Judge expected to remain sensitive while examining a child of tender age as witness

Delhi High Court: While deciding an appeal preferred against the conviction and sentence for    the offence punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012, the Court observed that the Presiding Officer is expected to remain sensitive particularly when a child of tender age is under examination.

The appellant was accused of sexually assaulting a girl child of about 5 years when she had gone to his house to watch television and his contention was that the trial court had committed material irregularity in recording the victim’s 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 the 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. The prosecution however, urged that there was no sound reason to disbelieve the child’s statement.

The Bench of S.P. Garg, J. 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 existed to suspect the version given by the child and to discredit her testimony.

The Court held that while conducting trial, the 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. Observing that the impugned judgment was based upon fair appreciation of the evidence, the Court declined to intervene and held that the minimum sentence prescribed under Section 10 of the Act had been awarded and it cannot be altered or modified. The crime committed by the appellant was 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; and 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. [Hazari Paswan  v. State (NCT of Delhi),  2016 SCC OnLine Del 4312, decided on August 4, 2016]

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