Bhagwan Dass @ Ram Khiladi vs State
2015 Latest Caselaw 3321 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : MARCH 02, 2015
                              DECIDED ON : APRIL 24, 2015

+      CRL.A.1070/2014

       BHAGWAN DASS @ RAM KHILADI           ..... Appellant
                  Through : Mr.Neeraj Bhardwaj, Advocate.


                         VERSUS

       STATE                                          ..... Respondent
                         Through :   Mr.Navin K.Jha, APP.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 22.04.2014 of learned

Additional Sessions Judge in Sessions Case No.70/2013 arising out of FIR

No.32/2013, Police Station D.B.G. Road by which the appellant Bhagwan

Dass @ Ram Khiladi was convicted under Section 292 (2) (a)/ 354 IPC

and under Section 10 of the POCSO Act, he has filed the instant appeal.

By an order dated 25.04.2014, he was awarded RI for five years with fine

`500/- under Section 10 POCSO Act and RI for six months with fine

`500/- under Section 292 (2) (a) IPC. Both the sentences were to operate

concurrently.

2. Allegations against the appellant, as projected in the charge-

sheet were that on 27.01.2013 at around 4:30 p.m. in the area of Punjabi

Basti, Bhagat Singh Nagar Gali falling within the jurisdiction of PS DBG

Road, he showed obscene film on his mobile to the victim 'X' (assumed

name), aged around six years and committed aggravated sexual assault

upon her. The appellant also outraged her modesty. Police machinery was

set in motion when information about the occurrence was conveyed to the

police at around 4:52 p.m. and Daily Dairy (DD) No.15 (Ex.PW-7/A) was

recorded at 04:55 p.m. at Police Post Shiv Puri Police Station DBG Road.

The investigation was assigned to HC Anil who with Ct. Hemant went to

the spot. The Investigating Officer lodged First Information Report after

recording statement of victim's mother Anju (Ex.PW-4/A). 'X' was taken

for medical examination. The accused was arrested and medically

examined. Statements of witnesses conversant with the facts were

recorded. After completion of investigation, a charge-sheet was filed

against the accused for committing aforesaid offences. The prosecution

examined 13 witnesses to substantiate its case. In 313 statement, the

appellant pleaded false implication and denied his involvement in the

crime. He did not produce any evidence in defence. The trial resulted in

his conviction as aforesaid. It is significant to note that the appellant's

acquittal under Section 6 POCSO Act was not challenged by the State.

Aggrieved by the impugned judgment, the appellant has preferred the

instant appeal.

3. I have heard the learned counsel for the parties and have

examined the file. The occurrence took place at around 04:30 p.m. The

information to Police Control Room was transmitted at 16:52:32 hours. It

records that an individual who had shown the blue film to children was

apprehended at the spot. At 17:11:45 hours, it records that the said person

was beaten by the public. Daily Dairy No.15 (Ex.PW-7/A) recorded at

4:55 p.m. 'X' was taken for medical examination at 11:10 p.m. The

alleged history recorded therein describes the details of the occurrence.

FIR was lodged without any delay at 06:30 p.m. by sending rukka

(Ex.PW-13/A). In the statement (Ex.PW-4/A) victim's mother

specifically named the appellant to be the perpetrator of the crime. She

gave detailed account as to how and under what circumstances, the

appellant outraged the modesty of child 'X'. Since the FIR was lodged

promptly without any delay, there was least possibility of the victim's

mother to have concocted a false story in such a short period.

4. In her Court statement as PW-4 Anju proved the contents of

the complaint without any variation. She deposed that her daughter 'X'

soon after the occurrence came to her weeping and told that the appellant

had shown her obscene movies on his mobile and had touched her vagina.

Crucial testimony is that of the victim PW-2 whose testimony is

consistent throughout. In her statement recorded under Section 164

Cr.P.C., she implicated the appellant for the crime. She was put various

questions by the Presiding Officer before recording her Court statement to

ascertain if she was a competent witness and understood the questions put

to her and give rational answers. The Trial Court after recording

satisfaction that 'X' was a competent witness examined her on oath. She

deposed that the accused was acquainted with her before the incident and

he used to drive an auto. He had shown her dirty photos from his mobile

phone. Elaborating further, she deposed that in the movie shown to her, a

girl taking bath had initially removed the underwear of the boy.

Thereafter, the boy removed the girl's underwear and then she started

sucking his 'sho-sho' (penis). She further revealed that the accused,

thereafter, rubbed her 'sho-sho' (vagina) by putting his hand in her

underwear and asked not to disclose the incident to anyone. She

identified the mobile (Ex.P-1). In the cross-examination, she denied if her

sister 'Y' (assumed name) had taken the mobile phone from the appellant

to play on it. She denied that her sister had snatched the phone and at that

time, she and her sister had seen the glimpse of the video clip.

5. On scrutinizing the testimony of the child witness, it reveals

that no ulterior motive was assigned to her to make a false statement.

Material facts about the occurrence have remained unchallenged in the

cross-examination. In 313 statement, the appellant admitted that at the

relevant time, he was sitting on the motorcycle and three sisters came to

him; youngest one climbed over his shoulder whereas the eldest one

snatched his mobile phone and ran away. He alleged that at that point of

time, probably they saw the obscene video clipping on his mobile phone

and thereafter raised alarm. He denied to have shown any video clip to

the children. Analyzing the statement of the victim coupled with 313

statement, it stands established that the appellant was present at the spot at

the relevant time while sitting on the motorcycle in the company of 'X'

and her sisters. It further stands admitted that the appellant had a mobile

phone (Ex.P-1) which contained obscene video-clips. Inconsistent

suggestions have been put to the victim in the cross-examination as to

under what circumstances 'X' had seen the video-clip when her sister had

snatched the phone from him. Apparently, the obscene video-clips in the

mobile phone in possession of the appellant was seen by the victim. It is

unbelievable that victim's eldest sister aged 10 years would snatch the

mobile phone from the accused and would allow the victim to watch the

porn video on the mobile in no time. PW-5 (Y, assumed name), in her

Court statement denied if she had snatched mobile from the accused.

Suggestion was put to her that when she and her sisters were playing in

the Gali, the appellant was watching 'something' on his mobile phone

while sitting on the motorcycle. She denied that at that time, she and her

sisters arrived there and asked the appellant to give the mobile phone to

play games on the phone. She further denied that while playing, they

started watching mobile phone of the accused. She further denied that she

and her sisters had taken the mobile phone from the hands of the accused

and when they saw the porn video going on the said mobile, they raised

alarm and consequently the public gathered and gave beatings to the

accused. These suggestions lend credence to the prosecution case that at

the relevant time, the appellant was watching obscene clippings on his

mobile and had shown the said mobile clippings to the victim. No sound

reasons exist to disbelieve the statement of the prosecutrix, a child witness

aged around six years.

6. In the 313 statement, the appellant came up with the defence

that about four days before the incident, a quarrel had taken place between

him and the victim's father and he had threatened him to falsely implicate

him in a case. The defence deserves outright rejection as no particulars of

any such alleged quarrel has been detailed. No complaint was lodged by

the appellant about the said quarrel. Moreover, for a petty quarrel (if any)

between the appellant and victim's father, the victim's father is not

imagined to lodge a false complaint to put honour of her own daughter at

stake. Unless such an offence has really been committed, an unmarried

little girl and her parents would be extremely reluctant to level serious

allegations which are likely to reflect on the chastity of the girl.

7. Minor lapses in the investigation pointed out by the learned

counsel for the appellant are not material to discredit the otherwise cogent

and reliable testimony of the victim, her sister and mother. Non-joining of

independent witnesses from the locality is not fatal. Certain

discrepancies, exaggerations and contradictions referred to by the

appellant's counsel do not affect the core of the prosecution case to throw

it away over-board. The Trial Court has already given benefit of doubt to

the appellant under Section 6 POCSO Act. All the relevant contentions of

the appellant have been dealt with appropriately in the impugned

judgment which is based upon due appreciation of the evidence and needs

no interference. Since the victim was a child around six years, no

leniency is called for to modify the sentence order.

8. The appeal lacks merits and is dismissed. Trial Court record

(if any) along with a copy of this order be sent back forthwith. A copy of

the order be sent to Jail Superintendent, Tihar Jail for intimation.

(S.P.GARG) JUDGE APRIL 24, 2015 sa