Delhi High Court - Orders
Monu Kumar vs State (Nct Of Delhi) on 28 September, 2022
Author: Anu Malhotra
Bench: Anu Malhotra
$~68
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 662/2022
MONU KUMAR ..... Petitioner
Through: Ms. Shikha Yadav & Mr. Manish
Sahay, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Mr. Shoaib Haider, APP for State
with SI Pratima, PS Palam Village.
Mr. Rohan J. Alva, Advocate for
complainant. (DHCLSC)
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 28.09.2022 The applicant, vide the present application seeks the grant of bail in relation to FIR No.302/2018, PS Palam Village under Section 6 of the POCSO Act, 2012 submitting to the effect that he has been falsely implicated in the instant case. Inter alia, it has been submitted on behalf of the applicant that the allegations in fact qua the alleged sexual assault punishable under Section 6 of the POCSO Act, 2012 relate to another driver of the school van of the child in the instant case named Virender whose name was mentioned in the MLC in the instant case.
Reliance is also sought to be placed on behalf of the applicant on the testimonies of prosecution witnesses examined during trial with it having been submitted on behalf of the applicant that he has been incarcerated now BAIL APPLN. 662/2022 Page 1 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
for more than four (4) years having been in custody since 28.08.2018. It has also been submitted on behalf of the applicant that he was the driver for the school van of the school of the prosecutrix on a different route on Najafgarh and that it was the driver named Virender who was the driver on the route of the child in question.
Reliance is also sought to be placed on behalf of the applicant on the attendance sheet of the drivers, i.e., both of the applicant herein and Virender, the other driver to submit to the effect that after the registration of the FIR, Virender was not found (as per the attendance register, there is an 'L' mentioned in the same). It is inter alia submitted on behalf of the applicant that the testimony of PW-3, the father of the prosecutrix that was recorded on 27.09.2019 indicates to the effect that he had stated that the child pointed out towards the applicant but that there were four drivers at the gate of the school where there were two vans present. It has also been submitted on behalf of the applicant that the cross-examination conducted of PW-3, the father of the child is an indicator to the effect that his wife had sent a video to him after 3.00 PM, that he had shown the video of the child/victim to the police officials but that the police officials had not taken the same.
Inter alia, it is submitted on behalf of the applicant that the father of the victim has stated that his child did not suffer from any mental illness. It has also been submitted on behalf of the applicant that there has been a delay in registration of the FIR with the incident being of the date 23.08.2018, whereas, the FIR was registered on 27.08.2018. It is also submitted on behalf of the applicant that there were CCTV footages at the BAIL APPLN. 662/2022 Page 2 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
school which have not been seized by the Investigating Agency with it having thus been submitted on behalf of the applicant that the veracity of the prosecution version is rendered wholly in doubt and that the applicant is entitled to be released on bail.
On behalf of the State, the learned APP for the State opposes the prayer made on behalf of the applicant placing reliance on submissions made in the status report of the State submitted on 26.04.2022 with it having been submitted on behalf of the State that the minor child aged 6 years had identified the applicant herein as being the assaulter in the school as well as in her deposition on oath before Court.
It has also been submitted on behalf of the State that the statement of the mother of the child dated 06.08.2019 examined before the Trial Court makes it apparent that on some occasions, there was a different driver or attendant deputed in the van without providing any information regarding the same to the parents. The State also submits that the deposition of the mother of the child/ prosecutrix also indicates to the effect that though, as claimed on behalf of the applicant, there was a female attendant for the children in the van and on some occasions, she used to be absent. The State also places reliance on the deposition of the mother of the child/ prosecutrix to submit to the effect that the minor was suffering from minor autism with it thus having been submitted on behalf of the State that the victim was a child with special needs and that there was a delayed conversation made by the child, as a consequence of which, there was a delay in the registration of the FIR in question.
On behalf of the complainant/ prosecutrix, the learned legal aid BAIL APPLN. 662/2022 Page 3 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
counsel also places reliance on the aspect that the child in question is a special child submitting further to the effect that the child through her deposition on oath before the Court has categorically identified the applicant as being the perpetrator of the sexual assault on her and has also in cross- examination denied that it was not the applicant who had assaulted her. It is also submitted on behalf of the victim that the child has also corroborated the prosecution version through her deposition qua the sexual assault on her by the applicant.
Reliance is sought to be placed on behalf of the victim on the verdict of the Hon'ble Supreme Court in "State of Himachal Pradesh Vs. Manga Singh" (2019) 16 SCC 759 with specific reliance on observations in paragraphs 10 to 15 and 19 to 20 thereof, which read to the effect:-
"10. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law, but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.
11. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, BAIL APPLN. 662/2022 Page 4 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court.
12. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , it was held as under : (SCC pp. 395-96, para 8) "8. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for [Ed. : The matter between two asterisks has been emphasised in original.] corroboration [Ed. : The matter between two asterisks has been emphasised in original.] of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?."
(emphasis supplied) BAIL APPLN. 662/2022 Page 5 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
13. The prosecutrix was aged only nine years, she had no reason to falsely implicate her cousin. Since the prosecutrix has been compelled to face the ordeal of sleeping with the respondent-accused every night, on 4-3-2010 she refused to go to the house of her aunt. Considering the evidence of PW 4, a girl of tender years, corroboration from an independent source of the evidence of the prosecutrix is not required. The evidence of the prosecutrix clearly established that the accused was committing rape on her by penetration.
14. The trial court, which had the opportunity of observing and hearing the prosecutrix (PW 4), recorded a finding of fact that the evidence of the prosecutrix (PW 4) is convincing and inspires the confidence of the court. When the trial court which had the opportunity of seeing and hearing the witness has held that the evidence of the prosecutrix (PW 4) inspires confidence of the court, in our considered view, in the absence of any convincing reason, the High Court ought not to have interfered with such finding of fact.
15. Insofar as the second ground on which the High Court gave the benefit of doubt to the respondent-accused that the medical evidence was inconclusive, it is to be pointed out that Dr Neerja Gupta (PW 6) in her evidence has categorically stated that merely because there were no injury marks it cannot be said that there was no question of sexual intercourse. In her chief-examination Dr Neerja Gupta (PW 6) has further stated that in case of small/slightest penetration the hymen will not rupture; the hymen will rupture only in case of complete penetration with force. As discussed earlier, the respondent-accused made the prosecutrix (PW 4) to sleep with him and inserted his private part in the private part of the prosecutrix which constitutes rape. This may not have ruptured the hymen. In the absence of injury on the private part of the prosecutrix, it cannot be concluded that the incident had not taken place or the sexual intercourse was committed with the consent of the prosecutrix. The prosecutrix being a small child of about nine years of age, there could be no question of her giving consent to sexual intercourse. The BAIL APPLN. 662/2022 Page 6 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
absence of injuries on the private part of the prosecutrix can be of no consequence in the facts and circumstances of the present case.
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19. Observing that there are number of unmerited acquittals in rape cases and that the courts have to display a greater sense of responsibility and to be more sensitive while dealing with the charges of sexual assault on woman, in State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30 : 2000 SCC (Cri) 898] , this Court has held as under :
(SCC pp. 38-39, paras 9-10) "9. ... A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 :
1983 SCC (Cri) 728] this Court observed that refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. This Court deprecated viewing evidence of such victim with the aid of spectacles fitted with lenses tinted with doubt, disbelief or suspicion. We need only remind ourselves of what this Court has said through one of us (Dr A.S. Anand, J. as his Lordship then was) in State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , BAIL APPLN. 662/2022 Page 7 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
SCC p. 403, para 21) „21. ... [A] rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.‟
10. The questions arising for consideration before us are : whether the prosecution story, as alleged, inspires confidence of the court on the evidence adduced? Whether the prosecutrix, is a witness worthy of reliance? Whether the testimony of a prosecutrix who has been in victim of rape stands in need of corroboration and, if so, whether such corroboration is available in the facts of the present case? What was the age of the prosecutrix? Whether she was a consenting party to the crime? Whether there was unexplained delay in lodging the FIR?"
20. In the present case, the prosecutrix (PW 4), being a young girl aged about nine years, had no reason to falsely implicate the respondent-accused. The testimony of the prosecutrix (PW
4) must have been appreciated in the light of the background of the case; more so, the prosecutrix (PW 4) was reluctant to go back to the house of her aunt and complained the act of sexual intercourse committed by the respondent-accused, to her teachers, Pooja Mahajan (PW 1) and Ritubala (PW 2).BAIL APPLN. 662/2022 Page 8 of 24
Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
The High Court has not appreciated the evidence of the prosecutrix (PW 4) in the light of the well-settled principles and erred in reversing the conviction of the respondent- accused to the acquittal. The impugned judgment [Manga Singh v. State of H.P., 2014 SCC OnLine HP 4419 : (2015) 147 AIC 343] of the High Court is not sustainable and is liable to be set aside. Since at the time of incident the victim was at her tender age, we do not find any reason to show sympathy towards the respondent-accused.", to contend to the effect that minor contradictions and small discrepancies ought not to be a ground for throwing out the evidence of the prosecutrix.
Reliance is also sought to be placed on behalf of the victim on the verdict of the Hon'ble Supreme Court in "Nawabuddin Vs. State of Uttrakhand" (2022) 5 SCC 419 with specific reliance on observations in paragraphs 7 to 15 and 17 to 20 thereof, which read to the effect:-
7. At the outset it is required to be noted that there are concurrent findings recorded by both the courts below, recorded on appreciation of evidence on record to the effect that the accused tried to commit the offence of rape on the victim girl aged four years. It has been established and proved by the prosecution that the victim girl was lured by the appellant-accused; she was taken to the bushes; accused removed his own clothes as well as the clothes of the victim girl and fondled her private parts and penetrated his finger into the vagina of the victim girl.
8. The same is fully supported by Dr Vandana Sundriyal, PW 10, who examined the victim girl on 17-6-2016 and before whom the victim girl narrated the entire incident to her which was recorded in Ext. A-6 medical examination report. As per Dr Vandana Sundriyal, PW 10 who is an independent witness, the victim girl told her that the accused tried to penetrate his finger and therefore she felt pain and irritation in urination as well as she also felt pain in her body. As per PW 10 there was BAIL APPLN. 662/2022 Page 9 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
redness and swelling around the vagina. Though the other witnesses who seem to have been won over might not have supported the case of the prosecution, we see no reason to doubt the deposition of PW 10 Dr Vandana Sundriyal, who is an independent witness. There are no allegations on behalf of the accused that there was any enmity with Dr Vandana Sundriyal. Therefore, we are of the opinion that it is safe to convict the accused relying upon the deposition of PW 10 Dr Vandana Sundriyal before whom the victim girl narrated the entire incident which was recorded in the medical examination report, namely, Ext. A-6.
9. Thus, it has been established and proved by the prosecution that the accused took the victim girl away from the house; took her deep into the bushes; disrobed her and removed his clothes as well; penetrated his finger in the vagina, due to which the victim girl felt pain and irritation in urination and he was about to force himself upon her and commit the offence of rape when he was caught red-handed.
10. Now the next question which is posed for the consideration of this Court is, what offence the accused had committed. The trial court convicted the accused for the offences punishable under Section 376(2)(i) IPC and Sections 5/6 of the POCSO Act. It is the case on behalf of the accused that at the most it can be said to be an attempt to commit penetrative sexual assault and therefore at the most it can be said to be the case of sexual assault under Section 7 of the POCSO Act punishable under Section 8 of the POCSO Act. Therefore, it is the case on behalf of the accused that as it is neither a case of penetrative sexual assault nor aggravated penetrative sexual assault, therefore, the punishment of life imprisonment imposed was not warranted and at the highest he could have been 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.
11. While appreciating the aforesaid submissions the relevant provisions of the POCSO Act are required to be referred to and BAIL APPLN. 662/2022 Page 10 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
considered:
11.1. Section 3 of the POCSO Act defines "penetrative sexual assault". As per Section 3 of the Act, a person is said to commit "penetrative sexual assault" if--(b) he inserts, to any extent, any object of a part of the body, not being the penis, into the vagina....
11.2. Section 4 provides "punishment for penetrative sexual assault".
11.3. Section 5 of the Act defines "aggravated penetrative sexual assault" and as per Section 5(m) whoever commits penetrative sexual assault on a child below twelve years it is aggravated penetrative sexual assault. 11.4. Section 6 provides "punishment for aggravated penetrative sexual assault."
11.5. In the present case, it has been established and proved that the accused penetrated his finger in the vagina and because of that the victim girl felt pain and irritation in urination as well as pain on her body and there was redness and swelling around the vagina found by the doctor. We are of the opinion that therefore the case would fall under Section 3(b) of the POCSO Act and it can be said to be penetrative sexual assault and considering Section 5(m) of the POCSO Act as such penetrative sexual assault was committed on a girl child aged four years (below twelve years) the same can be said to be "aggravated penetrative sexual assault" punishable under Section 6 of the POCSO Act. Therefore, both, the trial court as well as the High Court have rightly convicted the accused for the offences under Section 5 of the POCSO Act punishable under Section 6 of the POCSO Act.
12. Now insofar as the prayer on behalf of the appellant-
accused herein to take a lenient view in the matter by considering mitigating circumstances of old age of the accused and to alter the life imprisonment to any other punishment is concerned, the same has to be considered in light of the object and purpose of enactment of the POCSO Act. 12.1. In Eera v. State (NCT of Delhi) [Eera v. State (NCT of BAIL APPLN. 662/2022 Page 11 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
Delhi), (2017) 15 SCC 133 : (2018) 1 SCC (Cri) 588] , this Court has observed on the Statement and Objects and Reasons of the POCSO Act in para 20 as under : (SCC p. 157) "20. The purpose of referring to the Statement of Objects and Reasons and the Preamble of the POCSO Act is to appreciate that the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the Preamble, it is manifest that it recognises the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well-being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The Statement of Objects and Reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing child-friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act."
12.2. In Alakh Alok Srivastava v. Union of India [Alakh Alok Srivastava v. Union of India, (2018) 17 SCC 291 : (2019) 4 SCC (Cri) 184] , in paras 14 and 20, it is observed as under :
(SCC pp. 296-97) "14. At the very outset, it has to be stated with authority that the Pocso Act is a gender neutral legislation. This Act has been divided into various chapters and parts therein. Chapter BAIL APPLN. 662/2022 Page 12 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
I of the Act titled "Sexual Offences Against Children" is segregated into five parts. Part A of the said Chapter contains two sections, namely, Section 3 and Section 4. Section 3 defines the offence of "Penetrative Sexual Assault" whereas Section 4 lays down the punishment for the said offence. Likewise, Part B of the said Chapter titled „Aggravated Penetrative Sexual Assault and Punishment therefor‟ contains two sections, namely, Section 5 and Section 6. The various sub-sections of Section 5 copiously deal with various situations, circumstances and categories of persons where the offence of penetrative sexual assault would take the character of the offence of aggravated penetrative sexual assault. Section 5(k), in particular, while laying emphasis on the mental stability of a child stipulates that where an offender commits penetrative sexual assault on a child, by taking advantage of the child's mental or physical disability, it shall amount to an offence of aggravated penetrative sexual assault.
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20. Speaking about the child, a three-Judge Bench in M.C. Mehta (Child Labour matter) v. State of T.N. [M.C. Mehta (Child Labour matter) v. State of T.N., (1996) 6 SCC 756 :
1997 SCC (L&S) 49] opined that : (SCC p. 759, para 1) „1. ... "child is the father of man". To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned.‟ "
13. As it can be seen from the Statement of Objects and Reasons of the POCSO Act since the sexual offences against children were not adequately addressed by the existing laws and a large number of such offences were neither specifically provided for nor were they adequately penalised, the POCSO Act has been enacted to protect the children from the offences of sexual assault, sexual harassment and pornography and to provide for establishment of special BAIL APPLN. 662/2022 Page 13 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
courts for trial of such offences and for matters connected therewith and incidental thereto.
14. At this stage, it is required to be noted that the POCSO Act has been enacted keeping in mind Articles 15 and 39 of the Constitution of India. Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. To achieve the goal as per Articles 15 and 39 of the Constitution, the legislature has enacted the Protection of Children from Sexual Offences Act, 2012.
15. As noted in the Statement of Objects and Reasons, as per the United Nations Convention on the Rights of Children, to which India is a signatory to the treaty, the State parties to undertake all appropriate national, bilateral and multilateral measures to prevent:
(a) the inducement or coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other unlawful sexual practices and
(c) the exploitative use of children in pornographic performances and materials.
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17. Keeping in mind the aforesaid objects and to achieve what has been provided under Articles 15 and 39 of the Constitution to protect children from the offences of sexual assault, sexual harassment, the POCSO Act, 2012 has been enacted. Any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act. By BAIL APPLN. 662/2022 Page 14 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them. Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure.
18. Children are precious human resources of our country; they are the country's future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas.
19. As observed and held by this Court in State of Rajasthan v. Om Prakash [State of Rajasthan v. Om Prakash, (2002) 5 SCC 745 : 2002 SCC (Cri) 1210] , children need special care and protection and, in such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. In Nipun Saxena v. Union of India [Nipun Saxena v. Union of India, (2019) 2 SCC 703 : (2019) 1 SCC (Cri) 772] , it is observed by this Court that a minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracisation and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported as very often, the perpetrator of the crime is a member of the family of the victim or a close friend. Therefore, the child needs extra protection. Therefore, no leniency can be shown to an accused BAIL APPLN. 662/2022 Page 15 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
who has committed the offences under the POCSO Act, 2012 and particularly when the same is proved by adequate evidence before a court of law.
20. In the present case, it is to be noted that the accused was aged approximately 65 years of age at the time of commission of offence. He was a neighbour of the victim girl. He took advantage of the absence of her parents, when her mother went to fetch water and her father had gone to work. He is found to have committed aggravated penetrative sexual assault (as observed hereinabove) on a girl child aged four years, which demonstrates the mental state or mindset of the accused. As a neighbour, in fact, it was the duty of the accused to protect the victim girl when alone rather than exploiting her innocence and vulnerability. The victim was barely a four year girl. The appellant-accused was the neighbour. The accused instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust. It is a case where trust has been betrayed and social values are impaired. Therefore, the accused as such does not deserve any sympathy and/or any leniency.", to contend to similar effect with it having been submitted that the deposition of the minor child needs to be taken into account and the discrepancies, if any, in the testimonies of prosecution witnesses, cannot result in the deposition of the victim not being considered.
Reliance is also placed on behalf of the victim on the verdict of the Hon'ble Supreme Court in "Ganesan Vs. State Represented by Its Inspector of Police" (2020) 10 SCC 573 with specific reliance on observations is paragraphs 10 to 12 thereof, which reads to the effect:-
"10. In the present case, the appellant-accused has been convicted by the learned trial court for the offence under Section 7, punishable under Section 8 of the POCSO Act. We have gone through the entire judgment passed by the learned BAIL APPLN. 662/2022 Page 16 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
trial court as well as the relevant evidence on record, more particularly the deposition of PW 1 father of the victim, PW 2 mother of the victim and PW 3 victim herself. It is true that PW 2 mother of the victim has turned hostile. However, PW 3 victim has fully supported the case of the prosecution. She has narrated in detail how the incident has taken place. She has been thoroughly and fully cross-examined. We do not see any good reason not to rely upon the deposition of PW 3 victim. PW 3 aged 15 years at the time of deposition is a matured one. She is trustworthy and reliable. As per the settled proposition of law, even there can be a conviction based on the sole testimony of the victim, however, she must be found to be reliable and trustworthy.
10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] , it is observed in paras 9 to 14 as under: (SCC pp. 195-98) "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : 1990 SCC (Cri) 210] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) „16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a BAIL APPLN. 662/2022 Page 17 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.‟
10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594 : 2005 SCC (Cri) 780] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) „12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured BAIL APPLN. 662/2022 Page 18 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.‟
11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) „8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her BAIL APPLN. 662/2022 Page 19 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...
***
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.‟ (emphasis in original)
12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri) 1080] , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a BAIL APPLN. 662/2022 Page 20 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri) 674] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, 1951 SCC 1213 :
AIR 1952 SC 54] .
14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 10.3. Who can be said to be a "sterling witness", has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750] . In para 22, it is observed and held as under: (SCC p. 29) "22. In our considered opinion, the "sterling witness"
should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a BAIL APPLN. 662/2022 Page 21 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co- relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material BAIL APPLN. 662/2022 Page 22 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
11. On evaluating the deposition of PW 3 victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW 3 victim is absolutely trustworthy and unblemished and her evidence is of sterling quality.
12. Therefore, in the facts and circumstances of the case, the learned trial court has not committed any error in convicting the accused, relying upon the deposition of PW 3 victim. The learned trial court has imposed the minimum sentence provided under Section 8 of the POCSO Act. Therefore, the learned trial court has already shown the leniency. At this stage, it is required to be noted that allegations against the accused which are proved from the deposition of PW 3 are very serious, which cannot be permitted in the civilised society. Therefore, considering the object and purpose of the POCSO Act and considering the evidence on record, the High Court has rightly convicted the accused for the offence under Section 7 of the POCSO Act and has rightly sentenced the accused to undergo three years' RI which is the minimum sentence provided under Section 8 of the POCSO Act." to contend to the effect that the testimony of the victim ought to be considered in the background of the entire case.
The learned APP for the State also submits that the release of the applicant, if allowed, would result into influencing the prosecution witnesses.
On a consideration of the submissions made on behalf of either side, without any observations on the merits or demerits of the trial that is in progress and the deposition of the witnesses examined in the instant case, it BAIL APPLN. 662/2022 Page 23 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.
is essential to observe that vide proceedings dated 21.09.2022, it was considered essential by the Court to direct the State to produce the case diary of the State in the matter which has been so produced and perused by the Court.
It is essential to observe that the statement of the mother of the victim/ prosecutrix recorded under Section 161 of the Cr.P.C. in the case diary 'no.60' reflects to the effect that the mother has mentioned to the effect that the van driver was named Monu Kumar and sometimes in place of Monu Kumar, the driver named Virender used to drive the van. The child/ victim identified the applicant- Monu as being the person who had sexually assaulted her as informed by her father to the Investigating Agency. To similar effect are the averments made in the inner pages of the case diary of the State. Taking the same into account as well as the deposition of the minor child which apparently would be considered at the stage of analysis of evidence and pronouncement of judgment in toto, at this stage, the testimony of the minor child allegedly implicating the applicant,- cannot be disbelieved.
The copies of inner page diary bearing no.01 and the reverse 033 and the reverse 034 and the reverse 052 and the reverse 064 and the reverse blank page 062 and the reverse 060 and the reverse be placed on the record by the State. The case diary be returned to the State.
In the circumstances, there is no ground for grant of bail to the applicant, the application is thus, declined.
ANU MALHOTRA, J SEPTEMBER 28, 2022/nc BAIL APPLN. 662/2022 Page 24 of 24 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:07.10.2022 17:13:21 This file is digitally signed by PS to HMJ ANU MALHOTRA.