Pawan Kumar Paswan v. State (NCT of Delhi)

16. She submitted that neither any neighbour has been cited as a witness to corroborate the version of the victim, nor any CCTV footage of the place where the alleged incident took place, has been placed on record, and therefore, the same cannot be blindly relied upon in view of the inconsistencies and improvements in the victim’s statements.

17. She further stated that despite the fact that the victim informed the complainant of the alleged incident on the same day, the complaint was lodged with a delay, which raises suspicion on the prosecution’s case.

18. Per contra, the learned Additional Public Prosecutor for the State and Ms. Deepika Dahiya, learned Amicus Curie for the victim vehemently contested that the testimonies of the witnesses including that of the minor victim, had supported the case of the prosecution and the same alone is sufficient to confirm the conviction of the accused.

ANALYSIS

19. At the outset, it is relevant to note that while dealing with 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:

Haryaya [(2013) 6 SCC 799], 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 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)

20. In the present case, the allegations levelled against the appellant are heinous in nature. It is the case of the prosecution that the appellant sexually assaulted and brutally bit the victim on both her cheeks and her stomach area, who was merely four years old at the time of the incident. It is alleged that on a previous occasion the appellant had also taken the victim inside his room and shown her indecent videos and thereafter removed her clothes as well as his own and sexually assaulted her and excreted on her. It also alleged that the appellant threatened the victim of dire consequences if she informed about the said incident to her mother.

21. It is relevant to note that the appellant has been convicted for the offence under Section 6 of the POCSO Act and Sections 323/506 of IPC.

22. Section 6 of POCSO Act prescribes the punishment for aggravated sexual assault and attracts the presumption under Section 29 of the POCSO Act. The same reads as under:

23. 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].

24. In the present case, the prosecution has sought to establish its case essentially through the evidence of the prosecution witnesses, especially the victim and the complainant, as well the medical evidence.

25. It is therefore imperative to peruse the statements tendered by the witnesses. In the complaint it was stated that the four year old daughter of the complainant (PW[2]) had gone to the Khatta Wala Park, from where the appellant took her to another park and bit her and when she started crying, the appellant left her. The complainant stated that the appellant is around 45 years of age, who lived on rent in one room on the first floor of the house of the complainant and used to ply a rickshaw. She stated the on 05.08.2015 also the appellant took the victim to his room and removed her lower inner wear as well as his own and inserted his penis in the victim’s vagina and excreted on her. She stated that when she informed her husband about the incident, an altercation ensued between them concerning the complainant’s alleged carelessness towards her children. Subsequently, the complainant registered a complaint against her husband, resulting in the registration of FIR No. 600/2015 under Sections 323 and 342 of the IPC. The complainant explained that she was unable to file a complaint earlier due to the social stigma associated with being the mother of three daughters and requested strict action against the appellant.

26. In her statement under Section 164 of the CrPC, the victim (PW[1]) reiterated the facts as stated in the complaint and revealed that at the time of the incident, she had gone to the room of the appellant to take rice, when the appellant removed her clothes as well as his own and inserted his private part in the victim’s private part and touch her there with his hands. She stated that he had also given her bite marks on both her cheeks and her stomach. She stated that when she started crying the appellant asked her to go and to not disclose the incident to her mother and threatened her of dire consequences.

27. In her testimony, the victim stated that the appellant had shown her some adult film and touched her. She stated that he did not remove her underwear but removed her lower clothes as well as all his clothes. She stated he put his penis on her urinal parts and bit her on both her cheeks and her stomach. She stated that all these acts were done by the appellant in the upper floor of her house and had threatened her from telling her mother. She stated that the appellant threatened her that if she said anything to her mother he would do what he did to her again. She stated that she had told everything to her mother, whereafter she was taken to Court and got bandages on her wounds. She also identified the appellant during the proceedings. She further identified the appellant during her examination.

28. The complainant was examined as PW[2], who testified that she is a mother of four children and PW[1] is her third child. She stated that she is the owner of the house where the appellant was living as a tenant in one room of the first floor from about 2-3 years prior to the incident. She stated that the appellant had gone away in the middle however, he returned after 4-5 months. She maintained her stance regarding the incident narrated by the victim on 05.08.2015, when the appellant took the victim to his room, he showed her an indecent video on his mobile and inserted his private part into the private parts of the victim. She stated that when he went to confront the appellant, he deleted the video from his phone and said that the victim herself played that video on the phone. She stated that when she informed her husband regarding the said incident, her husband told her to remain silent and to not tell the incident to anyone due to social stigma. She stated that the refusal of her husband to make a complaint led to a quarrel between the two, wherein the husband of the complainant inflicted beatings upon the complainant, due to which she also sustained a head injury. She stated that when the Police arrived, she did not mention the incident regarding her daughter and only made a complaint against her husband. A perusal of the FIR No. 600/2015 reveals that the same was registered on a complaint made by the complainant, alleging that she was beaten by her husband due to an altercation regrading certain household expenses. The complainant further deposed that in the evening of 24.08.2015, her daughter returned home weeping and told her that that she had gone to the park to play, when the appellant took her to another park and gave her bite marks on the cheeks and her chest. The complainant admitted that she did not call the Police that night and dialed 100 number the next day on 25.08.2015, whereafter the complainant and the victim were taken to the hospital.

29. The testimony of the complainant is also corroborated with the testimony of the victim, where during cross-examination she has stated that her father drinks alcohol and would beat her mother, for which he was also even sent to jail.

30. PW[8] is the Investigating Officer who deposed about the statements under Section 161 of the CrPC, arrest of the accused on identification by the victim and her parents, the medical examination of the victim as well as the accused and registering of FIR. He stated that the age of the minor victim was confirmed upon collection of documents from school records, in which her date of birth is 17.12.2010 (Ex. PX 1).

31. 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 that the victim’s evidence suffers from material improvements and the same does not inspire confidence, in the absence of any corroborative evidence such as CCTV footage of the place of the alleged incident and public witness from the neighbouring area. It has been argued that there are also contradictions between the evidence of the victim and the complainant.

32. 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:

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 cross- examination 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:

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.”

33. A perusal of the record reveals that the learned Metropolitan Magistrate, before recording her testimony, made a preliminary inquiry in order determine whether she was competent to give evidence, and after being satisfied that the victim appears normal, without any fear or pressure and is capable of giving rational answers to the questions put to her, went on to record her statement. On careful examination of the statements of the victim, it appears that her testimony is consistent with the contents of the complaint.

34. The argument with regard to the statement of the victim not containing any incident of sexual assault is devoid of any merit. Although, the victim in her statement under Section 164 of the CrPC, has not mentioned two separate incidents, that is, 05.08.2015 and 24.08.2015, when she was sexually assaulted by the appellant. However, perusal of her statement reveals that she categorically stated that the appellant had removed her lower inner wear as well as his own and placed his penis on her vagina and fingered her. Her statements are consistent on the point of the appellant biting her on both her cheeks and her stomach. Her statement is also in corroboration with the MLC, wherein bite marks have been observed on both her cheeks and her upper abdomen. The hymen was stated to be “torn (old)”. The photographs of PW[1] which are present in the lower Court record also show bite marks on both the cheeks of the victim as well as on her upper abdomen.

35. Although the victim stated that she had gone to take rice from the upper floor of the house, whereas the complainant has stated that the victim had gone to use the toilet. In this regard, the learned ASJ has rightly noted that the victim was only four years of age at the time of the incident and minor discrepancies in recalling of the incidents by such small children cannot be ruled out. The testimony of the victim is in corroboration with the evidence of the testimony of the complainant as well as the medical evidence.

36. It is also relevant to note that the victim in the present case is a minor girl who was only four years old at the time of the incident and when her statement under Section 164 of the CrPC was recorded. As rightly noted by the learned ASJ, it is difficult to fathom as to why the mother would instigate her minor girl child of merely four years of age to falsely allege commission of such grave offences upon her, in order to avoid some monetary issue.

37. In view of the above discussion, it will be useful to refer to the observations made by the Hon’ble Apex Court in the case of State of H.P. v. Sanjay Kumar: (2017) 2 SCC 51, wherein the Hon’ble Court had relied upon the evidence of the child victim who was raped when she was nine years and noted as under: “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. xxxx xxxx xxxx

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.’ ”

38. 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:

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).”

39. The appellant has raised the defence that he has been implicated due to prior enmity and quarrel between the appellant and the mother of the victim. As rightly noted by the learned ASJ, the appellant has not led any evidence and has been unable to create any doubt through cross-examining the witnesses in this regard.

40. Even if it is assumed, for the sake of arguments, that there was some monetary issue between the parties, as the complainant was demanding Rs. 10,000/- from the appellant which he refused to give her, and therefore he has been falsely implicated in the present case, it raises doubt upon the defence, when the only witness supporting the case of the defence is DW[1], who is the real brother of the appellant. No other evidence has been adduced by the defence in support of their claim that the monetary issues with the complainant were the reason for his false implication in the present case.

41. Moreover, a perusal of the statements given by the complainant, clearly reveals that she has maintained from the very start that when she narrated the incident that took place on 05.08.2015 to her husband, an altercation ensued between them, in regard to the complainant’s alleged carelessness towards her children, due to which she also suffered injuries on her head. Subsequently, the complainant registered a complaint against her husband, resulting in the registration of FIR No. 600/2015 under Sections 323 and 342 of the IPC. Hence, the argument of the appellant that the complainant had implicated her husband in a false case as he did not support the complainant in her illmotive of luring money from him is devoid of any merit.

42. In the case at hand, as rightly noted by the learned ASJ, the testimony of the victim’s mother is sincere and also substantially corroborates and supports the version of the victim as well as the medical evidence. Apart from what was told to her by the victim, the same alone sufficiently suggests that the appellant sexually assaulted the victim and brutally bit her on both her cheeks and her stomach. A perusal of the MLC and the photographs of the victim that have been placed on record makes it apparent that the defence taken by the appellant does not justify the case at hand. Apart from the bare averments of the appellant that there was some monetary dispute between him and the complainant, there is nothing to support his defence that he has been falsely implicated due to prior animosity, leaving aside the testimony of DW[1], who is the real brother of the appellant and is therefore an interested witness. Thus, the appellant has failed to raise any credible defence.

43. Minor discrepancies in relation to delay in lodging the FIR are not such that cast a doubt over the prosecution’s case. Even otherwise, as rightly noted by the learned ASJ, the delay has been properly explained not only in the initial complaint made by the complainant but also in her testimony, that on 05.08.2015, when she narrated the incidents of the day to her husband, he started quarrelling with her instead of showing support and asked her to remain silent about the incident as it would attract social stigma upon their family. She has clarified in her testimony that she did not make a complaint immediately as she was scared of the social stigma that would be brought on her family having three daughters.

44. As noted above, although 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. However, as noted above the testimony of the victim is reliable and could not be eroded in cross-examination and is duly corroborated by the evidence. The victim has stuck by her version throughout the 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 showing motive for false implication, which the defence has failed to show in the present case.

45. 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 parents, and the appellant has not been able to create any doubt to rebut the presumption under Section 29 of the POCSO Act.

46. Insofar as the sentence of the appellant is concerned, in theopinion of this Court, the learned ASJ has rightly appreciated the seriousness of the offence and taken into account that the victim was merely four years old at the time of the incident. This Court finds the quantum of sentence to be proportional with the crime as has been committed by the appellant.

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

48. The appeal is dismissed in the aforesaid terms. Pending application stands disposed of. AMIT MAHAJAN, J JULY 03, 2025