VINAY vs THE STATE (GOVT. OF NCT) OF DELHI

CRL.A. 1044/2017 & Crl.M.B.2021/2017

Challenge in this appeal is a judgment dated 23.02.2017 of learned Addl. Sessions Judge in Sessions Case No.58854/2016 arising out of FIR

No.806/2015 PS Adarsh Nagar by which the appellant - Vinay was held guilty for committing offences punishable under Sections 354/354A/451

IPC and Section 10 POCSO Act. By an order dated 27.02.2017, the appellant was awarded various prison terms with fine.

Briefly stated, the prosecution case as reflected in the charge-sheet is that on 04.12.2015 at around 03.00 p.m. at House No.N-144/26, Lal

Bagh, Azadpur, Delhi, the appellant with sexual intent in mind made physical contact with the prosecutrix ''A'' (assumed name) aged around 9

years and outraged her modesty. Information about the incident came to be recorded on 04.12.2015 at around 05.49 p.m. at PS Adarsh Nagar

vide Daily Diary (DD) No.25A (Ex.PW-4/A). The Investigating Officer after recording statement of the victim (Ex.PW-1/A) lodged First

Information Report. In the complaint, the child gave vivid description of the incident and named the appellant to be the perpetrator of the crime.

''A'' was medically examined; she recorded her 164 Cr.P.C. statement. The appellant was arrested and taken for medical examination. Statements

of the witnesses conversant with the facts were recorded. Upon completion of investigation, a charge-sheet was filed against the appellant. To

prove its case, the prosecution examined eight witnesses. In 313 Cr.P.C. statement the appellant denied his involvement in the crime and pleaded

false implication; no defence evidence was adduced. The trial resulted in conviction as mentioned previously. Aggrieved and dissatisfied by the said

order, the instant appeal has been preferred by the appellant.

I have heard the learned counsel for the parties and have examined the file. Admitted position is that the prosecutrix and the appellant were

acquainted with each other; the appellant lived in the nearby locality.

The victim was aged around 9 years on the day of occurrence. PW-3 (Santosh Bala), Principal, MC Primary School, Coaid, Model Town,

Delhi, proved the documents (Ex.PW-3/A to Ex.PW-3/E) depicting date of birth of the child as 07.01.2006. Her statement remained

unchallenged in the cross-examination. The appellant did not deny if the victim was aged more than 9 years. Since the date of birth of the

prosecutrix came to be recorded prior to the incident, there was least possibility of victim''s parents to have manipulated it.

The occurrence whereby the child was defiled occurred at around 03.00 p.m. when the prosecutrix''s father was away at his place of work and

mother was on duty. When her mother PW-2 returned at around 05.00 p.m., the prosecutrix narrated the incident to her. The appellant was

confronted in the gali at around 07.00 p.m. but he succeeded to flee. The matter was reported to the police. Apparently, there was no delay in

lodging the FIR.

In the complaint, the victim implicated the appellant by name and assigned specific role to him in the crime. She described the incident in detail

and disclosed as to how and in what manner, the appellant had touched her inappropriately at various private organs. ''A'' recorded her 164

Cr.P.C. statement on 05.12.2015. Before her examination, the learned Presiding Officer put several questions to ascertain if she was competent to

make the statement. After recording satisfaction that the child was capable to make statement without any fear or pressure, her statement (Ex.PW-

1/B) came to be recorded. Again, the prosecutrix reiterated her version given to the police and implicated the accused for violating her privacy. In

her Court statement, the learned Presiding Officer conducted preliminary examination to ascertain if the child was capable to understand the

questions put to her and was in a position to give rational answers. Since the child was a competent witness, her statement was recorded on oath.

In her deposition before the Court, she deposed that on the day of occurrence her mother had gone to her work and her siblings were playing

outside. At about 04.00 p.m., when she was doing home work in the house, the accused entered inside the house. He forcibly kissed her and

touched her body inappropriately; he also pressed her breasts. When she tried to free herself by giving teeth bite on his hand, the accused left

extending threats to kill her in case she disclosed the incident to anybody. When her mother came, she apprised her about the incident and the

matter was reported to the police. In the cross-examination, she disclosed that her siblings were playing nearby a temple at a distance of 6 - 7

houses away from her house. Her father had gone to the shop. The accused was not on visiting terms with them. Accused''s house was situated at

a distance of 5 minutes walk from her father''s shop and he was familiar with them. She further disclosed that though she had raised alarm but none

came for her rescue; the accused remained inside the house for about 5 minutes. She denied if a false complaint was lodged due to a previous

quarrel between the accused and her parents.

On scrutinising the testimony of child witness in its entirety, it transpires that nothing material has been elicited in the cross-examination to discard

her natural version. The prosecutrix is consistent throughout at different stages of investigation and trial. She has proved the version given before

the police as well as before the learned Presiding Officer without any material variation. No ulterior motive was assigned to the child to falsely

implicate the accused with whom they have acquaintance prior to the incident. No sound reasons exist to disbelieve the testimony of the

prosecutrix.

A''s statement has been corroborated in material particulars by her mother PW-2. She too disclosed that on return from her job at about 05.00

p.m. she was informed by the daughter about the occurrence. Victim''s mother had no reasons to use her daughter of tender age over any alleged

money transaction.

Certain discrepancies or inconsistencies highlighted by the appellant''s counsel are insignificant as they do not affect the core of the prosecution

case. The defence pleaded by the appellant to seek acquittal deserves outright rejection. In 313 Cr.P.C. statement, for the first time, the appellant

came with the plea that he had borrowed Rs.5,000/- from the victim''s father. When he failed to pay the borrowed amount Rs.5,000/-, victim''s

father demanded Rs.10,000/- and on his failure to pay, he was falsely implicated in this case. No evidence surfaced to ascertain as to when and for

what purpose, the appellant had borrowed Rs.5,000/- from the victim''s father. It is highly unbelievable that for a sum of Rs.5,000/-, the victim''s

father would demand Rs.10,000/- from the appellant. When the appellant was not capable to return Rs.5,000/-, how it was possible for him to

pay Rs.10,000/- in lieu of Rs.5,000/-. Moreover, over a trivial issue, the victim''s parents are not expected to level serious allegations of sexual

harassment to their school going-child aged around 9 years to bring her in disrepute. The appellant did not disclose as to what job or business he

used to carry on at the relevant time. He did not deny his presence at the spot; did not deny his visits to the victim''s house.

It has come on record that the appellant remained absconding for sufficient duration after the occurrence and could not be apprehended. Only

on 15.01.2016, he was apprehended and was medically examined vide MLCs (Ex.PW-6/A & Ex.PW-7/A). No fresh injuries were found on the

body that time. Since the appellant was examined after about 41 days from the date of incident, there was every possibility of the bite injury given

by the child to have disappeared. Simply because no injury on the victim''s body was noticed in the MLC, it is not a factor to disbelieve A''s

statement.

The impugned judgment based upon proper and fair appreciation of the evidence deserves no intervention; conviction is affirmed.

Regarding Sentence Order, the appellant has been sentenced under POCSO Act as well as IPC for various offences described therein.

Ingredients of the offences are almost identical; maximum sentence has been awarded under Section 10 of the POCSO Act. In my view, no

separate sentence is called for, for commission of offences punishable under Sections 354/354A and 451 IPC. Sentence awarded under Section

10 POCSO Act needs no modification as the appellant aged around 25 years had dared to outrage the modesty of the child aged around 9 years.

Taking advantage of the loneliness of the child and the previous acquaintance, the appellant entered inside the house and inappropriately touched

the body of the girl child at various private parts. The appellant deserves no leniency.

In the light of the above discussion, while upholding the conviction of the appellant, Sentence Order is modified to the extent that the appellant

shall undergo rigorous imprisonment for five years with fine Rs.5,000/-; default sentence being simple imprisonment for ten days under Section 10

POCSO Act. Sentences awarded under Section 354/354A/451 IPC are set aside.

The appeal stands disposed of in the above terms. Pending application also stands disposed of.

Trial Court record be sent back forthwith with the copy of the order.

Intimation be sent to the Superintendent Jail.