Sunil Sharma v. State (NCT of Delhi) & Anr.

ANALYSIS

16. At the outset, it is relevant to note that while dealing with a challenge to an appeal against judgment on conviction and sentence, in exercise of Appellate Jurisdiction this Court is required to reappreciate the evidence in its entirety and apply its mind independently to the material on record. The Hon’ble Apex Court in the case of Jogi & Ors. v. The State of Madhya Pradesh: Criminal Appeal No. 1350/2021 had considered the scope of the High Court’s appellate jurisdiction under Section 374 of the CrPC and held as under: “9. The High Court was dealing with a substantive appeal under the provisions of Section 374 of the Code of Criminal Procedure

1973. In the exercise of its appellate jurisdiction, the High Court was required to evaluate the evidence on the record independently and to arrive at its own findings as regards the culpability or otherwise of the accused on the basis of the evidentiary material. As the judgment of the High Court indicates, save and except for one sentence, which has been extracted above, there has been virtually no independent evaluation of the evidence on the record. While considering the criminal appeal under Section 374(2) of CrPC, the High Court was duty bound to consider the entirety of the evidence. The nature of the jurisdiction has been dealt with in a judgment of this Court in Majjal v State of Haryaya [(2013) 6 SCC 798], where the Court held: ‘6. In this case what strikes us is the cryptic nature of the High Court's observations on the merits of the case. The High Court has set out the facts in detail. It has mentioned the names and numbers of the prosecution witnesses. Particulars of all documents produced in the court along with their exhibit numbers have been mentioned. Gist of the trial court's observations and findings are set out in a long paragraph. Then there is a reference to the arguments advanced by the counsel. Thereafter, without any proper analysis of the evidence almost in a summary way the High Court has dismissed the appeal. The High Court's cryptic reasoning is contained in two short paragraphs. We find such disposal of a criminal appeal by the High Court particularly in a case involving charge under Section 302 IPC where the accused is sentenced to life imprisonment unsatisfactory.

7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter. Since this exercise is not conducted by the High Court, the appeal deserves to be remanded for a fresh hearing after setting aside the impugned order.’ ” (emphasis supplied)

17. In the present case, the allegations levelled against the appellant are grievous in nature. It is the case of the prosecution that the appellant touched the private part of the victim, who was merely seven years old at the time of the incident, and also attempted to rape her.

18. It is relevant to note that the appellant was charged and has been convicted for the offence under Section 10 of the POCSO Act. The same prescribes the punishment for aggravated sexual assault and attracts the presumption under Section 29 of the POCSO Act. The same reads as under:

19. It is trite law that the said presumption only comes into play once the prosecution is able to establish foundational facts and it can be rebutted by discrediting the witnesses through cross-examination as well [Ref. Altaf Ahmed v. State (GNCTD of Delhi): 2020 SCC OnLine Del 1938].

20. In the present case, the prosecution has sought to establish its case essentially through the evidence of the prosecution witnesses, especially the victim.

21. It is therefore imperative to peruse the statements tendered by the witnesses. In the FIR, it is stated that the appellant had pulled the victim in his room when she was going to take the matchbox from the house of her landlord and closed her mouth. The victim has alleged that the appellant turned off the light and took off her jeans and underwear. She alleged that the appellant took off his pants as well and laid over her. She alleged that in the meantime, her brother came to the room and asked the appellant as to what he was doing after which the appellant wore his clothes and ran away. She stated that she had thereafter told about the incident to her mother.

22. In her statement under Section 164 of the CrPC on 23.12.2016, the victim again reiterated the facts as stated in the FIR. She stated that after dragging her inside his room, the appellant threatened her that he will beat her if she shouted. She stated that the appellant touched her private part. She stated that after her brother came to the spot, he beat up the appellant. She stated that the appellant ’s aunt (chachi) had asked the victim’s brother to not beat the appellant as well.

23. During her examination, the victim (PW[1]) supported the case of the prosecution. She stated that the appellant had touched her private part and laid over her. She also stated that there was no door there. She stated that her brother had come to the spot, turned on the light and removed the curtain. She stated that her brother had also scolded the appellant and beaten him.

24. PW[2] is the mother of the victim. Her evidence is hearsay in nature. She has deposed that the victim had told her about the incident on the same day when she returned from work. She stated that she had made the PCR call and also accompanied the victim for medical examination. She stated that the victim’s statement was also recorded by the police in her presence.

25. PW[3] is the brother of the victim. He deposed that the on the date of the incident, he had asked the victim to bring the matchbox, however, when she did not return back, he went to search for her. He stated that he noticed that the light of the appellant’s jhuggi was turned off and went there on suspecting that his sister might be there. He stated that he saw that the appellant was lying naked over the victim. He stated that the appellant started arguing with him when he asked the appellant what he was doing and ran away from there. He also deposed that the victim had told him about how the appellant had removed her clothes and laid down on her.

26. PW[4] is the Investigating Officer who deposed about the arrest of the accused on identification by the victim, the medical examination of the victim and collection of documents for proof of age of the victim which showed her date of birth to be 08.04.2009.

27. The age of the victim has not been challenged by the appellant in the present case. It has been argued on behalf of the appellant accused that the victim’s evidence suffers from material improvements and the same does not inspire confidence. It has been argued that there are also contradictions between the evidence of the victim and her brother.

28. It is trite law that the accused can be convicted solely on the basis of evidence of the complainant / victim as long as same inspires confidence and corroboration is not necessary for the same. The law on this aspect was discussed in detail by the Hon’ble Apex Court by Nirmal Premkumar v. State: 2024 SCC OnLine SC 260. The relevant portion of the same is produced hereunder: “11. Law is well settled that generally speaking, oral testimony may be classified into three categories, viz.: (i) wholly reliable;

(ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the Court in arriving at its conclusion(s). However, in the third category of cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.

12. In Ganesan v. State[4], this Court held that the sole testimony of the victim, if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused.

13. This Court was tasked to adjudicate a matter involving gang rape allegations under section 376(2)(g), I.P.C in Rai Sandeep v. State (NCT of Delhi)5. The Court found totally conflicting versions of the prosecutrix, from what was stated in the complaint and what was deposed before Court, resulting in material inconsistencies. Reversing the conviction and holding that the prosecutrix cannot be held to be a ‘sterling witness’, the Court opined as under: “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. 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. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” (underlining ours, for emphasis)

14. In Krishan Kumar Malik v. State of Haryana[6], this Court laid down that although the victim's solitary evidence in matters related to sexual offences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient due to identified flaws and lacunae. It was held thus:

and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant.”

15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistences excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.”

29. It is also relevant to note that the victim in the present case is a minor girl who was only seven at the time of the incident and when her statement under Section 164 of the CrPC was recorded. As rightly noted by the learned Trial Court, it is difficult to fathom as to why a young girl of merely seven years of age would make up such a story to falsely implicate the appellant.

30. The Hon’ble Apex Court in the case of State of H.P. v. Sanjay Kumar: (2017) 2 SCC 51 had relied upon the evidence of the child victim who was raped when she was nine years old by her uncle and noted as under:

which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevents such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor-centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long-lasting effects on such victims.

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 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. xxx

33. At this juncture, we would also like to reproduce the following passage from the judgment of this Court in State of Rajasthan v. Om Prakash [State of Rajasthan v. Om Prakash, (2002) 5 SCC 745: 2002 SCC (Cri) 1210]: (SCC p. 755, para 19) ‘19. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well-considered and well-analysed judgment of the trial court on grounds like nonexamination of other witnesses, when the case against the respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwears was wholly insignificant.’ ”

31. The Hon’ble High Court of Calcutta in the case of Animesh Biswas v. State of W.B.: 2023 SCC OnLine Cal 2633 has succinctly summarised the law on evaluation of the testimony of a child victim and observed as under:

applicability, or otherwise, of this presumption, would necessarily depend, to a large extent, on the age of the child. No dividing line can be drawn in such cases; however, one may reasonably presume that a child of the age of four, or thereabouts, would be of an age at which, to questions spontaneously put to the child, the answer would ordinarily be the truth. As against this, the Court is also required to be alive to the fact that children are impressionable individuals, especially when they are younger in age, and are, therefore, more easily tutored. The possibility of a small child, whose cognitive and intellectual faculties are yet not fully developed, being compelled to testify in a particular manner, cannot be easily gainsaid. Even so, the prevalent jurisprudential approach proscribes courts from readily treating the evidence of child witnesses as tutored and, ordinarily, where a child is subjected to sexual assault, her, or his, statement possesses considerable probative value.

35. On the other hand, Hon'ble Apex Court reiterated that one of the cardinal principles to be borne in mind, while assessing the acceptability of the evidence of a child witness, is that due respect has to be accorded to the sensibility and sensitivity of the Trial Court, on the issue of reliability of the child, as a witness in the case, as such decision essentially turns on the observation, by the Trial Court itself, regarding the demeanour and maturity of the concerned child witness. An appellate court would interfere, on this issue, only where the records make it apparent that the Trial Court erred in regarding the child as a reliable witness. Where no such indication is present, the appellate court witness, where the Trial Court has found it to be credible, convincing and reliable. It went onto note that in the present case it is not disputed that the victim (Child witness) was not competent to depose to the facts and was not a reliable witness. Once a child witness, if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words evening he absence of oath, the evidence of a child witness can be considered under Section 118 of the Indian Evidence Act, 1872 provided that such witness is able to understand the answers thereof. (Dattu Ramrao Sakhare v. State of Maharashtra, 1997 Latest Caselaw 447 SC).”

32. On careful examination of the statements of the victim, it appears that while no allegation qua the appellant touching her private parts was made by the victim in the FIR, however, she had alleged the same on the very next day after registration of FIR when her statement under Section 164 of the CrPC was recorded. She had also reiterated the same in her deposition before the learned Trial Court. Her statements are consistent on the point of the appellant dragging her inside his room, taking off her jeans and underwear and also taking off his pants. She has also maintained from the very start that the appellant laid on her after removing his clothes.

33. In the case at hand, as rightly noted by the learned Trial Court, the testimony of the victim’s brother also substantially corroborates and supports the version of the victim. PW[3] has also stated that he found the appellant laying over on the victim naked when he went to his jhuggi. Apart from what was told to him by the victim, the same alone sufficiently suggests that the appellant attempted to rape the victim. There can be no plausible explanation for a grown man to lay naked over a minor girl after disrobing her of her underwear and jeans. Minor discrepancies in regard to presence of door and curtain are not such that cast a doubt over the prosecution’s case.

34. As noted above, while the Court has to be sensitive while considering the statement of a child victim in such cases, the reality of the impressionable nature of children and the possibility of them being tutored cannot be ignored. At the same time, when the learned Trial Court has found the victim to be reliable and when the victim has stuck by her version throughout trial, mere apprehension of the appellant that the victim has been tutored is not enough to disregard the victim’s evidence. The said factor has to be established by either showing motive for false implication or through the evidence of the witness herself.

35. The appellant has raised the defence that he has been implicated due to prior enmity and quarrel between the appellant and the family of the victim. As noted by the learned Trial Court, the appellant has not led any evidence and has been unable to create any doubt through cross-examining the witnesses in this regard. Apart from the bare averments of the appellant, there is nothing to support his defence that he has been falsely implicated due to prior animosity. It has been noted by the learned Trial Court that the appellant took different stands while putting questions to PW[1], PW[2] and PW[3]. The learned Trial Court rightly appreciated that no questions were put about him having caught the victim stealing any money. Thus, the appellant has failed to raise any credible defence.

36. In view of the same, the testimony of the witness inspires confidence and the appellant has been unable to show that the version of the victim is tutored. In such circumstances, the foundational facts stand proved by the prosecution through the evidence of the victim and her brother and the appellant has not been able to create any doubt to rebut the presumption under Section 29 of the POCSO Act.

37. Insofar as the sentence of the appellant is concerned, in the opinion of this Court, the learned Trial Court has rightly appreciated the seriousness of the offence and taken into account that the victim was merely seven years old at the time of the incident while the appellant was a grown man of 37 years of age. This Court finds the quantum of sentence to be proportional with the crime as has been committed by the appellant.

38. In view of the aforesaid discussion, this Court finds no reason to interfere with the impugned judgment and order on sentence.

39. The appeal is dismissed in the aforesaid terms. Pending application stands disposed of. AMIT MAHAJAN, J NOVEMBER 11, 2024