SALMAN  Vs THE STATE GOVT.OF NCT DELHI

Crl.A.367 /2020 Page 1 of 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL. A. 367/2020 , CRL. M. (BAIL) 7718/2020 & CRL. M. A.
13094/2020

Order Reserved on: 22.01.2021
Order Pronounced on : 29.01.2021

SALMAN ….. Appellant

Through: Ms.Aishwarya Rao, Advocate
Appellant through VC.

Versus

THE STATE GOVT. OF NCT DELHI ….. Respondent

Through: Mr.Ashok Kumar Garg, APP for
State.
Victim is also present with IO.

CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT
ANU MALHOTRA, J.
1. The appellant vi de the present appeal assails the impugned
judgment dated 25.11.2019 of the learned ASJ -06, Special Court ,
POCSO, Rohini in relation to FIR No.269/14, PS Bawana whereby the
appellant was convicted qua offences punishable under Section 325 of
the IPC and u nder Section 6 r/w Section 5(m) of the POCSO Act,
2012 and was sentenced vide the impugned order on sentence dated
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30.11.2019 to undergo RI for a period of 10 years, to pay a fine of
Rs.10,000/ – and in default of the payment of the said fine, to further
undergo SI for 6 months qua the offence punishable under Section 6
r/w Section 5(m) of the POCSO Act, 2012 and to undergo RI for a
period of 3 years, to pay a fine of Rs.5,000/ – and in default of the
payment of the said fine, to further undergo SI for a peri od of 3
months qua the offence punishable under Section 325 of the IPC with
the sentences having been directed to run consecutively with the
benefit of Section 428 of the Cr.P.C., 1973 having been g iven to the
appellant .
2. Notice of the appeal was issued to the State. The Trial Court
Record was requisitioned and has been received and perused.

3. The appellant was also produced through Video Conferencing
by the Superintendent Jail, Delhi at the time of the hearing of the
appeal.

4. Written submissions were also submitted on behalf of the
appellant by the learned counsel for the appellant deputed by the Delhi
High Court Legal Services Committee.

5. Vide order dated 01.10.2020, CRL.M.(BAIL) 7719/2020 filed
on behalf of the appellant seeking interim bail was declined . The
victim in the instant case named ‘S’ aged 8 years as per the
prosecution version was sod omized by the appellant along with his
accomplice CCL named B on 21.03.2014 when the appellant and his
associate took the victim to a field near the house of the victim on the
pretext of playing with marbles and the child victim came back to his
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house and told the incident to his brother who in turn called the
parents. The anus of the victim was swollen and bleeding. The child
victim was taken to M V Hospital, P oothkhurd where he was medically
examined and his exhibits preserved and the concerned doctor referred
the victim for his surgery and the victim was shifted to the BSA
Hospital and in view of the sensitive condition of the victim, the
doctor at the BSA Hospit al referred the victim to the LNJP Hospital
and as the victim was not fit for giving statement, the FIR was got
registered on the statement given by the mother of the victim. The
child victim was also examined under Section 164 of the Cr.P.C.,
1973 and the two culprits were arrested and were medically examined.
The injuries sustained by the victim child were opined by the doctor
concerned to be grievous.

6. The CCL was committed to the JJB on completion of the
inquiry whereas the appellant herein was charge sheeted qua the
offence punishable under Sections 377/325/34 of the IPC and Section
6 of the POCSO Act , 2012 and charges under Section 325 of the IPC
and Section 6 of the POCSO Act, 2012 were framed against the
present appellant on 20.08.2014 to which he p leaded not guilty and
claimed trial.

7. 19 witnesses were examined by the prosecution. The avowed
contention raised on behalf of the appellant is that the identity of the
appellant as being the perpetrator of the crime has not even been
remotely established and that the age of the minor child victim has
also not been established by the prosecution and thus the culpability
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under Section 5(m) of the POCSO Act, 2012 cannot be invoked and
made applicable against the appellant .

8. Inter alia it has been submitted on behalf of the appellant that
the site plan in the instant case was not prepared of the place where the
alleged crime was committed; that the police did not examine the
younger brother of the victim to whom the victim had allegedly
narrated the incident; that there was no scientific evidence to connect
the appellant with the incident; that there was no semen detected on
the various exhibits seized as per the FSL result and the medical
examination of the appellant was conducted after a lapse of 5 (five)
days of the incident and no injury was found on the penis of the
appellant and Dr.Amit Shokeen, PW -8 had stated in his cross
examination that there was a possibility of an injury on the penis if an
adult committed forcible sexual intercourse with a 10 year o ld boy
which it is contended thus detracts from the veracity of the
prosecution version . It has thus been submitted on behalf of the
appellant that there are embellishments and improvements in the
prosecution version which makes the whole prosecution versi on
doubtful. Apart from the same, it is also submitted on behalf of the
appellant that the appellant was apprehended 5 (five) days after the
alleged incident at his house, which itself was an indication of his
conduct in consonance with his innocence for i f he had been guilty, he
would have fled away from his house. It was also submitted on behalf
of the appellant that the defence witnesses that had been produced by
the appellant, brought forth through their testimonies the innocence of
the appellant and a further submission was also made on behalf of the
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appellant that no effective cross examination of the prosecution
witnesses had been allowed by the learned Trial Court which had
caused grave prejudice to the appellant.

9. It is submitted on behalf of the a ppellant that the appellant was
not named in the two MLCs of the two hospitals as being the
perpetrator of the crime which itself indicated his false implication.

10. On behalf of the State, learned APP for the State adverted to
observations in paragraph 36 of the impugned judgment and the FSL
report which indicated blood found on the undergarment of the victim
child to submit that they corroborated the factum that the victim bled
after the incident which was also so deposed by the mother of the
victim and th us the absence of semen in the FSL result on the exhibits
of the victim did not absolve the appellant. It was also submitted on
behalf of the State that the factum that two surgeries were conducted
to stop the bleeding from which the minor child was suffer ing due to
the incident at such a tender age , itself explained the delay in
recording of the statement under Section 164 of the Cr.P.C., 1973
recorded one month after the incident.

11. It is essential to advert to the testimony of PW -1, minor child
master ‘S ‘ aged 10 years who testified in his examination without oath
to the effect: –
“I was playing kanche (marble ball) outside my house
with my friends at around 12 noon. In the meantime,
two boys namely B and Salman came. I know them
since they live in the ne ighborhood. They asked me to
accompany them in the fields to play marble balls
there. I accompanied them to the fields. There they
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tied my hands and legs with the cloth and also put
some cloth in my mouth. B took out my clothes and
then both of them had an al intercourse with me turn
wise (the witness has said dono ne meri gaand mari
thi). First B did the said act and then Salman did it.
Then, B untied my hands and legs and I returned to
my house, where I narrated the entire incident to my
brother Sushil. Su shil intimated this to my father
when he came after duty.

There was bleeding in my anus after they had
committed the said act with me.

At this stage, the child has pointed out towards
accused Salman by name and by pointing towards
him (correctly identifi ed by the witness/child).

I can identify the other boy namely B as well, if shown
to me (Court Observation: – The said accused is facing
trial before Juvenile Justice Board).

I was medically examined in the hospital by the
police. My statement was also go t recorded before a
lady Judge and I had put my thumb impression on
my statement. I do not remember my date of birth. ”

12. It was submitted on behalf of the appellant to the effect that the
testimony of the minor child was tutored in as much as he had stated
during cross examination to the effect: –
“Today my parents and my younger brother S 1 have
come to the Court. I had met police Madam outside
the Court. She had told me what I have to say in
Court.”

13. It was thus submitted on behalf of the appellant that th e
testimony of the minor child victim examined as PW -1 could not be
believed as he was tutored by the police. Qua this aspect, it is essential
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to observe that the learned Trial Court had put Court queries to the
witness master ‘S’ to the effect: –
“Court Qu estion: – Whether you are speaking on the
basis of what the said police madam said to you or
that you are speaking on the basis of what actually
happened with you?

Answer: – I have deposed what actually happened with
me on that day.”

14. Significantly the mi nor child categorically refuted the
contention raised on behalf of the appellant herein during trial and
stated that there was no quarrel between the appellant and his family at
the time before the incident. It is also significant that the minor child
categorically refuted the suggestion put forth on behalf of the
appellant that the appellant was not present at the spot when the
offence was committed and denied that he had named the appellant
only at the instance of the police madam and denied that the appe llant
had not committed any offence with him. It is significant that the
minor child in his statement on examination has categorically stated
that he recognized B (JCL) and Salman, Salman being the present
appellant as they lived in the same neighborhood.

15. PW-4 Smt. ‘G’, mother of the minor victim has testified to the
effect that on 21.03.2014, her son ‘S1′ i.e. her son younger to the
victim ‘S’ had come to the factory where she worked with her husband
and informed that their son ‘S’ had received injuries and thus she and
her husband had rushed to the house and found that the anus of ‘S’, i.e.
of the minor victim was swollen and bleeding and that her son was
perturb ed and was weeping and had informed her that the accused
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Salman i.e. the appellant herein and B had committed a wrong act with
him and had taken him out of the village on the pretext of playing
marbles with him and that she and her husband took their son to PS
Bawana and thereafter the police got him medically examined at the
hospital and her son was later on referred to the LNJP Hospital where
he was admitted for two months. The mother of the victim
categorically denied that the appellant had been named in the present
case only at the behest of the police and that he had not committed any
offence.

16. SI Pushpa, the Investigating Officer examined as PW -18
testified to having reached the M V Hospital, Delhi along with ASI
Narender, Constable Rajender and the victim and his parents on
21.03.2014 where the victim was medically examined and referred to
the BSA Hospital and the concerned doctor had handed over the
exhibits to Constable Rajender who handed over the same to ASI
Narender and thereafter the victim was referred to the LNJP Hospital
and ASI Narender collected the MLC of the victim and SI Pushpa
along with him went to the LNJP Hospital for medical examination of
the victim with the victim ‘S’ declared ‘not fit for statement ’ and thus
the FIR was registered on the basis of the statement of the mother of
the victim Ex.PW4/A. The Investigating Office r stated that she made
inquiries from the parents and the victim and again filed an application
seeking recording of the statement of the victim but the victim was
unfit for statement and his statement could not be recorded and t hus,
she and ASI Narender r eturned to the police station. The Investigating
Officer, SI Pushpa has further stated that on 22.03.2014, she along
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with Constable Sansar Pal had apprehended the co -accused ‘A’ @ ‘B’
(JCL) from village Mu ngeshpur at the instance of the mother of the
victim and that as his father informed that he was about 16 years old ,
hence the JWO SI Narender was called there and his apprehension
memo was prepared and he was got medically examined. Inter alia
PW-18, the Investigating Officer testified to the effect that on
26.03.2014, she along with Constable Wazir reached the M ungeshpur
village, Bawana where she met the complainant who pointed out to the
accused Salman i.e. the present appellant who was standing in front of
the house of Phool Singh as being the person wh o had sexually
assaulted her son and she made inquiries of the age of the accused i.e.
the appellant herein from his father who had failed to produce any
document in respect of age of proof but stated that his son was 16
years of age, that she called the D uty Officer, Bawana to authorize the
matter to him, interrogated the appellant in the presence of JWO SI
Uday Singh who admitted his guilt and his apprehension memo was
prepared and thereafter the appellant was taken for a medical
examination to the M V Hospital and in as much as the age proof of
Salman i.e. the appellant herein from his school indicated his date of
birth to be 30.01.1994, as he was more than 18 years of age at the time
of the incident, the record of the age proof was placed before the JJB
and the matter was remanded to the Rohini Courts by the JJB
whereafter the appellant herein was further remanded to JC and the
Investigating Officer went to the LNJP Hospital on 24.04.2014 to find
out the condition of the victim and moved an application see king to
record the statement of the victim under Section 164 of the Cr.P.C.,
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1973 and thereafter the statement under Section 164 of the Cr.P.C.,
1973 of the victim was recorded. The medical record of the victim was
also obtained by the Investigating Office r from the LNJP Hospital and
on completion of investigation, she filed the charge sheet and also
obtained the FSL result.

17. Sh.Naresh Kumar, the prin cipal of M.C. Primary School Boys,
Mungeshpur examined as PW -19 put forth the date of birth of Master
‘S’ vi ctim as being 11.10.2006 in the admission register as had been
put forth at the time of admission of the said child on 01.10.2013.

18. Though the learned counsel for the appellant submitted that
there was no birth certificate issued by any Government Agency given
by the mother of the student at the time of the admission of Master ‘S’
as stated by Sh.Naresh Kumar, principal of M.C. Primary School,
Mangeshpur, Delhi examined as PW -19 and that the mother of the
victim Master ‘S’ did not state in her testimony on oath that she had
given any affidavit as testified by Sh.Naresh Kumar, prin cipal of M.C.
Primary School Boys , Mu ngeshpur, Delhi in relation to the date of
birth of the minor child victim as being 11.10.2006 and the same could
not be believed, – it is essen tial to o bserve that there appears no
ostensible reason for disbelieving the date of birth of the minor child
victim as being 11.10.2006 for the minor child was admitted to
Standard 2nd on 01.10.2013 with the date of the alleged commission of
the offence b eing 21.0 3.2014 and thus it cannot be contended that the
date of birth of the minor child given on 01.10.2013 had been
fabricated for any reason whatsoever for the commission of the
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offence in question with which the minor child ‘S’ has been assaulted
and inflicted could never have been within the prior contemplation of
the parents of Master ‘S’.

19. There is in the circumstances no reason thus to disbelieve the
age of the minor child ‘S’ as having been put forth through the
prosecution version as being 10 ye ars at th e time of the commission of
the offence on 21.03.2014. Merely because the name of the appellant
was not given by the minor child at the time of the preparation of the
MLC at the BSA Hospital as well as at the LNJP Hospital, the same
per se does no t in any manner detract from the veracity of the
testimony of the minor child victim nor from the testimony of his
mother PW -4 Smt.G in relation to the identity of the appellant as
being the person who had committed the aggravated penetrative
sexual assaul t on the minor child ‘S’ below the age of 12 years in
terms of Section 3(a) of the POCSO Act, 2012, which provides to the
effect: –
“Section 3. Penetrative sexual assault. —A person is said
to commit “penetrative sexual assault” if —

(a) he penetrates his p enis, 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;”

r/w Section 5(m) of the POCSO Act, 2012, which provides to the
effect: –
“Section 5
….
….
…. (m) whoever commits penetrativ e sexual assault on
a child below twelve years;
…..”
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r/w Section 6 of the POCSO Act 2012, which provides to the effect: –
“Section 6. Punishment for aggravated penetrative sexual
assault .—(1) Whoever commits aggravated penetrative
sexual assault shall be punished with rigorous
imprisonment for a term which shall not be less than twenty
years, but which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of natural life
of that person, and shall also be liable to fine, or wi th
death.

(2) The fine imposed under sub -section (1) shall be just and
reasonable and paid to the victim to meet the medical
expenses and rehabilitation of such victim.”

20. The testimony of DW -1 Sh.Vikas who through his testimony in
cross examination categ orically stated that he was not present in the
locality on the date of the alleged commission of the offence and the
testimonies of DW -2 Sh.Tejpal and DW -3 Sh.Anwar Khan produced
by the appellant d o not inspire any confidence. Significantly, DW -3
who in hi s examina tion in chief stated of having recorded a
conversation in his mobile phone made by the victim allegedly that the
appellant herein had committed no offence which he transferred on to
the mobile phone of the father of the appellant herein through
bluetooth, who was unable to open the bluetooth on the mobile phone
which his uncle brought in Court despite efforts and who stated that he
did not know how to transfer the data from one mobile to another
mobile through bluetooth, is apparently unbelievable when he s tates
that he did not even know how to convert the data from the mobile
phone to the CD and thus, the alleged conversation recorded by
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Sh.Anwar Khan, DW -3 doesn’t have the requisite evidentiary value
for lack of proof in terms of Section 65B of th e Indian Evidence Act,
1872.

21. As rightly held by the learned Trial Court, the testimonies of
DW-1, DW -2 & DW -3 are not reliable in view of the prosecution
evidence that has been brought forth on the record which is cogent and
consistent in relation to all material particulars qua the commission of
the offence on the minor child victim by the appellant herein.

22. As regards the contention raised on behalf of the appellant
herein by the learned counsel for the appellant that the testimony of
the child witness cannot b e believed, in as much as the said witness
can be tutored, it is essential to observe as has been laid down in
“Dinesh Chand Vs. State ” a verdict dated 18.03 .2019 in
CRL.A.330/2018 vide paragraph 7 thereof to the effect: –
“7. It is essential to o bserve th at 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 e ven 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 t here 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 m ay resort to any examination
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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 th e 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, shape d and mo ulded, 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 obstac le 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 categorical ly denied that he had
identified the accused i.e. the appellant herein on the basis
of what the ‘police uncle’ had told him. ”

to observe to the effect that it is only a rule of prudence that the Court
finds it desirable to have the corroboration of the ev idence of the child
from the testimonies of the witnesses and it is not the law that if a
witness is a child, his evidence shall be rejected even if it is found
reliable. In the instant case, the testimony of Smt.G, the mother of the
child witness is also categoric al stating that the minor child had
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informed her that the perpetrator of the crime was the appellant along
with another JCL.
23. It is essential to observe that even in the instant case the
child examined as PW -1 has categorically stated that he had
identifie d the appellant himself and not on the basis of what the
police madam told him to state.
24. In the circumstances, it is held that there is no infirmity in the
impugned judgment of conviction of the appellant vide the impugned
judgment dated 25.11.20 19 in rel ation to FIR No.269/2014, PS
Bawana of the learned ASJ -06, North, Special Court, POCSO, Rohini
and the impugned order on sentence dated 30.11.2019 sentencing the
appellant to RI for a period of 10 years, to pay a fine of Rs.10,000/ –
and in default of the p ayment of said fine to further undergo SI for a
period of 6 months qua the offence punishable under Section 6 r/w
Section 5(m) of the POCSO Act, 2012 as well as RI for a period of 3
years, to pay a fine of Rs.5,000/ – and in default of the payment of said
fine to further undergo SI for a period of 3 months qua the offence
punishable under Section 325 of the IPC is upheld, however, the
impugned sentence vide which the sentences qua the offence
punishable under Sections 6 r/w 5(m) of the POCSO Act, 20 12 and
under Section 325 of the IPC had been directed to run
consecutively are directed to run concurrently with the benefit of
Section 428 of the Cr.P.C., 1973 being given to the appellant.
25. Furthermore, taking into account the age of the appellant who is
not a pr evious convict being 26 years of age as on 28.07.2020 as per
the nominal roll received from the Superintendent Central Jail -01,
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Tihar , Delhi and in terms of the verdict of Supreme Court in “Phul
Singh Vs. State of Haryana” in Criminal Appeal No. 5 06/1979
decided on 10.09.1979 and directions laid down by us in “Sanjay vs.
State” MANU/DE/0430/2017 : 2017 III AD (Delhi) 24 dated
20.02.2017 so that the “carceral period reforms the convict” as also
reiterated by this Court in “Randhir @ Malang vs. State ” in Crl.A.
No. 456/2017, “Chattu Lal vs. State” in Crl.A. No. 524/2017, “Afzal
vs. State (Govt. of NCT of Delhi)” in Crl.A. No.996/2016, “Billo Vs.
State NCT of Delhi” in Crl.A. 378/2017, “Dinesh Chand Vs. State
(Govt. of NCT of Delhi)” in Crl.A. No. 330/ 2018, “Ri nku @ Ram
Prasad Vs. State” in CRL.A. 865/2019, “Sanjeev Kumar vs. State
(NCT of Delhi)” in Crl.A. No.643/2019 and “Manoj Tyagi Vs. The
State (Govt. of NCT, Delhi )” in Crl. A. No. 93/2019 , it is essential
that the following directives detailed her eunder ar e given so that the
sentence acts as a deterrent and is simultaneously reformative with a
prospect of rehabilitation.
26. It is thus directed that t he concerned Superintendent of the Jail,
New Delhi where the appellant shall be incarcerated for the r emainder
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 Chap ter 22
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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;
• adequa te counse lling 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 th e Jail rules and in accordance with
the Model Prison Manual.

27. Furthermore, it is directed that a Bi -annual report is submitted
by the Superintendent, Central Jail -01, Tihar , New Delhi to this Court
till the date of release of the measures being a dopted fo r reformation
and rehabilitation of the appellant.
28. Copy of this judgment be also sent to the Director General,
Prisons, Delhi and to the Secretary, Law, Justice and Legislative
Affairs, GNCTD, Delhi to ensure compliance of the above directions.
29. The CRL.A .367/2020 is disposed of accordingly.
30. The Trial Court Record be returned.
31. Copy of this judgment be supplied to the appellant and be sent
to the Superintendent Jail, Delhi for compliance.

ANU MALHOTRA, J.
JANUARY 29th, 2021
‘neha chopra’
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