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Judgment
Raj Mohan Singh, J.
This writ petition is directed against the order dated 18.11.2014 (Annexure P-2) passed by Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir, (hereinafter referred to as ''the Tribunal''), vide which prayer of the petitioner for setting aside the order of General Court Martial dated 11.04.2014, convicting and sentencing him under Section 69 of the Army Act read with Sections 10 and 12 of "The Protection of Children from Sexual Offences Act, 2012" was dismissed. The petitioner was awarded sentence of reduction in rank, rigorous imprisonment for five years and dismissal from service.
The prosecution story in nutshell is that on 22.10.2013 the petitioner came to his quarter. His son was playing with minor girl child (identity of the victim withheld). The petitioner called the girl child at the time when his wife was in kitchen and his son was present in the drying room. The minor child went to the room where the computer was kept and started operating the computer. The petitioner after grabbing the hand of the minor girl (sic) (victim) put the same in his underwear and made her to touch his private part and also showed his private part to the victim. The victim immediately ran back to her home and narrated the entire episode to her mother. The father of the child returned home from duty and then her mother narrated the story to him. The father enquired from the victim child and on coming to know about the facts, he went to the house of the petitioner-accused along with his wife and lodged protest and told him that they will report the matter to the higher officers. The mother of the victim was very angry and the father of the victim persuaded his wife to go home. Thereafter, Company Havildar Major (CHM) Sanjay Guleria came to the spot and he was told about the happening. On hearing this, Company Havildar Major (CHM) Sanjay Guleria called Krishan Kumar (CHM) immediately. At that time the petitioner-accused told that the minor child was putting CD in the computer, so he had held her hand and asked her not to do so. Broadly me accused denied the allegations against him.
The petitioner-accused was charge-sheeted in the following manner:-
"First Charge (Army Act Section 69)
Committing a civil offence, that is to say, aggravated sexual assault, contrary to Section 10 of the Protection of children from Sexual Offences Act, 2012.
In that he,
at Ferozepur Cantonment on 22 October 2013, with sexual intent made Baby (X) Daughter of (sic) Signalman XXXXX of the same unit, aged about eight years, touch his penis and thereby committed aggravated sexual assault.
Second Charge (Army Act Section 69)
Committing a civil offence, that is to say, sexual harassment upon a child, contrary to Section 12 of the Protection of Children from Sexual Offences Act, 2012
In that he,
at Ferozepur Cantonment, on 22 October 2013, with sexual intent showed his penis to Baby (X) Daughter of Number 15683092X Signalman XXXXX of the same unit, aged about eight years and thereby committed sexual harassment."
(the identity of the victim and her father has been suitably pasted under the orders of this Court).
Thereafter proceedings of General Court Martial started. The prosecution examined as many as seven witnesses namely L/NK Patel Chirag Kumar Ishwar Bhai as PW-1, Company Havildar Major (CHM) Sanjay Guleria as PW-2, Local Company Havildar Major (CHM) Krishan Kumar as PW-3, Naib Subedar Kamlesh Kumar as PW-4, Subedar Anukul Chandra Das as PW-5, Smt. Patel Jyotsna as PW-6 and the girl child (victim) as PW-7. The statement of the accused was recorded in terms of Army Rule, 58. The accused-petitioner denied the allegations and produced Smt. Neetu (wife of the accused) in his defence as DW-1. After the evidence being led, the Court recorded findings of guilt vide charges on 11.04.2014. The findings together with brief reasons in support thereof were read in open Court and announced.
Thereafter the Court announced the sentence thereby convicting and sentencing the petitioner for the offences under Section 69 of the Army Act read with Sections 10 and 12 of "The Protection of Children from Sexual Offences Act, 2012". The punishment as awarded are in the following manner:-
"(a) To be reduced to the ranks.
(b) To suffer rigorous imprisonment for five years.
(c) To be dismissed from service."
Feeling aggrieved the aforesaid, the petitioner filed appeal before the Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir. The petitioner laid the claim on the ground that the Act is a complete Code and the General Court Martial has failed to comply with the provisions of the Act in terms of Sections 28, 32 and 33. In addition to that the petitioner has also emphasized that he could not have been prosecuted under Section 12 of the Act which deals with ''Aggravated Sexual Assault''. Besides referring to the aforesaid, the petitioner took the stand that serious irregularities were committed by the General Court Martial in recording the statements of the child witness and no medical examination of the victim was done nor her clothes were subjected to the forensic examination. In this way, the entire trial was claimed to be biased trial. The Tribunal discarded the plea of the petitioner on the touchstone of interpretation of relevant provisions of the Act and dismissed the appeal vide order dated 18.11.2014.
The petitioner has filed the instant petition, challenging the above-said order of the Tribunal, reiterating these very grounds which he had taken before the Tribunal. At the very outset it is pointed out that though the learned Tribunal in the opening of the judgment said that the name of the victim is not being ''disclosed'', but in the subsequent part of its order the name stood disclosed without adhering to the Rules. On taking cognizance of the fact, this Court has got the name of the victim suitably pasted through the Registrar Judicial of the Court.
The gravamen argument of the petitioner is that his accusation is not covered under the mischief of Section 9 i.e. Aggravated Sexual Assault. For ready reference Section 7 i.e. Sexual Assault and Section 9 i.e. Aggravated Sexual Assault are reproduced as under:-
"Section 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 contract without penetration is said to commit sexual assault.
Section 9. Aggravated Sexual Assault
(a)........
(b) Whoever, being a member of the armed forces or security forces, commits sexual assault on a child-
(i) Within the limits of the area to which the person is deployed; or
(ii) In any areas under the command of the security or armed forces; or
(iii) In the course of his duties or otherwise; or
(iv) Where he is known or identified as a member of the security of armed forces; or
(c) to (I) xx xxx xxx
(m) Whoever commits, sexual assault on a child below twelve years; or
(n) to (t) xx xxx xxx"
The present case is squarely covered under Section 9(b) of the aforesaid provisions. The provision clearly denotes that when sexual assault on a child is committed by a member of Armed Forces or Security Forces within the limits of the area to which the person is deployed or in any area under the command of the Security or Armed Forces or in the course of his duties or otherwise or where the person is known or identified as a member of security of Armed Forces. Bare reading of clause (b) if read in conjunction with sub-clauses (i) to (iv) show that the same are widely worded and would include the misconduct alleged in the instant case in its ambit. The use of word ''course of duty'' or ''otherwise'' make it wide enough to include the time other than the duty hours also. The offence of sexual assault committed by a member of Armed Forces or Security Forces on a child thus amounts to aggravated sexual assault. Bare reading of the provision does not make out any distinction that only such sexual assault shall be considered aggravated sexual assault when it is committed in operational area. The analogy as depicted above makes out the misconduct of the petitioner to be covered under the terminology of ''Aggravated Sexual Assault'' in terms of Section 9 of the Act.
The second ground of attack is that the General Court Martial has flouted the mandatory requirement of Section 33(2) of the Act and thus the trial is vitiated. Section 33 of the Act provides procedure and power of Special Court. Sub-Section (2) provides that Special Public Prosecutor or as the case may be, the counsel appearing for the accused shall while recording the examination-in-chief, cross-examination or re-examination of the child communicate the questions to be put to the child to the Special Court and the Court shall in turn put those questions to the child. The proceedings on record a complete set of which has been handed over to us by counsel for petitioner, shows that the procedure has been duly adhered to. The services of Judge Advocate were utilized. The perusal of the proceedings would show that Sections 33 and 36 of Act were duly complied. The accused was made to sit behind a curtain so as to make him invisible and away from the child witness. A child is a competent witness. The only requirement is that such testimony should be relied upon with utmost care and caution. However, effort should be made to make the child comfortable in deposition and the deposition should be free from undue influence and pressure. Every step should be taken to provide friendly atmosphere for a child witness to depose in the Court. Before allowing a child witness to depose, the Court is also obligated to satisfy itself by way of putting certain questions to the child witness to know the level of intelligence of the witness so as to arrive at a conclusion that the witness is worth reliance. These pre-requisite safe guards have been duly kept in view by the Court.
The petitioner also alleges that in view of Section 33(2) of the Act, the services of Judge Advocate should not have been availed of by the General Court Martial as it was the duty of the prosecution to put questions to the child through the General Court Martial. In availing the services of Judge Advocate, no prejudice has been caused to the defence. It was admitted between the parties that the Judge Advocate was present to assist the General Court Martial proceedings being a natural person. The allegation of bias as alleged by the petitioner could not be proved with reference to any material on record. A right of audience to Judge Advocate was given by the counsel for the prosecution being a lady for examining the girl child to reply to the questions through the Court. The Court asked the questions verbatim put through the Judge Advocate as narrated by the prosecution. The relevant proceedings of the General Court Martial in this context is reproduced as under:
"At this stage, the Prosecution Counsel submits that he would like to give right of audience to the Prosecutor being a lady for examining the Girl Child for addressing questions to her through the Court.
The rights of audience on behalf of Prosecution will be exercised by the Prosecutor.
The Court" proceeds to ask questions verbatim to the Girl Child through the Judge Advocate as narrated by the Prosecution".
The Court took every precaution to test the authenticity and truthfulness of the deposition coming out from the child witness. The child was subjected to lengthy cross-examination by the defence counsel, but nothing incriminating could come out from the cross-examination or to deter the child witness from deposing truthful version. The deposition of the child witness remained\\unsheltered. The allegation of the defence that Section 33(2) of the Act has not been followed by the General Court Martial, has no legs to stand in view of the procedure adopted by the General Court Martial which is otherwise not unknown to such proceedings. Even otherwise no prejudice is apparently caused to the defence, nor any infraction of procedure could be pointed out which might lead to any favourable tilt in favour of prosecution. The statement of child witness is proved to be worth credence and could not be shattered even after lengthy cross-examination, as nothing could be elucidated from her cross-examination.
The other allegation of the petitioner is that the statement of the witness should have been recorded in the language known to her i.e. Gujarati. The defence has not put any question in the cross-examination of the child that whether the witness understands Gujarati only or does not understand English or the language in which her statement is being recorded. In the absence of such cross-examination, the plea of the defence is totally devoid of merit. All the prosecution witnesses have deposed thereby making the prosecution story believable. The witnesses stood the test of cross-examination and their testimonies could not be shattered by any cannon of defence. No ambiguity or contradiction could have been brought-forth to make the prosecution feeble or weak.
The Judge Advocate has lawfully acted in giving advice in terms of Section 165 of the Indian Evidence Act. The Court took every precaution to ascertain the competence of the child witness in terms of Section 118 of the Indian Evidence Act The Court was alive to the situation whether the witness is competent for giving rational answers to the questions on account of her tender age. In order to know the competence of the child witness, the Court lawfully subjected the child witness to certain questions in order to know level of her intelligence. Though there is no prescribe age fixed by law to exclude the child witness from giving evidence on the presumption that the witness has not sufficient understanding. Neither can any precise rule be laid down respecting the degree of intelligence and knowledge which will render a child witness competent witness. The intellectual capacity of a child to understand question to give rational answer thereto is the sole criteria and test for his/her testimonial competence and not any particular age. The entire obligation is dependent upon the good sense and discretion of the Court to observe all care and caution in allowing child witness to depose in the Court. In the present case, it was after putting certain questions to the child witness, that the Court decided that "for creating a child friendly atmosphere, Major Charul Bhatt, Judge Advocate will be asking the question to the child being a lady. The Court also observed that the girl child is comfortable with the Court, particularly with Judge Advocate." Thereafter the Court proceeded to examine the child witness on the questions as narrated by the prosecution for Section 33(2) "The Protection of Children from Sexual Offences Act 2012". The petitioner-accused in his defence only got examined his wife as DW-1 whose statement was not worthy reliance, she being an interested witness.
The prosecution story has been found to be worth credence and the prosecution has been able to bring home the guilt of the accused petitioner to the hilt. The prosecution witnesses in terms of their depositions are sufficient to prove the prosecution case thereby attracting punishments as awarded by the General Court Martial and affirmed by the learned Tribunal.
There is no allegation of previous enmity between the petitioner and the father of the victim. The petitioner in a way admitted the incident to the extent of his presence in the room with the victim when he allegedly asked the victim not to put the CD into the computer by touching her hand.
It is true that an act does not make a person guilty without a guilty mind (Actus Non Facit Reum Nisi Mens Sit Rea) and the crime is not committed if the mind of such person is innocent (mens rea). But in the instant case intent and act both concurred, resulting in unfortunate occurrence in which a minor child has been victimized. The petitioner could not make out any case, warranting interference by this Court in the impugned order. Resultantly, the petition is totally bereft of merit and is dismissed as such.