Delhi District Court
In Re vs . on 7 March, 2014
IN THE COURT OF SH. BHARAT PARASHAR, ASJ-01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0053532013
Date of filing of charge sheet : 06.05.2013
Date of framing of charge : 10.05.2013
Date of final arguments : 20.02.2014
Date of judgment : 07.03.2014
SC No. 61/13
FIR No. 36/13
PS NARAINA
U/s 323/354/376 IPC
& 4/6/8/12 of POCSO Act
In re:
STATE
Vs.
SACHINDER
S/O LATE SH. NAHAR SINGH
R/O VILLAGE BHANPUR
POST OFFICE KANORA
PS HATHRAS
DISTT. ALIGARH, UP.
APPEARANCES
Present : Mr. Shiv Kumar, Ld. APP for the State.
Mr. R. S. Bhoria, Legal Aid Counsel for the accused.
JUDGMENT
1. Briefly stated the case of prosecution as unfolded by the report u/s 173 Cr.P.C. is as under:
State v. Sachinder Page 1 of 1FACTS
2. On 17.02.2013 at around 2 PM one girl child namely X (the particulars of whom are reflected in the charge sheet and withheld in order to conceal her identity and hereinafter also referred to as the prosecutrix) was playing on the roof of her house alongwith one boy Ansh. Accused Sachinder was carrying out the work of white washing on the roof and he suddenly caught hold of the prosecutrix and bit her on her lips and cheeks and also inserted his finger in her vagina. The prosecutrix accordingly started crying and came down. Her mother (her identity is also concealed) inquired from her the reason for crying and upon coming to know about the act of sexual assault committed by the accused immediately rang up her husband and landlord who soon reached there. Accused was apprehended and matter was reported to the police. Upon receipt of information vide DD no. 14A at PS Naraina, W/SI Nitesh Sharma alongwith Ct. Shyambir reached the spot and after enquiry she took the prosecutrix alongwith her parents to Safdarjung hospital for getting her medically examined. The doctor collected and sealed in a pulanda the underwear being worn by the prosecutrix and her vaginal swab. After taking into possession the said pullanda IO W/SI Nitesh Sharma recorded the statement Ex. PW 2/A of the mother of prosecutrix and on the basis of it prepared a rukka vide her endorsement Ex. PW 11/C and sent the same to PS Naraina for registration of the case through Ct. Shyam. IO thereafter returned back to the spot and prepared site plan of the place of incident on the pointing out of complainant. After interrogation accused was arrested and was got medically examined as he too had suffered injuries allegedly on account of falling down. On the next day accused was again got medically examined qua his potency test. Statements of both prosecutrix and her mother were got recorded U/s. 164 Cr.PC. The various samples/clothes collected during the course of investigation were sent to FSL and upon completion of investigation challan was filed in the court.
State v. Sachinder Page 2 of 2CHARGE
3. After compliance of section 207 Cr.P.C. charge for the offence u/s 323/354/376 of IPC & 4/6/8/12 of POCSO Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution thereafter in order to prove its case examined 12 witnesses. The accused was thereafter examined u/s 313 Cr.P.C. He however refused to lead any evidence in his defence.
PROSECUTION EVIDENCE
5. PW1 was the prosecutrix who in her deposition reiterated the manner in which accused Sachinder had sexually assaulted her. She stated that accused had bit her lips and cheeks. She even pointed out by way of indication that the accused had inserted his finger in her vagina and stated that "Ungli Shushu Mein Dali Thi".
6. PW2 Smt. Sangeeta Devi was the mother of prosecutrix who too in her deposition reiterated the case of the prosecution. She stated that when her daughter came down weeping than she enquired from her the cause of weeping and she told her that accused bit her on her lips and cheeks and even inserted his finger inside her vagina. She also stated the date of birth of her daughter as 26.6.2008.
7. PW3 Sh. C. Bhushan Swaian was another tenant residing in the same house who happened to reach the spot after accused was already apprehended. He stated that on that day he had returned to his house for lunch from his work place and found a crowd gathered over there. Upon inquiry he came to know that accused had done some wrong act with the prosecutrix who was aged about 3-4 years.
8. PW4 Smt. Kamlesh Parwana was the Principal of Evergreen Public School where the prosecutrix was studying. She proved the State v. Sachinder Page 3 of 3 admission record of the prosecutrix wherein her date of birth was recorded as 26.6.2008.
9. PW5 SI Daya Nand Lakra from PS Naraina was the Duty Officer who had recorded DD No. 14A vide which the initial information regarding the commission of offence was received in the police station. He thereafter handed over the copy of DD entry to W/SI Nitesh Sharma through Ct. Shyamvir for further necessary action.
10. PW6 Raj Kumar was the landlord of the house where the incident took place. He too stated that upon receiving information from Smt. Sangeeta he reached the spot and found accused present over there in a drunken state. He further stated that he noticed that the lips of the child were swollen and there were tooth-bite injury marks on her cheeks. He however stated that Smt. Sangeeta told him that no rape was committed with her daughter.
11. PW7 HC Parveen Kumar stated that on 18.02.2013 he alongwith Ct. Shyamvir had taken the accused to Safdarjung hospital for his potency test. After the examination, doctor gave him four sealed pullandas containing blood and other samples of accused and the sample seal. He gave them to W/SI Nitesh Sharma and the same were seized by her vide memo Ex. PW 7/A.
12. PW9 HC Kalu Ram was the M(HC)M with whom the various sealed pullandas alongwith sample seal were deposited by the IO. Subsequently on 25.02.2013 he had sent them to FSL, Rohini vide RC No. 15/21.
13. PW10 ASI Shankar Lal was the duty officer, PS Naraina who had recorded FIR Ex. PW 8/A.
14. PW12 Dr. Nivedita Raizada had conducted medical examination of the prosecutrix vide MLC Ex. PW 11/A. She also stated State v. Sachinder Page 4 of 4 that she found the upper lip of the prosecutrix swollen and there were bite marks on her left cheek around 5 cm long.
15. PW11 W/SI Nitesh Sharma deposed about the investigation carried out by her besides proving the various documents/memos prepared by her during the course of investigation.
16. PW8 Ct. Shyamvir had accompanied IO W/SI Nitesh Sharma in the investigation of the case and deposed almost on the same lines as W/SI Nitesh Sharma did and corroborated her deposition in material particulars.
17. In his statement u/s 313 Cr.P.C. accused however stated the case of the prosecution to be false and claimed himself to be innocent. He however stated that though in the lunch time besides taking meal he had also consumed a small quantity of liquor but he had simply asked the child to go down as some white washing material and other items like pipes were lying on the roof and while going down the child fell down and her lips got injured. He further stated that when the child started crying he simply, patted and consoled her with parental love and had not caused any kind of injuries to her or done any wrong act with her. He thus claimed himself to be innocent.
ARGUMENTS
18. I have heard Ld. APP for the State and Ld. Counsel for the accused and carefully perused the record.
19. It was vehemently argued by Ld. counsel for the accused that accused is primarily being charged on account of two acts viz. biting the prosecutrix on her cheeks and lips and inserting of his finger inside her vagina. It was submitted that the prosecutrix did not state anything about the accused having inserted his finger inside her vagina in her statement u/s 164 Cr.P.C. made before the Magistrate during the course of State v. Sachinder Page 5 of 5 investigation. It was thus submitted that the prosecutrix later on improved upon her deposition in the Court on account of tutoring by her mother. It was further submitted that the prosecution also failed to examine the sole eye witness of the incident namely child Ansh who could have only deposed anything about the incident in question. It was also submitted that the IO for reason best known to her did not prefer to record the statement of the prosecutrix on her own even though the child was found to be competent enough by Ld. MM for recording her statement u/s 164 Cr.P.C.
20. As regards the two charges regarding some bite marks and injury marks on the cheeks and lips of the prosecutrix, it was submitted that not only PW12 Dr. Nivedita Raizada did not support the prosecution case on this score but even the IO in her cross examination except for observing certain bluish marks on the lips of the prosecutrix, did not notice any other injury on the person of prosecutrix. Even the father and mother of the prosecutrix were stated to be contradicting each other as to whether the marks were on the right or left cheek of the prosecutrix. It was further submitted that accused who was residing for the past more than 25 years in the same area had no previous criminal record of any nature. It was also pointed out that accused has admitted in his statement u/s 313 Cr.P.C. that though he had consumed small amount of liquor on that day but as some white washing material was lying on the roof of the house so he had merely asked the two children who were playing on the roof to go down and the prosecutrix while going down fell down and sustained injuries on her upper lips. It was thus submitted that the prosecution has miserably failed to prove its case against the accused and accused was thus prayed to be acquitted.
21. On the other hand Ld. APP for the State strongly opposed the submissions made by Ld. counsel for the accused stating that there was no reason as to why a small child will tell a lie and that too to implicate the present accused only and no one else. The prosecution was thus stated to State v. Sachinder Page 6 of 6 have been successful in proving its case against the accused especially when section 29 and 30 of the POCSO Act raised a statutory presumption against the accused regarding his culpable mental state or regarding commission of offence by him unless contrary is proved. It was thus submitted that the accused has miserably failed in discharging his burden of proving his innocence.
22. Before dealing with the contentions raised by Ld. counsel for both the parties I prefer to refer to the provisions of section 29 and 30 of the POCSO Act, 2012.
23. Under Section 29 of POCSO Act, a mandatory presumption qua certain offences is to be drawn against the accused in a prosecution for certain offences and the same reads as under:
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under section 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
(emphasis supplied)
24. Similarly Section 30 of POCSO Act mandates that the special Court shall draw a presumption of the existance of culpable mental state of the accused where culpable mental state is required on the part of accused. Section 30 reads as under:-
30. Presumption of culpable mental state -
(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purpose of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its State v. Sachinder Page 7 of 7 existence is established by a preponderance of probabilities.
(emphasis supplied)
25. The use of expression "shall presume" has been defined in Section 4 of the Indian Evidence Act, 1872. As contrasted from the expression "if presume", the expression "shall presume" whenever used connotes "legal presumption" or "compulsory presumption" as contrasted from "factual presumption" or "discretionary presumption" emanating from the expression "may presume". "Legal presumptions" or "compulsary presumption" as are signified by the use of expression "shall presume" are infrences or proposition established by law, -- which the law peremptorily requires to be made whenever the facts appear which it assumes as the basis of that inference. The presumption of law are in reality rules of law, and part of the law iteself and the court may draw inference whenever the requisite facts are developed in pleadings.
26. Similarly whenever any law prescribes that the Court shall presume the existence of culpable mandatory stage or to draw a presumption regarding commission of any offence, unless the contrary is proved, the onus to prove the contrary undoubtedly shifts upon the accused. However, it does not discharges the prosecution of its duty to first establish and prove the facts, the existence of which can only lead to drawing of any such compulsory presumtion or legal presumption by the use of the expression "shall presume".
27. Thus, as per Section 29, if a person is prosecuted for committing or abating or attempting to commit any offence under S. 3, 5, 7 & 9 of POCSO Act, the special Court shall presume that such person has committed or abated or attempted to commit the said offence as the case may be unless the contrary is proved. The important question which thus arises is as to whether the prosecution is completely absolved of its duty to lead any evidence and the accused should be straight away called upon to lead its defence evidence.
State v. Sachinder Page 8 of 828. Undoubtedly under the criminal jurisprudence as applicable to Indian Law, the onus to prove the guilt of accused is upon the prosecution. The question however which arises for consideration in the present case or in cases where accused is being prosecuted for certain offences under the IPC and also under the provisions of POCSO Act as to upon whom the onus lies to prove the charges or the facts constituting the offence in question. In all such cases a very anomalous situation arises. Does it mean that for certain charges i.e. for the offences under IPC, the prosecution will lead its evidence and qua other charges i.e. under POCSO Act, the accused will lead its evidence.
29. Another situation which merits consideration is as to how accused can discharge its burden by proving to the contrary that no such offence was committed by him.
30. To my mind there can be only two ways to do so. Firstly the accused can point out in the evidence led by the prosecution that either the very ingredients of the offence for which he is being prosecuted does not stand proved or that evidence of the prosecution witnesses examined is not cogent, convincing and reliable. This he can achieve only by way of cross-examination of the prosecution witnesses. Secondly, the accused can lead evidence in his defence.
31. Certainly this evidence can only be positive evidence. The word "positive" signifies the nature of evidence which could make the commission of the offence in question by the accused improbable. Some illustration of such positive evidence can be a plea of alibi which may show that the accused could not have been present at the relevant time and place where the alleged act is stated to have been committed by him or by statement of other witnesses, who admittedly were present at the seen of occurrence, that the accused did not commit the offence in question.
32. Another incident of such positive evidence in certain cases viz State v. Sachinder Page 9 of 9 of rape or penetrative sexual assault can be the fact that accused was impotent and thus could not have committed the offence in question.
33. However can the accused be expected to lead negative evidence in a prosecution for any of the offences mentioned in Section 29 POCSO Act. The answer in my considered opinion is a strong "No". Negative evidence can only be led in those cases where the omission to do an act is an offence, such as an offence U/s. 21 POCSO Act where failure to report or record case by a person under this Act is itself an offence.
34. We have thus a situation where for certain offences for which accused has been charged, the onus to prove the guilt of accused is upon the prosecution and for other offences there is a mandatory presumption under the law against the accused that he has committed or abated or attempted to commit the offence unless the contrary is proved and the onus to prove the contrary is upon the accused.
35. Thus in view of my aforesaid discussion a harmonious construction of the provisions of law needs to be construed for otherwise a very absurd situation will arise. It is primarily for this reason only that during the course of trial, prosecution begins to lead its evidence so as to prove the facts establishing the ingredients of the offence under POCSO Act and at the same time proving the facts establishing the ingredients of the offence under IPC beyond reasonable doubt.
36. Coming to the facts of the present case, I may point out that the factum of the victim child playing on the roof of the house alongwith another child Ansh has not been disputed by the accused. It has also not been disputed that accused at that time was present at the roof as he was doing the work of white washing in the said house. Accused himself has also admitted in his statement U/s. 313 Cr. PC that he had consumed some liquour. The existence of injury marks on the lips of the child have State v. Sachinder Page 10 of 10 also not been disputed though accused has stated that the child sustained them after falling on the roof. The only question which thus remains to be examined is as to whether the version deposed by the prosecutrix is true or the defence taken by the accused that the child had fallen down on the roof and thus sustained injury has any semblance of truth in it or not.
37. Admittedly, the prosecution case is based on the sole testimony of the victim child who was 4 ½ years of age at the time of incident.
38. In so far as the issue that the child was 4 ½ years old at the time of the incident, the same not only stands established from the deposition of her mother PW 2 Ms. Sangeeta Devi but also from that of PW 4 Smt. Kamlesh Parwana who produced the admission form of the child wherein her date of birth was recorded as 26.06.2008. Infact accused has also not disputed the deposition of these two witnesses. Thus this fact stands well proved that the prosecutrix was aged about 4 ½ years as on the date of incident.
39. A question which further arises is as to whether conviction can be recorded on the sole testimony of a child witness or not? This issue was dealt by the Apex Court in "Virendra versus State of UP (2008) 16 SCC
582. Relevant paras are 18 to 21 and same are reproduced as under:
18. The Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, section 118 of the Evidence Act envisages that:
"118. Who may testify - All persons shall be competent to testify unless the Court consider that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind".
20. In Dattu Ramrao Sakhare v. State of Maharasthra [(1997) 5 SCC 341: 1997 SCC (Cri) 685] it was held as State v. Sachinder Page 11 of 11 follows: (SCC p. 343 para 5) "5. .......... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answer thereof. The evidence of a child witness and credibility thereof would depend uupon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
19. "A child of tender age can be allowed to testify if he or she has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
21. Subsequently, in Ratansinh Dalsukhbahai Nayak v. State of Gujarat [(2004)] 1 SCC 64 : 2004 SCC (Cri) 7] wherein one of us (Dr. Arijit Pasayat) was a member the Bench held that:
"the decision on the question whether the child witness has sufficieint intelligence primarily rests with the trial Judge who notices his manners, his apparent possessions 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" (emphasis supplied)
40. From the above, it becomes clear that before recording conviction on the sole testimony of a child witness i.e. the prosecutrix herein, the Court has to ensure whether the victim PW 3 is a reliable witness or not. If her testimony is found to be trustworthy and reliable than conviction can be recorded on her sole testimony otherwise accused will be entitled to benefit of doubt.
41. Coming now to the deposition of the victim child, I may point State v. Sachinder Page 12 of 12 out that during the course of her deposition in the Court the child specifically pointed out indicating that finger was inserted by the accused and she stated "Ungli Shushu Mein Dali". She further stated that accused had also kissed her on her lips and had bit her on her cheeks.
42. PW 12 Dr. Nivedita Raizada also in her deposition stated that when she examined the child she found the upper lips swallen and bite marks on left cheek around 5 cmm long. In her cross examination she specifically stated that the swallen lips looked more like a human bite and did not look like that the girl sustained such injuries on having fallen down. She however did state that she did not find any evidence of finger having been inserted as she stated that she did not find any redness or rashes or marks on the vaginal part.
43. Ld. Counsel for the accused however did point out that in her statement U/s. 164 Cr.PC also the child had not stated anything about accused having inserted his finger inside her vagina and that prosecution preferred not to examine the other child Ansh playing over there.
44. However in my considered opinion though the child did not state in her statement U/s. 164 Cr.PC about finger having been inserted in her vagina by the accused but in her deposition in the Court she categorically stated while pointing out that "Ungli Shushu Mein Dali". This fact is also mentioned in the history as reported on the MLC by the doctor and no question was put to the Doctor as to on what basis she recorded the said fact or who gave her the history. Even the mother of prosecutrix in her statement U/s. 164 Cr.PC had stated about the said act of finger having been inserted in the vagina of her child as told to her by her daughter. She stated all such facts immediately to the police also. She stated that when her daughter came down weeping than she asked her the cause of weeping and she told everything to her. This conduct of prosecutrix telling all the facts soon after the incident to her mother and her State v. Sachinder Page 13 of 13 disclosing all such facts immediately thereafter to police or in her statement U/s. 164 Cr.PC certainly makes her evidence relevant and admissible U/s. 6 & 8 of Indian Evidence Act 1872. Thus simply because this fact was not stated to by the child in her statement U/s. 164 Cr.PC does not lead to any such conclusion that at the time of her deposition in the Court, the child was tutoured.
45. Had there been any element of tutoring than there was no reason as to why the child would not have stated such a fact before the Magistrate at the time of recording her statement U/s. 164 Cr.PC. One can not be oblivious of the trauma which the child must be undergoing immediately after the incident. Thus much can not be read into the fact that mere omission to state certain facts under the statement U/s. 164 Cr.PC will discredit the deposition of the victim child in the Court.
46. In the case titled, Om Prakash V. State of U.P., (2006) SC 2214, it was observed by the Hon'ble Supreme Court that "The Courts while dealing with such cases (sexual offences) should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of prosecutrix, which are not of fatal nature to throw out an otherwise reliable prosecution case."
47. Thus, in my considered opinion, the deposition of victim child and that of her mother to whom immediately after the incident she narrated the entire facts followed by giving entire history to the Doctor at the time of the medical examination, leaves no room for any doubt about the veracity of their deposition. At the same time it would be also worthwhile to point out that mere absence of any rashness or injury on the private parts of the victim child cannot be by itself discredit the prosecution story that no finger was inserted by the accused in the vagina of the victim child. In such cases depending upon the degree of penetration injuries or rashness may occur but the absence thereof cannot be a conclusion to the contrary. Similarly State v. Sachinder Page 14 of 14 not much can be read with regard to the non-examination of the other child Ansh as it would not have been proper to subject yet another child to get associated with the proceedings of the police in the Court in a case of such nature and thereby causing not only physical and mental trauma to him but psychological also.
48. Moreover by virtue of Section 29 POCSO, a presumption arises against the accused upon being prosecuted U/s. 6 & 8 POCSO Act and the accused has miserably failed in proving to the contrary even by preponderance of probability much less beyond reasonable doubt. The prosecution, in my considered opinion has thus been successful in proving its case against the accused beyond shadows of all reasonable doubts. I accordingly, hereby held accused guilty of the offences U/s. 323/354/376 IPC and 6 and 8 of POCSO Act.
ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR)
TODAY i.e. 07.03.2014 Additional Sessions
Judge-01
New Delhi District
Patiala House Courts
New Delhi
State v. Sachinder Page 15 of 15