Delhi District Court
State vs Hanuman Sharan Shukla @ Raju on 7 February, 2022
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
SC No. 668/2018
CNR No. DLWT01-008842-2018
State Versus Hanuman Sharan Shukla @ Raju
S/o Sh. Dwarka Prasad Shukla
R/o. Manoj Ka Makan Near Central Bank of
India, Bakkarwala, Delhi
New Address: G-499, JJ Colony,
Bakkarwala, Delhi.
FIR No. 373/2018
PS: Mundka
U/s: 6 & 10 POCSO Act
Date of filing Final Police report : 26.09.2018
Date of cognizance of offences : 26.09.2018
Date of framing of charges : 20.11.2018 & 10.07.2019
Date of institution in this Court : 04.01.2022
Date of hearing arguments : 19.01.2022
Date of judgment : 07.02.2022
Appearances:
Sh. Atul Kumar Shrivastava, Ld. Addl. PP for the State assisted by Ms.
Urmi Chudgar, Advocate for the complainant.
Sh. Abhijit Ashok Bhagat, Ld. Legal Aid Counsel from DLSA (West) for
the accused.
Ms. Deepika Sachdeva, Advocate for Delhi Commission for Women.
JUDGMENT:
ACCUSATION / CHARGE:
1. Accused Hanuman Sharan Shukla @ Raju S/o Sh. Dwarka Prasad Shukla has been arraigned for trial on he two counts of charges: First, under Section 6 of the Protection of Children from SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 1 of 35 Sexual Offences Act, 2012 (hereinafter referred as the POCSO Act) on the allegations that on 28.07.2018 at about 3.30 p.m. at the roof of the house of one Sh. Manoj, Bakkarwala, Delhi within the jurisdiction of PS Mundka, he committed 'aggravated penetrative sexual assault' upon the prosecutrix (examined as Ms. 'A') aged about 3½ years; and secondly that on such date, time and place he committed sexual assault upon the minor child with criminal sexual intent by touching her private part after removing her underwear and thereby committed an offence under Section 10 of the POCSO Act. Needless to state that the accused pleaded not guilty to the charges and claimed trial.
PROSECUTION CASE:
2. The prosecution case is that on 29.07.2018 W/SI Sarita (PW-2) received a call from duty officer at PS Mundka sometimes between 12 p.m. to 1.00 p.m. informing her that the SHO PS Mundka had instructed her to receive a POCSO call; and that W/SI Sarita (PW-2) reached the Police Station where she met the complainant Mrs. 'S' (PW-6) (referred by pseudonym Mrs. 'S' in order to protect the identity of the mother of the victim), whose statement Ex.PW-2/A was recorded to the following effect:-
"बययन ककयय कक मम पतय उपररक पर सह पररवयर ककरयए पर रहतत हह ह और ममरय सथयई पतय (x) हह। ममरम दर बटतययय हह। जर कल कदनययक 28-07-2018 कर समय़ करतब 3-4 बजम कक बयत हह जब वयररश आई हह ई थत तर ममरत बमटत छत पर वयररश मम नहय रहत थत। तब पडरस मम रहनम वयलय ललडकय रयजज शशक लय S/o द रश यर पसयद शशक लय अपनत छत पर वयररश कम पयनत मम नहय रहय थय तर बम ट त कर अपनत छत पर बशल ययय और वहयय नहलय रहय थय। तब मम अपनत बम ट त कर सयथ लम क र नतचम उतरत तर मम र त बम ट त नम सतढत मम बतययय कक रयजज भहय य नम मम रम सयथ नतचम हयथ लरययय और मम र त चडत उतयर कर फम क दत तब मह नम रयजज सम पजछ य तर रयजज नम कहय कक मम नम तर टयर पकडकर खम च त थत। तब मह नम उसकक मयह कर बतययय। वर अपनम घर चलम रए थम। कफर महनम रयत कर अपनम पकत सम बतययय तर ममरम पकत तथय रयजज कम घर वयलम कम सयथ हयथयपयई हह ई तब महनम झरडय दमखकर 100 No. पर call कर दत। रयजज नम ममरत बमटत कम सयथ छम डछयड कक हरकत कक SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 2 of 35 हह। उसकम खखलयफ कयनजनत कययर वयहत कक जयवम। "
['x' address omitted to protect identiy]
3. On recording of such statement, rukka/tehrir endorsement was written Ex.PW-2/B and the same was sent to the duty officer to get the FIR registered, which was received by duty officer vide endorsement Ex.PW-7/B and the present FIR was registered under Section 10 of the POCSO Act on 29.07.2018 at 15:11 Hours Ex.PW- 7/A. During the course of further investigation counselling of the victim child 'A' was done and she was sent for her medical examination at Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi-110084 along- with W/Ct. Suman (PW-9) and the victim was medically examined and her MLC Ex.PW-5/A was obtained, upon which I would reflect later on in this judgment.
4. Further, the site plan of the place of occurrence was prepared at the instance of the mother of the victim child Ex.PW-2/C and the accused was arrested at the pointing out by the mother of the victim on 29.07.2018 at 5.30 p.m. vide arrest memo Ex.PW-2/D and personal search memo Ex.PW-2/E. The accused was interrogated and his disclosure statement Ex.PW-2/F was recorded. During the course of further investigation, the statements of witnesses under Section 161 Cr.P.C. were recorded and on 30.07.2018 W/SI Sarita (PW-9) escorted the victim as well as her mother for recording of their statements under Section 164 Cr.P.C. before the Ld. MM at Tis Hazari Courts Complex, which are Ex.PW-6/B and PW-6/B-1 respectively.
SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 3 of 355. During the course of further investigation, inquiries were conducted regarding the date of birth of the accused as we well as victim child and it was found that date of birth of accused was 06.06.1998 whereas the date of birth of the victim child was 13.11.2014 and the documents were collected in this regard. On completion of investigation, charge-sheet was filed under Section 10 of the POCSO Act. Cognizance of the offence was taken vide order dated 26.09.2018 under Section 10 of the POCSO Act and after complying with mandate of Section 207 Cr.P.C., the accused was initially charged under Section 10 of the POCSO Act vide order dated 20.11.2018.
6. However, the order dated 20.11.2018 was challenged by the complainant party by filing a Criminal Revision Petition No. 23/2019 and Crl. M.A. No. 353/19 and the Hon'ble Mr. Justice Sanjeev Sachdeva, Judge, High Court of Delhi vide judgment dated 04.07.2019 considered the observation made by Doctor with regard to local examination of the genital part of the victim in the MLC and inter alia after referring to the Textbook of Obstetrics by D.C. Dutta, Chapter-1:
Anatomy of Female Reproductive Organ and referring to the decision in Wahid Khan v. State of MP, (2010) 2 SC 9 held that prima facie charge was also made out against the accused under Section 3 read with Section 6 of the POCSO Act. It is in the said background that charge under Section 6 of the POCSO Act was also framed against the accused, to which he also pleaded not guilty and claimed trial. Although charge was put under Section 6 and 10 of the POCSO Act by the Ld. Predecessor, it was inherent that the alleged acts committed by the accused prima facie made applicable under Section 5 (m) and SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 4 of 35 Section 9 (m) of the POCSO Act.
7. During the course of trial, the prosecution examined 10 witnesses. The main witnesses for the prosecution were of-course the victim child PW-1 examined by pseudonym Miss 'A' in order to protect her identity, who had attained the age of fiver years on 07.12.2020 and the other key witness was her mother/complainant, who was missing for sometime but was ultimately traced and produced for her evidence as PW-8 on 08.03.2021. It is pertinent to mention that she was also re- called for further cross-examination on allowing the application of the accused under Section 311 Cr.P.C. and was further cross-examined on 27.08.2021.
8. Further were examined: PW-5 Dr. Ishu, Secondary DNB, Sanjay Gandhi Memorial Hospital, who appeared for Dr. Chesta, SR (Gynae) since she had left the services of the Hospital and she identified the handwriting of the remarks and signatures of Dr. Chesta on the MLC dated 29.07.2018 of the patient Miss 'A' female aged about 3½ years and the MLC was marked as Ex.PW-5/A. PW-6 was Ms. Aanchal, Ld. ASCJ-cum-JSCC-Guardian Judge, North District, Rohini Courts, Delhi, who testified recording statement of the prosecutrix and her mother under Section 164 Cr.P.C. and proved the relevant documents Ex.PW-6/A to PW-6/D as well as Ex.PW-6/A-1 to D-1. The remaining witnesses were the police witnesses viz. PW-2 W/SI Sarita, who initially recorded statement of the mother of the prosecutrix Ex.PW-2/A and prepared rukka and got the FIR registered. PW-3 was Ct. Deepak, who testified that duty officer had handed over to him one SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 5 of 35 original rukka and copy of FIR and he went to the spot i.e. Manoj Ka Makaan, Bakkarwala, Delhi where he met IO/SI Sarita along-with victim/prosecutrix and her mother besides Ct. Suman and handed over the copy of FIR to the IO. He further deposed that accused was arrested in his presence and then accused was taken for his medical examination by him to the Hospital. PW-4 was W/SI Geeta. She was successor IO, who received case file for investigation from MHC® and conducted investigation with regard to age of the victim child and prepared final police report/challan and filed the same in the Court. PW-7 was ASI Neelam, who was the duty officer at PS Mundka and deposed that she received rukka at 3.11 p.m. from SI Sarita and the present FIR was recorded by her after making endorsement in DD No. 22-A and deposed that she recorded the FIR and computerized copy of which is Ex.PW-7/A and also furnished certificate under Section 65-B of Indian Evidence Act to authenticate the computerized copy of the FIR, which is Ex.PW-7/C. PW-9 was Ct. Suman Rani. At the cost of repetition, she took the victim to the Hospital at about 3.00 p.m. for her medical examination and lastly W/ASI Sudesh was examined as PW-10, who deposed that on 30.07.2018 she received the case file from W/SI Geeta and prosecutrix and her mother were produced before the Ld. MM for recording of their statements under Section 164 Cr.P.C.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.
9. On the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. On putting of incriminating evidence brought on the record by the prosecution against him, SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 6 of 35 accused stated that prosecution story was false and PW-1 Ms. 'A' and her mother PW-8 Mrs. 'S' have deposed falsely against him. On being asked as to why this case was filed against him he stated as under:-
"I have been falsely implicated in this case as my mother purchased the property No. B-499, J.J. Colony, G Block, Bakkarwala and the mother of the victim also having an eye on the said property but due to insufficient funds, the mother of the victim could not purchase and as a result, out of jealousy, she falsely implicated me in this case. Further when this fact came to the knowledge of the father of victim, along-with his associates, beaten the accused and his brother and caused injuries upon me and I called the police. I am innocent and have not committed the crime alleged against me. I have been falsely implicated in this case as my mother purchased the property No. B-499, J.J. Colony, G Block, Bakarwala and the mother of the victim was also having an eye on the said property but due to insufficient funds, the mother of the victim could not purchase and as a result, out of jealousy, she falsely implicated me in this case. Further when this fact came to the knowledge of the father of victim, along-with his associates, beaten the accused and his brother and caused injuries upon me and I called the police."
10. The accused chose to lead evidence in his defence and examined his mother Smt. Chandrawati Shukla as DW-1. She testified that she bought property No. G-499, J.J. Colony, Bakkarwala, Delhi from Geetam Mal and deposed that the mother of the victim wanted to forcibly take the property, which was purchased by her after obtaining loan of Rs. 5.5 Lacs from Central Bank of India, Nangloi Branch where she was working as Peon. She testified that father of victim abused her and her sons, and the father of the victim with his associates also gave beatings to her sons, namely Hanuman Sharan and Murli Dhar and both of her sons had got injured. In the same vain testified that father of the victim and his associates hit her accused son with a bottle of beer and also on the head of other son Murli Dhar. She SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 7 of 35 placed on the record copies of GPA and agreement to sell besides affidavit, MCD slips, receipt & possession letter, which are marked DW- 1/A to DW-1/G.
11. The accused also chose to come in the witness box and was examined as DW-2 and he testified that initially when he was taking meals at about 8.30 p.m., mother of the girl came to their residence and had some arguments with his mother but she went back and later father of the victim girl, after returning from his job, started abusing him and when he opposed, he slapped him and on being asked as to why he slapped him, he replied that he had misbehaved with his daughter and he also slapped him back, upon which neighbours intervened and they pacified the quarrel. He stated that he returned to his house but after some time father of victim along-with his younger brother and 2-3 unknown persons came to his house and started beating him and his brother Murli Dhar with hockey sticks and beer bottles and the neighbours again intervened and they were pacified. However, in the meanwhile his mother placed a call at No.100 and the police came to the spot and recorded his statement as well as statement of father of victim and he was taken to Hospital for medical examination and that on their complaint FIR No. 374/18 under Section 323/341/34 IPC was registered at PS Mundka, copy of which is Ex.DW-2/A. LEGAL SUBMISSIONS AT BAR:
12. Sh. Atul Kumar Shrivastava, Ld. Addl. PP for the State after narrating the prosecution story took this Court through the provisions of Section 3 of the POCSO Act and reading the statement of the victim-
SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 8 of 35child PW-1 under Section 164 Cr.P.C. as well as her deposition in the Court and it was urged that "redness on the posterior fourchette"
substantiated the version of victim-child. It was urged that the case was clearly covered by Section 5 (m) of the POCSO Act and conviction can be based solely on the testimony of the victim-child, for which reliance was placed in case titled as 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 by the Hon'ble Supreme Court and another case titled as Radhu v. State of Madhya Pradesh, Appeal (Crl.) 624 of 2005. Ld. Addl. PP for the State urged that the deposition of the victim-child should be appreciated in terms of guidelines laid down by the Hon'ble Supreme Court in case titled as State of Punjab v. Gurmit Singh, AIR 1996 SC 1393.
13. On the issue of delay in lodging of the FIR, referring to the decision in the case of State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71, it was urged that delay in filing of the FIR cannot be used as a ritualistic formula to doubt the authenticity of the prosecution case. It was urged that delay in lodging of the complaint was satisfactorily explained by PW-8, the mother of the victim-child as initially she was reluctant to lodge any complaint and only when the misconduct or act of sexual assault was broached with the accused and his family members, which led to some quarrel, the mother of the victim-child on being couselled realized what crime had been committed by the accused. Lastly, referring to Section 29 of the POCSO Act it was urged that presumption is squarely invited about SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 9 of 35 sexual intent to do the crime. Lastly, it was pointed out that there was no false implication as the accused himself as complainant in case FIR No. 374/2018 stated that father of the victim-child confronted him and abused uttering the words "तजनम ममरत बमटत कम सयथ रलत कयम करनम कक करकशश कक हह"
14. Ms. Urmi Chudgar, Ld. Counsel for the complainant assisted and also supported the submissions made by the Ld. Addl. PP for the State and has filed detailed the written submissions.
15. Mr. Abhijit Ashok Bhagat, Ld. Counsel for the accused vehemently urged that this was a clear case of false implication of the accused, and the family of the victim-child merely suspected that accused attempted to commit sexual assault "रलत करनम कक करकशश कक"
and their case took malafide turn when family of the victim-child came to know that mother of the accused had purchased a house in Bakkerwala, which the mother of the victim-child also wanted to purchase but for lack of finance. It was vehemently urged that if statement of PW-8 made to the police Ex.PW-2/A is believed, she had made a PCR call but then no PCR call/prescribed form was proved that any such call was made. Mr. Bhagat, vehemently urged that while PW-8 in her statement to the police Ex.PW-2/A stated that accused had removed underwear (चडत) of her daughter, in the statement of the victim-child under Section 164 Cr.P.C. PW-8 stated that it was a paijama which was removed and thrown away by the accused and neither the alleged underwear (चडत) nor paijama was ever seized by the Investigating Officer. Ld. Counsel fo rthe accused vehemently urged that there was not only delay in lodging of the FIR, since it was SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 10 of 35 ultimately lodged after FIR No. 374/2018 Ex.DW-2/A was lodged on the complaint of the accused but even statement of the father of the victim- child was not recorded and it was emphasized that it was father of the victim-child, who along-with his brother and other associates not only physically assaulted the accused but also his brother, who received injuries in the melee. Ld. Counsel took this Court through the statement of the victim-child under Section 164 Cr.P.C. vis-a-vis deposition in the Court and it was vehemenlty urged that there were material contadictions and improvements suggesting false implication as version of the victim-child was contrary to her mother PW-8 who made substantial improvement in her deposition before the Court over her statement to the police under Section 161 Cr.P.C. as well as under
Section 164 Cr.P.C. Mr. Bhagat has relied upon decision in the case of Altaf Ahmed @ Rahul v. State (GNCT of Delhi), 2021 (1) LRC 148 (Del) and another case titled Dharmendra s/o Keshav Nagdevte v.
State of Maharashtra, through the police station officer, PS Sindewahi, 2018 (3) LRC 365 (Bom).
DECISION:
16. I have accorded my thoughtful consideration to the submissions advanced at the Bar by the ld APP for the State assisted by the ld counsel for the complainant as also from the DCW and the Ld. Amicus Curiae for the accused. I have also carefully gone through the written submissions filed on behalf of the Ld. Addl. PP for the State and Ld. counsel for the parties. I have meticulously gone through the oral and documentary evidence on the judicial record. My findings are as follows:
SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 11 of 35THE POCSO ACT-OBJECTIVE AND SCOPE OF THE ENACTMENT:
17. Before adverting to the rival submissions advanced by the Ld. counsel for the parties, it would be expedient to refer to the relevant provison 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" and in the instant case Section 5 (m) of the POCSO Act defines an offence of committing "penetrative sexual assault upon a child less than 12 year", which is made punishable under Section 6 to be visited with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
18. Further, section 7 of the POCSO Act prohibits touching of any private part of the body of the child with sexual intent which involves physical contact without penetration. Section 8 provides for punishment for offence of sexual assault and section 9 defines offences of aggravative sexual assault which interalia vide clause (m) provides for sexual assault on a child less than twelve years of ages to punishable for a minimu sentence of five years which may extend up to seven years under section 10 of the POCSC Act.
SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 12 of 35ISSUE OF COMPETENCY OF THE CHILD WITNESS:
19. First thing first, the victim-child was below12 years of age age the time of the incident since it is proven on the record that her date of birth was 13.11.2014 as per cumulative record Ex.PX-1 from the SDMC School (address withheld in order to protect the identity of the victim- child). Further, it is also proven on the record that the date of birth of accused was 06.06.1998 as per School record Ex.PX-2 (colly) and thus he was about 20 years of age and to be very precise he was aged 20 years 1 month and 24 days on the date of incident.
20. Now, on the issue of competent of a child witness to depose in the Court and whether such deposition can be relied upon, in the case of Altaf Ahmed vs State (supra), it was held that:
"In a trial involving examination of a child witness, the trial court is required to first record its satisfaction as to the competency of the child witness. For such purpose, the trial court needs to test the capacity of a child witness. It has been held in plethora of decisions that no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the Court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the Court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined. [Refer : P. Ramesh v. State reported as 2019 SCC OnLine SC 927] SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 13 of 35 (Para 8)"
21. In view of the aforesaid proposition of law, reverting back to the instant case, in so far as the competency of the victim-child (PW-1) is concerned her statement under Section 161 Cr.P.C. was recorded on 30.07.2018 Ex.PW-6/B and the same goes as under:-
"Now, before proceeding with recording of statement, I deem it necessary to put certain questions to her to form an opinion if the witness/child is able to give coherent and rational answers to questions put to her and she is truthful, fearless and not under any pressure, force or inducement since child is of tender age. Hence I put the following questions to her.
प. कयय नयम हह आपकय
उ. Omitted
प. आपकय भहयय हह यय बहन
उ. बहन
प. आपकक बहन कय कयय नयम हह ?
उ. Omitted
प. आप खमलतम हर ?
उ. हयह
प. कयय खमलतम हर ?
उ. पकडम पकडयई
प. आपकर रयरर कम नयम मयलजम हह ?
उ. हयह
प. आपकर रयइम आतत हह ?
उ. हयह
प. मशझम सशनयओरम
उ. हयथत रयजय कहय चलम, सजयड कहलय कर कहय चलम ,
ममरम घर भत आओ न, हलवय पजरत खयओ न,
आओ बहठर कशसर पर, कशसर बरलत चटर पटर
प. At this time I whisper in ear of child " मम ररज School
जयउय रत" and asked the child to convey same to her mother and she does the same. Then I put her आपनम Mamma कर वहत बतययय हह जर महनम बरलय? महनम कशछ और भत बरलय थय कयय बतयनम कम खलए?
उ. और कशछ नहह बरलय थय।
प. I showed her two pencils and asked ककन सत Pencil बडत हह
She picks the correct pencil
प. आप पजजय करतम हर ?
उ. हयह
प. कहसम करतम हर पजजय
SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 14 of 35
She tells by waving her hand to make a circle.
प. आप मशझम सयरत बयतम सच सच बतयओरम
उ. हयह
For the above answers given by the prosecutrix, I am satisfied that she is giving age appropriate answer coherently to questions put to her and she is not under any inducement, fear, force or pressure. She is a bubbly child with unclear speech (which is natural at this age), thus requiring assistance of her mother for being comprehensive Now I dispense with the requirement oath since witness is of young age and keeping the age of child in mind proceeds to record her statement by putting some leading questions to her.
Statement of baby 'A' (prosecutrix whose name is withheld as by SC guidelines ) प. आपकर बयररश मम नहयनय अचछय लरतय हह ?
उ. हयह प जब आप बयररश मम नहयए तर वहय करई थय ?
उ. Raju प. आप कह सम नहयए उ. Raju ऐसम कर रहय थय The Child rubs her vagina continuously with her hand प. कफर कयय हह आ उ. छरड दर बरलय ममनम प. कफर आपनम ककसत कर बतययय यह बयत।
उ. मममत कर प. आपनम और ककसत कर भत बतययय ?
उ. पयपय कर। छत पर
22. A bare perusal of the of the aforesaid statement would show that at the age of 3½ years the victim-child was able to identify some natural colours and recited a nice rhyme, and the Ld. MM rightly noted that the victim-child was giving rational answers in a coherent manner and did not appear to be under any kind of any inducement, fear, force or pressure. It was observed by the Ld. MM that PW-6 victim-child was a bubbly child with unclear speech but she was able to make herself clear. The point that emerges in her statement under Section 164 Cr.P.C. is that she stated "Raju एम सम कर रहय थय Court Observation :SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 15 of 35
The child rubs her vagina continuously with her hand". The deposition of the child in the Court which was recorded on 07.12.2020, after two years and four months by which time she had become five yeas of age and the same reads as under:-
"Q. यह ककन हह Ans. रयजज | पश्न रयजज कहयह रहतय हह ?
उत्तर पहलम ममरम घर कम सयमनम रहतय थय।
पश्न इस रयजज नम तशम हयरम सयथ कयय ककयय थय उत्तर बयररश आ रहत थत मम नहय रहत थत यह रयजज आयय थय और उसनम मम र य पयजयमय उतयर कम फम क कदयय थय जहयह सम बयथरुम करतम हम उसमम उय र लत डयलत थत । जर सजस ज करनम वयलत जरह हरतत हह वहत बयथरुम वयलत जरह हह ।
(बचचम नम इशयरम सम भत बतययय indicated at vagina), कफर मममत आई तर ममनम मममत कर उसत वक बतययय। रयत कर खयनय खयतम वक ममनम पयपय कर भत बतययय। पयपय नम उसकर डयहटय और मयरनम कर रयम । कफर पयपय नम पशखलस कर बशलययय। कफर उसम पशखलस जहल मम लमकर रयत। मम मममत पयपय और पशखलस कम सयथ असपतयल मम रई थत। ममनम जज आय टत कर सब बतय कदयय थय।
अकभयशक हनशमयन शरण शशकलय कर रयजज कम रुप मम पहचयनय । अकभयशक नम अपनय नयम रयजज हरनय सवतकयर ककयय।
XXXX by Sh. Ram Raghvender Kumar, Ld. Counsel for the accused Hanuman Sharan Shukla 1 .यह कहनय रलत हह कक रयजज और ममरम कपतयजत एक दस ज रम कम घर आतम जयतम थम। ममनम
2. ममनम कभत भत रयजज और अपनम कपतयजत कर कभत लडतम हह यम नहह दमखय।
3. मम रयजज कर बहह त कदनन सम जयनतत थत।
4. जहयह मम नहय रहत थत वहयह और भत बचचम नहय रहम थम। मशझम उन बचचन कम नयम SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 16 of 35 नहह पतय। उस वक वहयह पर ममरत बहन नहह थत वर सक रहत थत। उसकय नयम सस हह।
PW-1 Statement of Ms. A.......
पश्न जब रयजज नम यम सब ककयय तब आपनम कचलययय थय ?
उत्तर हयह | इस बयरम मम ककसत और बचचम कर नहह बतययय थय।
पश्न उसनम पयजयमय उतयरकर कहयह फमक कदयय थय ?
उत्तर छत सम नतचम फमक कदयय थय।
पश्न वर पयजयमय ककस कलर कय थय ?
उत्तर Yellow कलर कय थय ।"
23. Again, the Ld. Special Judge concerned established a fair rapport with the victim in a humane way and at that time made the victim-child reveal that she was studying in a Nursery class in a private school and stated that earlier she was going to school with her mother but schools were closed and perhaps Ld. Special Judge recorded that it was because of COVID-19 pandemic situation. She identified the colour of her dress as pink. She acknowledged that colour of the Coat of the support person was black. On being asked whether anyone had told or explained her as to what she was to say in the Court, she replied - पयपय नम कहय थय जर भत सच हर बरल कदयर. Incidentally, on the day of deposition she had come with her father and it may be noted that initially her mother was missing and in that regard, the statement of W/SI Geeta Yadav was recorded by the Ld. Predecessor Court on 21.01.2021, the gist of which is that on enquiries it was found that mother of the victim-child had eloped with someone and later statement of W/SI Sarita was recorded on 06.02.2021 that father of the victim-child stated that his wife i.e. mother of the victim-child was missing for about a year. It is suffice to point out that ultimately mother SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 17 of 35 of the victim-child was located and she was examined in the Court on 08.03.2021 and re-examined on 27.08.2021.
24. Reverting back to the issue of the competency of the victim- child, the Ld. Predecessor Court, who had examined the victim-child in the Vulnerable Witness Court Room at Tis Hazari Courts Complex gave a finding that victim-child was able to understand the questions and gave rational answers while observing that victim-child was well oriented and was able to give intelligible replies and did not appear to be under any kind of tutoring.
APPRECIATION OF SOLE TESTIMONY OF THE CHILD VICTIM:
25. Having set at rest the issue of the competency of child witness, the next issue is appreciation of her evidence. It is well settled law that in case of rape or sexual assault, the finding of guilt can be recorded even on the basis of uncorroborated statement of the victim provided the same is cogent and relevant. However, so far as testimony of a child witness is concerned, it has to be evaluated even more carefully as the same is susceptible to tutoring. In State of Madhya Pradesh v. Ramesh (2011) 4 SCC 786, the Supreme Court held as under:
"14. In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with grater circumspection because he is susceptible to tutoring. Only in case there is evidence or record to show that a child has been tutored, the court can SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 18 of 35 reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."
26. Similarly, in Ranjeet Kumar Ram v. State of Bihar, 2015 SCC OnLine SC 500, it was observed as under:-
"14.... Evidence of the child witness and its credibility would depend upon the circumstances of each case. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one..."
27. In Mangoo v. State of M.P., AIR 1995 SC 959, the Hon'ble Supreme Court while dealing with the evidence of a child witness observed that the Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. In State of M.P. v. Ramesh, (2011) 4 SCC 786, the Hon'ble Supreme court while referring to its earlier decisions, held as follows:
"14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 19 of 35
28. In the light of aforesaid judicial pronouncement on appreciation of evidence of a child witness/ victim child, the plea by Mr. Abhijit Ashok Bhagat, Ld. Counsel for the accused that there was improvement in the version of the victim-child (PW-1) when she was examined in the Court cannot be overlooked since the victim-child in her initial statement before the Ld. MM under Section 164 Cr.P.C. Ex.PW-6/B had deposed that the accused Raju had rubbed her private part while taking bath in the rains whereas in her deposition before the Court she stated that accused after removing her paijama and throwing it away - जहयह सम बयथरम करतम हह उसमम उय र लत डयलत थत । जर सशसश करनम वयलत जरह हरतत हह वहह बयथरम वयलत जरह हह . Ld. Predecessor Court then observed that the child was indicating towards her private part. The aspect of "insertion of finger" is definitely a significant improvement if the said aspect in the testimony of PW-1 is examined vis-a-vis version of her mother, who initially in her statement Ex.PW-2/A stated that her daughter had told her while going downstairs " रयजज भहयय नम ममरम सयथ नतचम हयथ लरययय". PW-8 in her deposition before the Court examined on 08.03.2021 quite apparently improved her earlier version given to the Investigating Officer in her statement Ex.PW-2/A where she stated that when she went upstairs on the roof to look for her daughter, she saw that pyjama (lower) of her child had already been removed by the accused and it was lying in front of the house of the accused; and that there is distinct improvement in her version in the Court since testified that she saw that both legs of her daughter Miss 'A' were wide opened by the accused. She then made another improvement to the effect that when she was taking her both daughters downstairs, Miss 'A' informed that accused was fingering into her vagina (रयजज नम मम र त शशश श SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 20 of 35 वयलत जरह मम उय र लत घशम यई थत). It is pertinent to mention her that in her statement under Section 164 Cr.P.C. Ex.PW-6/B-1, PW-8 had stated as under:-
"....मह xxx कर डयहटय कर लम कर आई जमसम हत मम उसम नतचम लमकर आई एक जतनम सम दस ज रम पर तर उसनम अपनम आप हत मशझम कहय Mamma Raju Bhayya ममरम मशनमशन पर Bathroom वयलत जरह पर हयथ लरय रहय थय। महनम पशछय कहयह तर उसनम मशझम अपनम Bathroom वयलत जरर पर एम सम-2 (witness indicates as if she is rubbing something) करकम बतययय" (xxx is referred to Miss 'A')
29. To sum up, the statement of PW-8 in the Court is material improvement over her initial complaint to the police Ex.PW-2/A as also later version under Section 164 Cr.P.C. Ex.PW-6/-1 before the Ld. MM. To put it precisely the case was of touching by way of rubbing by hand but there was no case that the accused had inserted his finger into the private part of the victim-child. Now. The expression "Penetrative sexual assault" is defined, in Section 3 of the POCSO Act the following manner:
"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."SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 21 of 35
30. It is pertinent to mention that the POCSO Act as also post the Criminal Law(Amendment) Act 2013, there are 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 the 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 aspect of "penetration"was addressed in the context of the then existing definition of rape, 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.
31. Further, the Hon'ble Supreme Court in the judgment Wahid Khan v. 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. Thus, penetrative, full or partial, is at the core of applicability of section 5 of the POCSO Act.
MEDICAL EXAMINATION OF THE VICTIM GIRL:
32. Now, in the light of afore discussed case law, let us revert to the plea by the Ld. Addl. PP for the State supported by Ms. Urmi SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 22 of 35 Chudgar, Ld. Counsel for the DCW that the version of the victim-child corroborated by the medical examination of the victim-child conducted on 29.07.2018 at 3.35 p.m. onwards. The MLC of the victim girl records the following remarks:
B. External Genitalia No injury
I. Labia Majora: Any swelling, tears, No injury
edematous, bruises or abrasion:
II. Labia Minora: Scratch, bruising fingernail No injury marks
marks tear, infection:
III. Fourchette: Bleeding, tear: Redness Over
Posterior
fourchette
IV. Vulva injury, injury bleeding, discharge: No injury
V. Perineum: No injury,
bleeding
C. Hymen-intact/Torn: If Torn-Site, Nature, No fresh injury
Extent of injury:
Injury-fresh or old/oedema/ congestion /
tenderness
D. Vagina & Cervix (any Bleeding/tear/ Not indicated
discharge / oedema / tenderness)
Speculum examination (if possible):
P/V examination (only if medically
indicated).
33. The aforesaid aspects in the medical of the victim girl need some deeper examination. In the order dated 04.07.19 passed by the Hon'ble Judge, High Court of Delhi, reference was made to 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 SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 23 of 35 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.
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 respectiely. 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." As per the said commentary, the fourchette is an internal portion which is between the Labia Majora and Labia Minora. The MLC found redness over the posterior fourchette which prima facie indicates that there was some form of penetration.
34. While appreciating the aforesaid observations, which were based on prima facie material before the Hon'ble Judge, High Court of Delhi even before the trial commenced, it is pertinent to point out that PW-Dr. Chesta, who had medically examined the victim-child was not examined by the prosecution and instead PW-5 Dr. Ishu, who was a Junior Doctor appeared on being deputed by the MS of SGM Hospital to depose in the matter since Dr. Chesta S.R. (Gynae.) had left the services of the Hospital. Although she proved the handwriting and remarks by Dr. Chesta, what is crucial to point out from the MLC Ex.PW-5/A is that Doctor concerned had made enquiries from the SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 24 of 35 mother of the victim-child and there is nothing to indicate that the concerned Doctor asked any question to the victim-child. Although on examination of Ex.PW-5/A at Part B. under the heading External Genitalia, it was observed vide III. Fourchette: Bleeding, tear and remarks "redness + over posterior fourchette", it must be appreciated that there were no signs of any injury, bleeding and it is specifically recorded that no fresh injury was found on the external examination of the victim-child. To my mind, the prosecution case of 'penetrative sexual assault' of the victim-child gets shots down when it is seen that PW-5 Dr. Ishu in her cross-examination conceded that injury reflected in the MLC Ex.PW-5/A could have been caused by "playing (खम ल नम कज दनम सम ) or it could have been caused by self rubbing at the time of itching due to living in unhygienic conditions". Although, the examination of the victim-child was done almost within 24 hours of the incident, possibility can be ruled out that since she was playing on the roof and enjoying rain bath, she might have developed some infection due to unhygienic condition, and might have experienced some itching, and consequent rubbing caused redness in the posterior fourchette. In other words, it is difficult to hold that the redness in the forechette occasioned due to partial penetration within the labia majore and labia minora. In the instant matter, it is natural to assume that since the victim child was about 3 and half years of age at the time of incident, her genitals were extremely tender, and thus, mere redness of the forechette does not lead to an inevitable inference of "penetrative sexual assault". Hence, the ratio in the case of Wahid Khan v. State of Madhya Pradesh (supra) is not applicable in the instant case.
SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 25 of 35THE DEFENCE OF THE ACCUSED:
35. Sections 30 of the POCSO Act puts reverse burden of proof upon the accused apart from the statutory presumptions under section 29, that read as under:
"29-When a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."
"30 - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability".
Explanation - In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
36. Avoiding long jurisprudential discourse on the subject, suffice to state that once the prosecution has proved the foundational facts and circumstances under the POCSO Act, there is reverse onus of proof upon the accused to show that he had no mental state with respect to the act charged with while having physical contact with the victim. Without further ado, the plea by Mr. Abhijit Ashok Bhagat, Ld. Defence Counsel that the accused has been falsely implicated is belied form the fact that when it is appreciated that PW-8 in her complaint to the police Ex.PW-2/A conceded that when the victim-child revealed her what had been done by the accused, she confronted not only the SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 26 of 35 accused who replied that "ममनम तर टययर पकड कर खमचत थत" but then she also revealed the said aspect to the mother of the accused and later on there was a quarrel between her husband and the family members of the accused, which fact was also deposed by PW-8 in her cross- examination on being confronted with complaint Ex.PW-2/A to the effect that "then, the complete family of the accused comprising of 8-10 people had came out and attacked father of the prosecutrix and he received injuries over his forehead as he was hit by some object and the said aspect is also emanating from the deposition of the accused examined as DW-2, who testified that her husband, her two brothers- in-law (devars) and one Bhanja also tried to save her husband in such scuffle".
37. Now, it appears that on the complaint of the accused, FIR No. 374/2018 under Section 323/341/34 IPC, copy of which is Ex.DW-2/A, was registered at 9.45 p.m. on 28.07.2018, and it appears that the father of the victim-child along-with her two uncles have been arraigned for trial separately. This Court at the stage of final arguments also summoned the original record in case FIR No. 374/2018 pending in the Court of Ms. Udita Jain Garg, Ld. MM-06, (West), Tis Hazari Courts, Delhi where charge against the father of the victim-child and his two brothers have been framed on 21.08.2019 but the trial has got stuck due to suspension of physical work in view of COVID-19 pandemic situation.
38. Perusal of the record in such case reveals that accused as well as his brothers were medically examined on 28.07.2018 at about SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 27 of 35 12.43 hours in SGM Hospital vide MLCs, the copies of which are Ex.DW-2/B and DW-2/C respectively as deposed by DW-2/accused and there are described some injuries on their bodies, which ultimately were opined to be 'simple' in nature. Be that as it may, what is forthcoming from the complaint lodged by the accused leading to registration of the aforesaid FIR is that the father of the victim-child had accused him of attempting to commit sexual assault or ' रलत कयम करनम कक करकशश कक', which led to quarrel. This Court may hasten to clarify that this Court is not attempting to read any material in the other case into the instant matter. Since much was argued by ld defense counsel about the pending criminal trial against the father and uncle of the victim child, this Court has merely made a passing reference to the allegations levelled therein.
39. However, the defence version that accused has been falsely implicated for the mother of the victim-child having her evil eyes on some property that was ultimately purchased by the mother of the accused does not appear to be worth it salt. Indeed there was delay in lodging of the FIR in the present case, which at the cost of repetition was lodged on 29.07.2018 at 15.11 Hours, in the background of natural mental and psychological turmoil, guilt and shame which the mother of the victim-child was facing due to the act committed by the accused coupled with inaction by the police or reluctance to register the FIR at the earliest point of time by the police, Ld. Addl. PP for the State is correct in canvassing that the delay in lodging the FIR has been properly explained.
SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 28 of 35OFFENCE OF SEXUAL ASSAULT -TOUCHING:
40. At, this juncture, it would be expedient to refer to Section 7 pertaining to "sexual assault", which reads as under:
"7. Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
41. Section 8 providing for the punishment for sexual assault, reads as under:
"8 - Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
42. Section 9 of the Act enumerates as to what is said to commit aggravated sexual assault. Clause (m) of the said provision being relevant is reproduced as under:
"9(m)- whoever commits sexual assault on a child below twelve years;"
43. Section 10 for providing Punishment for aggravated sexual assault:-
"10-whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine".
44. In the case of Attorney General of India v. Satish, 2021 SCC OnLine SC 1076, while interpreting Section 7 of the POCSO Act, it was observed that the courts should strive to ascertain the intention SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 29 of 35 of the Legislature enacting it, and it is the duty of the Courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible abuse. Referring to earlier decision in the case of J.P. Bansal v. State of Rajasthan, (2003) 5 SCC 134:
AIR 2003 SC 1405, a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis, the true intention of the Legislature. It was held that "Where, therefore, the "language" is clear, the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity.....
45. In the above cited case, was also referred decision in the case of R.S. Raghunath v. State of Karnataka [(1992) 1 SCC 335, wherein it was held that:
23. Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject-matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so.
26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. [See Salmon v. Duncombe[L.R.] 11 App. Cas. 627 : 55 LJPC 69 :
55 LT 446 (PC)] (AC at p. 634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 30 of 35 about an effective result. The courts, when rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve. [See BBC Enterprises v. Hi-Tech Xtra vision Ltd.
[(1990) 2 All ER 118 : [1990] Ch. 609 : [1990] 2 WLR 1123 (CA)] (All ER at pp. 122-23).]"
46. It was the held that bare reading of Section 7 of the Act would show that it is in two parts. The first part of the Section mentions about the act of touching the specific sexual parts of the body with sexual intent. The second part mentions about "any other act" done with sexual intent which involves physical contact without penetration. Explaining the meaning of the word touch, it was observed that the word "Touch" as defined in the Oxford Advanced Learner's Dictionary means "the sense that enables you to be aware of things and what are like when you put your hands and fingers on them". The word "physical" as defined in the Advanced Law Lexicon, 3rd Edition, means "of or relating to body..........." and the word "contact" means "the state or condition of touching; touch; the act of touching......"; and thus it was held that the words "touch" and "physical contact have been interchangeably used in Section 7 by the legislature. The word "Touch" has been used specifically with regard to the sexual parts of the body, whereas the word "physical contact" has been used for any other act. Therefore, the act of touching the sexual part of body or any other act involving physical contact, if done with "sexual intent" would amount to "sexual assault" within the meaning of Section 7 of the POCSO Act.
SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 31 of 3547. In the said view of the proposition of law, reverting to the instant case, this Court has no hesitation in holding that the prosecution narrative as coming out in the initial complaint to the police Ex.PW-2/A and the version of the victim-child in her statement under Section 164 Cr.P.C. as also her deposition in the Court would demonstrate that the accused had physical contact with the victim child and in all human probabilities the accused had touched the victim-child on her private part while having rain bath. The testimony of the child girl (PW-1) clearly suggests the while enjoying the rain bath, the accused had dragged her by her leg, her pyjama got removed and the intitial version of the child that the accused had rubbed her privated part and she immediately apprised her mother (PW-8) as to what the accused had done to her, appears to have a ring of truth. The accused miserably fails to displace the presumption of sexual intent under section 29 of the POCSO Act. Though there is an variation in her version before the Court to the one given u/s 164 Cr.P.C that the accused had inserted his finger(ungli dali), the said aspect would not cloud her entire childish truthfull demeanour and testimony despite the blemishes pointed out in the testimony of her mother (PW-8).
48. It is pertinent to remember, that it is well settled proposition of law that principle of "falsus in uno, falsus in omnibus" has no application in context of Indian Criminal Justice System and it is the duty of the Court to extract truth from falsehood, to shift grain from Chaff (per Triloki Nath v. State of UP, AIR 2006 SC 321). The version of the victim child that finger was inserted (ungli dali thee) could be innocuous or product of childhood mind due to passage of time but all SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 32 of 35 said and done, her version is consistent that the accused had touched her with his hands on her private part, and such deviation would not necessarily lead to an inference that she was tutored by anyone. The version of PW-1 that she was playing with other kids and she was enjoying rain bath and that she told her mother what accused had done to her while going downstairs to their portion of hosue and that later she also told such facts to her father while having meals/dinner, appear to be truthful, inspiring confidence and trustworthy. In this regard, reliance can be placed on decision in the case of State of U.P. v. Krishna Master, wherein 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 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} CASE LAW BY DEFENSE COUNSEL:
49. Before drawing curtains in the present matter, the ratio in the case of Altaf Ahmed @ Rahul v. State (GNCT of Delhi) (supra), cited SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 33 of 35 by the Ld. Counsel for the accused is not applicable since it was a case where girl victim aged about 6 years had conceded at the time of her deposition that her mother had tutored her as to what she was supposed to depose in the Court and there were found material contradictions over the manner in which alleged act of "penetrative sexual assault" was committed. The case of Dharmendra s/o Keshav Nagdevte v. State of Maharashtra, through the police station officer, PS Sindewahi (supra), is also distinguishable since it was a case where the prosecution miserably failed to prove its case as the act of exual assault upon the minor child aged about seven years was not proved.
CONCLUSION:
50. In view of the foregoing discussion, this Court has no hesitation in holding that prosecution has failed to lay down foundation of its rcase under Section 5 (m) read with Section 6 of the POCSO Act and in all human probabilities it was a case of 'aggravated sexual assault' within the meaning of Section 9(m) of the POCSO Act since prosecution is able to bring home the fact that accused touched the private part of the victim-child, which fact was immediately reported by the victim-child to her mother but then it was not a case of 'penetrative sexual assault' or 'aggravated penetrative sexual assault'. There is no gainsaying that the accused has failed to rebut the presumption of entertaining 'sexual intent' at the time of commission of aggravating sexual assault.
SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 34 of 3551. Accordingly, this Court finds that the prosecution is miserably failing in proving its case against the accused under Section 5 (m) read with Section 6 of the POCSO Act. The accused is accordingly acquitted of such charges. However, prosecution has been able to proved its case against the accused under Section 9 (m) of the POCSO Act, and therefore, the accused is convicted under Section 10 Digitally signed of the POCSO Act. DHARMESH by DHARMESH SHARMA SHARMA Date: 2022.02.10 22:10:21 +0530 Announced in open Court (DHARMESH SHARMA) on 7th day of February, 2022 Principal District & Sessions Judge West District, Tis Hazari Courts, Delhi SC No.668/18 State vs. Hanuman Sharan Shukla @ Raju Page 35 of 35