Chandrika Prasad vs State
2015 Latest Caselaw 1987 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : FEBRUARY 10, 2015
                            DECIDED ON : MARCH 09, 2015

+                                    CRL.A.543/2014

       CHANDRIKA PRASAD
                                                            ..... Appellant
                            Through: Ms.Arundhati Katju with Mr.Akshay
                                     Sharma, Advocates.

                            versus

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

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

S.P.GARG, J.

1. The appellant-Chandrika Prasad is aggrieved by a judgment

dated 23.01.2014 of learned Additional Sessions Judge-01, Central/THC,

Delhi in Sessions Case No.67/2013 arising out of FIR No.30/13 registered

at Police Station Prasad Nagar by which he was held guilty for

committing offences under Sections 354 IPC and Section 10 of POCSO

Act. By an order dated 27.01.2014, he was awarded RI for five years with

fine `2,000/- under Section 10 of POCSO Act.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 09.02.2013 and before that, in premises No.16/1069 E

Block, Khalsa Nagar, Tank Road, Karol Bagh, Delhi, 'X' (assumed

name), aged 10 years, was sexually assaulted by the appellant and he

outraged her modesty. The incident was reported to the police and daily

dairy (DD) No. 27-A (Ex.PW-4/C) was recorded at 9.28 p.m. at Police

Station Prasad Nagar. The investigation was assigned to SI Amit Sharma

who with Const.Mahavir Prasad went to the spot. After recording

statement of the victim's father (Ex.PW-2/A), he lodged First Information

Report. Statement of the prosecutrix was recorded under Section 164

Cr.P.C; she was medically examined. The accused was arrested.

Statement of witnesses conversant with the facts was recorded. After

completion of investigation, a charge-sheet was filed against him in the

court. The prosecution examined five witnesses to substantiate its case.

In 313 statement, denying his complicity in the crime he pleaded false

implication on account of non-payment of the price of Neelam stone given

by him to the victim's mother. No evidence in defence was produced.

The trial resulted in his conviction as aforesaid. Being aggrieved and

dissatisfied, the appellant has preferred the appeal.

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

examined the record. Appellant's counsel urged that the trial court did not

appreciate the evidence in its true and proper perspective and for no valid

reasons ignored the defence of false implication for non-payment of the

price of Neelam stone particularly when 'X' in cross-examination

admitted about its supply to her father. The prosecution utterly fails to

establish if 'X' was ten years of age and no explanation was offered as to

why the Principal of the school who had issued school certificate (Ex.PW-

3/C) was not examined. Counsel referred to various discrepancies and

contradictions in the statement of 'X' and her father and urged that it is

not safe to base conviction on the uncorroborated testimony of the

prosecutrix. Learned Additional Public Prosecutor urged that there are no

sound reasons to suspect the testimony of the proseuctrix who had no

ulterior motive to falsely implicate the accused.

4. Appellant's conviction is primarily based upon the solitary

statement of 'X', aged around 10 years. Her version throughout is

consistent. In her 164 Cr.P.C. statement, she categorically implicated the

appellant for outraging her modesty. In her Court statement as PW-1, 'X'

proved the version given to the police and before the learned Metropolitan

Magistrate without any variation. She identified the appellant to be the

perpetrator of the crime and attributed a specific role to her in the crime.

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

appellant, a security guard' in a godown nearby used to touch her body

parts from outside and inside her clothes in the absence of her father who

used to leave the shop to take lunch at home. In the cross-examination,

she answered the queries put to her and stood to her version narrated in

her examination-in-chef. She denied if any Neelam was demanded and

given to her mother by the appellant. She volunteered to add that the

appellant had given it to her father but was returned next day. There are

no sound reasons to suspect the testimony of 'X' who had no ulterior

motive to falsely implicate the accused. There was no previous animosity

with the accused. Despite lengthy cross-examination, no material

inconsistency could be elicited in her cross-examination. It emerged from

her statement that in the absence of her uncle who had gone to his native

village, 'X' used to visit the shop after return from school to enable his

father to go to house to take lunch. The accused who worked as security

guard in a godown situated in front of the shop took advantage of the

absence of 'X's father and touched her various body parts in the shop. He

abused the child for about 15 to 20 days before the incident. On a day

when 'X' declined to go to the shop and on inquiry for her reluctance to

go, she revealed the incident.

5. PW-2 (Satinder Parsad Yadav), 'X's father has corroborated

her testimony on material aspects and has proved the version given to the

police at first instance without any improvement. He disclosed that her

daughter 'X' aged about ten years, a student of 3rd standard used to sit at

his shop in his absence when he went to his factory situated nearby. He

used to ask the accused to take care of her daughter and the shop in his

absence. On 09.02.2013 at about 8.30 p.m. he saw his daughter 'X'

weeping in the house and on enquiry, she told that guard uncle had

behaved indecently with her. In the cross-examination, he denied that his

wife had asked the accused to bring Neelam and when the accused

demanded its payment, he was falsely implicated in the incident.

6. The accused did not produce any cogent evidence to show if

Neelam was given for a specific price to the victim or her parents or it was

retained by them. For a paltry sum, 'X's parents are not expected to

falsely implicate the accused for the heinous offence to bring their minor

child 'X' in disrepute. Unless an offence has really been committed, an

unmarried little girl would be extremely reluctant to make such allegations

which are likely to reflect on her chastity.

7. I find no substance in the appellant's plea about the age of

the prosecutrix to be above 12 years. Age of the prosecutrix was not an

issue before the trial court as the accused never challenged her to be above

10 years of age. PW-3 (SI Amit Sharma), Investigating Officer, collected

her school certificate (Ex.PW-3/C) where her date of birth has been

recorded as 20.07.2003. Genuineness and authenticity of this document

was not challenged in the cross-examination. 'X' and her father (PW-2)

described her age to be 10 years studying in 3 rd standard. There are no

reasons to disbelieve the categorical assertion of 'X' and her father about

her age coupled with school certificate. Non-examination of the Principal

of the school to prove school certificate is inconsequential as its exhibition

was not objected to that time.

8. Minor contradictions and improvements highlighted by the

appellant's counsel are inconsequential as they do not affect the core of

the prosecution case. The prosecution has established beyond doubt that

in the absence of 'X's father, the appellant used to visit the shop. During

his visit to shop, he took advantage of the situation and the innocence of

the child. He touched her various body parts and sexually abused her for

about 15 days. Due to fear 'X' did not divulge the incident to her parents.

Before recording her statement under Section 164 Cr.P.C. and Court

statement, the Presiding Officers had put various questions to her to

ascertain if 'X' was a competent witness to understand the questions and

give rational answers. 'X' was so innocent that not only she described the

indecent acts of the accused verbally but also touched her body parts to

show where the appellant used to fiddle. In the absence of any ill-will and

previous animosity, no valid reasons exist to suspect the statement of the

prosecutrix.

9. The impugned order based upon fair and proper appreciation

of the evidence deserves no interference. Since the appellant, a security

guard, had outraged the modesty of a child below 12 years and had

betrayed the trust of her father, sentence order needs no modification

except that default sentence for non-payment of fine `5,000/- would be

ten days.

10. The appeal stands disposed of in the above terms. 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 MARCH 09, 2015 sa