Delhi High Court
Shekhawat vs State on 22 May, 2023
N.C.2023:DHC:3520-DB
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 15th February, 2023
Decided on: 22nd May, 2023
+ CRL.A. 182/2019
SHEKHAWAT ..... Appellant
Represented by: Mr.Mohd. Shamikh, Advocate.
versus
STATE ..... Respondent
Represented by: Mr.Prithu Garg, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MS. JUSTICE POONAM A. BAMBA
MUKTA GUPTA, J.
1. By the present appeal, the appellant challenges the judgment dated
11th December, 2018 whereby he was convicted for offence punishable
under Section 6 of the Protection of Children from Sexual Offences Act,
2012 („POCSO Act‟) and 363 & 323 of the Indian Penal Code („IPC‟). The
appellant also challenges the impugned order on sentence dated 17th
December, 2018, whereby he was directed to undergo imprisonment for life
along with fine of ₹20,000/- for offence punishable under Section 6 of the
POCSO Act, rigorous imprisonment for a period of seven years and fine of
₹10,000/- for offence punishable under Section 363 IPC and rigorous
imprisonment for a period of one year and to pay fine of ₹1,000/- for
offence punishable under Section 323 IPC, in default whereof, to undergo
simple imprisonment for three months.
2. As per the prosecution, brief facts of the case are that in the evening
of 8th April, 2015, the victim went to play in the street outside her house,
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with her friend („B‟) and at about 9.00-9.30 PM, victim‟s mother „K‟ (PW-
12) realized that the victim had not returned back home and was also not
present in the street outside. The parents of the victim along with other
family members and neighbours started searching for the victim, however,
could not find her. At about 12.30 AM, just when the parents of the victim
were about to go to the police station, the appellant came with the victim
and handed the victim to „K‟ and left. The appellant was the uncle (chacha)
of victim‟s friend „B‟. „K‟ (PW-12) found that the victim was unconscious
and on examining, she found injuries and bite marks on the body of the
victim as also bloodstains on victim‟s underwear and that the victim was
unable to properly stand on her own legs. Accordingly, the victim was
rushed to the JPC Hospital and from the hospital, victim‟s father Akhtar Ali
(PW-8) made a call to the police at number 100 and the information was
recorded vide DD No.7B (Ex.PW-3/A). The victim was medically
examined and her MLC (Ex.PW-25/1) was prepared and the appellant‟s
name was recorded as the perpetrator of the crime. Further, the victim
narrated the incident to her mother and categorically named the appellant.
The statement of the mother was recorded by the police and rukka (Ex.PW-
12/A) was prepared and FIR No.265/2015 dated 9 th April, 2015 under
Sections 363/323/376 IPC and Section 6 POCSO Act, at PS Seelampur was
got registered (Ex.PW-4/C). The appellant was got arrested on 10th April,
2015 at about 9.00 PM from Coat Market, Shashtri Park.
3. Dr.Gurmeet Kaur Bhusari conducted the physical examination of the
victim and prepared the MLC (Ex.PW-25/1), which was proved by
Dr.Monika Bairathi (PW-25). As per the MLC it was observed:
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Physical Examination
"clothing, legs and hands smeared with blood,
(1) circular ring like bruised area on (3cm diameter)
on left cheek? bite,
(2) multiple bruised area present on B/L breast in an
area of 5x5 cm
(3) Laceration of 3x0.5 cm on back.
Local Examination
- Bloodstained vulva
- Hymen fresh torn
- fourchette B/L tear of 450 angle
- Internal examination refused by victim due to pain"
Discharge summary (Ex.PW-6/A):
(1) Vaginal tear on left side extending from fourchette to
left fornix about 5 cm
(2) Rectal mucosa tear 3cm
(3)Anal spincter (external and internal) tear present.
4. Thereafter, the victim was shifted to GTB Hospital. Thereafter, a
secret information was received by SI Sarita (PW-20) which was shared
with the SHO, upon which, the appellant was apprehended from Coat
Market, GT Road, arrested vide arrest memo (Ex.PW-10/A) and got
medically examined. After completion of investigation, charge-sheet was
filed and the appellant was charged for offences punishable under Sections
363 IPC, 323/324 IPC and 376 IPC and alternatively, Section 6 POCSO
Act. To prove its case the prosecution examined 25 witnesses; and to rebut
the case of the prosecution, one defence witness was examined by the
appellant.
5. Learned counsel appearing for the appellant assails the impugned
judgment on the ground that the appellant has clean antecedents and has not
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committed the crime and thus, be acquitted. To substantiate its case, it was
contended that name of the appellant neither finds any mention in the
information given to the police vide DD No.7B nor in the PCR record. It
was further contended that there is no evidence on record to suggest that the
victim was conscious at the time when she made the statement to her
mother, nor there is any fitness certificate on record to suggest the same. It
was also contended that nothing incriminating has been mentioned in the
MLC of the victim and no role whatsoever had been assigned to the
appellant in the said MLC. It was further pointed out that during the
examination-in-chief, „B‟ stated that the victim was taken away by one
„Baawla‟ on which the learned Trial Court observed that „B‟ was not able to
answer the questions coherently and, therefore, she was discharged from
further examination. Thus, it is clear that the victim was taken away by the
said „Baawla‟ and not by the appellant. It was the case of the appellant that
the appellant found the victim at the redlight from where he took the victim
in his lap and went to victim‟s house to hand her over to the mother of the
victim. It was also pointed out that the place of incident was also not got
identified by the IO from the appellant and the same shows that because the
appellant did not commit any offence, he was unaware about the place of
incident. It was further pointed out by the learned counsel for the appellant
that as per the arrest memo (Ex.PW-10/A), the appellant was arrested at
9.00 AM on 10th April, 2015, however, as per the conviction slip (Ex.PW-
20/D1), the date of arrest of appellant is mentioned as 9 th April, 2014. And,
therefore, it was contended that the police had illegally detained the
appellant on mere suspicion and when the police could not find the actual
culprit, the appellant was falsely implicated to solve a blind case. It was
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the case of the prosecution that the appellant had bitten the victim on her
cheeks and other body parts, and it was contended by learned counsel for
the appellant that no efforts were made to take swabs from the cheeks of the
victim as the same could have been sent for DNA analysis which could have
proved the innocence of the appellant and the benefit of not collecting of
such swabs would go to the appellant. In alternative, it was prayed that the
sentence of imprisonment for life awarded to the appellant may be reduced
to the minimum punishment under Section 6 of POCSO i.e. to 10 years,
keeping in view that the appellant was 20 years old at the time of alleged
incident and that he has clean antecedents.
6. On the other hand, learned APP for the State submitted that the
present appeal is devoid of any merit and therefore, the impugned judgment
and order on sentence passed by the learned Trial Court be upheld and the
present appeal be dismissed. Learned APP for the State relied upon the
following facts:
i. As per the birth certificate of the victim (Ex.PW-13/A), the
date of birth of the victim is 17th July, 2008 and accordingly, on
the day of incident, the age of the victim is around six years
and nine months.
ii. The victim categorically stated that while she was playing with
her friend „B‟, the appellant asked them to come and have some
eatables, after which the appellant sent „B‟ away and asked the
victim to play „bhoot bhoot‟. Thereafter, the appellant took her
to a jungle, removed his mask and bit the victim on her cheeks,
breasts and below her abdomen. Thereafter, the appellant
gagged her and injected her in her right forearm after which the
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victim does not remember as to what happened. Thereafter,
she only remembered that the appellant brought her in a TSR
where she was lying on a back seat and after stopping the TSR
on a redlight, the appellant took her in his lap and took her to
her mother. She further stated that the appellant pricked her at
the place of urination and that the appellant stated "main tujhe
khaa jaunga".
iii. As per the victim MLC (Ex.PW-25/1), the victim was taken to
the hospital at 2.00 AM on 9th April, 2015 by her mother and at
that time, the victim was unconscious. As per the MLC, the
clothes, legs and hands were found smeared with blood;
circular ring like bruised area 3 cm in diameter on left cheek;
multiple bruises present on breast of 5 x 5 cm and laceration of
3 x 0.5 cm on back. Further, on local examination, bloodstains
were found on vulva; fresh tear on hymen, fourchette tore at
about 45 degree angle and anus of the victim was found to be
tender.
iv. As per the MLC of the appellant (Ex.PW-9/A), nothing was
found to suggest that the appellant was incapable of performing
sexual intercourse.
7. Learned APP for the State submitted that the case against the
appellant rests solely on the testimony of the victim, being the eye-witness
of the case. Despite being a child witness, her testimony before the Court
was consistent with her previous statements i.e. under Section 161 Cr.P.C.
(Ex.PW-11/DA) and also statement under Section 164 Cr.P.C. (Ex.PW-
14/1). Further, her testimony finds corroboration from her MLC. Reliance
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was placed on the decisions in 1951 SCC 1213 Rameshwar vs. State of
Rajasthan, (1997) 5 SCC 341 Dattu Ramrao Sakhare vs. State of
Maharashtra and (2018) 251 DLT 383 (DB) Court on its Own Motion vs.
State. Furthermore, the defence put forth by the appellant that he was falsely
implicated as there was a pre-existing dispute between him and the victim‟s
mother regarding parking of TSR was falsified by his own suggestion put to
Akhtar Ali (PW-8) during his cross-examination, and even otherwise,
parking dispute is too trivial reason for victim‟s parents to falsely implicate
the appellant and let the actual culprit go scot-free. Even otherwise, the
sequence of event was such that there was no scope with the parents of the
victim to fabricate a story against the appellant. Further, it was submitted
by learned APP that the contentions of the appellant were inadequate to
discharge the reverse burden placed on him in terms of Sections 29 and 30
of POCSO Act. And in this regard reliance was placed on the decision in
(2019) 256 DLT 593 Chand Bibi vs. State & Anr.
8. Having heard both the parties at length and perusing the record, the
following evidence emerges.
9. Victim (PW-11) identified the appellant present in the Court during
her deposition through weblink. She stated that „B‟ was niece of the
appellant. She stated that on the day of incident, she was watching TV,
when suddenly, the light went off and „B‟ came to her, asked to accompany
her to her house and watch TV there. She went to her house and after
sometime, her uncle came and asked them to come out to have some
eatables on which both of them went with him. After taking the eatables, he
sent „B‟ to her house and told her that they would play „bhoot bhoot‟. He
was wearing a mask and then took her to jungle where he removed his
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mask, bit her on her cheeks, both breasts and below her abdomen. He then
injected her on her right forearm and when she cried, he gagged her mouth
with a cloth piece. She stated that she did not remember as to what
happened thereafter. On regaining consciousness, she found herself on the
back seat of a TSR and after stopping it on a redlight, Shekhawat took her in
his lap and on seeing her mother, he handed her over to her mother.
Thereafter, she stated that the appellant took her to the jungle in an auto.
Thereafter, permission to ask leading question was denied, however, learned
Additional P.P. was permitted to cross-examine the witness. The victim
then stated that the appellant took off his clothes, pricked at her place of
urination and that he stated "main tujhe khaa jaunga".
10. „K‟ (PW-12) who is the mother of the victim deposed that on 8th
April, 2015 at about 9.00 PM, the victim was playing in the gali with „B‟,
who is the niece of the appellant. On searching for the victim, she went to
the house of „B‟, where mother of „B‟ informed her that „B‟ was at the
house and that the victim had gone away. Thereafter, she searched for the
victim in the gali but could not find her and at about 10.00 PM she informed
her husband that the victim was missing. In the meanwhile, the appellant
came there with victim in his lap and handed over the victim to her and told
her that the victim was found at the redlight. She put the victim on the
ground but the victim could not stand on her legs and fell down. On
checking the victim, she found teeth bite marks on her cheeks and scratches
on her body. She also found that the victim‟s underwear and her frock were
stained with blood. Thereafter, she along with her husband and Wahid Ali
took the victim to JPC Hospital, where the doctor informed her that it was
police case, on which her husband made a call at number 100. After the
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medical examination, she was informed that the victim was raped. Insp.
Sarita recorded her statement (Ex.PW-12/A). Thereafter, the victim was
taken to GTB Hospital and was medically examined again. At the GTB
Hospital, the victim told her that she was taken away by the appellant in an
Auto to a jungle at a far of place and pricked a needle on her right hand, bit
her with his teeth on her cheeks, chest and near her urinating place. When
she started crying, the appellant forced a cloth into her mouth. After the
injection, she became unconscious and when she regained her
unconsciousness, she found herself in an auto. In her cross-examination,
she stated that the FIR was lodged by her husband in her name and that the
police asked most questions from the victim and only a few questions from
her. She further stated that she met the appellant for the first time with the
victim at the corner of the street leading to the main road while she along
with her neighbours was proceeding to the police station, at which instance,
the victim was handed over to her.
11. Vijay Pal Singh (PW-13) brought the birth certificate of the victim
(Ex.PW-13/A), as per which the victim was born on 17 th July, 2008 and her
birth was registered in their record on 13th August, 2008.
12. IO/SI Sarita (PW-20) deposed that on 9th April, 2015 at about 3.00
AM she received the information regarding rape of a six year old girl from
the Duty Officer. She along with Ct. Giri Raj, reached JPC Hospital, where
she met the mother of the victim. She informed Ms.Sunita who was the
NGO counsellor and recorded the statement of the mother of the victim
(Ex.PW-12/A). She prepared the rukka and sent the same for registration of
FIR. Doctors referred the victim to GTB Hospital and accordingly, the
victim and her mother were sent to GTB Hospital. The victim was not in a
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position to make any statement. Thereafter, she received an information
that the appellant was present at the Coat Market at GT Road and this
information was passed to the SHO who reached the spot and after
identification by the informer, the appellant was apprehended and arrested
(Ex.PW-10/A). The appellant was got medically examined. On 13 th April,
2015, statement under Section 164 Cr.P.C. of the victim was got recorded.
13. In his statement under Section 313 Cr.P.C. the appellant stated that
„B‟ was his niece and that he knew the victim (PW-11) as he used to reside
near her house. He stated that he and his family used to have regular
disputes with the family of the victim on the issue of parking the TSR in the
gali and because of which, he has been falsely implicated in the present
case.
14. Mohd. Shamim (DW-1) stated that on 9th April, 2015 at about 9.30-
10.00 PM he saw a lot of people gathered in the street near his in-laws‟
house and he came to know that a girl was missing. When he returned from
his in-laws‟ house and took a turn towards Gandhi Nagar from Shastri Park
Traffic Signal, he saw public gathered around the tea shop of Gudiya and a
small girl crying. In the meanwhile, appellant came in his auto, dropped the
passengers and as he knew the girl, he took the girl with him and thereafter,
he handed the girl to her sister Muskan. He also stated that mother of victim
and the appellant used to quarrel regularly on account of parking dispute.
15. Case of the prosecution is based on the testimony of the victim. It is
well settled that the conviction for offence punishable under Section 6 of the
POCSO Act can be based on the sole testimony of the victim if the said
victim is found to be a reliable witness. (See 1951 SCC 1213 Rameshwar vs.
State of Rajasthan and (1997) 5 SCC 341 Dattu Ramrao Sakhare vs. State
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of Maharashtra). In the present case, the testimony of the victim is not only
reliable and convincing but also finds corroboration from her MLC.
16. As noted above, the prosecution has proved the birth certificate of the
victim (Ex.PW-13/A) and her date of birth has been proved as 17th July
2008. Thus at the time of offence the victim was 6 years and 9 months old.
The version of the victim is further corroborated by the testimony of her
mother „K‟ who appeared in the witness box as PW-12 and stated that on 8th
April 2015 at about 9 p.m., the victim went out to play and when she did not
return home, she made a search for her. At about 10 p.m., she informed her
husband about the missing of the victim. She stated that some known
persons searched for the victim but the victim was found missing. It was
revealed that victim was with one „B‟ who was the niece of the appellant
herein. While PW-12 was going towards police station Seelampur on the
main road, she found the appellant with the victim in his lap. The appellant
handed over the victim to her and told her that the victim was found at the
red light. It is thus evident that the appellant was last seen with the victim.
The appellant has been duly identified by the victim in the witness box.
Further, as per the MLC of the victim (Ex.PW-25/1), the victim was taken
to the hospital at 2 a.m. on 9th April 2015 by her mother and at that time, the
victim was unconscious. As per the MLC, the clothes, legs and hands of the
victim were found smeared with blood; with injuries i.e. circular ring like
bruised area 3 cm in diameter on left cheek; multiple bruises present on
breast of 5 x 5 cm and laceration of 3 x 0.5 cm on back. Further, on local
examination, bloodstains were found on vulva; fresh tear on hymen,
fourchette torn at about 45 degree angle and anus of the victim was found to
be tender.
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17. Though the defense of the appellant was that he was falsely
implicated owing to a parking dispute between him and victim‟s family, but
there is no proof of the same. Even a suggestion in this regard was put to
mother of victim (PW-12) but it was denied by her. Furthermore, there
appears to be no cogent reason for the family to falsely implicate the
appellant and letting the actual culprit go scot free.
18. In view of the cogent and convincing evidence of the victim which is
duly corroborated by her medical evidence and the statement of the mother
of the victim, we find no error in the impugned judgment of conviction and
order on sentence.
19. Appeal is accordingly dismissed.
20. Judgment be uploaded on the website of this Court and a copy of the
same be also sent to the Superintendent, Jail for intimation to the appellant
and updation of the record.
(MUKTA GUPTA)
JUDGE
(POONAM A. BAMBA)
JUDGE
MAY 22, 2023/akb
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