Delhi High Court: A Division Bench of Mukta Gupta and Mini Pushkarna, JJ. upheld the impugned conviction order considering the accused has committed heinous crime of rape on a four year girl of tender age within his close family.
The facts of the case are such that the appellant is alleged to have committed aggravated penetrative sexual assault upon baby ‘M’ and was charged for offence punishable under Section 6 of the Protection of children from of Sexual Offences Act i.e. POCSO Act. The appellant was thereby awarded sentence of imprisonment for life along with fine of Rs 10,000 in default of payment of fine, the Trial Court has further awarded sentence of Simple Imprisonment for a period of one month, for the said offence. The present is an appeal under Section 374(2) read with Section 383 Criminal Procedure Code i.e. CrPC challenging the order passed by Additional Sessions Judge-01 (POCSO), South-East District, Saket Courts, New Delhi and prayed for leniency by reducing the sentence awarded to the appellant.
Counsel for appellants submitted that the prosecution has not been successful in establishing the guilt of the appellant in respect of offence punishable under Section 6 of the POCSO Act. It was contended that the testimony of the prosecution witnesses did not inspire any confidence and no conviction or sentence can possibly be awarded on the basis of such evidence. It was also submitted that the witnesses who were the parents of the victim had turned hostile and had rather deposed in favour of the appellant. Further, even the victim was not examined, which was fatal to the prosecution case.
Counsel for appellants submitted that there were mitigating circumstances in favour of the appellant for considering his case for reduction of sentence. She argued that the appellant had clean antecedents; was 35 years of age at the time of offence; he was married and his wife and six children were dependent on him, the appellant being the sole bread earner. She further argued that the jail conduct of the appellant was satisfactory and on path of the reformation. Thus, she prayed for reduction in the sentence awarded to the appellant.
The Court observed that the law is very clear in this regard that evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution or defense.
It was further observed that the contention as raised by the counsel for the appellant that the victim child was not examined cannot be fatal to the prosecution case, for the reason that the victim was too young, hardly 4 years old at the time of the incident. Being of such tender age she was not in a position to give any statement. The Trial Court has rightly held that the tender age of the victim coupled with her lack of maturity to understand as to what ghastly/ wrong act had been committed with her, was the reason why she was not examined, or arrayed as a witness. Thus, the witnesses presented and evidence produced sufficiently proves penetrative sexual assault even in the absence of any direct evidence/ testimony of the victim or her parents. This scientific evidence coupled with the other circumstantial evidence unerringly point to the committal of the offence by the accused.
The Court held that the “Trial Court rightly held that this sufficiently proves penetrative sexual assault even in the absence of any direct evidence/ testimony of the victim or her parents. This scientific evidence coupled with the other circumstantial evidence unerringly point to the committal of the offence by the accused”
The Court further held “As regards the prayer for leniency by reducing the sentence awarded to the appellant, the act of the accused, considering the fact that he was already married having six children and being related to the parents of the minor victim, does not inspire any case for leniency in his favour. The accused has committed heinous crime of rape on a four year girl of tender age within his close family. This Court finds no justification in reducing the sentence awarded to the appellant.” [Mukish v. State, 2022 SCC OnLine Del 1762, decided on 19-05-2022]
For Petitioner: Ms Inderjeet Sidhu,
For State: Mr Tarang Srivastava and Yogesh Tanwar