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2018 Supreme(Del) 2721
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. MURALIDHAR, V. KAMESWAR RAO, JJ.
Gopi Nisha Mallah - Appellant
Versus
The State - Respondent
Crl. A. 595 of 2018 & Crl. M.B. 887 of 2018
Decided On : 04-09-2018
Advocate Appeared:
For the Appellant : Mr. Pawan Sharma
For the Respondent: Mr. K.S. Ahuja
The reliability of the victim's testimony, corroboration of evidence, and the need for sensitivity and careful evaluation in cases involving sexual assault.
Headnote:
POCSO Act - Conviction under Sections 376(2)(i) and (m), 363, and 325 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 - Summary of Acts and Sections: Sections 376(2)(i) and (m), 363, 325 IPC, and Section 6 POCSO Act
Fact of the Case:
The case involved the conviction of the Appellant for kidnapping and sexually assaulting an 8-year-old victim, resulting in grievous injuries and hospitalization.
Finding of the Court:
The court found the victim's testimony consistent and reliable, corroborated by medical and forensic evidence, leading to the conviction of the Appellant beyond reasonable doubt.
Issues: The key issues included the reliability of the victim's testimony, corroboration of evidence, and the plea for leniency in sentencing due to the Appellant's lack of criminal antecedents.
Ratio Decidendi: The court emphasized the reliability of the victim's testimony, the trauma experienced by the victim, and the need for sensitivity in cases involving sexual assault. It also highlighted the importance of corroborative evidence and the lack of grounds for leniency given the severity of the crime.
Final Decision: The court upheld the conviction and the sentence imposed by the trial court, dismissing the appeal and application.
S. Muralidhar, J.
The present appeal is directed against the judgment dated 24th April, 2018 passed by the learned Additional Sessions Judge-05 (Central), Tis Hazari Courts, Delhi in SC No.28195/2016 arising out of FIR No.15/2014 registered at PS Bara Hindu Rao, Delhi, convicting the Appellant for the offences punishable under Sections 376(2) (i) and (m), 363, and 325 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’).
2. This appeal is also directed against the order on sentence of the same date whereby the Appellant was sentenced as under:
(a) For the offence punishable under Section 325 IPC, to undergo Rigorous Imprisonment (RI) for a period of 7 years in addition to payment of fine of Rs.3000/-, and in default of payment of fine, to undergo Simple Imprisonment (SI) for 2 years.
(b) For the offence punishable under Section 363 IPC, to undergo RI for a period of 7 years in addition to payment of fine of Rs.3000/-, and in default of payment of fine to undergo SI for 2 years.
(c) For the offence punishable under Section 376(2)(i) and (m) IPC, to undergo RI for life in addition to payment of fine of Rs.2500/-, and in default of payment of fine, to undergo SI for 3 years.
(d) For the offence punishable under Section 6 POCSO Act, to undergo RI for life in addition to payment of fine of Rs.2500/-, and in default of payment of fine, to undergo SI for 03 years.
(e) All sentences were directed to run concurrently.
3. It must be noted that by an order dated 16th April, 2018, the victim was granted interim compensation of Rs.1 lakh by the District Legal Services Authority (‘DLSA’). The trial Court in addition thereto recommended payment of adequate compensation to the victim under the Victim Compensation Scheme in terms of Section 357A CrPC and referred the matter to the Secretary, DLSA, Central District for necessary action.
Charge
4. The charge against the Appellant is that on 2nd February, 2014 between 6.30 to 7 pm, he kidnapped the victim (PW-4), aged about 8 years, while she was playing with her younger sisters and thereby committed an offence punishable under Section 363 IPC; secondly, between 6.30 pm to 9 pm on 2nd February 2014 at the Bonta Park, Kamla Nehru Ridge, he committed rape upon the victim by inserting his finger into her anus and his penis into her vagina and also caused grievous bodily injury while committing rape upon her and thereby committed an offence punishable under clauses (i) and (m) of Section 376(2) IPC; thirdly, he caused her grievous injury thereby committing an offence punishable under Section 326 IPC and fourthly he committed aggravated penetrative sexual assault by inserting his finger into the anus of victim aged about 8 years and his penis into her vagina and thereby committed an offence punishable under Section 6 POCSO Act.
The incident
5. At the time of the incident, the victim was aged around 8 years and was playing in the gali with her younger sisters i.e. PW-3 aged 7 years and another younger sister who was just about 4 years old. In the narration of PW-4, the Appellant came there after sunset and offered to give them something to eat. While her two sisters ran home, PW-4 got left behind. The Appellant lifted her in his lap and from there took her to a park. PW-4 stated “after reaching in the park, the accused had taken out his shushu (penis) from his pant and thereafter inserted in my shushu (vagina). He had also inserted his finger in my potty (anus). Before that he had put down my pajama and underwear.”
6. On the day of the incident, the father of the victim, PW-2, received a call from his wife (PW-1) at around 7.30 pm who told him that the victim had gone missing and asked him to return home. After rushing home PW-2, PW-1 and the brother of PW-2 i.e. PW-9 searched for the victim but did not find any clue till about 9 pm. At around 9 pm, when PW-2 accompanied by PW-1 were proceeding towards PS Bara Hindu Rao to lodge an FIR through the zameer wali gali, the
