Rinku @ Ram Prasad v. State

7. The minor child through her testimony was categorical to the effect that the person who committed rape on her was the accused. On behalf of the appellant, it was contended that it was a case of mistaken identity, in as much as the child in the first statement given to her mother had told her that a tall boy who lived in the same area where they lived had forcibly picked her up in his arms and had taken her into the bushes in front of the lane and had committed a wrong act with her and had first taken of his under wear and the minor child’s underwear and then inserted his penis into her vagina and thus she had started shouting, then he left her and ran away and it was thus submitted on behalf of the appellant that even though, the minor child victim stated that the person lived in the area where the minor child victim lived, the name of the appellant was not given by the child nor was it mentioned in the FIR and rather through the FIR, the complainant i.e. P, the mother of the minor child victim had stated that some unknown boy had committed rape on her child.

8. In relation to this aspect, it is essential to observe that through her statement recorded under Section 164 of the Cr.P.C. on 24.10.2016, the mother of the victim i.e. C had clearly given the name of the appellant as being the person who had taken away her child into the bushes and raped her, in as much as she stated that she had taken her child i.e. the victim C to the Jag Jeevan Hospital and she was medically examined and there a girl named Z asked some questions to her daughter i.e. to the minor child victim C who had named the accused i.e. the appellant herein Rinku who also named as Jaanu Ka Chacha who had picked her up and had taken her and had committed a wrong act with her through the susuwala Raasta.

9. The minor child victim C through her statement under Section 164 of the Cr.P.C. dated 27.10.2016 had also categorically stated to the effect that she was burning some fire and taking some heat and then Jaanu ka chacha came, whose name was Rinku and picked her up in his arms, took her to the jungle and then caused her pain in her vagina and blood came out and took off her underwear and also his underwear and again caused her pain and the child pointed towards her vagina and also stated that the accused i.e. the appellant put his finger into the same and then also put his penis into her vagina.

10. The minor child examined as PW-3 whose testimony has also been adverted to hereinabove, categorically identified the accused person in the Court from the wooden partition as being the person who had committed the aggravated penetrative sexual assault on her and the minor child victim has also categorically stated even through her statement made in the Court on 13.12.2017 that the person who had picked her up and took her away and had committed the offence of penetrative assault on her was the person known as Jaanu Ka Chacha. As is well settled the statement of the minor child would suffice when held trustworthy (which it is so held in the facts and circumstances of the instant case) to incriminate and bring forth the charge of allegations that was framed against the appellant on 29.04.2017 of the commission of the offences punishable under Sections 366 of the Indian Penal Code, 1860 and Section 5(m) of the POCSO Act punishable under Section 6 of the POCSO Act, 2012.

11. Through his statement under Section 313 of the Cr.P.C., 1973, the accused i.e. the appellant herein has not refuted that he is the Jaanu Ka Chacha and only claims that he has been falsely implicated in the matter, in as much as there were no talking terms between his family and the victim’s family. The accused had also stated through his statement under Section 313 of the Cr.P.C., 1973 that the victim had been tutored and had earlier stated that the person who had committed the offence upon her was “ek lamba ladka” i.e. a tall boy and that he himself was a short heighted person. During the course of the submissions that were made on behalf of the accused i.e. the appellant herein, it was submitted that the appellant was 5 feet in height. Taking into account the factum that the prosecutrix is a minor who was of 5 years of age at the time of the commission of the offence, the height of 5 feet certainly falls within the ambit of a person being tall for a minor child.

12. The circumstances of the instant case thus, do not in any manner bring forth that the identity of the appellant is in any manner in dispute and taking into account the factum that the child through her first statement under Section 164 of the Cr.P.C., 1973 had stated that the person who committed the aggravated penetrative sexual assault on her was Jaanu ka Chacha, taking into account the factum that the prosecutrix identified the accused i.e. the appellant before the Trial Court as being that person who committed the said offence on her and taking into account the factum that the prosecutrix through her testimony coupled with the factum that the prosecutrix through her statement before the Court stated that the person who committed the offence on her was that Jaanu ka Chacha, it becomes apparent that the identity of the appellant as being the sole perpetrator of the crime committed on the minor child, has been established beyond a reasonable doubt and to the hilt.

13. The demeanour of the minor child as observed by the learned trial Court that the child victim on seeing the accused from the wooden partition when she correctly identified them seeks volume against the accused/appellant and establishes the identity of the accused i.e. the appellant herein of being the perpetrator of the crime.

14. As regards, the contention raised on behalf of the appellant that there have been varying statements made by the minor child, it is essential to observe as laid down by the Hon’ble Division Bench of this Court in CRL. REF. No. 2/2016 titled as “COURT ON ITS OWN MOTION VS. STATE”, wherein it has been observed vide paragraph 84 to the effect:- “84. Where children are concerned, the disclosure normally would tend to be a process, rather than a single incident or episode. It would take multiple interviews for an investigator or an interviewer to even establish trust in the mind of the child. Unfortunately, we have been unable to evolve any guidelines with regard to investigation and prosecution of cases of child sexual abuse which are the subject matter of POCSO Act, 2012, though the Central Government has suggested the following in the POCSO Model Guidelines: “The dynamics of child sexual abuse are such that often, children rarely disclose sexual abuse immediately after the event. Moreover, disclosure tends to be a process rather than a single episode and is often initiated following a physical complaint or a change in behaviour. In such a situation, when the child finally discloses abuse, and a report is filed under the POCSO Act, 2012 more information will have to be gathered so that the child’s statement may be recorded.” Information so obtained will become part of the evidence. However, given the experience that the child has gone through, he is likely to be mentally traumatised and possibly physically affected by the abuse. Very often, law enforcement officers interview children with adult interrogation techniques and without an understanding of child language or child development. This compromises the quality of evidence gathered from the child, and consequently, the quality of the investigation and trial that are based on this evidence. The interviewing of such a child to gather evidence thus demands an understanding of a range of topics, such as the process of disclosure and child- centred developmentally-sensitive interviewing methods, including language and concept formation. A child development expert may therefore have to be involved in the management of this process. The need for a professional with specialized training is identified because interviewing young children in the scope of an investigation is a skill that requires knowledge of child development, an understanding of the psychological impact sexual abuse has on children, and an understanding of police investigative procedures. Such a person must have knowledge of the dynamics and the consequences of child sexual abuse, an ability to establish rapport with children and adolescents, and a capacity to maintain objectivity in the assessment process. In the case of a child who was disabled/ physically handicapped prior to the abuse, the expert would also need to have specialised knowledge of working with children with that particular type of disability, e.g. visual impairment, etc.”, which thus brings forth clearly that merely because the minor child has given varying statements at different stages of the investigation and the trial, the same cannot suffice to detract from the veracity of the statement made by the minor prosecutrix. Furthermore, though undoubtedly, the testimony of the minor prosecutrix C is the testimony of the victim C alone and in view of the observations in response to question no.2 answered in this Criminal Reference No.2/2016 to the effect:- “Q.No. 2: What is the permissibility and legality of recording of multiple statements/versions of a victim of sexual assault, both women and children, by an investigating officer/judicial officer?

(i) The law allows the investigating agencies to record multiple statements of the victims. There is no prohibition on recording multiple statements by the police.

(ii) A seemingly contradictory initial account is not a reason in itself to disbelieve the subsequent accounts by the victims. The multiple statements placed by the investigating agency should be carefully scrutinized by the Trial Courts in order to ensure that complete justice is done.”, it is thus apparent that even seemingly contradictory initial accounts are not a reason in themselves to disbelieve the subsequent accounts made by the victims and it is for the Court to scrutinize the multiple statements that have been made by the victims especially of the child carefully in order to ensure that complete justice is done.

15. As regards the aspect of the lack of corroboration to the testimony of the minor prosecutrix, it is essential to observe as laid down by the Hon’ble Division Bench of this Court in “Baljeet Singh & Ors. Vs. State of Delhi and Ors.” in Crl.A.386, 486, 487 and 1080/ 2011, the competency of a child witness to give evidence is not regulated by the age but by the degree of understanding he/she appears to possess. The observations of the Hon’ble Division Bench of this Court in “Baljeet Singh and Ors. Vs. State of Delhi and Ors.” (supra) in paragraphs 88, 89 & 90, which read to the effect:- “88. We think that, under the circumstances of this case, the disclosures on the voir dire were sufficient to authorize the decision that the witness was competent, and therefore, there was no error in admitting his testimony. Thus the general principles of appreciating the child witness having regard to Section 118 of the Evidence Act aptly transpire that the evidence of a child witness has to be subjected to the closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the questions put to him and he is capable of giving rational answers.

89. Children are the most vulnerable faction of the society and by reason of their tender age definitely are considered to be a pliable witnesses. There is no denying the fact that each child is different and possesses varied level of interests and intellect. In today's fast paced world, where children are exposed to media, one cannot doubt their cognition levels. Not every child possesses sufficient understanding of nature and the consequences of his acts, but the same cannot negate the intellect capabilities of those who can, very well grasp the state of affairs and maintain a vision of the same in their minds.

90. One of the issues marring the growth of our country is the evil of child sexual abuse which we hear very often. The POCSO Act, 2013 was therefore formulated in order to effectively address the heinous crimes of sexual abuse and sexual exploitation of children. There lies no iota of doubt that it takes great amount of grit and courage to distinctly explain the horrendous incident that a child is made to go through because of certain ruthless section of the society. A child however even at a tender age does possess the ability to answer the questions put to her/ him spontaneously if she/he was present at the site of crime or if he/ she has been a victim herself. It is even the courts duty to be sensitive towards the child as the courtroom proceedings are alien to him and it may have a more stressful and terrifying effect which may create a fear in his mind rendering him unable to speak about the incident. It is for the court to adjudge the grasping abilities of children, their tendency to fantasise and their susceptibility to coaching, which are certain factors that need careful examination on case to case basis. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Careful evaluation of the evidence of a child witness in the background of facts of each case in context of other evidence on record is inescapable before the court decides to rely upon it.”, are thus germane and relevant in the facts and circumstances of the instant case.

16. It is essential to observe that in the instant case the minor child witness is not a mere witness but is the victim herself and in such circumstances, it is apparent that her testimony is a vivid account of whatever took place with her. The verdict of the Hon’ble Supreme Court in “Nivrutti Pandurang Kokate and Ors. Vs. State of Maharashtra” AIR 2008 SC 1460 categorically observes to the effect:-

17. The facts and circumstances of the instant case clearly point out that the minor child victim C examined as PW-3 was picked up by the accused i.e. the appellant herein and was taken into the bushes wherein, he had taken off his underwear and taken off the child’s underwear and the accused i.e. the appellant herein inserted his penis into her vagina, as a consequence of which she bled profusely and on the child having screamed and shouted, he left and ran away. In the circumstances, the commission of kidnapping of the minor child by the accused i.e. the appellant herein from outside her house at X from the local guardianship of her parents and of having taken her to the Jhuggis of the area Y with intent that she may be compelled for illicit intercourse and of the appellant thereby thereafter having committed aggravated penetrative sexual assault upon the minor child aged 5 years at the time of the offence as established by Ex.PW4/B i.e. the birth certificate of the minor child giving her year of birth to be 2011 under Section 5(m) of the POCSO Act, 2012 punishable thus under Section 6 of the POCSO Act, 2012, stands established beyond a reasonable doubt.

18. As regards the contention that had been raised on behalf of the prosecutrix that Ms. Z mentioned in the statement of the mother of the prosecutrix i.e. the counselor had not been cited as a witness nor examined by the Investigating Agency, it is essential to observe that as answered vide the CRL.REF. No.2/2016 in response to question no.1, which reads to the effect:- “Q.No. 1: What is the legality of recording a statement or version of the incident enumerated by a victim of sexual offence by an NGO or a private counsellor and filing of such statement or counselling report along with a chargesheet before the trial court under Section 173 of the Cr.P.C.?

(i) A statement under the POCSO Act can be made only to a police officer or a magistrate, and;

(ii) Provisions of the POCSO Act or the JJ Act do not contemplate any report to be made by a counsellor. It further makes it explicitly clear that counselling report/notes of the counsellor (as well as any person or expert recognized under the POCSO Act and Rules of 2012 and the JJ Act) are confidential in nature and the same cannot be made a part of the chargesheet or otherwise on the trial court record.”, it is thus apparent that the counseling report/notes of the counselor are confidential in nature and cannot be made a part of the charge sheet or otherwise in the Trial Court Record and thus, in these circumstances, the non-production of the counselor as a prosecution witness does not detract from the veracity of the prosecution version.

19. In the facts and circumstances of the instant case, the records bring forth that the learned Trial Court has carefully scrutinized the entire available record to arrive at the conclusion in believing the testimony of the minor prosecutrix and there is no reason not to believe her testimony that the appellant herein was the sole perpetrator of the commission of the crime.

20. In view thereof, it is apparent that there is no merit in the appeal, in as much as the testimony of all the prosecution witnesses, are consistent and cogent in relation to all material particulars.

21. In the circumstances, the conviction of the appellant for the proved commission of the offences punishable under Section 366 of the Indian Penal Code, 1860 and Section 6 of the POCSO Act, 2012 is established and the appellant has been rightly so convicted by the learned Trial Court vide judgment dated 22.03.2019.

22. The learned Trial Court taking into account the age of the appellant being 30 years, with the responsibility of an old aged mother and previous clean antecedents has apparently already taken a lenient view by imposition of only a sentence of Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.10,000/- and in default of the payment of the fine to further undergo Simple Imprisonment for a period of six months. Thus, in the facts and circumstances of the instant case, there is no ground for variance of the sentence imposed vide the impugned order on sentence dated 23.03.2019 also.

23. However, in terms of the verdict of Supreme Court in Phul Singh Vs. State of Haryana in Criminal Appeal No. 506/1979 decided on 10.09.1979 and directions laid down by us in Sanjay vs. State 2017 III AD (Delhi) 24¸ dated 20.02.2017 so that the "carceral period reforms the convict" as also reiterated by this Court in Randhir @ Malang vs. State Crl. A. No.456/2017, Chattu Lal vs. State Crl.A. No.524/2017, Afzal vs. State (Govt. of NCT of Delhi) Crl.A. No.996/2016, Billo Vs. State NCT of Delhi in Crl. A.378/2017 & Dinesh Chand Vs. State (Govt. of NCT of Delhi) in Crl.A. No.330/2018, it is essential that the following directives detailed hereunder are given so that the sentence acts as a deterrent and is simultaneously reformative with a prospect of rehabilitation.

24. The concerned Superintendent at the Tihar Jail, New Delhi where the appellant shall be incarcerated for the remainder of the term of imprisonment as hereinabove directed shall consider an appropriate programme for the appellant ensuring, if feasible: • appropriate correctional courses through meditational therapy; • educational opportunity, vocational training and skill development programme to enable a livelihood option and an occupational status; • shaping of post release rehabilitation programme for the appellant well in advance before the date of his release to make him self-dependent, ensuring in terms of Chapter 22 clause 22.22 (II) Model Prison Manual 2016, protection of the appellant from getting associated with anti - social groups, agencies of moral hazards (like gambling dens, drinking places and brothels) and with demoralised and deprived persons; • adequate counselling being provided to the appellant to be sensitized to understand why he is in prison; • conducting of Psychometric tests to measure the reformation taking place and; • that the appellant may be allowed to keep contact with his family members as per the Jail rules and in accordance with the Model Prison Manual.

25. Furthermore, it is directed that a Bi-annual report is submitted by the Superintendent, Tihar Jail, New Delhi to this Court till the date of release, of the measures being adopted for reformation and rehabilitation of the appellant.

26. Vide the order on sentence, the Secretary DSLSA, North West had been directed to consider the grant of adequate compensation to the victim after considering the nature of the offence and the family circumstances, and the report of the Secretary DSLSA in relation to the compensation so paid is also called for qua the aspect of the grant of compensation paid and the matter be put up on receipt of the same.

27. The Member Secretary DSLSA shall ensure that the compensation paid to the minor child shall be in terms of the NALSA’s Compensation Scheme for Women Victims/ Survivors of Sexual Assault/ other Crimes-2018 in accordance with the guidelines as directed vide the order dated 05.09.2018 of the Hon’ble Supreme Court in “Nipun Saxena & Anr. Vs. Union of India & Ors.” in W.P.(C) No.565/2012.

28. The present appeal and the accompanying application Crl.M. (B)1312/2019 are thus, dismissed.

29. The Trial Court Record be returned with the certified copy of this judgment.

30. Copy of this judgment be supplied to the appellant. ANU MALHOTRA, J. SEPTEMBER 30, 2019