Hunny v State of New Delhi (2017)

CaseHunny v State of Delhi, 2017
CourtIn the High Court of Delhi
BenchHON'BLE MR. JUSTICE S.P.GARG
Decided On June 06, 2017
Advocate for the appellantMr.Tarun Khanna for Ms.Saahila Lamba, Advocate.
Advocate for the respondentMs.Meenakshi Dahiya, Additional Public Prosecutor.
AbstractIn the present case delivered by the High Court of Delhi, the judge has relied upon the evidence given by the victim, 5 years old, with the support of the baby doll. The High Court upheld the conviction given by the trial court. The victim was kidnapped and was sexually assaulted and slapped by the appellant. Her internal medical examination was not allowed by the victim's mother in lieu of her dignity. But the evidence collected from the brother of the victim and independent witness resulted in conviction of the appellant for the offences under Indian Penal Code and POSCO Act.
Author of the briefAditya Gor
KeywordsPOSCO, Indian Penal Code, Criminal Procedure Code, Sexual Assault, Kidnapping, Indian Evidence Act.

Brief Facts of the case:

On 21.07.2014 at around 9.00 am, the appellant kidnapped the prosecuritex/victim ‘X’ (changed name), aged around five years from the lawful guardianship of her parents when she was going along with her brother to her school. The appellant after kidnapping took the child to Police Colony, Narela with intent to force/seduce her for illicit intercourse. The appellant sexually assaulted the child and also slapped her.

At around 12:30 p.m., Neelam (PW-3), who lived in the neighbourhood of victim’s parents noticed ‘X’ standing near Gol Chakkar of Partap Bagh. She brought the child to her home. The police were intimated. ‘X’ was taken for a medical examination but her mother did not permit her internal medical examination. Her statement under Section 164 Cr.P.C. was recorded. The appellant was arrested and was medically examined. Statements of the witnesses conversant with facts were recorded. Upon completion of the investigation, a charge-sheet was submitted against the appellant for the commission of aforesaid offences. In 313 CrPC statements, the appellant denied his complicity in the crime and pleaded false implication. The trial resulted in a conviction.

Procedural History:

Appellant Hunny was held guilty for commenting offences under section 363/323 of Indian Penal Code and section 10 of the POSCO Act by a judgement dated 12.04.2016 of Additional Sessions Judge. This is the appeal preferred by him against the said judgment.

Arguments of the appellants:

The Trial Court did not appreciate the evidence on record in its proper perspective and fell into grave error to base a conviction on the sole testimony of the child witness who was unable to respond to the questions put to her. In her deposition before the Court, she did not utter if sexual assault was committed upon her. CCTV footage relied upon by the prosecution is not admissible in evidence in the absence of Certificate under Section 65B Evidence Act.

Arguments of the Additional Public Prosecutor:

Refuted the contentions and urged that the evidence of the prosecutrix is beyond suspect and can be believed.

Evidence Relied Upon:

In the instant case, the victim X is 5 years old and his brother Y is 10 years old. The learned presiding officer conducted the preliminary enquiry to ascertain whether Y was capable of understanding the question and answering them properly. The court was satisfied that witness was capable of doing so. Through various other questions put forward to him, it was satisfied by the court that no material discrepancy could be found in his evidence. No ulterior motive was attributed to the child for falsely implicating the appellant in the kidnapping of his sister.

Further PW-10, the victim girl child was also questioned. No discrepancies or infirmities have emerged in her cross-examination. Again, no ulterior motive or extraneous consideration has been assigned to the child witness for false implication. The statement of the child is consistent. She identified the appellant to be the perpetrator of the crime without hesitation.

Further PW 8 (Rajiv Verma) who is an independent witness and has no connection with either the appellant or the respondent held that he had installed the CCTV camera outside his house in the gali. In the said CCTV camera, the appellant was captured kidnapping the victim. He submitted the said footage to the Police along with the photographs. There is no deficiency found in this evidence.

Ratio:

The appellant had various criminal antecedents. Though he was a married man, his wife had left the matrimonial house because of his criminal acts. Merely because no nail marks were found on the private parts of the child, it cannot be inferred that no such incident had taken place. ‘X’ was taken for a medical examination but to protect her honour; seemingly, the victim’s mother did not permit her internal medical examination. The crucial evidence regarding nail marks on the private parts could not be gathered. It, however, does not dilute the oral testimony of the victim whereby by referring to the private parts of the ‘doll’ in her hand she conveyed the information as to what had happened to her.

Held: The court agreed with the conviction of the trial court and held the accused to be liable.

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