Delhi High Court has recently held that the Presiding Officer is expected to remain sensitive when a child of tender age is under examination. The Court has made the above observation while dismissing an Appeal filed by Accused Hazari Paswan against his conviction and sentence for offence punishable under Section 10 of POCSO Act and sentenced to undergo RI for five years with fine `5,000/-.
The allegation against the Accused was that he committed rape upon a girl child aged around five years.
Appellant's counsel urged that the Trial Court committed material irregularity while recording victim's [X] statement and put various leading questions. It ignored the material infirmities and inconsistencies emerging in the statements of the prosecution witnesses. It overlooked the fact that victim aged about five years was not competent to depose and the statement given by her was at her mother's behest. X's mother did not permit her medical examination to be conducted. 'X' has made vital improvements in her Court deposition. No independent public witness was associated at any stage of the investigation. But the Public Prosecutor urged that when the child had gone to appellant's house to watch TV she was sexually assaulted there. No sound reasons prevail to disbelieve the statement of the child witness.
Dismissing the arguments for the Accused, Justice PS Teji has observed that the child was very intelligent.
“She was examined in a congenial atmosphere and was made comfortable to narrate her ordeal; she drew a beautiful sketch of coloured flower; which is part of record. The child had nothing to do with any animosity over any issue with her parents. No valid reasons whatsoever exist to suspect the version given by the child and to discredit her testimony”, the Court added.
The Court also observed that no question described as 'leading' causing prejudice to the appellant has been put at the time of X's examination.
“The Presiding Officer is expected to remain sensitive particularly when a child of tender age is under examination. While conducting trial, Court is not required to sit as a silent spectator but to take active part within the boundaries of law, to bring on record the relevant facts for the purpose of eliciting truth. True, 'X' was not medically examined. However, it is inconsequential. Medical evidence was not required in the absence of mere specific allegations of penetrative sexual assault. Moreover, in 'Dayal Singh vs. State of U.P.', 2012 (8) SCC 263, the Supreme Court held that where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusion. Besides it, plausible explanation has been offered for it. Victim's mother was apprehensive about the painful procedure to be adopted at the time of such internal medical examination and she did not like 'X' to undergo the said trauma”, the Court added.
Dismissing the Appeal the High Court held as follows:
“The sentence order is based upon fair reasoning. Minimum sentence prescribed under Section 10 of the Act has been awarded and it cannot be altered or modified. The crime committed by the appellant is horrible as a child aged around five years was ravished by an individual aged around 42 years, father of five children. 'X' was like his own daughter; she had gone to his residence unsuspectingly to watch TV. The appellant exploited her innocence and betrayed the trust of her family members as neighbour”.
Read the Judgment here.