Read Order: Sunil @ Bala v. State of Haryana
Chandigarh, April 29, 2022: While dealing with a POCSO Act matter wherein penetrative sexual assault was committed upon a young homeless child, the Punjab and Haryana High court has held that there cannot be any bar to base the conviction on the testimony of a victim of sexual assault in the event her testimony inspires confidence and is found to be reliable.
The Bench of Justice Vivek Puri added, “… though as per the report of the FSL, no semen was detected, but keeping in view the fact that the victim has not attributed virginal sexual intercourse, the non detection of semen in the vaginal swabs pales into insignificanc.”
In this case, the victim, aged about 7-8 years was brought to Bal Anathalya Sondhapur, Panipat, where the caretakers noticed burn marks near her private parts and the child was also visibly in a petrified situation.
On registration of an FIR and the subsequent investiagtion that was carried out, it came to the light that the victim was working in the house of the appellants where Sunil @ Bala (appellant) committed penetrative sexual assault, while Kamla-appellant forcibly kept hot forceps (Chimta) on her private parts and threatened her not to disclose the incident to any other person.
Both the appellants were convicted under Sections 342/34, 323/34 of the Indian Penal Code. Furthermore, Sunil @ Bala-appellant was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (`Act, 2012’) and Kamla-appellant was convicted under Section 17 of the Act, 2012. Hence, the present appeals were filed.
The child was examined by the prosecution as the first witness. She was found to be in a fit state of mind to be able to understand the questions and answer them. She stated her age to be 11 years. In her testimony the child deposed that after she used to live in a rented accommodation with her mother, who later (like her father) abandoned her.
Kamla (appellant), a neighbour of the child, took her (child) to her house; harassed and pressurized her to do household work. Sunil-appellant (son of Kamla-appellant) committed penetrative sexual assault upon her on 2-3 occasions and when the incident was reported to his mother (Kamla), she who forcibly kept hot forceps (Chimta) on the child’s private part and threatened her not to disclose the fact to any person.
Thus, she fled away from the house and was brought to the Anathalaya.
The defence version put forth by Sunil-appellant was to the effect that the victim was neither known nor he committed any wrong act with her and that he was working as driver by profession and mostly remained out of station. While the ground that by Kamla-appellant was to the effect that her daughter-in-law was also residing with her and used to do household work. The victim never remained in her house and no act of sexual or physical assault was committed with the victim who was stranger to her.
While assailing the judgment of the trial Court, the counsel for the appellant mainly argued that while appearing in the witness box as PW1, the victim displayed silence with regard to the detail of wrongful act committed upon her, during her examination-in-chief. It was argued that she was the solitary witness to the occurrence and even as per the report of the Forensic Science Laboratory, semen could not be detected.
It was also contended that as per the deposition of Dr. Rakesh, PW12, the age of the victim was worked out to be 14-15 years and as such, she was aged more than 12 years at the time of occurrence, consequently, no offence under Section 6 of the Act, 2012 was made out. It was also argued that in fact, the occurrence took place in the Bal Anathalaya and as a cover up, the appellants were falsely implicated.
On the contrary, the State counsel argued that there is no bar to base the conviction on the solitary statement of the victim as the same is reliable and that the statement of the victim was recorded after the trial Court was satisfied that the witness was capable of giving rational answers to the questions put to her and was competent witness.
It was also submitted by the State Counsel that there were repeated acts of sexual assault and even hot forceps was used to inflict the injuries on the private part which aggravates the gravity of allegations against the appellants and the case squarely falls in the category of aggravated penetrative sexual assault. Lastly, it was added that the defence version was unreliable and a result of afterthought as there was no documentary evidence to indicate that the appellant was working as driver and was away when the offence was committed.
At the very outset, the Court addressed the argument on the probative value of a child witness. It was observed that there cannot be any bar to base the conviction on the testimony of a victim of sexual assault in the event her testimony inspires confidence and is found to be reliable and that seeking corroboration of her statement before relying upon the same, as a rule, amounts to adding insult to the injury.
The Court further added that in the event, the victim of sexual assault gives a vivid and reliable account of the entire episode, there cannot be any bar to base the conviction on the statement of such a witness and that the statement of a victim of sexual assault can be relied upon if a deposition inspires confidence and is free from embellishment or improvements.
Moreover, Justice Suri asserted that the statement of a child witness has to be appreciated with care, caution and circumspection and in the event, the child has intellectual capacity to understand the questions and give rational answers thereto, she can be allowed to testify and the evidence of such a witness is not to be rejected merely on the score that there is no other supporting eye witness or corroborative evidence provided the evidence of such a witness is reliable and convincing.
Applying this legal position to the present case, it was observed that the victim while appearing in the witness box gaven a vivid, candid and satisfactory account with regard to the occurrence. The argument raised on behalf of the appellants to the effect that she has not elaborated or described the wrongful act in examination-in-chief was thus rejected.
While rejecting this argument, the Bench expounded that the statement of a witness has to be evaluated in entirety and that in the present case, the child categorically and specifically stated that Sunil-appellant pressed her mouth and committed wrong act with her 2-3 times.
Further, addressing the argument on absence of semen detection in FSL Report, the Court perused the provisions of Section 3(a) of the Act, 2012 to observe that the offence of penetrative sexual assault is not only confined to vaginal intercourse.
“The aforesaid deposition of the victim is indicative of the fact that the act committed by Sunil-appellant squarely falls in the category of penetrative sexual assault”, opined the Court while also importantly obsering that though as per the report of the FSL, no semen was detected, but keeping in view the fact that the victim has not attributed virginal sexual intercourse, the non detection of semen in the vaginal swabs pales into insignificance.
Additionally, ruling out the possibility of commission of the offence in the Anathalaya, the Court observed that the duration of injuries as specified in the medical opinion were indicative of the fact that such injuries could not have been caused during the period the victim was in Bal Anathalaya.
On the argument pertaining the age of the victim, the Court was of the considered view that no other document depicting the date of birth or age of the victim was coming forth and as such, it could be construed that the age of the victim was more than 12 years and the case did not fall in the category of aggravated penetrative sexual assault.
In light of the above, the Court opined that not only that Kamala not only harassed the child but also inflicted injuries by means of hot forceps on the genital area of the victim and further threatened her not to disclose the incident. She even willfully concealed the material facts and her act amounts to instigation and abetment to commit an offence.
Consequently, Court opined that the act attributed to the appellants fell in the provisions of Section 5(h) and (l) of the Act, 2012 and amounted to aggravated penetrative sexual assault. Thus,the Court did not find any justified reason to alter the conviction of the appellant with regard to offence under Section 6 of the Act, 2012 merely on the score that her age was more than 12 years at the time of occurrence.
Thus, eventually, the Court opined that it was sufficiently proved and established that Sunil-appellant committed penetrative sexual assault upon the victim on repeated occasions and furthermore, her mother-Kamla-appellant aided and abetted the commission of such crime.
“As such, no illegality or irregularity is made out in the impugned judgment of conviction and order of sentence which may call for interference by this Court. The judgment of conviction has been correctly recorded and adequate sentence commensurate with the guilt of the appellants has been imposed upon them”, held Justice Suri.