Ravinder Singh vs State (Govt. Of NCT Of Delhi)

Chandrasekharan Sudha, J.

In this appeal filed under Section 374 of the Code of Criminal Procedure, 1973, (the Cr.P.C.), the sole accused in Sessions Case No. 167/2013 on the file of the Special Judge (PoCSO)/ Additional Sessions Judge-07 (West) Tis Hazari Courts, Delhi, challenges the judgement dated 05.05.2018 and the order on sentence dated 07.05.2018 as per which, he has been convicted and sentenced for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the PoCSO Act).

The prosecution case is that on 20.03.2013 at about 07:00 p.m. near Manoj Shaukeen Office, Veer Bazar Road, Chander Vihar, New Delhi, the accused committed penetrative sexual assault on PW3, a minor boy aged about 10 years, and criminally intimidated him. Hence, as per the charge sheet/final report, the accused was alleged to have committed the offences punishable under Sections 377, 506 IPC and Section 4 of the PoCSO Act.

On the basis of Ext. PW1/A FIS/FIR of PW1, the uncle of PW3, given on 20.03.2013, Crime No. 83/2013, Nihal Vihar Police Station, that is, Ext. PW2/A FIR dated 20.03.2013 alleging the commission of the offence punishable under Section 377 IPC was registered by PW2, Assistant Sub-Inspector. PW10, Sub-Inspector, conducted the investigation into the crime and, on completion of the same, submitted the charge sheet/final report before the Court, alleging the commission of the offences punishable under the aforementioned sections.

When the accused was produced before the trial court, all the copies of the prosecution records were furnished to him, as contemplated under Section 207 Cr.P.C. After hearing both sides, the trial court, vide order dated 03.08.2013, framed a Charge under Section 6 of the PoCSO Act and Section 506 IPC, which was read over and explained to the accused to which he pleaded not guilty.

On behalf of the prosecution, PWs 1 to 10 were examined and Exts. PW1/A-B, PW2/A-C, PW3/A, PW4/A-B, PW8/A-D, PW10/A-D, Mark-X, and Mark-X1 were marked in support of the case.

After the close of the prosecution evidence, the accused was questioned under 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. According to him, PW3’s family wanted to usurp his plot and as he resisted their attempts, they have falsely implicated him in the present case.

After questioning the accused under Section 313(1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the case on hand, no hearing as contemplated under Section 232 Cr.P.C. is seen done by the trial court. However, non-compliance of the said provision does not, ipso facto vitiate the proceedings, unless omission to comply with the same is shown to have resulted in serious and substantial prejudice to the accused (See Moidu K. vs. State of Kerala, 2009 (3) KHC 89: 2009 SCC OnLine Ker 2888). Here, the accused has no case that non-compliance of Section 232 Cr.P.C. has caused any prejudice to him.

No oral or documentary evidence was adduced on behalf of the defence.

Upon consideration of the oral and documentary evidence on record, and after hearing both sides, the trial court, vide the impugned judgment dated 05.05.2018, held the accused guilty of the offence punishable under Section 6 of the PoCSO Act. Vide order on sentence dated 07.05.2018, the accused has been sentenced to undergo rigorous imprisonment for a period of 10 years, along with fine of ₹10,000/-, and in default of payment of fine, to rigorous imprisonment for a period of for the offence punishable under Section 6 of the PoCSO Act. Aggrieved, the accused has come up in appeal.

The learned Additional Public Prosecutor, appearing on behalf of the respondent/State, supported the impugned judgment and order on sentence and submitted that it does not suffer from any illegality or infirmity calling for an interference by this Court.

There was no representation for the appellant/accused. On the last hearing date also, there was no representation. Hence, relying on the dictum in Bani Singh & Ors. vs. State of U.P., (1996) 4 SCC 720, I proceed to consider the appeal on merits after going through the entire records in the case.

I will make a brief reference to the oral and documentary evidence relied on by the prosecution in support of the case. Ext. PW1/A FIS/FIR given by PW1, the uncle of PW3, recorded on 20.03.2013 in Hindi, translated reads thus:-“I reside with my brother, namely, Ramchander, who has four children, and his youngest son is about 10 years old. Today, i.e., on 20.03.2013, at about 07:30 p.m., my nephew (PW3) came to our house. My nephew (PW3) had no clothes on his body and he was crying. I asked him what had happened, to which he replied that while he was passing through Veer Bazaar Road, Chander Vihar, along with his friend M, a boy from the neighbourhood, who was wearing a patka and whose name was Ravinder (the accused), called them and started asking them to commit wrong acts. M ran away from the spot, but Ravinder (the accused) caught hold of him (PW3). When he (PW3) requested Ravinder (the accused) not to commit any wrong act on him, Ravinder (the accused) threatened him and caught him by the neck. Thereafter, Ravinder (the accused) took him (PW3) into the dark nearby, removed all his clothes and inserted his penis in his anus and also put the penis in his mouth. My nephew (PW3) told me that Ravinder (the accused) had threatened him that he would kill him if he disclosed this to anyone. My nephew (PW3) told me that he escaped from there. When my nephew (PW3) narrated the entire incident to me, I, along with my nephew (PW3) and his mother, Geeta (PW5), went to the place pointed out by my nephew (PW3), where his clothes, i.e., his underwear and vest, were found on the ground. I dressed my nephew (PW3) in the clothes found on the spot. We made enquiries about Ravinder (the accused) in the vicinity, but he (the accused) could not be found there. Thereafter, my nephew (PW3) took his mother and me to Ravinder’s (the accused) house. I made enquiries there, where my nephew (PW3) pointed to a boy standing nearby and identified him as Ravinder (the accused), who had committed the wrong act on him. I called the police. We were taken to Sanjay Gandhi Memorial Hospital, where my nephew (PW3) underwent a medical examination. Ravinder (the accused) had deliberately committed the wrong act on my nephew (PW3). Legal action should be taken against the accused.”

Ext. PW3/A, the Section 164 statement of PW3 recorded on 26.04.2013, translated reads thus:- “I reside in Chander Vihar with my family. I am the youngest of the four children. About 5 to 6 days ago, I was going with my friend N to the nearby Shukar Bazar to play boxing and video games. After walking a short distance, we met Ravinder (the accused), the brother of my friend R. Ravinder (the accused) asked me to participate in a wrong act (गांड दे दे) and offered ₹50/-. I refused and told him that I don’t do such things, and we started running. My friend N managed to escape because he could run faster than me. However, Ravinder (the accused) caught hold of me and grabbed my neck tightly as a result, I was unable to breathe. He would loosen his grip on my neck for a short while and then tighten it again repeatedly, causing me difficulty in breathing (The trial court has noted thus:“‘K’ has shown as to how the said Ravinder (the accused) had caught his neck by pressing his voice box”). Ravinder (the accused) forcibly took me to the nearby bushes, punched and slapped me. He then bit my left cheek. He removed my clothes. When I protested and tried to stop him, he slapped and strangled me. He then forcibly pushed me to the ground and inserted his finger in my anus and put the same finger in my mouth. After that, he inserted his penis into my anus (उसके बाद उसने मेरी लैटरीन वाली जगह पर अपना पेशाब करने वाला (लंड) घुसा दिया ). He kept doing it for a long time until he ejaculated. He ejaculated on the ground and again inserted his penis into my anus. He also inserted his penis into my mouth. He also pierced my foot with a piece of glass. Ravinder also blew bidhi smoke in my face. He continued committing these acts at night, from about 08:00 to 09:00 p.m., for about one hour.Before letting me go, he slapped me and bit me on the cheek, leaving visible marks. Somehow, I managed to run away by making an excuse that I needed to defecate. I ran towards my house without any clothes on. When I reached near my house, still naked, people started laughing and asking me what had happened. My mother slapped me and asked me what had happened. I narrated the entire incident to my mother and chacha Vijay. The police arrived, and we all went to Ravinder’s (the accused) house. Ravinder (the accused) was already present there. I was taken to Govinda Hospital with my chacha as I was bleeding. Even today, it hurts when I defecate. The accused should be sentenced to 11 years of imprisonment.”

PW3when examined before the trial court deposed that on 20.03.2013 at about 08:00 p.m., when he along with his friend ‘M’ was returning after playing a game at Shukar Bazar, the accused caught hold of him and offered him ₹50/- for doing wrong act on him.While the others managed to run away, the accused caught him and dragged him to a plot in Veer Bazar. The accused pressed his neck near his voice box. (The trial court has recorded thus: “Witness has again pointed out the place of pressing the neck”). The accused covered his mouth with the former’s hand and bit him on the cheek. In the bushes, the accused removed his pants and inserted his private part into his anus. The accused again pressed his neck near the voice box. The accused also put his private part in his mouth, pressed his neck again and bit him on the cheek. He escaped without clothes. On his way home, people asked him what had happened. When he reached home, his mother slapped him and asked him what had happened. He narrated the entire incident to her. His mother (PW5) along with his uncle (PW1) went to the accused’s house. The accused was not at his house; however, his parents were there. The father of the accused handed over his underwear to his uncle (PW1), who informed the police. He was taken to the hospital for medical examination. PW3 identified the accused before the trial court.

PW3 in his cross-examination stood by his version.

After the examination of PW3 was completed, an application was moved by the prosecutor for recalling him for the purpose of identifying the clothes worn by him at the time of the incident. The application was allowed. On further examination, PW3 identified Ext. P1 clothes.

PW5, the mother of PW3, deposed that on 20.03.2013, her son (PW3) had left home at about 07:00 p.m. to play. He returned after some time, looking nervous and without any clothes on. Her son (PW3) told her that while he was with his friend Nadeem, the accused, who resides in their neighbourhood, took him into the bushes, and committed galat kaam on him. There were also bite marks on her son’s (PW3) cheek. When PW5 was asked what she meant by galat kaam, she answered that the accused inserted his anus [sic] into the anal region of her son (PW3). Her son (PW3) told her that the accused had run away after committing the act, and thereafter he managed to return home. She, along with her devar, Vijay (PW1) and her son (PW3), went to the house of the accused. She accompanied the father of the accused and her son (PW3) to the place of occurrence, where the accused’s father picked up the underwear and sandal of her son (PW3) and handed them over to her. They informed the police. The police arrived, and her son (PW3) was taken to the hospital for medical examination with her devar (PW1), while she returned home.

PW5 in her cross-examination denied the suggestion that the accused has been falsely implicated as her intention is to grab the property of the accused.

PW1, the uncle of PW3, deposed that he is residing with his brother and family. PW3, aged about 10 years, is the youngest son of his brother. PW1 was unable to recall the exact date of the incident. According to him, in March 2013 at about 08:00 p.m., when he returned from work, he saw his nephew (PW3) coming towards the house naked and weeping. On being asked, his nephew (PW3) told him that he had been forcibly subjected to a wrong act (“jabardasti and galatkaam had been done with him”). He, along with his nephew (PW3), went to the house of the accused, where the family members of the accused denied the allegations. The accused was present at his house at that time. PW1 identified the accused before the trial court. He along with his nephew (PW3) and bhabhi Geeta (PW5) went to the scene of the incident as led by PW3, where they found a torn vest and underwear lying on the ground. He informed the police. He accompanied PW1 to SGM Hospital, where the latter was examined. The accused was arrested at his instance.

PW1 in his cross-examination denied the suggestion that the accused has been falsely implicated as their intention is to grab the property of the accused’s maternal grandmother.

As noticed earlier, the appellant/accused has been convicted and sentenced by the trial court of the offence punishable under Section 6 of the PoCSO Act. To bring home an offence punishable under the aforesaid Section, the prosecution must establish (i) that the victim is a child; (ii) that there was penetration, however slight; and (iii) that the act falls within any of the aggravated categories, in the case on hand, that the victim is below 12 years.

As per materials on record, PW3 was about 10 years of age at the time of the incident. The prosecution case rests principally on the testimony of PW3, the victim; PW5, his mother; and PW1, his uncle. In Ext. PW3/A 164 statement as well as in his testimony, PW3 has a consistent case. It is a settled position of law that conviction can be based on the sole testimony of the victim if such testimony is of sterling quality. It is only when the evidence of the victim suffers from material contradictions, inconsistencies, or improvements going to the root of the prosecution case, the Court is duty-bound to seek corroboration. 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. Under no circumstances should there be room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. [See Rai Sandeep @ Deepu v. State (NCTof Delhi), AIR 2012 SC 3157].

In the case on hand, nothing has brought out to discredit the testimony of PW3. Therefore, I find no reason(s) to disbelieve his testimony.

The testimony of PW5, his mother and PW1, his uncle, corroborate the testimony of PW3 regarding his returning home naked in a distressed condition and his immediate disclosure of the incident. They also deposed that PW3 was then taken to the house of the accused, where he identified the accused as the person who had committed the wrong act on him.

It is true that there are some inconsistencies in the testimony of the prosecution witnesses regarding the sequence in which the accused’s house, the place of occurrence, and the hospital was visited, and the recovery of the clothes worn by PW3 at the time of the incident. However, these inconsistencies/discrepancies are minor in nature and do not go to the root of the matter. Variations in the narration of events, especially by a child witness and his family members recounting a traumatic incident, are bound to occur and, in fact, lend authenticity rather than detract from it.

PW4, Chief Medical Officer, Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi, who examined PW3, deposed that at about 11:05 p.m. on the intervening night of 20.03.2023-21.03.2013, PW3 had been brought to the hospital with history of sodomy and oral sex. On examination, no external injury over the body was found except a bruise in the perianal region, without any tear. He prepared Ext. PW4/A MLC of PW3. According to PW4, the possibility of penetration could not be ruled out. PW4 in his cross-examination deposed that by “bruise” he meant redness outside the anal region. To a suggestion put by the defence, PW4 answered thus:- “....It is correct that it may be possible that penetration had not taken place with the victim as I had opined only the possibility of penetration.”

Ext. PW10/D the FSL Report says that human semen was detected on Ext. 2, i.e. the anal swab of PW3. Semen was not detected on Ext. 1a (pants of PW3), Ext. 1b (underwear of PW3), Ext. 1c, Ext. 3 (underwear of the accused) or Ext. 4 (glance penis swab of the accused). The FSL report provides scientific evidence of the presence of semen on the anal swab taken from PW3. However, the report does not provide identification of the source of the semen.

The medical and forensic evidence admissible under Section 45 of the Evidence Act, 1872 can only corroborate the testimony of the witness. The purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion. Such report is not binding on the court. The court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. A complete contradiction or inconsistency between the medical evidence and the ocular evidence on the one hand and the statement of the prosecution witnesses between themselves on the other, may result in seriously denting the case of the prosecution in its entirety but not otherwise [See Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263].

In the case on hand, the medical and scientific evidence does not completely rule out the case of sexual assault as deposed by PW3.

The primary defence of the accused, as disclosed in his 313 statement, is that the family of PW3 wanted to usurp his property and, as he resisted the same, he has been falsely implicated in the present case. PW1, the uncle denied the suggestion that he was deposing falsely as his intention was to grab the property of the maternal grandmother of the accused. PW5, the mother denied the suggestion that she was deposing falsely as her intention was to grab the property of the father of the accused.

It is true that PW3 in his cross-examination admitted that his mother (PW5) did have a compromise talk with the accused during which it was suggested that if the father of the accused transferred one of his properties in her name, then the case would be withdrawn. This answer will only show that the incident did occur and for withdrawing the case (for which she had no right), property was demanded. This does not show that PW3 and his family had cooked up a false case with the intention of grabbing the property of the accused.

In the light of the materials on record, I find that the prosecution has proved beyond reasonable doubt that the accused committed aggravated penetrative sexual assault on PW3, a child below 12 years of age, thereby attracting the offence contemplated under Section 5(m) punishable under Section 6 of the PoCSO Act. The findings recorded by the trial court are based on proper appreciation of evidence and do not suffer from any perversity or illegality, warranting interference by this Court.

The appeal sans merit is dismissed.

Application(s), if any, pending, shall stand closed.