Delhi District Court
State vs Mukesh Kumar S/O Sh. Jitan Kamat on 13 March, 2018
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE06, WEST
TIS HAZARI COURTS, DELHI
State Case UID No.................................... 56301/16
New SC No. 45/17
Old SC No. 148/14
FIR No. 254/14
PS Anand Parbat
U/S: 6 of POCSO Act
State
Versus
Mukesh Kumar S/o Sh. Jitan Kamat
R/o H. No. 543, Baba Farid Puri,
West Patel Nagar, New Delhi
Permanent R/o Village Alola, PS Janjhar Pur,
P.O. Gohitia, District Madhubani, Bihar
Date of institution : 10.07.2014
Judgment reserved on : 09.03.2018
Judgment delivered on : 13.03.2018
ORDER/JUDGMENT: Accused is convicted for the offences punishable
U/s. 10 of POCSO Act.
J U D G M E N T
1. In brief, the allegations against the accused as per the prosecution
case are that on the intervening night of 14th & 15th June, 2014, at H. No.
738/B, Baba Faridpuri, Patel Nagar, Delhi, when the prosecutrix Ms. 'J'
( identity withheld) was sleeping on the roof of the house, the accused
Mukesh Kumar was fiddling with finger on the private part of the
prosecutrix and the matter was reported to the police by her parents.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 1
On the statement/complaint of the prosecutrix, an FIR No. 254/14, U/s
376 Indian Penal Code (IPC) r/w section 6 of POCSO Act was registered
on 15.06.2014.
On completion of the investigation, the chargesheet was filed against
the accused for the offences under Section 376 of the Indian Penal Code,
1860 (IPC) and Section 6 of the POCSO Act.
2. Vide order dated 13112014, the Charges were framed by the
Predecessor Court of Sh. Rajneesh Kumar Gupta, for the offences
punishable under section 6 of the POCSO Act, stating therein that the
accused had committed penetrative sexual assault with the prosecutrix,
aged about 9 years (under 12 years), thereby he had committed the
offences punishable under section 6 of POCSO Act, to which the accused
pleaded not guilty and claimed trial.
3. To prove the guilt of the accused, the prosecution has examined 12
witnesses:
a) The complainant/public witness:
• Ms. J, the prosecutrix/victim, PW2
• Ms. R, the mother of the prosecutrix, PW4
• Sh. V, the father of the prosecutrix, PW8
These are the material public witnesses produced by the prosecution to prove
the allegations leveled against the accused.
During the examination of the prosecutrix/victim, she has exhibited her
complaint/statement Ex. PW2/A, her statement recorded u/s 164 Cr.PC Ex.
PW2/B.
• During the examination of PW4, she has exhibited the sketch of the spot Ex.
PW4/A.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 2
b) Police Witnesses:
• ASI Ramdhari, PW1 to prove the DD No. 11A,
• HC Rahul, PW5 to prove the FIR Ex. PW5/A, Endorsement on the rukka
Ex.PW2/B.
These witnesses were the formal witnesses, who came to prove the documents
on record.
Whereas
• Ct. Nishu, PW10,
• ASI Kiran Sethi, PW11,
• SI Vikram Singh, PW12
These were the witnesses of investigation at different stages and they had
come to the witness box to prove their roles played by them during the course
of investigation and they had exhibited the documents viz., ruka Ex. PW11/A,
arrest memo, personal search memo & disclosure statement of the accused
Ex. PW11/B , PW11/C & PW11/D, application for recording of the statement
u/s 164 Cr.PC of the prosecutrix Ex. PW11/E and the application for obtaining
the copy of the statement Ex. PW11/F, DD No.11A Ex. PW12/A.
c) Medical Witnesses:
• Dr. Debashis, PW6, who conducted the general examination of the accused
Mukesh Kumar vide MLC Ex. PW6/A
• Dr. Priyanka Sharma, PW7 who examined the prosecutrix & prepared the
MLC Ex. PW7/A of the prosecutrix.
d) Other witnesses:
• Smt. Madhu, Teacher, MC Primary Girls School, 22Block, West Patel
Nagar, Delhi, PW3, who has exhibited the entry in the admission register Ex.
PW3/A, the affidavit given by the parents of the prosecutrix at the time of her
admission Ex. PW3/A1, original admission form Ex. PW3/B, the application
regarding correcting his name in the admission form, affidavit and admission
and withdrawal register Ex. PW3/C & the copy of Aadhar Card mark PW3/1.
• Ms. Mahima Rai, Ld. MM, PW9, to prove the proceedings u/s 164 Cr.PC
already Ex. PW2/B and she further exhibited her certificate Ex. PW9/A.
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4. On concluding of the prosecution evidence, the statement of the
accused was recorded under Section 313 Cr.PC., thereby all the
incriminating evidence & circumstances were put to the accused, wherein
he refuted all the allegations leveled against him and had pleaded his
innocence taking plea of his false implication at the instance of the one
Bheem, who was friend of father of the prosecutrix who had borrowed Rs.
6,000/ from him and that when he demanded the same, that Bheem got
him implicated in this case but he has not produced any defence in his
support.
5. Ld. Addl. PP for the State has submitted that the prosecutrix has
supported the prosecution case wholly, not only in her complaint Ex.
PW2/A but also in her statement Ex. PW2/B recorded u/s 164 Cr.PC, and
also in her depositions made before the court as PW2, thereby proving the
allegations of sexual assault, and that the prosecutrix was of the age of 9
years at the time of incident thus, the prosecution has successfully proved
the offence punishable u/s 6 of POCSO Act, through the direct evidence as
well as through the complete chain of evidence, and there appears no
reasons to disbelieve the prosecutrix.
6. Also that in this case, the prosecutrix is a minor girl of age about 9
years at the time of occurrence, as her date of birth is 04.10.2003, and the
provisions of POCSO Act are attracted, and that as per settled proposition
of law, in view of the provisions of sections 29 and 30 of POCSO Act, the
court shall presume that the person has committed the offences, if he is
prosecuted for committing, abetting, attempting to commit any offence u/s
3,5, 7 & 9 of this Act, unless contrary is proved.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 4
Also that in this case, the culpable mental state on the part of the
accused has been proved through the testimony of the prosecutrix
supported with documentary evidence i.e. the statement recorded u/s 164
Cr.PC Ex. PW2/B.
Thus, it was submitted that there exists enough evidence against the
accused to establish the commission of offences u/s 6 of POCSO Act, by
the accused.
7. Ms. Sadhna Bhatia, Ld. Amicus Curiae/Counsel for the accused has
submitted that accused Mukesh Kumar has been falsely implicated at the
instance of one Bheem, who was the friend of father of the prosecutrix,
who had borrowed Rs. 6,000/ from him, and that when the accused
demanded the same, that Bheem got him implicated in this case, through
his friend, who abused the process of law through his daughter, the
prosecutrix, who filed a false complaint against the accused.
Further, it is submitted that the MLC Ex. PW7/A does not suggest any
such act as stated by the prosecutrix and the prosecutrix has refused her
internal examination as she knew that on her examination her case of false
implication of the accused shall be exposed.
Further that the witness Bheem was neither cited nor examined though
he was the material witness as per the depositions of the father of the
prosecutrix, it is submitted that according to the prosecution story, the
accused was staying in his house on the eventful night and for keeping this
best evidence aback from trial should call for an adverse inference that in
case of his production in the court he may not support the case of the
prosecution.
Further that there are material discrepancies in the testimonies of
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 5
prosecutrix and her parents regarding the availability of the father of the
prosecutrix at the house of Bheem and on the point that he along with
accused was taking drinks with him on the night of incident or that he was
a teatotaler.
Also that all the proceedings according to the prosecutrix and her
parents were conducted in the police station whereas according to the
police witnesses, the proceedings were conducted on the spot of
occurrence.
Further that the occurrence is impossible, as according to the
prosecutrix her brothers were also sleeping near her, besides a number of
persons/neighbours were also sleeping at the time and place of
occurrence.
Thus, it was submitted that the case of the prosecution is within the
shadow of doubt, and was not proved beyond reasonable doubts, and the
accused is entitled for benefit of doubt.
8. I have given my thoughtful considerations to the rival submissions of
Ld. Addl. PP for the State and Ms. Sadhna Bhatia, Ld. Amicus Curiae/
Counsel for the accused, and have perused the evidence available on
record meticulously, in the light of such contentions.
9. The prosecution, in order to establish its case for the offences under
section 6 of POCSO Act, alleged against the accused namely Mukesh
Kumar, must establish the following ingredients:
For offences punishable under section 6 of POCSO Act
i) that the accused had committed aggravated penetrative sexual assault
upon the victim
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10. What act of the accused constitutes Penetrative sexual assault is
prescribed U/s 3 of the POCSO Act that reads as under :
3. Penetrative sexual assault : A person is said to commit "penetrative sexual
assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child
or makes 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.
11. Also that the penetrative sexual assault would be said as 'aggravated'
penetrative sexual assault, if it falls within the categories described u/s 5 of
the Act the relevant extracts of the provisions of Section 5 of the Act are
extracted below :
5. Aggravated penetrative sexual assault :
(a) ...........
......
......
(m) whoever commits penetrative sexual assault on a child below twelve years; or ......
is said to commit aggravated penetrative sexual assault.
12. On careful perusal of the evidence on record, it is observed that the entire prosecution case was based on the testimony of Ms. 'J', the prosecutrix, examined as PW2 who was the sterling witness of the prosecution.
13. On appreciation of evidence of PW2, the prosecutrix who was the material key witness of the prosecution, it is observed that PW2, Ms. 'J', UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 7 despite her tender age of 11 years, has wholly supported the prosecution case regarding the allegations raised for sexual assault, in her brief account of her version given in the court, and her version gets support of her statement recorded u/s 164 Cr.PC by Ld. Magistrate. The relevant extract of her testimony is extracted below:
" About 8 months ago I was sleeping on the roof of my house and my brothers were also sleeping on the roof. Accused was also sleeping on the roof on that day. When I felt sensation in my private parts/urinating parts I woke up and saw that accused was lying down near me on my cot and he had put his fingers upon my urinating parts. When I saw him he went to his cot and I came down stairs with my brother. I told about the incident to my mother in the night at the same time. My parents informed the police in the morning'.
14. Also, the relevant extracts of translated version of her statement u/s 164 Cr.PC Ex.PW2/B are given below :
' I was sleeping along with my two brothers on the roof. I woke up on touching of the hand of someone. I saw one Bhaiya (brother) had inserted his hand in my undergarment and he was fiddling with his hand on my paisab karne wali jagah (vagina) and on seeing that I have awaken, the said bhaiya (brother) had pulled out his hand from my undergarment'.
15. Thus, it is observed that the prosecutrix who was a child witness of tender age of 11 years, in her brief account of her testimony, had categorically narrated the incident of inserting of his hand inside her undergarment, touching of her private part i.e. vagina with sexual intent and also regarding his act of lying down besides her on her cot.
16. The uninflinching testimony of the prosecutrix as PW2 is in absolute corroboration of her version given in her statement Ex.PW2/B recorded u/s UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 8 164 Cr.PC, by the Ld. Magistrate, during investigation and on these aspects the witness stood firm even on the test of crossexamination.
17. Further it is observed that in her first statement Ex.PW2/A recorded by the I.O. A.S.I. Kiran, it is recorded that 'when in the night I was sleeping with my younger brothers on the roof, suddenly I felt sensation in my private part (peshab wali jagah), I had awaken and saw one boy had inserted his hand in my undergarment (Chaddi) and he was touching my vagina (peshab wali jagah) and he was lying besides me and on seeing me awaken, he pulled out his hand, and slept keeping his mouth on the other side............' I came down with my brother, narrated the incident to my mother (mummy) and told my mother & father (mummypapa) in the morning that the boy lives with other boys adjacent to their room, and my father caught hold of that boy, and called the police.'
18. Ld. Counsel for the accused has raised the contentions that the incident as described by the prosecutrix is highly improbable, as the prosecutrix neither had shouted nor her brother did so on such incident nor they called anyone from the persons sleeping over there, however, according to the testimonies of the prosecutrix, there were about 8 persons sleeping on the roof, including some gents and boys and her brothers were also sleeping there at the time of incidence. Also that the prosecutrix had a discrepancy regarding the manner in which the accused was apprehended.
19. It was submitted that according to her testimony, she told the incidence at the same time to her mother in the night, and her parents informed the police in the morning.
Whereas according to her statement recorded under Section 164 Cr.P.C., after the incident she narrated the incident to her mother and father and thereupon her mother had gone on the roof, and dragged the UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 9 boy (accused) down stairs, and her papa (father) had beaten the boy and allowed him to go.
Further that according to her statement Ex.PW2/A given to the police, she informed the incident to her mother in the night, when she came down after the incident, and in the morning she informed her mother father that the boy was the same who was staying with another boy living adjacent to their room and her father had apprehended him and then called the police.
20. It is further submitted that if the statement of the prosecutrix recorded U/s 164 Cr.P.C. Ex.PW2/B is believed, then the mother of the prosecutrix on receiving the information regarding the incident from her daughter had dragged the boy down stairs just after the incident, and the father of the prosecutrix had beaten him and told him to 'go' then it appears very strange, as to why the father of the prosecutrix had not called the police at the same very moment on apprehending him.
Also that as per the testimony of the prosecutrix, when she came down stairs after the incident and narrated the incident to her parents, her father had gone upstairs and had brought the accused from the roof and he had beaten him, and thereafter the accused was permitted to leave the house, and her father made a call to the police at about 9.00 a.m., and police came about 10.00 a.m. and her father again called the police in her house.
It is submitted that it is strange to note that the father of the prosecutrix on coming to know about the incidence, had permitted the accused to go and then after a considerable period, he reported the matter to the police, and called the accused who had himself come to the house of the prosecutrix again.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 1021. Further that as per records the DD Entry No. 16A Ex.PW5/B was recorded at 4.10 PM whereas the medical examination of the boy i.e. the accused was of 2.30 PM and the FIR was registered on the Rukka recorded at 4.00 PM on the same day. It is further submitted that as per Arrest Memo Ex.PW11/B, the accused was arrested at 5.10 PM and the place of arrest was P.S. Anand Parbat.
22. It is argued on behalf of accused that as per the IO ASI Kiran Sethi, when she reached at the spot i.e. the house of the victim, she found the accused present there on the spot, and the accused as well as the victim were medically examined, and accused was arrested in the police station. Also that as per the IO she reached on the spot at about 10.30 A.M. upto 11.00 AM and remained there for about 1½ hours then how the FIR was registered at 4.00 PM and the accused was arrested at 5.00 PM as per the records. The delay of recording of FIR and arrest of the accused is not being explained by the prosecution that makes the prosecution story doubtful.
23. It is further submitted that it was admitted by the prosecutrix during her crossexamination that her father had taken her in the room of the uncle Bheem and there her father, the accused, uncle Bheem and one Vikram uncle had taken liquor on that night and after that at about 10.00 PM she had gone to sleep on the roof whereas her mother and father who usually sleep on the roof, did not sleep on the roof on the date of incident.
24. Ld. Counsel had further argued that the person namely Bheem with whom the accused and the father of the prosecutrix had taken liquor, just prior UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 11 to the incident and the accused was staying in the house of that Bheem and the I.O. made enquiries from him during investigation, but this witness Bheem who was material piece of ocular evidence, was neither cited as witness nor was examined by the prosecution and an adverse inference should be drawn that in case of his production in the court, he may not support the prosecution case, as no such incident had taken place.
25. To meet the contentions of the Ld. Counsel for the accused, the entire material placed on record has been meticulously perused. It is observed that basically on the aspect of the sexual assault upon the prosecutrix by the accused on the eventful night at the relevant date, time and place, there appears no discrepancy regarding the facts that the accused was lying on her cot besides the prosecutrix with sexual intent and pushed his hand into the undergarments of the prosecutrix and touched/fiddled her private parts (vagina) during the occurrence.
26. On the aspects of giving beatings by the father of the prosecutrix to the accused after the incident, all the versions of the prosecutrix are corroborated & also these facts were further corroborated with the medical record of the accused i.e. the MLC No. 36327 Ex.PW6/A that clearly reflects the 'abrasions' over right side of neck, left little finger and abrasions and swellings on the right side of his forehead that could only be possible, if 'beatings' were given to him by someone.
It is observed that these facts clearly corroborate the factum of the reaction/anger of a father of the prosecutrix whose daughter suffered, the trauma of sexual assault during her sleep at the hands of the accused at such tender age.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 1227. Even if it is believed that accused came to stay with one neighbour of the prosecutrix and the father of the prosecutrix had meal or even drinks with the duo namely accused and Bheem on the eventful night, prior to the incident, then also nobody has rights or prerogative to outrage modesty of a girl of tender age, by extending sexual assault i.e. also at a place where the prosecutrix was sleeping peacefully within the vicinity of her house on the roof.
28. Further, even if it is believed that the police investigating officer had not conducted the investigation in a proper manner, in accordance with the strict procedure of investigation, leaving certain irregularities/delays in recording of the FIR or in the procedure of arresting the accused, then also the justice cannot be a casualty of a faulty investigation as observed in case titled as Manoj @ Manu vs. State of Delhi, 2001 I AD ( Delhi) 67 , by Hon'ble Apext Court, wherein it is observed that, 'Justice should not be made casualty of wrong committed by the Investigation Officer'
29. Further, the neighbourer Bheem with whom the accused had a stay on the eventful day / night or with whom the accused or the father of the prosecutrix had a meal or drinks was not an eyewitness or material evidence to say anything regarding the occurrence, thus his non examination during trial is not fatal to the prosecution case nor he was the material piece of evidence to prove the allegations raised by the prosecutrix against the accused. Also it does not matter that the IO made inquiries from him during investigation but did not cite him as a witness for UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 13 the prosecution as he was not the material witness for proving the guilt of the accused, in any manner.
30. Also it is a well settled principle of law that it is not the quantity of evidence that matters but the quality of evidence that has to be considered for appreciation of such piece of evidence to prove certain facts.
31. Further, on appreciation of the evidence of the prosecutrix during her examination, it is observed that the witness has categorically deposed that ' when she was sleeping on the roof of her house, accused was also sleeping on the roof on that day, she felt sensation in her private parts/urinating parts, she got up and saw that accused was lying besides her on her cot and he had pushed his hands under her garments touching her urinating parts'.
32. She has further explained that she felt bad and came downstairs with her brother, and narrated the incident to her mother and father, who had taken action according to their wisdom.
33. If she did not shout after the incident and came downstairs immediately with her brother to narrate the incident to her parents, it was also normal gestures of a girl of a tender age of 9 years, who reacted to the incident in that manner. If she does not shout, in response to the incident that had taken place, it does not lead to an inference that no such incident had taken place, with her, as suggested in the contentions of the counsel of the accused and she specifically denied such suggestion.
34. Also for the minor discrepancies regarding the facts relating to narration to her parents or regarding the facts that her mother or her father UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 14 had gone upstairs to drag the accused after the incident, it is observed that such minor discrepancies are bound to occur in a truthful witness, who in such tender age, is not expected to narrate the things to different people i.e. police, Ld. M.M. or in the Court in a 'parroted' manner.
35. It is a settled proposition of law that the court should not sit in an ivory tower, and has to consider the hard realities of life that the child was of a very tender age of 9 years, at the time of the incident and also when she was not even aware of taking some bold steps to shout or to come out of the clutches of the accused to cry for help even on finding the presence of other public persons/neighbourers at that place particularly when the accused on seeing her awaken had already withdrawn his activities by pulling out his hand from her undergarment.
But these facts deposed by the prosecutrix clearly show the sexual intent of the accused and his culpable mental state on the part of the accused.
36. Thus, as per the provisions of Section 30 of the Act, the Court has to presume the existence of such mental state and it was on the accused to prove the contrary as a defence, if any, against such culpable mental state. In this case, according to such presumption, as laid in Section 30 of the Act, such facts are said to be proved as it is believed to exist.
37. Thus, the prosecutrix in her brief account in her statements given at different places to different persons and in the court had categorically established that accused had committed a sexual assault upon the prosecutrix with culpable mental state.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 1538. Further, the prosecution has examined Smt. Raj Kumari, the mother of the prosecutrix as PW4 to whom the prosecutrix has narrated the incident first just after the incident.
39. She has supported the prosecution case and the version given by her daughter. Also the father of the prosecutrix was examined as PW8 who has also corroborated the versions narrated by his daughter regarding the incident.
40. The discrepancies of PW4 & PW8 are minor in nature and are not going into root of the prosecution case, regarding the allegations raised against the accused.
41. Also, in a catena of judgments Hon'ble Apex Court has observed that the discrepancies are bound to occur in the testimony of public witnesses, howsoever truthful they may be.
In one of such cases titled as State of Rajasthan Vs. Smt. Kalki & Anr., AIR 1981 SC 1390, it is observed that, "In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like.
Thus, the infirmities and discrepancies are bound to occur in the normal course yet there is no reason to reject the testimony of such witnesses, if it is corroborated and supported with the other evidence connected with the offence.
42. On observing the above noted observations, in case titled as Sunil Kumar Sambhudayal Vs. State of Maharashtra decided on 11112010 in Criminal UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 16 Appeal No. 891/2004, the Hon'ble Apex Court has observed that the infirmities and discrepancies are bound to occur in the normal course yet there is no reason to reject the testimony of such witness, if it is corroborated and supported with the other evidence connected with the offence, but the Court has to consider whether such discrepancies are material or minor in nature before placing its reliance on such testimonies.
43. Here, it is also worth to mention the observations of Hon'ble Apex Court in case titled as Krishna Mochi and Ors. v. State of Bihar etc. cited as 2002 (6) SCC 81, that , 'A witness may not stand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skilful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored.
It was further observed that, 'The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower.
Some discrepancy is bound to be there in each and every case which should not we weighed by the Court so long as it does not materially affect the prosecution case.
In case discrepancies pointed out are in the realm of pebbles, court should tread upon it.
44. As per the above stated principles, the Court while appreciating the evidence should not loose sight of these realities of life, and cannot afford to take an unrealistic approach by sitting in an ivory tower, as the discrepancies in the depositions of the eyewitnesses may be due to normal errors of observation, errors of memory due of lapse of time, due to mental disposition such as shock and horror of reminding the occurrence and otherwise.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 1745. In the background of the abovenoted principles set out above, it is observed that on the test of realities of life observing that the witnesses PW4 & PW8 who were of very little literacy and PW8 who was a driver by profession of average Intelligence Quantity (IQ) and was residing in a very poor background as is clear from his testimony had discrepancies in his testimony with the testimony of his wife examined as PW4 and also with the prosecutrix examined as PW2, regarding the manner of apprehension of the accused and handing him over to the police but these discrepancies were minor in nature and not relating to the allegations which were duly proved by the prosecutrix who was the sterling witness of the prosecution.
46. The prosecutrix, PW2 has reproduced the occurrence in a very simple language stating the occurrence and the activities of the accused committed at the relevant date, time and place during the occurrence, thereby proving the allegations of sexual assault against the accused.
47. Further, on the quality of the evidence of the witnesses, i t was observed by the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21' that, "... the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable.
The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness.
What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 18 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.
...........
Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished.
To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
48. Thus, the prosecution has successfully established the facts regarding sleeping of the accused besides the prosecutrix on her cot and pushing his hand in the undergarment (chaddi) of the prosecutrix, and touching/fiddling of her finger on her vagina.
49. Now the basic question is whether such acts of the accused were covered within the ambit of 'penetrative sexual assault' as described u/s 3 of the Act or U/s 7 of the Act that describes the phrase 'sexual assault' r/w section 9 of the Act punishable u/s 10 of the Act.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 1950. The sexual assault is defined u/s 7 of the Act that reads as under :
7. Sexual assault :
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.
51. Also that the sexual assault would be said as 'aggravated' sexual assault if it falls within the categories described u/s 9 of the Act the relevant extracts of the provision of Section 9 of the Act is extracted below :
9. Aggravated sexual assault :
(a) ...........
......
(m) whoever commits sexual assault on a child below twelve years; or ......
is said to commit aggravated sexual assault.
Whereas penetrative sexual assault is described u/s 3 of the Act that reads as under:
3. Penetrative sexual assault : A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes 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.
52. The fact regarding 'inserting' or 'penetrating' of the finger into the vagina of the prosecutrix could have been proved through her internal medical examination, but the same has not been conducted, on refusing the same by the mother of the prosecutrix, which creates an adverse inference that in case her internal medical examination was conducted, it may not support the case of the prosecution regarding 'inserting' finger by the accused into the vagina of the prosecutrix.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 2053. From the evidence on record, only it could be established that the accused was sleeping besides the prosecutrix on her cot and had pushed his hand in the undergarment (chaddi) of the prosecutrix who was of the age of 11 years and also touched/fiddled 'upon' her vagina at that time of occurrence that itself shows his sexual intents of the accused but there is no clear evidence to show that the accused 'inserted' any part of his body, 'into' the vagina i.e. private part of the prosecutrix in any manner to cover it within the ambit of 'penetrative sexual assault' as described u/s 3 of the Act, as she has stated that while sleeping she felt some sensation in her private part and when she had awaken she found the hand of the accused under his garment which he pulled immediately on seeing her awaken.
54. Clearly the 'acts' of the accused as stated above, duly established on record were within the ambit of the phrases 'sexual assault' as defined u/s 7 punishable U/s 8 of the Act & well covered within one of the categories of 'aggravated sexual assault' as prescribed u/s 9 of the Act because the child prosecutrix was under the age of 12 years, punishable u/s 10 of the Act. Further, the acts of the accused stated by the prosecutrix in her versions given in her statements at different places included in her testimony in the Court were not within the ambit of 'penetrative sexual assault' as described U/s 3 r/w sec. 5 punishable u/s 6 of the POCSO Act as 'inserting' or 'penetrating' of any part of the body of the accused could not be proved by the prosecution, and refusing the internal medical examination by the prosecutrix is another dent in the prosecution story, as no evidence could come on record to show that there was an act of UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 21 'inserting' any part of the body of the accused into the private part i.e. vagina of the prosecutrix, and only it could be established on record that the accused had put her hand into the undergarment of the prosecutrix & was touching/fiddling of her vagina from the upper portion and for which she felt sensation and when she had awaken, then the accused pulled out his hand from her undergarment and slept aside and the prosecutrix left the place, had gone downstairs and reported the matter to her mother.
55. Thus, from the activities established on record, only the offences of commission of sexual assault as prescribed u/s 7 punishable u/s 8 of the Act read with section 9 punishable u/s 10 of the Act for aggravated sexual assault being the girl was under the age of 12 years could stand proved against the accused.
56. Also the procedural discrepancies raised by the counsel of the accused, in the testimonies of police witnesses regarding the investigation of the matter could not affect the prosecution case as these were minor discrepancies in nature as these were related to procedural aspect of investigation regarding recording of the proceedings and of the timings & the place of conducting the proceedings by the investigating officer but these discrepancies do not go to the root of the prosecution case, in any manner, as the offence of aggravated sexual assault was otherwise established on record through the testimony of prosecutrix with corroborative testimonies of PW4 & PW8, who were the witnesses upon whom the prosecutrix had heavily relied for proving the incident.
57. Further there is a scheme provided in the POCSO Act that the court UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 22 shall presume the commission of offence, in case, through uninflinching evidence on record, the prosecution is able to establish the case and if the same is proved then the presumption shall be drawn in favour of the Complainant and against the accused until the contrary is proved by the accused by way of defence.
58. Section 29 of POCSO Act reads as below :
Presumption as to certain offence :
Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 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.
And Section 30 of POCSO Act, prescribes :
Presumption of culpable mental state :
(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.
59. In the present case, nothing contrary has been proved by the accused in his defence except mere assertions of the facts that one Bheem, who was friend of father of the prosecutrix had borrowed a sum of Rs. 6,000/ from the accused and that when the accused demanded the same, that Bheem got him implicated in this case, through his friend, who abused the UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 23 process of law through his daughter, the prosecutrix, who filed a false complaint against the accused.
But nothing has been produced on record to prove the contrary i.e. also of the same weight equal or more to that of the evidence produced by the prosecution to prove the offences of 'aggravated sexual assault' upon the prosecutrix by the accused.
60. Further, as per the settled legal propositions of law, in the case titled as Sharad Birdhichand Sarda Vs. State of Maharastra, cited as AIR 1984 SC 1622, the Hon'ble Apex Court has laid down the tests of certain pre−requisites before recording conviction in a criminal trial, which are as under:
i). The circumstances from which the conclusion of guilt is to be drawn 'must or should' and not 'may be' fully established.
ii). The facts so established should be consistent only with the hypothesis of the guilt of the accused persons & these established facts should not lead or be explainable on any other hypothesis except that the accused are guilty;
iii). The circumstances should be of conclusive nature and tendency;
iv). They should exclude every possible hypothesis except the one to be proved; and
v). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
61. The above settled principles of law when applied to the facts of instant case, it is observed that the prosecution is successful to establish the facts beyond reasonable doubts through the testimony of PW2, the prosecutrix about the activities of the accused well covered within the definition of sexual assault as prescribed u/s 7 of the Act, that leads to one and only one hypothesis that the accused has committed the offence of aggravated sexual assault, as described u/s 7 r/w 9 punishable u/s 10 of POCSO Act.
UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 24Thus, from the abovenoted facts and circumstances and on the settled proposition of law, the court is of the considered view that the prosecution has successfully proved for the offence u/s 7 r/w 9 punishable under section 10 of POCSO Act against accused Mukesh Kumar.
62. In view of the foregoing discussions & conclusions, the accused Mukesh Kumar is held guilty for the offences U/s 10 of POCSO Act.
63. Accordingly, the accused Mukesh Kumar is convicted for the offence U/s 10 of POCSO Act. ARCHANA Digitally signed by ARCHANA SINHA SINHA Date: 2018.03.14 17:04:12 +0530 Announced in the open Court (Dr. Archana Sinha) th on this 13 day of March 2018 Addl. Sessions Judge06,West Tis Hazari Courts, Delhi 13.03.2018 UID No. 56301/16 FIR No. 254/14 PS. Anand Parbat State Vs. Mukesh Kumar Page No. 25