State Nct Of Delhi vs Laxmi Kant Tiwari
2015 Latest Caselaw 6068 Del

    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                           Judgment reserved on :12.08.2015
                           Judgment delivered on :19.08.2015.
+   CRL.L.P. 469/2014
    STATE NCT OF DELHI                              ..... Petitioner
                    Through     Ms. Meenakshi Dahiya, APP for
                                State.
                    versus
    LAXMI KANT TIWARI                           ..... Respondent

                    Through     Respondent with his counsel
                                Mr.Raj Kumar Rajput & Mr.
                                Ravinder Singh, Advs.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
CRL.L.P. 469/2014

Leave is granted to the State. The Registry is directed to register the appeal.

Petition disposed of.

Crl Appeal No........./2015 (to be numbered) 1 The State has filed the present appeal impugning the judgment

dated 22.05.2014 vide which the respondent Laxmi Kant Tiwari had

been acquitted. He had been charge sheeted under Sections 8 and 12 of

the Protection from Sexual Offences Act, 2012 (hereinafter referred to

as the said Act) but the learned Sessions Judge was of the view that

there are inherent contradictions in the versions of the witnesses and

accordingly granting him the benefit of doubt, he had been acquitted.

2. This judgment has been assailed before this Court.

3 Learned Public Prosecutor submits that the discrepancies as noted

in the versions of Anil Kant Gupta (PW-3) and the victim "C" (PW-4)

are not made out; these inconsistencies were minor and would not make

out a case of acquittal. There was also no reason for the false implication

of the accused. Testimonies of Prem Lata (PW-1) and Lalit (PW-2) have

also been ignored illegally by the trial Judge.

4 Learned counsel for the respondent has filed a reply and

addressed his submissions. His submission is that the impugned

judgment in no manner suffers from any infirmity. It is pointed out that

this is a clear case where the accused has been falsely roped because of

an incident which had occurred 4-5 days ago where the cycle of PW-4

got damaged and to satisfy his ego, PW-4 has planted this false case

upon the respondent which is only at the behest of his father.

5 Arguments have been heard and Record has been perused.

6 The first version of the prosecution was recorded in DD no. 29-A

(Ex. PW-10/A); information had been received in the local police station

Pahar Ganj on 22.05.2013 at about 7.20 pm to the effect that one Pandit

Ji was doing „galat kaam‟ with the children at 4889, Laddo Ghati

Chowk. SI Vishnu Dutt (PW-10) along with constable Bhupender (PW-

9) reached at the spot. On the statement made by the complainant (PW-

4) (Ex. PW-4/B) the investigation was set into motion. PW-4 in his

complaint had stated that a Pandit Ji known to him had asked him

questions relating to his puberty and made inquiry from him and stated

that your moustaches were growing and asked him whether hair was

also growing on his private part or whether any white liquid comes out.

Again after two days the Pandit Ji touched his penis by his hand and

asked him (PW-4) to suck it. PW-4 managed to run away. Further

allegation is that on 22.05.2013 at about 7.00 pm when the victim/PW-3

was standing outside his house, the same person passed indecent

gestures and stated aaja lele and pointed out towards his penis. PW-4

informed his father. Accused was accordingly apprehended. Meanwhile,

one lady Prem Lata (PW-1) also came there and made a complaint

against the same accused alleging a similar nature of sexual assault by

the accused upon her son. Her son Lalit (PW-2) also reached the spot

and on inquiry he got his statement recorded which was also to the same

effect as the allegations contained in the complaint made by PW-4 (PW-

4/B). The pointing out place of occurrence memo Ex PW-9/B was

prepared. The statement of the father of PW-4 (PW-3) was also

recorded. In the course of investigation, birth certificates of PW-4 and

PW-2 were obtained and it was found that they were both minors. PW-2

was aged around 15 years and PW-4 was aged around 13 years. Challan

was filed under Sections 8 and 12 of the POCSO Act.

7 In the statement of the accused recorded under Section 313 o0f

the Cr.P.C., the version of the respondent was that he is innocent and

this is a false case which has been registered against him.

DW-1 SI Prem Singh was examined in defence; he had brought

the record from the PCR wherein on 22.05.2013 (the date of incident) at

7.18 pm it was recorded that kuan wala mandir, ladoo ghati pahar ganj,

mere bhai ke sath maar peet kar rahe hain; pandit ji ko public ne peet

rakha hai, mauka hawale local police, galat kaam wali koi baat nahi

hai. It is this evidence which has been vehemently relied upon by the

learned counsel for the respondent to support his submission that the

PCR although had initially recorded that there was a galatkaam going on

in the vicinity by the panditji but later on pointed out that no such

galatkaam was going on.

8 PW-4 was the victim. He was 13 years of age. A preliminary

round of questions were put to him before he was put into the witness

box. He had deposed that galatkaam was committed upon him by the

panditji Laxmi Kant Tiwari for the first time at the railway colony,

Pahar Ganj. His testimony was recorded on the question-answer form.

On a specific query put to him, he had answered that the accused asked

him whether hair has grown at his private part or whether any white

liquid comes out or not. This was repeated after 10-15 days and again

the accused had had touched his (PW-4) shushu (penis) and also had

taken his (PW-4) hand and got touched his penis. On the third occasion

the respondent again met PW-4 in the gali outside his house. He made

indecent gestures from his eyes. He came near him. Public persons

apprehended him. PW-4 informed his father. His father reached the spot.

Public persons at that time were already beating the accused. The

accused was taken to the police station. The statement of PW-4 was

recorded.

9 PW-4 was subjected to a lengthy cross examination. He had stated

that on 22.05.2013 his cycle which was of Atlas make was not in a

working condition; it was not in working condition for the last 10-15

days and he did not get it repaired. He had met the accused for the first

time about 2-½ years ago. He had done badtamizi with him 2-3 times

before. PW-4 toldthis to his friend Lalit (PW-2) about 1-½ years ago.

He had also told this to his brother Deepak. He denied the suggestion

that he has lodged a false complaint at the behest of his father and Lalit

(PW-2) had also made a similar statement only for this reason.

10 The father of PW-4 was examined as PW-3. He has deposed that

he has two sons and PW-4 at the relevant time was studying in 8th

standard and was about 14 years. In May 2013 his son had made a

complaint against one Pandit Ji that he was being harassed by him. On

the following day his son had gone to market to buy some articles at that

time PW-3 received a call from his son (PW-4) informing him that the

same Pandit Ji was again harassing him and making indecent gestures

towards him. PW-4 asked his son to reach the place where he would also

reach directly. When he reached the spot he saw that public persons had

already apprehended the respondent and they were beating him. His

statement was recorded. Lalit (PW-2) and his mother Prem Lata (PW-1)

also reached the spot and they also got their statements recorded which

was to the effect that PW-2 was also harassed by the Pandit Ji in a

similar fashion.

11 In his cross examination PW4 admitted that he had signed

documents prepared by the police and the police had made inquiries

from him. He denied the suggestion that he had implicated the accused

falsely.

12 The versions of PW-3 and PW-4 have been heavily relied upon by

the Sessions Judge to grant an acquittal to the respondent. The alleged

inconsistencies as noted by the Sessions Judge were wholly trivial and

to the mind of this Court have appeared to have been illegally dealt with

by the Session Judge to grant an order in favour of the respondent.

Whether the statements of PW-3 and PW-4 were recorded at the spot or

whether they were recorded later on at the police station would not

effect the gist of the statement which was as so stated in the aforenoted

versions of the said witnesses. The trial Judge had noted that under the

provisions of the POCSO Act, the statement of the child victim cannot

be recorded in the police station and police officer should not be in

police uniform which is a mandatory provision and violation of this

would by itself meant that investigation is tainted. This is another

argument of the respondent which has been noted by the Sessions Judge

to grant an acquittal to the respondent.

13 The Protection of Children from Sexual Offences Act, 2012 has

been legislated as an act to protect children from offences from sexual

assault, sexual harassment and pornography and provide for

establishment of Special Courts for trial of such offences and for matters

connected therewith or incidental thereto. Chapter VI contains the

procedure for recording the statement of the child. The language of

section 24 and 25 itself suggests as far as practicable the statement of

the child shall be recorded at his residence or at a place where he usually

resides or at the place of his choice. This is to facilitate and to make the

child comfortable and that is the whole purpose of the procedure

contains in Sections 24 and 25 of the said Act. Special Courts have to be

created under Section 28 which is contained in Chapter VII.

14 In this context the testimony of PW-10 is relevant. He had

recorded the statement of PW-4. In his cross examination he has stated

that the father of PW-4 was present at the time when his statement was

recorded. Before sending the rukka, he had recorded the statement of

PW-4. He has categorically stated that this statement was recorded in an

isolated road; at that time he was in police uniform. PW-10 was

accompanied by constable Bhupender (PW-9) who has also deposed that

the statement of the victim was recorded after the Investigating Officer

had made inquiries from him. PW-9 had then taken the rukka to the

police station.

15 These versions clearly show that the statement of the victim was

not recorded in the police station but on an isolated road at the place

where the incident had occurred. At the cost of repetition the purpose of

engrafting the POCSO was to protect children from sexual assault and

sexual harassment and as far as may be to facilitate investigations of

such offences so that the victim is more comfortable in getting her/his

version recorded. Sections 24 and 25 of the said Act provide that as far

as practicable the police officer should not be in a police uniform at the

time when he records the statement of the victim. However, it does not

mean that if the statement of the victim is recorded by a police officer

when he was in uniform that the statement would be a ground for

rejection from the otherwise cogent and coherent testimony of the

victim. The Sessions Judge holding this as a ground to grant an acquittal

to the respondent has committed a grave illegality.

16 The heavy reliance by the Sessions Judge on the PCR

investigation is also a perversity which the Court notes with pain. The

Session Judge should be aware of the fact that the PCR is not the

investigating agency; even presuming that at the first time a call was

recorded by the PCR that a „galatkaam‟ was done by the Pandit Ji and it

was later on changed to state that „no galatkaam‟ was being done; this

can in no manner be said to be a taint in the investigation which

investigation had been marked (after DD no. 29A had been recorded) to

PW-10. Heavy reliance upon this PCR information was wholly

unwarranted.

17 This Court is conscious of the fact that to set aside an order of

acquittal; only if there is patent illegality or perversity noted that this

Court may interfere. This Court is of the considered view that there is a

grave illegality committed by the Court below. There are glaring errors

in the judgment passed by the Sessions Judge. His reliance on the

aforenoted discrepancies of PW3 to PW4 (as discussed supra) did not

make out a case for grant of an acquittal. This Court also notes that PW-

2, the second victim was also sexually harassed by the respondent. PW-

2 had given his statement to the police in the presence of PW-3. His

allegation in the statement (Ex. PW-2/A) was almost identical to the

allegations made by PW-4. Testimony on oath of PW-2 has not been

discussed at all.

18 PW-2 also being a child aged 14 years was put a preliminary

round of questions before he was put into the witness box. PW2 deposed

that he knew the accused who was residing in his neighbourhood; he had

also been put a question whether hairs had grown around his private

parts. He was accosted with his version which has been recorded before

the Magistrate under Section 164 of Cr.P.C. (Ex. PW-2/A). In his cross

examination by learned Public Prosecutor he admitted the entire version

as detailed in Ex. PW-2/A was correct. He deposed that accused had

asked him whether his moustache has grown; he also asked „yahan ki

nahi neeche ki‟; tumhare neeche safed kuch nikalta hai.

19 In his cross examination PW-2 had also not deterred from his

stand. He had stuck to it.

20 In view of these categorical versions which have come on record

which were in whole conformity with the statements recorded under

Section 164 of the Cr.P.C. (Ex. PW-4/A), (Ex. PW-2/A) and the

Sessions Judge rejecting this version for reasons wholly unexplained is

again a cause of concern to this Court. There was no reason whatsoever

not to believe the version of PW-2. He was also a victim of the same

category as that of PW-4. The statement of mother of PW-2 namely

Prem Lata (PW-1) was also to the effect that on the date of the incident

she saw that several persons were beating the accused.

21 The version of the prosecution all along was that PW-2 and PW-4

had been subjected to sexual harassment by the accused and whereas

PW-3 has detailed three different times of the occurrence, the version of

PW-2 is also on the sexual harassment suffered by him at the hands of

the respondent. They are fully corroborative of one another.

22 The respondent has been charge sheeted under Section 8 & 12 of

the POCSO Act. Section 8 lays down the punishment for sexual assault

and Section 12 lays down the punishment for sexual harassment.

23 Sexual assault has been defined under Section 7 of the said Act

which reads herein as under:

"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"

24 Sexual harassment has been defined under Section 11 and reads

herein as under:

"Sexual harassment.-A person is said to commit sexual

harassment upon a child when such person with sexual intent,-

(i) Utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

(ii) Makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

(iii) Shows any object to a child in any form or media for pornographic purposes; or

(iv) Repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means, or

(v) Threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

(vi) Entices a child for pornographic purposes or gives gratification therefor"

25 The version of PW-4 and PW-2 coupled with the corroborating

version of the PW-3 establishes the offence to the hilt. The findings

written by the Sessions Judge calls for an interference.

26 The defence of the accused that he has been falsely implicated

and the arguments before this Court that it was for the reason that the

cycle of PW-4 got damaged by the respondent was a reason for his false

implication was not the defence set up by the respondent while getting

his statement recorded under Section 313 of the Cr.P.C. In this version

his defence was that this is a case of false implication and he had been

taken to the police station on a false pretext. There was no defence of

the cycle whatsoever and this was obviously for the reason that this was

a false defence and the earlier defence sought to be projected by the

respondent was probably forgotten by him at the time when his

statement under Section 313 of the Cr.P.C. was recorded. The falsehood

of the respondent is evident.

27 The impugned judgment is set aside. The respondent stands

convicted under Sections 8 and 12 of the POCSO Act. Section 8

provides a minimum punishment of 3 years which may extend up to 10

years. Under Section 5 there is no minimum which is prescribed by the

legislation, the term of the imprisonment may extend to 3 years.

28 The respondent is sentenced to undergo RI for a period of 3 years

and to pay a fine of Rs. 10,000/- and in default of payment of fine to

undergo SI for 6 months for his conviction under Section 8 of the said

Act. For his conviction under Section 17 of the said Act, he is sentenced

to undergo RI for a period of 3 years and to pay a fine of Rs. 10,000/-

and in default of payment of fine to undergo SI for 6 months. The

sentences will run concurrently. Benefit of Section 428 of the Cr.P.C. be

granted in favour of the respondent. The respondent be taken into

custody forthwith.

29     Appeal disposed of.



                                       INDERMEET KAUR, J
AUGUST 19, 2015
A