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Sudarshan Mishra vs State on 23 January, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.A.1261/2015

Reserved on : 10.01.2020
Date of Decision : 23.01.2020
IN THE MATTER OF:
+ CRL.A. 1261/2015
SUDARSHAN MISHRA ….. Appellant
Through: Mr. Harsh Prabhakar, Advocate
(DHCLSC).
Versus

STATE ….. Respondent

Through: Ms. Manjeet Arya, APP for State
with SI Rajbir Singh Inspector
Jaspal Singh, P.S. Mangol Puri.

CORAM:

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. By way of the present appeal, the appellant has assailed the
judgment of conviction dated 23.03.2015 and order on sentence dated
25.03.2015 by which the appellant has been convicted and sentenced in
FIR No. 521/2013 registered under Sections 376(2)(f)/506/511 IPC and
6/18/8 of POCSO Act, P.S. Mangol Puri, Delhi.

2. The appellant was sentenced as under:-

(i) For the offence u/s 10 of POCSO Act, the convict
Sudarshan Mishra is sentenced to Rigorous Imprisonment
for a period of 5 years alongwith fine of Rs. 10,000/- in
default of payment of fine, further SI for a period of 3
months;

(ii) For the offence u/s 6 r/w Section 18 of POCSO Act,
the convict Sudarshan Mishra is sentenced to Rigorous

CRL.A. 1261/2015 Page 1 of 13
imprisonment for a period of 7 years alongwith fine of
Rs.20,000/-, in default of payment of fine, further SI for a
period of 6 months.

(iii) For the offence u/s 506 IPC, the convict Sudarshan
Mishra is sentenced to Rigorous Imprisonment for a
period of 2 years.

3. The brief facts as noted by the trial court are as under:-

“The facts of the case, as borne out from the record are
that on 29.08.2013, at about 2.40 PM child victim K,
alongwith her mother went to PS Mangolpuri with the
complaint of repeated sexual harassment and sexual
assault, committed against her by her own father, who is
accused in this case. Considering the sensitivity of the
matter, SHO, PS Mangolpuri summoned Smt.Radha
Bhardwaj, Member of an NGO dealing in the welfare of
children and asked her to counsel the child victim and her
mother. After her counselling, the child victim made her
statement to 10 SI Khusboo Yadav, wherein she stated
that at that time, she was residing at house No.F-2/287,
Mangolpuri, Delhi belonging to her maternal
grandfather, however, about 10 days prior to the said
date, she had been residing with the accused, her mother
and two brothers in House No.G-29, Mangolpuri, Delhi.
She was a student of class 8th. Her father after getting
drunk used to sexually assault her by fondling with her
private parts and after doing so, used to criminally
intimidate her not to tell about the same to her mother,
else he would liquidate her. Out of fear, she did not tell
about all this to her mother. On 25.07.2013,her father
came to her bed, de-robed her and started fondling with
her private parts, when she tried to scream, he smothered
her with a pillow and tried to insert his penis into her
vagina. She bit his hand as a consequence whereof, her
father left her. A week thereafter once again her father
tried to commit similar act upon her, but in the meantime,
her mother reached home and his father set aside himself.
At that time, she told all the previous attempts of her
father of sexual assault to her mother. Her mother tried
to make her father understand not to repeat such acts, but

CRL.A. 1261/2015 Page 2 of 13
in vain. Thereafter, she was taken to the PS by her
mother.

4. After completing investigation, the charge-sheet was filed and on
10.02.2014, the trial court framed charges under Section 10 and 6 read
with Section 18 of POCSO Act as well as under Section 506 IPC. The
appellant pleaded not guilty and claimed trial.

5. The prosecution in support of his case, examined 13 witnesses.
The material witnesses who were examined were the child victim, her
mother and maternal grandfather.

6. I have heard Mr. Harsh Prabhakar, learned counsel for the
appellant as well as Ms. Manjeet Arya, learned APP for the State and
have also gone through the trial court records.

7. The child victim was examined as PW-3. She testified that she was
residing with her parents alongwith her two minor siblings. At the
relevant time she was a student of 9th standard. She stated that the
appellant (who is the father of the child victim), under the influence of
alcohol used to touch her breast and private parts. He also used to
threaten her to not to disclose of his acts to anyone. On 25.07.2013, the
appellant came to her bed and started molesting her. He removed her
clothes. She tried to call her mother but the appellant put a pillow on her
face. She further stated that thereafter, “Papa ne apni pishab ki jagah
meri pishab karne ki jagah me dalne ki kaushish karne lage toh maine
dant se unhe katt liya”. The appellant went away by threatening her to
not to disclose to anyone else he would kill her and her mother. After
about one week, the appellant put her on the bed and removed her pant
and lied on her. At that time, her mother who had gone to market, came
back and saw the incident. She told her mother about the past incidents

CRL.A. 1261/2015 Page 3 of 13
as well. The appellant was confronted by the mother but he refused to
admit his guilt. The next day, she was sent to her maternal grandmother’s
house. She proved her statement recorded by the I.O. the learned M.M
as Ex.PW-3/A and Ex.PW-3/B respectively. In the cross-examination,
she was asked about the size of the room, to which she replied that it was
a small room with a kitchen and common bathroom. She denied the
suggestion that she had testified at the instance of her mother.

8. The mother of the child victim was examined as PW-4. She
testified that she has two sons and one daughter (child victim). She stated
that though earlier she was working, but at the time of the incident, she
was not employed. One day, she had gone to purchase vegetables and
when she came back she saw that the appellant was lying on her daughter
on the bed. He had removed her pant and had put his hand on her mouth.
On seeing her, he went out. The child victim told her about the previous
sexual assaults committed by the appellant in the night of 25.07.2013.
She also told her about the tooth bite as well as the threats given by the
appellant to her. On the next day, she sent her daughter to her mother’s
house. The appellant gave beatings to her. On the day after Janmastami,
she called her father and told him about the acts of the appellant and later
went to the police station along with her daughter to lodge the present
FIR. In her cross-examination, she stated that the premises comprised of
one kitchen, bathroom and a small room. She admitted that she had not
witnessed any misbehaviour of the appellant prior to 25.07.2013. She
also stated that earlier the child victim had not disclosed about any
trouble by the appellant. She denied the suggestion that the FIR was
lodged at the instance of her father, as she wanted to teach a lesson to the
appellant. She denied the suggestion that she was having an affair with

CRL.A. 1261/2015 Page 4 of 13
one Indal, a vegetable vendor. She also stated that she refused the
internal medical examination of the victim as no rape was committed and
refused keeping in mind the future prospects of her daughter.

9. The maternal grandfather of the child victim was examined as PW-

6. He testified that 8 to 10 days prior to Janmastami, her daughter
informed him about the sexual assualt committed by the appellant on the
child victim. Thereafter, the child victim had stayed at his house. In
cross-examination, he denied the suggestion that her daughter had an
affair with a neighbour on account of which there were frequent quarrels
between his daughter and the appellant.

10. Ms. Parveen Tandon, the Principal of the Primary School attended
by the child victim was examined as PW-1. She produced the documents
on record relating to the date of birth of the child victim which were
exhibited as Ex.PW-1/A to Ex.PW-1/C. As per the school records, the
date of the birth of the child victim was 01.01.2000. The witness was not
cross-examined.

11. Dr. Sarika (PW-9) proved the MLC of the child victim as Ex.PW-
4/A. Dr. Sunny (PW-10) proved the MLC of the appellant. Dr. Shankar
Gupta (PW-12) proved the opinion on the MLC of the appellant that
there was nothing to suggest that he was not capable of performing
sexual intercourse.

12. Learned M.M. who recorded the statement of the child victim
under Section 164 Cr.P.C. was examined as PW-11. Ms. Radha
Bhardwaj, the Counsellor from the NGO was examined as PW-5.

13. Learned counsel for the appellant contended that the testimony of
the child victim is not reliable, as there have been not only material

CRL.A. 1261/2015 Page 5 of 13
inconsistencies between various statements, but also marked
improvements which include mentioning name of grandfather in the
subsequent statements. It was further contended that though the child
victim has used the word ‘palang’ (bed) in her testimony however, in
cross-examination, the child victim admitted that it was a small room
where there was no bed and everyone used to sleep on the floor on a
bedding or a chatai (mat). It was further contended that whereas in the
Rukka/tehrir it was mentioned that the appellant was committing the
sexual assault for the last one month, however in her subsequent
statement, it was stated that the same was committed for about two
months prior to lodging of the FIR. Lastly, it was contended that the
tehrir as well as the report of the CWC mentioned that a statement was
also given to the NGO however, the same was never produced on record.

14. The appellant has not disputed the age of the child victim, who
was about 13 years of age at the relevant time. Her date of birth was duly
proved by Ms. Parveen Tandon, Principal of the Primary School.

15. The appellant in his statement recorded under Section 313 Cr.P.C
took the defence that he was falsely implicated by the mother of the child
victim in connivance with her father to grab the appellant’s ancestral
property in his native village in Bihar.

16. The testimony of the child victim with respect to the incident dated
25.07.2013 as well as the subsequent incident is consistent qua her earlier
statement given to the police as well as her statement recorded under
Section 164 Cr.P.C.

17. In Dattu Ramrao Sakhare v. State of Maharashtra reported as
(1997) 5 SCC 341, the Supreme Court held that conviction on the sole

CRL.A. 1261/2015 Page 6 of 13
evidence of the child witness is permissible, if the witness is found
competent and the testimony is trustworthy. Similarly, in State of
Rajasthan v Om Prakash reported as (2002) 5 SCC 745 while reversing
the decision the High Court and upholding the conviction of the appellant
held:-

“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. In State of Punjab v. Gurmit
Singh reported as (1996) 2 SCC 384, referring to State of
Maharashtra v. Chandraprakash Kewalchand Jain
reported as (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 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.

14. In State of H.P. v. Gian Chand reported as (2001) 6
SCC 71 Justice Lahoti speaking for the Bench 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 on

CRL.A. 1261/2015 Page 7 of 13
though there may be other witnesses available who could
have been examined but were not examined”.

18. Similarly, in State of H.P. v. Sanjay Kumar reported as
(2017) 2 SCC 51, while relying on the testimony of a child
witness to restore the conviction, the following observations were
made:-

“31. After thorough analysis of all relevant and attendant
factors, we are of the opinion that none of the grounds,
on which the High Court has cleared the respondent, has
any merit. 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? The plea about lack of
corroboration has no substance (See Bhupinder Sharma
v. State of H.P). Notwithstanding this legal position, in

CRL.A. 1261/2015 Page 8 of 13
the instant case, we even find enough corroborative
material as well, which is discussed hereinabove”.

19. Recently, this Court in Mahinder Another v. State (NCT of
Delhi) reported as (2019) SCC OnLine Del 9548 held as follow:-

“20 It is well settled that in a case of rape, the finding of
guilt can be recorded even on the basis of
uncorroborated testimony of the prosecutrix provided it is
cogent and Court in [email protected] v. State of Madhya
Pradesh reported as (2010) 8 SCC 191 and Rajinder @
Raju v. State of H.P. reported as (2009) 16 SCC 69”.

20. So far as the contention of the learned counsel for the appellant for
non production of statement made to the NGO is concerned, it is relevant
to note that no suggestion/question to that effect was either put to the IO
or to Ms. Radha Bhardwaj, the NGO Counsellor during their cross-
examination. The next contention of learned counsel for the appellant
that the use of the word ‘palang’ in the child victim’s testimony makes it
unbelievable, is without any merit. The child victim is about 13 years of
age and merely the use of word ‘palang’ instead of bedding does not
make the entire statement unbelievable. For the same reason, I do not
find any merit in the contention that the child victim had stated that the
sexual assault was committed by the appellant two months prior to the
lodging of the FIR whereas the tehrir/CWC report mentioned the above
period as one month.

21. Lastly, learned counsel for the appellant contended that the
appellant has been falsely implicated in this case on account of the
grudge bore by the mother of the child victim. In this regard, he has
placed reliance on the decision in the case of Atender Yadav v. State
Govt. of NCT of Delhi reported as 2013 SCC OnLine Del 4322, where
it was observed that the child witness can be easily swayed away and is

CRL.A. 1261/2015 Page 9 of 13
prone to tutoring by either of the parents particularly when there is a
serious hostility between the husband and wife. A perusal of the decision
in the captioned case would show that the testimony of the child witness
was disbelieved as there were material contradictions in the statement of
the mother of the child against him. In her examination-in-chief, she had
stated that the daughter was 9 years old who had told her that after the
accused had sexual intercourse with her, she had started having periods.
However, in the cross-examination, she contradicted her above statement
and also as per the MLC, the prosecutrix was menstruating prior to the
incident of sexual intercourse. Even the statement of the prosecutrix was
found to be false with respect to her school attendance record. It was
further observed that the MLC of the prosecutrix did not support her
statement. For the aforesaid reasons, the decision in the captioned case is
not applicable in the facts and circumstances of the present case.

22. The testimony of a child witness has to be evaluated carefully as
the same is susceptible to tutoring [Ref: State of Madhya Pradesh v.
Ramesh reported as (2011) 4 SCC 786 and Ranjeet Kumar Ram v. State
of Bihar reported as 2015 SCC OnLine SC 500]. In the present case,
although suggestions have been given that on account of dispute with the
mother, the appellant has been falsely implicated but perusal of the
various statements of the child victim show that her narration of events in
all her statements with respect to the incident dated 25.07.2013 is clear,
cogent and consistent. In all her statements, she stated that the appellant
had removed her pant and attempted to put his penis in her private part.
The second incident occurred while the mother of the child victim had
gone to the market, when the appellant made the child victim lie and
after removing her pant lay upon her. The mother of the child victim

CRL.A. 1261/2015 Page 10 of 13
returned in the meantime and saw the appellant lying on the child victim.
The child victim has also explained the reason of not disclosing the
incident of 25.07.2013 to her mother till the second incident occurred as
she was threatened by the appellant. On a whole, I am of the opinion that
the child victim was a competent witness and her testimony is cogent,
consistent and reliable. She has consistently stated about both the
incidents. There is no inconsistency or improvement with respect to the
incident.

23. The Appellant’s conviction and sentence is upheld. Consequently,
the appeal, devoid of merits, is dismissed.

24. As per the nominal roll, the appellant has already been released on
completion of his sentence on 27.07.2019. However, he is stated to have
been re-admitted to jail on 31.10.2019 in another FIR.

25. Section 357A provides for victim compensation scheme and reads
as follows:

“1. Every State Government in co-ordination with the
Central Government shall prepare a scheme for
providing funds for the purpose of compensation to the
victim or his dependents who have suffered loss or injury
as a result of the crime and who, require rehabilitation.

2. Whenever a recommendation is made by the Court for
compensation, the District Legal Service Authority or the
State Legal Service Authority, as the case may be, shall
decide the quantum of compensation to be awarded under
the scheme referred to in sub-section (1)

3. If the trial Court, at the conclusion of the trial, is
satisfied, that the compensation awarded under section
357 is not adequate for such rehabilitation, or where the
cases end in acquittal or discharge and the victim has to

CRL.A. 1261/2015 Page 11 of 13
be rehabilitated, it may make recommendation for
compensation.

4. Where the offender is not traced or identified, but the
victim is identified, and where no trial takes place, the
victim or his dependents may make an application to the
State or the District Legal Services Authority for award
of compensation.

5. On receipt of such recommendations or on the
application under sub-section (4), the State or the District
Legal Services Authority shall, after due enquiry award
adequate compensation by completing the enquiry within
two months.”

26. In the case of Ankush Shivaji Gaikwad v State of Maharashtra
reported as (2013) 6 SCC 770, the Supreme Court re-emphasized that
Section 357A, confers a power coupled with a duty on the courts to
apply its mind to the question of awarding compensation in every
criminal case.

27. In exercise of the powers conferred under Section 357A of
CrPC, 1973, the government of NCT of Delhi in compliance with the
directions given by Supreme Court in W.P (C) No. 565/2012 titled
Nipun Saxena vs Union of India, approved the Delhi Victim
Compensation Scheme, 2018 for providing funds for the purpose of
compensation to the victim or his dependents who have suffered loss
of life or injury as a result of the crime.

28. The victim is directed to approach Delhi State Legal Services
Authority who shall consider the case in accordance with the aforesaid
Scheme and provide compensation to the victim, preferably within a
period of two months from the date of passing of this judgment.

CRL.A. 1261/2015 Page 12 of 13

29. A copy of this judgment be communicated to the trial court as well
as to the Member Secretary, Delhi State Legal Services Authority for
information and compliance. A copy of this order be also provided to the
appellant through Jail Superintendent at no cost.

(MANOJ KUMAR OHRI)
JUDGE

JANUARY 23, 2020
p’ma

CRL.A. 1261/2015 Page 13 of 13

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