Jitender v. State

1. Appellant impugns order on conviction dated 08.01.2019 and order on sentence dated 23.02.2019, whereby the appellant has been convicted for an offence under Section 8 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) and sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs. 15,000 and in default to further undergo a simple imprisonment for a period of six months.

2. Case of the prosecution is that FIR No. 505/2015 under section 354 Indian Penal Code and Section 8 POCSO Act, Police Station: 2020:DHC:1757 Mundka, was registered pursuant to a complaint lodged by the prosecutrix.

3. It is alleged that on 03.10.2015 when the prosecutrix aged 13 years was watching television in her veranda, appellant who was a tenant at her house, after fetching water from her kitchen, came and sat next to her and started to watch a cricket match. After about ten minutes he pressed her breasts and she thereafter shouted and her mother, who was in the adjoining room and caught hold of the Appellant and police was called.

4. Prosecution in support of their case examined as many as 5 witnesses.

5. The trial court after considering the submissions made by the parties and on perusal of material on record held that: “27. The prosecution is successful to establish the facts beyond reasonable doubts through the testimony of PW[1], the prosecutrix corroborated through her previous versions given to the police in her statement Ex.PW1/A and to the Ld. MM In her statement Ex. PW1/B recorded u/s 164 Cr.P.C and also corroborated through the testimony of her mother Ms. S, examined as PW[2], that the accused has committed sexual assault upon her, that leads to one and only one hypothesis that the accused has committed the offence of sexual assault upon the prosecutrix of the age of 13 years, as described u/s 7 &punishable u/s 8 of POCSO Act.”

6. It is submitted by learned counsel for the Appellant that Appellant has been falsely implicated and the trial court has erred in convicting him for offence under section 8 POCSO Act.

7. It is submitted that the family of the prosecutrix has roped the Appellant into a false case. It is alleged that the Appellant had a quarrel with the mother of the prosecutrix regarding increase of rent. Further, it is submitted that it is highly improbable for the Appellant, who was a tenant, to sexually harass the daughter of the landlord, while the parents of the prosecutrix were present in the room right next to the veranda where the incident is alleged to have taken place.

8. It is contended by the learned counsel for the Appellant, that the brother and the father of the prosecutrix were not examined and no public witness was produced. Further, it is submitted that there is discrepancy in the statements made by the prosecutrix. It is alleged that the prosecutrix at first deposed that appellant touched her chest and later it was changed to pressed her chest.

9. Trial Court has noted that the entire prosecution case was based on the testimony of the prosecutrix (PW[1]). It has been held by the Trial Court that the versions of the prosecutrix; in her testimony before the court, her statement under section 164 Cr.P.C and in her complaint, are consistent regarding the allegations of sexual assault.

10. Further, it is held that the version of PW[1] was corroborated by the testimony of the mother of the prosecutrix who was examined as PW[2], thereby proving the allegations of sexual assault.

11. Trial Court, in the impugned judgment, has noted the provisions of Section 29 of POCSO Act, which stipulate that in case a person is prosecuted for committing, abetting, attempting to commit offence under section 3,5,[7] & 9 of POCSO Act, court shall presume that such person has done so, unless contrary is proved.

12. Trial Court has taken into account the testimony of DW[1] who deposed regarding an alleged quarrel between the Appellant and the mother of the prosecutrix regarding increase of rent. Trial Court has held that Appellant could not prove anything contrary to the case of the prosecution and further there was no reason to disbelieve the version of the prosecutrix.

13. Trial court has relied on the decision of the Supreme Court in Narender Kumar vs. State (NCT of Delhi) (2012) 7 SCC 171, wherein the Supreme Court has held that: “ 20. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.”

14. Trial Court on appreciation of the evidence of the child victim observed that the prosecutrix in her testimony as PW[1] is consistent with her versions given in her complaint Ex. PW1/A and her statement Ex. PW1/B recorded under section 164 Cr.P.C.

15. In her testimony before the Trial Court, the prosecutrix deposed as under: “On 03.10.2015, 1 had my birth day on that day and at about 10.30 pm, I was watching TV and lying down in gallary ( Veranda), at that time, our tenant Jitender came there for taking water and after taking the water he sat there for watching TV as the Cricket match was going on in the TV. He sat near me and started pressing my breast. I shouted then my mother came and caught hold of Jitender and called the other members of the family. My mother called the police at 100 number. Police came and inquired from me. I gave my complaint to the Police.”