KANHAIYA LAL v. STATE (NCT OF DELHI)

14. I shall first briefly refer to the evidence on record relied on by the prosecution in support of the case. The incident in this case is alleged to have taken place on 19.08.2022 inside the shop/house of the accused. Ext. PW2/A, the FIS/FIR of PW[2], the mother of PW[1], was recorded on 21.08.2022. In the FIS/FIR, PW[2] has stated thus:- “…Today, on 21.08.2022 at around 7-8 PM in the evening, when I was bathing my daughter ‘N’ (PW[1]) aged 6 years, my daughter said, 'Mummy, don't touch my private part, it is hurting me. 'When I asked my daughter the reason, my daughter replied that the day before yesterday, when she went to the iceseller uncle's (barf wale uncle’s (the accused)) house to play with Pooja and Aanchal, he had taken off her underwear and rubbed his private part against hers. When she started screaming, the uncle covered her mouth with his hand and said, 'Do not tell anyone, otherwise I will beat you severely, no one will be able to save you.' After that, he let her go and she came home....”

15. PW[1] in Ext. PW1/B, the 164 statement seen recorded on 22.08.2022 states thus:- “An uncle took me to a house the day before yesterday and put his private part in my private part. The ice-seller uncle did this. After that, he said do not tell anyone, otherwise I will beat you a lot. He had taken me to his house. He did all this there. I can recognize him. Pooja and Aanchal were in that house. They also saw wrong being done to me. Both of them had run away.”

15.1. PW[1], when examined, stood by the version given in her Section 164 statement. PW[1] also deposed that on the said day she was playing with ‘A’ and ‘P’ when the accused called her and that when ‘A’ and ‘P’ left, the accused removed her underwear, placed his private part on her private part, and threatened to kill her if she disclosed the incident to anyone. The accused had taken her inside his room and committed the act. No one had witnessed the occurrence because the shop is situated in the front while the accused's room is at the rear of the premises, where two battery rickshaws were parked.

16. PW[1], in her cross-examination, deposed that she had known the accused for many years and used to address him as “Baba”. According to her, the accused touched her private part and slightly inserted his private part into her private part, though not completely.

17. PW[2], mother of PW[1], when examined before the trial court, stood by her version in Ext. PW2/A FIS/FIR. PW[2], in her cross examination, deposed that she knew Bhola, the son of the accused, and that her husband had once quarrelled with him. According to her, the quarrel arose when her husband was having an argument with his mother, at which time Bhola intervened, resulting in an altercation between them. PW[2] further deposed that her family ran a roadside shop selling Kurkure, bidis and cigarettes, which is situated opposite the shop of the accused and that their shop was on rent whereas the accused owned his shop. PW[2] denied any knowledge of the accused having made a complaint to the MCD against their shop. PW[2] denied the suggestion that there had been a quarrel between her father-in-law and the accused over such a complaint. According to PW[2], the MCD had merely directed all kiosk owners to shift their kiosks slightly away from the road and that there had never been any quarrel or dispute between her father in law and the accused in this regard. PW[2] further deposed that the accused did not reside in his house as it had been let out on rent, instead he resided at his shop, where he had made arrangements for his residence. PW[2] further deposed that the place where accused was residing is not a Kokha (road side stall or shack) but a structure covered with tarpaulin and wooden planks. ‘P’ and A’ aged about eleven to thirteen respectively are the daughters of the accused's elder brother and resided near her house. The medical examination of PW[1] was conducted on 21.08.2022. She initially refused the medical examination because her daughter was crying, screaming and was not allowing anyone to touch her.

18. PW[6], Head of Department, Obstetrics and Gynaecology, Deep Chand Bandhu Hospital, Delhi deposed that he had been deputed by the Medical Superintendent to depose on behalf of Dr. Ankita Shivhare, Senior Resident, who had left the services of the hospital. Dr. Ankita Shivhare had worked under his supervision and, therefore, he was acquainted with her handwriting and signature, having seen her writing and signing during the course of discharge of her official duties. On 22.08.2022, PW[1] was brought to the hospital by PW[3] with an alleged history of sexual assault. PW[1] was medically examined by Dr. Ankita Shivhare and Ext. PW1/A MLC No. 17374/22 issued. PW[6], in his cross examination, admitted that, as recorded in the MLC, the same was prepared in the presence of the victim's mother. No signs of injury were noted on PW[1].

19. PW[7], the Investigating officer (IO), when examined, spoke about the various steps taken during the course of investigation. According to PW[7], the accused had one residential house and a temporary tarpaulin covered khokha, and that the alleged incident occurred in the said khokha. PW[7] admitted that several jhuggies were situated beside the khokha on the roadside, that the accused sold ice slabs from the khokha and also resided there, while his family lived separately in nearby jhuggies.

20. DW[1], one of the sons of the accused, when examined, deposed that on 19.08.2022, PW[1] had never come to the place where he had set up his cart nor had she visited the accused's shop or hut at any time during the day or night. DW[1] further deposed that about one to two months before the incident, the accused had an altercation with PW1’s grandfather after the accused lodged a complaint with the MCD for removal of the PW1's grandfather's illegal khokha. DW[1] further deposed that about six months prior to the incident, his brother Bhola had also quarrelled with PW1's father, following which PW1's grandfather and father threatened to falsely implicate the accused in a criminal case.

21. Though, the accused stood charged for the offences punishable under Section 6 of the PoCSO Act also, the trial court found evidence lacking to establish the same. In view of Section 222 Cr.P.C., which permits conviction for a minor offence where the facts established disclose the commission of such offence, the accused has been held liable to be convicted for the lesser offences punishable under Section 9(m) read with 10 of the PoCSO Act and Sections 354, 354A and 354B IPC along with Section 506 IPC. The question is whether the aforesaid evidence on record is sufficient to find the appellant/accused guilty of the said offences.

22. It was submitted on behalf of the accused that the alleged place of occurrence, namely, the accused's Khokha, was situated in a densely populated locality surrounded by jhuggis and other shops with constant public movement. It was, therefore, contended that the alleged incident was inherently improbable as such an occurrence could not have taken place without attracting the attention of persons present nearby. The aforesaid submission does not merit acceptance. Neither PW[1], the child victim, nor PW[2], the mother of the victim, was confronted with any suggestion that the alleged incident could not have occurred because the accused's khokha was situated in a crowded locality or that the presence of people in the vicinity rendered the commission of the offence impossible. On the contrary, PW[1] consistently deposed that the accused took her inside his room situated behind the shop, where no one else was present, and committed the sexual assault. Her testimony that the occurrence took place inside the accused's room remained consistent in cross examination as well. Similarly, PW[2] was not questioned to suggest that the accused's khokha was so crowded or exposed that the commission of the offence, as alleged, was impossible. The only material relied upon by the defence is the testimony of PW[7], the Investigating Officer, who admitted that there were jhuggis near the khokha, that the khokha was situated on the roadside, and that many people remained present in the nearby area. However, these admissions merely establish the existence of movement in the vicinity. They do not establish that persons were present inside the accused's khokha at the relevant time or that the commission of the offence inside the khokha was impossible. PW[7] also deposed that the alleged incident had taken place in the accused's khokha and that the accused used to reside there. The prosecution case is that the assault occurred inside an enclosed space used by the accused as his residence. Merely because a structure is situated in a populated locality does not lead to the conclusion that an offence of sexual assault cannot be committed therein. The possibility of public movement outside such premises does not exclude the possibility of an offence being committed inside, particularly when PW[1], the victim has consistently stated that she was taken into the accused's room and assaulted there.The defence has not brought on record any evidence regarding the dimensions of the khokha, its visibility from outside, whether its interior was open to public view, or whether persons could actually witness activities taking place inside it. Accordingly, the argument that the incident was improbable merely because the accused's khokha was situated in a populated locality is devoid of merit and hence rejected.

23. It was further submitted by the learned counsel for the accused that the prosecution failed to examine two material witnesses, namely 'P' and 'A', who, according to PW1's statement under Section 164 Cr.P.C., had witnessed the occurrence. It was contended that the non-examination of these witnesses created a serious lacuna in the prosecution case and cast doubt on the prosecution version. The aforesaid contention is also devoid of merit. Merely because the statements of 'P' and 'A' were not recorded or they were not examined as prosecution witnesses does not, by itself, render the prosecution case doubtful. It is a settled principle that evidence has to be weighed and not counted, and conviction can be based on the testimony of a single witness if found wholly reliable. In the present case, PW[1] has consistently narrated the incident from the inception, including in her statement under Section 164 Cr.P.C., as well as in the box. Her testimony has remained cogent and trustworthy on the material particulars regarding the commission of the offence. The non examination of 'P' and 'A', therefore, is not fatal to the prosecution case, particularly when the testimony of the child victim inspires confidence and does not suffer from any material contradiction or infirmity. Moreover, it has been brought out in the crossexamination of PW[2] that ‘P’ and ‘A’ are the daughters of the elder brother of the accused. So there would be no point in examining them because it was highly unlikely for them to have supported the prosecution case. Further, it is settled law that the sole testimony of the victim, if found to be trustworthy and credible, can form the basis of conviction even in the absence of independent corroboration (See Ganesan v. State, (2020) 10 SCC573) Accordingly, the failure to examine 'P' and 'A' does not, in any way, create any doubt in the prosecution case.

24. It was further submitted by the learned counsel for the appellant/accused that the prosecution case was a result of prior enmity between the parties arising out of disputes regarding an alleged complaint made by the accused to the MCD against the victim's family's shop and an earlier altercation between the accused's son and the victim's family. It was contended that these circumstances furnished a motive for falsely implicating the accused. The aforesaid contention is equally devoid of merit. The defence has sought to attribute a motive for false implication on the basis of an alleged prior dispute between the accused and the family of PW[1] concerning an MCD complaint against their shop. However, the said plea remains a mere assertion without any independent corroboration. No witness from the MCD or any other independent source has been examined to establish that any complaint was ever lodged by the accused against the family of PW[1]. Likewise, the defence has not produced any documentary evidence, such as a copy of the alleged complaint, any notice issued by the MCD, or any receipt evidencing imposition or payment of any penalty upon the family of PW[1] pursuant to such alleged complaint. Hence, the testimony of DW[2] alone is insufficient to probabilise the defence version. On the contrary, PW[2] categorically denied the suggestion that any dispute had arisen between her family and the accused on account of any MCD complaint or that the accused had been falsely implicated for such reason. The Investigating Officer (PW[7]) also deposed that she had inquired in the locality regarding any previous quarrel or dispute between the parties, but no one disclosed the existence of any such dispute. In these circumstances, the defence has failed to establish the existence of any prior enmity capable of furnishing a motive for false implication.

25. It was further contended by the learned counsel for the appellant/accused that the prosecution case is rendered doubtful on account of the delay in registration of the FIR, as the alleged incident occurred on 19.08.2022 whereas the FIR came to be registered only on 21.08.2022.The learned counsel for the appellant has not demonstrated as to how the delay of about two days in the registration of the FIR has caused any prejudice to the defence or rendered the prosecution case doubtful. More importantly, the evidence on record explains the delay. PW[2], the mother of the victim, deposed that the victim disclosed the incident to her only thereafter, and upon learning about the occurrence, she promptly approached the police. Thus, the FIR was lodged at the earliest opportunity after the offence came to the knowledge of PW[2]. In the absence of any material to suggest that the delay was deliberate or was utilised for fabrication or false implication, the mere interval between the date of occurrence and the registration of the FIR is not sufficient to discredit the prosecution case. Therefore, a careful perusal of Ext. PW2/A FIS/FIR, the Section 164 Statement of PW[1], and the testimony of PW[1] clearly establishes that the accused took PW[1] inside his khohka, undressed her, and touched her private part with his private part. PW[1] further deposed before the Court that although the accused did not completely insert his private part, he did it to some extent.

26. As noticed earlier, the trial court has found the accused guilty of the offences punishable under Section 10 PoCSO Act and Sections 354, 354A, 354B and 506 IPC. The trial court relying on Section 71 IPC and Section 42 PoCSO Act, confined the sentence to the offences punishable under Section 10 PoCSO Act and Section 506 IPC. Section 354 IPC for which also the accused has been found guilty does not come under Section 42 PoCSO Act. Therefore, the trial court went wrong in not awarding sentence for the offence punishable under Section 354 IPC. However, there is no appeal by the State. Hence, this Court is only considering the sentences awarded under Section 10 PoCSO Act and Section 506 IPC, which sentences have been directed to run concurrently. Sexual assault has been defined under Section 7 of the PoCSO Act to mean that whoever, with sexual intent, touches the vagina, penis, anus or breast of a child, or makes the child touch such parts of that person or any other person, or does any other act with sexual intent involving physical contact without penetration, is said to commit sexual assault. Section 9(m) classifies an offence as aggravated sexual assault when sexual assault is committed upon a child below the age of twelve years. Therefore, the aforesaid discussion clearly establishes that the accused committed aggravated sexual assault upon PW[1] within the meaning of Section 9(m) read with Section 10 of the PoCSO Act.

27. It was submitted by the learned counsel for the accused that, if at all the crime be proved, given the aforesaid reasons and old age of the accused, i.e., 62 years old at the time of incident, the sentence be reduced to the statutory prescribed minimum punishment which is 5 years of imprisonment. As per Section 10 PoCSO Act, the offender is liable to be punished with imprisonment which shall not be less than five years but which may extend to seven years. It has been brought to my notice that the accused has been booked in Crime No. 522048/2016 for the offence punishable under Section 307 read with Section 34 IPC. However, there is no material(s) to show the present status of the said crime.

28. In the facts and circumstances of the case, I find awarding a sentence of five years for the offence punishable under Section 10 PoCSO Act would serve the ends of justice. The conviction and sentence for the offence under Section 506 IPC is confirmed.

29. In the result, the appeal is partly allowed. The conviction of the accused for the offences punishable under Sections 354, 354A, 354B and 506 IPC and Section 9(m) read with Section 10 PoCSO Act is confirmed. However, the sentence of rigorous imprisonment for 7 years imposed for the offence punishable under Section 10 PoCSO Act is modified to a period of 5 years.

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

CHANDRASEKHARAN SUDHA (JUDGE) JULY 9, 2026 p’ma/kd/rs