Delhi High Court
Puran vs The State on 13 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 6th July, 2022
Pronounced on: 13th July, 2022
CRL.A. 352/2021
PURAN ..... Appellant
Represented by: Mr. B P Sharma, Mr. T S
Varun & Ms. Sudesh
Kumari, Advocates
versus
THE STATE ..... Respondent
Represented by: Ms. Aasha Tiwari, APP
for the State with WSI
Nisha, PS Kapasehra.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
1. By way of the instant appeal under Section 374(2) Cr.P.C., the
appellant has challenged his conviction under Section 6 of Protection
of Children From Sexual Offences Act, 2012 (POCSO Act) and the
order dated 8th June, 2021 whereby he has been sentenced to undergo
life imprisonment for a period not less than 14 years. In addition,
compensation of Rs.4,50,000/- was granted to the victim in
accordance with Delhi Victim Compensation Scheme.
2. The judgment under challenge was passed by learned
Additional Sessions Judge (ASJ-05) POCSO South West District,
Dwarka Courts, New Delhi on 12th March, 2020, in S.C. Case No.
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440384/16, pertaining to FIR No. 237/14, P.S. Kapashera registered
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under Section 6 of the POCSO Act and the order of sentence was
passed on 8th June, 2021.
3. The facts in brief are that in the night of 25th May, 2014, the
appellant forcibly entered the house of the child victim, allegedly aged
about 10 years, and committed the offence of penetrative sexual
assault punishable under section 6 of the POCSO Act. Accordingly,
above noted FIR was registered at PS Kapasehra on 31st May, 2014.
Pursuant to the investigation, charge-sheet was filed against the
appellant for commission of offence under section 376 IPC and
section 4 (6) of POCSO Act. Charge was however, framed against the
appellant for offence punishable under section 6 of POCSO Act.
Appellant pleaded not guilty and claimed trial. During trial, the
prosecution examined 14 witnesses. The accused was examined under
Section 313 Cr.P.C. when he pleaded innocence and stated he wished
to lead defence evidence. Accordingly, the accused examined himself
as DW-1 and 2 more witnesses from his employer company as DW-2
and DW-3.
Submissions by the appellant:
4. To substantiate his case, the appellant through the counsel and
the memo of appeal inter alia submitted as follows:
(i) PW-1, the child victim, did not remember the month and
year of the incident and only mentioned that it happened 2 to 3
days after the 20th in the said month when her parents along
with the younger sister had left for the native place to
Gorukhpur, U.P.
(ii) The child victim PW-1 knew appellant Puran prior to the
incident as he had stayed as a tenant in their house earlier.
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(iii) The child victim was living on the second floor of the
building along with her family and there were six more tenants
in the same building and her bhabhi and brother used to come
daily to inquire about their well being.
(iv) The DD entry No.16A dated 31st May, 2014 recorded at
2:40 PM pursuant to PCR call pertains to the incident of eve-
teasing ("ched-chad"). This information was supplied by the
father of the victim to the PCR from his phone.
(v) Around 9:00 PM on the same day MLC of the victim
child was conducted as per which there were no sign of injury
pursuant to which detailed examination of the victim child was
conducted.
(vi) At the date of incident, the appellant was at his working
place as viz. IGI Airport (APM Air Cargo) where he was
working as a porter and attendance record has proved his
physical presence at the work place.
(vii) The child victim had been taken to a local doctor on 25th
May 2014 by the neighbor and there the victim‟s version was in
respect of pain in the stomach and not sexual assault.
(viii) As per the statement of PW-1, the clothes worn by her on
the day of the incident were washed by her and hence, matching
done by the FSL would not be probative.
(ix) As per the report of Safdarjung Hospital, the radiological
bone age as per the ossification report of the child victim was
declared as between 12-14 years. Therefore, considering the
error margin of 2 years with benefit of doubt to the accused, the
age of victim child be taken as 12 years on the lower side and
16 on the higher side and therefore, the offence as under Section
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5 (m) of POCSO Act (which mandates penetrative sexual
assault on a child below 12 years as aggravated penetrative
sexual assault) is made out. Consequently, the appellant can at
best be convicted for an offence defined under Section 3 and
punishment if at all under Section 4 of the Act as it stood before
the amendment of 2019 by Act No.25. By the said amendment,
the punishment had been for "not less than 7 years" than "not
less than 10 years" post the amendment. Since the offence was
allegedly committed in the year 2014, pre-amended version of
the POCSO Act would be applicable.
(x) The appellant has already been incarcerated for more than
3.5 years since 2014 and was on bail during the period of trial.
(xi) There was a mention of quarrel between the appellant and
the father of the victim child and therefore it was suggested that
the appellant was framed for the offence of rape.
Submissions by the State:
5. In order to prove the guilt of the appellant, the Additional
Public Prosecutor on behalf of the State, submitted as follows:
(i) The MLC post examination of the victim child reported
that the hymen was torn.
(ii) The FSL report found the match between the DNA
isolated from the pyjami of the victim worn on the date of
incident and the blood on gauze of the appellant and there was
no cross-examination of the FSL Officer PW-14 by the
appellant.
(iii) As per the statements of PW-3, the father of the victim
and PW-1, the victim herself, it was evident that when the father
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alongwith his wife and youngest daughter, left for his native
place - Sant Kabir Nagar, U.P. on 7th May, 2014, he left his 2
other daughters in the custody of his nephew who was residing
at the ground floor of the building. On 12th May, 2014 when the
father of the victim child was unable to contact his nephew, he
requested the appellant to take care of his daughters. When he
returned to Delhi on 31st May, 2014, the victim child started
weeping and told him that 2-3 days after 20th of the said month
(May, 2014) the appellant had committed rape on her.
Relevant Evidence:
6. The following relevant aspects are gleaned from a perusal of the
evidence on record:
(i) PW-1 has given a detailed account of her ordeal and had
correctly identified the appellant in the Court. She testified that
she did not remember the month or year of the incident but it
happened 2-3 days after the 20th of the said month when her
parents along with her younger sister had gone to the native
place to Gorakhpur, U.P. She further stated that the appellant
Puran was known to her prior to the incident as he had stayed as
a tenant in their house earlier and he used to visit their house
occasionally. About 2 to 3 days after her parents leaving, the
appellant came to their house at about 9 pm and despite her
asking him to leave in the absence of the parents, he forcibly
entered the house. The appellant then went to fetch eggs from a
nearby shop and prepared egg curry and had dinner with her and
her younger sister. At around 11 P.M., her younger sister slept
on a takth while she herself slept on the floor. In the night, the
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appellant touched her and on her resistance the appellant was
violent with her. On her attempt to sleep again, the appellant
came on the floor and after gagging her with a cloth, committed
the act of rape and later threatened that he would kill her if she
disclosed the fact. On the next day at 7 A.M., the appellant left
their house but came back the day after at 6 A.M. and
threatened her against disclosure. When her parents returned on
the 7th day of the next month she told her parents and thereafter
her father called the police. The police came and made enquiries
from her and recorded her statement. Thereafter, she was taken
to the hospital for medical examination.
(ii) In her cross examination, she stated that she was wearing
a frock and payjami on the date of incident, which clothes were
taken by the police. She stated that she used to wash clothes on
her own. During her cross examination she stated that "had
washed my clothes which were worn by me on the date of
incident". She stated that she had narrated the incident to one
aunty residing in the building.
(iii) Smt. „S‟ was examined as PW-2 who deposed that she was
residing as a tenant on the ground floor in the building while the
victim and her family were staying on the third floor of the
same building. She stated that at about 5-5.30 A.M., the child
victim had come to see her and started weeping and disclosed
about the unfortunate incident. She stated that she had not
physically examined the child victim and that she had never
seen the appellant in the house of the victim prior to the date of
incident. She stated that the parents of the child victim had gone
to their native place and the child victim alongwith her younger
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sister was staying at their house. The parents returned after 2-3
days who also made enquiries and called the appellant to their
house. During that process, some altercation took place and
thereafter PCR was called by the shopkeeper.
(iv) PW-3, the father of the victim child testified that after he
had left for his native place, he had first asked his nephew to
take care of his daughters in his absence and when his nephew
was not available, he requested the appellant, whom he knew as
he had stayed in house of Puran as a tenant for a period of about
5 to 6 months. On his return on 31st May, 2014, he was told
about the incident by his daughter whereupon he called the
appellant to confront him with the accusation. Thereafter, police
was called who took him, his daughter and the appellant to PS
Kapasehra. He stated that the clothes of his daughter that were
worn by her on the date of incident were seized by the police.
(v) During his cross-examination PW-3 denied that an
altercation had taken place between him and the appellant on
the issue of return of money or that he owed any money towards
the appellant.
(vi) The MLC was signed and written by Dr. Anshu
Aggarwal, who had left the services of Safdarjung Hospital,
therefore, PW-7 Dr. Nikita Kumari had identified her
signatures. Similarly, PW-8 Dr. Hari Shankar Niranjan
identified signatures and handwriting of Dr. Garvit Shukla.
(vii) PW-9 ASI Ranbir Singh had reached the spot after
receiving the DD entry with Ct. Om Prakash. Thereafter, got the
case registered and sent the child victim for medical
examination. He testified that the bichona on which the assault
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was committed and also the clothes worn by the child victim on
the date of incident were seized by Insp. Neeraj Tokas vide
seizure memo Ex. PW-3/B and Ex. PW-3/A. The case property
was sent to the FSL
(viii) Investigation Officer, PW-11 Insp. Neeraj Tokas, also
testified that he had recorded statement of the witnesses and
duly identified the contents of the sealed parcels.
(ix) Dr. Poonam Sharma from FSL entered in the witness box
as PW-14 and testified that 3 sealed parcels were received in the
office of FSL for examination. She confirmed that in her
opinion as per DNA profiling (STR analysis) performed on the
exhibits provided was sufficient to conclude that DNA profile
generated from the source of exhibit i.e. pyjami of victim was
similar with the DNA profile generated from the source of
exhibit i.e., blood on gauze of the appellant. There was nothing
material in her cross examination by the appellant to displace
this opinion.
(x) On the directions of the learned trial court, the bone age
of the victim on the date of the examination i.e. 12 th August,
2014 was determined. As per the report given by the Safdarjung
Hospital, the radiological bone age of the victim was
determined as between 12 to 14 years. These medical reports
were not controverted by the accused during the trial. Therefore,
at the time of the incident i.e. 25th May, 2014, the victim was
"child" as defined under Section 2(d) of the POSCO Act. The
accused was reported as aged about 55 years as on the date of
the incident as mentioned in his MLC and on the report
regarding the potency test.
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(xi) The defence presented the appellant Puran as DW-1 who
admitted that "father of child victim made a call to me from his
native place stating that I had come to my native place by
leaving the children behind, you can go and see them". He also
stated that he had received a call from the father of the victim
on 31st May, 2014 and had gone to her house with his wife.
Upon reaching the gali near the house, the father of the victim
child started quarrelling and due to the ruckus, someone called
the police. He said that he was on night duty throughout that
month and there was a biometric system at his place of work
recording the joining and leaving the duty and that he was
falsely implicated in the present matter. In his cross
examination he admitted that on 25th May, 2014, the date of
incident, it was an „off day‟.
(xii) Sh. Ram Suman Pandey, Supervisor in the Cargo
services, the company where the accused worked was presented
as DW2. He had brought the records of attendance including the
manual attendance register sheet (master roll) and copy of
biometric record which were duly exhibited. In his cross
examination he confirmed that on 31st May, 2014, i.e., the date
of incident, the appellant was "Off duty". However, he further
volunteered that as per biometric record the timings of entry and
exit of the appellant were mentioned. He further stated that it is
possible that after making the entry in the biometric machine,
any person can move in and out of the building. He further
stated that the biometric machine was being handled by CLB
personnel (other company‟s personnel). No certificate under
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Section 65(B) of Indian Evidence Act had been filed in support
of the biometric documents.
(xiii) Sh. Shakti Singh, the Manager (HR) in APM AIR Cargo
Terminal Services was presented as DW3 and also testified on
the same lines as DW2.
7. For the purpose of convenient reference, the relevant provisions
of the POCSO Act are extracted hereunder:
Section 3: Definition
A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a child or makes the child to do so with him
or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of the child
or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to
cause penetration into the vagina, urethra, anus or any part of
body of the child or makes the child to do so with him or any
other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of
the child or makes the child to do so to such person or any other
person.
Section 4: Punishment for penetrative sexual assault.
(1) Whoever commits penetrative sexual assault shall be
punished with imprisonment of either description for a term
which shall not be less than ten years1 but which may extend to
imprisonment for life, and shall also be liable to fine.
(2)2 Whoever commits penetrative sexual assault on a child
below sixteen years of age shall be punished with imprisonment
for a term which shall not be less than twenty years, but which
may extend to imprisonment for life, which shall mean
1 Substituted for "seven years" by the Amending Act of 2019
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2 Inserted by the Amending Act of 2019
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imprisonment for the remainder of natural life of that person
and shall also be liable to fine.
(3)3 The fine imposed under sub-section (1) shall be just and
reasonable and paid to the victim to meet the medical expenses
and rehabilitation of such victim.
Section 5: Aggravated penetrative sexual assault.
(l) ......
(m) whoever commits penetrative sexual assault on a child
below twelve years; or
(n) ......
(p) whoever being in a position of trust or authority of a child
commits penetrative sexual assault on the child in an institution
or home of the child or anywhere else; or
Section 6: Punishment for aggravated penetrative sexual
assault.
(1) Whoever commits aggravated penetrative sexual assault
shall be punished with rigorous imprisonment for a term which
shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of natural life of that person and shall also be liable
to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and
reasonable and paid to the victim to meet the medical expenses
and rehabilitation of such victim.4
Analysis:
8. On a combined assessment of contentions raised by the parties,
arguments heard and the perusal of evidence, the following
conclusions are arrived at by this Court:
3Inserted by the Amending Act of 2019
4 Prior to the Amending Act of 2019 section 6 read as: "Whoever commits penetrative sexual
assault shall be punished with rigorous imprisonment for a term which shall not be less
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a) The fact that the father of the victim and the rest of the family
were away on the date of incident leaving behind their two
young daughters stood duly proved by the testimonies of PW-1,
PW-2 and PW-3 and even of the accused.
b) The fact that the father of the victim had requested the appellant
to go and check on his daughters while he was away is
corroborated by testimony of the father and even of the accused.
c) The accused has stated that his presence at the night of the
incident in the house of the victim was not corroborated.
However, having regard to the statement of the victim which is
in great detail [the presence of the appellant at the night of the
incident, his forcible entry, resistance of the child victim to his
advances, appellant‟s procuring eggs and cooking and dining
with them, the sleeping arrangements between the appellant and
the victim and the younger sister, thereafter his assault on her
when she resisted followed by his sexual assault] is highly
probative in favour of the victim and against the appellant. The
testimony of PW-1, the child victim stood strong and consistent
in her cross examination. Minor contradictions in her testimony,
particularly being a child victim that too of sexual assault can be
ignored, as per settled principles of law. Further, taking into
account the testimony of PW-2 with whom the victim had
shared the very next morning of the incident about sexual
assault by the accused is also noteworthy. There was no reason
as to why PW-2 „S‟ who was independent witness and a
neighbour would depose against the accused whom she had
reportedly never seen. Her testimony stood uncontroverted and
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there was no suggestion that she was deposing falsely for any
vested reasons at the behest of the parents of the child victim.
d) The fact that the victim stated that she was wearing a pyjami
and a frock on the date of incident and that it was the same
pyjami that was seized by the police and was sent to FSL for
examination, is also established. The FSL opined that there was
a DNA match between what was found on the pyjami and the
blood gauze of the accused, which has high evidential value
against the accused.
e) The contention raised by the appellant that the victim per her
testimony had washed her pyjami and therefore, FSL evidence
cannot be taken to be truth, has no basis whatsoever. It is not
very clear from her deposition during the cross examination,
since at one point she generically stated that "I wash my clothes
on my own in the absence of my parents" and on another
occasion she stated that "had washed my clothes which were
worn by me on the date of incident". Whether the washing was
prior or later is not clear. Notwithstanding the issue of washing
clothes, the pyjami was seized by the police on 31st May, 2014
which was 5-6 days after the incident and whatever biological
specimen it had as a residue was picked up by the FSL and fully
matched with the biological sample taken from the blood gauze
of the appellant. The FSL report has remained unrebutted and
there is no reason to doubt the veracity of the same.
f) As per the MLC of the child victim prepared on 31st May, 2014,
though there were no signs of injury, it states basic facts of the
incident. The medico-legal examination report of sexual
violence records that the victim‟s hymen was torn.
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g) As regards the fact of a quarrel on 31st May, 20214, it is evident
that when the appellant was confronted by the father of the
victim about the sexual assault, the quarrel ensued resulting in a
PCR being called. The story presented by the appellant that he
was framed due to monetary debt owed by the father of the
victim towards him is not substantiated by any evidence. The
said suggestion is denied by PW-3, the father of the victim nor
is there any other corroborating evidence except for the bald
statement by the accused.
h) As regards alibi sought to be presented by the appellant
regarding his presence at his employer‟s company on the date of
incident, stood vitiated since the officials of the company where
he worked duly proved through records that he was off duty on
that date i.e., 25th May, 2014.
i) The contention of the appellant that the initial DD entry was
regarding "eve teasing" (ched chad) is again not worthy of any
assessment since as per statements made by PW-2, the aunty
and PW-3, father of the victim, PCR call was made post the
quarrel between the father of the victim and the appellant in
presence of many people of the colony. Therefore, it would be
safe to presume that the DD entry was based on a call to PCR
and the caller stated broadly about ched chad rather than stating
the specific allegation of sexual assault.
j) A cumulative reading of the above evidence both of the victim,
the circumstantial evidence of narrating the incident to PW-2
soon after the incident and to the father by the victim, the
scientific evidence of MLC and FSL reports regarding the
seized clothes and sample of the blood gauze of the accused,
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proves beyond reasonable doubt that the accused had committed
the offence of penetrative sexual assault on the child victim on
25th May 2014. This Court also wishes to observe that it was
reprehensible since the appellant had been given the duty to act
as a guardian of two young girls by their father and he was thus
in a position of trust which he grossly betrayed by using the
opportunity to satisfy his lust.
The law seriously frowns upon sexual offences against the children
for which purpose POCSO Act was enacted in the year 2012 by the
Government of India.
9. The only issue that needs to be deliberated upon is which
provision of POCSO Act would be applicable. Learned Trial Court
has convicted the appellant for the offence of aggravated penetrative
sexual assault‟. Aggravated penetrative sexual assault as defined in
Section 5 Sub Sections (m) and (p) of the Act with respect to sexual
assault on a child below twelve years and by a person in trust or
authority, punishable under Section 6 of the Act.
10. The offence of penetrative sexual assault on a child, if below
twelve years, would convert into aggravated penetrative sexual assault
thereby inviting a higher punishment under section 6 which was not
less than 10 years upto life imprisonment prior to the amendment in
the year 2019 and not less than 20 years, extendable upto life
imprisonment post the 2019 amendment.
11. Ossification report of the age of the child victim has returned a
finding of 12-14 years. Considering that a margin of ±2 years is
allowed, the benefit of doubt going to the accused, at best the lower
range of 12 years would be considered for this case. If so, it would not
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come under the definition of „aggravated penetrative sexual assault‟
under Section 5 (m) of the Act.
12. Contention of learned counsel for the appellant that since the
offence was committed in the year 2014, the provision prior to 2019
amendment would apply which provides for a term not less than 7
years but which may extend to imprisonment for life, in view of the
offence not falling under Section 5 (m) but under Section 3 of POCSO
Act, ignores the fact that there is yet another provision of the POSCO
Act which was relied upon by the learned trial court viz. Section 5(p)
for conviction.
13. Section 5(p) brings penetrated sexual assault on a child in the
home of the child from a person who is in a position of trust or
authority of the child into the definition of "aggravated penetrated
sexual assault" and thus punishable under Section 6. In the facts of
this case, it has been uncontroverted that the accused had been
requested by the father of the victim to take care of his two young
daughters while the family was away. It would, therefore, be apposite
to assess whether that accused was in a "position of trust or authority
of the child" by accepting such request by the father of the victim.
This Court is of the view that the accused indeed was in a position of
trust with the child victim and it is on the basis of the trust that the
child victim had allowed the accused in their home and also were
pushed to dine with him first and then shared the same room for the
sleeping arrangements at night, which included the accused, the child
victim and her younger sister. Therefore, notwithstanding, the
inapplicability of Section 5(m), on the facts of this case, the accused
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has been rightly convicted for an offence as defined under Section
5(p).
14. Reference may be made to the decision of the Hon‟ble Supreme
Court in Nawabuddin vs. State of Uttarakhand (2022) 5 SCC 419
where the Apex Court has noted that in a case where the victim was a
minor girl and the accused was a man of 65 years aged and was a
neighbour of the victim girl, he had the duty to protect the victim girl
when alone rather than exploiting her innocence and vulnerability. The
Hon‟ble Supreme Court observed that "it is a case where trust has
been betrayed and social values are impaired.....therefore, the
accused as such does not deserve any sympathy and/or leniency". A
Division Bench of this Court as well in Gaya Prasad Pal @ Mukesh
vs. State (2016) 235 DLT 264 relying on Section 5 (p) of the POSCO
Act in a case where the step-father was the accused, noted that "thus,
the penetrative sexual assault having occurred within the confines of
the home where the prosecutrix was living with the appellant, virtually
her guardian, clause (p) of Section 5 also renders it a case of
aggravated penetrative sexual assault".
15. Accordingly, the accused would be liable for a punishment for
aggravated penetrated sexual assault under Section 6 of POSCO Act,
as it stood prior to the amendment of 2019 i.e. punishable with
rigorous imprisonment for a term not less than 10 years but extendable
to imprisonment for life.
16. In the circumstances of the present case, the accused was given
the task of being a guardian of the victim and he abused and violated
that trust thereby marring the life and future of the child, causing
serious mental agony to the child victim, the younger sister (who was
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also in the vicinity of the victim at the time of the crime) and the
parents who would be completely shaken by such an egregious,
reprehensible and heinous act.
17. The appellant has submitted that he is now about 60 plus years
of age and is the sole earning member of the family and has an
unmarried daughter who has to get married, are not the best mitigating
circumstances, considering the nature, seriousness and depravity of his
offence.
18. As regards the power to prescribe punishment for the entirety of
convict‟s life for a specific period of more than 14 years, say 20 or 30
years, rests with the Division Bench of this Court or the Hon‟ble
Supreme Court. As per the decision of the Hon‟ble Supreme Court
articulated in paragraph No. 104 of UOI vs. V. Sriharan & Ors.,
(2016) 7 SCC(5JJ) ".... the power to impose a modified punishment
providing for any specific term of incarceration or till end of convict's
life as an alternate to death penalty can be exercised only by the High
Court and the Supreme Court and not by any inferior court."
19. Accordingly, it is implicitly clear that the power to award
sentence of any specific period or till the end of convict‟s life, lies
with this Court and did not lie with learned Trial Court.
20. However in the present case, the learned Trial Court has
awarded the sentence of imprisonment for life not less than 14 years,
as per the mandate of Section 433A IPC. Thus, this Court deems it fit
to not interfere with the sentence awarded by the learned Trial Court.
21. Appeal is accordingly dismissed. Copy of this order be
uploaded on the website of this Court and be also sent to
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Superintendent, Jail for intimation to the appellant and updation of
records.
CRL.M.B. 650/2022 (in CRL.A. 352/2021)
22. Application is disposed of as infructuous.
(ANISH DAYAL)
JUDGE
(MUKTA GUPTA)
JUDGE
JULY 13, 2022/sm
Signature Not Verified
Digitally Signed
Signing Date:13.07.2022
15:08:56
