Delhi High Court
Babu Ram vs State on 18 July, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: July 10, 2017
% Judgment Delivered on: July 18, 2017
+ CRL.A.816/2015
BABU RAM ..... Appellant
Through: Ms.Inderjeet Sidhu, Advocate
versus
STATE ..... Respondent
Through: Ms.Kusum Dhalla, APP for the
State with Inspector Saroj Bala
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT
1. This jail appeal has been filed by the appellant Babu Ram
challenging his conviction and sentence for committing the offence
punishable under Section 6 of the Protection of Children from Sexual
Offences Act, 2012 in short 'POCSO'. Vide impugned judgment dated
12th March, 2015 and the order on sentence dated 30th March, 2015,
the appellant Babu Ram has been convicted under Section 6 of
POCSO Act, 2012 and ordered to undergo RI for 10 years and to pay a
fine of `5,000/- in default to undergo SI for six months.
2. Investigation was set into motion on receipt of DD No.21-A
dated 2nd March, 2014 (exhibited as PW-3/A) recorded at PS
R.K.Puram, New Delhi. Vide this DD information was given about a
'galat kaam' being done by a person with a two years old girl near
Church at Nanakpuri Camp, R.K.Puram, Sector 2 and that the said
person had been apprehended. W/SI Saroj Bala along with SI Om
Prakash reached the spot where the complainant Amit Kumar Nimesh
made his statement (exhibit PW-1/A) and handed over the
appellant/accused Babu Ram along with a baby girl aged about one
year. Sh.Hare Ram, maternal grandfather of the baby girl was also
present at the spot. On the basis of the statement made by the
complainant Amit Kumar Nimesh case FIR 174/2014 (Ex.PW/A-3)
was registered at PS R.K.Puram, New Delhi. The child victim as well
the appellant/convict were sent for medical examination. The child
victim aged about one year was also produced before the learned
Magistrate for getting her statement under Section 164 Cr.P.C.
recorded. The statement of the child could not be recorded as a one
year old child cannot speak.
3. Thereafter the statement of the complainant Sh.Amit Kumar
Nimesh under Section 164 Cr.P.C. was recorded. After the charge-
sheet was filed the appellant/convict pleaded not guilty to the charge.
The prosecution examined the complainant Sh.Amit Kumar Nimesh as
PW-1, Sh.Vishal, who informed the police, as PW-2 and IO W/SI
Saroj Bala as PW-3. These witnesses were cross-examined on behalf
of the accused by Sh.Rajat Agnihotri, Amicus Curie for the accused.
4. In his statement under Section 313 Cr.P.C. the convict admitted
that the child was with him at the time when he was apprehended but
stated that the child was of his neighbour and he was just making the
child urinate when it was misunderstood by the passerby/complainant
and he has been implicated in this case due to misunderstanding.
5. The learned ASJ has held that the offence against the appellant
stands proved beyond reasonable doubt as PW-1 Amit Kumar Nimesh
had seen the appellant sitting on the footpath behind a car with a child
in his lap and that he was inserting a stick (Tilli) in the private part of
the baby and was revolving the stick (Tilli) inside her private part. He
apprehended the appellant and by that time two-three other
motorcyclists gathered there and assisted him and one of them
informed the PCR. Learned Trial Court also held that the statement of
PW-1 has been fully corroborated by PW-2 Vishal, the passerby and
both of them have stated that 'kachhi' of the child was pulled down by
the appellant and he had done the 'galat harkat'.
6. Learned ASJ though noted that as per the MLC of the child
there was no internal or external injury on the whole body of the child
to prove that a stick (Tilli) was inserted in her private part, no stick
(Tilli) was recovered but these contentions have been rejected on the
grounds that the cogent evidence of PW-1 Amit Kumar Nimesh
cannot be overlooked or discarded.
7. Learned counsel from Delhi High Court Legal Services
Committee appearing on behalf of the appellant/convict has submitted
that keeping in view the tender age of the child, had there been any
insertion of wooden stick or Tilli in her private part, the child was
bound to suffer injuries which would have been revealed during her
medical examination. It has been contended that absence of any injury
on her body/private part is sufficient to discard the version of PW-1
Amit Kumar Nimesh and PW-2 Vishal.
8. The appearance of the appellant/convict was also procured by
issuance of production warrant and the appellant/convict has also been
heard. The appellant/convict has submitted that the baby girl was the
daughter of his co-labourer working at the construction site nearby and
he had taken the child just to play with her. The undergarment of the
child was pulled down by him only to make her pass urine. He has
further submitted that his act has been misunderstood by the
complainant and due to that reason he was apprehended and
implicated in this case.
9. On behalf of the State Ms.Kusum Dhalla, learned APP has
submitted that the judgment of the conviction and order on sentence
suffer from no illegality for the reason that the act of the
appellant/convict in inserting the wooden stick (Tilli) in the private
part of a baby girl aged about one year and rotating it, amounts to
aggravated penetrative sexual assault within the meaning of Section
3(b) of POCSO Act, 2012 and in view of the age of the child i.e. about
one year, the act amounts to aggravated sexual assault within the
meaning of Section 9(m) of POCSO Act and he has rightly been
sentenced to undergo rigorous imprisonment for ten years.
10. With a view to understand the nature of the offence stated to
have been committed by the appellant/convict through the testimony
of PW1 Amit Kumar Nimesh, PW-2 Vishal and PW-3 W/SI Saroj
Bala and the medical evidence, it is necessary to refer to the testimony
of PW-1, PW-2 & PW-3 as well as the MLC. It is relevant to mention
here that the parents of the baby girl remained untraceable. Since the
baby girl of tender age i.e. one year could not have made any
statement in respect of the occurrence, there was hardly any necessity
to produce her before the learned Magistrate for purpose of getting her
statement recorded under Section 164 Cr.P.C.
11. With a view to appreciate the rival contentions, the testimony of
material witnesses and the documentary evidence has been perused.
Verision of the complainant Sh.Amit Kumar Nimesh - PW-1
Version as Version as recorded Version as recorded
recorded in the in the statement before the Court on
complaint recorded under 30.06.2014.
Ex.PW1/A Section 164 Cr.P.C.
on 03.03.2014
(i) On 2nd March, (i) A day before on (i) On 2nd March, 2014
2014 at about 11.00 Sunday at about at about 11:00/ 11:30
am, he was going to 10.30/11.00 am, due to AM he had gone to feed
feed a roti to a Amavasya Pooja at his roti to a cow near Shani
cow. house, he had gone to Mandir in front of a
give roti to a cow. Church where
construction was going
on.
(ii) Near Shani Mandir (ii) He noticed the
(ii) He saw one some vehicles were accused sitting alone
person sitting parked and in space behind a car on footpath
behind the car with between the footpath on the service road.
a child. and car, he saw one
person namely Babu
Ram sitting with a one
year old baby girl.
(iii) When he returned (iii) While returning
(iii) That person after feeding the cow after feeding the cow,
was under the he was surprised to see out of curiosity he went
influence of liquor that the said person was there.
still sitting with the
baby girl.
(iv) On suspicion as to (iv) He found a female
(iv) That person why he was sitting child in the lap of that
had removed the behind the vehicle accused and that the
underwear (kachhi) when there was lot of accused had inserted a
of the girl child and space in the front, he stick (Tilli) in her
had inserted went close to see that private part and was
wooden piece (lakdi person. He saw that revolving the Tilli inside
ka tukda) in her the said person had her private part.
private part and was removed underwear of
rotating it there. that girl child and
something like Jhadu
Ki Tilli has been put in
the vagina of that child
and that person was
rotating it there.
(v) On seeing him, that (v) On seeing him the
(v) He apprehend- person pulled up the accused tried to run
ed that person when undergarment of baby away with the baby girl
that person was girl and started and was apprehended
trying to flee. running. with the help of other
public persons.
(vi) However, that (vi) PCR was informed.
(vi) Somebody person was It was revealed that the
informed the police apprehended with the baby girl was of the
and the father of the help of public person labourer working at the
girl child also and somebody also side behind the Church
reached the spot and informed the police. and was not the daughter
informed that the of the accused.
child was his
daughter.
(vii) That person was
claiming the baby girl
to be his daughter. But
all of them when went
to the construction site
where he resided, they
met the mother of the
baby girl and came to
know that the baby girl
was of some other
neighbourer.
Version of PW2 Vishal.
(i) On 2nd March, 2014 at 11:00 AM when he was going to
R.K.Puram to Church where he used to teach Bible to the children
near Shani Mandir.
(ii) He saw the convict Babu Ram sitting behind a car parked on the
road with a small girl with him and the 'kachhi' of the child had been
pulled down.
(iii) One boy was standing there and he informed Babu Ram was
doing some 'galat harkat' with the child and that the child did not
seem to be his child. Thereafter he informed the PCR from his
mobile, police reached there and apprehended the accused.
Version of PW-3 W/SI Saroj Bala - the Investigating Officer :
(i) On receipt of DD No.21-A at about 11:00 AM she reached the
spot where she met the complainant Amit Kumar Nimesh, victim aged
one year, her mother & maternal grandfather (Nana), the accused was
also there.
(ii) She made inquiry from the complainant and took the child
victim along with her mother for examination to the Safdurjung
Hospital.
(iii) The accused was detained in the custody of Constable
Mahender. She recorded the statement of the complainant and
prepared Rukka (Ex-PW3/B) for registration of the case on the basis
of which FIR was registered.
(iv) The accused was arrested and he was also sent for medical
examination at AIIMS Hospital. His medical examination was
conducted vide MLC (Ex.A1). The samples taken from the accused
by the doctor were also seized.
(v) The complainant Amit Kumar Nimesh was also produced
before the learned MM for getting his statement under Section 164
Cr.P.C. recorded.
The Investigating Officer W/SI Saroj Bala (PW-3) in her cross-
examination stated that when she reached the spot she met the
complainant, the child victim along with her mother and maternal
grandfather (nana) and the accused. The galat harkat mentioned by
the complainant was that he was rotating the wooden stick (match
stick) in the private part of the child. The wooden stick (match stick)
was not pointed out at the spot. The site-pan (Ex. PW-3/D) prepared
by the IO shows the place of incident is on the service road at point A
adjacent to Shani Mandir.
12. The MLC of the child aged about one year was prepared at
Safdurjung Hospital by Dr.Akanksha Mangla, MBBS, MS, Senior
Resident, Deptt. Of Obstetrics & Gyanaecology, VMMC & SJH, New
Delhi-29. In the said MLC she has specifically mentioned that no
injury was noted over the whole body, face and vulva internal region.
The child was conscious, oriented and in playful condition.
13. The appellant/convict does not dispute the fact that the child
victim was daughter of the co-labourer and was with him at the time
when he was apprehended. He also does not dispute that when he was
seen by the complainant, undergarment of the child had been lowered.
However, he has an explanation to give that it was done to make the
child pass urine.
14. A bare perusal of the statement of PW-2 Sh.Vishal when
examined in the light of statement of the complainant PW-1 Sh.Amit
Kumar Nimesh shows that he is not a witness to the occurrence. He
was part of the public that gathered after the complainant Sh.Amit
Kumar Nimesh (PW-1) was apprehending the appellant when he was
trying to escape alongwith the baby girl. It has already been noted that
as per PW-1 Sh.Amit Kumar Nimesh - the complainant, on seeing
him the appellant pulled up the 'kachhi' of the baby girl. Thus, PW-2
Sh.Vishal, who come to the spot when appellant was trying to escape,
had no chance to witness the insertion of some wooden stick in the
private part of the baby girl by the appellant and rotating the same
there.
15. The complainant Sh.Amit Kumar Nimesh (PW-1), who has
seen the appellant with the baby girl not only while going to feed the
cow but also while returning, has not seen the baby girl crying in the
lap of the appellant or thereafter. A child of one year cannot walk as
at that stage the child learns to take steps. So she had to be in the lap
of the appellant. In case of insertion of Tilli of broom in the private
part and its rotation there, the child would have cried due to pain and
in the process of rotation, she was bound to suffer informal injuries in
her private part.
16. Thus, it is a case where there is a conflict between the ocular
evidence and the medical evidence which has to be resolved on
examination of the MLC prepared by Dr.Akanksha Mangla,
MBBS/MS, Senior Resident, Deptt. Of Obstetrics & Gynaecology,
VMMC & SJH. Even the MLC note the child to be playful and
having not even a scratch on any part of her body. The MLC of the
appellant does not show him to be either a drug addict or under the
influence of any intoxication/liquor. No doubt, PW-1 Sh.Amit Kumar
Nimesh and PW-2 Sh.Vishal are independent public witnesses and
had no axe to grind in the matter but at the same time, mere suspicion
on their part that the child was being sexually assaulted cannot take
place of proof. In case of insertion of any object like 'Tilli' howsoever
thin or small it could be, being sharp at the tip its insertion in the
private part of a child aged about one year, was bound to cause
injuries which would have remained noticeable at the time of her
medical examination which was soon after the apprehension of the
appellant.
17. In the case Radhakrishna Nagesh vs. State of Andhra Pradesh
(2013) 11 SCC 688 the Supreme Court has observed as under:-
'19. In any case, to establish a conflict between the
medical and the ocular evidence, the law is no more res
integra and stands squarely answered by the recent
judgment of this Court in the case of Dayal Singh and
Ors. v. State of Uttaranchal MANU/SC/0622/2012 :
(2012) 7 SCALE 165
29. This brings us to an ancillary issue as to how
the Court would appreciate the evidence in such
cases. The possibility of some variations in the
exhibits, medical and ocular evidence cannot be
ruled out. But it is not that every minor variation
or inconsistency would tilt the balance of justice in
favour the accused. of course, where
contradictions and variations are of a serious
nature, which apparently or impliedly are
destructive of the substantive case sought to be
proved by the prosecution, they may provide an
advantage to the accused. The Courts, normally,
look at expert evidence with a greater sense of
acceptability, but it is equally true that the courts
are not absolutely guided by the report of the
experts, especially if such reports are perfunctory,
unsustainable and are the result of a deliberate
attempt to misdirect the prosecution. In Kamaljit
Singh v. State of Punjab MANU/SC/0824/2003 :
2004 Cri. LJ 28, the Court, while dealing with
discrepancies between ocular and medical
evidence, held, "It is trite law that minor variations
between medical evidence and ocular evidence do
not take away the primacy of the latter. Unless
medical evidence in its term goes so far as to
completely rule out all possibilities whatsoever of
injuries taking place in the manner stated by the
eyewitnesses, the testimony of the eyewitnesses
cannot be thrown out.'
18. Modi in his Medical Jurisprudence and Toxicology, Eighteenth
Edition, writes at page 325:
'In small children the hymen, being situated high up in
the canal, is not usually ruptured but may become red
and congested along with the inflammation and bruising
of the labia, or, if considerable violence is used, there is
often laceration of the fourchette and perinacum.'
19. Section 11 of POCSO Act defines sexual harassment, which
reads as under:-
'11. 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.
20. Section 12 of POCSO Act prescribes punishment for
committing the offence punishable under Section 11 of POCSO Act as
under:-
'12. Punishment for sexual harassment: Whoever,
commits sexual harassment upon a child shall be
punished with imprisonment of either description for a
term which may extend to three years and shall also be
liable to fine.'
21. When the testimony of PW-1 & PW-2 is examined in the light
of the MLC Ex.A-1 of the child victim prepared at Safdarjung
Hospital soon after the incident, on finding in the MLC that there was
not even a scratch on her whole body including private part was
noticed by the doctor, I am of the opinion that learned Trial Court had
erred in coming to the conclusion that prosecution had established the
charge for the offence punishable under Section 6 of the POSCO Act,
2012. The testimony of PW-1 & PW-2 at the most proved that at the
time when the convict was seen by PW-1 Sh.Amit Kumar Nimesh, the
'kachhi' of the child was lowered which could have been done by the
convict only thereby making the child exhibit her private part so as to
be seen by him or the other persons. Of course, he has tendered an
explaination that the purpose was to make the child pass urine.
22. After going through the provisions of the POCSO Act, 2012,
examining the testimony of the prosecution witnesses and the MLC, I
am of the considered opinion that the prosecution has failed to prove
the commission of offence under Section 6 of the POCSO Act, 2012.
23. In my opinion from the testimony of the prosecution witnesses
only a case of sexual harassment, punishable under Section 12 of the
POCSO Act, 2012 can be said to have been proved against the
appellant/convict.
24. In the facts and circumstances, the conviction and sentence
awarded to the appellant under Section 6 of the POCSO Act, 2012 is
set aside. The appellant is convicted for committing the offence
punishable under Section 12 of the POCSO Act, 2012 and sentenced
to undergo rigorous imprisonment for a period of three years and also
to pay a fine of `1,000. In default of payment of fine, he shall
undergo simple imprisonment for seven days.
25. The appeal stands disposed of in above terms.
26. The appellant be set at liberty if not wanted in any other case.
27. TCR be sent back alongwith copy of this order.
28. A copy of this order be sent to the concerned Jail
Superintendent for information and compliance.
PRATIBHA RANI
(JUDGE)
JULY 18, 2017
'hkaur'
