Full Text
HIGH COURT OF DELHI
MUZAZ @ AZAD .....Petitioner
Through: Mr. Aditya Aggarwal, Mr. Ankit Murtaja, Ms. Pooja Roy, Ms. Shipali Garg and Mr. Manas Agarwal, Advs.
Through: Mr. Amit Ahlawat, APP for the State
JUDGMENT
1. This application has been filed seeking suspension of sentence, imposed upon the appellant, during the pendency of the appeal. The appellant was sentenced to undergo rigorous imprisonment of 20 years vide order on sentence dated 5th March 2024 in S.C. No. 1125/2018, passed by the ASJ-06, CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 2 of 12 Special Judge, (POCSO Act), East District, Karkardooma.
2. FIR No. 122/2018, P.S. Gandhi Nagar was registered on 4th May 2018 and the appellant was convicted on 20th October 2023 for offences under Section 10 read with 9(l)/9(m) and Section 6 read with 5(l)/5(m) of the Protection of Children from Sexual Offences Act, (‘POCSO’), and, Sections 376(2)(i)/376(2)(n)/354B/506/376AB of the Indian Penal Code, 1860 (‘IPC’).
3. The appellant has undergone, roughly 2 years of his sentence and the unexpired portion of the sentence is roughly 18 years.
4. The case of the prosecution is that on 04th May 2018, a PCR call was receivedregarding sexual assault upon a minor girl, aged about 9 years. The police team went to the place of the incident at Gandhi Nagar, where the victim and her father met them. On inquiry, the victim disclosed that she was sexually assaulted by her “mama”, the appellant herein. It transpired that since the appellant was a friend of the family, he was treated like a maternal uncle. The victim was medically examined and statements were recorded. Age related documents of the victim were obtained. After completion of the investigation, charge-sheet was filed and the trial ensued. The victim deposed as PW-1, her father deposed as PW-3 and her mother deposed as PW-4 and then there were other formal witnesses. Her recorded date of birth was found to be 12th October 2008 on the birth certificate issued by the Municipal Corporation, Government of Delhi, basis which she was admitted in school on 21st April 2014 in Class 1, the admission record testified to by PW-2.
5. PW-1 deposed that she knew the appellant as she used to call him CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 3 of 12 mama and he lived in herneighborhood. She stated the appellant had come to her house and lowered her underwear, and also, removed his pants. He was about to undress her by holding her, but in the meanwhile her father had come. The father caught hold of the appellant but he freed himself and fled away. She stated that she was alone when the appellant came to her house. She stated that he used to tease her by touching her breasts, thighs and her buttocks, and these incidents had been taking place for the last about one year. She had not made any complaint as the appellant used to give her threats by saying that his brother was in the police. She specifically stated that the appellant had done these acts for about ten times. Only when the incident in question was noted by her father, she went along with her parents to the police station and reported. During questioning, she stated that on that day he had not inserted his finger in her vagina but he did lay her on a gunny bag. In response to questions, she stated that on an earlier occasion, he had inserted his finger in her vagina but not on the day of the incident, when her father saw them. She also stated that the appellant used to show her indecent pictures and videos on his phone.
6. The father deposed that on 03rd May 2018 when he returned from his work at about 6:00 P.M. and reached his jhuggi he saw the victim on the sofa and the appellant leaning over the victim, the victim was not wearing her lower clothes and the appellant was also not wearing his lower clothes. The father became very upset and appellant started pleading for forgiveness. At that time, his daughter, the victim, told the father that appellant had done this kind of act many times in the past. He discussed the matter at home and then CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 4 of 12 called the police through the PCR call. In the MLC, it was noted that the victim complained of a history of multiple assaults since the last one year. Submissions on behalf of Appellant
7. The counsel for the appellant, in support of suspending the sentence of the appellant, submitted that there are contradictions in the statements made by the victim. In her statement under Section 161 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’), dated 4th May 2018, the victim stated that the appellant touched her behind, with his genitals, whereas, in her statement under Section 164 Cr.P.C., dated 7th May 2018, the victim stated that the appellant held her arms and legs and penetrated her vagina with his finger, however the MLC report, dated 4th May 2018, records that the victim complained of multiple anal assaults. In her chief and cross examinations, the victim stated that the appellant was about to embrace her but in the meantime her father came in.
8. He also stated, that the victim, further contradicting herself, in her statement under Section 161 Cr.P.C., stated that the appellant lives near her place and came to visit during the evening, while she was alone at home and touched her vagina with his genitals. Meanwhile, in her statement under Section 164 Cr.P.C., she stated that the appellant has been misbehaving with her for the past one year and that he takes her to his home and touches her inappropriately and inserts his fingers in her vagina, however, in her examination in chief, she stated that the appellant has touched her inappropriately on about 10 instances. CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 5 of 12
9. Appellant’s counsel further submitted that the Public Prosecutor, during trial, posed leading questions to the victim, contrary to Section 142 of the Indian Evidence Act, 1872 (‘IEA’). The MLC of the victim does not disclose any internal/external injury. No male DNA profile was generated in the FSL reports.Thesiblings of the victim have not been made a witness by the prosecution.
10. It was further submitted that the father of the victim, in his chief examination dated 30th November 2018, stated that he could not put a door on their jhuggi and had parked his motorcycle on the entrance of the jhuggi and saw the appellant leaning over the victim on the sofa. However, PW-6 Ct. Gaurav Kumar, in his chief examination, stated that there was a door on the gate of the jhuggi which was found open. Further, the father of the victim in his chief examination, stated that he saw the victim lying on a sofa, whereas the victim, in her statement under Section 164Cr.P.C., stated that she was lying on a gunny bag.
11. It was further pointed out that the appellant was granted bail by the Trial Court, vide order dated 4th June 2019. The appellant has been incarcerated for more than 2 years and is the only bread earner in his family. Even if the allegations are taken to be true, the appellant can, at best, be convicted for an offence under Section 11 POCSO Act, for which the maximum punishment prescribed is 3 years, and the appellant has already served a sentence of 2 years. Submissions on behalf of the State CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 6 of 12
12. APP for the State objects to suspension of sentence, basis that the testimonies of the victim and her parents are substantially consistent and corroborative and that the cross examination did not shake the veracity of the testimonies. Further, victim has categorically affirmed that sexual assault was continuing for a long time as the accused was a regular visitor to the victim’s house, also being her neighbor and like her maternal uncle. Considering the tender age of the victim, the 15-year age difference between the appellant and the victim, and the fact that the appellant has merely completed 2 years out of his 20-year sentence, the sentence may not be suspended. Analysis
13. It is pertinent to note that the submissions of the appellant, as regards the contradiction in the statements made by the victim, have been analyzed, at length, by the judgment of conviction dated 20th October 2023. The Trial Court, noted that the victim, throughout her statements, has maintained that the appellant had indulged in sexual misconduct on repeated occasions. Further, the Court noted that the victim, in her deposition in Court, confirmed that on the day of the present incident, the appellant did not insert his finger in her vagina, however, had done so in the past. She voluntarily stated that, on the day of the present incident, he was “about to” touch her back with his genitals, but in the meantime her father came in.
14. The contentions of the appellant’s counsel as regards the MLC and the FSL, may not come to the aid of the appellant, in light of the statement of the CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 7 of 12 victim herself, that on the day of the present incident, the appellant was “about to” touch her back with his genitals.
15. As regards the door of the jhuggi, the Trial Court, noted the statement of the victim’s father, during his cross-examination, that the way is on the side of the jhuggi and not in front, therefore, no one can see inside.
16. The Trial Court has also noted that the testimony of the victim and her father, are consistent and corroborate each other.
17. The Supreme Court and this Court, have consistently held that the statements made by victims of sexual assault cannot be faulted, basis minor contradictions: i. State of H.P. v. Sanjay Kumar (2017) 2 SCC 51: “31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 8 of 12 is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P. [Bhupinder Sharma v. State of H.P., (2003) 8 SCC 551: 2004 SCC (Cri) 31] ). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” (emphasis added) ii. Phool Singh v. State of M.P. (2022) 2 SCC 74: “11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384: 1996 SCC (Cri) 316], this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience…” iii. Shantanu v State 2023 SCC OnLine Del 7067: CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 9 of 12 “26. It cannot be disregarded that the victim at time of incident was a child of six years and therefore, some leeway has to be provided for minor inconsistencies in her statement…
36. Merely because there have been inconsistencies in the statement of the child victim, it cannot be said that her testimony is completely unreliable and should be disregarded in its entirety. It is to be noted that the child victim has consistently stated in her testimony as well as various previous statements that she was touched in the anal region by the appellant and the touch caused her pain...” iv. Ranjeet Kumar Yadav v. State (NCT of Delhi) 2023 SCC OnLine Del 4867: “17. In my considered view, the statement of the victim recorded under Section 164 of the CrPC cannot be read in isolation and has to be considered in totality of the given facts and circumstances and due weightage has to be given to the age of the victim, which was four and a half years at the time of the incident. There is no doubt that the victim has been consistent in all her other statements and has unequivocally stated that the appellant had inserted his finger in her private parts. In fact, in her testimony before the Court she went on to say that this act had caused her a lot of physical pain. Thus, the contradiction in her statement under Section 164 of the CrPC is of a minor character and does not make her testimony unreliable. The Trial Court has correctly observed that the victim was very young at the time of the incident and minor contradictions cannot be a ground to disbelieve her testimony.”
18. At this juncture, it is pertinent to advert to the decision of a co-ordinate Bench of this Court in Dharmander Singh v. State (NCT of Delhi) 2020 SCC CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 10 of 12 OnLine Del 1267, wherein it was observed as under:
CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 11 of 12 j. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence: an innocent, though unholy, physical alliance may be looked at with less severity; k. whether it appears there was tacit approval-in-fact, though not consent-in-law, for the offence alleged; l. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise; m. other similar real-life considerations.
78. The above factors are some cardinal considerations, though far from exhaustive, that would guide the court in assessing the egregiousness of the offence alleged; and in deciding which way the balance would tilt. At the end of the day however, considering the myriad facets and nuances of real-life situations, it is impossible to cast in stone all considerations for grant or refusal of bail in light of section
29. The grant or denial of bail will remain, as always, in the subjective satisfaction of a court; except that in view of section 29, when a bail plea is being considered after charges have been framed, the above additional factors should be considered.”
19. Factors propounded by this Court in Dharmander Singh (supra) are instructive. Applying aforementioned factors to the present case, it is pertinent to note that: firstly, victim was of a tender age of 9 years at the time of commission of the alleged offence; secondly, age of the appellant at the time of incident was about 24 years; thirdly, age difference between the victim and the appellant is about 15 years; and fourthly, victim and appellant reside in the same neighbourhood, and the latter was like a maternal uncle to the former; fifthly, as noted by the Trial Court, the testimonies of PW-1, the victim and PW-4, the father, are consistent; sixthly, since there was a proximity between the appellant and the family of the victim, and it was quite CRL.M.(BAIL). 549/2024 in CRL.A. 297/2024 12 of 12 possible that the victim chose not to inform her parents about consistent sexual advances by the appellant. She had also, specifically stated that he used to threaten her to not report about the sexual advances since his brother was in the police.
20. Considering the aforesaid position of law, and the facts and circumstances of the present case, and that the petitioner has merely served 2 out of 20 years of the sentence awarded to him, this Court does not find it a fit case for suspension of sentence.
21. The application is dismissed, accordingly.
22. Judgment be uploaded on the website of this Court.
JUDGE DECEMBER 16, 2024/MK/kp