Full Text
HIGH COURT OF DELHI
JUDGMENT
MOHD AZIZUL ..... Petitioner
Through: Mr. Sumeet Verma, Mr. Amit Kala, Mr. Mahinder Pratap Singh, Advs.
Through: Mr. Sanjiv Sabharwal, APP for State, SI Rohit, PS Hazarat Nizamuddin
1. This is a petition filed seeking setting aside of the impugned judgment dated 24.09.2019 and order on sentence dated 10.10.2019 passed by ASJ-07, Special Court, POCSO Act, South East District, Saket Courts, Delhi in FIR No. 106/2014, P.S. Hazarat Nizamuddin u/s 6 POCSO Act, case titled „State Vs. Mohd. Azizul‟ wherein the Applicant has been found guilty under Section 6 of the POCSO Act and was sentenced to R.I. for 14 years and fine of Rs. 10000. In addition, since the fine was not paid, he was further directed to undergo simple imprisonment of 6 months.
2. The brief factual matrix is as under: 2.[1] As per the prosecution victim baby „R‟ used to reside along with her family at Jhuggi No. 114, Nizam Nagar Basti, Hazrat Nizammudin, New Delhi. She has 3 siblings and her parents were running a tea shop from a place near their Jhuggi. The accused was a vagabond who used 2022:DHC:3077 to sleep on the pavements near the tea shop. 2.[2] On 13.03.2014, around lunch time, the mother and the father were attending to their tea shop and the victim was playing in the park behind the shop. Around 1.30pm on the same date, the mother of the victim left the tea shop for buying food for her children from a nearby hotel while her husband was minding the shop. It is then alleged by the prosecution that the victim remained unsupervised at the park and taking advantage of the same, the accused appellant committed penetrative sexual assault upon her. After being subjected to penetrative sexual assault, the victim came weeping at the tea shop with two 10 rupee notes in her hand. 2.[3] On noticing this, the father made inquiries from the victim and she pointed towards the accused who was seen sleeping near the shop. The victim disclosed that the accused had „beaten‟ her and given her the currency notes. The father of the victim observed that the underwear of his daughter was wet and he could make out that she had been sexually assaulted. He confronted the accused and started beating him. 2.[4] In the meantime, the mother returned from the hotel and on seeing her husband beating the accused, she made inquiries from her husband and came to know about the alleged incident. The mother took her daughter in her lap and her daughter pointed towards the accused and disclosed that he had removed her underwear and also had beaten her. She observed that the underwear of her daughter was completely wet with semen and her clothes were sticky and dirty. She observed redness on the vagina of the victim. On finding that their daughter had been sexually assaulted by the accused, the parents went to the police station and reported the matter. 2.[5] The police collected the evidence and subsequently the same was sent for analysis and preparation of FSL report.
3. After analysing the documents, evidence and arguments of the parties, the Sessions Court was of the view that on 13.03.2014, between 01:00 PM and 02:00 PM, accused i.e. the appellant committed penetrative sexual assault upon the victim by inserting his penis in her vagina. The victim was less than 12 years of age at the time of offence and therefore, the penetrative sexual assault falls under the category of aggravated penetrative sexual assault as defined under Section 5(m) of the POCSO Act.
4. The learned Sessions Court further on the basis of the findings sentenced the appellant to undergo rigorous imprisonment for a period of 14 years and fine of Rs. 10,000/- for committing the offences u/s 6 of the POCSO Act.
5. It is this judgment dated 24.09.2019 which has been challenged by the appellant before me.
6. It is submitted by Mr. Verma, learned counsel for the appellant that the present case is devoid of the testimony of the prosecutrix/victim as the victim has neither been interrogated nor examined by the prosecution. 6.[1] He submits that the prosecution solely relies upon the testimony of the parents of the victim PW-2 and PW-3 who are not ocular witnesses but have deposed regarding their impression of the alleged incident. Even PW-2 and PW-3 have not deposed about any penetration in the vagina and they have only learnt from the victim that the appellant had allegedly „beaten‟ her. 6.[2] He states that the Sessions Court has wrongly held that „beating‟ can be treated as penetrative sexual assault upon the victim. 6.[3] He further relies upon the 164 statement of the mother of the victim dated 14.03.2014 i.e. exhibit PW-3/B as it totally negates any penetrative sexual assault as she stated that the man could not enter the victim and did everything outside. 6.[4] He submits that even the rukka dated 13.03.2014 (exhibit PW-3/A) recorded on the complaint of the mother of the victim that there was no penetrative sexual assault. 6.[5] Mr. Verma further states that medical evidence does not endorse the prosecution version. The MLC (exhibit PW-7/B) records: „no bleeding‟, „minimal discharge‟, „no injury marks Present on labia majora and minora‟. The conclusion of FSL report (Ex. PW- 8/B) dated 31.07.2015 reads as under: „DNA profile generated from the source of exhibit ‘4’ (i.e. underwear of victim) could not be matched as DNA profile could not be generated from the source of exhibit ‘9’ (i.e. Blood in gauze of accused).‟ 6.[6] Relying on the above, the learned counsel for the petitioner submits that a combined reading of the MLC with FSL shows that there is a complete mis-construing of the medical evidence on record and the gynaecological examination unambiguously negates penetration of the vagina. 6.[7] The counsel further submits that presumptions u/s 29 and 30 of the POCSO against the appellant requires that the prosecution has to first prove foundational facts by leading evidence before the presumptions can come into play. It is only thereafter that the onus shifts on the accused to lead evidence to rebut the presumption. 6.[8] Lastly, he argues that semen was found on the underwear of the victim but the same could not be matched with DNA profile of the accused in the first FSL report and subsequent testing had to be carried out.
7. He further relies on the following judgments: 7.[1] Firstly, on the judgment of Altaf Ahmed v. Rahul @ State [CRL. A. 474/2020, Delhi High Court, dated 03.12.2020] to state that before the presumption under Section 29 of the POCSO Act can come into, the prosecution has to establish the foundational facts by leading evidence. The relevant para is as under:
7.[2] Secondly, on the judgment of Abhay Singh v. State [CRL. A. 968/2015, Delhi High Court dated 26.07.2017] wherein it was observed:
7.[3] Lastly on the judgment, Ragul v. State by Inspector of Police, Nallipalayam Police Station [CRL. A. No. 391/2016, The High Court of Judicature at Madras, dated 21.09.2017] wherein the High Court held the following:
8. Per contra, Mr. Sabharwal, learned APP, appears for the State and argues that a bare perusal of the FIR which was recorded on the victim‟s mother‟s statement alleges rape committed by the Appellant. 8.[1] He relies upon the judgment of Rakesh @ Diwan v. State [CRL. A. 454/2020, Delhi High Court, dated 10.08.2021] that:
24. In the statement recorded under Section 164 Cr.P.C, the mother of the victim mentioned that accused disclosed that he tried to penetrate the vagina of the victim but could not succeed. She has mentioned that accused could not succeed in inserting his penis in the vagina of the victim. This aspect was considered by the High Court of Delhi in the decision in "State (Govt. of NCT of Delhi) Vs Khursheed" 2018 (251) DLT 498 DB. In para-67 of this judgment, the High Court referred to the medico-legal literature and made reference to Parikh's Text Book of Medical jurisprudence, Forensic Medicine and Toxicology-6th Edition (page 5.38) authored by Dr. C.K.Parikh wherein it was observed, "in young children, as the vagina is very small and hymen deeply situated, the adult penis can not penetrate it. In rare cases of great violence, the organ may be forcibly introduced, causing rupture of the vaginal vault and associated visceral injuries. Usually, violence is not used and the penis placed either within the vulva or between the thighs and as such, only redness and tenderness of the vulva may be caused. The hymen is usually intact There may be no sign or very Jew signs of general violence, since the child has no idea of the act, is also unavailable to offer resistance". In para-74 of the judgment, the Court referred to a Text Book of Medical Jurisprudence & Tixicology-24th Edition (page 668) authored by Sh. Jai Singh P. Modi wherein it was observed that in small children, hymen is not usually ruptured but may become red and congested along with inflammation and bruising of the labia. Thus, the absence of injury in the vagina of the victim and the fact that the hymen was not torn does not suggest that penetrative sexual assault was not committed upon the victim.
25. Much emphasis has been placed by the defence on the argument that there are infirmities in the investigation. It has been argued that police has failed to join an independent witness during the investigation. Defence has also challenged the authenticity of the site plan and the arrest memo of the accused. I am not impressed with these arguments. The argument about the absence of independent witness is absurd. It is a matter of common understanding that crimes like these are committed in isolated spots. The accused would have chosen an isolated spot where no one could have seen him committing penetrative sexual assault upon the victim. In view of this, it would be grossly unfair to look for corroboration from an independent public witness. Admittedly, there are some infirmities in the investigation but the accused does not stand to gain advantage because of these infirmities. The testimony of the parents of the victim can not be discarded merely because Investigating Officer has failed to carry out meticulous investigation. Investigation appears to have been done in a fair manner. The testimony of the parents of the victim, which finds corroboration from the forensic evidence, is more than sufficient to bring home the charges against the accused.
26. The argument that the testimony of the parents of the victim amounts to hearsay is erroneous. Admittedly, there is no eye-witness of the incident except the victim herself who was just 3 years old at the time of offence. The defence has not disputed the age of the victim. It is a matter of common understanding that child at such an age is hardly in a position to speak properly. The child at such a tender age does not even understand what actually has happened with her; She can explain and communicate the facts only by gestures and that too to a small extent. The father of the victim has deposed that her daughter came weeping to the tea shop and she was holding 20 rupees in her hand. He has stated that he made inquiries from her daughter and her daughter pointed towards the accused and she stated that accused gave her 20 rupees and gave beatings to her. The victim did not understand how to convey about the penetrative sexual assault to her parents. She had a small vocabulary and therefore, she conveyed to her parents that accused gave beating to her. By stating this, she definitely meant that accused had committed penetrative sexual assault upon her. The father of the victim has mentioned that the undergarments of her daughter were wet. The mother of the victim has also stated that the undergarments of her daughter were wet. She has mentioned that the discharged semen of the accused was present on the genitalia and the undergarments of her daughter. I am of the considered opinion that the testimonies of the parents of the victim does not fall under the category of hearsay. They have deposed what they actually saw at the time of incident. They have given an honest and actual account of the incident. Their testimonies are coherent and reliable. The witnesses have not tried to make any improvement in their versions. Both have corroborated and supported the version of each other. Their testimonies are relevant and admissible.” 8.[4] He submits that the DNA profile generated from the sample of the accused was similar to the DNA profile generated from the underwear of the victim in the second FSL report. 8.[5] Additionally, the statement of the mother of the victim recorded under section 161 CrPC and the statement of the father of the victim recorded under section 161 CrPC was similar and not contradicting with each other. 8.[6] He also submits that at the time of the penetrative sexual assault, the victim was just 3 years old and the chances of injuries being found on the private part was remote. The FSL report established that the semen of the accused was found on the undergarment of the victim. The FSL report is a conclusive piece of evidence. He relies on the Delhi High Court judgment of The State Govt. of NCT of Delhi v. Khursheed [2018 SCC OnLine Del 10347] wherein it was held:
9. I have heard the learned counsel for the Appellant and the Ld. APP on behalf of the State and perused the judgments relied upon.
ANALYSIS
10. In my analysis, I have to consider the following question: a) Whether the prosecution has laid down foundational facts indicating aggravated penetrative sexual assault as punishable under section 6 of POCSO Act?
11. From the arguments, documents and evidence the following emergesa) The age of the victim at the time of the incident was 3 years old and this fact is not under dispute. b) While the FIR on the statement of the mother states that there was rape, the 164 statement of the mother states that there was no penetration. c) Additionally, the MLC of the victim states: „no bleeding‟, „minimal discharge‟, „no injury marks Present on labia majora and minora‟. d) Also, the child victim was not examined and her description of the incident was that she was „beaten‟ by the Appellant. e) The second FSL does match the DNA of the Appellant with the semen found on the underwear of the victim.
12. It emerges from the above stated facts that while there was sexual assault, the statements and the MLC raise a doubt w.r.t. penetration.
13. The prosecution has not laid down the foundational facts regarding penetration as per section 29 of the POCSO Act and the said fact is rebuttable.
14. The case law relied upon by the counsel of the Appellant, Altaf Ahmed @ Rahul (Supra) state that the presumption under Section 29 of POCSO is rebuttable at the instance of the accused.
15. I am of the opinion that while the Appellant assaulted the victim, no penetration took place. It cannot be denied that there was an attempt to rape by the presence of semen on the underwear of the victim, however, the MLC and the statement of the mother under 164 CrPC indicate that there was no penetration. The mother herself states that the Appellant was not able to penetrate in her 164 statement. I understand and sympathise that a 3 year old may not be called to court for her examination, and her vocabulary and her understanding of the situation itself would fall short of describing the incident, clearly and in its entirety, however, without presence of any evidence or testimony alleging penetration, the Appellant cannot be held liable/guilty under Section 6 of the POCSO.
16. Section 7 of the POCSO Act describes sexual assault as follows:
17. Therefore, without penetration it was only an attempt to rape or aggravated sexual assault as per Section 9(m) of the POCSO Act as the ingredients to prove an intent to commit rape has been proved before the trial court and not successfully rebutted by the Appellant herein. However, the prosecution did not successfully prove the foundational fact that there was penetration by the Appellant. Hence, it is a case of aggravated sexual assault and the present accused should have been convicted under Section 9 of the POCSO Act and sentenced under section 10 of the POCSO Act.
18. In this view of the matter, the appeal is partly allowed and the sentence under Section 6 of the POCSO Act is overturned. The Appellant is now convicted for the offence punishable under Section 9 of the POCSO Act and sentenced under section 10 of the POCSO Act. As per the Nominal Roll, the Appellant has undergone roughly 8 years and 8 months of his sentence. The Appellant has already undergone the maximum sentence provided for the offence and is thus directed to be released forthwith unless required in any other case.
19. Therefore, the Appellant be released from jail.
20. The Appeal is partly allowed in the above terms.
21. A copy of this judgment be communicated by the Registry to the concerned Jail Superintendent immediately.