A minor inconsistency in the testimony of the victim will not stand as a bar to conviction: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 07.01.2021 CRL. A. 969 2017 STATEAppellant ..... Respondent Advocates who appeared in this case: For the Appellant For the Respondent Mr Kanhaiya Singhal Advocate. Mr Ravi Nayak APP for State. HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J The appellant has filed the present appeal impugning a judgment dated 07.05.2015 whereby the appellant was convicted of an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act 2012 and met the prosecutrix and her parents . He testified that he had apprehended the accused as he was informed that he had assaulted the prosecutrix. He further stated that SI Saroj was called to the spot and she recorded the statement of the victim and got the FIR in question registered she stated that she studies CRL. A. 969 2017 in fourth standard in an NDMC school and resides with her parents in a jhuggi. She stated that because of the summer months the door of the jhuggi remains opened. She alleged that at about 03:00 a.m. one boy whose name was Vijay and who lived in the same cluster of jhuggies had entered her jhuggi while all its inhabitants were asleep. She stated that she was acquainted with the accused. She alleged that he removed her underwear and started feeling her vagina and he forcibly inserted the finger from where she defecates. She stated that she raised an alarm and her parents woke up. They attempted to apprehend him but he fled from the spot. She stated that her parents searched for him and found him at about 06:00 a.m. on the terrace of the silai center. They caught hold of him and called the police. She stated that the police officials came and he was handed over to them. Her statement under Section 164 of the Cr.PC was recorded on the same dateshe stated that he had entered the jhuggi at around 03:30 a.m. In addition she also stated that for the past three or four days the accused had been following her all the way to her school and she had not understood why he was doing so. CRL. A. 969 2017 conducted. The prosecutrix was examined medically. However there were no injury marks and her mother refused to get her internal examination The prosecutrix was examined as PW1. In her examination she stated that on the night of the incident the accused had opened her salwar and had inserted his finger from where she urinates and where she defecates. She had stated that she felt pain and she had called out to her parents and her parents had woken up. She once again confirmed that the accused had fled from the spot and was apprehended at about 06:00 a.m. from the silai center. The prosecutrix was cross examined. In her cross examination she was pointedly asked whether it was possible that some other person might have entered the jhuggi and not the accused Vijay. She denied the suggestion and reiterated that it was the accused Vijay who had entered her jhuggi and had committed the offence. She was asked whether any of her chachi resides in the same area and she responded in the affirmative. She was then asked whether the accused had any quarrel with her chachi and she replied in the negative. The father of the prosecutrix was examined as PW2. He testified that on 23.09.2013 he was present in his jhuggi along with his family members and at about 3 3:30 a.m. he heard a scream from his daughter and on hearing the same he and his wife woke up. On inquiries her daughterhad told him that the accused who was standing there had committed a wrong act with her. He testified CRL. A. 969 2017 that he attempted to apprehend the accused but he managed to flee. He stated that at about 06:00 a.m. he was found present at silai center sewing center) which was located in front of his jhuggi. He stated that thereafter he called the police and handed over his custody to them. In his cross examination he confirmed that one Smt. Chaman resides in his neighbourhood but he did not know that whether the behavior of Smt. Chaman was cordial with the family of the accused. 10. There is no dispute that the prosecutrix was a minor at the material time. The Principal of her school was examined as PW3 and she had produced the admission register of the school and a photocopy of the relevant entry was taken on record of the prosecutrix where it was recorded that the offence was committed by a person whose name was not known. He submitted that whereas before the concerned doctor the prosecutrix had stated CRL. A. 969 2017 that she did not know the name of the accused. However in her statement recorded under Section 161 of the Cr.PC she had specifically named the appellant. She had also stated that she already knew him. He submitted that the prosecutrix had further improved upon the allegations in her statement recorded under Section 164 of the Cr.PC. In that statement she had further alleged that the accused had been following her to her school for the last three to four days prior to the date of the incident. 13. This Court has examined the evidence obtaining in this case. The testimony of the prosecutrix cannot be considered as unreliable. This Court finds no material inconsistency between her testimony and her statements recorded earlier. The fact that she alleged that the appellant had been following her for three to four days prior to the date of the incident in her statement recorded under Section 164 of the Cr.PC does not in any manner raise any doubts as to the allegations made by her. Her testimony is also consistent with the testimony of her father (PW2). It is material to note that in her examination before the Court she had stated that the accused had inserted his finger in her vagina as well as in her anus. However in her initial statement as well as in her statement recorded under Section 164 of the Cr.PC she had not made any allegations of the accused inserting his finger in her vagina. She had stated that he had touched her vagina and felt it. However this too is of little relevance in the given circumstances. It is relevant to note that the prosecutrix was asleep when the accused had removed her underwear opened her CRL. A. 969 2017 salwar. She had woken up with the accused committing the said acts. Her allegations are essentially that he had felt her vagina and had inserted his finger in her anus. 14. Considering the manner in which the offence was committed the inconsistency regarding whether he had inserted his finger in the vagina or had felt it would not be of much relevance. In any event this Court is of the view that the said inconsistency does not in any manner raise any doubts as to the allegations made by the prosecutrix. 15. The contention that he had been falsely implicated because the name of the accused was not mentioned to the concerned doctor who had examined the prosecutrix is also unpersuasive. It is material to note that the prosecutrix was taken for the medical examination by the concerned police official and her mother. There is no reason to believe that her mother knew the name of the appellant and it appears that the mother had narrated the incident to the doctor. 16. As far as the prosecutrix is concerned she had named the appellant as the person who had committed the offence in her first statement that was recorded in the morning of the date of the incident. She had also named him in her statement recorded under Section 164 of the Cr.PC as well as in her examination before the Trial Court. In view of the above there is no doubt that the prosecutrix was aware of the identity of the appellant and had identified him. CRL. A. 969 2017 In view of the evidence obtaining in this case this Court concurs with the view of the Trial Court that the appellant is guilty of the offence for which he is charged. 18. The appeal is unmerited and is accordingly dismissed. JANUARY 07 2021 VIBHU BAKHRU J CRL. A. 969 2017 

Summary: Minor inconsistency in the statement and testimony of the victim will not stand as a bar in the conviction and ordered the appellant to be guilty under the offenses charged under the POSCO Act. This was held in the case of Vijay v. State, [CRL. A. 969/2017] by Hon’ble Justice Vibhu Bhakru in the High Court of Delhi. The appellant was convicted of an offense punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The appellant also was sentenced to serve ten years of rigorous imprisonment along with a fine of ₹10,000/- for the offense for which he was convicted. The appellant was charged with barging in the jhuggi of the victim at about 03.00 a.m. It was alleged that he had removed the panty/underwear of the prosecutrix (a minor aged about nine years at the material time). He had allegedly touched her vagina and had also inserted his finger inside her anus. The statement of the prosecutrix stated that the door of the jhuggi remains opened. She alleged that at about 03:00 a.m. one boy whose name was Vijay and who lived in the same cluster of jhuggies had entered her jhuggi while all its inhabitants were asleep. She stated that she was acquainted with the accused. She alleged that he removed her underwear and started feeling her vagina and he forcibly inserted the finger from where she defecates. She stated that she raised an alarm and her parents woke up. They attempted to apprehend him but he fled from the spot. She stated that her parents searched for him and found him at about 06:00 a.m. on the terrace of the silai center. They caught hold of him and called the police. She stated that the police officials came and he was handed over to them. In his statement recorded under Section 313 of the Cr.PC, the appellant stated that he had been falsely implicated as his family did not have good relations with the family. He alleged that she had persuaded the family of the prosecutrix to falsely implicate him in this case.