Delhi High Court
Henry Thomas @ Sunder vs State on 25 May, 2016
$~R-61
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : May 25, 2016
+ CRL.A.92/2015
HENRY THOMAS @ SUNDER ..... Appellant
Represented by: Mr.Dhan Mohan, Advocate with
Ms.Tanu B.Mishra, Advocate
versus
STATE ..... Respondent
Represented by: Mr.Varun Goswami, APP with SI
Ramesh, PS Burari
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
PRADEEP NANDRAJOG, J. (Oral)
Crl.M.B.No.540/2016
Application seeking suspension of sentence is listed for August 26,
2016. The appeal has reached for hearing. Therefore, the application is
dismissed as infructuous.
Crl.A.No.92/2015
1. A home is a home, be it ever so low; and the desperate tenacity with
which the poor will cling to the last wretched semblance of one is very
touching. A chair, a mattress, and a few miserable sticks constitute all the
furniture of the single room in which they have to sleep and breed, and die;
but they cling to it as a drowning man to a half-submerged raft. And in
these rooms breed the vices of drunkenness and fornication. The
viciousness of these vices is so little distinguished, even from those who
habitually practice them, that there will be a protest against describing them
by a holy world.
2. Is the appellant guilty of fornication? The learned Trial Judge has,
vide impugned judgment dated May 28, 2014, convicted him for the offence
punishable under Section 10 of Protection of Children from Sexual Offences
Act, 2012 as also Section 354/506-I IPC. Vide order on sentence dated May
29, 2014 the appellant has been sentenced to undergo imprisonment for 5
years and pay fine in sum of `10,000/-. The victim was appellant's minor
daughter aged 6 years when the incident took place.
3. The testimony of the victim who appeared as PW-2 and her mother
who appeared as PW-4 is thus what needs to be considered by me in the
instant appeal.
4. That appellant was estranged from his wife Rita is not in dispute and
forms the fulcrum of the defence of the appellant. The mother used the
daughter by tutoring her to settle a score with the appellant is the theme of
the song sung by learned counsel for the appellant.
5. Yes, there certainly exists a motive for the appellant to be falsely
implicated by his wife. But that does not mean that the testimony of the
victim and appellant's wife has to be thrown to the winds. It only means
that the eyebrows of the Court would be raised, requiring a cautious
approach and a piercing reading of the testimony of the mother and the
child. And if the raised eyebrows do not fall, the appellant gets the benefit.
6. The bond of a mother with her daughter is from the womb. It is a
unique bond. Change in behaviour of a female child, or for that matter even
a male, may be trivialized by the father as the fluctuating mood of the child.
But for the mother, it sends a signal deeper - enough to comfort the child
and draw the child out and find out : what troubles my baby? What may
appear to be a mild protest or a truant behaviour, often signals a deep
psychological trauma faced by child.
7. A female child, aged 6 years, if sexually abused by the father would
certainly be traumatize. The child who would show an apathy towards the
father; enough for the mother to pick up.
8. It therefore assumes importance to highlight that in her testimony,
Rita has disclosed that after her daughter returned from her father's house
after spending a few days before Deepawali, the two being separated - not
legally - but residing separately due to matrimonial discord, she showed
reluctance to go to her school and the mother told the daughter that she
could go to her father's house. At which the daughter turned pale. Fear
could be seen on her face. The mother coaxed her. She told that the father
had sinned fornication with her. He had kissed her private parts; rolled his
tongue over. He had rubbed his penis on her face and made her lie down
and sleep with him holding his male sex organ. I find no cross-examination
of Rita on this aspect of the matter i.e. the circumstance under which the
young child confided with the mother. As regards the traumatized child, she
has deposed that as she spent a week with her father just before Deepawali
of the year 2012, notwithstanding her grandmother and her maternal aunt
being in the house, the appellant would make her sleep in his dhaba and it
was there she was made the victim of fornication by her father. I find that
the child has not been cross-examined on this part of her testimony i.e. that
notwithstanding she being 6 years old and logically should be sleeping with
her grandmother or her maternal aunt in the house, the appellant made her
sleep with him in the dhaba and not in his house where his mother and sister
resided. This conduct of the appellant lends corroboration to what the
daughter said.
9. I find no merit in the appeal which is dismissed.
10. Since the appellant is in jail copy of this decision be sent to the
Superintendent Central Jail for updation of his record and thereafter to be
supplied to the appellant.
11. TCR be returned.
(PRADEEP NANDRAJOG)
JUDGE
MAY 25, 2016
mamta
