Pramod Kumar vs State
2016 Latest Caselaw 2125 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 28th January, 2016
                                DECIDED ON : 17th March, 2016

+      CRL.A.1077/2014

       PRAMOD KUMAR                                     ..... Appellant
                  Through :            Mr.Anil Bhardwaj, Advocate.

                          VERSUS

       STATE                                             ..... Respondent
                          Through :    Mr.Tarang Srivastava, APP.

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

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 09.05.2014 of

learned Additional Sessions Judge in Sessions Case No.141/13 arising out

of FIR No.344/13 PS Subhash Place whereby the appellant-Pramod

Kumar was convicted for committing offences punishable under Sections

363/341/323 IPC and Section 7 POCSO Act punishable under Section 8

of POCSO Act. By an order dated 17.05.2014, the appellant was awarded

Rigorous Imprisonment for three years with fine of `3,000/- under Section

363 IPC; Simple Imprisonment for one month with a fine of `500 under

Section 341/323 IPC each; Rigorous Imprisonment for five years with

fine of `5,000/- under Section 8 of POCSO Act. All the sentences were to

run concurrently.

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

sheet was that on 31.07.2013 in between 12.15 to 12.45 pm at G-560,

Fourth Floor, J.J.Colony, Shakurpur, Delhi, the appellant kidnapped the

prosecutrix 'X'(changed name) aged about 6/7 years from the lawful

guardianship of her mother and confined her in his room wrongfully. It is

alleged that in the room, the appellant kissed her face and breast, made her

to sit on his lap and attempted to remove her panty with sexual intent.

The incident was reported to the police on 10.08.2013 and the

Investigating Officer after recording statement of victim's mother-

Shaheen Bano (Ex.PW-6/A) lodged First Information Report. 'X' was

medically examined; she recorded her 164 Cr.P.C.statement. The accused

was arrested and medically examined. Statements of witnesses conversant

with the facts were recorded. Upon completion of investigation, a charge-

sheet was filed against the appellant in the court. The prosecution

examined nine witnesses to prove its case. In 313 statement, the appellant

denied his involvement in the crime and pleaded false implication due to

non-payment of loan amount of `4,000/- advanced by him to victim's

mother. The trial resulted in conviction as mentioned previously. Being

aggrieved and dissatisfied, the instant appeal has been preferred.

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

examined the file. Counsel urged that the Trial Court did not appreciate

the evidence in its true and proper perspective. Material infirmities

emerging in the statements of prosecution witnesses were ignored without

cogent reasons. Ten days' delay in lodging the FIR has remained

unexplained. The victim did not sustain any injury whatsoever on her

body. The victim has been tutored to make a statement by her mother and

no reliance can be placed on it. 'X' gave statement to the police at the

behest of her mother. Learned Additional Public Prosecutor refuting the

contentions, urged that there are no sound reasons to disbelieve the minor

victim.

4. Admitted position is that the prosecutrix 'X' and her mother

Shaheen Bano lived on the third floor of the house and the appellant lived

on the fourth floor as a tenant. In her complaint (Ex.PW-6/A), victim's

mother gave detailed account as to how and under what manner, her

daughter 'X' aged around 6/7 years was sexually assaulted by the

appellant on that day. The victim recorded her 164 Cr.P.C. statement on

12.08.2013. Before recording the statement, various questions were put to

the victim by the learned Presiding Officer to ascertain her state of mind.

After recording satisfaction that 'X' was able to understand questions put

to her and she was making her statement voluntarily, her 164 Cr.P.C.

statement (Ex.PX) was recorded. The victim named the appellant to be

the perpetrator of the crime who had sexually assaulted her in the room.

She identified him to be the author of crime and to whom she used to call

'uncle'. She appeared as PW-1 before the court for recording her

statement. It was recorded in a very congenial atmosphere. 'X' was made

comfortable to give her statement. As the victim was a small child,

learned Presiding Officer conducted preliminary enquiry to ascertain

whether she was capable of understanding the questions and able to

answer them. After being satisfied that she was capable of understanding

the questions and answer them reasonably, her statement was recorded

without administering oath. She was examined in question-answer form.

She identified the appellant to be the individual who had defiled her. She

specifically deposed that the appellant lived on the upper floor/roof. In

response to a question 'Usne kya kiya tha', she deposed that 'usne

badatamiji kari thi'. When she was asked 'Aapko kya bura laga tha'; the

victim hesitated to answer. The Presiding Officer gave her a book. After

going through the pictures/photos of animals in the book, she became

comfortable and responded that 'Kamre mein band kar diya tha'. When

asked 'aur kya kiya tha', she replied 'Aur kuch nahin kiya tha'. The

Presiding Officer noted that the victim was hesitant to answer questions in

the presence of Additional Public Prosecutor and the learned Defence

Counsel in the chamber. The court enquired from the child if she wanted

all present in the court to cover their faces and eyes so that she could

answer the questions. The victim answered in the affirmative by nodding

her head. Thereon the learned Additional Public Prosecutor and the

learned Defence Counsel were asked to cover their eyes with their hands.

The victim was questioned and she answered as under:

              Q-    Usne kya kiya tha?

              Ans. Usne kachhi niche uttari thi.

              Q.    Aur kya kiya tha?

              Ans. Chumma liya tha.

              Q.    Uske baad kya hua tha?

              Ans. Mummy aa gayi thi.

              Q.    Phir mummy ne kya kiya tha?

              Ans. Mummy mere ko legayi thi, mummy ro rahi thi.

              Q.    Aur kisse baat kari?

              Ans. Policewali aunty se baat kari thi.

               Q.    Kya aap usko pehchan sakte ho?

              Ans. Ha.

              xxx   xxx   xxx    xxx

5. In the cross-examination, the victim denied if the appellant

was identified and recognized by her at her mother's behest. Material

facts deposed and proved by her in the examination-in-chief remained

unchallenged and uncontroverted. Nothing was suggested to the victim if

she was not found present inside the appellant's room at the relevant time.

The appellant did not deny his presence in the room at that time. He did

not offer any explanation as to what had prompted him to take the child in

the room without prior permission of her parents. The role assigned by

the victim to the appellant in the crime was not denied in the cross-

examination. No ulterior motive was assigned to the victim to implicate

him. Statement of the witness read in its entirety establishes beyond

doubt that she was sexually assaulted by the appellant in the room.

Timely arrival of her mother prevented the horrible crime. 'X's statement

inspires implicit confidence. She was intelligent enough to describe the

entire incident minutely. Two drawings made by her during her

deposition annexed as Annexure P-1 (colly.) confirm her intelligence. No

sound reasons exist to discard her natural version. Why a child of tender

age would come forward in a court to make a humiliating statement

against her honour? She would not tarnish or damage her own reputation

and image by volunteering to falsely claim that she had been defiled. She

is consistent throughout.

6. PW-6 (Shaheen Bano), her mother, has corroborated her

version without any inconsistency. She deposed that on 31.07.2013 at

about 12.15 p.m., the appellant-Pramod Kumar came and demanded key

of his room which she gave through the window. Thereafter, the accused

went upstairs. Her daughter asked if she could go upstairs to play to

which she agreed. At about 12.45 pm on hearing her daughter's voice, she

immediately went upstairs. She found appellant's room shut but not

bolted from inside. On opening it, she saw that the appellant had made

her daughter sit on him and she was crying and weeping bitterly. In

response to the Court question as to what the accused and her daughter

were wearing, the witness replied that the accused was wearing only his

underwear and her daughter was wearing her 'panty' that time. She further

deposed that the accused had shut her daughter's mouth with his hand.

On seeing her daughter's condition, she also started crying. On enquiry,

her daughter told her that the accused had asked her to keep quiet and had

given her a toffee and kite. She further informed her that the accused had

kissed her and was trying to remove her 'panty'. She also saw some red

marks on her daughter's body. She immediately called her husband from

his workplace and apprised him about the incident. In the cross-

examination, she admitted that none had come to intervene at the time of

incident as no other individual on the said floor was available. She further

informed that the accused had run away from the spot after putting on his

clothes. She denied if `4,000/- were taken by her from the accused and to

avoid its payment, she falsely implicated him. Apparently, nothing

material has been elicited in the cross-examination to disbelieve her.

7. The appellant did not produce any cogent or clinching

evidence to show if his false implication in the occurrence was due to

non-payment of `4,000/-. Nothing has emerged as to when `4,000/- were

borrowed by the complainant from the accused and for what purpose. For

a petty amount of `4,000/-, the complainant is not expected to put the

honour of her daughter at stake. The defence deserves outright rejection.

It is true that the FIR has been lodged after a delay of around ten days.

However, the complainant has given reasonable explanation for that. In

the cross-examination, she reasoned that she was apprehensive about the

family prestige and for that reason had not disclosed the incident to

anyone except her husband. She further disclosed that after the

occurrence, the accused had touched her feet and asked for forgiveness.

Since the accused had fled the spot and had not returned to the spot, the

FIR was not lodged soon after the incident. Moreover, the delay in

lodging the FIR in sexual assault cases is not always fatal.

8. The Trial Court has minutely discussed all the relevant

aspects and the impugned judgment based upon proper appreciation of

evidence needs no intervention. The appellant was sentenced to undergo

Rigorous Imprisonment for five years with fine of `5,000/- under Section

8 of POCSO Act, which is the maximum sentence that can be awarded.

Nominal roll dated 9.4.2015 reveals that the appellant has undergone one

year, seven months and twenty seven days incarceration besides remission

for two months and twenty days as on 08.04.2015. He is not a previous

convict and is not involved in any other criminal case. His overall

conduct in jail is satisfactory. Sentence order records that the appellant is

a married man having a wife and three school-going children.

9. Considering all the circumstances, the substantive sentence

awarded under Section 8 of POCSO Act for Rigorous Imprisonment of

five years is modified / altered to Rigorous Imprisonment for four years.

Other terms and condition of the Sentence Order are left undisturbed.

10. The appeal stands disposed of in the above terms. Trial Court

record (if any) be sent back forthwith along with the copy of the order. A

copy of the order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE March 17, 2016 sa