Dinesh Chand v. State (Govt. of NCT of Delhi)

Ans. No. It is wrong to suggest that I had wrongly identified the accused as he was wearing white clothes when apprehended. It is further wrong to suggest that accused has been falsely implicated in this case in connivance of the police. It is wrong to suggest that I had not picked any photograph from the spot and it has been planted by the police. It Is wrong to suggest that I had not gone to the Jagran. Court Question: With whom, you had gone to the Jagran? Ans. With Dad. CQ. Where was the Jagran? Ans. In the park near my house. CQ. Who had organized the Jagaran? Ans. I do not know. CQ. At what time, you had gone to Jagran? Ans. I do not know. CQ. How many persons were there in the Jagran? Ans. Number of persons were there. CQ. What was the accused doing in the Jagran when you had seen him? Ans. He was lighting bidi with matchstick.

7. It is essential to observe that it is only a rule of prudence that the Court always finds it desirable to have the corroboration of the evidence of a child from the testimonies of witnesses and it is not the law that if the witness is a child, his evidence shall be rejected even if it is found reliable. As observed by this Court in “Afzal Vs. State (Govt. of NCT of Delhi)” 2018 X AD (Delhi) 434 and as laid down by the Hon’ble Supreme Court in “Nivrutti Pandurang Kokate&Ors. Vs. State of Maharashtra” AIR 2008 SC 1460, wherein there were observations to the effect:- “The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shapes and molded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.” it is apparent that where the Court comes to the conclusion that there is an impress of truth in the statement of the minor, there is no obstacle in the way of accepting the evidence of a child witness. There is nothing on the record in the instant case to indicate that the minor child examined as PW-3 had in any manner been tutored for even though he stated that he had stated what the ‘police uncle’ told him to state in the Court, he categorically denied that he had identified the accused i.e. the appellant herein on the basis of what the ‘police uncle’ had told him.

8. PW-7 (Z) examined by the State was a child who was playing with the victim (X) as per the prosecution version when the convict herein had asked them to accompany him saying that he would give marbles and the statement of this child recorded on 18.01.2017, which reads to the effect:- “State Vs. Dinesh Chand FIR No.669/13 PS Kalyan Puri 18.01.2017 PW[7] child witness (name correctly told to the court), s/o Sh. D, r/o 1/249, Trilok Puri, Delhi-91 age 9 years, studying in 5th standard. (Proceedings in Child witness room through V/C in camera) The statement of the witness is being recorded through video conferencing. Ms. Payal Raghav, Advocate has been provided as a legal aid counsel to the family of the victim and as a support person. Before recording statement of witness, since he is aged 9 years, to ascertain his competency certain general questions are being put to him.

A. EDMC Primary School, 3 block Trilok Puri Delhi 91.

On the basis of the answers given by the witness he is found to be competent to depose as such. His statement is being recorded without oath. Victim (name correctly told to the court) is my friend since long. Earlier we both were studying in a private school and now we both have taken admission in EDMC Primary School, 3 block Trilok Puri Delhi 91. On 10.11.2013 I along with the victim had gone to a park situated outside our lane in front of an open plot. While we were roaming in the said park one uncle came there and asked us to accompany him saying that he will give us marbles (Kanche). I refused to accompany with that uncle saying that I was not interested in marbles while the victim agreed to accompany with that uncle. Thereafter I returned back home and victim went with that uncle. Next day I along with the victim had gone to a ‘Jagaran’ as the victim told me that the uncle who had offered us marbles on the previous day is also present in that ‘Jagaran’. After reaching there we notices that the uncle was standing in a corner. Thereafter I returned back to my house and victim went to his house. After returning home I told my father about the presence of that uncle in the ‘Jagaran’ and victim also told about this fact to his father. I along with my father, my uncle (chacha) again reached to that place. Victim along with his father also came there. That uncle was present in the ‘Jagaran’ even at that time. My uncle (chacha) apprehended that uncle and thereafter he was taken to the PS. The uncle so apprehended and taken to PS was the very uncle who had taken the victim saying that he would give marbles to him. At this stage, accused is taken out from the screened room and shown to the witness through video camera. After seeing the accused witness states that he is not sure whether this uncle is the same uncle who had taken the victim on the pretext of giving marbles (Kanche) as the incident had taken place long ago.

XXXXX by accused. Nil, opportunity given (It is 2.55 pm and child witness is present since 10.00 am and counsel for accused is yet not available). RO & AC (Raghubir Singh) ASJ-01/East/District/Delhi/18.01.17.” This child (Z) has stated that he was not sure whether the accused was the same uncle who had taken the victim on the pretext of giving marbles as the incident had taken place a long ago.

9. The father (Y) of the victim examined as PW-2 stated that on 10.11.2013, when he reached home after lunch at about 4.30 PM, his son (X) i.e. the victim had come home crying and had told him about the uncle who had taken him across the river near the Gas Agency Road on the promise to give him marbles but had thereafter sexually assaulted him. This witness corroborated the averments made by him in his statement Ex.PW2/A on which he identified his signatures. He stated however that on the same day at about 7.30 PM, the victim came home running and told him that uncle who had committed the wrong act with him was present in a Jagaran in the park, Block No.1 and he along with his wife and some neighbours had rushed to the Jagaran and at the instance of the victim (X), the accused had been apprehended and produced before the police. Inter alia PW-2 identified the accused/convict i.e. the appellant herein as being the person who had been identified by his son (X). This witness on being cross examined on behalf of the accused had denied that the accused had not been apprehended by him and others from the Jagaran on the identification of his son (X) and denied that the accused had been shown to him at the police station where he had already been produced by the police.

10. PW-6 examined by the prosecution was Constable Sandeep Yadav who testified to the effect that on 11.11.2013 at about 8.00 PM whilst he was patrolling near Block No.1, Trilokpuri, he saw many people gathered there and a lot of noise coming and on inquiry he learnt that the child (X) i.e. PW-3 had been sexually assaulted by one Dinesh Chand who had been apprehended by PW-2, the father (Y) of the child and PW-6 Constable Sandeep Yadav identified the accused as being the person who had been apprehended by PW-2 and stated that then he had taken the victim child and the accused to the LBS Hospital for the medical examination and the father of the child had also accompanied him and the medical examination was got conducted, whereafter, the Investigating Officer SI Anil Kumar,PS Kalyanpuri had also reached.

11. SI Anil Kumar, the Investigating Officer of the case was examined as PW-9, who corroborated the prosecution version set forth in the police report under Section 173 of the Cr.P.C., 1973 and inter alia denied that the accused had been falsely implicated at the instance and pressure of the victim (X) and his father (Y).

12. The accused through his statement under Section 294 of the Cr.P.C., 1973 without oath admitted the MLC of the victim (X) Ex.PA-1, progress note Ex. PA-2, his own MLC Ex.PA-3 & Ex.PA-4 and hismedical examination report Ex.PA-5. Through his statement under Section 313 of the CR.P.C., 1973, the accused/convict i.e. the appellant herein stated that he had no knowledge of the incident and contended that he was not present at the time of the occurrence and was at his work place in Greater Noida on 10.11.2013. The accused i.e. the appellant herein admitted that he had been apprehended from the Jagaran by the parents and the uncle of the victim and that he had been beaten but stated that he could not understand why he had been beaten and stated that there was some mis-identification because of which he had been apprehended. He further stated that he did not know about the incident of his having threatened the victim that he would throw him in the river if he did not do what he wanted him to do.He also stated that he was working under a Supervisor Kanhaiya Lal who was a contractor in the marriages and that he had become free at 2.00 PM on the date of the incident and that Kanhaiya Lal son of Shri Ram gave him a certificate which he had submitted in the year 2013 at the time of consideration of his bail application.

13. The witness Kanhaiya Lal was produced by the accused/convict i.e. the appellant herein as DW-1 who in his examination in chief stated that on 10.11.2013 he had sent the accused in a marriage function at Khureshra villager, District Noida and he too had gone to that marriage function and that they had left for Delhi at about 4.00 PM and reached at Delhi at 5.30 PM and that a register was maintained by him in relation to the functions and work assigned by him to waiters and stated that he had the entry Ex.DW1/A & Ex.DW1/B bearing his signatures and stated that he did not remember to whom the certificate Ex.DW1/A which bore his signatures had been given. He also stated that the writing on the said certificate was not his but the signatures were his. In his cross-examination on behalf of the State, this witness stated that he had no photography or videography proof to show that he was present in the marriage function along with the accused- Dinesh Chand.

14. The contentions raised by the appellant through the present appeal are that the verdict of the learned Trial Court is flawed and that there has been a complete mis appreciation of evidence and that the allegations levelled against the appellant have not been established beyond a reasonable doubt and that the complicity of the appellant in relation to the alleged crime has not been established nor is the identity of the accused/convict i.e. the appellant herein as being the offender in the instant case in relation to the commission of the offence punishable under the Indian Penal Code, 1860 and the Protection of Children From Sexual Offences Act, 2012, been established. It has been submitted on behalf of the appellant that there is no medical evidence to substantiate the plea that the appellant had sexually assaulted the victim and that there were several discrepancies in the testimony of the minor child (X) and the testimony of the friend of the minor child who was examined as PW-7 and who was also a child witness which witness i.e. PW-7 had not identified the accused/convict i.e. the appellant herein and rather stated that he was not sure whether the accused i.e. the appellant herein was the same person whom they had met in the park when he had offered to give marbles to him and the victim child (X) and had asked them to accompany him. It has also been submitted on behalf of the appellant that the reliance placed on a six years old child’s testimony is inappropriate in the instant case and the factum that there were no injury marks on the person of the victim nor had the victim screamed, all bring forth that a concocted version has been put forth by the minor child and that the accused i.e. the appellant herein has been falsely implicated. Inter alia it was submitted on behalf of the appellant that the minor child had stated that he had identified the accused i.e. the appellant herein from the photograph of the appellant which had fallen down from the pocket of the appellant and that the same itself brought forth that the appellant had been falsely implicated in the instant case. It is essential to observe that the minor child (X) examined as PW-3 categorically identified the appellant as being the person who had taken him from the park with the identification having been done through the video conferencing mechanism. He has stated on been cross examined on behalf of the accused i.e. the appellant herein that he had identified the accused i.e. the appellant herein in the Jagaran on the next date of the incident on the basis of the photograph of the accused i.e. the appellant herein which had fallen at the spot when the accused had done the wrong act with him and that he i.e. the minor child had picked up his photograph and kept it in his pocket and that he was carrying that photograph with him whilst going to the Jagaran and on that basis, he had identified him. The minor child (X) has stated that that photograph had fallen from the pocket of the convict at the spot and the same was picked up by him, though he stated that he did not show that photograph to his parents. This witness has categorically denied that he had identified the accused i.e. the appellant herein in connivance with the police and has categorically stated that he had not identified the accused at the instance of the police.

15. The statement under Section 164 of the Cr.P.C., 1973 of the minor child is in consonance with his statement in Court which is also in consonance with all material particulars in the complaint lodged Ex.PW2/A both in relation to the incident and the mode and apprehension of the accused i.e. the appellant herein and his identification by the father (Y) of the minor child (X) and by the minor child himself. As rightly held by the learned Trial Court, there is no reason to disbelieve the prosecution version merely because the victim (X) i.e. the minor child had the presence of mind to pick up the photograph of the accused i.e. the appellant herein from the spot of the crime when it had fallen down at the time of the commission of the sexual assault.

16. Reliance was placed on behalf of the appellant on the verdict of the Hon’ble Division Bench of this Court in“State (Govt. of NCT of Delhi Vs. Mullah Muzib” in Criminal Leave Petition No.62/2015, a verdict dated 09.02.2015, to contend that the charge of allegations in the instant case had not been established in any manner, in as much as there were discrepancies in the testimonies of the prosecution witnesses, there was no substantial evidence to support the prosecution version and that there was a delay in the registration of the FIR and that there was no corroborative scientific evidence also, in relation to which it is essential to observe that each case has to be determined on its own facts and circumstances and evidence led. In the instant case, the prosecution version set forth in the police report under Section 173 of the Cr.P.C., 1973 stands established through the testimonies of the prosecution witnesses examined as analyzed hereinabove.

17. It is undoubtedly true that the testimony of a child witness in terms of Section 118 of the Indian Evidence Act, 1872 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 is capable of giving rational answers. In the instant case, both at the time of the recording of the statement under Section 164 of the Cr.P.C., 1973 of the victim and at the time when his statement was recorded as PW-3, the capacity to understand and to give rational answers and also to speak the truth was ascertained by the learned Trial Courts.

18. As laid down by the Hon’ble Division Bench of this Court in “Baljeet Singh and 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/sheappears 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 reads 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. There is nothing on the record however, in the instant case to indicate any false implication of the appellant nor is there any motive of any kind attributed to the complainant (Y) i.e. the father of the minor child nor to the Investigating Officer or as to why the appellant was or could be falsely implicated. Furthermore, there is no reason why the minor child (X) would identify any other person other than the perpetrator of the crime of the sexual assault committed on him.

19. The Investigating Officer, PW-9 has categorically denied that he had falsely implicated the appellant at the instance and pressure of the victim and his father. Apparently, there can be no pressure that could have been exerted by the victim on the police officer for the apprehension and arrest of the appellant. The statement of the minor child is also categorical as already observed hereinabove that he had not identified the accused in Court at the instance of police uncle. Though, he did respond in the affirmative that the police did tell him to say what he had to say in the Court and said so that was said in the office and he also stated that he was making he same statement as told to him by the police in Court but went on to state that he had not identified the accused in the Court at the instance of the police.

20. The corroboration of the circumstance of the incident having taken place with the minor child (X) i.e. PW-3 brought forth through the testimony of PW-7 whose testimony has not even been challenged by the accused/convict i.e. the appellant herein in any manner coupled with the factum that PW-7 has categorically testified that the person who had induced the victim (X) to accompany him for marbles had been apprehended on the next day in the Jagaran on his identification and that of the minor child (X) i.e. PW-3, coupled with the statement of PW-6 Constable Sandeep Yadav that the person so apprehended was the accused/ appellant herein, all bring forth the identity of the accused i.e. the appellant herein as being the perpetrator of the commission of sexual assault of the minor child (X) and of his having kidnapped the minor child with intent to subject him to unnatural lust and of his having committed carnal intercourse on the minor child (X) aged 6 years and of the appellant having committed aggravated penetrative sexual assault on the minor child (X) i.e. PW-3.

21. The factum that PW-7, the friend of the victim i.e. the other minor child has corroborated the prosecution version in relation to the factum that there was a person who had come to the park where the minor child (X) i.e. PW-3 and he PW-7 were there, the man had come and asked them to accompany him saying that he would give them marbles and whereas he, PW-7 had refused to accompany that uncle saying that he was not interested in marbles but the victim had agreed to accompany that uncle and that the next day when he had gone with the victim to the Jagaran as the victim told him that the uncle who had offered them marbles, was present at that Jagaran and they noticed that that uncle was standing in a corner and thereafter he PW-7 had returned back to his house and the victim had gone to his house and after returning home, he had told his father about the presence of that uncle and the victim has also told about this fact to his father and then he PW-7 along with his father and his uncle again reached to that place where the victim and his father had also gone and that uncle was present in the Jagaran even at that time and the uncle of PW-7 apprehended that uncle and thereafter that man was taken to the police station and the uncle so apprehended was taken to the police station was the very same uncle who had taken the victim saying that he would give marbles to him.

22. In these circumstances, mere non-identification of that uncle that man i.e. the accused/appellant herein by PW-7 on the date 18.01.2017 in relation to an incident of the date 10.11.2013 when PW- 7 who was nine years old on 18.01.2017 and who was 5 years old at the time of the incident, does not detract from the veracity of the prosecution version and rather corroborates the prosecution version and the statement of the minor child (X) in relation to the incident having taken place and also to the aspect of the arrest of the man who had taken the minor child along with him on the pretext of giving him marbles.

23. Furthermore, as rightly held by thelearned Trial Court, the defence plea of alibi also does not stand established through the testimony of DW-1 Sh. Kanhaiya Lal in as much as there was no document produced by DW-1 to show that he had gone to attend the marriage on 10.11.2013 much less was there any document produced by him even in the form of a photograph that the appellant was present with DW-1 at the marriage function at Khureshra Village, District Noida. Furthermore, the register Ex.DW1/A produced by DW-1 Sh. Kanhaiya Lal as rightly observed by the learned Trial Court had the name of the appellant above the margin of the page whereas the other entries were after the margin and red line, which thus did not suffice to bring forth the plea of alibi of the appellant being at Noida at the time of the alleged commission of the crime.

24. As regards the contention raised on behalf of the appellant that there was a delay in the registration of the FIR, the witness PW-2 has categorically averred in his complaint itself that he had avoided making the complaint due to social stigma and apparently the complaint was made when the minor child (X) was able to identify the appellant as being the person in the Jagaran on the next day i.e. 11.11.2013 and thereafter, the FIR having been registered, the delay of one day in the registration of the FIR stands explained.

25. The observations of the learned Trial Court thus, to the effect that there was nothing on the record to bring forth any false implication of the appellant nor of any motive having been attributed for any false implication neither to the family of the minor victim (X) nor to the investigation conducted by the police, cannot be faulted.

26. The accused i.e. the appellant herein assailed the impugned judgment of the prosecution version on the premise of lack of medical evidence to corroborate the prosecution version in relation to the sexual assault on the minor child submitting to the effect that the MLC of the minor child Ex.PA-1 did not indicate any fresh injury, that the father of the minor child had declined to hand over the clothes of the minor child for examination, that there was no external injury seen and there was no fissures and no tenderness on the person of the minor child on examination of his genitalia and private parts in relation to the alleged history of sexual assault, both oral and anal. The appellant has also placed reliance on the FSL report dated 30.09.2014 bearing No.2013/DNA-9333/13658 to contend that as per the biological examination:- “1. Semen could not be detected on exhibits 'le',"Tf, 'Ig', 'Ih', '1ml', 'lm2', 'lm3', 'Ipl', 'lp2', 'lp3', 'Iql', 'lq2', 'lq3', lsr(sam.ples of victim), '3'(semen sample of accused) and '4'(underwear of accused).

2. Blood couldnotbe detected on exhibits 'le', 'If, 'Ig', 'Ih', 'Iml', 'lm2', 'lm3', 'Ipl', 'lp2', 'lp3', 'Iql', 'lq2', 'lq3', Isl'(samples of victim) & '4'(underwear of accused).

3. Blood was detected on exhibits 'Irl', 'lr2'& 'ls2' (blood samples of victim).

4. The source of exhibits'Irl', 'lr2'& 'ls2' (blood samples of victim)not subjected to DNA fingerprinting analysis as semen/blood could not be detected on the source of exhibits 'le', 'If, 'Ig', 'Ih', '1ml', 'lm2', 'lm3', 'Ipl', 'lp2', 'lp3', 'Iql', 'lq2', 'lq3', lsl' (samples of victim), '3'(semen sample of accused) and '4'(underwear of accused).”

27. It was thus contended on behalf of the appellant that there was no semen detected in any of the samples of the victim nor of the appellant, which brought forth his false implication. In relation to this aspect, it is essential to observe that the complaint was made on 11.11.2013 and the appellant was also apprehended and arrested on 11.11.2013 i.e. the day after the incident of 10.11.2013. In the circumstances, the absence of medical evidence in support of the incident through the clothes of the appellant and the samples of the victim does not suffice detract from the veracity of the prosecution version in as much as it has not been contended by the State nor by the appellant that the clothes that were worn by the appellant on 11.11.2013 were the same as worn by him on the date of the incident i.e. on 10.11.2013.

28. Section 29 of the Protection of Children from Sexual Offences Act, 2012, legislates a presumption to the effect that when a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. Section 29 of the Protection of Children from Sexual Offences Act, 2012 reads to the effect:- “29. Presumption as to certain offences. – Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.”

29. Section 30 of the Protection of Children from Sexual Offences Act, 2012 reads to the effect:- “30. Presumption of culpable mental state. – (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.” and thus the necessary presumption under Sections 29 & 30 of the Protection of Children from Sexual Offences Act, 2012 both in relation to the commission of the offence of aggravated penetrative sexual assault on the minor child (X) i.e. PW-3 in term of Section 3(a) read with Section 5(m) of the Protection of Children from Sexual Offences Act, 2012, and to his culpable mental state has essentially to be drawn in as much as the minor child was below the age of 12 years at the time of the commission of the offence as brought forth through the unchallenged testimony of PW-4 Sh. Sajjan Bhardwaj, Manager of SIR Public School, Delhi where the minor child was studying and the certificate issued by the Head Mistress of the said school which indicated that his date of birth was 29.12.2007, brings forth that the minor child was below the age of 12 years at the time of the commission of the offence.

30. Section 3(a) of the Protection of Children from Sexual Offences Act, 2012 provided as follows:-

3. Penetrative Sexual Assault. – A person is said to commit “ penetrative sexual assault” if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person. (b)…………… (c) …………….

31. Section 5(m) of the Protection of Children from Sexual Offences Act, 2012 provided as follows:- “5. Aggravated penetrative sexual assault. ……. ……. …….

(m) whoever commits penetrative sexual assault on a child below twelve years. …….. ……..”

32. The available record also establishes the commission of the offence under Section 367 of the Indian Penal Code, 1860 by the appellant for having kidnapped the minor child to subject him to unnatural lust. Though, an alternative charge was framed by the learned Trial Court qua the commission of the offence punishable under Section 377 of the Indian Penal Code, 1860 with the alternative charge being under the Protection of Children from Sexual Offences Act, 2012 punishable under Section 6 thereof, the learned Trial Court vide the impugned judgment has rightly convicted the accused i.e. the appellant herein for the offence punishable under Section 366, 377 of the Indian Penal Code, 1860, and Section 6 of the Protection of Children from Sexual Offences Act, 2012 in as much as Section 377 of the Indian Penal Code, 1860, penalizes the commission of carnal intercourse against the order of nature whereas, the penetrative sexual assault described under Section 3(a) of the Protection of Children from Sexual Offences Act, 2012 referred to hereinabove only describes the modes through which such penetrative sexual assault can be made i.e. by penetrating his penis to any extent into the vagina, mouth, urethra or anus of a child or makes a child to do so with him or any other person, in as much as the nature of carnality punishable under Section 377 of the Indian Penal Code, 1860, is not punishable under Section 3 of the Protection of Children from Sexual Offences Act, 2012, which rather punishes all modes of commission of penetrative assault on the minor child.

33. The impugned judgment is thus, upheld and it is held that there is no infirmity in the impugned judgment convicting the appellant for the offences punishable under Section 363, 377 of the Indian Penal Code, 1860 & Section 6 of the Protection of Children from Sexual Offences Act, 2012. Furthermore, the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 being punishable with a minimum RI for 10 years and to a fine, and for the offence punishable under Section 367 of the Indian Penal Code, 1860, being also punishable with the imprisonment of either description for a term which may extend to 10 years and to a fine and the offence punishable under Section 377 of the Indian Penal Code, 1860, being punishable to the imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and also to be liable to fine, coupled with the factum that there are no grounds for any leniency in the matter, the impugned order on sentence is upheld and the appellant is directed to undergo the sentence as imposed vide the order on sentence dated 09.01.2018 in relation to FIR No.669/13 which is to the effect:- “(1) Convict is sentenced to undergo minimum rigorous imprisonment for a period of 10 years and is directed to pay fine of Rs.5,000/- u/s 6 of POCSO Act. In case of non payment of fine, he will undergo further two months simple imprisonment in default. (2) Convict is sentenced to undergo rigorous pay fine of Rs.5,000/- u/s 377 Indian Penal Code, 1860, and in case of non payment of fine, he will undergo further two months simple imprisonment in default. (3) Convict is sentenced to undergo rigorous pay fine of Rs. 5,000/- u/s 367 IPC and in case of non payment of fine, he will undergo further tow months simple imprisonment in default. The fine, if recovered, shall be paid to the victim child as compensation under Section 357(1) Cr.P.C. The benefit u/s 428 Cr.P.C. be given to the convict and it is further ordered that all the above sentences shall run concurrently.”

34. The impugned order on sentence indicates that a recommendation had been made vide the impugned order on sentence dated 09.01.2018 to the Delhi Legal Services Authority to determine and award appropriate compensation to the victim/prosecutrix herein in accordance with the provisions of Section 357A of the Cr.P.C., 1973 and the scheme, qua which copy of this judgment be sent to the Member Secretary, Delhi Legal Services Authority for requisite compliance.

35. 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" and 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, 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.

36. 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.

37. 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.

38. The present appeal and the accompanying application Crl.M. (B)464/18 are thus, dismissed.

39. Copy of this judgment be also sent to the Principal Secretary, Delhi State Legal Services Authority, sand be also sent to the Superintendent, Central Jail, Tihar, for being handed over and explained to the appellant, the Director General, Prisons, Delhi and to the Secretary, Law, Justice and Legislative Affairs, GNCTD, Delhi to ensure compliance of the above directions.

40. The Trial Court Record be returned with the certified copy of this judgment. ANU MALHOTRA, J. MARCH 18, 2019