VIJAY  Vs STATE

CRL. A. 969/2017 Page 1 of 8
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 07.01.2021
+ CRL. A. 969/2017

VIJAY …..Appellant

Versus

STATE (G.N.C.T. OF DELHI) ….. Respondent
Advocates who appeared in this case:
For the Appellant : Mr Kanhaiya Singhal, Advocate.
For the Respondent : Mr Ravi Nayak, APP for State.

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT
VIBHU BAKHRU, J

1. The appellant has filed the present appeal impugning a
judgment dated 07.05.2015, whereby the appellant was convicted of
an offence punishable under Section 6 of the Protection of Children
from Sexual Offences Act, 2012 (hereafter the ‘POCSO Act). The
appellant also impugns an or der dated 16.05.2015, whereby he was
sentenced to serve ten years of rigorous imprisonment along with a
fine of ₹10,000/ – for the offence for which he was convicted. It was
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further directed that in default of payment of fine, he would undergo
simple impris onment for a further period of eight months.
2. The appellant was charged of barging in the jhuggi of the victim
at about 03.00 a.m. It was alleged that he had removed the
panty/underwear of the prosecutrix (a minor aged about nine years at
the material time) . He had allegedly touched her vagina and had also
inserted his finger inside her anus.
3. The father of the prosecutrix made a call to the police at about
06.10 a.m. on 23.09.2013, after apprehending the appellant. The said
call was received at PS South Cam pus and was entered as DD No.6A
(Ex.PW5/A). It was reported that a quarrel had ensued as a result of
eve teasing (ladki chedne ke karan jhagda) . The said DD entry was
handed over to SI Chandan Singh. At the material time, he was posted
at PS South Campus. He was examined as PW5. He stated that he
along with W/Ct. Sushila went to the scene of the incident (Shri Ram
JJ, South Moti Bagh) and met the prosecutrix (aged nine years) and
her parents . He testified that he had apprehended the accused as he
was infor med that he had assaulted the prosecutrix. He further stated
that SI Saroj was called to the spot and she recorded the statement of
the victim (prosecutrix) and got the FIR in question registered (FIR
166/2013 under Sections 376/377 of IPC and Sections 6, 7 and 8 of
POSCO Act).
4. The statement of the prosecutrix was recorded by SI Saroj on
23.09.2013. In her statement (Ex.PW1/A), she stated that she studies
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in fourth standard in an NDMC school and resides with her parents in
a jhuggi. She stated that because of the summer months, the door of
the jhuggi remains opened. She alleged that at about 03:00 a.m. one
boy whose name was Vijay and who lived in the same cluster of
jhuggies had entered her jhuggi while all its inhabitants were asleep.
She stated that she was acquainted with the accused. She alleged that
he removed her underwear and started feeling her vagina ( peshab
karne wali jagah par hath ferne laga ) and he forcibly inserted the
finger from where she defecates. She stated that she raised an alarm
and he r parents woke up. They attempted to apprehend him but he fled
from the spot. She stated that her parents searched for him and found
him at about 06:00 a.m. on the terrace of the silai center. They caught
hold of him and called the police. She stated th at the police officials
came and he was handed over to them.
5. Her statement under Section 164 of the Cr.PC was recorded on
the same date (that is, on 23.09.2013). Her statement recorded under
Section 164 Cr.PC is almost similar to her statement recorded un der
Section 161 Cr.PC earlier on that date. However, there is a minor
inconsistency in the time of the incident. Whereas she had stated in
her statement that the accused had entered her jhuggi at about 03:00
a.m., in her statement recorded under Section 1 64 of the Cr.PC
(Ex.PW1/C), she stated that he had entered the jhuggi at around 03:30
a.m. In addition, she also stated that for the past three or four days,
the accused had been following her all the way to her school and she
had not understood why he wa s doing so.
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6. The prosecutrix was examined medically. However, there were
no injury marks and her mother refused to get her internal examination
conducted.
7. The prosecutrix was examined as PW1. In her examination, she
stated that on the night of the incid ent, the accused had opened her
salwar and had inserted his finger from where she urinates and where
she defecates. She had stated that she felt pain and she had called out
to her parents and her parents had woken up. She once again
confirmed that the acc used had fled from the spot and was
apprehended at about 06:00 a.m. from the silai center.
8. The prosecutrix was cross -examined. In her cross -examination,
she was pointedly asked whether it was possible that some other
person might have entered the jhuggi and not the accused Vijay. She
denied the suggestion and reiterated that it was the accused Vijay who
had entered her jhuggi and had committed the offence. She was asked
whether any of her chachi resides in the same area and she responded
in the affirmati ve. She was then asked whether the accused had any
quarrel with her chachi and she replied in the negative.
9. The father of the prosecutrix was examined as PW2. He
testified that on 23.09.2013, he was present in his jhuggi along with
his family members a nd at about 3/3:30 a.m. he heard a scream from
his daughter and on hearing the same, he and his wife woke up. On
inquiries, her daughter (prosecutrix) had told him that the accused who
was standing there had committed a wrong act with her. He testified
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that he attempted to apprehend the accused but he managed to flee. He
stated that at about 06:00 a.m., he was found present at silai center
(sewing center) which was located in front of his jhuggi . He stated
that thereafter, he called the police and handed over his custody to
them. In his cross -examination, he confirmed that one Smt. Chaman
resides in his neighbourhood but he did not know that whether the
behavior of Smt. Chaman was cordial with the family of the accused.
10. There is no dispute that the pro secutrix was a minor at the
material time. The Principal of her school was examined as PW3 and
she had produced the admission register of the school and a photocopy
of the relevant entry was taken on record (Ex.PW3/A). According to
the school records, her date of birth is 11.08.2004. Therefore, on the
date of the incident, the prosecutrix was just over nine years of age.
11. The appellant did not lead any evidence. In his statement
recorded under Se ction 313 of the Cr.PC, he stated that he had been
falsely implicated as his family did not have good relations with one
Smt. Chaman Devi. He alleged that she had persuaded the family of
the prosecutrix to falsely implicate him in this case.
12. Mr Kanhaiya Singhal, learned counsel appearing for the
appellant contended that the appellant had been falsely implicated in
this case. He drew the attention of this Court to the MLC (Ex.PW1/B)
of the prosecutrix where it was recorded that the offence was
committed by a person, whose name was not known. He submitted
that whereas before the concerned doctor, the prosecutrix had stated
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that she did not know the name of the accused. However, in her
statement recorded under Section 161 of the Cr.PC, she had
specifically n amed the appellant. She had also stated that she already
knew him. He submitted that the prosecutrix had further improved
upon the allegations in her statement recorded under Section 164 of
the Cr.PC. In that statement she had further alleged that the acc used
had been following her to her school for the last three to four days
prior to the date of the incident.
13. This Court has examined the evidence obtaining in this case.
The testimony of the prosecutrix cannot be considered as unreliable.
This Court find s no material inconsistency between her testimony and
her statements recorded earlier. The fact that she alleged that the
appellant had been following her for three to four days prior to the
date of the incident, in her statement recorded under Section 164 of
the Cr.PC, does not in any manner raise any doubts as to the
allegations made by her. Her testimony is also consistent with the
testimony of her father (PW2). It is material to note that in her
examination before the Court, she had stated that the acc used had
inserted his finger in her vagina as well as in her anus. However in her
initial statement as well as in her statement recorded under Section
164 of the Cr.PC, she had not made any allegations of the accused
inserting his finger in her vagina. She had stated that he had touched
her vagina and felt it. However, this too is of little relevance in the
given circumstances. It is relevant to note that the prosecutrix was
asleep when the accused had removed her underwear/opened her
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salwar . She had woken up with the accused committing the said acts.
Her allegations are, essentially, that he had felt her vagina and had
inserted his finger in her anus.
14. Considering the manner in which the offence was committed,
the inconsistency regarding whether he had ins erted his finger in the
vagina or had felt it, would not be of much relevance. In any event this
Court is of the view that the said inconsistency does not in any manner
raise any doubts as to the allegations made by the prosecutrix.
15. The contention that h e had been falsely implicated because the
name of the accused was not mentioned to the concerned doctor who
had examined the prosecutrix, is also unpersuasive. It is material to
note that the prosecutrix was taken for the medical examination by the
concer ned police official and her mother. There is no reason to believe
that her mother knew the name of the appellant and it appears that the
mother had narrated the incident to the doctor.
16. As far as the prosecutrix is concerned, she had named the
appellant a s the person who had committed the offence in her first
statement that was recorded in the morning of the date of the incident.
She had also named him in her statement recorded under Section 164
of the Cr.PC, as well as in her examination before the Trial Court. In
view of the above, there is no doubt that the prosecutrix was aware of
the identity of the appellant and had identified him.
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17. In view of the evidence obtaining in this case, this Court
concurs with the view of the Trial Court that the appellant is guilty of
the offence for which he is charged.
18. The appeal is unmerited and is, accordingly, dismissed.

VIBHU BAKHRU, J
JANUARY 07, 2021
RK
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