Delhi District Court
State vs Mustkim on 15 February, 2022
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
SC No. 517/2017
CNR No. DLWT01-007854-2017
State Versus Mustkim
S/o Sh. Mohd. Husain
R/o H.No. B-17B, Amar Colony,
Sarkari School Ke Pass,
Aggarwal Sweets Wali Gali,
Nangloi, Delhi.
FIR No. 255/2017
PS: Nangloi
U/s: 376/376(2)/366A/506 IPC
Date of filing Final Police report : 30.08.2017
Date of cognizance of offences : 30.08.2017
Date of framing of charges : 20.02.2018
Date of institution in this Court : 12.01.2022
Date of hearing arguments : 27.01.2022
Date of judgment : 15.02.2022
Appearances:
Sh. Atul Kumar Shrivastava, Ld. Addl. PP for the State assisted by Ms.
Deepika Sachdeva, Ld. Counsel from Delhi Commission for Women.
Sh. Abhijit Ashok Bhagat, Ld. Legal Aid Counsel from DLSA (West) for
the accused.
JUDGMENT:
ACCUSATION / CHARGE:
1. Accused Mustkim S/o Mohd.Husain aged about 28 years has been arraigned for trial on two counts of charges: firstly, that about 2-3 days prior to 27.06.2017 at B-17-B, Amar Colony, Near Sarkari School, Aggarwal Sweets Wali Gali, Nangloi, within the jurisdiction of PS Nangloi, he committed aggravated penetrative sexual assault SC No.517/17 State vs. Mustkim Page 1 of 32 repeatedly with prosecutrix Miss 'A' (referred by pseudonym to protect her identity), who was of 11 years age and thereby committed an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as 'POCSO Act'); and secondly to the effect that on the said date, time and place he criminally intimidated Miss 'A' by extending threats to kill her and thereby committed an offence punishable under Section 506 of the Indian Penal Code, 1860 (in short 'IPC'). The accused pleaded not guilty to the charges and claimed trial.
PROSECUTION CASE:
2. The prosecution case is that on 27.06.2017 DD No. 42A was lodged at PS Nangloi at 8.48 pm on an information by a person from mobile No. 8368543826 that 'ममरर बमटर कम ससथ एक आदमर नम गलत कसम ककयस हह"
and on the said information ASI Madan Singh (PW-9) along-with Ct. Balraj Bhardwaj (PW-10) reached the spot where they were informed that sexual assault had taken place upon a victim-child and such information was shared with senior officers. In the meanwhile, W/SI Pooja (PW-11) reached the spot along-with W/HC Om Prabha (PW-4) and after preliminary examination of the victim-child she was sent for medical examination to SGM Hospital. After medical examination was conducted, the victim-child Miss 'A' was brought to the Police Station and her statement Ex.PW-1/A was recorded to the following effect:-
"बयसन ककयस कक मम पतस उपररक पर अपनम मममर-पसपस कम ससथ ककरसए पर रहतर हह ह और 7th class मम पढतर हह ह हम पतस उपररक पर 4th floor पर रहतम हम। ममशतककम अअकल कररब एक ससल सम हमसरम नरचम वसलम floor मम रहतम हम। हमसरम ममशतककम अअकल सम घरमलल समबनध हह तथस हमसरस असपस मम एक - दस ल रम कम घर आनस जसनस थस। ममशतककम अअकल कबसबडम कक फहकटरर मम कसम करतस हह उनकक पतनर कसजल कम पसस फरन नहह हह जर ममशतककम अअकल ममरर मममर कम फरन पर अपनर पतनर सम बसत करनम कम ललए कसल करतम थम जर मम फरन लमकर जसतर थर SC No.517/17 State vs. Mustkim Page 2 of 32 इसर ददरसन मम ममशतककम अअकल सम बसतचरत करनम लग गयर। जर फरन पर ममरम सम गनदर-गनदर बसतम करतम थम जर आज यम 26/06/2017 सम 2-3 कदन पहलम ममशतककम अअकल ममझम पकडकर ऊपर छत पर लम गयम थम और ममरम कपडम कनकसल कदयम थम और उनहरनम अपनम कपडम कनकसल कदयम थम और अपनस सम-सम करनम वसलम सम ममरम ससथ गलत कसम ककयस थस उस कदन ममरर मममर मरर नसनर कम घर गई हह ई थर और ममरम पसपस गतम कक फहकटरर कसम करनम चलम गयम थम। ममशतककम अअकल नम ममझसम कहस कक यम बसत अगर ककसर कर बतसई तर जसन सम मसर दगअ ल स। जर आज dt 26/06/17 कर ममशतककम अअकल नम ममरस हसथ पकडस और ऊपर छत पर चलनम कर कहस जर महनम ससरर बसतम अपनर मममर कर बतलसई जर मममर नम ससरर बसतम पसपस कर बतसई पसपस नम 100 न० पर call कक जर असपनम ममरम मममर-पसपस कम ससमनम ममरम सम पलछतसछ करकम ममरम बयसन ललखस जर पढ ललयम ठरक हह। "
3. On the basis of said statement, rukka/remarks of the Investigating Officer were written Ex.PW-11/A and the same was sent to the duty officer, who received the same vide remarks Ex.PX-2 at 12.50 a.m. and the present FIR under Section 376/506 IPC read with Section 6 of the POCSO Act was recorded on 27.06.2017 at 00:50 Hours Ex.PX-1. It is the case of the prosecution that during ensuring investigation, the site plan of the place of occurrence Ex.PW-11/B was prepared and the accused was arrested on the pointing of the victim- child Miss 'A' on 27.06.2017 at 1.30 p.m. vide arrest memo Ex.PW-3/A and personal search memo Ex.PW-3/B. The accused was interrogated and he made a disclosure statement Ex.PW-9/A. After medical examination, the accused was produced before the then Special Judge, who remanded him to judicial custody. Needless to state that MLC of the victim-child Miss 'A' was collected and the sealed exhibits were collected from the attending doctors and were deposited in the malkhana.The victim-child Miss 'A' was produced for recording of her statement under Section 164 Cr.P.C. before Ms. Aakanksha Vyas, the then Ld. MM, (West), Tis Hazari Courts, Delhi on 27.06.2017, which his Ex.PW-1/C and same goes as under:-
"हमसरम एक uncle हह जर घर कम नरचम रहतम हह। वर Uncle नस ममझसम गनदर- गनदर बसतम करतम हह। वह ममझसम घर कक छत पम कपडम खमलवसतम हम। मतलब वर SC No.517/17 State vs. Mustkim Page 3 of 32 ममरम कपडम खरलतम हह। ऐसस दर बसर हह आ हह। वह ममझम छत पम बमलसतम हह। मम नहह जसतर भर तर वर ममझम हसथ पकड़ कम लम जसतम हह। उनहहनम दरनह बसर ममरम ससरम कपडम उतसरम, underwear भर। एक बसर तर उनहहनम अपनस हसथ घमसमड़स थस ममरम समसम वसलर जगह पम। अपनस भर ससरस कपडस खरलस थस उनहहनम। ममझम ददर हह आ थस। ममनम उनकर मनस ककयस पर वर बरलम कक जसन सम मसर डसललगअ स। कफर ममरस भसई आ गयस थस तर वर नरचम चलम गए। ममरम भसई नम ममझम नहह दमखस। कफर मह नरचम आ गयर। ममनम ककसर कर कमछ नहह बतसयस कयरकक उनहहनम ममझम धमकक दर थर कक ककसर कर बतसयस तर जसन सम मसर डसललगअ स। दस ल रर बसर भर उनहहनम ममरम ससरम कपडम खरलम और ममझम लमटनम कर बरलस। पर मह नहह लमटर कयरकक ममझम चककर आ रहम थम। उनहहनम भर अपनम कपडम खरलम थर। वर ममझम छम ड रहम थम। हसथ पम , पहर पम , छसतर पम और ममरम समसम वसलर जगह। उनहहनम अपनस ऊहगलर घमससयस थस ममरम समसम वसलर जगह मम। वह ममझम कह रहम थम कक मह उनकक समसम वसलर जगह अपनम ममह मम ललअ। कक उससम अचछस लगतस हह। पर ममनम नहह ललयस। वह ममझम अपनर समसम वसलर जगह चमममर लमनम कम ललए भर बरल रहम थम पर ममनम नहह ककयस। वह अपनस समसम वसलस जगह ममरम समसम वसलम जगह मम घमससनम कस करकशश कर रहम थम पर वह नहह घमस गयस। मम बमहरश हर गयर थर। कफर वर चलम गए। कल भर वर ममझम छत पम लम जसनम कक करकशश कर रहम थम लजससम ममरम हसथ मम और गदर न मम नसख़लन लग गयस। मम अपनम भसई कर सब बतस दर। ममरम भसई नम मममर कर बतसयस । कफर मममर- पसपस नम 100 न पम call ककयस।
4. During the course of further invvestigation enquiries were made with regard to the age of the victim-child Miss 'A' and it was found that her date of birth was 01.03.2006, and accordingly after sending the sealed exhibits collected from the Doctors to the FSL, the present charge-sheet was filed under Section 376/376(2)/366A/506 IPC read with Section 67 of the POCSO Act on 30.08.2017. After complying with mandate of Section 207 Cr.P.C., the charges under Section 6 of the POCSO Act and Section 506 IPC were put to the accused on 20.02.2018. During the course of trial, statement of Mr. Pawan Kumar Gupta, Ld. Counsel for the accused was recorded under Section 294 Cr.P.C. with regard to to admission/denial of certain documents. Suffice to state, FIR No. 255/17 running into 3 pages bearing signatures of duty officer ASI Matadeen at point A has been marked Ex.PX-1 (colly), endorsement on the rukka Ex.PX-2 and certificate under Section 65-B of the Indian Evidence Act bearing SC No.517/17 State vs. Mustkim Page 4 of 32 signatures of ASI Matadeen at point A has been marked as Ex.PX-3. Further, the proceedings/ statement under Section 164 of Cr.P.C. of the victim-child Miss 'A' recorded by the Ld. MM with request of the IO- W/SI Pooja for recording such statement running into 8 pages is marked Ex.PW-1/C. The MLC dated 27.06.2017 of accused under the signatures of Doctor Sudhir regarding his potency is marked Ex.PX-1. The FSL report dated 03.02.2018 prepared by Ms. Imrana, Sr. Scientific Officer (Biology) FSL is marked Ex.PX-2, and lastly, statement of ASI Surender Singh, who took the exhibits to FSL, Rohini was also admitted which is Ex.PX-3. The effect was that prosecution, that cited as many as 16 number of witnesses, was able to dispense with the formal examination of witnesses Nos. 6, 7, 10,12 & 16.
5. The main witness for the prosecution was ofcourse the victim-child Miss 'A', who was examined as PW-1 on 25.10.2018 (in Camera proceedings) and she was re-called for her further cross- examination on allowing an application under Section 311 Cr.P.C. moved by Mr. Abhijit Ashok Bhagat, Ld. Counsel for the accused from DLSA (West) on 10.03.2021, which was also conducted in Camera Proceedings. I shall delve into her testimony in the operative part of this judgment.
6. PW-2 was the mother of the victim-child Miss 'A', who has been examined by the pseudonym SMT. 'L' and PW-3 was father of the victim-child Miss 'A', who has been examined by the pseudonym SHRI 'V'. The other public witnesses were PW-5 Smt. Sunita, Vice Principal, Govt. Girls Sr. Secondary School, JJ Colony, Nangloi No.2, SC No.517/17 State vs. Mustkim Page 5 of 32 Delhi, who produced the school record of the victim-child Miss 'A' and deposed about various documents, which are Ex.Pw-5/A to Ex.PW-5/C to the effect that victim-child Miss 'A' was admitted in Class-6 on 04.04.2016 and her date of birth was indicated as 01.03.2006. PW-6 was Dr. Pawan Preet Kaur, who medically examined the victim-child Miss 'A' on 27.06.2017 and deposed about the remarks given by her as detailed in the MLC Ex.PW-1/B. The remaining witnesses were police witnesses viz. PW-4 W/HC Om Prabha, who on 26.06.2017 was associated in the investigation of the case with IO/SI Pooja, who deposed that she took the victim-child Miss 'A' to the Hospital for her medical examination, who was accompanied by her mother. PW-7 was HC Rajul Tyagi, who was Malkhana Incharge and deposed that on 27.06.2017 IO-W/SI Pooja had deposed three sealed parcels with two sample seals in a sealed condition in malkahna and relevant entries were made in register No. 19 vide Serial No. 2298, copy of which is Ex.PW-7/A. He further deposed that on 17.07.2017 on the instructions of the IO, the sealed exhibits with sample seal were handed over to ASI Surender for depositing the same with FSL vide RC No. 117/21/17 and the acknowledgment was returned back which is Ex.PW-6/C and an entry was made in register No.19, copy of which is Ex.Pw-7/B. PW-8 was W/SI Ekta, who was the successor Investigating Officer and made enquiries from 04.07.2017 onwards with regard to the age of the victim- child Miss 'A' and passed instructions for sending the sealed exhibits with sample seals to the FSL. PW-9 ASI Madan Singh, who reached the spot on receipt of DD No.42A along-with Ct. Balraj Bhardwaj and met victim-child Miss 'A' and her mother and stated that in the meanwhile investigation was taken over by W/SI Pooja, who came to SC No.517/17 State vs. Mustkim Page 6 of 32 the spot along-with W/HC Om Prabha. PW-10 Ct. Balraj Bhardwaj, deposed that on receipt of DD No.42A, he reached the place of occurrence along-with ASI Madan Singh, where they met the victim- child Miss 'A' and her mother. Lastly, the IO who initially conducted the investigation was PW-11 W/SI Pooja. The said witnesses were duly cross-examined by the Ld. Defence Counsel and I shall delve into the same in some detail in the operative portion of this Judgment.
7. On the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. through Video Conferencing on 05.08.2020 due to COVID-19 pandemic situation. The record reflects that on putting the incriminating face and circumstances produced by the prosecution against him on the judicial record, the accused denied that prosecution case and stated that he has been falsely implicated by the parents of the victim-child Miss 'A', who herself has deposed falsely. On being putting the question 'Why this case against you', vide question No. 25 and the question 'Do you want to say anything else', vide question No.26, the accused stated as under:-
ANS. (25)"When I used to go for my work and as my wife was not having any mobile phone and whenever my wife want to talk to me she used to call from the mobile of complainant. On one day I.e on the occasion of Eid on Feb- March 2017 as the mobile number of mine was saved in the Mobile of complainant, the prosecutrix started calling me without any reason and asking for friendship and I scolded her and told her not to call me. On one day the mother of the prosecutrix saw my number and called e by saying that you have done wrong act with my daughter and I will call the police and send you to jail.
Further, I was residing on the third floor and the prosecutrix with her family was residing on the fourth floor of the same building and there were two water tanks installed on the terrace, one each for two floors, and one one day in May, 2017 due to ailing of water from the overhead tanks, the SC No.517/17 State vs. Mustkim Page 7 of 32 father of the prosecutrix was using abusive language to me and my family members and on this issue there was a quarrel us and the father of prosecutrix had threatened me to falsely implicate in a case.
Further the prosecutrix used to call me through my daughter and sometimes prosecutrix used to call me directly for resolving her petty problems and issues.
ANS.(26)I am innocent and prosecutrix and her mother has falsely implicate me in the present case on the connivance of IO as I am from Muslim community and most of the people were residing there was of Hindu community and as I had not obeyed the demands of prosecutrix and the prosecutrix with the help of her mother has falsely implicate me in the present case".
8. It is pertinent to mention her that a copy of the statement of the accused recorded in the Court was kept and original was sent to Superintendent Jail for the signatures of the accused and after obtaining his signatures, the same was sent back and then has been kept on the record.
9. The accused elected to examine his brother Mohd. Nahim Hussain as DW-1 in his defence. DW-1 deposed that during the relevant time he was residing with his brother (accused) and his bhabhi on the second floor of the house, while the family of the prosecutrix / victim was residing on the fourth floor; and that his brother was working at a Kabadi shop near Hanuman Mandir, Nangloi, Najafgarh, Delhi and that his bhabhi was a house wife and was not having any mobile phone and she used to call her husband through the mobile phone of the mother of the prosecutrix. He deposed that mobile number of his brother was saved in the mobile of mother of the prosecutrix/victim but the victim/ prosecutrix used to call his brother through the mobile phone of her mother and used to say 'तम ममझसम दरसतर कर लम नहह तर तमझम झलठम SC No.517/17 State vs. Mustkim Page 8 of 32 कमस मम फअसस दगअ म र'. He deposed that on 18.06.2017 when he was present with his brother and had gone to Nangloi to purchase some clothes, prosecutrix called and she again threatened his brother in the same vain and his brother told her ' तल ममझम बसर बसर फरन कर कम परमशसन मत कक नहह तर मम तमरर मसह कर बतसऊअगस'. He deposed that on reaching back to home, his brother told the said fact to his wife and all of them went to the house of the girl and complained to her mother upon which her mother stated 'तमम ममरर लडकक पर झलठम आररप मत लगसओ, नहह तर मकसन सम कनकलवस दहगम र'. He testified that on 26.06.2018 he along-with his eldest bhabhi i.e. wife of the accused and other brother Nadim and his wife went to Peeragarhi Park for walk and while they were returning Mustkim had called him and told him that officials of PS Nangloi had called him and they reached Police Station where they found that his brother has been arrested on false allegations of the prosecutrix. In his defence, he placed on record CDR of the mobile phone No. 8384063829, copy of which is Ex.DW-1/A. The filing of such CDR was objected to by the Ld. Addl. PP for the State but considering that it was a part of the charge- sheet and not exhibited by State, the CDR was marked Ex.'X' LEGAL SUBMISSIONS:
10. Ld. Addl. PP for the State assisted by Ms. Deepika Sachdeva, Ld. Counsel for from DCW urged that this was a case where the victim- child had vividly narrated the ordeal of abuse and act of penetrative sexual assault besides criminal intimidation committed upon her by the accused on various occasions and the version of the prosecutrix is substantiated by her medical history by PW-6 who opined that there was small laceration in fourchette & erythma present besides the fact SC No.517/17 State vs. Mustkim Page 9 of 32 that injuries in the nature of nail scratching were observed on her chest and abdomen and nail. It was urged that laceration on the fourchette substantiated the version of the child victim wherein she deposed that on two occasions the accused inserted his finger in her vagina. It was urged that PW-6 Dr. Pawan Preet Kaur categorically testified that abrasions may come from falling but nail scratchings cannot come from falling. Ld. Addl. PP for the State urged that sole testimony of the victim-child Miss 'A' was reliable, and therefore, conviction of the accused can be based on the sole testimony of the victim-child Miss 'A' for which reference was made to a decision in the case of Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341; Menoka Mallik & Ors. v. State of West Bengal & Ors., Criminal Appeal No. 1198/06 decided on 28.08.2018. Reference was also made to the observations of the Hon'ble Judges of the Supreme Court on how to appreciate the evidence of the victim of rape in the case of State of Punjab v. Guremeet Singh, AIR 1996 SCC 1393.
11. It was further urged that there was there was no delay in lodging of the FIR and the accused has miserably failed to rebut the presumption of the guilt under Section 29 of the POCSO Act as he has taken contradictory defence to the effect that there was a quarrel with the family of the victim-child over the use of overhead water tank while DW-1 stated that victim-child wanted to forge a friendship with him or else threatened to falsely implicate him while another defence that was taken was that the accused was a Muslim boy and the tenants in the building including the family members of the victim child wanted them to leave the house.
SC No.517/17 State vs. Mustkim Page 10 of 3212. Per contra Mr. Abhijit Ashok Bhagat, Ld. Counsel for the accused from DLSA (West) urged that there were various inconsistencies and improvements in the version of the victim-child from the stage of reporting the matter, statement under Section 164 Cr.P.C. and later final deposition in the Court as while in her complaint to the police, she stated that accused had taken her 2-3 days prior to the 26.06.2017 on the roof and committed sexual assault upon her but no date time, or month of the incident was indicated in the statement under Section 164 Cr.P.C. and rather new version came about in her statement to the Magistrate regarding insistence by the accused to have oral sex with her(wanting to have his male organ in her mouth). Referring the version of the victim-child in the statement under Section 164 Cr.P.C. It was pointed out that if such version is believed, there were two elder brothers present around the same time but she did not reveal the incident to anyone and it is not fathomable that mother despite seeing that her daughter was being taken away forcibly by accused and seeing him in a underwear did not protest. It was urged that the building in question was a big one where several tenants were residing, that was located in a densely populated area where roof of the adjoining house touch one another and roof of the house across the house were also separated by narrow gali and it is not conceivable that the accused committed such ghastly crime during the day time. It was urged that testimony of the PW-2 and PW-3, the parents of the victim-child were hearsay and their version was not reliable. It was pointed out that no PCR form at No. 100 was placed and the DD No. 42A was forged as it is showing the date as 27.06.2017 and not 26.06.2017. Lastly, it was urged that victim-child has not explained SC No.517/17 State vs. Mustkim Page 11 of 32 how she sustained abrasions and/or nail marks on her body and from the vaginal swabs taken at the time of medical examination, no male DNA profile could be generated, and thus, there is not evidence worth its salt that the accused sexually assaulted the victim-child in the manner alleged or deposed by her.
DECISION:
13. I have given my thoughtful consideration to the submissions advanced by Ld. Addl. PP for the State and Ld. Legal Aid Counsel from DLSA (West), who has discharged his professional duties in admirable manner. I have also gone through the oral and documentary evidence led during the trial. I have also gone through the written submissions filed by the Ld. Addl. PP for the State as also the written submissions filed by the Ld. Counsel for the accused.
UNDERSTANDING THE POCSO ACT:
14. Before adverting to the rival submissions advanced by the Ld. counsel for the parties, it would be expedient to refer to the relevant provision of the POCSO Act. The POCSO Act has been enacted not only to protect the children from the offences of sexual assault but also to introduce child friendly jurisprudence by providing for establishment of Special Courts for trial of such offences and for the matters connected therewith or incidental thereto . A new category of offence is created i.e. Penetrative Sexual Assault by virtue of Section 3 and provided punishment under Section 4 of the POCSO Act whereas Section 5 defines offence of "Aggravated penetrative sexual assault".SC No.517/17 State vs. Mustkim Page 12 of 32
15. In order to decide the instant matter, it would be expedient to reproduce section 3 of the POCSO Act that defines the expression "Penetrative sexual assault" as under:
"3.Penetrative sexual assault.- A person is said to commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or make the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
16. Since the accused has been charged for offence under Section 6 of the Act, which provides for punishment for committing offence of aggravated penetrative sexual assault, which for the instant matter brings into application section 5(l) of the POCSO Act to mean committing penetrative sexual assault upon a child under twelve years of age for than once or repeatedly. The POCSO Act as also post the Criminal Law(Amendment) Act 2013 have introduced a new section 375 in the IPC, that have modified the traditional concept of rape that was confined to 'Peno-vaginal' heterosexual intercourse, thereby bringing within its ambit all kinds of orifices and parts of body in considering the issue of sexual assault in a gender neutral sense. In Aman Kumar v, State of Haryana, (2004) 4 SCC 379, although the SC No.517/17 State vs. Mustkim Page 13 of 32 aspect of "penetration"was addressed in the context of the then existing definition of rape, and it was held that in order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. Further, the Hon'ble Supreme Court in the judgment Wahid Khan v. State of Madhya Pradesh, (2010) 2 SC 9 has held that even slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. Relying on the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) at page 495, the Supreme Court further held that partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. Thus, penetration, full or partial, is at the core of applicability of section 5 of the POCSO Act. At the cost of repetition, the newly defined sexual offences under the POCSO Act brings within its ambit all kinds of orifices and parts of body as well.
PROPOSITION OF LAW ON APPRECIATION OF TESTIMONY OF A CHILD WITNESS:
17. It is well settled that in criminal jurisprudence that the sole testimony of the victim of sexual assault can be relied upon to convict the accused without independent corroboration provided that the testimony is of "sterling quality" leaving no shadow of doubt over its veracity. In the case of State v. Wasim, 2017 SCC On Line Del. 8502 wherein the Bench had while finding that the testimony of the prosecutrix therein could not be relied upon, observed that "the testimony SC No.517/17 State vs. Mustkim Page 14 of 32 of the prosecutrix must be unimpeachable and beyond reproach precluding any shadow of doubt over her veracity. In Ramdas v. State of Maharashtra, (2007) 2 SCC 170, it was held:
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony."
18. In the case of State of Rajasthan v. Babu Meena, (2013) 4 SCC 206 it was observed that:
"oral testimony can be classified into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.
19. In another case titled as Mohd. Ali v. State of U.P., (2015) 7 SCC 272, it was held that:
"29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is SC No.517/17 State vs. Mustkim Page 15 of 32 that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished a number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon.
30. True it is, the grammar of law permits that the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely does not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the appellant-accused for the alleged offences and the High Court has fallen into error, without reappreciating the material on record, by giving the stamp of approval to the same."
20. Further, the Apex Court in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 reversed the conviction of the Trial Court and its confirmation by the High Court finding contradictions in the testimony of the prosecutrix and that the same was inconsistent with the remaining evidence of the prosecution. While doing so, the Supreme Court examined as to when the prosecutrix can be called to be a "sterling witness‟ as under:
"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, SC No.517/17 State vs. Mustkim Page 16 of 32 therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." {italic bold sentences emphasised}
21. In the case of State of U.P. v. Krishna Master, (supra), it was observed that:-
"Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the SC No.517/17 State vs. Mustkim Page 17 of 32 evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. {paragraph 15} If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. {paragraph 16} In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In SC No.517/17 State vs. Mustkim Page 18 of 32 sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case. {paragraph 17} {italic bold sentences emphasised}
22. In the same case State of U.P. v. Krishna Master, (supra) in paragraph (24 & 37 ) it was cautioned however that:
"The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness. This Court is of the firm opinion that it would be doing injustice to a child witness possessing a sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. Therefore, the specious ground on which the reliable testimony of PW 2 Madan Lal came to be disbelieved can hardly be affirmed by this Court." {italic bold sentences emphasised} APPRECIATION OF EVIDENCE:
23. In view of the aforesaid proposition of law, reverting to the instant case, the prosecution has to bring home certain foundational facts in order to prove the guilt of the accused. First thing first, it is SC No.517/17 State vs. Mustkim Page 19 of 32 proven by the prosecution that the date of birth of the prosecutrix was 01.03.2006 as per the school records Ex.PW-5/A to PW-5/C, collected by the Investigating Officer and as also deposed about by PW-5 the Principal from the School prove that the prosecutrix was a 'child within 12 years of age' at the time of commission of alleged offence for the applicability of the provisions of Section 5 (l) of the POCSO Act. Secondly, the competency of the child witness to depose in the matter is beyond any doubt, which was duly ascertained by the Ld. MM while recording her statement under Section 164 Cr.P.C, which is Ex.Pw-1/C on 27.06.2017. The prosecutrix was about 11 years of age at that time and she stated that she was studying in 7 th Standard and the Ld MM made observations that victim-child was replying to her queries without any fear, force or pressure. Likewise, when the victim-child was examined in Vulnerable Witness Deposition Room on 25.10.2018, the Ld. Special Judge raised some preliminary inquiries and based on the responses, it was categorically observed that the prosecutrix was able to understand the questions put to her and she was well oriented and giving rational responses. As she was 12 years of age and understood the sanctity of oath, she was administered oath.
24. Thirdly, coming to the crucial aspect of appreciation of the evidence given by the prosecutrix PW-1, her short testimony recorded before the Court goes as under:
"Upon questioning the prosecutrix and answers given by her, I am of the opinion that prosecutrix is able to understand the questions and to give rational answers. SHe is well oriented. Despite his tender age of 12 years, the child understands the sanctity of oath and thus, I have administered Oath to the child witness.SC No.517/17 State vs. Mustkim Page 20 of 32
Let her statement be recorded on Oath.
ON SA
1. मम बसरह ससल कक हह ह। ममरम पररवसर मम मममर, पसपस और हम दर बहन-भसई रहतम हह। घटनस कम समय हम ककरसए कम मकसन मम चदथर मअलजल पर रहतम थम। अब हमनम अपनस मकसन बनस ललयस हह और हम उस मकसन मम रहतम हह।
2. हमसरम नरचम कक मअलजल मम भर ककरसएदसर रहतम थम।
3. यम 2017 कक बसत हह, ममसतककम अअकल हमसरम घर कम नरचम रहतम थम और वर ममझसम गअदर गअदर बसतम करतम थम , और छत पर बमलसतम थम , और कफर ममरम कपड़म खमलवसतम थम, ममरर समसम वसलर जगह पर हसथ डसलतम थम , और अपनम कपड़म भर खरल लमतम थम, और अपनम समसम वसलस भसग ममरम ममहह मम दमतम थम और ममरर समसम वसलर जगह मम ऊगलर डसलतम थम। एक बसर वर अपनस समसम वसलर जगह ममरम समसम वसलम मम डसल रहम थम महनम मनस ककयस तर हसथ डसल रहम थम , यम लगभग दर-चसर कदन तक हह आ। वर ममझम धमकक दमतम थम कक अगर मममर-पसपस कर बतसएगर, तर ममझम कहह छरड़ आएगस। कफर तल अपनर मममर सम कभर नहर कमल पसएगर। कफर एक कदन वर ममझम जबरदसतर ऊपर लम जस रहम थम तर ममरर मममर नम दमख ललयस और पमललस कर फरन कर कदयस।
4. My mother told my father and my father made the police complaint. Police inquired from me and I gave complaint to the police.
(At this stage, the complaint of the prosecutrix is shown to her and after showing the same and explaining it to her, she is further examined.) The complaint is Ex. PW 1/A, it bears my signatures at point A. I have gone through the complaint today in the court. It is my complaint which was given to the police.
5. I had been taken to the SGM hospital where I was medically examined.
(At this stage, MLC of the prosecutrix is shown to her and after showing the same and explaining it to her, she is further examined.) I was medically examined vide MLC dated 27.06.2017. The MLC is now exhibited as EX.PW- 1/B and it bears my thumb impressions at point A. At this stage, Ld. Addl. PP has requested to show the accused on the screen as the child witness is of tender age and she wants to put some leading questions about the accused and then she wants to convey further questions about the incident only on seen the accused.
6. I was also taken before a Lady Judge and I have told the Lady Judge about the incident. My statement was recorded by her.
(At this stage, an envelope sealed with the seal of 'AV' is opened which contains the proceedings conducted u/s 164 Cr.PC, the application of the IO for request for recording the statement and for copy, all running into 8 pages.
(The statement of the prosecutrix recorded u/s 164 SC No.517/17 State vs. Mustkim Page 21 of 32 Cr.PC is shown to her and after going through ( read over) she confirmed the statement as same given by her and then she was further examined ).
I was produced before a Lady Judge at Tis Hazari Courts who had recorded my statement. My statement u/s 164 Cr.PC is Ex. PW 1/C (colly, 8 pages) and it bears my signatures at point A. Whatever has been written in such statement, I had told the Lady Judge in such statement.
7. (At this stage, the accused Mustkim who is sitting in a separate enclosure is shown to the witness through the one way visibility window on her screen. After the witness has seen the accused Mustkim, she is further examined).
I have seen the accused Mustkim who has been shown to me on screen. He is Mustkim. He is the person who has done the above-noted activities with me.
(The witness has correctly identified the accused Mustkim as the person who committed the above said activities stated by the witness).
8. During the investigation, I had shown the place of occurrence to the police and they inspected the spot.
XXXXXX by Sh. Pradeep Kumar, Ld. Counsel for the accused Mustkim.
1. जहसह हम रहतम थम चदथर मअलजल पर दर कमरम बनम हह ए थम। बरसबर वसलम कमरम मम ममसककम कक पतनर कक बहन, उनकस पकत और उनकस लड़कस रहतस थस। वर लड़कस छरटस सस थस vol.. इशसरम सम बतसयस।
2. यम बसत सहर हह कक हमसरर पसनर कक टअकक छत पर लगर हह ई थर।
3. यम बसत गलत हह कक पसनर कक टअकक मम पसनर नहर चढनम कर लमकर तरसरर मअलजल वसलह सम झगड़स रहतस थस।
Vol....पसनर कक टअकक मम पसनर नहर चढनम कक वजह सम नरचम तरसरम मअलजल वसलह सम लसफर एक बसर झगड़स हह आ थस कयहकक ककसर नम मरटर खमलर छरड़ दर थर।
4. यम बसत सहर हह कक घटनस वसलस कदन, लजस कदन मममर नम दमख ललयस थस ममझम जबरदसतर लम जसतम हह ए, उस कदन ईद थर।
5. यम बसत गलत हह कक जब ममसतककम ममझम ऊपर जबरदसतर लम जस रहस थस उस कदन ममरम मममर कम अलसवस ममसतककम कक पतनर कक बहन कम पररवसर नम भर ममझम दमखस थस Vol.... उस कदन उस घर मम तसलस लगस थस कयहकक ममसतककम कक पतनर कक बहन कसम पर जसतर थर।
6. यम घटनस कदन कम समय कक थर।
7. यम बसत ममझम नहर पतस कक ममसतककम समबह जलदर कसम पर जसतस हह और रसत दमर तक कसम सम वसकपस आतस हह।
8. यम बसत ममझम नहर पतस कक first floor और second floor पर कदन लरग रहतम थम।
9. यम घटनसएअ गमर कम कदनह कक हम।
10. यम बसत सहर हह कक मकसन कम ककरसएदसर कदन मम कपड़म समखसनम छत पर जसतम थम और रसत मम सरनम कम ललए छत पर जसतम थम।
11. यम कहनस गलत हह कक जहसर घटनस महनम बतसई जबरदसतर हसथ पकड़कर लम जसनम वसलर वर हर नहर सकतर थर, कयहकक वहसह पर हर समय बहह त ससरम लरगह कस आनस-जसनस रहतस थस। Vol..... कदन कम समय वहसह पर करई भर आतस नहर SC No.517/17 State vs. Mustkim Page 22 of 32 थस लसवसय छमटर वसलम कदनह कम, जयसदसतर सभर लरग कसम पर रहतम थम।
12. यम बसत सहर हह कक ममसतककम कक पतनर और उसकम छरटम -छरटम बचचम उसकम ससथ वहह रहतम थम।
13. महनम ममसतककम कक गअदर हरकतह कम बसरम मम ममसतककम कक पतनर कर नहह बतसयस कयहकक उसनम मनस ककयस थस।
14. यम बसत सहर हह कक ममसतककम कक बरबर कहह बसहर कसम नहर करतर थर और वहह पर रहतर थर।
15. यम बसत गलत हह कक ममसतककम कक बरबर सम ममरम मममर-पसपस कस पसनर कक टअकक कर लमकर झगड़स हरतस रहतस थस। Vol.....लसफर एक बसर हर हह आ थस।
16. यम बसत सहर हह कक ममसतककम ममससलम थस और बसकक सभर उस मकसन मम रहनम वसलम कहनद ल थम लमककन ममझम नहर पतस कक वर सभर इनकम पररवसर कर कनकलवसनस चसहतम थम।
17. यम कहनस गलत हह कक ममसतककम कम पररवसर सम हमसरर टअकक कम पसनर कर लमकर झगड़स हरतस रहतस थस और इसललए ममसतककम कर ममरम पररवसर नम झलठस फससयस हह और ममरस पररवसर इनकम पररवसर कर औरर कम ससथ कमलकर कनकसलनस चसहतस थस कयहकक यम ममससलम थम।
18. यम कहनस गलत हह कक ऐसर करई घटनस नहर घटर और महनम अपनम पररवसर कम कहनम पर यम बयसन कदयस हह।
(Recalled for cross-examination u/s 311 Cr.PC) ON SA xxx by Sh. Abhijit Ashok Bhagat, Ld. Counsel for the accused Mustkim It is correct that rooms are also built up on all the floors.
It is correct that the children and other family members were also residing in all rooms.
There was one stair case to go up to the roof of the building. During day time few persons came at the roof.
I have studied in two schools and in first school was Govt. school from Ist to Vth and other school was also Govt. school from 6th to 8th Class. Both were at Nangloi. I never failed in any class during my studies. The school shift was 7.00 AM to 2.00 PM. It took 15 minutes to return back to my house from the school.
ममनम पहलम जज ससहब कर अपनम बयसन मम कहस थस कक यम 2017 कक बसत हह। (Confronted with statement 164 Cr.PC Ex PW-1/C whereas it is not so mentioned.) पशन- आपनम करटर कम ससमनम कदए गए अपनम बयसन मम यम कहस थस कक "यम लगभग दर-चसर कदन तक हह आ, और उसनम कहस कक अगर मममर-पसपस कर बतसओगर तर तममहम कहह छरड़ आएह गम और तल अपनम मममर-पसपस सम कभर कमल नहह पसएगर।"
कफर एक कदन वर ममझम जबरदसतर ऊपर लम जस रहम थम तर ममरर मममर नम दमख ललयस और मममर नम पमललस कर फरन कर कदयस।
कयस यम बसत आपनम अपनम बयसन मम जज ससहब कर बतस दर थर?
उतर- हसह।
(Confronted with statement 164 Cr.PC Ex PW-1/C whereas it is not so mentioned.) यम कहनस गलत हह कक ममरम ससथ ऐसर करई घटनस नहह हह ई।
यम कहनस सहर हह कक ममसतककन कक बरबर कम पसस फरन नहह थस और ममसतककन अअकल ममरर मममर कम फरन पर फरन करतम थम और अपनर बरबर सम बसत करतम थम।
SC No.517/17 State vs. Mustkim Page 23 of 32जब ममसतककन अअकल ममरर मममर कम फरन पर फरन करतम थम तर कभर मम फरन उठसतर थर तर मम उनसम यम कहतर थर कक मम आपसम बसत नहह करनस चसहतर। यम कहनस गलत हह कक ममनम ममसतककन कर फमडकशप कम ललए कहस थस। ममझम अपनम भसई कक जनमकतलथ यसद नहह हह।
यम कहनस सहर हह कक जब मम अपनम भसइयह कम ससथ खमलतर थर तर खमलतम -खमलतम कभर चरट लग जसतर थर।
यम कहनस सहर हह कक ममरर मममर ममझम एगजसम और टलशन कक तहयसरर करवसतर थर।
यम कहनस गलत हह कक ममरर मममर नम जज ससहब कम ससमनम बयसन दमनम सम पहलम ममझम टलटर ककयस थस।
यम कहनस गलत हह कक ऐसर करई घटनस नहह घटर जर ममनम करटर कम ससमनम कहस थस। "
25. A bare perusal of the aforesaid testimony would show that the prosecutrix on being examined in the Court on 25.10.2018 testified that accused used to indulge in dirty talks with her and used to call her to the roof where he used to removed her clothes as well his own clothes and used to insert his hand/finger into her private part and used to insert his penis into her mouth and he also attempted to insert his male organ or hand into her private part. She stated that such kind of act took place on 2-4 कदन तक and the accused threatened her not to reveal any thing to her parents or else he would take her somewhere far away from her mother. The prosecutrix in her complaint/statement Ex.PW- 1/A stated that the accused was residing on the floor above theirs in the building for about a year and the accused was having good family relationship with them, and she stated that his wife Kajal was not having a phone, and therefore, accused used to call on the mobile of her mother and sometimes she used to take the mobile phone to the accused and she stated that accused used to indulge in dirty talks with her. She then specifically stated that about 2-3 days prior to 26.06.2017, the accused had forcibly taken her to the roof of the building where he removed her clothes and also removed his own SC No.517/17 State vs. Mustkim Page 24 of 32 clothes and then inserted his penis in her vagina - अपनस सम-सम करनम वसलम सम ममरम ससथ गलत कसम ककयस थस.
26. In her complaint/statement Ex. PW-1/A she further stated that on 26.06.2017 the accused again caught hold of her hand and asked her to accompany to the roof but she refused and revealed everything to her mother. In her statement under Section 164 Cr.P.C. Ex.PW-1/C, reproduced hereinabove, the prosecutrix apart from repeating what she had earlier stated to the police added that that sexual assault had taken place twice. She stated that accused used to take her to the roof and used to remove her clothes and also his clothes including his underwear and she stated that accused even inserted his hand in her private part, which caused her pain. She stated that when she resisted, the accused threatened to kill her, and therefore, she did not tell the incident to anyone. She then stated that second time the accused removed her clothes and told her to lie down but she did not do so since her head started spinning but the accused removed her clothes and then he fiddled with her body by touching her everywhere and then also touched her private part and inserted his finger inside it. She also stated that accused asked her to take his penis into her mouth but she refused. She further stated that accused asked her to kiss his penis but she did not do that and accused tried to insert his penis into her private part but it did not go inside and due on experiencing pain she fell unconscious. She then stated that accused then went away and yesterday the accused again tried to take her forcibly to the roof, and therefore, she suffered nail scratch on her hand and neck part and told everything to her mother SC No.517/17 State vs. Mustkim Page 25 of 32
27. On a meticulous examination of the above referred version at three different occasions and her cross-examination conducted on 25.10.2018 and 10.03.2021, I have no hesitation in holding that PW-1 came out unscathed in her version of the incident. She revealed in her cross-examination that it was a four storeyed building and most of the tenants/occupants were working class people and were not present during the day-time. She denied the suggestion that it was not possible that the accused attempted forcibly to take her to the roof as there were so many occupants in the building who kept on coming and going, to which prosecutrix deposed that nobody was available during the day time except on holidays since most of the occupants were working during the day time. Although she conceded that wife of the accused was not working and residing in the building with her children, she denied that on 26.06.2017 the wife of the accused also saw her going to the roof with the accused, which suggestion seems to be strange.
28. Any how, what is clearly discernible from the cross examination of PW-1 is that accused has come out with multiple defenses one after the other each time giving a different reason for his false implication. Initially a suggestion was given that there was dispute over water tank on the roof with her family to which PW-1 stated that only once there was some altercation since the motor was left running and she denied that there had been constant bickering over the same. The accused then in his statement under Section 313 Cr.P.C. gave a new twist to the story by stating that there was dispute not only due to falling of water from the overhead tank over which in May-2017 the SC No.517/17 State vs. Mustkim Page 26 of 32 father of the girl had abused him, but he also introduced a new twist to the tale by stating that prosecutrix used to call him and she wanted to become friendly with him and he had scolded her. No such defense about the dispute over water tank on the roof and/or aspect of the prosecutrix infatuated with the accused was put to mother of the prosecutrix PW-2 Smt. 'L', or for that matter to her PW-3. Another defence was taken that since he was from Muslim community and most of people residing in the building were from Hindu community, and because he had not obeyed the demands of the prosecutrix, the accused was falsely implicated by the prosecutrix in collusion with her mother. The part of the testimony of DW-1 that his brother-accused had told him that prosecutrix wanted to have friendship with him and the said fact was also told by the accused to his wife and then they went and complained to the mother of the prosecutrix who stated that ' तमम ममरर लडकक पर झलठम आररप मत लगसओ, नहह तर मकसन सम कनकलवस दहगम र', was not even put to PW-2, the mother as well as father of the prosecutrix.
29. Much mileage was sought to be taken by the Ld. Defence Counsel with regard to improvement made by the prosecutrix over her initial statement to the police Ex.PW-1/A and later under Section 164 Cr.P.C. besides in the Court, with which she was confronted, as reflected above in the statement of the prosecutrix recorded in the Court. I am unable to persuade myself to find any blemishes in the testimony of the prosecutrix so as to find her story unreliable. The testimony of the prosecutrix is not to be appreciated from an adult point of view, but from the mindset of a child. The children often find it difficult to express themselves for variety of reasons, and when SC No.517/17 State vs. Mustkim Page 27 of 32 someone close to the family subjects them to sexual abuse, they are reluctant to discuss sexual abuses with their parents as they are unsure as to how their parents would react. The children less than 12 years of age are "asexual" and they normally take time to recognize that the disguised love, affection or warmth by the perpetrator is wrongful or sinful, and on becoming aware of its implications, the next stage is that of putting up resistance and reporting the incident to the near and dear.
30. The testimony of the prosecutrix appreciated in such manner in the present case reveals a coherent story that the accused was close to their family, that he used to call his wife on the mobile phone of the mother of the prosecutrix and sometimes prosecutrix carried the mobile phone to the accused and she testified that the accused used to indulge in dirty talks and twice he had taken her to the roof and removed her clothes as well as of his own and he inserted his finger and also attempted to penetrate into her private per besides asking for or committing oral sex and the fractured version of her ordeal came out with lot of trauma and pain. She did not depose in a parrot like manner and there is nothing to suggest that she had been tutored by her mother or any one else. I, therefore, find that the testimony of the prosecutrix is of sterling quality having a ring of truth around and can be safely relied upon to base conviction of the accused on her sole testimony.
31. The plea by the Ld. Defence Counsel that the version of PW- 2 in her cross-examination that she saw her daughter on the roof at SC No.517/17 State vs. Mustkim Page 28 of 32 5.30 p.m. along-with the accused who was wearing an underwear and yet she did not raise any alarm, is not palatable. It has to be understood that the parties were not residing in an affluent society building but in a building where everyone was belonging to the working class and it is not unconceivable that sometimes men folks walk around in underwears or shorts in summer season due to heat factor and it strikes to reason that PW-2 never suspected that the accused would indulge into any kind of immoral or indecent act with her daughter due to family closeness. While testimony of PW-3 father of the prosecutrix may be discarded as hearsay, the testimony of PW-1 prosecutrix is corroborated by her mother PW-2 that her daughter narrated to her that the accused had committed wrong act with her and when she refused to go with him against, he threatened to throw her under the metro train. Although, such kind of threat is amiss in the testimony of PW-1, the crux remains that PW-1 was afraid of the accused.
32. This brings us to the medical examination of the prosecutrix MLC Ex. PW-5/A that makes the following observations:
B. External Genitalia No injury
I. Labia Majora: Any swelling, tears, N
edematous, bruises or abrasion:
II. Labia Minora: Scratch, bruising fingernail Normal marks tear, infection:
III. Fourchette: Bleeding, tear: Small laceration present erythma present IV. Vulva injury, injury bleeding, discharge: Normal V. Perineum: Normal SC No.517/17 State vs. Mustkim Page 29 of 32 C. Hymen-intact/Torn: If Torn-Site, Nature, Absent, erythma Extent of injury: present Injury-fresh or old/oedema/ congestion / tenderness D. Vagina & Cervix (any Bleeding/tear/ -
discharge / oedema / tenderness) Speculum examination (if possible):
P/V examination (only if medically indicated).
33. Further, there was abrasions on her chest in the nature of nail abrasions and nail scratches on the abdomen. The remarks written in the MLC Ex.PW-5/A rather corroborate the version of the prosecutrix that she suffered such scratches when the accused attempted to take her forcibly on the roof. Further, small laceration in forechette and erythema, which in medical parlance means skin rashes due to injury, invites a strong inference about the truthfulness of the version of the prosecutrix that she had been subjected to penetrative sexual assault by the accused. In the Textbook of Obsterics by D.C. Dutta, Chapter 1: Anatomy of Female Reproductive Organ, the external genitalia of a female reproductive organ is inter alia described as under:
"LABIA MAJORA: The vulva is bounded on each side by the elevation of skin and subcutaneous tissue which form the labia majora. They are continuous where they join medially to form the posterior commissure in front of the anus. The skin on the outer convex surface is pigmented and covered with hair follicle. The skin on the inner surface has sebaceous glands but no hair follicle. The labia majora are covered with squamous epithelium and contain sweat glands. Beneath the skin, there is dense connective tissue and adipose tissue. The adipose tissue is richly supplied with venous plexus which may produce hematoma, if injured during childbirth. The labia majora are homologous to the scrotum in the male. The round ligament terminates as its upper border.SC No.517/17 State vs. Mustkim Page 30 of 32
LABIA MINORA: They are two thin folds of skin, devoid of fat, on either side just within the labia majora. Except in the parous women, they are exposed only when the labia majora are separated. Anteriorly, they divide to enclose the clitoris to form the prepuce and frenulum respectively. The lower portion of the labia minora fuses across the midline to form a fold of skin known as fourchette. It is usually lacerated during childbirth. Between the fourchette and the vaginal orifice is the foss navicularis. The labia minora to contain to contain no hair tissues, numerous sebaceous glands, erectile muscle fibres and numerous vessels and nerve endings. The labia minora are homologous to the penile urethra and part of skin of penis in male."
34. As per the said commentary, the fourchette is an internal portion which is between the Labia Majora and Labia Minora. The MLC found laceration over the posterior fourchette coupled with rashes that prima facie indicates that there was some form of partial penetration. The Hon'ble Supreme Court in the judgment Wahid Khan vs. State of Madhya Pradesh (supra): has held that even slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial .
Relying on the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) at page 495, the Supreme Court further held that partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law . Since there is nothing in the testimony of PW-1 that there was discharge of semen, the FSL report finding no male DNA does not put any crack in the prosecution case.
CONCLUSION:
35. In view of foregoing discussion, I find that the oral testimony of the prosecutrix PW-1 is unimpeachable and beyond reproach. The accused in his defence fails to prove that the prosecutrix and/or her parents had any false motive or malice to falsely implicated SC No.517/17 State vs. Mustkim Page 31 of 32 him in an act of sexual assault. The statement of the prosecutrix right from the starting point till end was natural and consistent with the case of prosecution qua the accused. The testimony of the prosecutrix read as a whole leaves an impression that in her girlish manner she narrated the incidents of sexual assault in a very cogent and reliable manner and there are no inconsistencies that would go to the root of the matter and make her testimony unreliable. As regards applicability of Section 506 of the IPC, considering the testimony of PW-1, the prosecutrix in the Court that accused has threatened that he would take her to some place and she would not be able to meet her mother coupled with her earlier statement to the Ld. MM under Section 164 Cr.P.C. Ex.PW-1/C,the prosecution case squarely falls within the scope and ambit of Section 506 IPC that the prosecutrix was threatened with harm that caused alarm or fear in the mind of the prosecutrix, is also made out. Accordingly, the accused is held guilty and convicted for the offence punishable under Section 5 (l) read with Section 6 of the POCSO Act. The testimony of the prosecutrix categorical that the accused had threatened her not to reveal the incident to anyone or else she would be visited with some bodily harm, and therefore, the prosecution has also been able to make out a case against the accused under Section 506 IPC and the accused is accordingly held guilty and convicted for the offence under Section 506 IPC.
DHARMESH Digitally signed by
DHARMESH SHARMA
SHARMA Date: 2022.02.16 16:52:55
+0530
Announced in open Court (DHARMESH SHARMA)
on 15th day of February, 2022 Principal District & Sessions Judge
West District, Tis Hazari Courts, Delhi
SC No.517/17 State vs. Mustkim Page 32 of 32