Pankaj vs State

Dr. S. Muralidhar, J.

This is an appeal against the judgment dated 16th January 2015 passed by Additional Sessions Judge (North-West)-01 (HEREAFTER THE

“TRIAL Courtâ€) in SC No.40/2014 arising out of FIR No.239/2013 registered at PS Vijay Vihar finding the Appellant guilty of the offence under

Section 5(m) POCSO Act punishable under Section 6 POCSO Act. It also seeks to assail the order on sentence dated 20th January 2015 whereby he

was sentenced for the aforesaid offence by the trial Court to rigorous imprisonment for life with fine of Rs.5,000/- and in default of payment of fine, to

undergo further simple imprisonment for three months.

The trial Court also directed the Secretary of the District Legal Services Authority (DLSA) (North-West) (NW) to grant compensation of Rs.2

lakhs to the victim child to be used for his welfare and rehabilitation.

Charge

3.The Appellant was charged with having committed aggravated penetrative sexual assault upon the victim (PW-6) aged 6 years thereby committing

the aforementioned offence at around 10:20 am on 5th May 2013 at his house at Budh Vihar Phase-I, Delhi.

Case of the prosecution

The case of the prosecution is that the Appellant was working in the factory situated in the neighbourhood of the victimâ€s home. On 5th May

2013, at around 10:30 am, PW-6 went to his mother (PW-5) and told her that he was suffering due to pain. He pointed to the Appellant and told his

mother that the Appellant had done something to the rear side (anal region) of PW-6. PW-5 then went after the Appellant and confronted him but the

Appellant denied any wrongdoing. When she removed the underwear of PW-6, she noticed blood. She grew suspicious and raised an alarm. Public

persons collected at the spot and gave a beating to the Appellant. Someone called the police at 100 number. Â

The Police Control Room (“PCRâ€) form (Ex.PW-7/A) shows that a call was made at 11:46 am with the information that a man had committed

a wrong act (“galat kaamâ€) with a young boy of 7-8 years age and that the said man had been apprehended there itself. The information noted in

the PCR form at 12:33 pm, after the police reached there, is that the grandmother of PW-6, i.e. PW-9, had informed the police that the Appellant had

committed sexual assault on the child and that the child had been taken to hospital.

Sub-Inspector (SI) Virender (PW-15) of PS Vijay Vihar upon receiving the DD, reached the house along with Ct. M. Laxmaiah and was told that

the child had been removed to the BSA Hospital by the PCR van. Leaving the constable at the spot, PW-15 went to the BSA Hospital.

Medical evidence

The MLC of the child (Ex.PW-10/A) noted that the child had been brought to the BSA Hospital at 10:45 pm on 5thMay 2013 with an alleged

history of sexual assault as informed by his grandmother (PW-9). The child was referred to Paediatric SR Dr. Manish whose handwriting was

identified by Dr. Shiv Kumar (PW-17) of BSA Hospital. He made his observations on the MLC regarding the presence of the nail mark and the

laceration over the anal region posterior with faecal matter admixed with some secretion.

The examination of the child by Dr. Shahnawaz Alam besides the surgery was confirmed by Dr. Rekha Diwan (PW-16) and, in particular, the

observation that although the nature of the injuries was simple, the possibility of sexual assault could not be ruled out.

The only suggestion put to these doctors in the cross-examination was that the possibility of the injury in the anal region being due to constipation

cannot be ruled out. However, the FSL reports (Ex. PX and PY) left no matter of doubt that the victim had suffered sexual assault at the hands of the

present Appellant.

Forensic evidence

The biological examination revealed that human semen was detected on the underwear (Ex.1a) of the child. Further, blood was detected on the

rectal swab (Ex.1g), the perianal swab (Ex.1h), and certain other exhibits. The result of the DNA examination was that “the alleles from the

source of exhibit “1a†(underwear of the victim), “4a†(Curtain cloth), and the “4b†(Bed sheet) are accounted in the alleles from the

source of exhibit “2dâ€​ (blood in the gauze of accused)â€​.

The conclusion reached in the FSL report dated 28th March 2014 read as under:

“The DNA Fingerprinting performed on the source of exhibits 'la' (underwear of victim), Id' (Blood in gauze of victim), '2d' (Blood in gauze of

accused), '4a' (Curtain cloth) and '4b' (Bed sheet), is sufficient to conclude that the stains i.e. seminal stains on the source of exhibits 'la' (Underwear

of victim), '4a' (Curtain cloth) and '4b' (Bed sheet) and blood stains on the source of exhibit '2d' (Blood in gauze of accused), are from the same

source.â€​

Testimony of the victim

As far as the victim (PW-6) is concerned, in his statement under Section 164 Cr PC was recorded by the learned Metropolitan Magistrate

(“MMâ€) (PW-2) on 6th June 2013, he clearly explained the sexual assault committed on him by the Appellant in the factory premises where he

worked.

The child when examined during the trial again clearly spoke about the sexual assault committed against him, which was a forceful penetrative act

by the Appellant. Since there is hardly any difference from the version of the victim in his statement under Section 164 Cr PC and his version in his

deposition in Court, it is not necessary to reproduce the precise answers given by the victim to the questions put to him.

At this stage, it may be useful to recall the settled legal position as regards appreciation of the testimony of a child witness. In Dattu Ramrao

Sakhare v. State of Maharashtra (1997) 5 SCC 341, the Supreme Court held:

“A child witness if found competent to depose to the facts and reliable 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 question

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 reliable one and

his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no practice that in every case the

evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it

desirable to have the corroboration to such evidence from other dependable evidence on record.â€​

Again in Panchhi v. State of U.P.(1998) 7 SCC 177, it was explained:

“Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical

wisdom than of law.â€​

In State of Karnataka v. Shantappa Madivalappa GalapujiJT 2009 (5) SC 660the Supreme Court explained:

“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, shaken 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.â€​

In Radhey Shyam v. State of Rajasthan (2014) 5 SCC 389,after reviewing the entire case law till then, the Supreme Court summarized the legal

position thus:

“The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to

close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and

understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witnessâ€s evidence. If

found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation.â€​

In the present case, both the learned MM who recorded the statement of PW-6 as well as the trial Court which recorded his deposition satisfied

themselves about his “capacity and intelligence as well as his understanding of the obligation of an oath.†The child answered the questions very

clearly. The trial Court closely questioned him to rule out the possibility of tutoring.

On carefully perusing his evidence, this Court is left in no matter of doubt that the child has spoken truthfully and cogently about the Appellant

committing sexual penetrative assault which resulted in the child then screaming in pain, bleeding from the anal region, and then telling his mother as to

what had happened with him and pointing out the Appellant as the person who committed the assault upon him. The identification of the Appellant by

the victim, therefore, was unambiguous. The only suggestion given to the victim was about the victimâ€s father having taken some money from the

Appellant, which the victim denied.

With the deposition of the victim on what had happened to him at the hands of the Appellant going virtually unchallenged in the crossexamination

and with the medical and forensic evidence clearly establishing that it was the Appellant who committed the crime, the trial Court reached the correct

conclusion regarding the guilt of the Appellant.

Mr. Ankur Sood, learned counsel for the Appellant, presented the case before this Court fairly. He submitted that there were some contradictions

in the depositions of the mother of the victim (PW-5) and his grandmother (PW-9). Having examined those depositions, this Court is of the view that

the so-called contradictions are not material and do not affect one bit the clear, cogent, and reliable testimony of the victim which stands fully

corroborated by both the medical and the forensic evidence.

Defence evidence

The Appellant has also sought to bring on the record in his statement under Section 313 Cr PC and by examining his own brother Gulab Singh

Yadav (DW-1) to show that the victimâ€s father had borrowed money from him. In the cross-examination of DW-1 by the APP, he showed a lack of

knowledge about the monthly salary of the Appellant. He also was unable to give the address of the factory where the Appellant was working or even

the name of the factoryâ€​s owner. He could not tell the date on which the Appellant had given the loan to the father of the victim.

No suggestion was given either to PW-5 or PW-9, in their respective cross-examination that a loan was borrowed by the father of the victim from

the Appellant. On the other hand, what came across from that testimony was that the Appellant himself was hard-pressed financially and was unable

to send money even to his parents. It was highly unlikely that he gave any loan to the father of the victim.

With PW-6 being corroborated by the medical and the forensic evidence, the trial Court rightly concluded that DW-1 was not a reliable witness.

This Court is not able to find any error committed by the trial Court in its evaluation of the evidence and the conclusion reached regarding the guilt

of the Appellant.

Sentence

Turning now to the question of sentence, this Court finds that the trial Court has given clear and cogent reasons for awarding the sentence of

rigorous imprisonment for life to the Appellant. Given the gravity of the crime, and the immeasurable trauma it will continue to cause to the victim of a

tender age for many years, this Court is unable to find any ground to interfere with the sentence awarded by the trial Court.

Compensation

However, as regards compensation to the victim, the Court is of the view that this was a case where the highest possible compensation, i.e. Rs.5

lakhs, ought to be awarded considering the tender age of the victim at the time of commission of the offence. The Court accordingly directs that the

compensation amount payable to the victim should be enhanced to Rs.5 lakhs and that the additional sum be now paid to the victim under the Victim

Compensationâ€​s Scheme in terms of Section 357A Cr PC, not later than eight weeks from today.

Conclusion

The appeal is accordingly disposed of in the above terms. The trial Court record be returned forthwith together with a certified copy of this

judgment. Â

A copy of this order will be sent to the Secretary, DLSA (North-West District) for compliance.