Satya Narayan @ Sattan vs The State & Anr.

Vimal Kumar Yadav, J.

Rapid, uncontrolled and lopsided industrialization gave impetus to urbanization which too was equally unplanned and rapid which inter alia broke up the conventional Indian joint family system. More and more nuclear families are in vogue. It has its own plus points and benefits. But it led to different social issues such as lack of parental control and check, absence of the protection of joint family, financial instability and the resultant increase in intolerance, lack of adjustment in family, more materialistic outlook and life style. In this process the institution of marriage too came under strain and rapid rise in matrimonial disputes rendered the children of such fractured families more and more vulnerable.

Circumstances rendered the mother of the child victim vulnerable and the vulnerability spilled over and engulfed the children as well. A single mother living separately in the Indian society and supporting herself and her children, not well-educated nor skilled becomes highly vulnerable. In the instant case, the mother of the child victim was working as a housemaid in order to sustain herself and her family consisting of two minor daughters, aged 5 years and 3 years inasmuch as she was not living with her husband having matrimonial discord.

On 08.10.2016, she, as usual, left for her job at around 9:00 AM and came back at 11:30 AM. Her elder daughter i.e. victim came crying to her and hugged her. It was revealed that the child was abused by one person, namely, Satya Narayan, in her absence. What the child victim shared with her mother, enraged the mother of the child victim to the extent that it took her to the house of the said Satya Narayan. An altercation took place when he was confronted with his misdeeds. Police was called and DD No. 30A was entered into the Daily Dairy with regard to a call of molestation and altercation. When the police reached at the spot, then the actual and whole story unfolded, which ultimately led to the registration of the FIR No. 737/2016 registered at Police Station Uttam Nagar for the offences punishable under Section 354 of Indian Penal Code („IPC‟) and Section 8 of Protection of Children from Sexual Offences Act, 2012 („POCSO Act‟), which was later on converted into Section 6 of the POCSO Act, based upon the allegations made by the child victim.

Traversing through the charge-sheet filed containing allegations u/s 354/323/451 IPC and Section 6 POCSO Act, formal charge u/s 450/323 IPC and Section 6 of POCSO Act, recording of witnesses by the prosecution and defence, statement of the accused and the final arguments, the FIR culminated into the impugned judgment of conviction dated 03.03.2022 and order on sentence dated 17.05.2022 for the offence punishable under Section 6 of POCSO Act wherein the Appellant was sentenced to Rigorous Imprisonment (RI) for 10 years with fine of Rs. 10,000/- and in default of payment of fine, he was further sentenced to Simple Imprisonment (SI) for 2 months. He was also sentenced to RI for 5 years with fine of Rs. 5,000/- for, the offence punishable under Section 450 IPC and in default of payment of fine, he was sentenced to undergo SI for 01 month.

Being aggrieved by the findings recorded by the learned Trial Court, the instant appeal has been preferred, whereby it is asserted on behalf of the Appellant that the testimony of the victim/prime witness is full of inconsistencies and improvements so as to render it unbelievable. It is further asserted that this case is nothing but a ploy to wriggle out of debt by the mother of the child victim as she did not want to return the money borrowed by her from the Appellant herein. When the Appellant pressed hard, the result was in the shape of the instant case.

In addition to the aforesaid contentions, it is further argued on behalf of the Appellant that the Impugned Judgment cannot be sustained on account of the fact that the learned Trial Court has failed to appreciate that in the present case the testimony of the child victim, i.e. examined as PW-1 and the testimony of her mother examined as PW-3 suffers from serious contradictions and infirmities. It has been further asserted on behalf of the Appellant that the learned Trial Court has failed to appreciate that in the complaint given at the first instance which is Ex.PW-3/A of the child victim‟s mother in her own handwriting, it was alleged that the accused fiddled with the private part of the victim, that is, moved his fingers up and down on the vagina of the child victim. However, the child victim in her statement under Section 164 Cr.P.C., has stated that the accused inserted his finger also in her genital area / vagina over the clothes/undergarment and because of the said material improvement, the story of the prosecution cannot be relied upon.

It has also been asserted that the learned Trial Court also failed to consider that the accused has been falsely implicated in the present case by the mother of the child victim as she did not want to repay the loan of Rs. 5000/- given to her by the accused, that in fact, the accused went to the house of the complainant for demanding back the loan amount and when he could not find the mother of the child victim, he returned back. This fact was corroborated by the statement of DW-1, the landlord. It was stated by him that the Appellant called the lady, i.e. the mother of the child victim from outside the house, however, since none was present in the house, the Appellant left.

It has been further argued on behalf of the Appellant that the learned Trial Court also did not appreciate that it was alleged that the accused had shown some cartoon films to the child victim from his mobile phone and thereafter, he showed her some porn films and while showing such content accused inserted his fingers into her private parts, not directly touching the skin rather over and above the undergarment wore by the child victim.

However, the prosecution has failed to recover any such mobile phone from the accused, contended the counsel for Appellant. Moreover, the accused was using a very basic keypad phone with a small screen in which neither videos can be played nor there is a facility of internet in such handsets. Incidentally, there is nothing on record nor has the counsel for the Appellant pointed out anything about the handset.

Finally it has been argued on behalf of the Appellant that the learned Trial Court has even failed to appreciate the delay in reporting the matter to the police as the matter was reported to the police on 15.09.2017, whereas the incident took place on 13.09.2017, (which part is factually wrong, as the incident as well as the FIR (Ex. PW-5/A) both took place on 08.10.2016).

The delay according to the learned counsel for the Appellant remained unexplained in lodging the FIR inasmuch as the incident came to the knowledge of the mother of the child victim at around 11:30 AM, on the day of incident i.e. 08.10.2016 but the PCR call was made at 01:18 PM and the FIR was registered at around 7:10 PM. Learned Trial Court has also not considered that as per the MLC (Ex. A-2), no external injury was seen on the child victim, which clearly shows that the victim was not sexually assaulted by the appellant.

There is no corroboration to the testimony of the child victim as no medical record was there to substantiate and strengthen the allegations. Therefore, in such circumstances, conviction recorded on the basis of the sole testimony of the child victim is not appropriate in this case.

Learned APP for the State, on the other hand, came up with the plea that the judgment is in consonance with the facts, evidence and the law applicable and therefore, does not require any interference. It is elaborated further that a child witness that too, of the age of 5 years is very vulnerable not only because of the age but the circumstances also in which she was placed. As far as the deposition is concerned, the child of 05 years who is a pure soul, unaffected by the evils of society, was expected to and has testified to what she underwent. Certain omissions or improvements or contradictions are bound to be there on account of limitations of human memory. As long as there are no material and factual discrepancies, which in the instant case does not exist, therefore, these are not going to affect the outcome of the matter. So were the contentions on behalf of the learned counsel for the prosecutrix.

The learned counsel for the Appellant has placed reliance on the judgment in the case of Panchhi and Ors. Vs. State of U.P.: (1998) 7 SCC 177, and asserted that a child witness is required to be evaluated with great care and caution as possibility of blending in the truth cannot be ruled out. Therefore, it is advisable to seek corroboration before relying on the testimony of such witness. Where the testimony of prosecutrix is not of sterling quality then it is all the more required to have corroboration.

Learned counsel for the prosecutrix has placed reliance on the Judgments in Nirmal Premkumar & Anr. v. State Represented by Inspector of Police (2024) 20 SCC 293 and Deepak Kumar Sahu v. State of Chhatisgarh 2025 SCC OnLine SC 1610, both of which basically reiterates the principle enunciated in State of Punjab v. Gurmit Singh and others (1996) 2 SCC 384 & Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130 that the testimony of the prosecutrix alone is sufficient to hold the accused guilty provided the testimony is of sterling quality. As regards the principle, there is no quarrel to the proposition laid down. However, facts of each case are different and those are to be kept in mind, like in the instant case, the prosecutrix happens to be a five year old female child, whose testimony is to be appreciated and evaluated very carefully, as has been laid down in the Judgment titled as State of Madhya Pradesh v. Balveer Singh (2025) 8 SCC 545.

In the instant case, the child victim has introduced new facts in her statement made before the Court, whereas, there is not even a reference in any manner in her initial statement and the one recorded under Section 164 Cr.P.C. (Mark-X) that before the assault the Appellant Satya Narayan Sharma had shown her obscene videos on his mobile and engaged in vulgar talks. Thereafter, pulled her legs and fiddled with her private part. These aspects make her testimony questionable. Mother of the child victim too did not mention a word about the cartoon and porn film shown to the child victim in her complaint Ex. PW-3/A, which incidentally was written in her own handwriting. Therefore, in such circumstances, the testimony of the child witness requires corroboration which incidentally also is not there.

The MLC Ex.A-2 does not have any trace of any kind of assault as neither swellings nor reddishness were noted by the doctor. Therefore, it may not be conclusively inferred that the Appellant had committed any offence of the kind alleged and there is no reason as to why the defence evidence should not be given the same treatment as prosecution witnesses are given. In this context, the learned counsel for the Appellant has placed reliance on the Judgment of High Court of Delhi in case titled as Sonu vs. State (Govt. of NCT of Delhi) bearing 2021 SCC OnLine Del 4279, decided on 16.09.2021. DW-1 Randhir Tiwari, has categorically stated that he had seen the Appellant visiting the house of the victim and finding that, the mother of the child victim was not available, he left the place immediately. However, there is no corroboration to the testimony of DW-1 either.

As regards the delay in registration of FIR, there is, in fact, no delay on the part of the child victim/her mother. Explanation is there in the statement of the mother of the child victim for whatever delay was there. She deposed that when she came back at around 11:30 AM and came to know about the incident she went to the home of the Appellant and confronted him. A kind of quarrel took place there. A call to Police Control Room (PCR) was made at around 01:18 PM. So evidently, intervention of Police was sought within a reasonable time. Given the fact that the FIR is to be registered by police over whom the mother of the child victim had no control. In any case, no prejudice was caused to the Appellant, rather the case of the prosecution seemingly suffered. The child victim was examined medically after about 06 hours of the alleged incident and that could be the reason that no swelling/reddishness could be noticed, as by that time it might have subsided.

As discussed above, the testimony of the child victim and her mother starts coming under strain, primarily for the reason that, a new fact has been introduced by the child victim and her mother. There is no reference of any cartoon or porn being shown to the child victim in the statement given to police by the child victim and her mother. The statement/complaint (Ex. PW-3/A) of the mother of the child victim, examined as PW-3, is in her own handwriting. And so is the position with regard to the child victim, whose statement, in question and answer form, has been recorded by the Investigating Officer, which is Mark-X. Another statement of the child victim was recorded under Section 164 Cr.P.C., which also does not contain any reference of showing any kind of movie.

The MLC Ex. A-2 also fails to provide any corroboration to the narrative of the child victim. This becomes all the more important when the mother of the child victim, while giving the history, has stated that she had observed reddishness on the private part of the child victim when the child first reported the incident. However, the Doctor did not find any reddishness or swelling, which could have strengthened the narrative of the child victim. Another observation that hymen was intact is also notable, although it is not as important as the aspect of swelling/redness.

The allegations reflect that the private part of the child was fiddled with and another version is that the assailant/Appellant inserted his finger from outside i.e. over the underwear of the child. In such circumstances, there is every possibility that there was no or insignificant insertion without affecting the hymen in any manner. The details on the MLC Ex. A-2, when read in conjunction with the complaint Ex. PW-3/A, then the case of the prosecution starts getting vulnerable. Ex. PW3/A has skipped or missed two very vital facts i.e. the absence of any reference of the porn or cartoon movie having been shown to the child victim and absence of even a reference about the reddishness on the private parts of the child. Whereas, both these things stand out and should have found mention in the complaint Ex. PW3/A.

The testimony of the child victim and her mother not being of impeccable quality, required corroboration, but that too is not forthcoming in a cogent manner. The corroboration could not have been found in any ocular testimony, therefore, the MLC becomes very important. Unfortunately, the MLC also does not come to the rescue of the prosecution in view of the clear observation by the doctor about the absence of any swelling/injury/reddishness in the genital area of the child. It is pertinent to note that the incident took place between 09:00 AM to 11:30 AM on 08.10.2016 and the victim was examined in the hospital at about 05:10 PM i.e. roughly after about 06 hours on that very day. Skin of a child is very soft and even softer in the genital area, therefore, if a child of five years is a victim, some or other trace of intrusion in that area has to be there. It is highly unlikely that within 5 or 6 hours, the traces of such violation would disappear and an expert medical professional would not be able to notice the same.

The other possibility is that the child victim was only fondled and not fingered so as to reach to a conclusion that finger was inserted in her private part. If some sort of insertion had occurred in that region even over and above the underwear, which are invariably tight fitting, then a bit of pressure would have to be applied, as only in that eventuality, kind of nominal insertion could be there. If it was so, then the pressure would definitely show on the body of the child victim, which is not reflected in the MLC. This points out towards two possibilities that the child victim was merely fiddled with or fondled or that the witnesses are lying. The latter possibility seems to be remote and former seems nearer to the possibility, if the entire gamut of facts and circumstances are evaluated properly. However, one thing stands ruled out that any sort of insertion was there. Thus, the initial complaint of the child having been fondled with by the Accused, seems to be the factual position.

The contention raised on behalf of the Appellant that he has been falsely implicated by the mother of the child victim since she did not want to return the money borrowed by her from the Appellant. However, it does not seem to be plausible that for a sum of Rs. 5,000/-, a female would bring in her innocent child into this controversial situation. If the intention of the mother of the victim was not to return the money, she would have leveled other allegations involving herself instead of drowning her child in such a vicious set of allegations, counter allegations and exposure of the child to police, doctor and the Court‟s system. And in any case, there is no positive evidence that a sum of Rs.5,000/- was lended by the Appellant.

Having considered the matter in it‟s entirety and evaluating the evidence, it appears that the Appellant has taken advantage of the vulnerability of the child and her mother, but then it appears that it was confined to touching the private parts or fondling with the same, inasmuch as the child has three versions about this also. In the first version, she has stated before the police that “Sharma uncle ne meri susu karnewali jagah par hath ghumaya aur apni anguli se meri susu wali jagah ko niche upar kiya tha”. In the second version under Section 164 Cr.P.C. made before the learned MM, she has stated that “unhone meri tang pakad kar khich liya, phir mere kapdon ke upar se hath ghumane lage, unhone kapdon ke upar se mere susu mein ungli daali” and in the third version, she stated before the Court that “He started showing me obscene videos and was doing vulgar talks. Thereafter, he pulled my legs and inserted his hand into my private part”.

It is correct that the child was too young to fully describe the things, but then a child can definitely distinguish between movement of the hands and fingers. Thus, in totality of the circumstances, it appears that the child victim was only fondled with and that there was no insertion, as that would have required some degree of force and that was bound to leave some mark on the genital area in the shape of swelling/reddishness or something like that, which an experienced doctor would have certainly noticed and reported in the MLC. In the testimony of the child victim, in all her three versions some or the other kind of touching the genital area is constant. And that is the material aspect of the case. Therefore, the appeal is partly allowed and the conviction of the Appellant which was there under Section 6 of POCSO Act and Section 450 IPC recorded by the learned Trial Court, stands modified to a conviction under Section 7 of POCSO Act punishable under Section 8 of the POCSO Act, whereas the conviction under Section 450 IPC shall remain unaltered.

The Appellant was sentenced to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs. 10,000/-, in default to undergo Simple Imprisonment for two month under Section 6 POCSO Act and Rigorous Imprisonment for a period of 05 years and to pay a fine of Rs. 5,000/-, in default to undergo Simple Imprisonment for 01 month under Section 450 IPC. However, in the changed circumstances, sentence also needs to be modified as Section 6 & 8 of POCSO Act have different punishments. Thus, considering the fact that the Appellant has been involved in criminal proceedings for about a decade and has undergone about four years in custody and at the time of incident, he was 33 years of age and now he is in middle ages. No adverse reports are there against him for this intervening period, therefore, he shall be sentenced to undergo 04 years 06 months Rigorous Imprisonment under Section 7 read with Section 8 of POCSO Act, whereas, the fine and default punishment shall remain unaltered. The sentence under Section 450 IPC stands altered to Section 451, thus the sentence for the same stands modified to Rigorous Imprisonment of 02 years, whereas fine and in default punishment aspect would remain unaltered. Needless to say that Appellant shall be entitled to the benefit of set off under Section 428 Cr.P.C. and both the sentences to run concurrently.

The Appellant is called upon to surrender forthwith to serve the remaining sentence.

The copy of the judgment be transmitted to the learned Trial Court and the Prison Authorities for information and necessary compliance.