appellant has been put at the time of X’s examination. The Presiding Officer
is expected to remain sensitive particularly when a child of tender age is
under examination. While conducting trial, Court is not required to sit as a
silent spectator but to take active part within the boundaries of law, to bring
on record the relevant facts for the purpose of eliciting truth.
IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 04th AUGUST, 2016
CRL.A.1336/2015
HAZARI PASWAN
V
STATE (NCT OF DELHI)
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
Citation: 2016 SCCONLINEDEL4312
1. The appellant – Hazari Paswan impugns a judgment dated
17.10.2015 of learned Addl. Sessions Judge in Sessions Case No.107/2014
arising out of FIR No.280/2014 PS North Rohini whereby he was convicted
for committing offence punishable under Section 10 of POCSO Act (In short
‘Act’). By an order dated 02.11.2015, he was sentenced to undergo RI for
five years with fine `5,000/-.
2. Briefly stated, the prosecution case as reflected in the chargesheet
was that on 30.04.2014, at about 12.00 noon to 12.30 p.m., at House
No.174, Second floor, Village Nahar Pur, Delhi, within the jurisdiction of
PS North Rohini, the appellant committed rape upon the prosecutrix ‘X’
(assumed name) aged around five years; he also inserted his hand in the
victim’s vagina. The occurrence conveyed to PCR at 1.09 p.m. by one
Mukesh Kumar was reduced into writing (Ex.PW-2/A). DD No.23A
(Ex.PW-3/A) came into existence at PS North Rohini at 01.15 p.m. The
Investigating Officer after recording statement of victim’s mother – Durga
(Ex.PW-5/A) lodged First Information Report. ‘X’ was taken for medical
examination; she recorded her 164 Cr.P.C. statement. The accused was
arrested. Statements of the witnesses conversant with the facts were
recorded. Upon completion of investigation, the appellant was chargesheeted.
In order to establish its case, the prosecution examined thirteen
witnesses. In 313 Cr.P.C. statement, the accused denied his involvement in
the crime and pleaded false implication due to previous quarrels. The trial
resulted in conviction under Section 10 of the Act and it is under challenge.
3. Appellant’s counsel urged that the Trial Court committed
material irregularity while recording victim’s statement and put various
leading questions. It ignored the material infirmities and inconsistencies
emerging in the statements of the prosecution witnesses. It overlooked the
fact that victim aged about five years was not competent to depose and the
statement given by her was at her mother’s behest. X’s mother did not
permit her medical examination to be conducted. ‘X’ has made vital
improvements in her Court deposition. No independent public witness was
associated at any stage of the investigation. Learned Addl. Public
Prosecutor urged that when the child had gone to appellant’s house to watch
TV she was sexually assaulted there. No sound reasons prevail to disbelieve
the statement of the child witness.
4. Admitted position is that the appellant used to live in a rented
accommodation on the second floor. PW-1 (Mahender Singh), landlord,
informed that a room was let out to him in the year 2007 on a monthly rent
of `1,000/-. The victim’s family used to live in the said premises in a room
on the third floor. The appellant was father of five children. The victim was
aged around five years. Her birth certificate (Ex.PW-13/E) records her date
of birth as 27.05.2009. In her Court deposition, ‘X’ claimed herself to be
five years old. Nothing was suggested to her in the cross-examination if she
was more than five years old on the day of incident. Authenticity and
correctness of the date of birth recorded in MCD certificate (Ex.PW-13/E)
was not suspected. The date of birth came to be recorded long before when
X’s parents had not anticipated such an unfortunate incident to happen in
future to manipulate her age.
5. The occurrence whereby a tiny child aged around five years
was sexually assaulted took place at around 12.00 noon when she had
innocently gone to the appellant’s room to watch TV. The police machinery
was set in motion promptly without any delay and information about a child
aged around five years to have been teased by an ‘old’ man was reduced into
writing in the PCR form (Ex.PW-2/A) at 01.09 p.m. It led to recording of
DD No.23A (Ex.PW-3/A). In her statement (Ex.PW-5/A), victim’s mother
named the appellant to be the perpetrator of the crime. She informed the
police that at about 12.35 p.m. her daughter came crying and apprised her
that Suraj’s father had inserted finger in her vagina and she was in pain.
Soon thereafter, the child was taken for medical examination. MLC
(Ex.PW-5/B) records the arrival time of the patient at Dr.Baba Saheb
Ambedkar Hospital, Rohini at 04.05 p.m. It records the alleged history
whereby a child aged around five years was sexually assaulted by the
accused by inserting his finger in her vagina. Since the FIR was lodged
soon after the crime, there was least possibility of the victim’s mother to
concoct a false story implicating the accused in a short interval.
6. In her 164 Cr.P.C. statement (Ex.PW-6/B) recorded on
01.05.2014 ‘X’ implicated the appellant and accused him of putting his hand
in her vagina. She even informed the learned Presiding Officer that the
accused had put his penis in her vagina. Before recording her Court
statement, the learned Presiding Officer had put various questions to
ascertain if she was a competent witness. After recording satisfaction that
‘X’ was able to give rationale answers to the questions put to her and was
competent to depose, her statement came to be recorded without oath. She
was examined in question-answer form. She named the appellant to be the
author of the crime and assigned a specific and definite role to him in the
crime. In response to a question “Phir Kya hua?”, she responded “Suraj ke
papa ne hath (hand) dala tha”. To get the answer clear, the Court put another
question, “Kaha par dala tha?”. The witness touched her hand on her
vaginal region and said “yaha par dala tha”. The accusations are very
specific, certain and clear. What else can be expected from a child aged
around five years? Her statement on material and vital facts remained
unchallenged. In the cross-examination, no suggestion was put if she had
not visited the appellant’s house to watch TV that day. The accused did not
set up plea of ‘alibi’. The prosecutrix claimed that Suraj - Appellant’s son
was present in the house but had gone to the toilet. The appellant did not
examine him to deny the victim’s assertion. She categorically claimed that
her mother had not tutored her the statement and she had deposed facts on
her own.
7. The child was very intelligent. She was examined in a
congenial atmosphere and was made comfortable to narrate her ordeal; she
drew a beautiful sketch of coloured flower; which is part of record. The
child had nothing to do with any animosity over any issue with her parents.
No valid reasons whatsoever exist to suspect the version given by the child
and to discredit her testimony.
8. PW-5 (Durga) has corroborated X’s version in its entirety and
no infirmities could be extracted in her cross-examination. She in fairness
disclosed that their relations with the appellant were cordial and she was
unable to fathom as to what had gone ‘wrong’ with the accused that day.
She denied the suggestion that quarrels used to take place over throwing of
dirty water or on fetching fresh water from the common tap. This defence
deserves outright rejection. The accused did not examine any witness in
defence to establish if on any particular date any altercation or scuffle had
taken place any time over any such issue. No complaint whatsoever was
ever lodged to the police or to the landlord (PW-1). For petty quarrels (if
any), victim’s mother is not believed to ‘use’ a child aged around five years
to settle score. Sexual assault on a tender aged girl is bound to create a
permanent impact and impression on the mind of such a girl, which may
permanently affect her adversely. The parents are reluctant to involve their
children over such trivial issues.
9. No question described as ‘leading’ causing prejudice to the
appellant has been put at the time of X’s examination. The Presiding Officer
is expected to remain sensitive particularly when a child of tender age is
under examination. While conducting trial, Court is not required to sit as a
silent spectator but to take active part within the boundaries of law, to bring
on record the relevant facts for the purpose of eliciting truth. True, ‘X’ was
not medically examined. However, it is inconsequential. Medical evidence
was not required in the absence of mere specific allegations of penetrative
sexual assault. Moreover, in ‘Dayal Singh vs. State of U.P.’, 2012 (8) SCC
263, the Supreme Court held that where the eye witness account is found
credible and trustworthy, medical opinion pointing to alternative
possibilities may not be accepted as conclusion. Besides it, plausible
explanation has been offered for it. Victim’s mother was apprehensive
about the painful procedure to be adopted at the time of such internal
medical examination and she did not like ‘X’ to undergo the said trauma.
10. The impugned judgment based upon fair appreciation of the
evidence deserves no intervention.
11. The sentence order is based upon fair reasoning. Minimum
sentence prescribed under Section 10 of the Act has been awarded and it
cannot be altered or modified. The crime committed by the appellant is
horrible as a child aged around five years was ravished by an individual
aged around 42 years, father of five children. ‘X’ was like his own
daughter; she had gone to his residence unsuspectingly to watch TV. The
appellant exploited her innocence and betrayed the trust of her family
members as neighbour.
12. The appeal lacks in merits and is dismissed. Trial Court record
be sent back forthwith with the copy of the order. A copy of the order be
sent to the Superintendent Jail for information.
(S.P.GARG)
JUDGE
AUGUST 04, 2016
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