SUSHIL Vs. STATE (GOVT. OF NCT) OF DELHI

JUDGEMENT

(1.) THE present appeal is directed against a judgment dated 5.1.2013 of learned Additional Sessions Judge in Sessions Case No. 98/11 arising out of FIR No. 184/11 registered at Police Station Kotwali by which the appellant -Sushil was convicted for committing offences under Section 376(2)(f)/377 IPC and sentenced to undergo RI for ten years with fine Rs. 1,000/ - under Section 376(2)(f) IPC and RI for seven years with fine Rs. 1,000/ - under Section 377 IPC. Both the sentences were to operate concurrently.

(2.) ALLEGATIONS against the appellant as reflected in the charge -sheet in nutshell were that on 29.08.2011 he sexually assaulted 'X' (assumed name) aged around 6/7 years and had carnal intercourse against the order of nature with her. PW -6 Swati, connected with Butterflies Organization (NGO) came to know from the victim that she was being abused by the appellant since long and she did not disclose it to her parents due to fear. She (PW -6) gathered courage and lodged complaint (Ex. PW -6/A) promptly; it formed the basis of FIR. During investigation 'X' was medically examined. The accused was arrested and taken for medical examination. Exhibits collected during investigation were sent to FSL for examination. Statements of witnesses conversant with the facts were recorded. Upon completion of investigation, a charge -sheet was filed against the appellant. The prosecution examined sixteen witnesses to substantiate its case. In 313 statement, the appellant denied his involvement in the crime and pleaded false implication at the behest of PW -6 (Swati). He did not adduce any evidence in defence. The trial resulted in his conviction. Being aggrieved and dissatisfied, the instant appeal has been filed.

(3.) MATERIAL and relevant evidence to establish appellant's guilt is that of victim 'X', aged around 6 -7 years. Soon after the occurrence, she recorded statement under Section 164 Cr.P.C. on 30.08.2011. She narrated vivid description of the incident as to when and where she was repeatedly sexually assaulted/abused by the accused. She also charged him of committing similar acts with her younger sister. Before recording her Court statement as PW -4 various questions were put by the learned Presiding Officer to ascertain if 'X' was a competent witness, able to give rational answers to the questions put to her. After satisfying that she was competent to give statement, the Trial Court recorded her statement without oath. She corroborated the version given by PW -6 (Swati) in her complaint (Ex. PW -6/A) at the first instance in its entirety. Identifying the accused correctly in the Court, she disclosed that one night, he took her to Petiwali Market and inserted finger/hand in her private parts; he also inserted male organ in her female organ and mouth. When she felt pain, he put his hand on her mouth and slapped her. She further deposed that the appellant committed it several times after taking her with him at the time of sleep with her siblings. In the cross -examination, she denied to have been tutored by Swati (PW -6). She volunteered to add that she had advised her to tell the truth before the police. No ulterior motive was assigned to the child witness to make false statement. Nothing has emerged if 'X' or her family members had any serious enmity or strained relations with the appellant forcing them to falsely rope him in the heinous offence. 'X' a hapless little child had no fixed place to live. She along with her siblings and parents used to sleep on the footpath and was a ragpicker. The accused used to allure her on the pretext to serve food at night. She admitted that the accused was handicap and had no left leg below the knee. On analysing the entire statement of the prosecutrix, it reveals that she has implicated the appellant without any hesitation to be the perpetrator of the crime. Despite putting number of questions, her version could not be shattered and no material infirmities or discrepancies could be elicited. 'X' and her family members had no strong motive to concoct a fake story implicating the appellant.