KALICHARAN @ KALKA PRASAD  Vs STATE

CRL. A. 313/2017 Page 1 of 9IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 06.01.2021
+ CRL. A. 313/2017
KALICHARAN @ KALKA PRASAD …..Appellant
Versus
THE STATE (G.N.C.T. OF DELHI) ….. Respondent
Advocates who appeared in this case:
For the Appellant : Mr Inderjeet Sidhu, Advocate (DHCLSC).
For the Respondent : Mr Amit Gupta, 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 07.10.2016, whereby he was convicted of an offence
punishable under Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter ‘POCSO Act’). He also impugns an
order dated 08.10.2016, whereby he was sentenced to serve rigorous
imprisonment for a period of ten years with a fine of ₹2,000/- for
committing an offence punishable under Section 6 of the POCSO Act
– an aggravated penetrative sexual assault. It was further directed that
on failure to pay the fine, he would go simple imprisonment for a
period of fifteen days.
2021:DHC:25CRL. A. 313/2017 Page 2 of 92. The appellant was prosecuted pursuant to registration of an FIR
bearing no. 150/2013, under Section 376 of the Indian Penal Code,
1860 (IPC) registered with PS Karawal Nagar. The said FIR was
registered at the instance of the victim’s mother (hereinafter referred
to as ‘the complainant’). On completion of investigation, the
chargesheet was filed against the accused Kalicharan for offences
punishable under Section 376(1) of the IPC and Section 4 of the
POCSO Act. By an order dated 03.12.2013, the Trial Court framed a
charge against the accused Kalicharan for committing an offence
punishable under Section 6 of the POCSO Act. The accused
Kalicharan pleaded guilty and was tried for committing the said
offence.
3. It is the case of the prosecution that the complainant’s sister had
made a PCR call at about 11:45 a.m. on 13.03.2013 for reporting the
offence. The said call was received and entered as DD No.14A at PS
Karawal Nagar. She had reported that at the given address, one man
had done a wrong act with a two year old child. At the material time,
HC Ramesh Kumar (who was examined as PW2) was on duty as a
Duty Officer at PS Karawal Nagar. He testified that he had received
the call regarding sexual assault on a two year old girl and had
recorded the same as DD No.14A. He further testified that he had
handed over the said DD to ASI Yogesh Tyagi for taking the
necessary action. ASI Yogesh Tyagi was examined as PW4. He
confirmed that he had received DD No.14A (Ex.PW2/A) on
13.03.2013. He further testified that on receipt of the said DD, he
2021:DHC:25CRL. A. 313/2017 Page 3 of 9along with Ct. Rohtash went to the spot (H No. B-187, Gali No. 6,
Shiv Vihar, Ambika Vihar, Delhi) and on reaching the spot, he found
that the victim had already been taken to GTB Hospital by the PCR.
He stated that he along with Ct. Rohtash went to GTB Hospital and
found that the victim (a two year old girl) was admitted there. He
stated that he met the parents of the victim at the hospital and
collected the MLC. Thereafter, he gave information to the Duty
Officer. He collected a sealed parcel from GTB Hospital containing
the victim’s samples and thereafter, he along with the victim and her
parents came back to the spot. He testified that he met SI Monika at
the spot and handed over the parcel to her and thereafter, SI Monika
recorded the complainant’s statement (Ex.PW1/A).
4. In her statement (Ex.PW1/A), the complainant stated that she
along with her husband and family reside at the given address. She
stated that she has two children, a boy aged seven years and a girl
aged two years (the victim in this case). She stated that her husband
works at a hotel in Kalkaji. She alleged that on 13.03.2013 at about
07:30 a.m., she was in her room making tea. Her husband was also
present in the room and her daughter was playing outside. When she
did not return for about thirty/forty five minutes ( aadhe pone ghante ),
she went out to fetch her but did not find her anywhere outside.
Thereafter, she went to the terrace to look for her and there she found
that her landlord’s son (who was aged about four to five years) was
standing facing the latrine. She stated that she went towards the latrine
and found that the landlord’s paternal uncle (the appellant herein) was
2021:DHC:25CRL. A. 313/2017 Page 4 of 9inside without any clothes and he had inserted his penis in her
daughter’s (the victim’s) mouth. Her daughter was struggling ( chat
pata rahi thi ) and tears were rolling down her eyes. She stated that on
seeing her, the accused was taken aback ( chonk gaya ) and he got up.
Resultantly, the victim who was in his lap fell down. She stated that
she picked up the child and then raised an alarm. Hearing the same,
her husband also came up to the terrace and she told him about the
incident. In the meanwhile, the accused fled from the spot. She stated
that the clothes worn by her daughter were soiled so she took them off
and bathed her. She said thereafter, she went to her younger sister’s
place (who lived a few lanes away) and informed her about the
incident. Her sister called the PCR. The police arrived and took her
and the victim to GTB Hospital for a medical examination.
5. The prosecution’s case rests mainly on the testimony of the
complainant. She was examined as PW1 and her testimony is
consistent in all material aspects with her statement recorded on the
date of the incident.
6. She was cross-examined. In her cross-examination, she stated
that she lived in the house as a tenant and had been residing there for
two to three years prior to the incident. She stated that initially the
monthly rent was about ₹800/- per month, which was raised to
₹1,100/- per month. She stated that she had vacated the premises after
about a month of the incident. She denied the suggestion that she did
not pay the rent on time and affirmed that she always paid the rent on
time. She also denied the suggestion that the accused had been falsely
2021:DHC:25CRL. A. 313/2017 Page 5 of 9implicated for not paying the rent. She stated that the room rented to
her was on the ground floor and there was a toilet and a bathroom
located at the ground floor as well as the first floor. She stated that
there was no door to the bathroom and the toilet and there were only
jute bags that were hung, which functioned as a door. She was shown
the photographs of the bathroom by the learned counsel for the
accused (appellant) and she identified the same.
7. In her cross-examination, she stated that she had gone to her
sister’s place at about 07:30 a.m. on the date of the incident. She stated
that her house was two lanes away and it takes about five to ten
minutes to reach her sister’s house from her house. She further stated
that the police had arrived at the spot within thirty minutes of making
the call.
8. SI Monika (who was the Investigating Officer) was examined
as PW11. She also affirmed that she had recorded the statement of a
child eyewitness aged about 5 years. The said child witness had also
stated that the accused had taken the victim to the terrace for taking
her to the toilet. He had stated that the accused wanted to defecate and
he had taken off his clothes. He further stated that he was doing
something with the mouth of the victim and she was crying. The child
was also called for recording his testimony before the court but the
court found that he was unable to understand the questions put to him
or give any rational answers. The court noted that by that time, two
years had elapsed and the child eyewitness was now seven years old.
His memory regarding the incident was not clear. Accordingly, he was
2021:DHC:25CRL. A. 313/2017 Page 6 of 9dropped from the list of witnesses. Thus, although the incident was
also witnessed by a child, he could not be examined.
9. The medical examination of the victim is of no assistance to the
prosecution as there were no injuries found on the child. Her oral
swabs were taken and were examined for forensic evidence. However,
no traces of semen could be found and the sample did not yield any
DNA of the accused. After the incident, the child was bathed and the
fact that her oral swab did not yield any positive result for semen or
any biological traces of the accused, is of little assistance, to the
appellant as the same does not overrule the commission of such an
offence.
10. As stated above, the prosecution’s case rests mainly on the
testimony of the complainant (the victim’s mother). Her testimony is
unequivocal. It is consistent with her statement recorded at the
material time. Her testimony is also supported by the testimony of her
husband as well as that of her younger sister. There is a minor
discrepancy regarding the time of the incident. In her complaint, she
had stated that she was in her room at about 07.30 a.m. on the date of
the incident and was preparing tea. She stated that she had stepped out
to look for her daughter who was playing outside but could not find
her. She had then gone up to the terrace to look for her and had
witnessed the accused in the act of committing the said offence.
Thereafter, she had picked up the victim and in the meanwhile the
accused had fled. She had given the victim a bath and thereafter, she
had gone to her sister’s residence, which was two lanes away. Thus,
2021:DHC:25CRL. A. 313/2017 Page 7 of 9she would have gone to her sister’s residence at least after about thirty
minutes, that is, about 08.00 am. However, in her cross-examination,
she stated that she had gone to her sister’s place at about 7.30 a.m. The
Trial Court had found that the said minor inconsistency was of no
relevance. There is no doubt that the prosecutrix had gone to her
sister’s place after the incident. Her sister had also testified to the
aforesaid effect. The complainant had also stated that her sister had
made a call to the PCR. This is also affirmed by her sister. The call
was received at 11.25 a.m., which was entered as DD No.14A at PS
Karawal Nagar (Ex.PW2/A).
11. Keeping in view the timelines, the inconsistency in the
complainant’s statement and her response in her cross-examination
regarding the time when she had gone to her sister’s residence, would
not be of much relevance. The Trial Court has rightly ignored the
same.
12. In view of Section 29 of the POCSO Act, the onus to prove his
innocence rests with the accused. The appellant had examined three
witnesses in his defence. His nephew (who was the landlord of the
premises in which the complainant and her family resided) was
examined as DW1. He had testified that he had sent the accused to the
complainant to collect rent, but she had made a false accusation
against him. His testimony does not absolve the accused of
committing the alleged offence as DW1 was not present at the
occasion. Secondly, DW1 did not testify that the complainant was not
regular in paying rent or there were any issues in collection of rent.
2021:DHC:25CRL. A. 313/2017 Page 8 of 9Thus, his testimony does not further the defence that the complainant
had falsely implicated the accused to avoid paying rent. The
complainant had, on the other hand, unequivocally stated that she was
always regular in paying rent and there was no dispute regarding the
same. Further, she and her family had left the premises after a month
of the incident.
13. Wife of DW1 was examined as DW2. She testified that on
13.03.2013, she had asked the accused to collect rent from the
complainant as three to four months’ rent was due from her. Her
testimony also does not inspire any confidence. Admittedly, DW1 was
the landlord of the premises. He had testified that he had asked the
accused to go and collect rent. Thus, there was no occasion for DW2
to send the appellant to the complainant and collect rent. Further,
DW2 was also not sure whether at the material time, rent was overdue
for two months, three month or four months. She was cross-examined
and in her cross-examination, she admitted that she had not informed
the police about asking the accused to go and collect rent at the
material time.
14. One Khem Chand, who was the immediate neighbour of the
complainant, testified as DW3. He stated that the accused had gone to
the residence of the complainant to collect rent and there was a quarrel
between them. There is no dispute that the complainant had raised an
alarm.
2021:DHC:25CRL. A. 313/2017 Page 9 of 915. It is also relevant to state that no suggestion was put to the
complainant that there was any quarrel between her and the appellant.
16. In view of the above, this Court concurs with the view of the
Trial Court that the evidence led on behalf of the defence, does not,
inspire any confidence. On the other hand, the testimony of the
complainant is fully supported by the testimony of her sister (PW8).
The testimony of the official witnesses does not in any manner raise
any doubts.
17. In view of the above, this Court finds the appeal unmerited and
the same is, accordingly, dismissed.
VIBHU BAKHRU, J
JANUARY 06, 2021
RK
2021:DHC:25