Delhi High Court
State vs Jaffar Khan on 27 September, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A 541/2019
STATE ..... Appellant
Through Ms. Aashaa Tiwari, APP for State
versus
JAFFAR KHAN ..... Respondent
Through Mr. Rajat Srivastava and Mohd.
Jarjish, Advocates
Reserved on : 13th September, 2019
% Date of Decision: 27th September, 2019
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT
MANMOHAN, J:
1. Present leave petition has been filed by the State challenging the
judgment dated 1st August, 2018 passed by learned Additional Sessions
Judge-05 (Central District), Tis Hazari Courts in FIR No. 460/2014
registered with Police Station IP Estate wherein the respondent-accused was
acquitted of the charges under Sections 376(1) of IPC and Section 6 of
POCSO Act, and was convicted under Sections 10 & 12 of POCSO Act and
354A IPC. The Trial Court vide order dated 6th August, 2018 sentenced the
respondent-accused to rigorous imprisonment for five years under Section
10 of POCSO Act, rigorous imprisonment for three years under Section 12
of POCSO Act and rigorous imprisonment for three years under Section
354A IPC. The relevant portion of the trial court judgment is reproduced
hereinbelow:-
"59. In the present case, there is no evidence on record to
establish that the Accused had inserted his penis into the mouth of
the Victim. The mere fact that as per PW 3 i.e. father of the Victim,
Accused was advising her to do „kulla‟(gargle) when he reached
there cannot lead to presumption that Accused had inserted his
penis in the mouth of the Victim. There is, in fact, no evidence
whatsoever to show as to what was put by the Accused in the
mouth of the Victim and in absence of such evidence, Accused
cannot be convicted for having committing penetrative sexual
assault upon the Victim.
60. At the same time, on the basis of testimony of the Victim
and her father, duly corroborated by deposition of PW4 Ms Bimla
and PW12 Dr. A. K. Mishra, I find that there is sufficient evidence
to establish that the Accused had touched the vagina of the Victim
with sexual intent. There is also evidence to prove that he had
exhibited his penis to the child Victim and thus also committed
sexual harassment within the meaning of Section 11 POCSO Act
and punishable under Section 12 POCSO Act and also made
physical contact and advances towards the Victim involving
unwelcome and explicit sexual overtures and thus also committed
offence punishable under Section 354A IPC. The fact that Accused
was working as lift operator in GB Pant Hospital is not in dispute.
Thus, Accused being a part of management of Hospital, though
private, committed sexual assault upon minor Victim is also liable
to be convicted for having committed aggravated sexual assault
within the meaning of Section 9 (e) POCSO Act and punishable
under Section 10 POCSO Act, and Section 354A IPC.
61. Thus, in my view, Prosecution has failed to prove the
charges for offence under Section 6 POCSO Act and Section
376(i) IPC against the Accused, though it stands proved that
Accused Jaffar Khan S/o Mohd. Layak Khan committed offences
under Section 10 and 12 POCSO Act & S.35A IPC."
2. Learned Predecessor Bench had granted leave to the State to assail the
impugned judgment and order on sentence vide order dated 22nd April, 2019.
Accordingly, present appeal was taken up for hearing on 13th September,
2019.
3. Ms. Aashaa Tiwari, learned APP for State had primarily prayed for
enhancement of the sentence and conviction under Section 6 of the POCSO
Act on the ground that the respondent-accused was guilty of committing
aggravated penetrative sexual assault on the prosecutrix.
4. Learned APP for State contended that the trial court had failed to
appreciate that the prosecutrix (PW-2) who was suffering from sixty per
cent mental retardation had clearly deposed that the respondent-accused had
opened the zip of his pant and put "something" in her mouth. She stated
that the prosecutrix owing to her mental retardation as well as her young
age, was not aware of the word used to identify the genital of a male.
5. She contended that the father of the prosecutrix (PW-3) had deposed
that when he returned after meeting the doctor, he had seen the respondent-
accused standing opposite to the prosecutrix with his pants unzipped and his
penis out.
6. Learned APP for State pointed out that the mother of the prosecutrix
(PW-1) had deposed as to what the prosecutrix had told her at home in the
evening with regard to the incident.
7. On the other hand, Mr. Rajat Srivastava, learned counsel for the
respondent-accused stated that the FIR was an afterthought as it was filed on
25th October, 2014 and not on the date of the incident, i.e., 24 th October,
2014. He questioned as to how the name of the respondent-accused could
find mention in the FIR when it was revealed at the time of arrest only. He
emphasised that as per testimony of the prosecutrix (PW-2) the offender was
a security guard who looked like a policeman and that the respondent-
accused had been wrongly arraigned despite lack of identification.
8. Mr. Rajat Srivastava had vehemently submitted that benefit of doubt
had to be given to the respondent-accused as the prosecutrix had not
mentioned the word 'penis' in her testimony before the trial court and
testimony of mother of the prosecutrix (PW-1) is inadmissible being hearsay
evidence. He had referred to the MLC of the prosecutrix to state that
absence of injuries suggested absence of penetrative sexual assault. He
submitted that statement of the proseuctrix (PW-2) under Section 164 Cr.
P.C. was not substantive evidence and could merely be used for
corroboration.
9. In rejoinder, Ld. APP for the State had drawn our attention to the fact
that hymen of prosecutrix was slightly torn.
10. Having perused the record and having heard the arguments, we are of
the view that respondent-accused' submission that he has been wrongly
arrayed as an accused is false and incorrect. There are many reasons for it.
The prosecutrix (PW-2) had deposed, "When my father reached, the
accused had left but my father had seen him." This statement is corroborated
by statement of the father of the prosecutrix (PW-3), "I enquired from the
accused why he was doing so, the accused stated that uncle I am not doing
anything and accused was frightened and after washing his hands in the
wash-basin in the room and went away." Thus, the visibly startled
respondent-accused left soon after seeing the father of the prosecutrix (PW-
3), but the little time during which he washed his hands was sufficient for
the father of prosecutrix (PW-3) to identify the respondent-accused.
11. No suggestion with regard to false identification was ever put by
respondent-accused to either father of the prosecutrix (PW-3) or Ms. Bimla
(PW-4) or Dr. A.K. Mishra (PW-12) during the cross examination.
12. Moreover, the trial court has already convicted the respondent-
accused under Sections 10 & 12 of POCSO Act and 354A IPC. In fact, the
respondent-accused has already undergone imprisonment for the said
offences. Accordingly, the finding with regard to identification and
involvement of the respondent-accused has attained finality. Consequently,
for all these reasons it is not open to the respondent-accused to now contend
that he had been wrongly arrayed as an accused.
13. To infer the true nature of the offence, it is important to refer to the
testimonies and evidence on record. As per rukka, father of the prosecutrix
(PW-3) stated that he had seen the respondent-accused standing with the zip
of his pants open with his penis outside. He also added that he saw that the
belt of his daughter was unbuckled and that her zip was slightly open. It is of
utmost importance that the father of the prosecutrix (PW-3) was consistent
in his stance while giving his testimony before the Court wherein he stated,
"...Jaffer was standing opposite to my daughter and at that time zip of his
pant was already opened and his penis was outside the zip. At that time, I
had also noticed that the belt of the pant of my daughter as well as the zip of
her pant was also slightly open. At that time, the accused was advising my
daughter „kulla kar lo, kulla kar lo‟."
14. Father of the prosecutrix (PW-3) had also mentioned about making a
complaint to Ms.Bimla (PW-4) in his testimony. Notably, both Ms. Bimla
(PW-4) and Dr. A.K. Mishra (PW-12) have testified that the father of the
prosecutrix (PW-3) had made an oral complaint to them on 24th October,
2014 soon after the incident itself. Consequently, the testimony of the father
of the prosecutrix (PW-3) stands corroborated by the testimony of Ms.
Bimla (PW-4) and Dr. A.K. Mishra (PW-12).
15. Soon after the incident, prosecutrix (PW-2) complained to her mother
(PW-1) about the same. Mother of the prosecutrix (PW-1) corroborated the
factum of complaint in her testimony. The relevant portion of the testimony
of mother (PW-1) is reproduced hereinbelow:-
"..... is my daughter, aged about 15 years. In the month of
October 2014, my husband along with my daughter ..... went to
G.B. Pant Hospital for issuance of certificate from the doctor as
...... mind has not been fully developed. My husband told me to
enquire from .... about the incident. Thereafter, I asked my
daughter ........ what did happen with her. She told me that one
guard present in the hospital had taken her in a room and after
opening the zip of her pant had put his penis in her mouth. She
further told me that the said guard after removing her pant and
touched her vagina. After the incident the accused told my
daughter not to disclose about the incident to anyone and the said
guard had also suggested my daughter to gargle/wash her mouth.
Thereafter, I told about the incident to my husband and he lodged
the complaint to the police."
16. We are also not inclined to accept the submission that the testimony
of the mother of the prosecutrix (PW-1) is hearsay evidence. The mother of
the prosecutrix (PW-1) did not depose as regards the commission of the act.
It is nobody's submission that she is an eye witness. She merely deposed as
to the factum of complaint made by the prosecutrix (PW-2) to her. Her
position is akin to that of Ms. Bimla (PW-4) and Dr. A.K. Mishra (PW-12).
In Kundan Singh Vs. The State, 2015 SCC OnLine Del 13647, a
Coordinate Bench of this Court held as under:-
"25. ......In Balram Prasad Agrawal v. State of Bihar; (1997) 9
SCC 338, the Supreme Court referred to the concept of hearsay
evidence and observed that even if some information is ruled out
as hearsay, it may still remain admissible as evidence of the
conduct of the witness. Relying on Section 8 of the Evidence Act,
it was observed as under:-
"11. ...This part of the evidence of PW6 would not be hit
by the rule of exclusion of hearsay evidence. A decision of
this Court deserves to be noted on this aspect. In the case
of J.D. Jain v. State Bank of India a Bench of three
learned Judges speaking through Baharul Islam, J. in the
Report has made the following pertinent observations:
(AIR p.676, para 10: SCC p. 148, paras 21 and 22)
"The word „hearsay‟ is used in various senses.
Sometimes it means whatever a person is heard to say;
sometimes it means whatever a person declares on
information given by someone else. (See Stephen on Law
of Evidence)
The Privy Council in the case of Subramaniam v. Public
Prosecutor, observed:
„Evidence of a statement made to a witness who is not
himself called as a witness may or may not be hearsay. It
is hearsay and inadmissible when the object of the
evidence is to establish the truth of what is contained in
the statement. It is not hearsay and is admissible when it
is proposed to establish by the evidence, not the truth of
the statement but the fact that it was made. The fact that it
was made quite apart from its truth, is frequently relevant
in considering the mental state and conduct thereafter of
the witness or some other persons in whose presence
these statements are made."
17. Moreover it was prosecutrix (PW-2) who herself told her mother
(PW-1) about the incident directly without intervention of any third person.
Her testimony is also relevant under Section 6 of the Indian Evidence Act,
1872, being part of the same transaction as the offence.
18. Furthermore, in her statement before the doctor conducting the MLC,
the prosecutrix (PW-2) had reiterated her stance. The relevant portion of the
MLC of prosecutrix (PW-2) is reproduced hereinbelow:-
Medical Record Department, Medico Legal 098728
Form No. 120 J.P.N.H.
Lok Nayak Hospital, New Delhi Injury Registrar
No. Name ........ D/o.......... Age 15 yrs
EBJa/19929 Sex Female Religion Hindu Occupation Student
Residence ....... Name of relative of friend ....
(father)
Date of examination 25/10/14
Date and hour of PARTICULARS OF INJURIES OR
arrival 25/10/14 at SYMPTOMS, IN CASE OF
8.15 p.m. POISONING
No. and date of police Pt. brought by WCt. Pushpa Rani
docket 2083/C from main casualty for
WCt. Pushpa Rani medical examination
2083/C 25/10/14
Pt. give H/o sexual assault by
No. and name of unknown person at GB Pant Hospital
Constable room on 24/1014 at 1 pm. Pt. give
WCt. Pushpa Rani H/o some person cold drink given by
2083/C 25/10/14 that person.
Pt. give H/o oral penetration of penis
If Admitted {
Date of admission __
with fingering in vagina.
No H/o. ejaculation
No H/o. excessive bld P/V /P/V
Date of Discharge __ discharge
Pt. take bath and change cloths after
Date and hour of report incidence & give all details of
sent to Police : 9.30 incidence to her mother.
p.m. No H/o excessive bld P/V
No any fresh injury mark over body
Space for particulars as to and external genetalia. No any
further reference to the previous h/o sexual assault.
case-date of giving .....- 3 days RC- Hymen slightly torn
evidence in the Court or ............ No fresh injury.
despatch of articles said to .....- 2/30 RNF ...........
contain poison. .....pain ...........
Seal mark on Rt. ..........
side of P-90/min
forearm BP-110/70 mgdl
MI ..............
Seal mark on Rt.
side of foot xxxx xxxx xxxx xxxx
(near thumb) All
samples
related and handed
over to
WCt. Sumit 2135/C
Sunita
Name of injuries ___ The kind of
weapon used or
poison suspected
in case of
poisoning ______
(Simple, Grievous or Dangerous)
Signature : Examining Medical Officer
19. Prosecutrix (PW-2) stated in her Section 164 Cr.P.C. statement that
the respondent-accused took "something" out from his pant and inserted it
into her mouth. She even indicated the place of retrieval by pointing towards
the zip of her jeans. The statement of the prosecutrix (PW-2) under Section
164 Cr.P.C., is reproduced hereinbelow:-
"...Usne apni pant utari aur mere muuh mein daal diya. Usne
apni pant se nikalkar mere muh mein daala. Mujhe nahi pata use
kya kehte hain. Usne vah yahaan [witness points towards zip of
her jeans] se nikaala tha aur mere muh mein daala. Phir mujhe
ulti ho gayi. Phir usne meri pant utari aur kachchhi bhi utari.
Phir mujhe haath lagaya aur haath andar daala. Mujhe dard
hua. Usne mujhe kaha ki yeh kisi ko nahi batana. Phir vo chala
gaya. Phir main Papa ke saath ghar gayi aur meri Mummy ko
maine sab bataya. Usne mujhe yahaan par chua tha [Witness
points towards her crotch]"
20. In a similar vein, the prosecutrix (PW-2) stated in her testimony
before the Court, "...The person opened the zip of his pant and put in my
mouth...That person removed my pant and undergarment and touched. He
asked me to wash my mouth with water and I washed my mouth with
water..."
21. Consequently, the statement of the prosecutrix under Section 164
Cr.P.C. corroborates her testimony before the Court and there is no
contradiction between the two.
22. We are conscious of the fact that the prosecutrix (PW-2) is just 15
years old and is also mentally disabled. Despite that, she has sufficiently
described the reprehensible act of the respondent-accused. Merely because
the prosecutrix (PW-2) could not ascribe specific name to the male
genetalia, the respondent-accused cannot be allowed to claim benefit of
doubt. To begin with, the accused consciously took the prosecutrix (PW-2)
from where she was sitting on the bench to the other side of the partition in
the room and made her sit on a chair. The prosecutrix (PW-2) elaborately
described the act in her statement under Section 164 Cr.P.C. and in her
testimony before the court. Father of the prosecutrix (PW-3) who arrived in
the immediate aftermath of the act caught the respondent-accused with his
pants down and his penis out. He also saw that the belt of his daughter had
been unbuckled and that her zip was slightly open. At that time, the father of
the prosecutrix (PW-3) heard the respondent-accused telling his daughter to
gargle. The prosecutrix's statement that she vomited soon after this further
strengthens the Appellant's version. The prosecutrix (PW-2) has stayed
consistent in her statement to her mother, to the doctor conducting her MLC,
statement under Section 164 Cr.P.C. and in her testimony before the Court.
Consequently, insertion of penis into the mouth of the prosecutrix stands
proved and the same amounts to Penetrative Sexual Assault under Section
3(a) POCSO Act.
23. Furthermore, as per the prosecutrix's statement under Section 164
Cr.P.C., the respondent-accused removed the prosecutrix's pants and
undergarment and after that committed two acts, namely, touched her
genetalia and put his hand inside her genitals. Due to this act of the accused,
the prosecutrix (PW-2) experienced pain. The factum of pain has been stated
by the prosecutrix (PW-2) both in her statement under Section 164 Cr.P.C.
and her testimony before the Court. Mere touch cannot produce the
sensation of pain. Furthermore, the MLC of prosecutrix (PW-2) also reveals
a slightly torn hymen. This is a clinching piece of evidence as to the fact of
penetrative sexual assault. Consequently, insertion of fingers into the
genitals of the prosecutrix (PW-2) also amounts to penetrative sexual assault
under Section 3(b) POCSO Act.
24. Further, absence of injuries cannot be used to disprove penetrative
sexual assault. We are convinced that rape law as it now stands does not call
for evidence of injuries for conviction for the said offence.
25. The fact that the respondent-accused was a lift operator in the hospital
on the date of the incident is uncontroverted. His presence on duty on the
date of incident has been proved by Mr. Jai Singh (PW-5). Thus, once the
court is of the view, as it is in the present case, that the accused committed
penetrative sexual assault, it would amount to aggravated penetrative sexual
assault under Section 5(e) POCSO Act as the respondent-accused committed
the offence while being a staff of the hospital. Further, as the offence was
committed upon a disabled child, Section 5(k) of POCSO Act would also be
attracted as the assault was committed taking advantage of the (PW-2)
prosecutrix's mental disability.
26. In our opinion, father of the prosecutrix (PW-3) upon his arrival at the
scene of crime found both the respondent-accused and prosecutrix in such
strange circumstances that he sensed something amiss. On 24 th October,
2014, he made oral complaint about what he saw and heard. The conduct of
father of the prosecutrix (PW-3) in immediately making a complaint to Ms.
Bimla (PW-4) and Dr. A.K. Mishra (PW-12) lends credibility to the
appellant's version. It is only when the prosecutrix (PW-2) and her father
(PW-3) went back home and she (PW-2) told her mother (PW-1) about the
details of the incident that the family came to know what exactly had
transpired. On the following day, i.e., 25 th October, 2014, a complaint
regarding the incident in detail was lodged with the police. Consequently, in
our view, there was no delay in lodging the complaint.
27. In light of the above mentioned findings and observations, the Court
is of the view that the testimony of prosecutrix (PW-2) as corroborated by
testimonies of the mother of the prosecutrix (PW-1), father of the
prosecutrix (PW-3), Ms. Bimla (PW-4) and Mr. Jai Singh (PW-5) as well as
the MLC Report inspires confidence. Consequently, respondent-accused is
held guilty of offences under Sections 3, 5(e) and 5(k) of POCSO Act as
well as Section 376(1) of IPC.
28. Ms.Aashaa Tiwari, learned APP for the State and Mr. Rajat
Srivastava, learned counsel for the respondent are directed to advance their
arguments on sentencing on the next date of hearing. Accordingly, list for
arguments on the point of sentencing on 01st October, 2019.
MANMOHAN, J
SANGITA DHINGRA SEHGAL, J
SEPTEMBER 27,2019
rn/sb
