Uttarakhand High Court
Mukesh Kumar Sahgal vs State Of Uttarakhand on 8 October, 2025
Reserved on: 03.09.2025
Delivered on: 08.10.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 355 of 2018
Mukesh Kumar Sahgal ..............Appellant
Vs.
State of Uttarakhand ............... Respondent
Present : Ms. Prabha Naithani, Advocate for the appellant.
Ms. Manisha Rana Singh, Deputy Advocate General for the State.
With
Criminal Appeal No. 360 of 2018
Daya Shelakoti ..............Appellant
Vs.
State of Uttarakhand ............... Respondent
Present : Mr. Aditya Singh, Advocate for the appellant.
Ms. Manisha Rana Singh, Deputy Advocate General for the State.
JUDGMENT
Corum: Hon'ble Ravindra Maithani, J.
Hon'ble Alok Mahra, J.
Per: Hon'ble Ravindra Maithani, J.
Since both these appeals arise from a common judgment and order, they are being heard and decided together.
2. These appeals have been preferred against the judgment and order dated 16.10.2018, passed in Special Sessions Trial No.23 of 2018, State vs. Mukesh Kumar Sahgal and another, by the court of Special Judge (POCSO), Almora. By the impugned 2 judgment and order, the appellant Mukesh Kumar Sahgal has been convicted under Sections 354-A and 376(2) IPC and Section 5 r/w 6 of the Protection of Children from Sexual Offences Act, 2012 ("the POCSO Act"). But, in view of Section 42 of the POCSO Act, the appellant Mukesh Kumar Sahgal has been sentenced under Section 376(2) IPC to imprisonment for life, which means imprisonment for the remainder of the convicts' natural life with a fine of Rs.50,000/- . The appellant Mukesh Kumar Sahgal has further been convicted under Section 67A of the Information Technology Act, 2000 (I.T. Act) and sentenced to five years imprisonment along with a fine of Rs.50,000/-. The appellant Daya Shelakoti has been convicted under Section 323, 504 IPC and under Section 21(2) of the POCSO Act. She has been sentenced as below:-
(i) Under Section 323 IPC, one year rigorous imprisonment with Rs.1000/- fine.
(ii) Under Section 504 IPC, two years rigorous imprisonment with Rs.10,000/- fine.
(iii) Under Section 21(2) of the POCSO Act rigorous imprisonment for one year with Rs.10,000/- fine.
FACTS
3. The prosecution case briefly stated is as follows:-
(i) The victim, a girl aged 09 years was studying in a Primary School, where the appellant Mukesh Kumar Sahgal was Teacher and the appellant Daya Shelakoti was Head Mistress.
(ii) In the month of February - March, 2018, the
appellant Mukesh Kumar Sahgal, on multiple
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occasions took the victim in his lap and showed her obscene film and asked the victim to hold his penis and masturbate until discharge.
(iii) The appellant Mukesh Kumar Sahgal also rubbed his body against the body of the victim; fondle with the vagina of the victim. He assured her that he will pass her in the examination with good numbers and also threatened her that, in case, she reveals the incident to anyone, he would rusticate her, due to it, the victim got scared and started making excuses for not going to school.
(iv) When the mother of the victim PW3 went to school on 19.03.2018, there the appellants had beaten up the victim with nettle leaves and asked her to speak the truth. The victim then, revealed the entire incident, stating that she was sexually assaulted.
But, according to the FIR, thereafter, both these appellants abused the victim and shoved her out from the school. The mother of the victim PW3 returned to her home, her husband suffered shock on learning of the incident and expired on 13.04.2018. Thereafter, a report of the incident was lodged on 21.04.2018 by PW2, the uncle of the victim.
(v) The victim was medically examined on 23.04.2018.
She narrated the same story to the doctor. According to the Supplementary Medical Report of Pathological 4 Examination, "Semen" was not detected in any of those items sent for examination. On 25.04.2018, statement of the victim under Section 164 of the Code of Criminal Procedure, 1973 ("the Code") was recorded.
(vi) According to the prosecution, PW9 Amit Kumar, the brother-in-law of the appellant Mukesh Kumar Sahgal had handed over the mobile phones of the appellant Mukesh Kumar Sahgal to police, therefore, recovery memo was prepared and it was sent for forensic examination. The Forensic Examination Report revealed that there were three obscene images in the mobile. After investigation, charge-sheet was submitted against the appellants.
4. On 10.07.2018, charge under Sections 354A, 376(2), 504 IPC and Sections 5 r/w 6 of the POCSO Act and Section 67-A of the I.T. Act were framed against the appellant Mukesh Kumar Sahgal.
5. Charges under Sections 323, 504 IPC and Section 21(2) of the POCSO Act were framed against the appellant Daya Shelakoti. Both the appellants denied the charge and claimed trial.
6. In order to prove its case, the prosecution examined 11 witnesses, namely, PW1, the victim, PW2 uncle of the victim, PW3 mother of the victim, PW4 aunt of the victim, PW5 Constable Laxman Singh, PW6 Dr. Hema Rawat, PW7 Constable Vinod 5 Maurya, PW8 Constable Virendra Bisht, PW9 Amit Kumar, PW10 Bhupal Ram Pori, PW11 Inspector Narayan Singh.
7. After the prosecution examination, the appellants were examined under Section 313 of the Code. According to the appellant Mukesh Kumar Sahgal, he has been falsely implicated; his mobile was not sent for forensic examination. According to him, the victim did not come to school. On 06.04.2018, the mother of the victim had got admitted her son in his school; the appellant never committed any wrong. He further asserts that the victim was weak in studies. She would defecate in the school, for which she was scolded once or twice.
8. The appellant Daya Shelakoti has also denied the prosecution evidence. According to her, she has been falsely implicated; she tells that on 20.04.2018 at 09:30 late in the evening, PW2, the uncle of the victim and PW3 the mother of the victim reached her house and requested her to give evidence against the appellant Mukesh Kumar Sahgal. This appellant told that she did not receive any oral and written complaint in this regard. Thereafter, she was threatened, to speak against the appellant Mukesh Kumar Sahgal and when this witness denied, she was threatened to face the consequences.
9. In his Defence, the appellant Mukesh Kumar Sahgal examined DW1 Nasir Alam Qureshi.
10. Before, the arguments are appreciated it would be apt to examine as to what the witnesses have stated. 6
EVIDENCE
11. PW1 is the victim; she was examined on 24.07.2018; according to her, her age was 10 years. The court put some questions to her, and after being satisfied with her level of understanding, she was administered oath. In her statement PW1 tells that in her school, the appellants were teachers; she identified both of the appellant. She further told that the appellant Mukesh Kumar Sahgal would give his penis in her hands and asked her to masturbate; he would also open his pant and remove the clothes of the victim and would touch his penis in her vagina, until discharge. PW1, the victim has also stated that the appellant Mukesh Kumar Sahgal would show her 'Gandi Chiz' (bad things) on his mobile phone; the nude photographs were there in the mobile. The appellant Mukesh Kumar Sahgal would also make the victim girl lay on the ground; fondle her and would lay over her and would touch his penis in her vagina. This witness has identified the mobile phone, on which according to her, the appellant Mukesh Kumar Sahgal would show her the obscene photographs. This incident was revealed by the victim to her parents and uncle. She proved her statement recorded under Section 164 of the Code. According to her, she had also visited the hospital, where her examination was done. She has also proved the medical examination report.
12. According to PW1, the victim, she has visited her school along with the police; she identified her signatures and Ext. A-3, the site plan. She had indicated the place where the incident took place with her. According to the victim, Madam had applied nettle leaves to her.
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13. PW3 is the mother of the victim; PW4 is the aunt of the victim. Both have supported the statement of the victim in their examinations.
14. According to PW3, the incident took place sometime near Holi in the year 2018. One day the victim returned from school crying. When questioned, she revealed that the appellant Mukesh Kumar Sahgal touched his penis to her vagina and both the appellants had applied nettle leaves to her and threatened her. According to this witness, she revealed it to her sister-in-law PW4 and her brother-in-law PW2; she also went to the school and questioned both these appellants. They said that nothing was done with the victim; the appellant Daya Shelakoti also told that the girl should be removed from the school. The mother of the victim further states that after this incident her husband went in shock and he died. Thereafter, she informed her brother-in-law, who lodged the FIR.
15. PW2, the uncle of the victim has also supported the statement of the victim. According to him, on information having been received, he returned to his village. He lodged the FIR Ext. A-
4. He has also stated about the medical of the victim. According to him, the victim was examined under Section 164 of the Code. He also accompanied the victim on that date.
16. PW5 Constable Laxman Singh has lodged Chik FIR and made an entry in the General Diary. He has proved those documents.
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17. PW6 Dr. Hema Rawat did conduct medical examination of the victim on 23.04.2018. She did not find any abnormalities in the internal-external examination. She has proved her medical report. According to PW6 Dr. Hema Rawat, the victim had revealed to her that she was studying in Class IV in the Primary School when, after Diwali, the teacher asked the victim to hold his penis; he untied her Nara and touched his penis to her vagina, due to which, the victim felt pain. Thereafter, she was afflicted with nettle leaves and danda; it happened for a week and also a day prior to Holi. he was demanding Rs.1000/- from the victim; the victim does not know its reason; the victim did not reveal this act to anyone. The victim also revealed that the appellant had scratched on her cheeks.
18. PW7 Constable Vinod Maurya was working as a Police Officer in Almora in the year 2018. According to him, on 12.05.2018, one Amit Kumar introducing himself as the brother-in- law of appellant Mukesh Kumar Sahgal, came and gave two mobile phones to him saying that these belong to the appellant Mukesh Kumar Sahgal. He has proved those mobile phones, when placed before the court.
19. PW8 Constable Virendra Bisht took the samples for Forensic Science Laboratory. In fact, mobile phones as well as samples were sent for Forensic Examination. This witness has stated, as to how and when he reached at the Forensic Science Laboratory to deposit the samples.
20. PW9 Amit Kumar has not supported the prosecution case. In fact, according to the prosecution, he was the person, who 9 had handed over the mobile phones of the appellant Mukesh Kumar Sahgal to the police.
21. PW10 Bhopal Ram Pori, initially conducted investigation, but when remand under Section 67 of the I.T. Act was ordered, the investigation was transferred. It was conducted thereafter by PW11, Narayan Singh.
22. PW11, Narayan Singh has stated about the steps that have been taken during investigation. He has submitted the charge- sheet Ext. A-23 in the case.
23. DW1 Naseer Alam Qureshi has been examined by the appellant Mukesh Kumar Sahgal. According to DW1 Naseer Alam Qureshi, he was In-charge principal of the school, where the victim was studying and where earlier, the appellants were posted. According to him, the victim did attend the school till 31.03.2018, when she was promoted. Thereafter, the attendance is noticed for 2nd April, 6th April and 27th April, 2018. This witness also tells that the younger brother of the victim was also admitted in the same school on 06.04.2018. It is important to note that according to DW1 the President School Management Committee had told it to him that the appellant Mukesh Kumar Sahgal had done indecent behavior with the victim.
ARGUMENTS AND ANALYSIS Re-Appellant Mukesh Kumar Sahgal
24. Learned counsel for the appellant Mukesh Kumar Sahgal submits that the prosecution case is false; the appellants have been falsely implicated in the case; the prosecution failed to 10 prove the case beyond reasonable doubt. She has raised the following points in her submissions:-
(i) At the stage of Section 164 of the Code, when the victim was examined, she was not capable to understand Hindi; she was speaking in Kumaoni language.
Therefore, a Translator was appointed for recording her examination. The Magistrate did not satisfy himself, as to whether the victim has been able to understand the questions and reply their answers; her level of understanding has not been examined. Hence, the statement under Section 164 of the Code is bad for these reasons.
(ii) If the victim was not conversant with the language of the court, as per provision of Section 277 of the Code, whatever she has stated ought to have been written and, thereafter, its translation should have been recorded. But, it was not so done. Therefore, this statement is not admissible evidence.
25. In support of her contention, learned counsel has placed reliance on the principle of law, as laid down in the case of Naim Ahamed Vs. State (NCT of Delhi), (2023)15, SCC 385; Agniraj and others Vs. State through Deputy Superintendent of Police CB- CID, 2025 SCC OnLine SC 1203; Dagdu and others Vs. State of Maharashtra & connected cases, (1977)3 SCC 68; Shivappa Vs. State of Karnataka, (1995)2 SCC 76
26. In the case of Naim Ahamed, the Hon'ble Supreme Court discussed the provisions of Section 277 of the Code and observed as follows:-
"26. The evidence of the witness has to be recorded in the language of the court or in the language of the witness as may be practicable and then get it translated in the language of the court 11 for forming part of the record. However, recording of evidence of the witness in the translated form in English language only, though the witness gives evidence in the language of the court, or in his/her own vernacular language, is not permissible. As such, the text and tenor of the evidence and the demeanour of a witness in the court could be appreciated in the best manner only when the evidence is recorded in the language of the witness. Even otherwise, when a question arises as to what exactly the witness had stated in his/her evidence, it is the original deposition of the witness which has to be taken into account and not the translated memorandum in English prepared by the Presiding Judge. It is therefore directed that all courts while recording the evidence of the witnesses, shall duly comply with the provisions of Section 277CrPC."
27. In the case of Agniraj (supra), the Hon'ble Supreme Court observed, "The Court must be satisfied about the capacity of the minor to understand the questions and answer the same........ However, preliminary questions were not put to the witness. The Court did not ask any question to the witness to ascertain whether she understands the importance of an oath. Without satisfying himself that the witness understands the importance of an oath, the learned Trial Judge administered oath to her. It is very well known that child witnesses are susceptible to tutoring and therefore, not asking preliminary questions to the minor witness makes her evidence very vulnerable."
28. In the case of Dagdu (supra), the Hon'ble Supreme Court has discussed the confessional statement of an accused and held that, "If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence." 12
29. In the case of Shivappa (supra) also, the principle is laid down with regard to voluntariness of confession made under Section 164 of Code.
30. In the instant case, what is being argued is with regard to the capacity and language of the victim while recording her statement under Section 164 of the Code. Not about the confession of any accused.
31. Learned State Counsel submits that the statement of the victim was recorded under Section 164 of the Code with the help of a Translator. She submits that the mere fact that the victim was not questioned about her capacity will not render her statement recorded under Section 164 of the Code as inadmissible evidence.
32. In support of her contention, learned State Counsel relied on the principle of law as laid down in the case of State of Madhya Pradesh Vs. Balveer Singh, 2025 SCC OnLine SC 390.
33. In the case of Balveer Singh (supra), the Hon'ble Supreme Court summed up the principle on this aspect in para 58 and observed as follows:-
"58. We summarize our conclusion as under:--
(I) The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly. (II) As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is 13 capable of understanding sanctity of giving evidence and the import of the questions that are being put to him.
(III) Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion.
(IV) The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court.
(V) The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence.
(VI) The Trial Court must also record the demeanour of the child witness during the course of its deposition and cross-examination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others. (VII) There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events 14 of the crime without improvements or embellishments, the same does not require any corroboration whatsoever. (VIII) Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case.
(IX) Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.
(X) The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication.
(i) Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an 15 opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of Evidence Act.
(ii) Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the following two factors have to be established being as under:--
• Opportunity of Tutoring of the Child Witness in question whereby certain foundational facts suggesting or demonstrating the probability that a part of the testimony of the witness might have been tutored have to be established. This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient.
• Reasonable likelihood of tutoring wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated. This may be done by leading evidence to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by cross-examining such witness at length that leads to either material discrepancies or contradictions, or 16 exposes a doubtful demeanour of such witness rife with sterile repetition and confidence lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural.
(XI) Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness.
(XII) Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness."
34. The capacity of a child witness is ascertained by putting questions to him so as to ensure that the child is capable of understanding the questions and gives their answers. This is called the "Voir Dire" test. There is another aspect, as to whether the child is able to understand the meaning of oath or not.
35. The Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Ramesh and another, (2011)4 SCC, 786, held that in case, such questions have not been put to a child witness the capacity, etc. may be gathered from the evidence of the child. In 17 para 11 of the judgment, the Hon'ble Supreme Court observed as follows:-
"11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. (Vide Himmat Sukhadeo Wahurwagh v. State of Maharashtra (2009) 6 SCC 712 : (2009) 3 SCC (Cri) 1 : AIR 2009 SC 2292.)"
(emphasis supplied)
36. In the instant case, the victim was not questioned at the stage of recording the statement under Section 164 of the Code, which is evident from her statement Ext. A-1. The "Voir Dire" test has not been undertaken. It is another fact that she has not been administered oath on that date. But, the way she answered the questions, makes it clear that she was capable to answer the questions. The statement of the victim makes it abundantly explicit that she fully understood what she was saying; her statement is cohesive and in chronology. Mere non-putting any question to her to appreciate her capacity as a witness, under the facts and circumstances of this case, does not make the statement of the victim recorded under Section 164 of the Code inadmissible.
37. There is another objection to recording of the statement under Section 164 of the Code on behalf of the appellant Mukesh Kumar Sahgal on the ground that what the victim has actually 18 stated has not been taken down in that language, in which, she spoke. It is argued that it vitiates the entire trial.
38. Section 277 of the Code makes provision with regard to language of court recording of evidence. It reads as follows:-
277. Language of record of evidence.--In every case where evidence is taken down under section 275 or 276,--
(a) if the witness gives evidence in the language of the Court, it shall be taken down in that language;
(b) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record;
(c) where under clause (b) evidence is taken down in a language other than the language of the Court, a true translation thereof in the language of the Court shall be prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record:
Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such translation.
39. A bare reading of clause (b) of Section 277 of the Code makes it abundantly clear that in case, a witness gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record.
40. The language of the court in the instant case is Hindi. Before this aspect is examined at this stage only, it may be noted that the victim was examined under Section 164 of the Code on 19 25.04.2018 and she was examined in the court on 24.07.2018. On 24.07.2018, she gave her deposition in the language of the court i.e. in Hindi. There is a difference of almost three months between recording the statement of the victim under Section 164 of the Code and recording of the statement in the court during trial. It may also be noted that the script of Kumaoni language and Hindi language is one and the same. The examination of the victim at the stage of Section 164 of the Code was done with the help of counsel from Nirbhaya Cell. It's a trial under the POCSO Act also and Section 38 of the POCSO Act permits assistance of Translator or Interpreter. It is a known fact that generally, in this part of hills Kumaoni language is spoken. The victim was not administered oath, but advocate Abhilasha Tiwari of Nirbhaya Cell was administered oath. After recording the statement, a certificate was given that whatever translation was done by the Translator that has been recorded and the Presiding Officer records that the statement of the victim is voluntary and the correct statement has been recorded. It is to be noted that after this certificate and after examination of the victim the Presiding Officer and the counsel from Nirbhaya Cell had signed it and it was also marked with the thumb impression of the victim.
41. In the matters of translation, in the case of Bakhshish Singh Vs. State of Punjab, 1957 SCC OnLine SC 125, the dying declaration was given in Punjabi, but it was recorded by the Police in Urdu, the Hon'ble Supreme Court did not find any fault in it. In para 5 the Hon'ble Supreme Court observed as follows:-
"5. Another reason given by the Additional Sessions Judge for rejecting the dying declaration was that the deceased gave the 20 narrative of events in Punjabi and the statement was taken down in Urdu. In the Punjab that is how the dying declarations are taken down and that has been so ever since the courts were established and Judicial Authority has never held that to be an infirmity in dying declarations making them inefficacious. As a matter of fact in the Punjab the language used in the subordinate courts and that employed by the police for recording of statements has always been Urdu and the recording of the dying declaration in Urdu cannot be a ground for saying that the statement does not correctly reproduce what was stated by the declarant. This, in our opinion was a wholly inadequate reason for rejecting the dying declaration."
42. In the case of Chander Singh Vs. The State Govt. of NCT of Delhi, 2018 SCC OnLine Delhi, 10057, a dying declaration which was not recorded in verbatim came for discussion before the Hon'ble Delhi High Court. Referring to the judgment in the case of Bakhshish Singh (supra), the Hon'ble Delhi High Court in para 28 has observed as below:-
"28. Thus, the statement/declaration recorded by the police/Magistrate, which may ultimately turn out to be a dying declaration, may be recorded by the person recording the same "in his own way". There is no prescription that the same has to be verbatim, or that, apart from or other than the verbatim statement, the person recording the statement/declaration cannot record the gist, or some part of the statement in a manner in which the person concerned-such as a police officer, may be used to recording statements generally. As noticed in Bakhshish Singh (supra), the statement may even be recorded in a different language than the one in which it is made. This exercise would necessarily entail use of vocabulary in the transcription of the statement, which may not have been used by the maker of the statement. What is essential is that the statement is honestly and accurately recorded, capturing the true meaning and the purport of it."
43. There is not much difference between Hindi language and Kumaoni language. The court recorded the statement of the 21 victim with the help of an advocate of Nirbhaya Cell. Merely because the verbatim of the statement of the victim has not been recorded under the facts and circumstances of the case, does not render the statement of the victim under Section 164 of the Code inadmissible. The statement was translated and the Translator was administered oath. The Translator, the victim and the Presiding Officer have signed the statement. Therefore, whatever arguments have been made on this aspect have less force for acceptance.
44. Learned counsel for the appellant Mukesh Kumar Sahgal has further submitted that the FIR is much delayed which casts doubt on the prosecution evidence. She would submit that in the medical report the time of incident is recorded as "since November, 2017", but the report was lodged on 21.04.2018, which creates doubt on the prosecution case.
45. In support of her contention learned counsel for the appellant Mukesh Kumar Sahgal has relied on the principle of law, as laid down in the case of Thulia Kali Vs. State of Tamil Nadu, (1972)3 SCC 393 to argue that delayed cast doubt on the prosecution case. In the case of Thulia Kali (supra) inter alia observed that, "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was 22 committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
46. On the other hand, learned State Counsel would submit that it is a case pertaining to sexual assault on a young girl child in a school. This is an offence committed by a teacher on a young girl, delay in such matters is immaterial. In support of her contention, she relied upon the principle of law as laid down in the case of State of Himachal Pradesh Vs. Prem Singh, (2009)1 SCC,
420.
47. In the case of Prem Singh (supra), the allegations were on a teacher of sexually ravishing a girl student of the school. The question of delay in lodging the FIR was raised. The Hon'ble Supreme Court observed that delay in lodging the FIR in such cases of sexual assault on young child cannot be equated with the case of any other offence. In para 6 of the judgment Hon'ble Supreme Court observed as follows:-
"6. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in 23 the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. In that score, learned counsel for the appellant is right that the High Court has lost sight of this vital distinction."
48. The victim, as such has not stated any date of the incident. Her mother PW3 is categorical that near the occasion of festival Holi, this incident took place, when one day the victim returned while crying and revealed the story to her. It is not the case of any of those witnesses examined that the incident took place in the month of November, 2017. How in the medical examination the date of incident "since November, 2017" is recorded is not clear. In fact, PW6 Dr. Hema Rawat has not been asked, as to who told her about this date? Broadly speaking, if statement of PW6 Dr. Hema Rawat is examined, according to her, the victim had told her that after Diwali this incident began. It may not be construed as if, the victim or any of her family member revealed that the incident took place since November, 2017. Be it noted that in the instant case, the victim is a young child of 10 years of age, when she was examined in the court.
49. After the festive season of Holi, 2018, according to the prosecution on 19.03.2018, PW3 the mother of the victim along with the victim went to the school and questioned the appellants. On that date, the victim was further ill treated. PW3, the mother of the victim was advised that the name of the victim should be removed from the school. It is the categorical statement of PW3, the mother of the victim that thereafter, her husband fell sick due to 24 shock and he died on 13.04.2018. Thereafter, PW2 the uncle of the victim came back home and report was lodged on 21.04.2018.
50. In the instant case, the victim was sexually assaulted for a long duration by her own teacher. After the death of the father of the victim, her uncle lodged the report on 21.04.2018. In fact, this is no delay in view of the nature of offence that was committed in the instant case and under the facts and circumstances of the case. Therefore, this Court holds that there is no delay and whatever delay has been occasioned, it has been sufficiently explained. There are reasons for this delay. It does not make the prosecution case doubtful in any manner.
51. Learned counsel for the appellant Mukesh Kumar Sahgal further argued that if the appellant Mukesh Kumar Sahgal has repeatedly scolded the victim, why the family members kept silence for a long? This question is related to the delay in lodging the report. It has already been explained hereinbefore.
52. Learned counsel for the appellant Mukesh Kumar Sahgal submits that finally on 19.03.2018 PW3 the mother of the victim has questioned the appellants, as to why the appellant Mukesh Kumar Sahgal has sexually assaulted her daughter. Thereafter, why another child was got admitted by PW3, the mother of the victim in the same school. It is argued that it doubts the prosecution case.
53. On behalf of the State, it is replied that the mother of the victim, had no other option, therefore, she got her son admitted on 06.04.2018 in the school.
25
54. It may be noted that according to the victim after her mother questioned the appellants about the incident, the appellant Mukesh Kumar Sahgal did not commit anything with her (para 11 of the statement of PW1, the victim). If the mother of the victim got her son admitted in the school, under the facts and circumstances it does not create any doubt in the prosecution case.
55. It is also argued on behalf of the appellant Mukesh Kumar Sahgal that the offence under Section 67A of the I.T. Act is not made out in the instant case because the mobile phone was not recovered from the custody of the appellant.
56. Learned State counsel very fairly concedes that in the instant case offence under Section 67A of the I.T. Act is not made out. Section 67A of the I.T. Act is as follows:-
"67-A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.-- Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees."
57. It is not a case of publishing or transmitting any sexually material. In so far as recovery of mobile is concerned, according to prosecution the brother-in-law of the appellant Mukesh Kumar Sahgal, Amit Kumar had given it to the police. But, PW9 Amit Kumar has not supported the prosecution case. Mobile phones were taken into custody by the police and they were sent for 26 forensic examination. Forensic Report confirms that it has obscene material.
58. Admittedly, the mobile phones were not taken into custody from the appellant Mukesh Kumar Sahgal. PW9 Amit Kumar has not supported the prosecution case. Even, if it is assumed that PW9 Amit Kumar had given mobile phones to PW7 Constable Vinod Maurya and they were sent to Forensic Science Laboratory by PW8 Constable Virendra Bisht and the Forensic Report confirmed that it has obscene images the question that arises is as to who kept these images? Were the same images shown to the victim? There is no evidence to that effect. As stated, learned State Counsel fairly concedes that charge under Section 67A of the I.T. Act is not made out against the appellant Mukesh Kumar Sahgal. Therefore, having considered the entire material on record, this Court is of the view that, in fact, the prosecution has utterly failed to prove the charge under Section 67A of the I.T. Act against the appellant Mukesh Kumar Sahgal. Accordingly, the appellant Mukesh Kumar Sahgal is liable to be acquitted of the said charge.
59. Learned counsel for the appellant Mukesh Kumar Sahgal also argued that it is a bias trial. She would refer to the statement of PW1, the victim to argue that there are different dates mentioned below the signatures of the Presiding Officer in this deposition. Therefore, the trial is not fair. This argument has no force at all. This Court can read the dates mentioned below the signature of the Presiding Officer in the deposition of PW1, the victim, on each page which is 24.07.2018. It is not that the 27 deposition was recorded on some other date. It is not something that casts huge aspersion on the functioning of the court. The cross-examination was done by the appellant Mukesh Kumar Sahgal. If it was done on any other date, it could have been indicated. It is not so. In fact, the order-sheet of the trial court record reveals that on 24.07.2018, the statements of the PW1, the victim and PW2, the uncle of the victim were recorded. It is also recorded that the statement of the victim was recorded with the help of two advocates.
60. Reading out the Medical Examination Report of the victim, learned counsel for the appellant Mukesh Kumar Sahgal submits that according to the history of the case, as allegedly given by the victim to the doctor conducting medical examination, the cheeks of the victim were scratched. She would submit that there are no scratch marks on the cheeks.
61. According to the prosecution, the first incident took place sometime near Holi festival in the year 2018. The victim in her statement has not stated that her cheeks were scratched. Even if it is done, it is not necessary that it will carry some visible marks on 23.04.2018, when the victim was medically examined. Therefore, the arguments on this aspect have less force for acceptance.
62. It is also submitted on behalf of the appellant Mukesh Kumar Sahgal that there are contradictions in the statements of the witnesses. What was told by the appellants after the incident? She would refer to the statement of PW1, the victim at para 6 revealed that appellant Mukesh Kumar Sahgal did not tell her anything as to whether the matter has to be told to anyone or not. On the other 28 hand, learned counsel has referred to the statement of PW3, the mother of the victim, where she states that she told it to the Investigating Officer that the appellant Daya Shelakoti had told her that the matter should not be reported to anyone. This is not contradiction, as such. Learned counsel for the appellant Mukesh Kumar Sahgal cannot try to indicate contradiction by referring to the statements of two witnesses on different aspects. In fact, whatever contradictions have been referred to, they are not any material contradictions, which may in any manner, doubt the prosecution case.
63. The instant case depends on the credibility of PW1, the victim. She was a young girl of 10 years of age, studying in a Primary School, where she was sexually assaulted. There cannot be any eye-witness of such acts. The act was done in the school. The victim has categorically stated, as to how the appellant would give his penis to her for masturbation and would lay over her and put his penis into her vagina. A child witness testimony requires close scrutiny. Any chances of tutoring have to be ruled out.
64. In the case of State of Rajasthan Vs. Om Prakash, (2002)5 SCC 745, the Hon'ble Supreme Court on this aspect observed in para 19 as follows:-
"19. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and 29 mental immobility call for such protection. Children are the natural resource of our country. They are the country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well-considered and well-analysed judgment of the trial court on grounds like non-examination of other witnesses, when the case against the respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwears was wholly insignificant."
65. In the case of Panchhi and others Vs. State of U.P., (1998)7 SCC, 177, the Hon'ble Supreme Court observed that "the evidence of child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring".
66. A child is a competent witness. The only safeguard before accepting the testimony of a child is that his capacity to speak truth has to be evaluated by "Voir Dire" test or even it may be gathered by the questions and answers given by such witness. The possibility of tutoring is also required to be ruled out.
67. There is another aspect of the matter. An advocate from the Nirbhaya Cell was also assisting the trial court in this case. During trial an application was filed by the advocate Nirbhaya Cell that after the incident the victim is not attending the school, she has left the studies and has been living at home. On this application, on 08.08.2018, the trial court passed the following order:-
30
"There cannot be any other disadvantageous act than deprive the victim from education. Ld. Senior Counsel (Nirbhya Cell) informed this Court that victim wants to study in Primary School, Chharoja, Lamgara, District Almora.
Hence, the Principal, Primary School, Chharoja Lamgara, District Almora is directed to admit the victim in the school immediately. The Principal of Primary School Chharoja, Lamgara, District Almora is also restrained to discuss and disclose the incident with teachers and non-teaching staff and children of school. The Principal is also directed to make arrangements to cover the course of the victim for the days, she has not attended the school.
A copy of this order be provided with to the Principal, Primary School, Chharoja, Lamgara, District Almora for compliance of this order under intimation to this Court."
68. In the instant case, the victim has been consistent throughout, as to what had happened to her. At the cost of repetition the Court again reiterates that the victim was 10 years of age studying in a Primary School, where the appellant Mukesh Kumar Sahgal was a teacher and the appellant Daya Shelakoti was the Head Mistress. The victim has categorically stated that sometime near Holi festival the appellant has started making her sit in his lap, giving his penis in her hands to masturbate until discharge, rubbing his body against her body, the appellant Mukesh Kumar Sahgal would lay her down on the floor, lay over her, putting his penis in her vagina. The victim was upset. She stopped going to school. When she was questioned and taken to school, then she revealed the incident. The victim has stated about it consistently. She has been cross-examined at a length. She is not a tutored witness. It is not a case of any personal enmity or vengeance. On those allegations of sexual assault, the statement of PW1, the victim is credible, trustworthy and reliable. Her mother 31 has stated, as to what has happened to her. Other witnesses have also supported her statement. What happened after the incident, how the appellant Mukesh Kumar Sahgal and appellant Daya Shelakoti was questioned has also been stated.
69. In view of the foregoing discussion, this Court is of the view that the prosecution has been able to prove, beyond reasonable doubt, the charge under Sections 376(2), Section 354-A IPC and Section 5 r/w 6 of the POCSO Act against the appellant Mukesh Kumar Sahgal and he has been rightly convicted. The question of sentence would fall for scrutiny. Sentence
70. Learned counsel for the appellant Mukesh Kumar Sahgal submits that the appellant has been awarded maximum sentence under Section 376(2) IPC, which is unwarranted under the facts and circumstances of the case.
71. While awarding the sentence, the offence, as such committed, its impact and the antecedents of the accused and other many factors are taken into consideration. Not only this, the crime, criminal and comparative proportionality are other tests, which are weighed while awarding sentence.
72. In the case of State of Madhya Pradesh Vs. Udham and others, (2019)10 SCC 300, the Hon'ble Supreme Court has discussed the aspect of sentencing and the factors that are taken into consideration while awarding sentence. In para 12 and 13 of the judgment, the Hon'ble Supreme Court observed as follows:- 32
"12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).
13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach."
73. Having considered all the factors that are relevant for awarding a sentence, we are of the view that instant case is not a case in which maximum sentence under Section 376(2) IPC may be awarded.
74. This Court is of the view that interest of justice would be better served if the appellant Mukesh Kumar Sahgal is sentenced to 14 years rigorous imprisonment under Section 376(2) IPC.
Re-Appellant Daya Shelakoti
75. Learned counsel for the appellant Daya Shelakoti submits that the prosecution has utterly failed to prove its case 33 against the appellant Daya Shelakoti. He would submit that the PW10 Bhupal Ram Pori, Investigating Officer, in para 52 of his statement has categorically stated that during investigation no witness revealed it to him that the appellant Daya Sailakoti has denied to lodge the report of the case. In her examination under Section 313 of the Code, in answer to the question no.22, the appellant Daya Shelakoti has stated that she was forced to speak against the appellant Mukesh Kumar Sahgal and when she denied, she was given threat to face the consequences and she has been falsely implicated accordingly.
76. It is further argued that the victim has given statement against the appellant Daya Shelakoti only in court and it was not told during investigation. Reference has been made to the statement of PW1, the victim in para 12, 28 and 29. In court, PW1, the victim has stated that the appellant Daya Shelakoti had applied Nettle leaves to her, which she has told to the police and if police has not recorded it in her statement, she cannot give any reason for it. But, in para 11 of her statement, PW1 the victim herself has stated that her mother took her to school and questioned the Master ji, which means, the appellant Mukesh Kumar Sahgal. In that sequence, the victim has stated that appellant Daya Shelakoti applied Nettle leaves on her. It may be noted that PW1, the victim in her statement, in para 25 has categorically stated that she has not been tutored.
77. PW3 is the mother of the victim. In fact, it is she, who had gone to question the appellants in the school. In para 3 and 4 of her statement, PW3, the mother of the victim has categorically 34 stated that when she went to school to question the teachers, she met both the appellants. She had identified both the appellants in the court. When she questioned the appellants, it was told that nothing was done to the victim and in last sentence of para 4 of her statement PW3, the mother of the victim tells that, in fact, it is the appellant Daya Shelakoti, who told her that don't keep the victim in that school; remove her from the school. On this aspect, this witness was not cross-examined by the appellant Daya Shelakoti that she did not tell it to the police. Therefore, it would be wrong to say that for the first time, the allegations against appellant Daya Shelakoti was given in the court.
78. Learned counsel for the appellant Daya Shelakoti also argued that, in fact, whatever allegations have been alleged by the witnesses, it is in response to the questions posed by the court. He submits that it may not be termed to be the evidence. The court has tried to fill-up the lacuna and has gone beyond the jurisdiction vested in the court in asking questions to fill-up the lacuna. He submits that, in fact, the conviction of the appellant Daya Shelakoti is recorded not based on evidence, but on conjecture and surmises. In support of his contention, learned counsel has referred the principle of law, as laid down in the case of Gopinath Naik Vs. Commissioner Income-Tax, U.P., 1935 SCC OnLine Allahabad High Court, 326, Mohanlal Shamji Soni Vs. Union of India and another, 1991 Supp (1) SCC 271, Rajendra Prasad Vs. Narcotic Cell, (1999)6 SCC, 110.
79. In the case of Gopinath Naik (supra), the Hon'ble Allahabad High Court inter alia observed that, "mere conjecture, 35 surmise or assumption of a fact, as distinguished from inference from proved circumstances, does not amount to evidence".
80. In the case of Mohanlal Shamji Soni (supra), in fact, the Hon'ble Supreme Court has discussed the scope of Section 311 of the Code and observed in para 9 as follows:-
"9. The very usage of the words such as 'any court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case."
81. Thereafter, in para 10, the Hon'ble Supreme Court in the case of Mohanlal Shamji Soni (supra) observed that, "it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides."
82. In the case of Rajendra Prasad (supra), the Hon'ble Supreme Court discussed the scope of Section 165 of the Indian 36 Evidence Act, 1872 ("Evidence Act") and observed that, " laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up". In para 7 and 8, the Hon'ble Supreme Court observed as follows:-
"7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up.
8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."
(emphasis supplied)
83. The scope of Section 165 of the Evidence Act has been discussed by the Hon'ble Supreme Court in the case of Ram Chander Vs. State of Haryana, (1981)3 SCC 191. In paras 2 and 3 of the judgment the Hon'ble Supreme Court observed as under:- 37
"2. The adversary system of trial being what it is, there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past:
"Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the court to send for the police-diaries in a case and use them to aid it in the trial. The record of the proceedings of the Committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial. [Sessions Judge, Nellore v. Intha Ramana ReddyILR 1972 AP 683 : 1972 Cri LJ 1485] "
3. With such wide powers, the court must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the Counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were. Any questions put by the Judge must be so as not to frighten, coerce, confuse or intimidate the witnesses. The danger inherent in a Judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett:
"People accustomed to the procedure of the court are likely to be overawed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding judge. Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is not only that witnesses 38 will be unable to present the evidence as they may wish, but the parties may begin to think, quite wrongly it may be, that the Judge is not holding the scales of justice quite eventually." [ Extracted by Lord Denning in supra f.n. 2] In Jones v. National Coal Board [Jones v. National Coal Board, (1957) 2 All ER 155 : (1957) 2 WLR 760] Lord Justice Denning observed:
The Judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of the Judge and assumes the role of an advocate; and the change does not become him well."
We may go further than Lord Denning and say that it is the duty of a Judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant" (Section 165 Evidence Act). But this he must do, without unduly trespassing upon the functions of the Public Prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The Judge, "like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and (sic the) old"."
84. The principle of law, as settled by the Hon'ble Supreme Court establishes that the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. In that context, the questions and answers will be examined. 39
85. It is further argued that in order to attracted the provision of Section 21 of the POCSO Act, it has to be established and proved beyond reasonable doubt that the appellant had the knowledge of offence, which she failed to record.
86. It is argued that in the instant case, the prosecution has failed to establish that the appellant Daya Shelakoti had any knowledge of offence. In support of his contention, learned counsel has relied in the principle of law, as laid down in the case of Sr. Tessy Jose and others Vs. State of Kerala, (2018)18 SCC 292. In para 5 of its judgment, the Hon'ble Supreme Court observed that a person, who had an apprehension that an offence under the POCSO Act is likely to be committed or has knowledge that such an offence had been committed, could be required to provide such information to the relevant authority. Further, the Hon'ble Supreme Court in para 9 of the judgment observed that, "The expression used is "knowledge" which means that some information received by such a person gives him/her knowledge about the commission of the crime. There is no obligation on this person to investigate and gather knowledge."
87. The appellant Daya Shelakoti has been convicted under Section 323, 504 IPC and 21(2) of the POCSO Act. Section 19 of the POCSO Acts makes provision for reporting of offence. It reads as follows:-
"19. Reporting of offences.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,--40
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be--
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit. (3) Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section (2) in a simple language so that the child understands contents being recorded. (4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same. (5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection (including admitting the child into shelter home or to the nearest hospital) within twenty-four hours of the report, as may be prescribed.
(6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.
(7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1)."
88. Section 21 of the POCSO Act is a penalty for failure to report or record a case. It reads as under:-
41
"21. Punishment for failure to report or record a case.--(1) Any person, who fails to report the commission of an offence under sub-section (1) of Section 19 or Section 20 or who fails to record such offence under sub-section (2) of Section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.
(2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of Section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.
(3) The provisions of sub-section (1) shall not apply to a child under this Act."
89. It is the prosecution case that the appellant Daya Shelakoti was the Head Mistress of the Primary School, in which, the victim was studying and the appellant Mukesh Kumar Sahgal did repeat sexual assault on her. Here what the prosecution has alleged against the appellant Daya Shelakoti is that she had knowledge that the offence has been committed qua the victim, but she failed to report the matter to police.
90. First this Court adverts to the questions that has been asked by the Presiding Officer. In fact, almost all the witnesses were questioned by the Presiding Officer. In so far as the allegations against the appellant Daya Shelakoti is concerned, as stated in her statement in para 11, the victim has stated that when her mother took her to school, there the appellant Mukesh Kumar Sahgal was questioned, thereafter, in the sequel in para 12 this witness has stated that that the appellant Daya Shelakoti applied Nettle leaves to her. She has stated, as to what had happened to her. 42
91. PW3 is the mother of the victim. She has stated extensively, as to what had happened. In paras 3 and 4, she speaks that when she came to know that the appellant Mukesh Kumar Sahgal had sexually assaulted the victim on multiple occasions, she went to the school and questioned the teachers, which means both the appellants. She tells that on her questioning, she was told that nothing was done with the victim; it is the victim, who was wrong. Thereafter, according to this witness appellants Daya Shelakoti had told it to her that don't keep the victim in the school; remove her from the school. The Court did put many questions to this witness from para 43 onwards. The court asked her, did you tell it to the appellant Daya Shelakoti that the appellant had done 'Galat Kaam' with her. To it, she answered in affirmative. Another question that was put by the court to PW3, the mother of the victim is that after informing appellant Daya Shelakoti, what did she tell? According to this witness, thereafter, appellant Daya Shelakoti told it to her that the victim is wrong and at fault; the appellant Mukesh Kumar Sahgal did not commit such work. In answer to another question, this witness tells that she repeated it to the appellant Daya Shelakoti that "your teacher has done 'Galat Kaam' with my daughter". This questioning by the court, by no stretch of imagination can be said that the court had exceeded its jurisdiction in asking the questions to the witness. In fact, it is role of the court. The court did not try to fill-up any lacuna.
92. The statement of victim as well as PW3, her mother is inspiring confidence. When PW3, the mother of the victim went to the school of the victim to question both the appellants. When PW3, 43 the mother of the victim told, as to why the wrong has been done to the victim, the appellant Daya Shelakoti, who happened to be the Head Mistress of the School, did not take any action. In fact, she repeated that the appellant Mukesh Kumar Sahgal did not commit such work. On 19.03.2018, when the victim along with her mother PW3 reached the school, on that date, this Court concludes that the appellant Daya Shelakoti had knowledge of the offence of sexual assault committed on the victim by the appellant Mukesh Kumar Sahgal. Being Head Mistress of the school, it was more on the part of the appellant Daya Shelakoti to lodge the report as statutorily mandated under Section 19 of the POCSO Act. The appellant Daya Shelakoti failed to do so. Therefore, she has definitely committed the offence under Section 21(2) of the POCSO Act and she has been rightly convicted under this charge.
93. The appellant Daya Shelakoti has also been convicted and sentenced under Section 323, 504 IPC. In so far as Section 323, 504 IPC is concerned, we are of the view that the prosecution has not been able to prove charge under Section 504 IPC. Therefore, appellant Daya Shelakoti deserves to be acquitted of the charge under Section 504 IPC.
94. In so far as the charge under Section 323 IPC is concerned, we are of the view that the prosecution has been able to prove the charge under Section 323 IPC against the appellant Daya Shelakoti.
44
Conclusion
95. (i) The conviction of appellant Mukesh Kumar Sahgal under Sections 354-A and 376(2) IPC and Section 5 r/w 6 of the POCSO Act is upheld.
(ii) The appellant Mukesh Kumar Sahgal is sentenced under Section 376(2) IPC to rigorous imprisonment for 14 years with Rs.50,000/- fine. In default of payment of fine, the appellant Mukesh Kumar Sahgal shall undergo simple imprisonment for a further period of 03 months.
(iii) The conviction and sentence of the appellant Mukesh Kumar Sahgal under Section 67A of the Information Technology Act, 2000 is hereby set aside. The appellant Mukesh Kumar Sahgal is acquitted of the charge under Section 67A of the Information Technology Act, 2000.
(iv) The conviction and sentence of the appellant Daya Shelakoti under Section 21(2) of the Protection of Children from Sexual Offences Act, 2012 and under Section 323 IPC is upheld.
(v) The conviction and sentence of the appellant Daya Shelakoti under Section 504 IPC is set aside. The appellant Daya Shelakoti is acquitted of the charge under Section 504 IPC
(vi) The other directions with regard to payment of compensation to the victim shall remain unaltered.
(vii) The impugned judgment and order dated 16.10.2018 is modified to the extent as indicated above.
(viii) Both the appeals are disposed of accordingly. 45
(ix) The appellant Daya Shelakoti is on bail. Her bail bonds are cancelled and sureties are discharged of their liability. Let she be taken into custody forthwith to serve out the remaining sentence.
(x) Let a copy of this judgment be forwarded to the court concerned for necessary compliance.
(Alok Mahra, J.) (Ravindra Maithani, J.)
08.10.2025
Sanjay
SANJAY
Digitally signed by SANJAY KANOJIA
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=e50e50b49596520698eff87e0a08bbd504686 df4d1afc60f54a287831dec46fe, postalCode=263001, KANOJIA st=UTTARAKHAND, serialNumber=26EEB7122ED0DD23233A255DD8EC45 0A84B515A087CAEFD1B3179A7DEAE40699, cn=SANJAY KANOJIA Date: 2025.10.09 16:37:10 +05'30'