Delhi High Court

Ajeet Singh vs The State Govt. Of Nct Of Delhi And ... on 31 October, 2023

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                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                                Reserved on: September 05, 2023
                                                              Decided on: October 31, 2023

                          +      CRL.A. 612/2023 & CRL.M.(BAIL) 1089/2023

                                 AJEET SINGH                                     ..... Appellant
                                                    Through:    Mr. Deepanshu, Advocate


                                                    V


                                 THE STATE GOVT. OF NCT OF
                                 DELHI AND ANOTHER                            ..... Respondents
                                                    Through:    Mr. Utkarsh, APP for State
                                                                with SI Abhishek Guleria,
                                                                P.S. Kalyanpuri

                                 CORAM
                                 HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

                                 JUDGMENT

1. The present appeal is filed under article 374(2) of the Code of

Criminal Procedure, 1973 (hereinafter referred to as "the Code") on

behalf of the appellant Ajeet Singh (hereinafter referred to as "the

appellant") against the judgment on conviction dated 27.03.2023

and order on sentence dated 10.05.2023 passed by the court of

Sh. Ravinder Singh, Additional Sessions Judge (Special Court,

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 1 16:16:47 POCSO Act), East, Karkardooma Courts, Delhi in Sessions Case

no.463/2016 arising out of FIR bearing no.0558/2015 registered

under sections 377/506 of the Indian Penal Code, 1860 (hereinafter

referred to as "IPC") and under sections 6/8/12 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter referred to as

"POCSO Act") at P.S Kalyanpuri.

2. The factual background is that SI Sudhir Rathee after receipt of

DD no. 27A dated 24.06.2015 reached at LBS Hospital along with

the respondent no. 2 and her two sons J aged about 7 years and A

aged about 4 years where they were medically examined vide MLC

bearing no 9259/15 and 9260/15 with alleged history of sodomy.

The doctor referred them to SR surgery for further opinion and

examination. SI Sudhir Rathee again on 26.05.2015 took the

respondent no.2 and the victims J and A to LBS Hospital for

obtaining forensic opinion and the doctor after examination opined

that the possibility of sodomy/anal intercourse by erect penis of

adult/any structure resembling it cannot be ruled out.

2.1 The respondent no.2 handed over a written complaint dated

26.06.2015 to SI Sudhir Rathee (hereinafter referred to as "the

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 2 16:16:47 Investigating Officer") wherein she primarily stated that she was

residing at house bearing no. 20/144, Kalyanpuri along with family.

The appellant who is her husband has been sexually exploiting her

elder son J for the last three years and also started to sexually exploit

her younger son A. The appellant and her mother also threatened the

respondent no.2 and both the victims J and A were living under

threats and fear. The appellant on 22.06.2015 in the night again

committed the offence of aggravated penetrative sexual assault upon

victims J and A and said fact was disclosed by the victims J and A to

her.

2.2 The Investigating Officer on the basis of the MLCs of the

victims J and A and surgery and forensic opinions got registered FIR

bearing no 0588/2015 under sections 377/506 IPC and 6/8/12 of

POCSO Act at P.S. Kalyanpuri. The statements of victims J and A

were recorded under sections 161 and 164 of the Code. The appellant

was arrested on 07.07.2015. The exhibits were sent to FSL. The

charge sheet was filed after completion of investigation and the

appellant was put to trial for offences punishable under sections

377/506 IPC and 6/8/12 of POCSO Act. The case after complying

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 3 16:16:47 with the provision of section 207 of the Code was committed to the

Court of Sessions. The court of Sh. Raghubir Singh, ASJ-01, East,

Karkardooma Courts, Delhi vide order dated 24.01.2017 framed the

charge against the appellant for offence punishable under section 6 of

the POCSO Act on allegations that the appellant was sodomizing the

elder son J (aged about seven years) for the last about three years

prior to lodging of the complaint and also sodomized him on

22.06.2015 in the night and the appellant also sodomized the younger

son A ( aged about 4 years) for some times and particularly on

22.06.2015 in the night. The appellant pleaded not guilty and claimed

trial.

2.3 The prosecution during trial examined 9 witnesses including

victim J as PW1, victim A as PW2, the respondent no.

2/Complainant as PW3 and Investigating Officer as PW7. The

appellant as per section 294 of the Code admitted recording of

statements of the victims J and A as Ex.PW1/A and Ex.P1

respectively under section 164 of the Code by the court of Ms. Swati

Katiyar, MM, East, Karkardooma Courts, Delhi, FIR as Ex.P2, DD

no. 27A dated 24.06.2015 as Ex.P3, Potency Report as Ex.P4, age

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 4 16:16:47 proof of the victims as Ex.P5 and Ex. P6 and FSL Report no. 2015/B-

6381 BIO No. 1808/15 dated 29.09.2017 as Ex.A1. The prosecution

evidence appears to be closed vide order dated 13.02.2019. The

statement of the appellant was recorded under section 313 of the

Code vide proceedings dated 06.04.2019 wherein the appellant

alleged false implication and pleaded innocence. The appellant stated

that he and his wife i.e. the respondent no. 2/complainant used to

quarrel and the respondent no. 2 had lodged complaint against him at

P.S. Kalyanpuri but police did not take any action on her complaint.

Thereafter, the respondent no. 2 has falsely implicated him in this

case by lodging false complaint against him through both the victims.

The appellant preferred to lead defence evidence. The appellant

examined his mother Sat Kaur as DW1. The defence evidence was

ordered to be closed vide order dated 30.05.2019.

2.4 The court of Sh. Ravinder Singh-1, Additional Sessions Judge-

01 (POCSO), East, Karkardooma Courts, Delhi (hereinafter referred

to as "the trial court") vide judgment dated 27.03.2023 (hereinafter

referred to as "the impugned judgment") convicted the appellant

for the offence under section 6 of POCSO Act and under section 377

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 5 16:16:47 IPC by observing that the prosecution had proved beyond reasonable

doubt that the appellant had committed the offence of penetrative

sexual assault as defined in section (3)(a) of POCSO Act upon PW2

but the prosecution failed to prove that the appellant had committed

the offence of penetrative sexual assault upon PW1. The trial court

vide order on sentence dated 10.05.2023 sentenced the appellant to

undergo rigorous imprisonment for 10 years with a fine of

Rs.10,000/- for the offence punishable under section 6 of POCSO

Act and in default of payment of fine, to undergo further rigorous

imprisonment for six months. The benefit of section 428 of the Code

was extended to the appellant.

3. The appellant being aggrieved, filed the present appeal and

challenged the impugned judgment and order on sentence on the

grounds that the impugned judgment is bad in law and facts, the

impugned judgment is based on conjectures and surmises, the

prosecution has failed to prove its case beyond reasonable doubts and

as such the trial court should have given the benefit of doubt to the

appellant and should have acquitted him, the trial court has failed to

consider the testimonies of PW1, PW2 and PW3 in right perspective,

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 6 16:16:47 the trial court has failed to consider that the police officials and the

NGO have got registered the present FIR with false and fabricated

allegations against the appellant, the trial court has failed to consider

the real dispute which was matrimonial dispute between the appellant

and his wife i.e. the respondent no. 2 and no such incidents took

place as alleged by the prosecution, the trial court has failed to

consider that the appellant is the only care-taker & bread provider of

the family and the trial court has failed to consider that the

prosecution has failed to prove its case beyond all reasonable doubts.

The appellant prayed that the impugned judgment and order on

sentence be set aside.

3.1 The counsel for the appellant argued that the trial court has not

appreciated evidence led by the prosecution in right perspective as

PW1/victim J and the respondent no. 2/complainant as PW3 and

PW2/victim A in cross examination did not support the case of the

prosecution. The appellant was falsely implicated at instance of the

respondent no. 2 in present case due quarrel between them. The

counsel for the appellant also referred testimony of DW1 in

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 7 16:16:47 arguments. The counsel for the appellant argued that the impugned

judgment is liable to set aside and the appellant be acquitted.

3.2 The Additional Public Prosecutor argued that the prosecution

has proved the guilt of the appellant beyond reasonable doubt and

referred testimony of PW2/victim A. The Additional Public

Prosecutor argued PW1/victim A in examination in chief supported

the case of prosecution and his cross examination does not affect

credibility of testimony of PW2/victim A particularly in light of

medical evidence. The respective testimonies of PW1/victim J and

PW3 i.e. the respondent no. 2/complainant does not dilute criminality

of the appellant. He argued that the appeal is liable to be dismissed.

4. It is reflecting that the prosecution in support of its case

examined both the victims as PW1 and PW2 besides the respondent

no. 2/complainant as PW3. The trial court at the time of recording of

respective testimonies of the victim J as PW1 and the victim A as

PW2 after preliminary questions, observed that they were having

sufficient maturity to understand the questions put to them and to

give rational answers. The testimony of the victim J as PW1 was

recorded in question-answer form. PW1/victim J did not support the

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 8 16:16:47 case of the prosecution. PW1/victim J primarily deposed that the

appellant who is father of PW1/victim J is a good person and did not

do any wrong act either with him or with the victim A/PW2.

PW1/victim J could not tell about his statement under section 164 of

the Code. PW1/victim J admitted that he was living with the

appellant in same house and quarrel took place between the appellant

and the respondent no. 2/complainant. The appellant never removed

his knicker and did not do galat kaam (sodomy) with him any time

which caused pain in his anus. PW1/victim J deposed that he was

taken to the hospital due to bleeding from his anus but no injury had

ever been caused there. PW1/victim J admitted his signatures at point

A on statement Ex. PW1/A recorded under section 164 of the Code.

PW1/victim J denied that he deposed at the instance of his

grandmother. PW1/victim J was not cross examined by the defence

counsel on behalf of the appellant.

4.1 PW2/victim A deposed that he has been told by his mother i.e.

the respondent no. 2/ complainant to depose. PW2/victim A used to

be beaten by the appellant. The appellant removed his knicker 10

times and after removing knicker placed lulli (penis) at his private

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 9 16:16:47 part at back i.e. anus which caused pain to him. The respondent no. 2

i.e. mother of the victim A had beaten the appellant when the

appellant was placing lulli (penis) on his private part. The respondent

no. 2 had taken PW2/victim A to the hospital. PW2/victim A gave

statement to a lady judge and told her that the appellant is not a good

person. The appellant should be beaten and he deposed correctly. The

appellant used to place his lulli (penis) in night at sleeping time and

also used to do same act with his brother i.e. PW1/victim J.

PW2/victim A in cross examination by defence counsel on behalf of

the appellant deposed that the appellant had never beaten him and did

wrong act with him. The appellant never put/inserted his lulli (penis)

at his anus or anus of his brother i.e. PW1/victim J. PW2/victim A

never told police or judge that the appellant put/insert his lulli (penis)

on his anus. PW2/victim A deposed that he correctly deposed in cross

examination. PW2/victim A was also cross examined by the

Additional Public Prosecutor on behalf of the State wherein deposed

that he has not deposed at instance of either the appellant or the

respondent no. 2 and nothing had happened with him about 2-3 or 5

years back.

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 10 16:16:47 4.2 PW3 i.e. the respondent no. 2/complainant also turned hostile

and did not support case of prosecution. PW3 deposed that she had a

quarrel with the appellant who also gave beatings to her and both the

victims. The police did not register complaint of the respondent no.

2/complainant and thereafter with help of an NGO, present FIR was

registered by the police and the appellant was arrested. The police

obtained her signatures on some papers. She admitted her signature at

point A on the complaint Ex.PW3/A. PW3 was cross examined by

the Additional Public Prosecutor wherein she denied suggestions that

in complaint Ex.PW3/A she stated that for last three years prior to

registration of FIR on 26.06.2015, the appellant was committing

unnatural sex (sodomy) with her elder son i.e. the victim J and for

few days prior to registration of FIR started committing unnatural sex

with her younger son i.e. the victim A or that the victim J asked her

to sleep with him so that the appellant could not do wrong with him

or that when she asked for medical examination of the victims, the

appellant and her mother in law threatened her to turn her out of the

matrimonial home or that the appellant on 22.06.2015 committed

sodomy with both the victims and thereafter the victim A apprised

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 11 16:16:47 her about the wrong done by the appellant and thereafter she went to

P.S. Kalyanpuri and gave complaint Ex.PW3/A. PW3/complainant

admitted that on 24.06.2015 police took her and both the victims to

LBS Hospital for medical examination of victims but did not

remember that she and victims informed the doctor about anal

intercourse being done with them. PW3/complainant admitted that

30.06.2015 she along with both the victims came to Karkardooma

Courts and the statements of both the victims were recorded by a

Judge but expressed her ignorance about contents of the statements.

4.3 The prosecution during trial examined PW5 Dr. Abbas Ali,

Casualty Medical Officer, LBS Hospital, PW6 Dr. Narender, S.R

Surgery, LBS Hospital and PW9 Dr. Ashok Sagar, Assistant

Professor, G.S Medical College, Pilakhwa. PW5 Dr. Abbas Ali on

24.06.2015 being posted as Casualty Medical Officer, LBS Hospital,

Delhi medically examined PW1/victim J and PW2/victim A vide

MLC Ex.PW5/A and Ex. PW5/B with the alleged history of sodomy

and on examination found no external visible injury on the body of

victims and referred them to Surgery department for local

examination. PW5 in cross examination admitted that he had not

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 12 16:16:47 given opinion regarding sodomy upon the victims. PW6 Dr. Narender

deposed that vide MLC Ex. PW5/A and Ex. PW5/B Dr. Shailender

had examined both the victims on 24.06.2015 who had taken rectal

swab which were sent for forensic examination and expert opinion.

PW9 Dr. Ashok Sagar being Senior Resident on 26.06.2015

examined both the victims with the alleged history of sodomy and

after examination opined that possibility of sodomy/anal intercourse

by erect penis of adult or any structure resembling it, cannot be ruled

out.

4.4 The appellant in defence examined his mother Sat Kaur as

DW1 who primarily deposed that the appellant and the respondent

no. 2 used to be quarrel over trivial matters and the respondent no. 2

had made complaints to the police against the appellant who was

detained by the police. The respondent no. 2 used to threaten to

implicate the appellant in a serious case. The appellant is innocent.

5. The trial court in impugned judgment opined that both the

victims J and A were „child‟ as defined in section 2(l)(d) of POCSO

Act. The appellant also did not dispute age of both the victims. The

appellant has also admitted the date of birth certificates pertaining to

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 13 16:16:47 both the victims as Ex.P6 and Ex.P5 and as per certificates Ex.P6 and

Ex.P5, the date of birth of victim J is 20.07.2008 and the date of birth

of victim A is 01.12.2011. The trial court has rightly observed that

the prosecution has proved that the ages of the victims were less than

18 years at the time of commission of offence and as such POCSO

Act is applicable.

6. The trial court also judicially determined whether the appellant

had actually committed acts of sodomy with both the victims who

happened to be his minor sons. The appellant as per prosecution had

sexually exploited his elder son victim J for the last three years and

also started to sexually exploit his younger son Victim A. The

victims were also sexually exploited by the appellant in the night of

22.06.2015 and victims disclosed this to their mother i.e. the

respondent no. 2 who reported this incident to the police on

24.06.2015.

6.1 The prosecution to prove guilt of the appellant, examined

victim J as PW1, victim A as PW2 and the complainant i.e. the

mother of both the victims as PW3. PW1/victim J and the respondent

no. 2/PW3 turned hostile and did not support case of the prosecution.

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 14 16:16:47 As discussed by the trial court in the impugned judgment,

PW1/victim J deposed that the appellant is a good person and did not

remove his knicker and also did not do any wrong act with him

although he admitted that he was taken to the hospital as blood was

oozing from his anus but further deposed that the appellant has not

done any wrong act with him. PW1/victim J admitted that his

statement Ex.PWl/A was recorded under section 164 of the Code but

claimed that statement Ex.PW1/A was made at the instance of one

aunty. PW1/victim J has not supported version of the prosecution

that the appellant has sexually exploited him for the last three years

and also on 22.06.2015. PW1/victim J was cross examined by the

Additional Public Prosecutor but there is nothing material in his cross

examination to substantiate the allegations of penetrative sexual

assault by the appellant on 22.06.2015 or prior to it. The respondent

no. 2/the complainant also deposed that the appellant has not done

anything wrong either with PW1victim J or PW2/victim A although

during her cross examination, she admitted that police took her and

her sons i.e. PW1/victim J and PW2/victim A to LBS Hospital for

medical examination on 24.06.2015 and she also brought both

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 15 16:16:47 victims to Karkardooma Courts on 30.06.2015 for recording of their

statements. There is as such nothing in respective testimonies of

PW1/victim J and the respondent no. 2/PW3 which can connect the

appellant with alleged offence. It is relevant to mention that as per

testimony of PW9 Dr. Ashok Sagar, he examined PW1/victim J on

26.06.2015 with the alleged history of sodomy and thereafter opined

on MLC Ex.PW5/A that possibility of sodomy/anal intercourse by

erect penis of adult or any structure resembling it, cannot be ruled

out. However quality and quantity of evidence led by the prosecution

is not sufficient to connect the appellant with alleged offence qua

PW1/victim J.

6.2 PW2/victim A supported the case of the prosecution in part of

his testimony i.e. examination in chief wherein he primarily deposed

that the appellant removed his knicker 10 times and after removing

knicker placed lulli (penis) at his private part at back i.e. anus which

caused pain to him. PW2/victim A was taken to the hospital by the

respondent no. 2/PW3 i.e. his mother. PW2/victim A also admitted

about his statement Ex.P1 under section 164 of the Code.

PW2/victim A also deposed that the appellant used to place his lulli

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 16 16:16:47 (penis) in night at sleeping time and also used to do same act with his

brother i.e. PW1/victim J. PW2/victim A in his statement Ex.P1

recorded under section 164 of the Code also supported case of the

prosecution. This part of testimony of PW1/victim A is corroborated

by the testimony of PW9 Dr. Ashok Sagar who examined

PW2/victim A on 26.06.2015 with the alleged history of sodomy and

thereafter opined on MLC Ex.PW5/B that possibility of sodomy/anal

intercourse by erect penis of adult or any structure resembling it,

cannot be ruled out.

6.3 Every person accused of an offence is presumed to be innocent

and burden lies upon the prosecution to establish the guilt of the

accused beyond reasonable doubt. The Supreme Court in Shivaji

Sahabrao Bobade and Another V State of Maharashtra, (1973) 2

SCC 793 emphasized that our jurisprudential enthusiasm for

presumed innocence must be moderated by the pragmatic need to

make criminal justice potent and realistic. The Supreme Court in

State of U.P. V Shanker, AIR 1981 SC 897 observed that it is

function of the court to separate the grain from the chaff and accept

what appears to be true and reject the rest. The Supreme Court in

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 17 16:16:47 Gurbachan Singh V Sat Pal Singh and others, AIR 1990 SC 209

observed that exaggerated devotion to the rule of benefit of doubt

must not nurture fanciful doubts or lingering suspicions and thereby

destroy social defence. The Supreme Court in Krishna Mochi and

Others V State of Bihar, (2002) 6 SCC 81 observed that there is

sharp decline in ethical values in public life and in present days when

crime is looming large and humanity is suffering and society is so

much affected thereby duties and responsibilities of the courts have

become much more. It was further observed the maxim "let hundred

guilty persons be acquitted, but not a single innocent be convicted" is

in practice changing world over and courts have been compelled to

accept that "society suffers by wrong convictions and it equally

suffers by wrong acquittals". However, the Supreme Court in Sujit

Biswas V State of Assam, (2013) 12 SCC 406 also held that

suspicion, however grave, cannot take the place of proof and the

prosecution cannot afford to rest its case in the realm of "may be"

true but has to upgrade it in the domain of "must be" true in order to

steer clear of any possible surmise or conjecture. The trial court in the

impugned judgment referred section 29 of the POCSO Act by

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 18 16:16:47 observing that there is a presumption under section 29 of POCSO Act

that if any offence is committed under section 6 of POCSO Act, then

it shall be presumed to have been committed by the accused unless it

is proved to the contrary. However, section 29 of POCSO Act

provides that where a person is prosecuted for committing or abetting

or attempting to commit any offence under sections 3, 5, 7 and 9 of

POCSO Act, the Special Court shall presume that such person has

committed or abetted or attempted to commit the offence, as the case

may be unless the contrary is proved. Therefore, it is for the

prosecution to prove guilt of the appellant beyond reasonable doubt

who has been charged for offence punishable under section 6 of

POCSO Act which does not entail any dilution of doctrine of

presumption of innocence. The Supreme Court in Sunil Kumar V

State of NCT, 2021 SCC OnLine Del 2391 observed that as per

section 29 of the POCSO Act, there is a presumption regarding guilt

of the accused. The burden of proof on the prosecution is not of

beyond reasonable doubt. The prosecution has to lay down and prove

the fundamental facts regarding the guilt of the accused. Once such

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 19 16:16:47 facts are proved, the onus is upon the accused to lead evidence to

rebut the presumption.

7. It is reflecting that entire prosecution is primarily based on

testimony of PW2/victim A. The witness is considered to be an

important factor or integral part of the administration of justice and

role of a witness is paramount in the criminal justice system. The

witness by giving evidence assists the court in discovery of the truth.

The Supreme Court in Mahender Chawla and Others V Union of

India and Others, (2019) 14 SCC 615 observed that witnesses are

important players in the judicial system, who help the judges in

arriving at correct factual findings. The instrument of evidence is the

medium through which facts, either disputed or required to be

proved, are effectively conveyed to the courts.

7.1 The trial court in establishing guilt of the appellant for offence

punishable under section 6 of POCSO Act relied on testimony of

PW2/victim A. The trial court observed that the conviction on the

sole evidence of child witness is permissible, if such witness is found

competent to testify and the court, after careful scrutiny of its

evidence believes it and referred Dattu Ramrao Sakhare and

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 20 16:16:47 Others V State of Maharashtra, (1997) 5 SCC 341. The trial court

while placing reliance on testimony of PW2/victim A further

observed that the evidence of PW2/victim A inspires confidence as

there is a thread of truth in the statements recorded by the

Investigating Officer, by the MM, East, Karkardooma Courts as

Ex.P1 and the testimony recorded in the court to the effect that the

appellant touched his private part into his anus. The trial court has

referred cross examination of PW2/victim A and observed that

PW2/victim A in his cross examination conducted on 07.04.2022

testified that his father i.e. the appellant never put/insert his penis into

his potty wali jagah (anus) and he never said anything to police or

Judge in this regard and he is speaking truth. The trial court did not

believe cross examination of PW2/victim A by observing that the

appellant is the father of victims. The testimony of PW2/victim A

was recorded on 22.08.2017 when he was four years of age and his

cross examination was recorded on 07.04.2022 i.e. after gap of

almost 56 months from his examination in chief and by that time

PW2/victim A might have gained sufficient maturity to understand

the consequence of his testimony recorded on 22.08.2017. Issues

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 21 16:16:47 which need judicial assessment and consideration are that what is the

evidentiary value of part testimony of PW2/victim A and whether the

appellant can be convicted on basis of part testimony of PW2/victim

A. PW2/victim A in cross examination conducted by the defence

counsel on behalf of the appellant deposed that the appellant had

never beaten him or did any wrong act with him. The appellant never

put/inserted his lulli (penis) at his anus or anus of his brother i.e.

PW1/victim J. PW2/victim A never told police or Judge that the

appellant put/insert his lulli (penis) on his anus. PW2/victim A

deposed that he correctly deposed in cross examination. PW2/victim

A was also cross examined by the Additional Public Prosecutor on

behalf of the State wherein deposed that he has not deposed at the

instance of either the appellant or the respondent no. 2 and nothing

had happened with him about 2-3 or 5 years back.

8. Section 118 of the Indian Evidence Act, 1872 deals with the

witnesses who can testify. It provides that all persons shall be

competent to testify, unless in the consideration of court they are

prevented from understanding the questions put to them or from

giving rational answers to those questions by tender years, extreme

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 22 16:16:47 old age, disease, whether of body or mind, or any other cause of the

same kind. The issue of evidentiary value of the testimony of child

witness has been considered by the Supreme Court on many

occasions. It is observed and held that the credibility of a child

witness depends upon the circumstances of each case and the

precaution which should have been taken while assessing the

testimony of a child witness is that the witness must be reliable and

demeanour of child witness must be like any other competent witness

without likelihood of being tutored. The Supreme Court in Dattu

Ramrao Sakhare and Others V State of Maharashtra, (1997) 5

SCC 341 also referred by the trial court in relation to child witnesses,

held as under:-

5. ...A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 23 16:16:47 8.1 The Supreme Court in Ratansinh Dalsukhbhai Nayak V

State of Gujarat, (2004) 1 SCC 64 also held as under:-

7. ...The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make- believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

8.2 The Supreme Court in P. Ramesh V State Rep by Inspector

of Police, (2019) 20 SCC 593 also held as under:-

15. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii)

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 24 16:16:47 give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.

8.3 The courts as a rule of prudence before accepting the testimony

of a child witness cautioned that the testimony has to be evaluated

carefully being susceptible to tutoring. The Supreme Court in State

of Madhya Pradesh V Ramesh and Another, (2011) 4 SCC 786

held as under:-

14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with grater circumspection because he is susceptible to tutoring. Only in case there is evidence or record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.

The Supreme Court in Ranjeet Kumar Ram @ Ranjeet Kumar

Das V State of Bihar, 2015 SCC OnLine SC 500 also observed that

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 25 16:16:47 evidence of the child witness and its credibility would depend upon

the circumstances of each case and only precaution which the court

has to bear in mind while assessing the evidence of a child witness is

that the witness must be a reliable one.

8.4 The acceptance of testimony of a child witness under

POCSO Act came into consideration before the Courts on many

occasions. The Supreme Court in Ganesan V State Rep. by Its

Inspector of Police, (2020) 10 SCC 573 while dealing with

conviction under POCSO Act held that the statement of the

prosecutrix, if found to be worthy of credence and reliable, requires

no corroboration and the court may convict the accused on the sole

testimony of the prosecutrix. A Coordinate Bench of this Court in

Rakesh @ Diwan V The State (GNCT of Delhi), 2021 SCC

OnLine Del 3957 accepted testimony of the child victim as

trustworthy, reliable and admissible.

The Calcutta High Court in Animesh Biswas V State of W.B., 2023

SCC OnLine Cal 2633 observed that the sole testimony of the victim,

a child witness, could be relied upon in cases of sexual assault

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 26 16:16:47 provided her evidence was trustworthy, unblemished, and of sterling

quality.

9. PW2/victim A supported case of prosecution in examination

in chief but did not support case of prosecution in cross examination.

The evidence of the hostile witness cannot be rejected but has to be

considered with caution. The Supreme Court in various decisions has

discussed admissibility of testimony of a hostile witness. The

Supreme Court in State of U.P. V Ramesh Prasad Misra and

Another, (1996) 10 SCC 360 held the evidence of a hostile witness

should not be totally rejected but it can be subjected to close scrutiny

and that portion of the evidence which is consistent with the case of

the prosecution or defence may be accepted. The Supreme Court in

C. Muniappan and Others V State of Tamil Nadu, (2010) 9 SCC

567 held that the evidence of a hostile witness cannot be discarded as

a whole, and relevant parts thereof which are admissible in law can

be used by the prosecution or the defence. The Supreme Court

in Mrinal Das and Others V State of Tripura, (2011) 9 SCC 479

held as under:

67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 27 16:16:47 admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.

The Supreme Court in Arjun V State of C.G., 2017 (2) MPLJ (Cri.)

305 held that merely because the witnesses have turned hostile in

part, their evidence cannot be rejected in toto. The evidence of such

witnesses cannot be treated as effaced altogether but the same can be

accepted to the extent that their version is found to be dependable and

the court shall examine more cautiously to find out as to what extent

he has supported the case of the prosecution.

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10. It is accepted position of law that testimony of a child witness

can be basis of conviction and testimony of a hostile witness cannot

be rejected completely if the testimony inspires confidence. The

testimony of PW2/victim A is required to be analysed with care and

caution. PW2/victim A in examination in chief deposed that the

appellant removed his knicker 10 times and after removing knicker

placed lulli (penis) at his private part at back i.e. anus which caused

pain to him. PW2/victim A was taken to hospital by the respondent

no. 2 and also indirectly admitted making of statement under section

164 of the Code wherein stated that the appellant is not a good

person. PW2/victim A also deposed that the appellant used to place

his lulli (penis) in night at sleeping time and also used to do same act

with his brother i.e. PW1/victim J. However PW2/victim A in cross

examination did not support prosecution and deposed that the

appellant never did wrong act with him and never put/inserted his

lulli (penis) at his anus or anus of his brother i.e. PW1/victim J.

PW3 i.e. the respondent no. 2/complainant although turned hostile

but admitted her signature at point A on the complaint Ex.PW3/A

which is genesis of registration of present FIR. PW3/complainant

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 29 16:16:47 admitted that both the victims J and A were taken to LBS Hospital on

24.06.2015 by the police for medical examination and on 30.06.2015

she along with both the victims came to Karkardooma Courts and the

statements of both the victims were recorded by a Judge. The

testimony of PW2/victim A also finds support from testimony of

PW9 Dr. Ashok Sagar who on 26.06.2015 examined both the victims

with the alleged history of sodomy and after examination opined that

possibility of sodomy/anal intercourse by erect penis of adult or any

structure resembling it, cannot be ruled out. PW2/victim A also in

statement under section 164 of the Code also supported prosecution.

The Potency Report Ex.P4 pertaining to the appellant also reflects

that the appellant was capable of sexual intercourse. The part

testimony of PW2/victim A if analysed with quality and quantity of

evidence led by the prosecution inspires confidence and can be safely

relied on being trustworthy and credible. Mere fact that PW2/victim

A did not support prosecution and PW1/victim J and

PW3/complainant also turned hostile does not affect credibility of

part testimony of PW2/victim A. The legal system has laid emphasis

on value, weight and quality of evidence rather than on quantity,

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 30 16:16:47 multiplicity or plurality of witnesses. The test is whether the evidence

has a ring of truth, is cogent, credible and trustworthy or otherwise.

The Supreme Court in Kuna @ Sanjaya Behera V State of Odisha,

(2018) 1 SCC 296 observed that the conviction can be based on the

testimony of single eye witness if he or she passes the test of

reliability and that is not the number of witnesses but the quality of

evidence that is important. There is no legal force in arguments

advanced by the counsel for the appellant that the testimony of

PW2/victim A cannot be read into evidence as PW2/victim A did not

support case of the prosecution and further PW1/victim J and

PW3/the complainant also turned hostile. The courts should analyse

and appreciate evidence either prosecution or defence with care,

caution and lot of sensitivity in cases related to sexual exploitation of

the children. The evidence of the victim cannot be discarded merely

due to reason that he or she has not supported prosecution and other

witnesses turned hostile. It is solemn duty of the court to find out

truth which is founding stone of justice, after proper valuation and

appreciation of evidence and other material proved on record during

trial or otherwise. The evidence led by the prosecution proved

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 31 16:16:47 beyond reasonable doubt that the appellant subjected PW2/victim A

sodomy on 22.06.2015 and prior to this. The trial court has rightly

relied on the testimony of PW2/victim A in establishing guilt of the

appellant.

11. The statement under section 313 of the Code is not a

substantive piece of evidence. Section 313 of the Code ensures

principle of natural justice to the accused. It empowers the court to

examine the accused with the purpose to enable the accused to

explain incriminating circumstances in the prosecution evidence. The

Supreme Court in Samsul Haque V State of Assam, (2019) 18 SCC

161 held that the incriminating material is to be put to the

accused so that the accused gets a fair chance to defend him.

This is in recognition of the principles of audi alteram partem.

The Supreme Court in Reena Hazarika V State of Assam, (2019)

13 SCC 289 observed that a solemn duty is cast on the court in the

dispensation of justice to adequately consider the defence of the

accused taken under section 313 of the Code and to either accept or

reject the same for reasons specified in writing. It was also held that

section 313 of the Code cannot be seen simply as a part of audi

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 32 16:16:47 alteram partem rather it confers a valuable right upon an accused to

establish his innocence. The appellant in statement recorded under

section 313 of the Code in his defence stated that he and his wife i.e.

the respondent no. 2/complainant used to quarrel and the respondent

no. 2 due to this reason had lodged complaint in P.S. Kalyanpuri. The

respondent no. 2 has falsely implicated him by lodging false

complaint against him through the victims. The appellant also led the

defence evidence and examined his mother Sat Kaur as DW1 who

primarily deposed that the appellant was implicated due to quarrel

with the respondent no. 2 and the appellant is innocent. PW3 i.e. the

respondent no. 2/complainant also deposed that the appellant used to

give beatings to her and both the victims and thereafter present FIR

was got registered with help of an NGO by the police. The defence

taken by the appellant is considered in right perspective. The defence

so taken by the appellant is appearing to be false, sham and without

any basis and does not inspire any confidence.

12. The Trial Court has rightly held that the prosecution has

proved beyond reasonable doubt that the appellant has committed the

offence of penetrative sexual assault as defined in section (3)(a) of

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 33 16:16:47 POCSO Act upon PW2/victim A and said penetrative sexual assault

becomes aggravated penetrative sexual assault within section 5(m)

(n) of POCSO Act as PW2/victim A who is son of the appellant was

less than 12 years of age at the relevant time. However, the

prosecution has failed to prove that the appellant has committed the

offence of penetrative sexual assault upon PW1/victim J. The

arguments advanced by the counsel for the appellant and grounds of

appeal are considered and analysed in right perspective but these are

without any legal or factual force and cannot be accepted. The trial

court rightly held the appellant guilty and convicted him for the

offence punishable under section 6 of POCSO Act and under section

377 IPC. The impugned judgment passed by the trial court is well

reasoned and was passed after considering relevant facts proved on

record. There is no reason to interfere in impugned judgment. Hence,

the present appeal is dismissed.

13. The Trial Court vide order on sentence dated 10.05.2023

sentenced the appellant to undergo rigorous imprisonment for 10

years along with fine of Rs. 10,000/- and in default of payment of

fine, to undergo rigorous imprisonment for the period of six months

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 34 16:16:47 for the offence punishable under section 6 of the POCSO Act. The

trial court also observed that the appellant has been sentenced under

section 6 of the POCSO Act so, in terms of section 71 IPC, separate

sentence under section 377 IPC is not required to be passed. The

appellant has not paid the fine.

13.1 The counsel for the appellant submitted that the appellant is

married and belongs to lower strata of the society. The financial

condition of family of the appellant is very poor and the appellant

used to earn livelihood for the family as the appellant was working as

labourer. The counsel for the appellant prayed for lenient approach of

the court in the sentence of the appellant.

13.1.1 The Additional Public Prosecutor for the respondent

no.1/State argued that the appellant has committed heinous act of

sodomy with his own minor son who was just aged about 4 years on

the date of commission of offence. The appellant must be awarded

adequate punishment so that it may act as a deterrent for other

impending offenders.

14. The Child Sexual Abuse is a serious issue/problem being

pervasive and disturbing and large numbers of children are being

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 35 16:16:47 subjected to physical, emotional, and sexual abuse. The Child Sexual

Abuse deserves adequate attention of every stake holder directly or

indirectly connected with administration of justice and judicial

process. It requires to be addressed with lot of sensitivity and

sensibility. It is the solemn duty of the court to award adequate

punishment to the person accused of Child Sexual Abuse irrespective

of his social, economic background or other domestic

responsibilities. The Protection of Children from Sexual Offences

Act, 2012 was enacted to protect children from offences of sexual

assault, sexual harassment and pornography and to provide for

establishment of Special Courts for trial of such offences. The

preamble of the POCSO Act also reflects that the Government of

India has acceded on 11.12.1992 to the Convention on the Rights of

the Child, adopted by the General Assembly of the United Nations,

which has prescribed a set of standards to be followed by all State

parties in securing the best interests of the child. The POCSO Act

considered sexual exploitation and sexual abuse of children as

heinous crimes which need to be effectively addressed.

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 36 16:16:47

15. In the present case, the appellant being the biological father of

PW2/victim A was under social, family, moral duty to protect

PW2/victim A but the appellant had sexually exploited PW2/victim

A on various occasions. The crime committed by the appellant cannot

be taken lightly. It is a crime not only against the individual but

against the fabric of the society and family.

16. Sentencing has significant role to play in the future prevention

of crime. One of the prime objectives of the criminal law is

imposition of an appropriate, adequate, just and proportionate

sentence commensurate with the nature and gravity of the crime and

the manner in which the crime is executed. The Supreme Court in

Deo Narain Mandal V State of UP, (2004) 7 SCC 257 opined that

sentence should not be either excessively harsh or ridiculously low

and while determining the quantum of sentence, the court should bear

in mind the principle of proportionality. It was further observed that

gravity of offence, manner of commission of crime, age and sex of

accused should be taken into account. The Supreme Court in State of

MP V Najab Khan and Others, (2013) 9 SCC 509 observed as

under :-

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16. ...in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment.

16.1 The Supreme Court in Shyam Narain V State (NCT of

Delhi), (2013) 7 SCC 77 observed that the fundamental purpose of

imposition of sentence is based on the principle that the accused must

realize that the crime committed by him has not only created a dent in

the life of the victim but also a concavity in the social fabric. The

purpose of a just punishment is that the society may not suffer again

by such crime.

17. The trial court while awarding punishment to the appellant

observed that the aim of the punishment is the protection of the

society and is cherished while imposing sentences upon the guilty.

The trial court referred Shailesh Jasvantbhai and Another V State

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:03.11.2023 CRL.A. 612/2023 Page 38 16:16:47 of Gujarat and Others, (2006) 2 SCC 359 wherein the Supreme

Court opined that protection of the society and stamping out criminal

proclivity must be the object of law which must be achieved by

imposing appropriate sentences. The trial court also observed and

considered that the child victim was aged 4 years at the time of

incident when the appellant sexually assaulted him. The trial court

has already taken lenient view against the appellant and there is no

reason to interfere in the punishment awarded to the appellant.

18. The present appeal is accordingly dismissed and pending

applications, if any, also stand disposed of.

19. A copy of this judgment be sent to trial court for information

and be also sent to the appellant through concerned Jail

Superintendent.