While upholding an order of conviction of a person accused of raping his four-year-old niece, the Delhi High Court has stated that perpetrators of sexual offences on innocent children are psychosocial deviants, who cannot lay any claim to leniency..“It is in the order of nature, and is the sacred right of every living being to blossom from infancy, to childhood, to adolescence and, finally, to adulthood. This order of nature is thrown into violent disarray by the sexual predators of children”, the Court said..The judgment was passed by a Single Judge Bench of Justice C Hari Shankar in an appeal by the accused, Lokesh..The appellant was convicted by the trial court under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 376 of the Indian Penal Code, 1860. He was sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 7,500 for the offence under Section 6 of the POCSO Act..As per the prosecution’s case, the appellant had taken the four-year-old prosecutrix, her niece, to a jungle and committed the gruesome act..“..the appellant had taken her to a jungle, removed her clothes, inserted something in her vagina (referred to, by her, as “susu” which, in the context, may be taken to be a euphemism for ―genitals) and, thereafter, inserted his susu in her anus..”, the Court recorded..An FIR was registered pursuant to a complaint lodged by the mother of the prosecutrix. Subsequently, a chargesheet was filed by the Police under Sections 376, 506 IPC and Sections 4, 5(m) and 6 of the Protection of Children from Sexual Offences Act, 2012..Assailing the order of conviction, the appellant contended that the competence of the prosecutrix to testify before the trial court was not established as the questions put to her by the Judge to determine her competence were simple questions and insufficient. He further argued that the medical examination of the prosecutrix indicated the absence of any injury mark, even around her anal area..Calling the prosecutrix’s version “inherently unbelievable”, the appellant had claimed that the two witnesses, as well as the prosecutrix herself, were not cross-examined and hence he was not able to defend himself properly..The inordinate delay of 53 days in registering the FIR was also brought to the Court’s notice..Defending the conviction, the prosecution argued that the absence of any injury on the prosecutrix was easily explainable as the medical examination was conducted two months after the incident. It was further stated that the statement of the prosecutrix under Section 164 CrPC was short, pertained to the incident on what had happened, and was satisfactory..The Court was also told that the appellant had failed to give any explanation about his whereabouts at the time of the incident..After hearing the parties, the Court recorded that the appellant was convicted under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 but he was sentenced only under POCSO as the minimum and maximum punishments prescribed under the two Sections were the same i.e. 10 years rigorous imprisonment and imprisonment for life, respectively..It further observed that if the commission of the offence of aggravated penetrative sexual assault in terms of Section 5 of POCSO is proved, an accused person would be equally liable to be convicted under Section 375 of the IPC for committing rape..The Court iterated that in cases of sexual assault against children, the statement of the child prosecutrix is the first and most important piece of evidence. Further, in cases of sexual assault and rape, a conviction could even rest on the sole testimony of the prosecutrix, it said..“The evidence of the prosecutrix, in a case of rape, is ordinarily to be believed, and may form the sole basis for conviction, unless cogent reasons, for the court to be hesitant in believing the statement at its face value, and to seek corroboration thereof”, exist, it said..While analyzing the case at hand, the Court stated that it was unable to subscribe to the appellant’s submissions with respect to the capacity of the prosecutrix to sufficiently testify..“In the present case, the learned ASJ posed certain questions to the prosecutrix, which stand reproduced in para 13 supra, before recording her statement under Section 164 of the Cr. P.C.. A reading of the responses, of the prosecutrix, thereto, reveal that they were natural and spontaneous, as well as true. I find no reason, therefore, to differ with the finding, of the learned ASJ, that the prosecutrix, in the present case, was competent to testify.”.The Court also said that although almost two months had elapsed from the date of commission of the assault, the child prosecutrix was still in pain on the date of recording of the statement under Section 164 CrPC..The Court also observed that the testimony of the child prosecutrix’s mother with respect to the incident also remained unchallenged..“The testimony of PW-6 Guddi during trial, therefore, was consistent with the version of the incident, as recited by her to the doctor at the Hospital. It is, therefore, inherently credible, and commands acceptance.”.It thus concluded,.“Seen holistically, these testimonies, in my view, leave no manner of doubt that penetrative anal assault had been committed, by the appellant, on the prosecutrix.”.The Court also rejected the objections with respect to the delay in registration of FIR, calling it not “unconscionable” enough to vitiate the prosecution. It also said that the appellant had miserably failed to discharge his onus under Section 114 of the Indian Evidence Act, 1872..Thus upholding the order of conviction, the Court said,.“Perpetrators of sexual offences on innocent children are psychosocial deviants, who cannot lay any claim to leniency. It is in the order of nature, and is the sacred right of every living being to blossom from infancy, to childhood, to adolescence and, finally, to adulthood. This order of nature is thrown into violent disarray by the sexual predators of children.”.Sympathizing with the child prosecutrix, the Court, however, remarked that trial court had erred in awarding lesser punishment to the appellant..“The innocence of the prosecutrix in the present case, who had barely savoured the first fragrance of childhood, let alone adolescence, was brutally plundered by the appellant, the deviancy of his act being augmented by the fact that he chose to sodomise her. The trauma that the prosecutrix is bound to suffer, on account of the appellant, is bound to be lifelong, and the learned ASJ errs, therefore, if at all, on the side of leniency, in the matter of awarding of sentence to the appellant.”.Since the State was not in appeal before it, it refrained from enhancing the sentence awarded to the appellant..The appellant was represented by Advocate Aditya Vikram..Advocate GM Farooqui was the Public Prosecutor..[Read Judgement].Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.
While upholding an order of conviction of a person accused of raping his four-year-old niece, the Delhi High Court has stated that perpetrators of sexual offences on innocent children are psychosocial deviants, who cannot lay any claim to leniency..“It is in the order of nature, and is the sacred right of every living being to blossom from infancy, to childhood, to adolescence and, finally, to adulthood. This order of nature is thrown into violent disarray by the sexual predators of children”, the Court said..The judgment was passed by a Single Judge Bench of Justice C Hari Shankar in an appeal by the accused, Lokesh..The appellant was convicted by the trial court under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 376 of the Indian Penal Code, 1860. He was sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 7,500 for the offence under Section 6 of the POCSO Act..As per the prosecution’s case, the appellant had taken the four-year-old prosecutrix, her niece, to a jungle and committed the gruesome act..“..the appellant had taken her to a jungle, removed her clothes, inserted something in her vagina (referred to, by her, as “susu” which, in the context, may be taken to be a euphemism for ―genitals) and, thereafter, inserted his susu in her anus..”, the Court recorded..An FIR was registered pursuant to a complaint lodged by the mother of the prosecutrix. Subsequently, a chargesheet was filed by the Police under Sections 376, 506 IPC and Sections 4, 5(m) and 6 of the Protection of Children from Sexual Offences Act, 2012..Assailing the order of conviction, the appellant contended that the competence of the prosecutrix to testify before the trial court was not established as the questions put to her by the Judge to determine her competence were simple questions and insufficient. He further argued that the medical examination of the prosecutrix indicated the absence of any injury mark, even around her anal area..Calling the prosecutrix’s version “inherently unbelievable”, the appellant had claimed that the two witnesses, as well as the prosecutrix herself, were not cross-examined and hence he was not able to defend himself properly..The inordinate delay of 53 days in registering the FIR was also brought to the Court’s notice..Defending the conviction, the prosecution argued that the absence of any injury on the prosecutrix was easily explainable as the medical examination was conducted two months after the incident. It was further stated that the statement of the prosecutrix under Section 164 CrPC was short, pertained to the incident on what had happened, and was satisfactory..The Court was also told that the appellant had failed to give any explanation about his whereabouts at the time of the incident..After hearing the parties, the Court recorded that the appellant was convicted under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 but he was sentenced only under POCSO as the minimum and maximum punishments prescribed under the two Sections were the same i.e. 10 years rigorous imprisonment and imprisonment for life, respectively..It further observed that if the commission of the offence of aggravated penetrative sexual assault in terms of Section 5 of POCSO is proved, an accused person would be equally liable to be convicted under Section 375 of the IPC for committing rape..The Court iterated that in cases of sexual assault against children, the statement of the child prosecutrix is the first and most important piece of evidence. Further, in cases of sexual assault and rape, a conviction could even rest on the sole testimony of the prosecutrix, it said..“The evidence of the prosecutrix, in a case of rape, is ordinarily to be believed, and may form the sole basis for conviction, unless cogent reasons, for the court to be hesitant in believing the statement at its face value, and to seek corroboration thereof”, exist, it said..While analyzing the case at hand, the Court stated that it was unable to subscribe to the appellant’s submissions with respect to the capacity of the prosecutrix to sufficiently testify..“In the present case, the learned ASJ posed certain questions to the prosecutrix, which stand reproduced in para 13 supra, before recording her statement under Section 164 of the Cr. P.C.. A reading of the responses, of the prosecutrix, thereto, reveal that they were natural and spontaneous, as well as true. I find no reason, therefore, to differ with the finding, of the learned ASJ, that the prosecutrix, in the present case, was competent to testify.”.The Court also said that although almost two months had elapsed from the date of commission of the assault, the child prosecutrix was still in pain on the date of recording of the statement under Section 164 CrPC..The Court also observed that the testimony of the child prosecutrix’s mother with respect to the incident also remained unchallenged..“The testimony of PW-6 Guddi during trial, therefore, was consistent with the version of the incident, as recited by her to the doctor at the Hospital. It is, therefore, inherently credible, and commands acceptance.”.It thus concluded,.“Seen holistically, these testimonies, in my view, leave no manner of doubt that penetrative anal assault had been committed, by the appellant, on the prosecutrix.”.The Court also rejected the objections with respect to the delay in registration of FIR, calling it not “unconscionable” enough to vitiate the prosecution. It also said that the appellant had miserably failed to discharge his onus under Section 114 of the Indian Evidence Act, 1872..Thus upholding the order of conviction, the Court said,.“Perpetrators of sexual offences on innocent children are psychosocial deviants, who cannot lay any claim to leniency. It is in the order of nature, and is the sacred right of every living being to blossom from infancy, to childhood, to adolescence and, finally, to adulthood. This order of nature is thrown into violent disarray by the sexual predators of children.”.Sympathizing with the child prosecutrix, the Court, however, remarked that trial court had erred in awarding lesser punishment to the appellant..“The innocence of the prosecutrix in the present case, who had barely savoured the first fragrance of childhood, let alone adolescence, was brutally plundered by the appellant, the deviancy of his act being augmented by the fact that he chose to sodomise her. The trauma that the prosecutrix is bound to suffer, on account of the appellant, is bound to be lifelong, and the learned ASJ errs, therefore, if at all, on the side of leniency, in the matter of awarding of sentence to the appellant.”.Since the State was not in appeal before it, it refrained from enhancing the sentence awarded to the appellant..The appellant was represented by Advocate Aditya Vikram..Advocate GM Farooqui was the Public Prosecutor..[Read Judgement].Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.