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Vijay vs State on 10 October, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 8th July, 2019
Judgment delivered on: 10th October, 2019

+ CRL. A.9/2019
VIJAY ….. Appellant
versus

STATE ….. Respondent
Advocates who appeared in this case:
For the Appellant: MR. Aditya Wadhwa, Advocate

For the Respondents: Ms. Meenakshi Dahiya, Addl. PP for the State

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J

1. Appellant impugns judgment on conviction dated 19.07.2018
and order on sentence dated 02.08.2018 whereby the appellant has
been convicted for the offence punishable under Section 4 POCSO
Act as well as for the offences punishable under Sections 367/Section377/Section506
IPC and sentenced to undergo rigorous imprisonment for a period of 7
years under Section 4 of POCSO Act and to pay a fine of Rs. 20,000/-
and in default of payment of fine to further undergo simple
imprisonment for a period of six months, for the offence under
Section 367 IPC for a period of six years with fine of Rs. 10,000/- in
default to further undergo simple imprisonment for a period of three

CRL. A. 9/2019 Page 1 of 11
months and rigorous imprisonment for a period of two years for the
offence punishable under Section 506 IPC with fine of Rs. 5000/-, in
default to further undergo simple imprisonment for a period of one
month.

2. On 25.02.2015 an intimation was received of an offence having
been committed. When the Investigating Officer reached the spot, he
found that there was a crowd which had gathered and he was informed
that the parents of the victim had caught hold of the Appellant who
was handed over to the Investigating Officer. It was contended that
the Appellant had performed unnatural sex with the victim/male who
was aged 13 years.

3. Statement of the victim was recorded who stated that on
24.02.2015 at about 7.00 PM he was playing with his brother and the
Appellant who resided in the rear lane came and asked him if he
wanted to see a movie. He took him towards the side of the drain and
after going some distance he crossed the boundary wall adjacent to the
drain and told him that he was going for urination and asked the
victim if he would accompany him. The victim also went there.
There, the Appellant showed him a blue film on his mobile phone but
victim refused to see it and told that he did not want to see such a bad
movie.

4. The victim further stated that when he wanted to go from there,
the Appellant opened the zip of his pant and took out his penis and
asked him to hold it. The victim was scared and in fear, he held it. He

CRL. A. 9/2019 Page 2 of 11
had further stated that the Appellant told him that he would tell his
father that he had held his penis. When the victim requested not to tell
his father, the Appellant asked him to move his penis up and down,
which he did under fear of the accused. He further deposed that he
took him near a tree where he asked him to remove his pant which he
did and he started inserting his penis inside the rectum of the victim.
He felt a lot of pain and started shouting but somehow, he got himself
released. He further deposed that the accused again asked him to
move his penis up and down which he did and the accused ejaculated
and sperm of accused came in his hand which he cleaned with his
shirt. Thereafter he asked the victim to go back home.

5. The victim was frightened and he asked accused if accused
would do this act daily, on which appellant replied that he would do
so whenever he would feel like it. Thereafter they came back home.

6. He further deposed that on the next day, after returning from
school, he told all the facts to his mother, who called PCR. He was
taken to the Hospital for medical examination.

7. The trial court based on the testimony of the prosecution
convicted the appellant of the said offences.

8. Learned counsel for the appellant contended that the version of
the victim was contradicted by the MLC as also the report of the
forensic science laboratory.

CRL. A. 9/2019 Page 3 of 11

9. He submits that in the MLC it is reported that there was no
fresh external injury seen. Learned counsel contends that if the
allegations of the victim were correct that the appellant had attempted
to insert his penis into his rectum and he felt a lot of pain then he
would have suffered external injury marks. Because there were no
external injury marks found during medical examination, the
allegations that he had started inserting his penis into the rectum, was
not established.

10. Further it is contended by learned counsel for the appellant that
the story of the victim that he had moved the penis of the appellant up
and down on account of which he had ejaculated and his sperm came
on his hand and he cleaned it with his shirt, is also not substantiated as
the report of the FSL shows that semen could not be detected on the
clothes of the victim and as such the contention that appellant had
ejaculated on the hand of the victim and he had wiped his hand with
his shirt, is not substantiated.

11. In the impugned judgment, the trial court after noting the
testimony of the victim as also his mother has held that the victim had
been consistent in his testimony. No contradiction had emerged in the
testimony of the victim. The trial court further noticed that from his
initial statement under Section 164 Cr. P.C. till his testimony before
the Court, the victim had been completely consistent. No
contradictions were found in the testimony of the victim. The Trial

CRL. A. 9/2019 Page 4 of 11
court has observed that the victim appeared to be a completely
credible witness.

12. Countering the plea about the delay in not reporting the incident
the same night, the trial court held that the fact that victim did not
disclose about the incident to anyone during the night or the day when
the incident had taken place is consistent with the conduct of a small
child who had gone through such a trauma especially when in such a
sexual act, some amount of shame is also attached.

13. Trial court further held that the conduct of the victim is further
consistent with the conduct of a child of that age because when the
victim returned from school, threat of the accused that he would
repeat his acts as and when he wanted, was grooming large over the
head of the victim and it was possible that the victim might have
thought about it throughout the day and finally thinking that he would
be subjected to same acts again if he would go out of his house, he
started crying and finally told his mother.

14. With regard to the medical evidence not pointing towards any
injury upon the rectum of the victim, the trial court has held that it is
not in all cases that a victim of sodomy would suffer such injuries.
Injuries suffered by victim would depend upon the depth of
penetration, size of penis of the assaulter and the fact whether any
lubrication was used or not and, in every case, it is not necessary that
there would be a clear injury.

CRL. A. 9/2019 Page 5 of 11

15. Further, the trial court has noticed that the doctor who had
examined the victim, had examined him after a gap of almost 20 hours
of the sexual assault and has accordingly held that the injuries on the
rectal portion heal very fast. The Trial Court has opined that had there
been any redness or bruises because of a slight penetration, there is a
possibility that they would have healed by the time the doctor had
examined the victim.

16. Trial court further held that absence of any positive FSL report
would not in any manner shake the confidence in the testimony of
victim. Positive report would have corroborated the testimony of the
witness but a negative report does not discredit the testimony.

17. In the impugned judgment the Trial Court has held as under:

“36. In the present case from his initial statement
EX.PW3/A to his statement u/s 164 SectionCr.P.C till his
testimony before the court when he appeared as PW3,
victim has been completely consistent. No contradictions
have been found in the testimony of the victim. Victim
appears to be a completely credible witness. The fact that
victim did not disclose about the incident to anyone
during the night of the day when the incident had
happened, is consistent with the conduct of a small child
who had gone through such a trauma especially when in
such sexual acts, some amount of shame is also attached.
The conduct of the victim is further consistent with the
conduct of the child of that age because when victim
returned from school, threat of accused that he would
repeat his acts as and when he wanted, was grooming
large over the head of the victim. It is possible that victim
might have thought about it throughout the day and
finally thinking that he would be subjected to same acts

CRL. A. 9/2019 Page 6 of 11
again if he went out of the house, he started crying and
then on being inquired, finally, he told his mother.

37. It is correct that the medical evidence does not
point towards any injury upon the rectum of the victim.
However, it is not in all cases that a victim of sodomy
would suffer such injuries. Injuries suffered by victim
would depend upon the depth of penetration, size of penis
of the assaulter and the fact whether any lubrication was
used or not. Therefore, it cannot be said that in all cases
there has to be a clear injury.

38. It is also to be seen that doctor had examined
victim at about 03.45 p.m. one the day after he was
sexually assaulted. So, there is a gap of almost 20 hours
between the sexual assault and the victim being
medically examined. Injuries in the rectal portion heal
very fast. Therefore, had there been any redness or
bruises because of a slight penetration, there is a
possibility that they would have been healed by the time
the doctor had examined victim.

39. Similarly, absence of any positive FSL report
would not in any manner shake the confidence in the
testimony of victim. I say so because FSL report, if
positive, could have corroborated the testimony of victim.
However, in the circumstances, where it was rectal
penetration and during the evening of 24.02.2015 and in
the morning of 25.02.2015, victim would have defecated,
the presence of any semen could not have been detected
in the rectal swabs.

40. Even otherwise, it is only a corroborative piece of
evidence and if the testimony of victim is otherwise found
to be reliable, merely because the FSL report has not
given any positive result, the testimony of victim cannot
be discarded.

CRL. A. 9/2019 Page 7 of 11

41. It is also to be noticed that no motive has been
attributed for the false implication of accused. Merely a
bald suggestion was given that there was some monetary
dispute between the accused and the family of victim.
However, what kind of monetary dispute was there, has
nowhere been brought on record. No positive evidence
has been brought to show the motive for false
implication. In absence of any motive for false
implication of accused, it would be perilous to discard
the consistent testimony of such a child whose conduct
has also been found to be very credible.

42. I accordingly find that the testimony of victim is
credible and is of sterling quality and is sufficient to
bring home the guilt of accused. The prosecution beyond
all reasonable doubts has proved that on 24.02.2015 at
about 7.00 p.m., accused had taken victim out of the
lawful guardianship of his parents in order to satisfy his
unnatural lust and therefore, committed an offence
punishable u/s 367 SectionIPC. The prosecution has also proved
beyond all reasonable doubts that after taking the victim
to a secluded place, accused had committed penetrative
sexual assault upon victim by inserting his penis into the
rectum of victim. Thus, the accused has committed
offence punishable u/s 377 SectionIPC and u/s 4 POCSO Act.

43. As regards Sectionsection 506 IPC, I find that as the
accused had threatened victim that in case he failed to
obey his commands, he would tell victim’s father that he
had touched his penis. Accused had threatened victim
with an injury to his reputation. It is to be seen that even
a child of 12/13 years has a reputation and has a sense of
shame. Such a threat would certainly be taken by victim
or a child in the sense that his reputation would be
injured in the eyes of his family. This threat also had the
effect as victim complied with the directions of accused.
Thus, I find that accused had criminally intimidated

CRL. A. 9/2019 Page 8 of 11
victim and committed an offence punishable u/s 506
SectionIPC.”

18. As noticed by the trial court the victim appears to be a
completely credible witness and has been consistent with his version
of the incident starting from the initial complaint to the statement
under Section 164 Cr. P.C. and his deposition before the Court.

19. There is no material produced either before the trial court or
before this Court which would shake the testimony of the victim or
create any doubt on the manner in which the alleged incident had
happened.

20. Merely because there is no positive FSL report, would not cast
any doubt on the testimony of the victim. FSL report is only a
corroborative piece of evidence and merely because it does not
corroborate the testimony of the victim would not, in any manner,
render the testimony of the witness, which is otherwise reliable, as
unreliable or liable to be discarded.

21. Further it may be seen and as noticed by the trial court, no
motive has been attributed for false implication of the accused. The
trial court has, in my view, rightly discarded the suggestion given
during cross-examination that there was monetary dispute between the
families. No kind of monetary dispute has been brought on record and
further no evidence has been brought on record to show motive for
false implication. Trial court has rightly held that in the absence of

CRL. A. 9/2019 Page 9 of 11
any motive of false implication of the accused it would be perilous to
discard the consistent testimony of the child victim whose conduct has
also been found to be very credible.

22. Trial court has rightly held that the testimony of the victim is
credible and is of sterling quality and is sufficient to bring home the
guilt of the accused. Trial court has found that the prosecution has
proved beyond all reasonable doubts that the subject offence was
committed by the appellant against the victim.

23. Reliance placed by the learned counsel for the appellant on the
judgment of the Supreme Court in Radhey Shyam Vs. State of
Rajasthan (2014) 5 SCC 389 to contend that the 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
and further that evidence of a child witness must find adequate
corroboration before it is relied upon, is not applicable in the facts of
the present case, in as much as, the trial court has noticed that the
victim has been consistent in his version from the first statement to his
deposition before Court and also found that the evidence of the child
victim was of sterling quality.

24. Even before this Court, no material could be pointed out by
learned counsel for the appellant to shake the confidence reposed in
the testimony of the child victim.

CRL. A. 9/2019 Page 10 of 11

25. I find no infirmity in the view taken by the trial court in holding
that the prosecution has proved beyond reasonable doubt that the
appellant had committed the offence under Section 377 IPC and
Section 4 of POCSO Act as also the offence under Section 367/Section506
IPC. I find no infirmity in the judgment on conviction.

26. It may further be noticed that the trial court in the order on
sentence has noticed that the appellant had committed an unnatural
assault upon a minor child of 13 years which made the crime very
serious.

27. However, the facts that appellant was not involved in any other
offence, had a widowed mother and was a young boy were found to
be mitigating circumstances for not awarding the maximum sentence
and accordingly appellant was convicted for the minimum prescribed
sentence of 7 years for the offence under Section 4 POCSO Act.

28. In view of the above, I find no merit in the appeal. The appeal is
accordingly dismissed.

29. Order dasti under signatures of the Court Master.

SANJEEV SACHDEVA, J
OCTOBER 10, 2019
‘rs’

CRL. A. 9/2019 Page 11 of 11

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