative
evidence.

22. At this stage, we may refer to our recent decision in State of NCT of
Delhi Vs. Dharmender, Crl. Appeal No.1184/2017 decided on 23.03.2018.
The said appeal had been preferred by the State to assail the acquittal of the
accused by the learned ASJ. Incidentally, it was the same learned ASJ who
rendered the decision in Dharmender (supra) and in that case as well the
testimony of child witness had been disregarded by the learned ASJ by
adopting the same fundamentally erroneous approach of ignoring the
corroborative evidence led by the prosecution. While disapproving the
approach adopted by the learned ASJ, we observed as follows:

―44. The manner in which the learned ASJ has proceeded to
deal with the matter exhibits a completely casual, cavalier and
insensitive approach on his part. Offences relating to sexual
abuse of children are amongst most heinous crimes. It is for
this reason that the Parliament has framed the special law,
namely, the POCSO Act, since the provisions contained in the
IPC were found to be not adequate enough to deal with such
like offences. The gravity of such offence, as perceived by the
society and the law makers can be gauged from the severity of
the punishment prescribed in the POCSO Act. Considering the
fact that the POCSO Act relates to child victim, the law also
raises presumptions under Sections 29 and 30 of the said Act
against the accused – which demonstrates a distinct shift from
the fundamental criminal jurisprudence that every person
accused of an offence is assumed to be innocent unless proven
guilty. We are dismayed that the learned ASJ has shown
complete lack of sensitivity in dealing with the present case.
On this aspect we are not yet finished and our following

Crl.A.474/2018 Page 11 of 37
discussion will further demonstrate the reasons for our
aforesaid conclusion.

45. The learned ASJ evaluated the testimony of the victim
PW-11 in the background that ―a child witness is susceptible to
tutoring and his evidence must be evaluated more carefully and
with greater circumspection and that evidence of a child
witness must find adequate corroboration before it is relied
upon‖. On this aspect, we consider it appropriate to notice
some of the decisions of the Supreme Court.

46. We may first notice Rameshwar v. State of Rajasthan,
1952 (3) SCR 377. In this case, the appellant was charged with
committing rape of an eight year old girl. He was convicted by
the Assistant Sessions Judge and sentenced. In appeal before
the Sessions Judge, the learned Sessions Judge held that the
evidence was sufficient for ―moral conviction‖ but fell short of
―legal proof‖ because, in his opinion, the law requires
corroboration of the story of the prosecution in such cases as a
matter of precaution, and the corroborative evidence – in so far
as it sought to connect the appellant with the crime, was legally
insufficient though morally enough. Accordingly, the accused
was acquitted giving him the benefit of the doubt. The State
appealed to the High Court and the High Court held that the
law requires corroboration in such cases, but held that the
statements made by the prosecutrix to her mother was legally
admissible as corroboration, and considering that to be
sufficient, the High Court set aside the acquittal and restored
the conviction and sentence of the appellant.

47. The Supreme Court, inter alia, considered the question
whether the law requires corroboration of the statement of the
victim/ prosecutrix in such like cases. The Supreme Court
observed that the Evidence Act does not prescribe that the
statement of the victim/ prosecutrix in the case of rape requires
corroboration. The Supreme Court referred to Section 114 (b)
of the Evidence Act – which states that the Court may presume
that an accomplice is unworthy of credit unless he is
corroborated in material particulars, and Section 133 of the

Crl.A.474/2018 Page 12 of 37
Evidence Act – which states that an accomplice shall be a
competent witness against an accused person, and a conviction
is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. The Supreme
Court observed that a woman, who has been raped, is not an
accomplice. She is the victim of an outrage. If she consented,
there is no offence unless she is a married woman, in which
case questions of adultery may arise. However, adultery
presupposes consent and so is not on the same footing as rape.
The Supreme Court, inter alia, observed as follows in its
decision:

―… … In the case of a girl who is below the age of
consent, her consent will not matter so far as the
offence of rape is concerned, but if she consented
her testimony will naturally be as suspect as that
of an accomplice. So also in the case of unnatural
offences. But in all these cases a large volume of
case law has grown up which treats the evidence
of the complainant somewhat along the same
lines as accomplice evidence though often for
widely differing reasons and the position now
reached is that the rule about corroboration has
hardened into one of law. But it is important to
under- stand exactly what the rule is and what
the expression “hardened into a rule of law”
means.‖ (emphasis supplied)

48. Vivian Bose, J, who authored the judgment, observed
that in this branch of law, the legal position is the same in India
as in England. He relied upon The King v. Baskerville, (1916)
2 K.B. 658. Baskerville (supra) was a case where the accused
was convicted of committing acts of gross indecency with the
two boys. The two boys were accomplices because they were
freely consenting parties and there was no use of force. In
Baskerville (supra), the learned Chie Justice observed:

“There is no doubt that the uncorroborated
evidence of an accomplice is admissible in

Crl.A.474/2018 Page 13 of 37
law…… But it has long been a rule of practice at
common law for the judge to warn the jury of the
danger of convicting a prisoner on the
uncorroborated testimony of an accomplice or
accomplices, and, in the discretion of the judge,
to advise them not to convict upon such evidence;
but the judge should point out to the jury that it is
within their legal province to convict upon such
unconfirmed evidence……

This rule of practice has become virtually
equivalent to a rule of law, and since the Court of
Criminal Appeal came into operation this Court
has held that, in the absence of such a warning by
the judge, the conviction must be quashed…… If
after the proper caution by the judge the jury
nevertheless convict the prisoner, this Court will
not quash the conviction merely upon the ground
that the accomplice’s testimony was
uncorroborated.” (emphasis supplied)

49. Justice Bose held that the law was exactly the same in
India. He held:

―That, in my opinion, is exactly the law in India so
far as accomplices are concerned and it is
certainly not any higher in the case of sexual
offences. The only clarification necessary for
purposes of this country is where this class of
offence is sometimes tried by a judge without the
aid of a jury. In these cases it is necessary that
the judge should give some indication in his
judgment that he has had this rule of caution in
mind and should proceed to give reasons for
considering it unnecessary to require
corroboration on the facts of the particular case
before him and show why he considers it safe to
convict without corroboration in that particular
case. I am of opinion that the learned High Court

Crl.A.474/2018 Page 14 of 37
Judges were wrong in thinking that they could not,
as a matter of law, convict without corroboration.

There is a class of cases which considers that
though corroboration should ordinarily be
required in the case of a grown-up woman it is
unnecessary in the case of a child of tender years.
Bishram. v. Emperor, A.I.R. 1944 Nag. 363 is
typical of that point of view. On the other hand, the
Privy Council has said in Mohamed Sugal Esa v.
The King A.I.R. 1946 P.C. 3 at 5 that as a matter
of prudence a conviction should not ordinarily be
based on the uncorroborated evidence of a child
witness. In my opinion, the true rule is that in
every case of this type the rule about the
advisability of corroboration should be present to
the mind of the judge. In a jury case he must tell
the jury of it and in a non-jury case he must show
that it is present to his mind by indicating that in
his judgment. But he should also point out that
corroboration can be dispensed with if, in the
particular circumstances of the case before him,
either the jury, or, when there is no jury, he
himself, is satisfied that it is safe to do so. The
rule, which according to the cases has hardened
into one of law, is not that corroboration is
essential before there can be a conviction but that
the necessity of corroboration, as a matter of
prudence, except where the circumstances make
it safe to dispense with it, must be present to the
mind of the judge, and in jury cases, must find
place in the charge, before a conviction without
corroboration can be sustained. The tender years
of the child, coupled with other circumstances
appearing in the case, such, for example, as its
demeanour, unlikelihood of tutoring and so
forth, may render corroboration unnecessary but
that is a question of fact in every case. The only
rule of law is that this rule of prudence must be

Crl.A.474/2018 Page 15 of 37
present to the mind of the judge or the jury as the
case may be and be understood and appreciated
by him or them. There is no rule of practice that
there must, in every case, be corroboration before
a conviction can be allowed to stand‖. (emphasis
supplied)

50. Thus, as early as in 1952, the Supreme Court made the
legal position clear that, firstly, a woman subjected to rape is
not an accomplice and, secondly, the rule of corroboration is
not a mandatory rule, but a rule of prudence and caution,
which could be dispensed with in the facts and circumstances of
a given case. All that is required is that it should be present to
the mind of the Judge, that it is advisable to look for
corroboration of the statement of the prosecutrix/ victim. The
Judge may dispense with the need for corroboration if he thinks
that it is safe to do so. The tender years of the child, coupled
with other circumstances appearing in the case, for example,
his demeanour and unlikelihood of tutoring and so forth may
render corroboration unnecessary, but that is a question of fact
in every case.

51. The Supreme Court then considered the nature and
extent of corroboration required when it is not considered safe
to dispense with it. Once again, the Supreme Court referred to
Baskerville (supra). The Supreme Court held that it is not
independent confirmation of every material circumstance in the
sense that the independent evidence in the case, apart from the
testimony of the complainant or the accomplice, should in itself
be sufficient to sustain conviction. All that is required is that
there must be some additional evidence rendering it probable
that the story of the complainant (who is treated like an
accomplice) is true, and that it is reasonably safe to act upon it.
The independent evidence must not only make it safe to believe
that the crime was committed, but must in some way reasonably
connect or tend to connect the accused with it by confirming in
some material particular the testimony of the accomplice or
complainant that the accused committed the crime. However,
this does not mean that the corroboration as to identity must

Crl.A.474/2018 Page 16 of 37
extend to all the circumstances necessary to identify the
accused with the offence. All that is necessary is that there
should be independent evidence which will make it reasonably
safe to believe the witnesses story that the accused was the one,
who committed the offence.

52. The Supreme Court proceeded to observe that the
corroboration must come from independent sources, and that
the testimony of one accomplice would not be sufficient to
corroborate that of another. There may, however, be
circumstances which may make it safe to dispense with the
necessity of corroboration, and in such cases a conviction
based on the statement of the victim/ prosecutrix, without
corroboration, would not be illegal. The Supreme Court also
observed that corroboration need not be direct evidence that
the accused committed the crime. It is sufficient if it is merely
circumstantial evidence of his connection with the crime. Were
it otherwise, “many crimes which are usually committed
between accomplices in secret, such as incest, offences with
females” (or unnatural offences) “could never be brought to
justice”.

53. The Supreme Court then proceeded to consider whether
a previous statement of an accomplice/ complainant/
prosecutrix/ victim could be accepted as corroboration? In this
regard, the Supreme Court drew the attention to illustration (j)
to Section 8 of the Evidence Act, which reads – “The question is
whether A was ravished. The facts that, shortly after the alleged
rape, she made a complaint relating to the crime, the
circumstances under which, and the terms in which, the
complaint was made are relevant.”

54. The Supreme Court also referred to Section 157 of the
Evidence Act, which reads:

“In order to corroborate the testimony of a
witness, any former statement made by such
witness relating to the same fact at or about the
time when the fact took place, or before any

Crl.A.474/2018 Page 17 of 37
authority legally competent to investigate the fact,
may be proved.”

55. The Supreme Court concluded that where the conditions
prescribed in the said section are fulfilled, the statement of the
prosecutrix/ victim would be legally admissible in India as
corroboration.

56. The Supreme Court then considered the question whether
the mother of the victim/ prosecutrix could be regarded as an
―independent‖ witness. The Supreme Court held that there
was no legal bar to exclude the mother of the prosecutrix/
victim from being considered as an independent witness, merely
on the ground of their relationship. It observed:

―… … Independent merely means independent of
sources which are likely to be tainted. In the
absence of enmity against the accused there is no
reason why she should implicate him falsely. It is
true the accused suggested that they were on bad
terms but that has not been believed by anyone‖.

57. The Supreme Court held that the testimony of the mother
provided independent corroboration connecting the accused
with the crime in the facts of the case, and considering the
conduct of the victim/ prosecutrix and her mother from start to
finish, the Supreme Court held that no corroboration beyond
the statement of the child to her mother was necessary.

58. In Prakash Anr. v. State of Madhya Pradesh, (1992)
4 SCC 225, the fourteen year old minor was the brother of the
deceased. The minor Ajay Singh was stated as an eye witness
to the crime. The Trial Court discarded the evidence of the
minor Ajay Singh, being influenced by the fact that he was of
tender of age and that he was likely to be tutored. The Supreme
Court did not accept this reasoning of the Trial Court. The
Supreme Court observed:

―11. … … In discarding the evidence of the
brother of the deceased namely Ajay Singh the

Crl.A.474/2018 Page 18 of 37
learned Additional Sessions Judge was influenced
by the tender age of Ajay (about 14 years) and was
of the view that he was likely to be tutored. We do
not think that a boy of about 14 years of age
cannot give a proper account of the murder of his
brother if he has an occasion to witness the same
and simply because the witness was a boy of 14
years it will not be proper to assume that he is
likely to be tutored. The High Court has given very
convincing reasons for accepting the evidence of
Ajay Singh as an eyewitness of the murderous act
and we do not find any infirmity in the finding
made by the High Court … …‖. (emphasis
supplied)

59. Thus, it cannot be assumed that a witness who is a minor
is tutored. There should be evidence/ material on record to
conclude that a child witness has been tutored. At the same
time, the Court has to be satisfied that there is no likelihood of
the child witness being tutored.

60. In Ratansinh Dalsukhbhai Nayak v. State of Gujarat,
(2004) 1 SCC 64, the child was an eye witness to the murder of
the two deceased persons. Relying on the testimony of the child
witness, the Trial Court convicted the accused under Section
302 IPC and, accordingly, sentenced them. Before the
Supreme Court, the appellant placed reliance on Arbind Singh
v. State of Bihar, 1995 (4) SCC 416 to contend that where the
Court finds traces of tutoring, corroboration is a must before
the evidence of the child witness could be acted upon. The
Supreme Court referred to Dattu Ramrao Sakhare v. State of
Maharashtra, (1997) 5 SCC 341, wherein it had been held:

―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

Crl.A.474/2018 Page 19 of 37
understand the questions and able to give rational
answers thereof. The evidence of a child witness
and credibility thereof would depend upon the
circumstances of each case. The only precaution
which the court should bear in mind while
assessing the evidence of a child witness is that
the witness must be a reliable one and his/her
demeanour must be like any other competent
witness and there is no likelihood of being
tutored.‖ (emphasis supplied)

61. The Supreme Court went on to observe:

―The decision on the question whether the child
witness has sufficient intelligence primarily rests
with the trial Judge who notices his manners, his
apparent possession or lack of intelligence, and
the said Judge may resort to any examination
which will tend to disclose his capacity and
intelligence as well as his understanding of the
obligation of an oath. The decision of the trial
court may, however, be disturbed by the higher
court if from what is preserved in the records, it
is clear that his conclusion was erroneous. This
precaution is necessary because child witnesses
are amenable to tutoring and often live in a world
of make-believe. Though it is an established
principle that child witnesses are dangerous
witnesses as they are pliable and liable to be
influenced easily, shaped and moulded, but it is
also an accepted norm that if after careful
scrutiny of their evidence the court comes to the
conclusion that there is an impress of truth in it,
there is no obstacle in the way of accepting the
evidence of a child witness‖. (emphasis supplied)

62. While dealing with the merits of the case before it, the
Supreme Court held that there was no reason for false
implication by the child witness. The Trial Court on careful

Crl.A.474/2018 Page 20 of 37
examination was satisfied about the child’s capacity to
understand and to give rational answers. That being the
position, it cannot be said that the child witness had no
maturity to understand the import of the questions put to her, or
to give rational answers. The child witness had been cross-
examined at length and she stood her ground. The Supreme
Court held that the evidence of the child witness was credible,
which revealed her truthful approach and that her evidence had
the ring of the truth. Consequently, the Supreme Court
accepted the said evidence of the child witness and dismissed
the appeal.

63. In State of Madhya Pradesh v. Ramesh Anr., 2011 (3)
Scale 619, the daughter of the deceased, aged about eight
years, was a witness to the crime. On the basis of the statement
of the child witness, the two accused were convicted under
Section 302 IPC. Accused no.2 was convicted with the aid of
Section 120B IPC. The High Court, however, reversed the said
judgment and acquitted the accused on the premise that the eye
witness PW-1 was a child witness and was, therefore,
disbelieved. The Supreme Court reversed the decision of the
High Court and restored the conviction of the accused. On the
aspect of admissibility of the evidence of a child witness, the
Supreme Court referred to several earlier decisions. The
relevant passage from this decision of the Supreme Court being
instructed, is reproduced herein below:

―6. In Rameshwar S/o Kalyan Singh v. The
State of Rajasthan, AIR 1952 SC 54, this Court
examined the provisions of Section 5 of Indian
Oaths Act, 1873 and Section 118 of Evidence Act,
1872 and held that 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.

Crl.A.474/2018 Page 21 of 37

The Court further held as under:

―…..It is desirable that Judges and
magistrates should always record
their opinion that the child
understands the duty of speaking the
truth and state why they think that,
otherwise the credibility of the
witness may be seriously affected, so
much so, that in some cases it may be
necessary to reject the evidence
altogether. But whether the
Magistrate or Judge really was of
that opinion can, I think, be gathered
from the circumstances when there is
no formal certificate….‖

7. In Mangoo Anr. v. State of Madhya
Pradesh, 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.

8. In Panchhi Ors. v. State of U.P., AIR
1998 SC 2726, 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 stigmatized. It is not the law that if a

Crl.A.474/2018 Page 22 of 37
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.‖

9. In Nivrutti Pandurang Kokate Ors. v. State of
Maharashtra, AIR 2008 SC 1460, this Court
dealing with the child witness has observed as
under: ―The decision on the question whether the
child witness has sufficient intelligence primarily
rests with the trial Judge who notices his manners,
his apparent possession or lack of intelligence,
and the said Judge may resort to any examination
which will tend to disclose his capacity and
intelligence as well as his understanding of the
obligation of an oath. The decision of the trial
court may, however, be disturbed by the higher
court if from what is preserved in the records, it is
clear that his conclusion was erroneous. This
precaution is necessary because child witnesses
are amenable to tutoring and often live in a world
of make-believe. Though it is an established
principle that child witnesses are dangerous
witnesses as they are pliable and liable to be
influenced easily, shaped and moulded, but it is
also an accepted norm that if after careful scrutiny
of their evidence the court comes to the conclusion
that there is an impress of truth in it, there is no
obstacle in the way of accepting the evidence of a
child witness.‖

10. 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

Crl.A.474/2018 Page 23 of 37
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 a oath and the import of the questions
that were being put to him. (Vide: Himmat
Sukhadeo Wahurwagh Ors. v. State of
Maharashtra, AIR 2009 SC 2292).

11. In State of U.P. v. Krishna Master Ors., AIR
2010 SC 3071, 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.

12. Part of the statement of a child witness, even if
tutored, can be relied upon, if the tutored part can
be separated from untutored part, in case such

Crl.A.474/2018 Page 24 of 37
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 Anr. v.
State of Punjab, (2006) 13 SCC 516)‖. (emphasis
supplied)

64. The Supreme Court, in view of the aforesaid legal
position, summarized the law in the following words:

―13. In view of the above, the law on the issue can
be summarized to the effect that the deposition of
a child witness may require corroboration, but in
case his deposition inspires the confidence of the
court and there is no embellishment or
improvement therein, the court may rely upon his
evidence. The evidence of a child witness must be
evaluated more carefully with greater
circumspection because he is susceptible to
tutoring. Only in case there is evidence on record
to show that a child has been tutored, the Court
can reject his statement partly or fully. However,
an inference as to whether child has been tutored
or not, can be drawn from the contents of his
deposition‖. (emphasis supplied)

65. Thus, 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.
Evaluation of the evidence of a child witness requires more
care and greater circumspection, because he is susceptible to
tutoring. Only in case there is evidence on record to show that
the child has been tutored, the Court may reject his statement
partly or fully. An inference as to whether the child has been
tutored or not, can be drawn from the content of his
deposition.‖

Crl.A.474/2018 Page 25 of 37

23. In the aforesaid light, we proceed further to appreciate the evidence
led by the prosecution. We may, firstly, notice the demeanor of the victim
„S‟ – which is noticed by the learned MM as well while recording his
statement under Section 164Cr.P.C. The victim „S‟ was so embarrassed,
that he did not want to narrate the incident himself, and he avoided to do so.
He told the learned MM that „I‟ would narrate it, as he did not want to talk
about it. He avoided eye-contact with the learned MM, as noticed by her.
The deposition of PW-2 shows that he continued to suffer the shame and
embarrassment even when his statement was recorded in Court, which was
about six months after the occurrence had taken place. He, therefore, did
not narrate the incident with as much detail, as PW-3 did. The testimony of
PW-1 the mother of „S‟ indicates that „S‟ confided in his mother and told her
the incident as it happened upon his return to his home, which she narrated
before the police while recording her statement under Section 161 Cr.P.C.
(Ex.PW-1/A) and in her testimony before the Court.

24. Unfortunately the Ld. ASJ has not displayed the sensitivity expected
of him in noticing the aforesaid aspects, despite the fact that the Ld. MM
specifically noticed and recorded the demeanor of the victim „S‟ at the time
when his statement under Section 164 Cr.P.C. was recorded. He also failed
to notice that the child victim „S‟ continued to suffer embarrassment and
shame even when he recorded his statement before the Court and that, in any
event, from the statement of the two child witnesses, it clearly emerged that
the accused did remove the pant of the child victim „S‟, and applied oil on
his anus.

Crl.A.474/2018 Page 26 of 37

25. The trial court did not find the testimonies of the victims and their
parents reliable. The Ld. ASJ discredits PW1 by observing that she
entertained “new fact” that the accused assured the children that he will
give them money and she also introduced the grandmother of „I‟ in the
incident and stated that the grandmother of „I‟ informed that „I‟ was not
found on the terrace.

26. In our view, the Ld. ASJ while making these observations has ignored
the evidence brought on record. Firstly, in statement under Section 161
Cr.P.C. Ex.P1/A, the complainant PW1 stated that „S‟ had informed her
when he came back weeping, that the accused-Samay Chand took the
victims „S‟ and „I‟ “behla phuslakar‖ to his house. Thus, the allurement
given by the accused to the two child victims was disclosed by PW1 in her
initial statement. She may not have stated, in specific terms, that the
accused offered Rs.10 to the children for helping to move his boxes but, in
our view, it is neither here nor there. Pertinently, the two child witnesses
recorded their statement under Section 164 Cr.P.C. sometime after the
incident, wherein they consistently narrated that the accused had offered
them Rs.10 for helping him move his boxes. Merely because PW1 may
have elaborated and clearly disclosed about the allurement given by the
accused to the two child victims while recording her statement in Court-
which she did not do while recording her statement under Section 161
Cr.P.C. (and generally recorded the said fact), the same does not tantamount
to an improvement in her statement by PW1, which could justify
disbelieving her statement.

Crl.A.474/2018 Page 27 of 37

27. It is well settled that the initial statement recorded under Section 161
Cr.P.C./ Rukka, or even the FIR, are not meant to be encyclopedia of the
entire incident. It the crux of the allegations made in the statement which
are material and deserve attention. There was no question of doubting the
statement of PW1 merely because, while recording her statement before the
Court, she elaborated and disclosed about the grandmother of „I‟ informing
her that „I‟ – who was playing with „S‟, was not to be seen. She stated in her
statement Ex.PW1/A that the two children were playing together at about 12
noon and after some time both were found missing and she as well as
“Manish ke gharwale” – which would include the other relatives of the
child „I‟ , started searching for the children. Unfortunately, it appears to us
that the approach of the Ld. ASJ has been to focus and pay undue attention
to completely irrelevant and inconsequential aspects. He has failed to
separate the wheat from the chaff.

28. The testimony of both the victims of the incident is quite natural and
trustworthy. They have narrated the incident which had taken place with
them in plain and simple language.

29. We do not agree with the submission of the accused that non
examination of the child named Lucky and grandmother of „I‟ is fatal to the
case of the prosecution, as neither of them were witnesses to the crime.
Pertinently, PW-6, who is the father of „I‟, in his testimony states that on
11.01.2013 when he came back home for lunch from his workplace, his
neighbour (PW-1) told him that the children were not present at home for
the last one hour, and they both tried to locate their respective wards, and
also got announcements made from the mosque. Thereafter, the children

Crl.A.474/2018 Page 28 of 37
came back weeping. This is so stated by PW-1 as well. The fact that they
were weeping also shows that they were subjected to some trauma. This
shows that the two families were looking for the children together and non
examination of the child Lucky, or grandmother of „I‟; thus, has no bearing
on the case of the prosecution. The fact that the two children/ child victims
were playing on the terrace is not even disputed by the defence. In fact, the
defence of the accused was that the children while playing on the terrace
were creating ruckus which was disturbing his aged mother, and that is what
led to a dispute between him and the parents of the two children. Thus,
there was no necessity for the prosecution to examine Lucky. It is not
obligatory for the prosecution to examine each and every witness even
though he/she may not materially contribute to the case of the prosecution.
Both Lucky, and the grandmother of „I‟, were inconsequential witnesses in
the matter of proving the case of the prosecution.

30. The Ld. ASJ has also doubted the case of the prosecution on the
premise that while PW5- the father of „S‟, had deposed that after he returned
to his house at 5.00PM, he, his son, the child „I‟ and his father PW6 went to
the police station and the accused was also in the police station at that time,
whereas, PW6 had not deposed that he went to the police station with the
two children and PW5. Once again, we find the approach of the Ld. ASJ to
be extremely shallow in the matter of appreciation of evidence. Pertinently,
in the cross examination of PW5, it was not suggested to him that when he
returned to his home at 5.00 PM, he, his son „S‟, the other child „I‟ and his
father PW6 did not go to the police station and did not find the accused-
Samay Chand sitting in the police station. In these circumstances, in our

Crl.A.474/2018 Page 29 of 37
view there was no occasion for the Ld. ASJ to doubt the testimony of PW5,
or the testimony of PW6. Pertinently, PW6 was present at home when the
children returned after the incident. Therefore, he has narrated the facts and
circumstances witnessed by him from that stage onwards. He may not have
stated about the visit to the police station later in the evening, but his silence
on the said aspects cannot be used to discredit PW5. His silence cannot be
taken to mean that he contradicts the statement of PW-5.

31. We may observe that so far as the child „I‟ is concerned, it appears
that he may have imagined some of the facts when he claimed that his eyes
were covered and he used a knife to cut himself free. When his statement
was recorded before the Court, he also claimed oral penetration by the
accused in the mouth of „S‟, and that he and „S‟ kicked on the face of the
accused and ran away from the spot. Even if these aspects are ignored, the
crux of the statement of „I‟ at the two stages, namely – one recorded under
Section 164 Cr.P.C., and the one recorded before the Court are consistent. It
is well settled that the entire statement of the witness need not be rejected if
on a perusal of the same, it appears to the Court that some part of it is
reliable on account of its corroboration.

32. On going through the statements made by PW-2 and PW-3 in court,
as well as their statements made otherwise, which we have taken note of
hereinabove, we find that they all corroborate each other on the following
points:

a. The two victims „S‟ and „I‟ were playing on the terrace;

Crl.A.474/2018 Page 30 of 37

b. That the accused took both the boys to his room on the pretext of
moving boxes (peti) and alluring hem by offering Rs.10 to them;

c. The boys accompanied him and went to his room. The accused
bolted the door of the room from inside;

d. The accused removed the pants of victim „S‟;

e. The accused applied oil on the anus of victim „S‟;

f. The accused tied the children with a cloth (chunni), recovered
from his house;

g. Both the children started crying;

h. The accused tied chunni on their mouth gave beating to „S‟ by
using a stick on his hands;

i. Both the victims fled away from the house of the accused after the
announcement from the mosque;

j. Thereafter, both the victims went to their respective houses crying.

33. These material allegations have been consistently deposed by the two
child victims and the same have duly been corroborated by PW-1, mother of
victim „S‟ and PW6 – father of „I‟. Similar deposition has been made by
PW5-Vinod (father of victim „S‟). The MLC of victim „S‟ also corroborates
his statement that the accused hit him on his hands with a stick – which too
was recovered from the place of occurrence.

Crl.A.474/2018 Page 31 of 37

34. „S‟ and „I‟, the child victims were examined by the doctor on
12.01.2013 at 1 AM vide Ex. PW 7/A and Ex. PW-7/B respectively and the
same were proved by PW-7 Dr. Munish Sharma. The doctor on examination
of „S‟ observed the following injuries:

―(i). A grazed abrasion, reddish in color of size 5×0.2cm is
present over dorsal surface of left hand.

(ii). A reddish contusion, obliquely placed of size 10×0.5cm is
present over lateral aspect of middle one third of Right thigh.

Father denied the consent for local examination of Master
(name withheld).‖

35. Although the parents of the victims had declined the local
examination of the victims, the injuries found on the body of victim „S‟
corroborate the testimonies of the two victims, wherein they both stated that
the accused had hit „S‟ with a cane and tied the children with a cloth.

36. In the instant case, the testimony of both the victims (PW2 and PW3)
have been corroborated by their statements recorded under Section 164
Cr.P.C. duly proved by the then learned Magistrate (PW4) vide Ex.PW4/B
and Ex.PW4/D. They are also corroborated by the statements of PW-1 and
PW-5. They are corroborated by the MLC of victim „S‟ and by the
recoveries of dupatta and stick from the room of the accused. In our view,
the testimony of victims (PW2 and PW3) alone were sufficient to convict
the respondent/ accused. The evidence available on record further
corroborates the testimonies of the victims, and the prosecution has been
able to establish its case beyond reasonable doubt.

Crl.A.474/2018 Page 32 of 37

37. Ld. Counsel for the accused submits that the I.O. of the case, PW-13,
in his cross examination on behalf of the accused has admitted that he was
not the author of the complaint and the same was made by a neighbor of the
complainant, who was not examined as a witness. We do not agree with this
contention of the accused. Pertinently, PW-13 mentions that the complaint
was written by a neighbor on the spot itself, and no suggestion was put to
PW-13 that the facts stated in the complaint were false or concocted later on.
Thus, we are of the opinion that this circumstance does not come to the aid
of the accused.

38. The accused has taken the plea that he was falsely implicated, because
of the resistance he showed to the victims playing on his terrace. This plea
of the accused does not find favour with us. Nothing has come on record to
point at any previous quarrels between the families on this issue. The
accused has led no evidence to substantiate the same. Apart from his ipse
dixit, there is no basis to accept the said defence. We may observe that the
accused never mentioned this fact to the I.O. of the case during the
investigation, and it was stated only in Court when the accused cross-
examined the prosecution witnesses under Section 313 Cr.P.C. All the
witnesses have deposed against this defence of the accused during trial.

39. Learned counsel for the respondent has placed reliance on a judgment
of Division Bench of this Court in State (Govt. of NCT of Delhi) Vs.
Mullah Muzib, Crl. L.P.62/2015 decided on 09.02.2015. In the said
decision, this Court took note of Hamza Vs. Muhammedkutty, (2013) 11
SCC 150, which relied upon another decision in Panchhi Vs. State of U.P.,
(1998) 7 SCC 177, wherein the Supreme Court has observed that as a rule of

Crl.A.474/2018 Page 33 of 37
practical wisdom, the evidence of child witness must find adequate
corroboration. In our view, this decision does not come to the aid of the
accused since there is ample corroboration of the statements of the child
witnesses in the present case.

40. Section 29 of the POCSO Act states that where a person is prosecuted
for committing or abetting or attenuating to commit any offence under
sections 3,5,7 and section 9 of said Act, the Special Court “shall presume,
that such person has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved”. Section 30 of the
POCSO Act raises a statutory presumption of culpable mental state of the
offender. The same reads:

“30. Presumption of culpable mental state.-

1. In any prosecution for any offence under this Act which
requires a culpable mental state on the part of the accused, the
Special Court shall presume the existence of such mental state
but it shall be a defence for the accused to prove the fact that
he had no such mental state with respect to the act charged as
an offence in that prosecution.

2. For the purposes of this section, a fact is said to be
proved only when the Special Court believes it to exist beyond
reasonable doubt and not merely when its existence is
established by a preponderance of probability.

Explanation.- In this section, “culpable mental state” includes
intention, motive, knowledge of a fact and the belief in, or
reason to believe, a fact.”

41. There is sufficient material on record to raise the presumption under
Section 29 of the said Act in the face of the statements of the victims „S‟ and

Crl.A.474/2018 Page 34 of 37
„I‟ recorded before the learned MM under Section 164 Cr.P.C.; the
statement of the mother of the victim „S’ (PW-1) recorded before the police
under Section 161 Cr.P.C. (Ex. PW-1/A); the testimony of PW-1 before the
Court, the statements of the victims PW-2 and PW-3 before the Court; the
testimony of PW5 and PW-6- the fathers of PW-2 and PW3 respectively
before the Court; the MLC of „S‟ (Ex.PW-7/A); the seizure memo of the
stick (Ex.PW-1/D) and the seizure memo of Chunni (Dupatta) (Ex.PW-1/E).
Thus, it was for the accused to rebut the presumption by producing proof
before the Court that he was not guilty of the offence of aggravated sexual
assault. The accused has, however, miserably failed to rebut the said
statutory presumption which the Special Court was bound to raise against
the accused.

42. The evidence brought on record does not, however, establish beyond
all reasonable doubt the commission of the offence of penetrative sexual
assault. Though, PW-3 – the victim „I‟ did state in his statement recorded
under Section 164 Cr.P.C. that the accused committed the offence of
penetrative sexual assailt by inserting his penis into the anus of the victim S,
the victim „S‟ (PW-2) did not say so either in his statement recorded under
Section 164 Cr.P.C., or in his statement before the Court. PW-1 the mother
of the victim „S‟ was the first in whom the victim „S‟ confided. PW-1
recorded her statement under Section 161 Cr.P.C. contemporaneously. In
the said statement, she stated that the accused attempted to insert his penis
into the anus of the victim „S‟. Even before the Court, while deposing as
PW-1, she repeated the same statement. Moreover, the MLC of the victim
„S‟ also does not corroborate the charge of penetrative sexual assault, since

Crl.A.474/2018 Page 35 of 37
there was no injury found on the anus of the victim „S‟. It is also not
supported by the MLC of the accused, since he was not found to have
suffered injuries on his private part, which could have been caused during
anal intercourse with the child aged 6 years. However, the act of applying
oil on the anus of the victim „S‟ brings the offence under Section 7 of the
POCSO Act. Section 7 of the POCSO Act reads as follows:

―7. Sexual assault.- Whoever, with sexual intent touches the
vagina, penis, anus or breast of the child or makes the child
touch the vagina, penis, anus or breast of such person or any
other person, or does any other act with sexual intent which
involves physical contact without penetration is said to commit
sexual assault.‖

43. Considering the fact that both the victims „S‟ and „I‟ were only 6 and
5 years of age respectively, the offence qualifies as a case of aggravated
sexual assault as defined in Section 9(m) of the POCSO Act. From the
evidence brought on record, the offence of aggravated sexual assault defined
in Section 9 read with Section 7 of the POCSO Act clearly appears to be
made out beyond all reasonable doubt.

44. The respondent accused is clearly guilty of the offence under Section
363 IPC, since he enticed the two minor victims aged 6 and 5 years out of
the keeping of the lawful guardian of the said minors without the consent of
the guardians of the said minors. It has come in evidence that the accused
asked the minors to help him to move his boxes and lured them by offering
Rs.10. He took them in and bolted them inside before committing the
heinous crime. It was not his defence that he had the consent of the parents/
elders/ guardians of the two minor children.

Crl.A.474/2018 Page 36 of 37

45. In view of the aforesaid discussion, we set aside the impugned
judgment and hold the respondent/accused guilty of having committed the
offence under Section 363 IPC and under Section 9 read with Section 7 of
the POCSO Act, and convict him for the said offences.

46. The appeal is allowed accordingly.

(VIPIN SANGHI)
JUDGE

(P.S. TEJI)
JUDGE
JULY 02, 2018

Crl.A.474/2018 Page 37 of 37

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation