An Offence Involving Abuse of Child Victim Is Unpardonable: Delhi High Court

The High Court of Delhi heard a revision petition on February 18th 2021, in case of child sexual assault on a boy.

Background:

In 2012, the police received a call about unnatural sexual assault. The team reached the destination and met a 7-year-old boy along with his parents. The victim was the minor boy, who confessed to being sexually assaulted by a male person, i.e. the accused, Jitender Kumar Goswami (current petitioner).

One day the victim was playing on the terrace where he found an injured pigeon. He took it downstairs to a friend’s house and asked where to keep it. The friend said that he could not keep it, but knew a person could. The boy thus went to the person’s home and found him on the terrace. This person was the accused. The boy gave the pigeon to him and started to leave. However, the accused called him back and asked him to remove his underwear. When the boy said no, the accused slapped him and threatened to kill the boy and the pigeon. The accused then removed the boys’ underwear and as well as his own. He told the victim to lie on the floor and committed unnatural penetrative sexual assault on him. The accused then threatened him but the boy somehow ran away.

After coming home, he narrated the facts to his parents and took his father to the house of the accused. The father apprehended the accused and called the police. A thorough medical examination was done of both the victim and the accused. A charge sheet was filed against the petitioner under Sections 377, 323, 341, 506 of the IPC.

Proceedings in the Lower Court:

         The accused was sent to the trial court where he pleaded not guilty. 20 witnesses were examined. The trial court in 2017 found the accused guilty of the offences under Sections 377, 323 and 506 of the IPC. He was sentenced to undergo two and a half years (30 months) for the offence punishable under Section 377, one year for the offence punishable under Section 506 and six months for the offence punishable under Section 323, all sentences running concurrently.

         This was challenged in the appeal made in the Sessions Court. This court upheld the decision of the trial court in the order from 2018. It is this order that was challenged in the High Court.

Submissions in the High Court:

Counsel for the Petitioner:

The victim said that he was bleeding from his private parts, whereas the examining doctor said there was no blood. He further submitted that the examining doctor could not give an opinion on whether the injuries were old or not. The doctor also stated that the victim did not tell him how he had gotten the injury and there was no swelling either. Due to these facts, it created a doubt whether the accused was, in fact, guilty of the offence under Sec.377. He also stated that there was a dispute between the father of the child and the accused.

He further contended that out of 30 months, the petitioner had already undergone more than 28 months of imprisonment. The petitioner is a tutor and a family man. In case the Court found the petitioner guilty of the offence, he should be let off on the sentence already undergone by him.

Counsel for the Respondent:

         The counsel stated that two courts have accepted the testimony of the child and found it reliable. The examining doctor also found tearing in the private area which cannot be ignored. The version of the petitioner that there was animosity between the father and the petitioner is not believable and further when two Courts have not accepted it either.

Decision of the Court:

         The Hon’ble judge observed that the victim has been always consistent in his deposition and thus was no reason to disbelieve him. The counsel for the petitioner had also not been able to show that the analysis of the deposition of the witnesses and material of the two courts was perverse.

The scope of the revision petition was narrow. For this, the judge also referred to various decisions of the High and Supreme Court to support the decision. After perusal of the entire material on record, the deposition of the witnesses and the documents, the judgments of the Court below were sound and correct in perspective.

The victim and accused were staying close to each other and thus cannot be impossible for him to go to the accused’s house. Further, the friend who suggested going to the accused’s house was found to be reliable. The victim had identified the accused in front of his uncle and father. the topography of the area came to the conclusion that the prosecution had proved the guilt of the accused beyond a reasonable doubt. There was no doubt that the FSL report came only after five years of the incident but the report does not, in any event, show that the petitioner is not guilty, and thus cannot outweigh the deposition of the child.

As for the punishment awarded to the accused and the petitioner’s plea to reduce it, the court referred to the POCSO Act. Upon referral, the court stated,

An offence involving abuse of a child victim is unpardonable. Keeping in mind the nature of the offence, this Court is not inclined to reduce the sentence awarded to the petitioner to one of the sentences already undergone. Releasing the petitioner by reducing the sentence will send a wrong signal to the society and will be against the purpose for which the POCSO Act was enacted.”

The petition was thus dismissed and directed the accused to finish the remaining part of his sentence. 

Click to Read Order

Story by Sai Kulkarni-Intern

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