Jnanedar Nath Das vs State
2016 Latest Caselaw 132 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : October 14, 2015
                                DECIDED ON : January 08, 2016

+      CRL.A.258/2015 & Crl.M.B.443/2015

       JNANEDAR NATH DAS
                                                        ..... Appellant
                           Through :   Mr.Rajeev K.Malik with
                                       Mr.Sanjeev K.Malik, Advocates.

                           versus

       STATE
                                                        ..... Respondent
                           Through :   Mr.Amit Ahlawat, APP.

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

S.P.GARG, J.

1. Aggrieved by a judgment dated 08.01.2015 of learned

Additional Sessions Judge in Sessions Case No.59/13 arising out of FIR

No.60/13 registered at Police Station Sagarpur by which the appellant was

held guilty for committing offences punishable under Section 10 POCSO

Act, the present appeal has been preferred by him. By an order dated

16.01.2015, the appellant was sentenced to undergo Rigorous

Imprisonment for five years with fine of `10,000/-.

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

sheet was that sometime in the Winter Session 2012-2013 at premises

Chunmum Nursery School, RZ-74, Dabri Extension, New Delhi, the

appellant committed aggravated sexual assault by showing his penis to the

prosecutrix/child victim „X‟ (Assumed name) and by making her touch it.

3. On 18.03.2013, Rekha „X‟s mother reported the incident to

the police at Police Station, Sagar Pur. The Investigating Officer recorded

„X‟s statement in question-answer form (Ex.PW1/B) and lodged First

Information Report. In her complaint „X‟ gave detailed account as to how

and under what circumstances, the appellant had asked her to touch his

penis in the latrine/bathroom of the school. „X‟ was medically examined;

she recorded her 164 Cr.P.C. statement (Ex.PW-1/A). The accused and

his wife Minoti Das were arrested during investigation. Statements of

witnesses conversant with the facts were recorded. Certain documents

were seized and taken on record. Upon completion of investigation, a

charge-sheet was filed against both the appellant and Minoti Das in the

court on 23.04.2013. It is relevant to note that by an order dated

06.01.2014, Minoti Das was ordered to be released as no case was made

out against her. The State did not challenge the said release order. To

prove its case against the appellant, the prosecution examined six

witnesses in all. In 313 statement, the appellant denied his involvement in

the crime and pleaded false implication. DW-1 (Narender Gola), DW-2

(Ms.Anita Soni), DW-3 (Nirmala Gahlot) and DW-4 (Smt.Minoti Das)

appeared in defence. After considering the rival contentions of the parties

and on appreciation of the evidence, the Trial Court by the impugned

judgment held the appellant guilty under Section 10 POCSO Act. Being

aggrieved and dissatisfied, the instant appeal has been preferred.

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

examined the record minutely. Appellant‟s counsel urged that the Trial

Court did not appreciate the evidence in its true and proper perspective.

Victim‟s parents had failed to pay the fee and other dues of the school run

by his wife in time and when they were scolded for default, the appellant

was falsely implicated in this case. The prosecutrix, aged around five

years, has given divergent and inconsistent statements. She is not clear if

the incident had taken place „inside‟ or „outside‟ the latrine. It is not

believable that in the presence of so many children outside the latrine in

the school, the appellant would dare to exhibit such an abnormal

behaviour. An „aaya‟ used to always accompany the kids to the toilet to

assist them. DW-2 (Ms.Anita Soni) has supported on this aspect. The

delay in lodging the FIR has not been explained. Statement under Section

164 Cr.P.C. was recorded after four days of the lodging of the FIR. The

exact date of the incident has not surfaced. Defence version has been

overlooked by the Trial Court for no cogent reasons. Refuting the

contentions of the appellant‟s counsel, learned Additional Public

Prosecutor urged that there are no sound reasons to disbelieve the

prosecutrix, aged around five. She has fully supported the prosecution and

despite lengthy cross-examination, nothing material could be extracted to

disbelieve her.

5. Admitted position is that the appellant‟s wife Minoti Das

used to run a play school, namely, Chunmum Nursery School, RZ-74, at

Dabri Extension on the ground floor. On the first floor, the appellant and

his family members used to live. 30 to 35 children were studying in the

said school at the relevant time. The victim had joined the said school in

July, 2012.

6. The exact date of the occurrence has not emerged on record.

The incident was reported to the police on 18.03.2013. In her statement

(Ex.PW-1/B), the prosecutrix, aged around five years, disclosed that it

was winter when she had gone to the bathroom in the school to answer the

call of nature. Husband of her madam present there made her to touch her

hand on his „Popo‟ (penis). He further inquired if she had the similar

„Popo‟, she answered in negative. Thereafter, she came to the prayer

meeting and the appellant went away. In response to a question if the

husband of her madam had done the mischief on that day or prior to that

also, she responded that it was done only that day. The victim was

categorical and certain in her initial version given to the police that the

appellant whose identity is not in dispute had committed aggravated

sexual assault upon her inside the latrine of the school during her visit

there. In her statement recorded under Section 164 Cr.P.C. (Ex.PW-1/A)

on 23.03.2013, she reiterated her version. It is relevant to note that the

application for recording statement under Section 164 Cr.P.C. was

assigned to Ms.Navita Kumari, learned Metropolitan Magistrate, New

Delhi vide order dated 19.03.2013. The proceedings under Section 164

Cr.P.C. (Ex.PW-1/A) records that as the prosecutrix was a small child of

five years, the learned Presiding Officer deemed it appropriate to get the

proceedings of recording of the statement videographed and vide order

dated 20.03.2013, directed the Investigating Officer to make arrangements

for conducting videography. It belies the appellant‟s plea that there was

inordinate delay in recording the 164 Cr.P.C. statement.

7. Victim‟s statement under Section 164 Cr.P.C. (Ex.PW1/A)

was recorded in a congenial atmosphere. Learned Presiding Officer put

number of preliminary questions before recording her statement to

ascertain if she was comfortable and free to make statement voluntarily

without any fear, pressure or influence. After recording her satisfaction

that the victim was able to understand the questions put to her and she was

comfortable to give rational answers, her statement was recorded. In 164

Cr.P.C. statement also, she implicated the accused for the crime. Portion

of her statement needs reproduction:-

           "Q.    Kya kara tha bachee?
           Ans. Woh uncle ne muje popo-susu mein haath lagva
           rahe the.
           Q.     Kiske susu mein?

Ans. Apne susu mein... Pata hai main haath chhudwa rahi thi aur woh baar baar mera haath pakad ke apne popo meing lagva rahe them. Pata hai bahar prayer hone wala tha... Maine na apni Mumy ko Shukarvvar (Friday) ko raat mein bataya tha.

           Q.       Achha aap ne kaha ke bahar prayer hone wala
           tha, to ye sab uncle kahan kara rahe the?
           Ans.   Latrine ke bahar.
           Q.      Yeh latrine kahan pe hai?
           Ans.    Jahan prayer hota hai na wahi pe hai.
           Q.      Yeh uncle kya school mein padate hain?
           Ans.      Nahin....Woh na kuch nahi karte, akhwar

(newspaper) mein aya tha. ...Muje akhwar padna nahin aata, jab meri mumy ne pada tab pata chala.

            Q.        Achha aap latrine ki taraf kudh gaye the ya koi
           le kar gaya tha?
           Ans.      Main khud gayi thi... latrine lag rahi thi.... Woh

uncle waha pe the....unno ne apni longi upar kar ke kaha- kya tumara popo bhi aisa hai?... Maine kaha nahi. Muje prayer mein jana tha per woh jane nahi de rahe the...Main rone lag gayi.

           Q.         Phir kya hua?

           Ans.      Phir main bhaag gayi aur prayer mein chali

gayi.... Main na bata rahi thi ke na who baar baar hath lagva rahe the, mein rone lag gayi thi, mann ghar jane ko kar raha tha.

          Q.          Achha yeh kab ki baat hai?... Kuch yaad hai kya?

           Ans.     Muje yeh nahi pata....Muje Sunday-Monday to
           aata nahi tha.... aur na hi muje tarikh aati thi.
           Q.        Bachhe aap ko jnaneder uncle ke baare mein
           kuch aur batana hai?
           Ans.      Haan. Woh uncle pooch rahe the ke Mahak
           kaha hai...per woh to gaon gayi hui thi.
           Q.          Aur kuch?
           Ans.     Aunti bataun....Niche school ha, upar ghar
           hai...Chhota sa school hai....Chunmun naam ha.
           Q.         Ghar kis ka hai?
           Ans.      Maám ka hai.... Jo-jo waha per rahte hain unka
           ghar hai.

8. While recording her Court statement as PW-1, the learned

Presiding Officer ensured that she was making her statement voluntarily

without any fear or pressure. She was able to answer the questions

intelligently; she counted upto 100 and recited alphabets ABCD and

poems. In her statement, she deposed that accused was working in her

school and on one day in the latrine "uncle ne apne popo par mere se

haath lagwaya". She revealed that the latrine was near her classroom and

the occurrence took place only once. On being asked when the act was

committed, she immediately responded that „sardiyo ke din they‟. She

disclosed that the incident was reported to her mother after a few days.

She did not immediately tell her mother about it as she was afraid of the

„uncle‟; husband of the Principal of her school. In the cross-examination,

she informed that her father used to drop her at school every day and her

mother used to pick her up in the afternoon. She fairly admitted that she

had not disclosed the incident to her friends. She admitted that the

accused had not scolded her. She denied if her parents had tutored the

statement to be given in the court.

9. On perusal of various statements made by the child witness at

different stages of the investigation/trial, it reveals that her version is

consistent throughout. In all her statements, she has implicated the

accused with certainty and has attributed specific role to him. She was

fair enough to admit that the mischief was done only on one occasion;

the accused had not scolded or threatened her. No material infirmity

could be extracted in the cross-examination of the witness to suspect her

version. No ulterior motive was assigned to her for making false

statement. „X‟ being a little kid had no extraneous consideration to level

serious allegations of sexual assault against her Principal‟s husband. The

material facts deposed by the witness remained unchallenged in the cross-

examination. No suggestion was put to her if the accused had not visited

the latrine at the relevant time. Nothing was suggested to her if at the time

of her visit to the bathroom, any „aaya‟ had accompanied her there.

Presence of the accused who had no concern with the activities of the

school in the laterin/bathroom has remained unexplained. There are no

cogent reasons to disbelieve the statement of the child witness. It is true

that the Court must be extremely cautious and careful in placing reliance

on the testimony of a child witness as there are chances of coaching or

tutoring. A child witness is prone to tutoring and hence the court should

look for corroboration. In the instant case nothing has emerged to infer if

„X‟ was a tutored witness. For a trivial controversy (if any) regarding

payment of school-fee, „X‟s parents would not invent a false story to bring

their little kid in disrepute.

10. PW-3 (Rekha), „X‟s mother has corroborated her version.

She deposed that on 16.03.2013 when she along with her husband and

children was watching T.V. in night hours, „X‟ apprised her that a few

days back i.e. in the end of February, when she had gone to attend call of

the nature in the toilet in the school, husband of the Principal Madam had

met her there. He made her to touch his private part (penis). She further

told that Principal‟s husband had asked her whether she was having such

organ (penis) like him and she replied in the negative. When she inquired

from „X‟ whether she had complained to the Principal Madam, she replied

in the negative. When inquired whether similar act was done several

times, she replied that it was done only once. She informed the incident to

her husband and they decided to take action after pondering for two days.

Finally, on 18.03.2013 her husband went to the police with „X‟ to lodge

the report. „X‟ was medically examined. In the cross-examination, she

admitted that number of other play schools have sprung up in the area

where Chunmun Play School is situated. She denied if the appellant was

implicated at the instance of the owners of other play schools to bring the

school in disrepute. She denied that they were defaulter in paying the

school fee regularly and in order to avoid the payment of school fee, a

false case was registered. She disclosed that she was having all the

receipts of the fee paid to the school and one such receipt of the month of

August, 2012 was given to the Investigating Officer. She disclosed that

her daughter had gone to school for about 5/6 months. The incident had

taken place in winter as disclosed by her daughter.

11. Again, despite searching cross-examination, no material

discrepancy or infirmity could be elicited to disbelieve her version. The

child was admitted in Chunmum Nursery School knowing that the school

fee was `200/- p.m. It is unbelievable that for non-payment of petty fee of

`200 p.m., „X‟s parents would go to the extent of inventing a story of

sexual assault without any rhyme or reason at the cost of honour of their

little child. The Trial Court has gone into this aspect and has given

detailed findings that there was no default in the making of payment of fee

by „X‟s parents. Fee receipt book (Ex.PW6/G) contained receipt No.629

whereby fees had been deposited on behalf of the prosecutrix on

12.03.2013 itself. Nothing is on record that a false complaint was lodged

at the behest of owners of other play schools in the area.

12. Delay in lodging the FIR is inconsequential. The victim, a

child aged around five years was a student in the school. She was to take

her exam there. It needs a lot of courage to report such an incident against

the Principal or her relatives. In large number of cases, children are

abused by persons known to them or who have influence over them. The

victims often keep mum due to social stigma, community pressure or total

dependency on the perpetrator etc. Parents choose not to report such

crimes to protect the child from social stigma.

13. Defence version inspires no confidence and deserves outright

rejection. DW-1 (Narender Gola), who had taken the photographs of the

school, has nothing to do with the occurrence. DW-2 (Anita Soni), a

teacher in the school is an interested witness. PW-3 is Nirmala Gahlot to

whom the accused is known for a long time. Merely because no such

incident had taken place earlier, it cannot be inferred that the statement

given by the prosecutrix is false. DW-4 (Minoti Das), appellant‟s wife

was earlier an accused in this case. Her statement in court does not

exonerate accused‟s crime. The Trial Court did not find merit in her plea

that false implication of her husband was due to non-payment of school

fee in time. She failed to explain as to how there were missing pages in

the Register (117 to 128, 137 to 140, 147 to 148, 151 and 152).

14. In the absence of any prior animosity or ill-will, the child and

her parents are not imagined to level such serious allegations against the

husband of the Principal of the school with whom they had no prior

acquaintance. Discrepancies or inconsistencies pointed out by the learned

Defence counsel are insignificant and inconsequential.

15. The impugned judgment based upon fair appraisal of the

evidence needs no intervention. Minimum sentence prescribed under

Section 10 POCSO Act is Rigorous Imprisonment for five years which

cannot be modified or altered.

16. In the light of the above reasoning, the appeal being devoid

of merits is dismissed. Trial Court be sent back forthwith along with the

copy of the order. Intimation be sent to Superintendent Jail.

(S.P.GARG) JUDGE JANUARY 08, 2016 sa