Uttarakhand High Court
Mukesh Kumar Sahgal vs State Of Uttarakhand on 8 October, 2025
Reserved on: 03.09.2025
Delivered on: 08.10.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 355 of 2018
Mukesh Kumar Sahgal ..............Appellant
Vs.
State of Uttarakhand ............... Respondent
Present : Ms. Prabha Naithani, Advocate for the appellant.
Ms. Manisha Rana Singh, Deputy Advocate General for the State.
With
Criminal Appeal No. 360 of 2018
Daya Shelakoti ..............Appellant
Vs.
State of Uttarakhand ............... Respondent
Present : Mr. Aditya Singh, Advocate for the appellant.
Ms. Manisha Rana Singh, Deputy Advocate General for the State.
JUDGMENT
Corum: Hon'ble Ravindra Maithani, J.
Hon'ble Alok Mahra, J.
Per: Hon'ble Ravindra Maithani, J.
Since both these appeals arise from a common
judgment and order, they are being heard and decided together.
2. These appeals have been preferred against the
judgment and order dated 16.10.2018, passed in Special Sessions
Trial No.23 of 2018, State vs. Mukesh Kumar Sahgal and another,
by the court of Special Judge (POCSO), Almora. By the impugned
judgment and order, the appellant Mukesh Kumar Sahgal has been
convicted under Sections 354-A and 376(2) IPC and Section 5 r/w 6
of the Protection of Children from Sexual Offences Act, 2012 ("the
POCSO Act"). But, in view of Section 42 of the POCSO Act, the
appellant Mukesh Kumar Sahgal has been sentenced under Section
376(2) IPC to imprisonment for life, which means imprisonment for
the remainder of the convicts' natural life with a fine of Rs.50,000/-
. The appellant Mukesh Kumar Sahgal has further been convicted
under Section 67A of the Information Technology Act, 2000 (I.T.
Act) and sentenced to five years imprisonment along with a fine of
Rs.50,000/-. The appellant Daya Shelakoti has been convicted
under Section 323, 504 IPC and under Section 21(2) of the POCSO
Act. She has been sentenced as below:-
(i) Under Section 323 IPC, one year rigorous
imprisonment with Rs.1000/- fine.
(ii) Under Section 504 IPC, two years rigorous
imprisonment with Rs.10,000/- fine.
(iii) Under Section 21(2) of the POCSO Act rigorous
imprisonment for one year with Rs.10,000/- fine.
FACTS
3. The prosecution case briefly stated is as follows:-
(i) The victim, a girl aged 09 years was studying in a
Primary School, where the appellant Mukesh Kumar
Sahgal was Teacher and the appellant Daya
Shelakoti was Head Mistress.
(ii) In the month of February - March, 2018, the
appellant Mukesh Kumar Sahgal, on multiple
occasions took the victim in his lap and showed her
obscene film and asked the victim to hold his penis
and masturbate until discharge.
(iii) The appellant Mukesh Kumar Sahgal also rubbed his
body against the body of the victim; fondle with the
vagina of the victim. He assured her that he will pass
her in the examination with good numbers and also
threatened her that, in case, she reveals the incident
to anyone, he would rusticate her, due to it, the
victim got scared and started making excuses for not
going to school.
(iv) When the mother of the victim PW3 went to school
on 19.03.2018, there the appellants had beaten up
the victim with nettle leaves and asked her to speak
the truth. The victim then, revealed the entire
incident, stating that she was sexually assaulted.
But, according to the FIR, thereafter, both these
appellants abused the victim and shoved her out
from the school. The mother of the victim PW3
returned to her home, her husband suffered shock
on learning of the incident and expired on
13.04.2018. Thereafter, a report of the incident was
lodged on 21.04.2018 by PW2, the uncle of the
victim.
(v) The victim was medically examined on 23.04.2018.
She narrated the same story to the doctor. According
to the Supplementary Medical Report of Pathological
Examination, "Semen" was not detected in any of
those items sent for examination. On 25.04.2018,
statement of the victim under Section 164 of the
Code of Criminal Procedure, 1973 ("the Code") was
recorded.
(vi) According to the prosecution, PW9 Amit Kumar, the
brother-in-law of the appellant Mukesh Kumar
Sahgal had handed over the mobile phones of the
appellant Mukesh Kumar Sahgal to police, therefore,
recovery memo was prepared and it was sent for
forensic examination. The Forensic Examination
Report revealed that there were three obscene images
in the mobile. After investigation, charge-sheet was
submitted against the appellants.
4. On 10.07.2018, charge under Sections 354A, 376(2),
504 IPC and Sections 5 r/w 6 of the POCSO Act and Section 67-A
of the I.T. Act were framed against the appellant Mukesh Kumar
Sahgal.
5. Charges under Sections 323, 504 IPC and Section 21(2)
of the POCSO Act were framed against the appellant Daya
Shelakoti. Both the appellants denied the charge and claimed trial.
6. In order to prove its case, the prosecution examined 11
witnesses, namely, PW1, the victim, PW2 uncle of the victim, PW3
mother of the victim, PW4 aunt of the victim, PW5 Constable
Laxman Singh, PW6 Dr. Hema Rawat, PW7 Constable Vinod
Maurya, PW8 Constable Virendra Bisht, PW9 Amit Kumar, PW10
Bhupal Ram Pori, PW11 Inspector Narayan Singh.
7. After the prosecution examination, the appellants were
examined under Section 313 of the Code. According to the
appellant Mukesh Kumar Sahgal, he has been falsely implicated;
his mobile was not sent for forensic examination. According to him,
the victim did not come to school. On 06.04.2018, the mother of the
victim had got admitted her son in his school; the appellant never
committed any wrong. He further asserts that the victim was weak
in studies. She would defecate in the school, for which she was
scolded once or twice.
8. The appellant Daya Shelakoti has also denied the
prosecution evidence. According to her, she has been falsely
implicated; she tells that on 20.04.2018 at 09:30 late in the
evening, PW2, the uncle of the victim and PW3 the mother of the
victim reached her house and requested her to give evidence
against the appellant Mukesh Kumar Sahgal. This appellant told
that she did not receive any oral and written complaint in this
regard. Thereafter, she was threatened, to speak against the
appellant Mukesh Kumar Sahgal and when this witness denied,
she was threatened to face the consequences.
9. In his Defence, the appellant Mukesh Kumar Sahgal
examined DW1 Nasir Alam Qureshi.
10. Before, the arguments are appreciated it would be apt
to examine as to what the witnesses have stated.
EVIDENCE
11. PW1 is the victim; she was examined on 24.07.2018;
according to her, her age was 10 years. The court put some
questions to her, and after being satisfied with her level of
understanding, she was administered oath. In her statement PW1
tells that in her school, the appellants were teachers; she identified
both of the appellant. She further told that the appellant Mukesh
Kumar Sahgal would give his penis in her hands and asked her to
masturbate; he would also open his pant and remove the clothes of
the victim and would touch his penis in her vagina, until discharge.
PW1, the victim has also stated that the appellant Mukesh Kumar
Sahgal would show her 'Gandi Chiz' (bad things) on his mobile
phone; the nude photographs were there in the mobile. The
appellant Mukesh Kumar Sahgal would also make the victim girl
lay on the ground; fondle her and would lay over her and would
touch his penis in her vagina. This witness has identified the
mobile phone, on which according to her, the appellant Mukesh
Kumar Sahgal would show her the obscene photographs. This
incident was revealed by the victim to her parents and uncle. She
proved her statement recorded under Section 164 of the Code.
According to her, she had also visited the hospital, where her
examination was done. She has also proved the medical
examination report.
12. According to PW1, the victim, she has visited her school
along with the police; she identified her signatures and Ext. A-3, the
site plan. She had indicated the place where the incident took place
with her. According to the victim, Madam had applied nettle leaves to
her.
13. PW3 is the mother of the victim; PW4 is the aunt of the
victim. Both have supported the statement of the victim in their
examinations.
14. According to PW3, the incident took place sometime
near Holi in the year 2018. One day the victim returned from school
crying. When questioned, she revealed that the appellant Mukesh
Kumar Sahgal touched his penis to her vagina and both the
appellants had applied nettle leaves to her and threatened her.
According to this witness, she revealed it to her sister-in-law PW4
and her brother-in-law PW2; she also went to the school and
questioned both these appellants. They said that nothing was done
with the victim; the appellant Daya Shelakoti also told that the girl
should be removed from the school. The mother of the victim
further states that after this incident her husband went in shock
and he died. Thereafter, she informed her brother-in-law, who
lodged the FIR.
15. PW2, the uncle of the victim has also supported the
statement of the victim. According to him, on information having
been received, he returned to his village. He lodged the FIR Ext. A-
4. He has also stated about the medical of the victim. According to
him, the victim was examined under Section 164 of the Code. He
also accompanied the victim on that date.
16. PW5 Constable Laxman Singh has lodged Chik FIR and
made an entry in the General Diary. He has proved those
documents.
17. PW6 Dr. Hema Rawat did conduct medical examination
of the victim on 23.04.2018. She did not find any abnormalities in
the internal-external examination. She has proved her medical
report. According to PW6 Dr. Hema Rawat, the victim had revealed
to her that she was studying in Class IV in the Primary School
when, after Diwali, the teacher asked the victim to hold his penis;
he untied her Nara and touched his penis to her vagina, due to
which, the victim felt pain. Thereafter, she was afflicted with nettle
leaves and danda; it happened for a week and also a day prior to
Holi. he was demanding Rs.1000/- from the victim; the victim does
not know its reason; the victim did not reveal this act to anyone.
The victim also revealed that the appellant had scratched on her
cheeks.
18. PW7 Constable Vinod Maurya was working as a Police
Officer in Almora in the year 2018. According to him, on
12.05.2018, one Amit Kumar introducing himself as the brother-in-
law of appellant Mukesh Kumar Sahgal, came and gave two mobile
phones to him saying that these belong to the appellant Mukesh
Kumar Sahgal. He has proved those mobile phones, when placed
before the court.
19. PW8 Constable Virendra Bisht took the samples for
Forensic Science Laboratory. In fact, mobile phones as well as
samples were sent for Forensic Examination. This witness has
stated, as to how and when he reached at the Forensic Science
Laboratory to deposit the samples.
20. PW9 Amit Kumar has not supported the prosecution
case. In fact, according to the prosecution, he was the person, who
had handed over the mobile phones of the appellant Mukesh
Kumar Sahgal to the police.
21. PW10 Bhopal Ram Pori, initially conducted
investigation, but when remand under Section 67 of the I.T. Act
was ordered, the investigation was transferred. It was conducted
thereafter by PW11, Narayan Singh.
22. PW11, Narayan Singh has stated about the steps that
have been taken during investigation. He has submitted the charge-
sheet Ext. A-23 in the case.
23. DW1 Naseer Alam Qureshi has been examined by the
appellant Mukesh Kumar Sahgal. According to DW1 Naseer Alam
Qureshi, he was In-charge principal of the school, where the victim
was studying and where earlier, the appellants were posted.
According to him, the victim did attend the school till 31.03.2018,
when she was promoted. Thereafter, the attendance is noticed for
2nd April, 6th April and 27th April, 2018. This witness also tells that
the younger brother of the victim was also admitted in the same
school on 06.04.2018. It is important to note that according to DW1
the President School Management Committee had told it to him
that the appellant Mukesh Kumar Sahgal had done indecent
behavior with the victim.
ARGUMENTS AND ANALYSIS
Re-Appellant Mukesh Kumar Sahgal
24. Learned counsel for the appellant Mukesh Kumar
Sahgal submits that the prosecution case is false; the appellants
have been falsely implicated in the case; the prosecution failed to
prove the case beyond reasonable doubt. She has raised the
following points in her submissions:-
(i) At the stage of Section 164 of the Code, when the victim
was examined, she was not capable to understand
Hindi; she was speaking in Kumaoni language.
Therefore, a Translator was appointed for recording her
examination. The Magistrate did not satisfy himself, as
to whether the victim has been able to understand the
questions and reply their answers; her level of
understanding has not been examined. Hence, the
statement under Section 164 of the Code is bad for
these reasons.
(ii) If the victim was not conversant with the language of
the court, as per provision of Section 277 of the Code,
whatever she has stated ought to have been written
and, thereafter, its translation should have been
recorded. But, it was not so done. Therefore, this
statement is not admissible evidence.
25. In support of her contention, learned counsel has
placed reliance on the principle of law, as laid down in the case of
Naim Ahamed Vs. State (NCT of Delhi), (2023)15, SCC 385; Agniraj
and others Vs. State through Deputy Superintendent of Police CB-
CID, 2025 SCC OnLine SC 1203; Dagdu and others Vs. State of
Maharashtra & connected cases, (1977)3 SCC 68; Shivappa Vs.
State of Karnataka, (1995)2 SCC 76
26. In the case of Naim Ahamed, the Hon'ble Supreme
Court discussed the provisions of Section 277 of the Code and
observed as follows:-
"26. The evidence of the witness has to be recorded in the
language of the court or in the language of the witness as may be
practicable and then get it translated in the language of the court
for forming part of the record. However, recording of evidence of
the witness in the translated form in English language only,
though the witness gives evidence in the language of the court, or
in his/her own vernacular language, is not permissible. As such,
the text and tenor of the evidence and the demeanour of a witness
in the court could be appreciated in the best manner only when
the evidence is recorded in the language of the witness. Even
otherwise, when a question arises as to what exactly the witness
had stated in his/her evidence, it is the original deposition of the
witness which has to be taken into account and not the translated
memorandum in English prepared by the Presiding Judge. It is
therefore directed that all courts while recording the evidence of
the witnesses, shall duly comply with the provisions of Section
277CrPC."
27. In the case of Agniraj (supra), the Hon'ble Supreme
Court observed, "The Court must be satisfied about the capacity
of the minor to understand the questions and answer the
same........ However, preliminary questions were not put to the
witness. The Court did not ask any question to the witness to
ascertain whether she understands the importance of an oath.
Without satisfying himself that the witness understands the
importance of an oath, the learned Trial Judge administered
oath to her. It is very well known that child witnesses are
susceptible to tutoring and therefore, not asking preliminary
questions to the minor witness makes her evidence very
vulnerable."
28. In the case of Dagdu (supra), the Hon'ble Supreme
Court has discussed the confessional statement of an accused and
held that, "If the facts and circumstances surrounding the
making of a confession appear to cast a doubt on the veracity
or voluntariness of the confession, the Court may refuse to act
upon the confession even if it is admissible in evidence."
29. In the case of Shivappa (supra) also, the principle is
laid down with regard to voluntariness of confession made under
Section 164 of Code.
30. In the instant case, what is being argued is with regard
to the capacity and language of the victim while recording her
statement under Section 164 of the Code. Not about the confession
of any accused.
31. Learned State Counsel submits that the statement of
the victim was recorded under Section 164 of the Code with the
help of a Translator. She submits that the mere fact that the victim
was not questioned about her capacity will not render her
statement recorded under Section 164 of the Code as inadmissible
evidence.
32. In support of her contention, learned State Counsel
relied on the principle of law as laid down in the case of State of
Madhya Pradesh Vs. Balveer Singh, 2025 SCC OnLine SC 390.
33. In the case of Balveer Singh (supra), the Hon'ble
Supreme Court summed up the principle on this aspect in para 58
and observed as follows:-
"58. We summarize our conclusion as under:--
(I) The Evidence Act does not prescribe any minimum age for a
witness, and as such a child witness is a competent witness and his
or her evidence and cannot be rejected outrightly.
(II) As per Section 118 of the Evidence Act, before the evidence of
the child witness is recorded, a preliminary examination must be
conducted by the Trial Court to ascertain if the child-witness is
capable of understanding sanctity of giving evidence and the import
of the questions that are being put to him.
(III) Before the evidence of the child witness is recorded, the Trial
Court must record its opinion and satisfaction that the child
witness understands the duty of speaking the truth and must
clearly state why he is of such opinion.
(IV) The questions put to the child in the course of the preliminary
examination and the demeanour of the child and their ability to
respond to questions coherently and rationally must be recorded by
the Trial Court. The correctness of the opinion formed by the Trial
Court as to why it is satisfied that the child witness was capable of
giving evidence may be gone into by the appellate court by either
scrutinizing the preliminary examination conducted by the Trial
Court, or from the testimony of the child witness or the demeanour
of the child during the deposition and cross-examination as
recorded by the Trial Court.
(V) The testimony of a child witness who is found to be competent to
depose i.e., capable of understanding the questions put to it and
able to give coherent and rational answers would be admissible in
evidence.
(VI) The Trial Court must also record the demeanour of the child
witness during the course of its deposition and cross-examination
and whether the evidence of such child witness is his voluntary
expression and not borne out of the influence of others.
(VII) There is no requirement or condition that the evidence of a
child witness must be corroborated before it can be considered. A
child witness who exhibits the demeanour of any other competent
witness and whose evidence inspires confidence can be relied upon
without any need for corroboration and can form the sole basis for
conviction. If the evidence of the child explains the relevant events
of the crime without improvements or embellishments, the same
does not require any corroboration whatsoever.
(VIII) Corroboration of the evidence of the child witness may be
insisted upon by the courts as measure of caution and prudence
where the evidence of the child is found to be either tutored or
riddled with material discrepancies or contradictions. There is no
hard and fast rule when such corroboration would be desirous or
required, and would depend upon the peculiar facts and
circumstances of each case.
(IX) Child witnesses are considered as dangerous witnesses as they
are pliable and liable to be influenced easily, shaped and moulded
and as such the courts must rule out the possibility of tutoring. If
the courts after a careful scrutiny, find that there is neither any
tutoring nor any attempt to use the child witness for ulterior
purposes by the prosecution, then the courts must rely on the
confidence-inspiring testimony of such a witness in determining the
guilt or innocence of the accused. In the absence of any allegations
by the accused in this regard, an inference as to whether the child
has been tutored or not, can be drawn from the contents of his
deposition.
(X) The evidence of a child witness is considered tutored if their
testimony is shaped or influenced at the instance of someone else or
is otherwise fabricated. Where there has been any tutoring of a
witness, the same may possibly produce two broad effects in their
testimony; (i) improvisation or (ii) fabrication.
(i) Improvisation in testimony whereby facts have been altered or
new details are added inconsistent with the version of events not
previously stated must be eradicated by first confronting the witness
with that part of its previous statement that omits or contradicts the
improvisation by bringing it to its notice and giving the witness an
opportunity to either admit or deny the omission or contradiction. If
such omission or contradiction is admitted there is no further need
to prove the contradiction. If the witness denies the omission or
contradiction the same has to be proved in the deposition of the
investigating officer by proving that part of police statement of the
witness in question. Only thereafter, may the improvisation be
discarded from evidence or such omission or contradiction be relied
upon as evidence in terms of Section 11 of Evidence Act.
(ii) Whereas the evidence of a child witness which is alleged to be
doctored or tutored in toto, then such evidence may be discarded as
unreliable only if the presence of the following two factors have to be
established being as under:--
• Opportunity of Tutoring of the Child Witness in
question whereby certain foundational facts suggesting or
demonstrating the probability that a part of the testimony of the
witness might have been tutored have to be established. This may
be done either by showing that there was a delay in recording the
statement of such witness or that the presence of such witness was
doubtful, or by imputing any motive on the part of such witness to
depose falsely, or the susceptibility of such witness in falling prey to
tutoring. However, a mere bald assertion that there is a possibility
of the witness in question being tutored is not sufficient.
• Reasonable likelihood of tutoring wherein the foundational facts
suggesting a possibility of tutoring as established have to be further
proven or cogently substantiated. This may be done by leading
evidence to prove a strong and palpable motive to depose falsely, or
by establishing that the delay in recording the statement is not only
unexplained but indicative and suggestive of some unfair practice or
by proving that the witness fell prey to tutoring and was influenced
by someone else either by cross-examining such witness at length
that leads to either material discrepancies or contradictions, or
exposes a doubtful demeanour of such witness rife with sterile
repetition and confidence lacking testimony, or through such degree
of incompatibility of the version of the witness with the other
material on record and attending circumstances that negates their
presence as unnatural.
(XI) Merely because a child witness is found to be repeating certain
parts of what somebody asked her to say is no reason to discard her
testimony as tutored, if it is found that what is in substance being
deposed by the child witness is something that he or she had
actually witnessed. A child witness who has withstood his or her
cross-examination at length and able to describe the scenario
implicating the accused in detail as the author of crime, then minor
discrepancies or parts of coached deposition that have crept in will
not by itself affect the credibility of such child witness.
(XII) Part of the statement of a child witness, even if tutored, can be
relied upon, if the tutored part can be separated from the untutored
part, in case such remaining untutored or untainted part inspires
confidence. The untutored part of the evidence of the child witness
can be believed and taken into consideration or the purpose of
corroboration as in the case of a hostile witness."
34. The capacity of a child witness is ascertained by
putting questions to him so as to ensure that the child is capable of
understanding the questions and gives their answers. This is called
the "Voir Dire" test. There is another aspect, as to whether the child
is able to understand the meaning of oath or not.
35. The Hon'ble Supreme Court in the case of State of
Madhya Pradesh Vs. Ramesh and another, (2011)4 SCC, 786, held
that in case, such questions have not been put to a child witness
the capacity, etc. may be gathered from the evidence of the child. In
para 11 of the judgment, the Hon'ble Supreme Court observed as
follows:-
"11. The evidence of a child must reveal that he was able to
discern between right and wrong and the court may find out from
the cross-examination whether the defence lawyer could bring
anything to indicate that the child could not differentiate between
right and wrong. The court may ascertain his suitability as a
witness by putting questions to him and even if no such
questions had been put, it may be gathered from his evidence
as to whether he fully understood the implications of what he
was saying and whether he stood discredited in facing a stiff
cross-examination. A child witness must be able to understand
the sanctity of giving evidence on oath and the import of the
questions that were being put to him. (Vide Himmat Sukhadeo
Wahurwagh v. State of Maharashtra (2009) 6 SCC 712 : (2009) 3
SCC (Cri) 1 : AIR 2009 SC 2292.)"
(emphasis supplied)
36. In the instant case, the victim was not questioned at
the stage of recording the statement under Section 164 of the Code,
which is evident from her statement Ext. A-1. The "Voir Dire" test
has not been undertaken. It is another fact that she has not been
administered oath on that date. But, the way she answered the
questions, makes it clear that she was capable to answer the
questions. The statement of the victim makes it abundantly explicit
that she fully understood what she was saying; her statement is
cohesive and in chronology. Mere non-putting any question to her
to appreciate her capacity as a witness, under the facts and
circumstances of this case, does not make the statement of the
victim recorded under Section 164 of the Code inadmissible.
37. There is another objection to recording of the statement
under Section 164 of the Code on behalf of the appellant Mukesh
Kumar Sahgal on the ground that what the victim has actually
stated has not been taken down in that language, in which, she
spoke. It is argued that it vitiates the entire trial.
38. Section 277 of the Code makes provision with regard to
language of court recording of evidence. It reads as follows:-
277. Language of record of evidence.--In every case where
evidence is taken down under section 275 or 276,--
(a) if the witness gives evidence in the language of the Court, it
shall be taken down in that language;
(b) if he gives evidence in any other language, it may, if practicable,
be taken down in that language, and if it is not practicable to do
so, a true translation of the evidence in the language of the Court
shall be prepared as the examination of the witness proceeds,
signed by the Magistrate or presiding Judge, and shall form part of
the record;
(c) where under clause (b) evidence is taken down in a language
other than the language of the Court, a true translation thereof in
the language of the Court shall be prepared as soon as practicable,
signed by the Magistrate or presiding Judge, and shall form part of
the record:
Provided that when under clause (b) evidence is taken down in
English and a translation thereof in the language of the Court is
not required by any of the parties, the Court may dispense with
such translation.
39. A bare reading of clause (b) of Section 277 of the Code
makes it abundantly clear that in case, a witness gives evidence in
any other language, it may, if practicable, be taken down in that
language, and if it is not practicable to do so, a true translation of
the evidence in the language of the court shall be prepared as the
examination of the witness proceeds, signed by the Magistrate or
presiding Judge, and shall form part of the record.
40. The language of the court in the instant case is Hindi.
Before this aspect is examined at this stage only, it may be noted
that the victim was examined under Section 164 of the Code on
25.04.2018 and she was examined in the court on 24.07.2018. On
24.07.2018, she gave her deposition in the language of the court
i.e. in Hindi. There is a difference of almost three months between
recording the statement of the victim under Section 164 of the Code
and recording of the statement in the court during trial. It may also
be noted that the script of Kumaoni language and Hindi language is
one and the same. The examination of the victim at the stage of
Section 164 of the Code was done with the help of counsel from
Nirbhaya Cell. It's a trial under the POCSO Act also and Section 38
of the POCSO Act permits assistance of Translator or Interpreter. It
is a known fact that generally, in this part of hills Kumaoni
language is spoken. The victim was not administered oath, but
advocate Abhilasha Tiwari of Nirbhaya Cell was administered oath.
After recording the statement, a certificate was given that whatever
translation was done by the Translator that has been recorded and
the Presiding Officer records that the statement of the victim is
voluntary and the correct statement has been recorded. It is to be
noted that after this certificate and after examination of the victim
the Presiding Officer and the counsel from Nirbhaya Cell had signed
it and it was also marked with the thumb impression of the victim.
41. In the matters of translation, in the case of Bakhshish
Singh Vs. State of Punjab, 1957 SCC OnLine SC 125, the dying
declaration was given in Punjabi, but it was recorded by the Police
in Urdu, the Hon'ble Supreme Court did not find any fault in it. In
para 5 the Hon'ble Supreme Court observed as follows:-
"5. Another reason given by the Additional Sessions Judge for
rejecting the dying declaration was that the deceased gave the
narrative of events in Punjabi and the statement was taken down
in Urdu. In the Punjab that is how the dying declarations are
taken down and that has been so ever since the courts were
established and Judicial Authority has never held that to be an
infirmity in dying declarations making them inefficacious. As a
matter of fact in the Punjab the language used in the subordinate
courts and that employed by the police for recording of statements
has always been Urdu and the recording of the dying declaration
in Urdu cannot be a ground for saying that the statement does not
correctly reproduce what was stated by the declarant. This, in our
opinion was a wholly inadequate reason for rejecting the dying
declaration."
42. In the case of Chander Singh Vs. The State Govt. of
NCT of Delhi, 2018 SCC OnLine Delhi, 10057, a dying declaration
which was not recorded in verbatim came for discussion before the
Hon'ble Delhi High Court. Referring to the judgment in the case of
Bakhshish Singh (supra), the Hon'ble Delhi High Court in para 28
has observed as below:-
"28. Thus, the statement/declaration recorded by the
police/Magistrate, which may ultimately turn out to be a dying
declaration, may be recorded by the person recording the same "in
his own way". There is no prescription that the same has to be
verbatim, or that, apart from or other than the verbatim
statement, the person recording the statement/declaration cannot
record the gist, or some part of the statement in a manner in
which the person concerned-such as a police officer, may be used
to recording statements generally. As noticed in Bakhshish
Singh (supra), the statement may even be recorded in a different
language than the one in which it is made. This exercise would
necessarily entail use of vocabulary in the transcription of the
statement, which may not have been used by the maker of the
statement. What is essential is that the statement is honestly and
accurately recorded, capturing the true meaning and the purport
of it."
43. There is not much difference between Hindi language
and Kumaoni language. The court recorded the statement of the
victim with the help of an advocate of Nirbhaya Cell. Merely
because the verbatim of the statement of the victim has not been
recorded under the facts and circumstances of the case, does not
render the statement of the victim under Section 164 of the Code
inadmissible. The statement was translated and the Translator was
administered oath. The Translator, the victim and the Presiding
Officer have signed the statement. Therefore, whatever arguments
have been made on this aspect have less force for acceptance.
44. Learned counsel for the appellant Mukesh Kumar
Sahgal has further submitted that the FIR is much delayed which
casts doubt on the prosecution evidence. She would submit that in
the medical report the time of incident is recorded as "since
November, 2017", but the report was lodged on 21.04.2018, which
creates doubt on the prosecution case.
45. In support of her contention learned counsel for the
appellant Mukesh Kumar Sahgal has relied on the principle of law,
as laid down in the case of Thulia Kali Vs. State of Tamil Nadu,
(1972)3 SCC 393 to argue that delayed cast doubt on the
prosecution case. In the case of Thulia Kali (supra) inter alia
observed that, "First information report in a criminal case is an
extremely vital and valuable piece of evidence for the purpose
of corroborating the oral evidence adduced at the trial. The
importance of the above report can hardly be overestimated
from the standpoint of the accused. The object of insisting
upon prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information
regarding the circumstances in which the crime was
committed, the names of the actual culprits and the part
played by them as well as the names of eyewitnesses present at
the scene of occurrence. Delay in lodging the first information
report quite often results in embellishment which is a creature
of afterthought. On account of delay, the report not only gets
bereft of the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account or
concocted story as a result of deliberation and consultation. It
is, therefore, essential that the delay in the lodging of the first
information report should be satisfactorily explained."
46. On the other hand, learned State Counsel would
submit that it is a case pertaining to sexual assault on a young girl
child in a school. This is an offence committed by a teacher on a
young girl, delay in such matters is immaterial. In support of her
contention, she relied upon the principle of law as laid down in the
case of State of Himachal Pradesh Vs. Prem Singh, (2009)1 SCC,
420.
47. In the case of Prem Singh (supra), the allegations were
on a teacher of sexually ravishing a girl student of the school. The
question of delay in lodging the FIR was raised. The Hon'ble
Supreme Court observed that delay in lodging the FIR in such
cases of sexual assault on young child cannot be equated with the
case of any other offence. In para 6 of the judgment Hon'ble
Supreme Court observed as follows:-
"6. So far as the delay in lodging the FIR is concerned, the
delay in a case of sexual assault, cannot be equated with the case
involving other offences. There are several factors which weigh in
the mind of the prosecutrix and her family members before coming
to the police station to lodge a complaint. In a tradition-bound
society prevalent in India, more particularly rural areas, it would
be quite unsafe to throw out the prosecution case merely on the
ground that there is some delay in lodging the FIR. In that score,
learned counsel for the appellant is right that the High Court has
lost sight of this vital distinction."
48. The victim, as such has not stated any date of the
incident. Her mother PW3 is categorical that near the occasion of
festival Holi, this incident took place, when one day the victim
returned while crying and revealed the story to her. It is not the
case of any of those witnesses examined that the incident took
place in the month of November, 2017. How in the medical
examination the date of incident "since November, 2017" is
recorded is not clear. In fact, PW6 Dr. Hema Rawat has not been
asked, as to who told her about this date? Broadly speaking, if
statement of PW6 Dr. Hema Rawat is examined, according to her,
the victim had told her that after Diwali this incident began. It may
not be construed as if, the victim or any of her family member
revealed that the incident took place since November, 2017. Be it
noted that in the instant case, the victim is a young child of 10
years of age, when she was examined in the court.
49. After the festive season of Holi, 2018, according to the
prosecution on 19.03.2018, PW3 the mother of the victim along
with the victim went to the school and questioned the appellants.
On that date, the victim was further ill treated. PW3, the mother of
the victim was advised that the name of the victim should be
removed from the school. It is the categorical statement of PW3, the
mother of the victim that thereafter, her husband fell sick due to
shock and he died on 13.04.2018. Thereafter, PW2 the uncle of the
victim came back home and report was lodged on 21.04.2018.
50. In the instant case, the victim was sexually assaulted
for a long duration by her own teacher. After the death of the father
of the victim, her uncle lodged the report on 21.04.2018. In fact,
this is no delay in view of the nature of offence that was committed
in the instant case and under the facts and circumstances of the
case. Therefore, this Court holds that there is no delay and
whatever delay has been occasioned, it has been sufficiently
explained. There are reasons for this delay. It does not make the
prosecution case doubtful in any manner.
51. Learned counsel for the appellant Mukesh Kumar
Sahgal further argued that if the appellant Mukesh Kumar Sahgal
has repeatedly scolded the victim, why the family members kept
silence for a long? This question is related to the delay in lodging
the report. It has already been explained hereinbefore.
52. Learned counsel for the appellant Mukesh Kumar
Sahgal submits that finally on 19.03.2018 PW3 the mother of the
victim has questioned the appellants, as to why the appellant
Mukesh Kumar Sahgal has sexually assaulted her daughter.
Thereafter, why another child was got admitted by PW3, the mother
of the victim in the same school. It is argued that it doubts the
prosecution case.
53. On behalf of the State, it is replied that the mother of
the victim, had no other option, therefore, she got her son admitted
on 06.04.2018 in the school.
54. It may be noted that according to the victim after her
mother questioned the appellants about the incident, the appellant
Mukesh Kumar Sahgal did not commit anything with her (para 11
of the statement of PW1, the victim). If the mother of the victim got
her son admitted in the school, under the facts and circumstances
it does not create any doubt in the prosecution case.
55. It is also argued on behalf of the appellant Mukesh
Kumar Sahgal that the offence under Section 67A of the I.T. Act is
not made out in the instant case because the mobile phone was not
recovered from the custody of the appellant.
56. Learned State counsel very fairly concedes that in the
instant case offence under Section 67A of the I.T. Act is not made
out. Section 67A of the I.T. Act is as follows:-
"67-A. Punishment for publishing or transmitting of material
containing sexually explicit act, etc., in electronic form.--
Whoever publishes or transmits or causes to be published or
transmitted in the electronic form any material which contains
sexually explicit act or conduct shall be punished on first
conviction with imprisonment of either description for a term
which may extend to five years and with fine which may extend to
ten lakh rupees and in the event of second or subsequent
conviction with imprisonment of either description for a term
which may extend to seven years and also with fine which may
extend to ten lakh rupees."
57. It is not a case of publishing or transmitting any
sexually material. In so far as recovery of mobile is concerned,
according to prosecution the brother-in-law of the appellant
Mukesh Kumar Sahgal, Amit Kumar had given it to the police. But,
PW9 Amit Kumar has not supported the prosecution case. Mobile
phones were taken into custody by the police and they were sent for
forensic examination. Forensic Report confirms that it has obscene
material.
58. Admittedly, the mobile phones were not taken into
custody from the appellant Mukesh Kumar Sahgal. PW9 Amit
Kumar has not supported the prosecution case. Even, if it is
assumed that PW9 Amit Kumar had given mobile phones to PW7
Constable Vinod Maurya and they were sent to Forensic Science
Laboratory by PW8 Constable Virendra Bisht and the Forensic
Report confirmed that it has obscene images the question that
arises is as to who kept these images? Were the same images
shown to the victim? There is no evidence to that effect. As stated,
learned State Counsel fairly concedes that charge under Section
67A of the I.T. Act is not made out against the appellant Mukesh
Kumar Sahgal. Therefore, having considered the entire material
on record, this Court is of the view that, in fact, the
prosecution has utterly failed to prove the charge under
Section 67A of the I.T. Act against the appellant Mukesh
Kumar Sahgal. Accordingly, the appellant Mukesh Kumar
Sahgal is liable to be acquitted of the said charge.
59. Learned counsel for the appellant Mukesh Kumar
Sahgal also argued that it is a bias trial. She would refer to the
statement of PW1, the victim to argue that there are different dates
mentioned below the signatures of the Presiding Officer in this
deposition. Therefore, the trial is not fair. This argument has no
force at all. This Court can read the dates mentioned below the
signature of the Presiding Officer in the deposition of PW1, the
victim, on each page which is 24.07.2018. It is not that the
deposition was recorded on some other date. It is not something
that casts huge aspersion on the functioning of the court. The
cross-examination was done by the appellant Mukesh Kumar
Sahgal. If it was done on any other date, it could have been
indicated. It is not so. In fact, the order-sheet of the trial court
record reveals that on 24.07.2018, the statements of the PW1, the
victim and PW2, the uncle of the victim were recorded. It is also
recorded that the statement of the victim was recorded with the
help of two advocates.
60. Reading out the Medical Examination Report of the
victim, learned counsel for the appellant Mukesh Kumar Sahgal
submits that according to the history of the case, as allegedly given
by the victim to the doctor conducting medical examination, the
cheeks of the victim were scratched. She would submit that there
are no scratch marks on the cheeks.
61. According to the prosecution, the first incident took
place sometime near Holi festival in the year 2018. The victim in
her statement has not stated that her cheeks were scratched. Even
if it is done, it is not necessary that it will carry some visible marks
on 23.04.2018, when the victim was medically examined. Therefore,
the arguments on this aspect have less force for acceptance.
62. It is also submitted on behalf of the appellant Mukesh
Kumar Sahgal that there are contradictions in the statements of the
witnesses. What was told by the appellants after the incident? She
would refer to the statement of PW1, the victim at para 6 revealed
that appellant Mukesh Kumar Sahgal did not tell her anything as to
whether the matter has to be told to anyone or not. On the other
hand, learned counsel has referred to the statement of PW3, the
mother of the victim, where she states that she told it to the
Investigating Officer that the appellant Daya Shelakoti had told her
that the matter should not be reported to anyone. This is not
contradiction, as such. Learned counsel for the appellant Mukesh
Kumar Sahgal cannot try to indicate contradiction by referring to
the statements of two witnesses on different aspects. In fact,
whatever contradictions have been referred to, they are not any
material contradictions, which may in any manner, doubt the
prosecution case.
63. The instant case depends on the credibility of PW1, the
victim. She was a young girl of 10 years of age, studying in a
Primary School, where she was sexually assaulted. There cannot be
any eye-witness of such acts. The act was done in the school. The
victim has categorically stated, as to how the appellant would give
his penis to her for masturbation and would lay over her and put
his penis into her vagina. A child witness testimony requires close
scrutiny. Any chances of tutoring have to be ruled out.
64. In the case of State of Rajasthan Vs. Om Prakash,
(2002)5 SCC 745, the Hon'ble Supreme Court on this aspect
observed in para 19 as follows:-
"19. Child rape cases are cases of perverse lust for sex where even
innocent children are not spared in pursuit of sexual pleasure.
There cannot be anything more obscene than this. It is a crime
against humanity. Many such cases are not even brought to light
because of the social stigma attached thereto. According to some
surveys, there has been a steep rise in child rape cases. Children
need special care and protection. In such cases, responsibility on
the shoulders of the courts is more onerous so as to provide
proper legal protection to these children. Their physical and
mental immobility call for such protection. Children are the
natural resource of our country. They are the country's future.
Hope of tomorrow rests on them. In our country, a girl child is in a
very vulnerable position and one of the modes of her exploitation is
rape besides other modes of sexual abuse. These factors point
towards a different approach required to be adopted. The
overturning of a well-considered and well-analysed judgment of the
trial court on grounds like non-examination of other witnesses,
when the case against the respondent otherwise stood established
beyond any reasonable doubt was not called for. The minor
contradiction of recovery of one or two underwears was wholly
insignificant."
65. In the case of Panchhi and others Vs. State of U.P.,
(1998)7 SCC, 177, the Hon'ble Supreme Court observed that "the
evidence of child witness must be evaluated more carefully and
with greater circumspection because a child is susceptible to
be swayed by what others tell him and thus a child witness is
an easy prey to tutoring".
66. A child is a competent witness. The only safeguard
before accepting the testimony of a child is that his capacity to
speak truth has to be evaluated by "Voir Dire" test or even it may be
gathered by the questions and answers given by such witness. The
possibility of tutoring is also required to be ruled out.
67. There is another aspect of the matter. An advocate from
the Nirbhaya Cell was also assisting the trial court in this case.
During trial an application was filed by the advocate Nirbhaya Cell
that after the incident the victim is not attending the school, she
has left the studies and has been living at home. On this
application, on 08.08.2018, the trial court passed the following
order:-
"There cannot be any other disadvantageous act than
deprive the victim from education. Ld. Senior Counsel (Nirbhya
Cell) informed this Court that victim wants to study in Primary
School, Chharoja, Lamgara, District Almora.
Hence, the Principal, Primary School, Chharoja Lamgara,
District Almora is directed to admit the victim in the school
immediately. The Principal of Primary School Chharoja, Lamgara,
District Almora is also restrained to discuss and disclose the
incident with teachers and non-teaching staff and children of
school. The Principal is also directed to make arrangements to
cover the course of the victim for the days, she has not attended
the school.
A copy of this order be provided with to the Principal,
Primary School, Chharoja, Lamgara, District Almora for
compliance of this order under intimation to this Court."
68. In the instant case, the victim has been consistent
throughout, as to what had happened to her. At the cost of
repetition the Court again reiterates that the victim was 10 years of
age studying in a Primary School, where the appellant Mukesh
Kumar Sahgal was a teacher and the appellant Daya Shelakoti was
the Head Mistress. The victim has categorically stated that
sometime near Holi festival the appellant has started making her sit
in his lap, giving his penis in her hands to masturbate until
discharge, rubbing his body against her body, the appellant
Mukesh Kumar Sahgal would lay her down on the floor, lay over
her, putting his penis in her vagina. The victim was upset. She
stopped going to school. When she was questioned and taken to
school, then she revealed the incident. The victim has stated about
it consistently. She has been cross-examined at a length. She is not
a tutored witness. It is not a case of any personal enmity or
vengeance. On those allegations of sexual assault, the statement of
PW1, the victim is credible, trustworthy and reliable. Her mother
has stated, as to what has happened to her. Other witnesses have
also supported her statement. What happened after the incident,
how the appellant Mukesh Kumar Sahgal and appellant Daya
Shelakoti was questioned has also been stated.
69. In view of the foregoing discussion, this Court is of the
view that the prosecution has been able to prove, beyond
reasonable doubt, the charge under Sections 376(2), Section
354-A IPC and Section 5 r/w 6 of the POCSO Act against the
appellant Mukesh Kumar Sahgal and he has been rightly
convicted. The question of sentence would fall for scrutiny.
Sentence
70. Learned counsel for the appellant Mukesh Kumar
Sahgal submits that the appellant has been awarded maximum
sentence under Section 376(2) IPC, which is unwarranted under
the facts and circumstances of the case.
71. While awarding the sentence, the offence, as such
committed, its impact and the antecedents of the accused and
other many factors are taken into consideration. Not only this, the
crime, criminal and comparative proportionality are other tests,
which are weighed while awarding sentence.
72. In the case of State of Madhya Pradesh Vs. Udham and
others, (2019)10 SCC 300, the Hon'ble Supreme Court has
discussed the aspect of sentencing and the factors that are taken
into consideration while awarding sentence. In para 12 and 13 of
the judgment, the Hon'ble Supreme Court observed as follows:-
"12. Sentencing for crimes has to be analysed on the touchstone of
three tests viz. crime test, criminal test and comparative
proportionality test. Crime test involves factors like extent of
planning, choice of weapon, modus of crime, disposal modus (if
any), role of the accused, anti-social or abhorrent character of the
crime, state of victim. Criminal test involves assessment of factors
such as age of the criminal, gender of the criminal, economic
conditions or social background of the criminal, motivation for
crime, availability of defence, state of mind, instigation by the
deceased or any one from the deceased group, adequately
represented in the trial, disagreement by a Judge in the appeal
process, repentance, possibility of reformation, prior criminal
record (not to take pending cases) and any other relevant factor
(not an exhaustive list).
13. Additionally, we may note that under the crime test,
seriousness needs to be ascertained. The seriousness of the crime
may be ascertained by (i) bodily integrity of the victim; (ii) loss of
material support or amenity; (iii) extent of humiliation; and (iv)
privacy breach."
73. Having considered all the factors that are relevant for
awarding a sentence, we are of the view that instant case is not a
case in which maximum sentence under Section 376(2) IPC may be
awarded.
74. This Court is of the view that interest of justice
would be better served if the appellant Mukesh Kumar Sahgal
is sentenced to 14 years rigorous imprisonment under Section
376(2) IPC.
Re-Appellant Daya Shelakoti
75. Learned counsel for the appellant Daya Shelakoti
submits that the prosecution has utterly failed to prove its case
against the appellant Daya Shelakoti. He would submit that the
PW10 Bhupal Ram Pori, Investigating Officer, in para 52 of his
statement has categorically stated that during investigation no
witness revealed it to him that the appellant Daya Sailakoti has
denied to lodge the report of the case. In her examination under
Section 313 of the Code, in answer to the question no.22, the
appellant Daya Shelakoti has stated that she was forced to speak
against the appellant Mukesh Kumar Sahgal and when she denied,
she was given threat to face the consequences and she has been
falsely implicated accordingly.
76. It is further argued that the victim has given statement
against the appellant Daya Shelakoti only in court and it was not
told during investigation. Reference has been made to the
statement of PW1, the victim in para 12, 28 and 29. In court, PW1,
the victim has stated that the appellant Daya Shelakoti had applied
Nettle leaves to her, which she has told to the police and if police
has not recorded it in her statement, she cannot give any reason for
it. But, in para 11 of her statement, PW1 the victim herself has
stated that her mother took her to school and questioned the
Master ji, which means, the appellant Mukesh Kumar Sahgal. In
that sequence, the victim has stated that appellant Daya Shelakoti
applied Nettle leaves on her. It may be noted that PW1, the victim
in her statement, in para 25 has categorically stated that she has
not been tutored.
77. PW3 is the mother of the victim. In fact, it is she, who
had gone to question the appellants in the school. In para 3 and 4
of her statement, PW3, the mother of the victim has categorically
stated that when she went to school to question the teachers, she
met both the appellants. She had identified both the appellants in
the court. When she questioned the appellants, it was told that
nothing was done to the victim and in last sentence of para 4 of her
statement PW3, the mother of the victim tells that, in fact, it is the
appellant Daya Shelakoti, who told her that don't keep the victim in
that school; remove her from the school. On this aspect, this
witness was not cross-examined by the appellant Daya Shelakoti
that she did not tell it to the police. Therefore, it would be wrong to
say that for the first time, the allegations against appellant Daya
Shelakoti was given in the court.
78. Learned counsel for the appellant Daya Shelakoti also
argued that, in fact, whatever allegations have been alleged by the
witnesses, it is in response to the questions posed by the court. He
submits that it may not be termed to be the evidence. The court has
tried to fill-up the lacuna and has gone beyond the jurisdiction
vested in the court in asking questions to fill-up the lacuna. He
submits that, in fact, the conviction of the appellant Daya Shelakoti
is recorded not based on evidence, but on conjecture and surmises.
In support of his contention, learned counsel has referred the
principle of law, as laid down in the case of Gopinath Naik Vs.
Commissioner Income-Tax, U.P., 1935 SCC OnLine Allahabad High
Court, 326, Mohanlal Shamji Soni Vs. Union of India and another,
1991 Supp (1) SCC 271, Rajendra Prasad Vs. Narcotic Cell, (1999)6
SCC, 110.
79. In the case of Gopinath Naik (supra), the Hon'ble
Allahabad High Court inter alia observed that, "mere conjecture,
surmise or assumption of a fact, as distinguished from
inference from proved circumstances, does not amount to
evidence".
80. In the case of Mohanlal Shamji Soni (supra), in fact,
the Hon'ble Supreme Court has discussed the scope of Section 311
of the Code and observed in para 9 as follows:-
"9. The very usage of the words such as 'any court', 'at any stage',
or 'of any enquiry, trial or other proceedings', 'any person' and 'any
such person' clearly spells out that this section is expressed in the
widest possible terms and do not limit the discretion of the court
in any way. However, the very width requires a corresponding
caution that the discretionary power should be invoked as the
exigencies of justice require and exercised judicially with
circumspection and consistently with the provisions of the Code.
The second part of the section does not allow for any discretion
but it binds and compels the court to take any of the
aforementioned two steps if the fresh evidence to be obtained is
essential to the just decision of the case."
81. Thereafter, in para 10, the Hon'ble Supreme Court in
the case of Mohanlal Shamji Soni (supra) observed that, "it is a
cardinal rule in the law of evidence that the best available
evidence should be brought before the court to prove a fact or
the points in issue. But it is left either for the prosecution or
for the defence to establish its respective case by adducing the
best available evidence and the court is not empowered under
the provisions of the Code to compel either the prosecution or
the defence to examine any particular witness or witnesses on
their sides."
82. In the case of Rajendra Prasad (supra), the Hon'ble
Supreme Court discussed the scope of Section 165 of the Indian
Evidence Act, 1872 ("Evidence Act") and observed that, " laches or
mistakes during the conducting of a case cannot be understood
as a lacuna which a court cannot fill up". In para 7 and 8, the
Hon'ble Supreme Court observed as follows:-
"7. It is a common experience in criminal courts that defence
counsel would raise objections whenever courts exercise powers
under Section 311 of the Code or under Section 165 of the
Evidence Act, 1872 by saying that the court could not "fill the
lacuna in the prosecution case". A lacuna in the prosecution is
not to be equated with the fallout of an oversight committed
by a Public Prosecutor during trial, either in producing
relevant materials or in eliciting relevant answers from
witnesses. The adage "to err is human" is the recognition of the
possibility of making mistakes to which humans are prone. A
corollary of any such laches or mistakes during the conducting of
a case cannot be understood as a lacuna which a court cannot fill
up.
8. Lacuna in the prosecution must be understood as the inherent
weakness or a latent wedge in the matrix of the prosecution case.
The advantage of it should normally go to the accused in the trial
of the case, but an oversight in the management of the
prosecution cannot be treated as irreparable lacuna. No party
in a trial can be foreclosed from correcting errors. If proper
evidence was not adduced or a relevant material was not brought
on record due to any inadvertence, the court should be
magnanimous in permitting such mistakes to be rectified. After all,
function of the criminal court is administration of criminal justice
and not to count errors committed by the parties or to find out and
declare who among the parties performed better."
(emphasis supplied)
83. The scope of Section 165 of the Evidence Act has been
discussed by the Hon'ble Supreme Court in the case of Ram
Chander Vs. State of Haryana, (1981)3 SCC 191. In paras 2 and 3
of the judgment the Hon'ble Supreme Court observed as under:-
"2. The adversary system of trial being what it is, there is an
unfortunate tendency for a Judge presiding over a trial to assume
the role of a referee or an umpire and to allow the trial to develop
into a contest between the prosecution and the defence with the
inevitable distortions flowing from combative and competitive
elements entering the trial procedure. If a criminal court is to be
an effective instrument in dispensing justice, the presiding Judge
must cease to be a spectator and a mere recording machine. He
must become a participant in the trial by evincing intelligent active
interest by putting questions to witnesses in order to ascertain the
truth. As one of us had occasion to say in the past:
"Every criminal trial is a voyage of discovery in which truth is the
quest. It is the duty of a presiding Judge to explore every avenue
open to him in order to discover the truth and to advance the
cause of justice. For that purpose he is expressly invested by
Section 165 of the Evidence Act with the right to put questions to
witnesses. Indeed the right given to a Judge is so wide that he
may, ask any question he pleases, in any form, at any time, of any
witness, or of the parties about any fact, relevant or irrelevant.
Section 172(2) of the Code of Criminal Procedure enables the court
to send for the police-diaries in a case and use them to aid it in the
trial. The record of the proceedings of the Committing Magistrate
may also be perused by the Sessions Judge to further aid him in
the trial. [Sessions Judge, Nellore v. Intha Ramana ReddyILR 1972
AP 683 : 1972 Cri LJ 1485] "
3. With such wide powers, the court must actively participate in
the trial to elicit the truth and to protect the weak and the
innocent. It must, of course, not assume the role of a prosecutor in
putting questions. The functions of the Counsel, particularly those
of the Public Prosecutor, are not to be usurped by the judge, by
descending into the arena, as it were. Any questions put by the
Judge must be so as not to frighten, coerce, confuse or intimidate
the witnesses. The danger inherent in a Judge adopting a much
too stern an attitude towards witnesses has been explained by
Lord Justice Birkett:
"People accustomed to the procedure of the court are likely to be
overawed or frightened, or confused, or distressed when under the
ordeal of prolonged questioning from the presiding judge.
Moreover, when the questioning takes on a sarcastic or ironic tone
as it is apt to do, or when it takes on a hostile note as is
sometimes almost inevitable, the danger is not only that witnesses
will be unable to present the evidence as they may wish, but the
parties may begin to think, quite wrongly it may be, that the Judge
is not holding the scales of justice quite eventually." [ Extracted by
Lord Denning in supra f.n. 2]
In Jones v. National Coal Board [Jones v. National Coal Board,
(1957) 2 All ER 155 : (1957) 2 WLR 760] Lord Justice Denning
observed:
The Judge's part in all this is to hearken to the evidence, only
himself asking questions of witnesses when it is necessary to clear
up any point that has been overlooked or left obscure; to see that
the advocates behave themselves seemly and keep to the rules laid
down by law; to exclude irrelevancies and discourage repetition; to
make sure by wise intervention that he follows the points that the
advocates are making and can assess their worth; and at the end
to make up his mind where the truth lies. If he goes beyond this,
he drops the mantle of the Judge and assumes the role of an
advocate; and the change does not become him well."
We may go further than Lord Denning and say that it is the duty of
a Judge to discover the truth and for that purpose he may "ask
any question, in any form, at any time, of any witness, or of the
parties, about any fact, relevant or irrelevant" (Section 165
Evidence Act). But this he must do, without unduly trespassing
upon the functions of the Public Prosecutor and the defence
Counsel, without any hint of partisanship and without appearing
to frighten or bully witnesses. He must take the prosecution and
the defence with him. The court, the prosecution and the defence
must work as a team whose goal is justice, a team whose captain
is the judge. The Judge, "like the conductor of a choir, must, by
force of personality, induce his team to work in harmony; subdue
the raucous, encourage the timid, conspire with the young, flatter
and (sic the) old"."
84. The principle of law, as settled by the Hon'ble Supreme
Court establishes that the presiding Judge must cease to be a
spectator and a mere recording machine. He must become a
participant in the trial by evincing intelligent active interest by
putting questions to witnesses in order to ascertain the truth. In
that context, the questions and answers will be examined.
85. It is further argued that in order to attracted the
provision of Section 21 of the POCSO Act, it has to be established
and proved beyond reasonable doubt that the appellant had the
knowledge of offence, which she failed to record.
86. It is argued that in the instant case, the prosecution
has failed to establish that the appellant Daya Shelakoti had any
knowledge of offence. In support of his contention, learned counsel
has relied in the principle of law, as laid down in the case of Sr.
Tessy Jose and others Vs. State of Kerala, (2018)18 SCC 292. In
para 5 of its judgment, the Hon'ble Supreme Court observed that a
person, who had an apprehension that an offence under the
POCSO Act is likely to be committed or has knowledge that such an
offence had been committed, could be required to provide such
information to the relevant authority. Further, the Hon'ble
Supreme Court in para 9 of the judgment observed that, "The
expression used is "knowledge" which means that some
information received by such a person gives him/her
knowledge about the commission of the crime. There is no
obligation on this person to investigate and gather knowledge."
87. The appellant Daya Shelakoti has been convicted under
Section 323, 504 IPC and 21(2) of the POCSO Act. Section 19 of the
POCSO Acts makes provision for reporting of offence. It reads as
follows:-
"19. Reporting of offences.--(1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974), any
person (including the child), who has apprehension that an offence
under this Act is likely to be committed or has knowledge that
such an offence has been committed, he shall provide such
information to,--
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be--
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit.
(3) Where the report under sub-section (1) is given by a child, the
same shall be recorded under sub-section (2) in a simple language
so that the child understands contents being recorded.
(4) In case contents are being recorded in the language not
understood by the child or wherever it is deemed necessary, a
translator or an interpreter, having such qualifications, experience
and on payment of such fees as may be prescribed, shall be
provided to the child if he fails to understand the same.
(5) Where the Special Juvenile Police Unit or local police is
satisfied that the child against whom an offence has been
committed is in need of care and protection, then, it shall, after
recording the reasons in writing, make immediate arrangement to
give him such care and protection (including admitting the child
into shelter home or to the nearest hospital) within twenty-four
hours of the report, as may be prescribed.
(6) The Special Juvenile Police Unit or local police shall, without
unnecessary delay but within a period of twenty-four hours, report
the matter to the Child Welfare Committee and the Special Court
or where no Special Court has been designated, to the Court of
Session, including need of the child for care and protection and
steps taken in this regard.
(7) No person shall incur any liability, whether civil or criminal, for
giving the information in good faith for the purpose of sub-section
(1)."
88. Section 21 of the POCSO Act is a penalty for failure to
report or record a case. It reads as under:-
"21. Punishment for failure to report or record a case.--(1) Any
person, who fails to report the commission of an offence under
sub-section (1) of Section 19 or Section 20 or who fails to record
such offence under sub-section (2) of Section 19 shall be punished
with imprisonment of either description which may extend to six
months or with fine or with both.
(2) Any person, being in-charge of any company or an institution
(by whatever name called) who fails to report the commission of an
offence under sub-section (1) of Section 19 in respect of a
subordinate under his control, shall be punished with
imprisonment for a term which may extend to one year and with
fine.
(3) The provisions of sub-section (1) shall not apply to a child
under this Act."
89. It is the prosecution case that the appellant Daya
Shelakoti was the Head Mistress of the Primary School, in which,
the victim was studying and the appellant Mukesh Kumar Sahgal
did repeat sexual assault on her. Here what the prosecution has
alleged against the appellant Daya Shelakoti is that she had
knowledge that the offence has been committed qua the victim, but
she failed to report the matter to police.
90. First this Court adverts to the questions that has been
asked by the Presiding Officer. In fact, almost all the witnesses were
questioned by the Presiding Officer. In so far as the allegations
against the appellant Daya Shelakoti is concerned, as stated in her
statement in para 11, the victim has stated that when her mother
took her to school, there the appellant Mukesh Kumar Sahgal was
questioned, thereafter, in the sequel in para 12 this witness has
stated that that the appellant Daya Shelakoti applied Nettle leaves
to her. She has stated, as to what had happened to her.
91. PW3 is the mother of the victim. She has stated
extensively, as to what had happened. In paras 3 and 4, she speaks
that when she came to know that the appellant Mukesh Kumar
Sahgal had sexually assaulted the victim on multiple occasions, she
went to the school and questioned the teachers, which means both
the appellants. She tells that on her questioning, she was told that
nothing was done with the victim; it is the victim, who was wrong.
Thereafter, according to this witness appellants Daya Shelakoti had
told it to her that don't keep the victim in the school; remove her
from the school. The Court did put many questions to this witness
from para 43 onwards. The court asked her, did you tell it to the
appellant Daya Shelakoti that the appellant had done 'Galat Kaam'
with her. To it, she answered in affirmative. Another question that
was put by the court to PW3, the mother of the victim is that after
informing appellant Daya Shelakoti, what did she tell? According to
this witness, thereafter, appellant Daya Shelakoti told it to her that
the victim is wrong and at fault; the appellant Mukesh Kumar
Sahgal did not commit such work. In answer to another question,
this witness tells that she repeated it to the appellant Daya
Shelakoti that "your teacher has done 'Galat Kaam' with my
daughter". This questioning by the court, by no stretch of
imagination can be said that the court had exceeded its jurisdiction
in asking the questions to the witness. In fact, it is role of the court.
The court did not try to fill-up any lacuna.
92. The statement of victim as well as PW3, her mother is
inspiring confidence. When PW3, the mother of the victim went to
the school of the victim to question both the appellants. When PW3,
the mother of the victim told, as to why the wrong has been done to
the victim, the appellant Daya Shelakoti, who happened to be the
Head Mistress of the School, did not take any action. In fact, she
repeated that the appellant Mukesh Kumar Sahgal did not commit
such work. On 19.03.2018, when the victim along with her mother
PW3 reached the school, on that date, this Court concludes that
the appellant Daya Shelakoti had knowledge of the offence of sexual
assault committed on the victim by the appellant Mukesh Kumar
Sahgal. Being Head Mistress of the school, it was more on the part
of the appellant Daya Shelakoti to lodge the report as statutorily
mandated under Section 19 of the POCSO Act. The appellant Daya
Shelakoti failed to do so. Therefore, she has definitely
committed the offence under Section 21(2) of the POCSO Act
and she has been rightly convicted under this charge.
93. The appellant Daya Shelakoti has also been
convicted and sentenced under Section 323, 504 IPC. In so far
as Section 323, 504 IPC is concerned, we are of the view that
the prosecution has not been able to prove charge under
Section 504 IPC. Therefore, appellant Daya Shelakoti deserves
to be acquitted of the charge under Section 504 IPC.
94. In so far as the charge under Section 323 IPC is
concerned, we are of the view that the prosecution has been
able to prove the charge under Section 323 IPC against the
appellant Daya Shelakoti.
Conclusion
95. (i) The conviction of appellant Mukesh Kumar Sahgal
under Sections 354-A and 376(2) IPC and Section 5
r/w 6 of the POCSO Act is upheld.
(ii) The appellant Mukesh Kumar Sahgal is sentenced
under Section 376(2) IPC to rigorous imprisonment for
14 years with Rs.50,000/- fine. In default of payment of
fine, the appellant Mukesh Kumar Sahgal shall
undergo simple imprisonment for a further period of 03
months.
(iii) The conviction and sentence of the appellant Mukesh
Kumar Sahgal under Section 67A of the Information
Technology Act, 2000 is hereby set aside. The appellant
Mukesh Kumar Sahgal is acquitted of the charge under
Section 67A of the Information Technology Act, 2000.
(iv) The conviction and sentence of the appellant Daya
Shelakoti under Section 21(2) of the Protection of
Children from Sexual Offences Act, 2012 and under
Section 323 IPC is upheld.
(v) The conviction and sentence of the appellant Daya
Shelakoti under Section 504 IPC is set aside. The
appellant Daya Shelakoti is acquitted of the charge
under Section 504 IPC
(vi) The other directions with regard to payment of
compensation to the victim shall remain unaltered.
(vii) The impugned judgment and order dated 16.10.2018 is
modified to the extent as indicated above.
(viii) Both the appeals are disposed of accordingly.
(ix) The appellant Daya Shelakoti is on bail. Her bail bonds
are cancelled and sureties are discharged of their
liability. Let she be taken into custody forthwith to
serve out the remaining sentence.
(x) Let a copy of this judgment be forwarded to the court
concerned for necessary compliance.
(Alok Mahra, J.) (Ravindra Maithani, J.)
08.10.2025
Sanjay
SANJAY
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
2.5.4.20=e50e50b49596520698eff87e0a08bbd504686
df4d1afc60f54a287831dec46fe, postalCode=263001,
KANOJIA
st=UTTARAKHAND,
serialNumber=26EEB7122ED0DD23233A255DD8EC45
0A84B515A087CAEFD1B3179A7DEAE40699,
cn=SANJAY KANOJIA
Date: 2025.10.09 16:37:10 +05'30'
