Delhi High Court: In an appeal filed by the appellant to set aside the judgment of conviction and order on sentence dated 28-10-2020, passed by the Additional Sessions Judge (POCSO Act), Central District, Tis Hazari Courts, New Delhi, (‘the Trial Court’) Amit Bansal, J.*, opined that the offence of aggravated penetrative sexual assault provided under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), had not been proved against the appellant beyond all reasonable doubt, but the offence of aggravated sexual assault provided under Section 10 of the POCSO Act, was proved beyond all reasonable doubt against the appellant. Thus, the Court partially allowed and modified the impugned judgment and sentenced the appellant to undergo rigorous imprisonment of five years for the offence under Section 10 of the POCSO Act and retained the fine of Rs. 5000 awarded by the Trial Court.
Background
On 08-08-2016, a Police Control Room call was received by the police from the victim’s father regarding sexual assault on his daughter, who was of six years at the time of the incident. After the information was recorded, the police arrived at the victim’s residence.
The victim stated on 05-08-2016, when she went for tuition, the appellant, who was the brother of her tuition teacher, touched her anus with his finger which caused her serious pain. The victim, then informed her mother about the said incident. Thereafter, the victim along with her parents and police official went to the hospital, where her medical examination was conducted and the Medico Legal Case (‘MLC’) was prepared.
Thus, on the basis of information provided, on 09-08-2016, the FIR under Section 376 of the Penal Code, 1860 (‘IPC’) and Section 6 of the POCSO Act was registered. On the same date, the victim’s statement under Section 164 of the Criminal Procedure Code, 1973 (‘CrPC’) was recorded before the Metropolitan Magistrate, Tis Hazari Courts, New Delhi. Subsequently, the appellant was arrested on 09-08-2016 and after the investigation, the charge-sheet was filed.
The Trial Court after examining the witnesses, analysing the evidence and hearing the arguments, convicted the appellant for the offences under Section 376 of the IPC and Section 6 of the POCSO Act.
Analysis, Law, and Decision
The Court analysed the various statements made by the victim and opined that there had been material improvements in the victim’s statements. The Court opined that in her statement during the MLC and the statement under Section 161 of the CrPC, the victim had consistently stated that the appellant touched her anal region with his finger through her clothes. However, in her statement under Section 164 of the CrPC, she stated that the appellant inserted his whole finger inside her anal region and also held her throat and threatened her.
Further, the Court noted that before the Trial Court, the victim for the first time stated that the appellant had slid his hand through her clothes and the appellant had cut her anal region with his finger nails. The Court opined that these statements clearly amounted to material improvements as there was no mention in her earlier statements about the appellant cutting her anal region with his finger nails.
The Court opined that it was relevant to note that the victim, during her cross examination, when the victim was confronted with her statement under Section 164 of the CrPC, where she stated that the appellant threatened her, she denied having received any threats.
The Court opined that at the time of the incident, the victim was a child of six years, therefore some leeway had to be provided for minor inconsistencies in her statement. However, it could be stated that the contradictions in the victim’s statement were minor or immaterial. The Court opined that if her anal region was indeed cut by the appellant, it would have caused a lot of pain and the same would have been disclosed in her earlier statements under Sections 161 and 164 of CrPC and also, if the appellant had used his nails, it would have reflected in the MLC. Therefore, the Court opined that it could not concur with the Trial Court’s finding that an inference of insertion could be made from the fact that the victim suffered pain.
The Court opined that it appeared from the victim’s testimony that there were two children present at the time of the incident and no attempt to question those children amounted to a serious lapse in the investigation and also, there were no independent witnesses or medical evidence supporting the victim’s case. The Court opined that a conviction could be made only on the basis of the victim’s testimony without any independent corroboration. However, in such cases, the victim’s testimony had to be of sterling quality. However, in the present case, there had been contradictions and material improvements in the victim’s testimony.
The Court opined that a perusal of Section 3(c) of the POCSO Act showed that for an act to be a penetrative sexual assault, the accused had to manipulate any part of the child’s body so as to cause penetration. In the present case, there was nothing to show that there was any manipulation on any body parts of the victim so as to cause penetration. The Court opined that a simple act of touch could not be considered as a manipulation under Section 3(c) of the POCSO Act. Further, under Section 7 of the POCSO Act, touch was a separate offence and if touch would to manipulation, then Section 7 would be rendered irrelevant.
The Court relied on Bijender Singh v. State of Haryana, (2022) 1 SCC 92 and opined that merely because there had been inconsistencies in the statement of the child victim, it could not be stated that her testimony is completely unreliable and should be disregarded entirely. The Court noted that the child victim had consistently stated that in her testimony and statements that she was touched in anal region by the appellant and the touch caused her pain.
Thus, the Court opined that the offence under Section 6 of the POCSO Act had not been proved against the appellant beyond all reasonable doubt, but the offence under Section 10 of the POCSO Act was proved beyond all reasonable doubt against the appellant. The Court sentenced the appellant to undergo rigorous imprisonment of five years for the offence under Section 10 of the POCSO and the fine of Rs. 5000 awarded by the Trial Court was retained.
[Shantanu v. State (NCT of Delhi), 2023 SCC OnLine Del 7067, decided on 06-11-2023]
*Judgment authored by Justice Amit Bansal
Advocates who appeared in this case :
For the Appellant: Rajive Maini, Shriya Maini, AOR with Aparna Kaushik and Neeshu Chandpuniya, Advocates;
For the Respondent: Ritesh Kumar Bahri, APP for State with SI Harender Kumar, PS.Lahori Gate.
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