Delhi District Court
U/Sec.377/511 Ipc vs State (Nct Of Delhi) on 11 April, 2022
IN THE COURT OF SH. NAROTTAM KAUSHAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE
(SOUTH), SAKET COURTS, NEW DELHI
CA No.06/2018 CNR No.DLST010098422017
FIR No.938/2002 PSMalviya Nagar, Delhi
U/sec.377/511 IPC
MEMO OF PARTIES
MANISH KUMAR
S/o Sh.Vijay Kumar,
R/o E134, Begumpur,
Malviya Nagar, New Delhi110017
Appellant....
Vs.
STATE (NCT OF DELHI)
Respondent...
DATE OF INSTITUTION :22.12.2017
DATE OF ARGUMENTS :30.03.2022
DATE OF OF ORDER :11.04.2022
Argued by: Sh.Mukesh Vatsa, Counsel for the appellant
Sh.R.K.Gurjar, Addl. PP for the State/ respondent
Ms.Vrinda Grover, Counsel for complainant assisted by
Ms.Mannat Tipnis, Adv.
JUDGMENT
1 Present appeal is directed against Judgment dated 06.11.2017 and Order on Sentence dated 22.11.2017 passed by Ld.MM02 (SD), Saket, New Delhi; vide which appellant has been CA No.-06/2018 Page No.-1 of 25 convicted for offence punishable u/sec.377 IPC and sentenced to undergo rigorous imprisonment for 3 years alongwith compensation of Rs.50,000/ to be paid to the victim.
2.1 Criminal law was set into motion on a complaint by Smt. Sheeba Abidi that her child Master 'X', aged about 4 ½ years, who was student of Mirambika School Aurbindo Ashram, Delhi was sexually assaulted by his teacher namely Manish during unspecified period preceding 22.10.2002. However, as the case progressed and the child victim was examined in court, the allegation of sexual abuse turned out to be an allegation for carnal intercourse against the order of nature with the victim/ child. Appellant, accordingly faced trial for the offence punishable u/sec.377 IPC; though, initially the chargesheet had been filed for offence punishable u/sec.377 r/w/sec.511 IPC. Charge had been amended, as the allegations of carnal intercourse came up subsequently during the examination of child victim.
2.2 Prosecution, in support of its case, examined 13 witnesses. Victim's mother, who was the complainant, proved the entire case as narrated to her by the child as PW1. She also proved her complaint, pictorial representations/ drawing made by the child. Victim's father namely Sh.Jayant Bora was examined as PW2. Victim himself stepped into the witness box as PW9. Another supporting witness namely Mrs.Purwa Bhardwaj, who was a volunteer teacher in the school and whose daughter was also allegedly sexually abused by the accused was examined as PW8.
CA No.-06/2018 Page No.-2 of 252.3 Statement of the witness recorded u/sec.164 Cr.P.C. was proved by Sh.L.K.Gaur, as PW13. Medicolegal examination of the victim/ child by Dr.Shyam Sarkar was proved through PW4. MLC of the accused was proved by Dr. Sanjeev Lalwani (PW3). Smt. Kamla Menon Principal of the school, where the incident allegedly took place, was examined as PW6.
2.4 HC Ram Kishan (PW5) proved the registration of FIR. Ct. Ashok (PW10) proved the personal search memo of the accused. Inspector K.P.Singh (PW11) & SI Vijay Sanwal (PW12) were the IOs in the case. They proved the investigation conducted by them.
2.5 Statement of the accused U/sec.313 Cr.P.C. r/w/sec. 281 Cr.P.C. was recorded on 17.10.2015 and 22.03.2016. All incriminating evidence was put to him and he explained the same.
2.6 Accused examined four witness in his defence. Three of them Srila Vasu, Rashmita Pradhan & Sulochana (DW1 to DW
3) were teachers of the school and accused examined himself as DW4.
2.7 After appreciation of the evidence that had come up before the court, Ld. MM, vide the impugned judgement held that prosecution has established its case beyond reasonable doubt and convicted the appellant.
CA No.-06/2018 Page No.-3 of 253 Aggrieved by the judgment of conviction & order on sentence, present appeal has been preferred.
4.1 Sh.Mukesh Vatsa, counsel for the appellant has strongly contested the conviction and it is argued that the conviction is bad on facts & law. Firstly, the identity of the accused has not been fixed. Victim (PW9), who was the sole witness to the occurrence was mistaken as regards the identity of the alleged perpetrator of the crime. It is argued that one Suraj Kumar, also a staff member of the school, who looked similar to the appellant could have been the perpetrator. The victim had no reasons to know the appellant as appellant was not a teacher for his class. Appellant had been teaching children in little older group and on the day of the occurrence had been away on duty assigned by the principal. It is pointed out that during crossexamination, the victim child answered that he had been told the name of appellant by the person, who had committed the offence. It is, therefore, argued that the perpetrator of the offence deliberately gave his name as that of Manish, which is the name of appellant so as to falsely implicate the appellant. To support this argument, it is further submitted that the offence is alleged to have taken place on 22.10.2002, whereas, appellant was named to be the offender for the first time after seven days, on 29.10.2002. It is further argued that the appellant was not put to TIP and in the absence of TIP, identification in the court for the first time, can not be held to be substantive proof. Reliance has been CA No.-06/2018 Page No.-4 of 25 placed upon law laid in Bhagwan Singh Vs. State of Madhya Pradesh reported as (2002) 3 MP LJ 67, State of Assam Vs. Mafizuddin reported as 1983 SCR (2) 241, Janardan Pandurang Kapse Vs. The State of Maharashtra bearing Appeal No.838/2019 decided by the Hon'ble High Court of Bombay on 26.10.2021. Digamber Vaishnav & Anr. Vs. State of Chattisgarh reported as (2019) 4 Supreme Court Cases 522 and Ravinder Vs. State bearing Crl. Appeal No.552/2020 decided by Hon'ble High Court of Delhi on 05.01.2022.
4.2 It is next argued by Sh.Mukesh Vatsa, counsel for the appellant that the entire case rest on investigation allegedly conducted by mother of the child. It is submitted that there is actually no investigation conducted by the police. Statements of the prime witnesses i.e. the complainant (PW1) herself and her husband (PW2) were all prepared and handed over to the IO. A so called pictorial description was also prepared by the complainant and handed over to the IO. Complainant, who is a child right activist misused her activism and falsely created an imaginary story to implicate the appellant.
4.3 It is further argued that there is no corroboration to the testimony of child victim. No witness from the school has been examined to indicate even the possibility of such an offence being committed or any witness to say that the victim and the appellant CA No.-06/2018 Page No.-5 of 25 were ever seen together. Smt. Kamla Menon Principal of the school (PW6) has not supported the case of the prosecution. Three of the school teachers have been examined by the appellant in his defence, who have all proved that there was no chance of the appellant having committed the offence. School is so structured and built that there is total transparency & visibility of all places. In the absence of corroboration, convicting a person for an offence as grave as offence punishable u/sec.377 IPC, especially when there is a relationship of teacher and student, is totally unsafe with no supporting evidence. It is next argued that the IO has withheld from court the reports of the counseling of the child, done by an NGO namely Snehi.
4.4 Victim has been totally inconsistent and has made major improvements in his testimony. He is totally unworthy of credence.
5 Sh.R.K.Gurjar, Ld. Addl. PP has supported the judgment of conviction and it is argued that there is no illegality or infirmity in the same and the trial court has correctly appreciated the evidence and rightly convicted the appellant.
6.1 Ms. Vrinda Grover, counsel for the complainant/ mother has argued that the statement of the childvictim (PW9) is detailed, consistent & credible. There is evidently no indication of victim having being tutored. It is argued that unimpeachable evidence of the childvictim is sufficient without any corroboration, for CA No.-06/2018 Page No.-6 of 25 recording conviction. It is next argued that the necessary ingredient of 'penetration' for establishing offence u/sec.377 IPC; it is sufficient when the visiting organ is enveloped even if partially by the visited organ. Penetration of penis in cupped hands, between the thighs or any other part, which even partially envelopes the penis is sufficient to constitute penetration and, thus, intercourse. Reliance has been placed upon law laid down in Brother John Antony Vs. State reported as 1992 Cr. L. J. 1352.
6.2 The manner of the testimony of the child, wherein he has gradually detailed the sexual assault on him, is natural. Same can not be termed as improvement. The witness has explained the reasons why he had not disclosed the entire occurrence to his parents at the first instance. He had been told by the appellant that he possessed magical powers, which could transform him and his parents into different creatures. Appellant had also made the child to believe that he could watch the activities of child in his palms. It is argued that the childvictim has consistently named & identified the appellant. Since the appellant was known to the victim, no TIP was necessary. Argument of mistaken identity has been raised by the defence counsel for the first time. No such defence was put to the witness (PW9) during his testimony. Demeanor of the child has been noted by the trial court, which had recorded the evidence and also by Sh.L.K.Gaur (PW13), who had recorded the statement of childvictim u/sec.164 Cr.P.C. It is also submitted that appellant has not been able to state as to the plausible motive for falsely CA No.-06/2018 Page No.-7 of 25 implicating him. It is also argued that the childvictim's counseling report can not be made a part of the chargesheet as the same is illegal. Reliance has been placed upon law laid in Court on its own motion Vs. State reported as 2018 SCC OnLine Delhi 10301.
7 I have heard Sh.Mukesh Vatsa, Counsel for the appellant, Sh.R.K.Gurjar, Addl. PP for the State & Ms.Vrinda Grover, Counsel for complainant assisted by Ms.Mannat Tipnis, Adv. and with their assistance, I have perused the impugned Judgement, order on sentence and the Trial Court record.
8 Doubts in prosecution case sought to be created by Sh.Mukesh Vatsa, counsel for the appellant, in the case of prosecution, as regards the appreciation of evidence by Ld. Trial Court can be enumerated as under:
(i) Identity of the accused not established beyond reasonable doubts.
(ii) Investigation having been conducted by the mother of the child victim in complete abdication of duties by the IO.
(iii) No corroboration to the sole testimony of the child witness and no TIP having been conducted.
(iv) School Principal & Teachers not supporting the case of the prosecution.
(v) Counseling report or proceedings before the CA No.-06/2018 Page No.-8 of 25 Counseling NGO namely Snehi withheld from the court.
(vi) Inconsistency in the statement of child witness in, as much, as the prosecution case has moved from attempt to carnal intercourse to culmination of carnal intercourse, with the progress in the testimony of witnesses.
(vii) Absence of corroborative medical evidence.
(viii) Delay of 7 days in lodging the FIR, after the occurrence was allegedly disclosed by the child to the mother, especially when the mother is herself a child right activist.
(ix) No evidence of penetration or intercourse. 9 I shall now discuss each of the points raised or the
concerns communicated by Sh.Vatsa, counsel for the appellant.
(i) Identity of the accused not established beyond reasonable doubts.
10.1 It is argued by Sh.Vatsa, Counsel for the appellant that it was a case of mistaken identity, as the appellant was never put to TIP. It was suggested to the child witness (PW9) that he had named the perpetrator of crime as 'Manish Bhaiyaa', as the same was so told by the perpetrator himself. It is argued that one Suraj, who was appellant's lookalike, could have committed the offence and declared his name as 'Manish Bhaiyaa' and accordingly the child victim named him to be the accused. Accused was never identified CA No.-06/2018 Page No.-9 of 25 by the complainant in the presence of the police or the IO. It is only the complainant i.e. the mother of the child victim before whom the child victim had identified the appellant to be the perpetrator. Appellant was not named by the complainant before the school authorities. His name cropped up on papers for the first time in the complaint addressed to the police on 29.10.2002.
10.2 Countering this argument, Ms. Vrinda Grover, counsel for the complainant has argued that the defence of mistaken identity can not be permitted at this stage, as the same was not taken during trial. It is also argued that the identity of the accused has been fixed by the child victim in his testimony. It has come in evidence that though the accused was not the class teacher for the victim but he had been coming to their class for story telling.
10.3 Ld. Trial Court has discussed this issue in para no.13 of the judgment and held that the question as regards Suraj Kumar being the perpetrator was never put to the child victim in his testimony. Neither the complainant (PW1) nor Mrs. Purwa Bhardwaj (PW8) were given such a suggestion. This defence, therefore, being argued by Sh.Vatsa, counsel for the appellant about mistaken identity can not be said to have been raised for the first time during the appeal. It may be noticed that in the testimony of the child victim as recorded on 29.05.2005, it was put to him that name of accused was told to him by the mother. The child was categoric in stating that he had told the name to the mother and not the other CA No.-06/2018 Page No.-10 of 25 way round. In further crossexamination of the same day, it was suggested to him that he was not intimate with Manish and he had no occasion to know him, as they had never come in contact. Since the victim had seen him, therefore, he had named him to be the accused. On this the child was categoric in denying the suggestion and re iterated that the offence was committed by Manish Bhaiya only. The child was, thus, categoric and specific that the perpetrator of the offence was noneelse but the appellant/ accused Manish Kumar.
10.4 Plea of alibi was taken by the appellant during defence evidence that he had been deputed to attend workshops and visits mentioned in letter dated 14.10.2002 Ex.DW1/B. Smt. Srila Basu (DW1), a teacher of the school also so deposed and sought to support the plea of alibi. However, during crossexamination, she admitted that accused had attended the school even during the aforesaid days, as he had been instructed to mark himself present in the school and, thereafter, proceed for the workshops and visits. As pointed out by Ms. Grover, counsel for the complainant, this letter ought to have been proved by its author Smt. Kamla Menon (PW6), who had been examined by the prosecution and had ofcourse turned hostile and not supported the prosecution case. Therefore, this testimony of DW1 and the letter Ex.DW1/B is an afterthought sought to be introduced only to save the reputation of the school. This court is of the opinion that the letter Ex.DW1/B is not credible and is rather doubtful. Therefore, the plea of alibi is not established. Moreover, it is not an incident or occurrence of specific period, CA No.-06/2018 Page No.-11 of 25 which could have been disproved by the absence of accused during the said period of 16.10.2002 to 19.10.2002 & 24.10.2002 to 25.10.2002. Last of the occurrence is alleged to have taken place on 22.10.2002, the previous occasions of crime have not been deposed by the child victim.
10.5 Therefore, this court is of the opinion that the findings recorded by the trial court, as regards the appellant being the perpetrator of the offence can not be disturbed. The same is, therefore, upheld and this court affirms the finding of the trial court that it was the appellant, who was the perpetrator of the offence. However, the nature of offence and the extent thereof shall be discussed in subsequent paragraphs.
(ii) Investigation having been conducted by the mother of the child victim in complete abdication of duties by the IO.
11.1 There is no doubt to this factual position. Both the IOs i.e. PW11 & PW12 have hardly done any investigation qua the child victim and his parents. Investigation remained with Inspector K.P.Singh (PW11) from 29.10.2002 to 08.11.2002. During this period, he had not recorded the statement of the child witness or that of his father Jayant Bora. Second IO SI Vijay Sanwal (PW12) has deposed that on 29.11.2002, complainant along with her husband came to the police station and they handed over statement of Jayant Bora and supplementary statement of Sheeba Abidi and three CA No.-06/2018 Page No.-12 of 25 drawings made by the child victims to him. The statement of Jayant Bora and supplementary statement of Sheeba Abidi on record and are signed statement duly typewritten. Though the witness says that he had thereafter written their statement u/sec.161 Cr.P.C. but a study of statement u/sec.161 Cr.P.C. reveals that the same is nothing but a copy of the written statements given by the witnesses. Similarly, the drawings supposedly made by the child were also got prepared by the complainant on her own and not as a part of police investigation. A supporting witness namely Mrs.Purwa Bhardwaj (PW8) was also presented in the police station by the victim's mother and the IO had then recorded her statement at her house. IO (PW12) for the first time claims to have recorded the statement of the victim/ child on 02.12.2002 u/sec.161 Cr.P.C. Thereafter his statement u/sec.164 Cr.P.C. was recorded on 05.12.2002. Thus, there is no doubt as regards the aforenoticed factual position that it was the mother of the child who is herself a child right activist, had conducted the entire investigation on her own and had handed over readymade material to the IOs. Nonetheless, this court is of the opinion that no prejudice has been caused to the accused by this investigation, as will be discussed in subsequent paras.
11.2 As was explained by Ld. Counsel for the complainant that the child being of tenderyears, he can not be expected to have stated the entire occurrence in the presence of a stranger without a bond of understanding & faith having been developed between the two. Therefore, the manner the occurrence had taken place as told CA No.-06/2018 Page No.-13 of 25 by the child was stated by the complainant in her supplementary statement to the IO and similarly the drawings prepared by the child during the process were handed over by the complainant to the IO. Though, strictly speaking the procedure so adopted is not in conformity with the Cr.P.C., however, the victim involved being a child of tenderyears, this court is of the opinion that no illegality can be slapped in the manner of investigation so conducted.
(iii) No corroboration to the sole testimony of the child witness and no TIP having been conducted.
12.1 Finding corroboration to the main incident which is of the nature of sexual offence is usually not possible. In a case of the nature as the present, where the perpetrator is elder in age and the victim is of tenderyears, it can be presumed that the perpetrator would have taken all precautions to ensure that there are no witnesses to the occurrence. However, corroboration could be sought from attending circumstances viz the accused and the victim being last seen together or any other child having gone through the same trauma as the present victim. On this, I again find merits in the submissions of ld. counsel for the complainant that the school authorities seemed to have stonewalled the investigation. There was total lack of cooperation from their side. Therefore, even if any witness had seen them last together was not permitted to be examined by the IO. Though, Mrs. Purwa Bhardwaj (PW8) has deposed that her daughter had also been put to such trauma by the CA No.-06/2018 Page No.-14 of 25 accused; yet, this court would not give any credence to her statement as she is not a direct witness. Her testimony at best, is only a hearsay evidence. Nonetheless, this court is of the opinion that just because there is no corroboration, the testimony of childvictim can not be thrown out, as he has been very categoric and consistent in his testimony, which was recorded by the Ld. Trial Court in a very child friendly manner. Child's statement as recorded u/sec.164 Cr.P.C. also narrates the incident & involvement of the accused in no uncertain terms. Therefore, this court is of the opinion that even in the absence of corroboration, the testimony of child can not be disbelieved.
12.2 Reliance by Sh.Mukesh Vatsa, Counsel for the appellant upon law laid down in Bhagwan Singh Vs. State of Madhya Pradesh's case (supra), State of Assam Vs. Mafizuddin's case (supra), Janardan Pandurang Kapse's case (supra), Digamber Vaishnav & Anr.'s case (supra) and Ravinder Vs. State's case (supra) to argue that uncorroborated testimony of a child witness is not safe to be relied upon. I have gone through the judgments relied upon by counsel for the appellant. There can be no doubt on the law so enunciated by the Hon'ble higher Courts. Nonetheless, this court is of the opinion that the view so expressed by the Hon'ble higher Courts is after appreciation of evidence of the child witness. It is not laid down as a general law that the sole testimony of the child witness is not sufficient to hold the accused guilty. It is only as a general rule of prudence, it has been held that corroboration should CA No.-06/2018 Page No.-15 of 25 be looked, for as a child witness is vulnerable towards tutoring and extrapolation. However, as noticed in the present case, the child witness (PW9) did not seem to have been tutored. His testimony inspires confidence and can thus be relied upon.
12.3 Sh.Mukesh Vatsa, Counsel for the appellant has further argued that without TIP having been conducted during investigation, identification of appellant in the court for the first time can not be relied upon. Sh.Vatsa has also referred to law laid down in Bhagwan Singh Vs. State of Madhya Pradesh's case (supra). There is no dispute to the law as enunciated by the Hon'ble Apex Court in Bhagwan Singh Vs. State of Madhya Pradesh's case (supra). However, in the cited case, the Hon'ble Supreme Court was of the view that the child witness was vacillating throughout his testimony and had stated that he was asked to depose either by his Nana or by his own uncle. On the contrary in the present case, child witness (PW9) has been categoric & specific that he was not asked by any person to state in the manner he had deposed in the court. The hild (PW9) did not seem to have been tutored. Moreover, this court is of the opinion that TIP is of import when the accused involved in the occurrence is not otherwise familiar to the witness. For example in a case where the accused and the witness come across each other for the first time at the time of commission of offence. In such a situation TIP would certainly be of relevance. However, in the present case the child victim knew the accused very well and since quite some time. Admittedly, appellant was a teacher in the school, CA No.-06/2018 Page No.-16 of 25 where victim was studying. Though, he was not class teacher for the child victim; however, he had been visiting his class for story telling. The child and the appellant were, thus, known to each other. Therefore, no illegality can be attributed in identity of appellant only because the accused was not put to TIP.
(iv) School Principal & Teachers not supporting the case of prosecution.
13 On this aspect, the way in which Smt. Kamla Menon - Principal of the School (PW6) turned hostile and the way other teachers have appeared as defence witnesses, it is evident & apparent that they have not supported the complainant's version. However, this court is of the opinion that the school witnesses not supporting the case of the prosecution does not help the defence, as has been noticed in para no.10.4 above, School authorities went even to the extent of creating an alibi for the accused by issuing letter Ex.DW 1/B. The school, which was coming up with a new pattern of education system has evidently tried to save itself from possible dis repute. This court is of the opinion that the defence can not draw any benefit from such a conduct of the school authorities.
(v) Counseling report or proceedings before the Counseling NGO namely Snehi withheld from the court.
14 Some kind of a corroboration could have been sought from the counseling proceedings conducted by the NGO namely CA No.-06/2018 Page No.-17 of 25 Snehi. Outside the legal system, Snehi was an independent body expectedly manned by child psychologists, which had counseled the child for the trauma undergone by him. The incident narrated by the child to the NGO Snehi could have thrown light on the nature of acts committed by the appellant. Ms.Vrinda Grover, counsel for the complainant has relied upon law laid down in Court on its own motion Vs. State's case (supra) to argue that the proceedings before the NGO could not have been made public. Going by the letter & spirit behind the judgment, this court is of the opinion that withholding the counseling report by the prosecution can be held to be justified.
(vi) Inconsistency in the statement of child witness in, as much, as the prosecution case has moved from attempt to carnal intercourse to culmination of carnal intercourse, with the progress in the testimony of witnesses.
(vii) Absence of corroborative medical evidence.
& (ix) No evidence of penetration or intercourse. 15.1 Sh.Mukesh Vatsa, counsel for the appellant has argued
that the child victim has at every stage improved upon the case in describing the act committed. His statement u/sec.161 Cr.P.C., Statement u/sec.164 Cr.P.C. and the testimony in court have at each stage progressively exaggerated and improvised on the description of CA No.-06/2018 Page No.-18 of 25 the act committed. At the first instance, allegations as contained in the complaint written by victim's mother was only of rubbing the genitals. Subsequently, it was improved to say penetration through the finger and the final testimony contains the allegations of attempted penetration through the naval and the anus. It is, therefore, argued that Trial Court has wrongly recorded the offence u/sec.377 IPC to have been committed without discussing the factual position.
15.2 To counter this submission, Ms. Vrinda Grover, Counsel for the complainant has explained that the child victim, who was under the fear created by the accused that he & his parents can be converted into various creatures by the appellant was not forthcoming in reporting the matter. His age was so tender that he got disillusioned by the accused telling him that accused could watch him through his palm. It is next argued that because of the tender age of the child victim, he took time in opening up and describing the entire incident. There are no improvements or inconsistencies, but it is natural for a witness of this young an age to take his time in describing the entire occurrence. It is further submitted that no tutoring has been indicated by any of the two judicial officers, who recorded the testimony of witness i.e. Sh.L.K.Gaur, who had recorded statement the statement u/sec.164 Cr.P.C. and subsequently the Trial Court.
CA No.-06/2018 Page No.-19 of 2515.3 Ms. Grover, Counsel for the complainant has argued that offfence u/sec.377 IPC is made out when the visiting organ is enveloped, even if, partially by the visited organ. Reliance has been placed upon law laid down in Brother John Antony's case (supra).
16.1 These questions are the most important aspects of the present appeal. The evidence, therefore, on these aspects needs to be studied & analyzed very closely. The initial complaint Ex.PW1/A, which is in the handwriting of the mother, on the basis of information given to her by the child victim, would in my opinion be not relevant piece of evidence, as the same would fall in the category of hearsay evidence. However, the statement of the child as recorded u/sec.164 Cr.P.C. and his testimony in court, which are direct evidence would be relevant to be considered for deciding the case. In his statement u/sec.164 Cr.P.C. recorded on 02.12.2002 & 05.12.2002, child victim has described the acts of sexual abuse allegedly committed by the appellant as: rubbing of genitals, penetration of his anus by finger, pinching of nipples, rubbing of naval, ejaculation by the appellant on a table & appellant rubbing his penis on the anus of the child. On another instance, child has said that the accused had removed his pajama and also that of the child in the library, when the child befooled him and ran away. In his testimony as PW9, in the very first session of examinationinchief on 08.01.2005, the child victim described the acts as: (i) Accused tried to penetrate his penis through the naval of the child, when he CA No.-06/2018 Page No.-20 of 25 ejaculated. (ii) Accused tried to penetrate through anus, again he ejaculated.
16.2 Comparison of the two statements does reveal that the acts described at the two instances have different connotations. In his statement u/sec.164 Cr.P.C. recorded on 02.12.2002 & 05.12.2002, he alleged penetration of the anus by the finger, whereas, in his testimony as PW9 recorded on 08.01.2005, there is no mention of penetration by the finger through the anus. Attempted penetration through the naval is not contained in the statement u/sec.164 Cr.P.C. but the same is stated in the testimony as PW9. Despite these two discrepancies, it is noticed that the child has been consistent as regards rubbing of his genitals by the appellant, appellant removing his own clothes and that of the child & rubbing of penis on the anus of the child and ejaculation.
16.3 Therefore, this court is of the opinion that sexual abuse of the child by the appellant is writ large. On this aspect, there certainly is no inconsistency in the testimony of the child. Removing of his own clothes by the appellant and that of the victim has also been consistently deposed and established beyond doubt. Manipulating or rubbing of the genitals of the child victim is established. Ejaculation by the appellant stands established.
16.4 The only question that requires consideration is whether there was penetration so as to constitute the offence of Sec.377 IPC.
CA No.-06/2018 Page No.-21 of 25On this aspect, the child victim as PW9 has deposed that the appellant tried to penetrate through the naval and through the anus. However, the child has not stated that the penetration happened. Medical evidence through the testimony of Dr. Shyam Sarkar (PW
4), who has proved the MLC Ex.PW4/A also does not opine any penetration to have taken place. Thus, strictly speaking penetration through the anus has not been established and judicial notice can be taken of the fact that penetration through the naval can not happen. To support the case of prosecution on this aspect, counsel for the complainant has relied upon law laid down in Brother John Antony's case (supra), wherein it has been held by the Hon'ble High Court of Madras that if the visiting male organ is enveloped even partially i.e. through hands which hold the penis tight, offence of Sec.377 IPC shall be made out. So penetration through cupped hands, between thighs or between other body parts has been argued to constitute an intercourse. There is no dispute to the position of law as enunciated by the Hon'ble Madras High court in the judgement cited above. Nonetheless, this court is of the opinion that on the factual matrix as has come up on record in the present case, such enveloping even partial, leave alone complete is not made out. Through the naval, there could certainly not have been any penetration. Through the anus also, as has been described in the medical evidence, no penetration has taken place. Even the child has not deposed of any penetration through the anus. There is no evidence of enveloping of the penis of the appellant in the thighs or other body parts of the child victim, so as to constitute penetration CA No.-06/2018 Page No.-22 of 25 and thus an intercourse. Therefore, this court is of the opinion that prosecution has failed to establish the ingredients of the offence of Sec.377 IPC to have been committed. At best, it can be held to be a case of attempt to commit the offence of Sec.377 IPC. Therefore, findings as recorded by ld. Trial Court that the offence of Sec.377 IPC stands established, can not be sustained and are accordingly set aside. Appellant is held to have committed an offence punishable u/sec.377 r/w/sec.511 IPC.
(viii) Delay of 7 days in lodging the FIR, after the occurrence was allegedly disclosed by the child to the mother, especially when the mother is herself a child right activist.
17 Sh.Vatsa, counsel for the appellant has also assailed the judgment of conviction on the ground that trial court failed to consider that there was a delay of 7 days in lodging the FIR and naming the appellant. Delay has been sought to be explained by the prosecution/ complainant on the ground that incident came to the knowledge of complainant on 25.10.2002 for the first time. She went to the school and tried to report the matter to the Principal but the Principal avoided her and finally she lodged a complaint on 29.10.2002 at the Police Station. The child had last gone to the school on 22.10.2002. It has also been the case of complainant that the child victim himself took his time in describing the entire incident to her, as he had been psychologically made to believe by the appellant that if he told the incident to any person, they would be CA No.-06/2018 Page No.-23 of 25 turned into frog or different creatures and that the appellant through his palm could see the activities of the child. Though, the child has not deposed at any stage that he was made to believe by the accused that the accused could watch the activity of the child through his palm; yet, this court is of the opinion that the delay of just about 7 days can not be said to be fatal to the case of prosecution. Testimony of the child has been very consistent as regards the sexual abuse committed by the appellant to him. The child has also been consistent about the identity of appellant. Therefore, the delay if any can not be said to have prejudiced the appellant.
18 For the reasons, stated in paras no.10 to 17 above, this court is of the opinion that prosecution has successfully established the offence u/sec.377 r/w/sec.511 Cr.P.C. to have been committed by the appellant. Conviction as recorded by the ld. Trial Court for the offence u/sec.377 IPC is modified to be read for an offence u/sec.377 r/w/sec.511 IPC.
19.1 On the point of sentence, Sh.Vatsa, counsel for the appellant/ accused has argued that the appellant has remained in custody for roughly 1 year and he has undergone the trauma of trial for a period of almost 15 years (from the year 2002 to 2017). Appeal has also remained pending for almost 5 years. Therefore, the Damocles' sword has hanged on his head for almost 20 years by now. Therefore, he be released on the period already undergone.
CA No.-06/2018 Page No.-24 of 2519.2 On the contrary, Sh.R.K.Gurjar, Ld. Addl. PP for the State/ respondent has argued that the sentence awarded is just proper.
20 Considering all the circumstances, this court is of the opinion that while the order of conviction has been modified for a smaller offer, Order on sentence needs to be accordingly modified and restricted. It is noticed that appellant has already undergone custody for a period of roughly 10 & ½ months and has also faced the trauma of trial & appeal for almost 20 years. The order on sentence is modified to be read as 'period of incarceration already undergone and a fine of Rs.20,000/-'. On recovery of fine of Rs.20,000/-, an amount of Rs.15,000/- be paid to the victim as compensation. Fine be deposited in the Trial Court within 15 days from today.
21 The appeal is partly allowed and disposed of accordingly. Trial Court Record be sent back along with copy of this judgment.
22 Appeal file be consigned to record room.
Digitally signed by NAROTTAM KAUSHAL NAROTTAM Date: KAUSHAL 2022.04.11 14:56:17 +0530 Announced in (NAROTTAM KAUSHAL) the open court on Principal District & Sessions Judge (South) 11.04.2022 Saket Courts, New Delhi CA No.-06/2018 Page No.-25 of 25