Delhi District Court
Fir No. 460/14 : State vs Mahender : Ps Sultan Puri Dod: ... on 27 July, 2015
FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE:
(NORTHWEST)01: ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 111/14)
Unique ID case No.02404R0166232014
State Vs. Mahender
FIR No. : 460/14
U/s : 376 IPC & 6 of POCSO Act
P.S. : Sultan Puri
State Vs. Mahender
S/o Shri Rekha Ram,
R/o O96, Krishan Vihar,
Sultan Puri, Delhi.
Date of institution of case 27.05.2014
Date of arguments : 14.07.2015
Date of pronouncement of judgment : 22.07.2015
J U D G M E N T:
The facts of the case as borne out from the record are that on 24.04.2014, on receipt of a PCR call vide DD no. 89B at 7.55 pm regarding attempt of rape with a four year old girl, near Mother Dairy, Chand Market of P2, Sultan Puri, SI Sharwan reached at the spot i.e. P85, Krishan Vihar, Sultan Puri and on inquiry, he found that matter was pertaining to sexual assault upon child S (hereinafter referred as child victim), a minor girl aged Page 1 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 about 5 years and thereafter, on his request, PW10 SI Lata Sachdeva along with L/Ct. Sudesh reached at the spot. At the spot, SI Sharwan, Smt. Seema, mother of child victim and child victim met PW10 W/SI Lata Sachdeva and PW6 Sanjay, husband of Seema produced accused Mahender before her. PW10 called the NGO official at the spot and after counseling the mother of the child victim, she recorded her statement, wherein she stated that on 24.04.2014, at about 7.00 pm, child victim was going to a nearby temple and she was busy in her household work and after 10/15 minutes, child victim returned home weeping and on inquiry, child victim told her that when she was going to temple, one boy, resident of backside gali, forcibly took her to his house, bolted the door from inside, pulled down his pant upto knee, removed her payjami and underwear and lied upon her and inserted his male organ into her vagina. Child victim further told her that when she started weeping loudly, said boy opened the door and thereafter, she put on her payjami and underwear and rushed to her house. She further stated that she called her husband/PW6 through phone and narrated the entire incident to him and thereafter her husband along with child victim went to the house of accused, where child victim pointed out towards the accused and identified him as the person, who had committed wrong act with her and thereafter, her husband made a call at 100 number and handed over the said boy to the police. She requested for legal action to be taken against the accused. Thereafter, child victim was medically examined at Sanjay Gandhi Memorial Hospital.
Page 2 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 On the basis of aforesaid statement of PW4 Smt. Seema, present case FIR was registered. Child victim was also got counseled and her statement u/s 161 was recorded, wherein she also reaffirmed the acts of the accused. Site plan of the place of incident was prepared at the instance of PW6 Sanjay. Accused was arrested. He was also medically examined. The statement under Section 164 Cr.P.C of child victim was got recorded. Exhibits were sent to the FSL and after concluding the investigation, charge sheet was filed in the matter.
2. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. On 15.12.2014, charges u/s 363/366 IPC and u/s 5
(m) of Prevention of Children from Sexual Offences Act, 2012, (hereinafter referred to as "Act") punishable u/s 6 of Act, alternatively u/s 376 (2) (i) IPC were framed against the accused, to which, he pleaded not guilty and claimed trial.
3. In order to prove the guilt of the accused in the matter, the prosecution examined as many as 10 witnesses, whereafter, the P.E in the matter was closed and the statement of the accused u/s 313 Cr.P.C was recorded, wherein, he claimed himself to be innocent and having been falsely implicated in the case by the victim at the instance of her parents, because of a previous enmity. The accused examined one witness Ms. Versha as DW1 in his defence. Page 3 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015
4. I have heard arguments advanced at bar by the learned Addl. PP for the State and Sh. Subham Asri, learned counsel for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
5. PW1, Ct. Rajuddin took the exhibits of the present case to FSL and deposited the same there and deposed regarding the same.
6. PW2 Smt. Promila Sharma, Principal, from M.C. Primary School, Krishan ViharI, Rohini Zone, New Delhi, in her evidence has deposed about the date of birth of child victim S to be 13.03.2007, on the basis of the record maintained in the school, which is the school first attended by the child victim.
During crossexamination by learned defence counsel, the witness termed it correct that father of the child had not submitted any birth certificate of the child victim at the time of her admission in the school and that no independent inquiry was conducted by the school regarding the date of birth of child victim.
7. PW3 HC Rajinder Prasad, was lying posted as duty officer in the police station Sultan Puri at the relevant time and he has proved the case FIR as Ex. PW3/A, recorded by him pursuant to rukka received by him in the Page 4 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 matter sent by W/SI Lata Sachdeva.
8. PW4 Seema is the mother of the child victim and she deposed about the incident, which happened with child victim and about apprhension of the accused. Relevant portion of her testimony is as under : "xxxx Child S ke saath ghatna 24.04.2014 ko hui thi. Uss samay shaam ke 6.00 yaa 7.00 baj rahe the jab meri daughter S ghar se mandir ke liye gayi thi. Wo 1520 minute baad ghar par roti hui wapas aayi. Jab meine apni beti S se pucha beta kyun ro rahi ho, to usne mujhe bataya ki jab wah mandir jaa rahi thi, to ek ladka jo piche wali gali mein rehta hai, uske haath jabardasti padkar meri beti ko apne ghar mein le gaya aur andar se darwaza bandh kar diya. Meri beti S ne bataya ka us ladke ne meri beti S ki pajami aur kachi utar di aur apni pant be ghutno tak utaar di aur phir wo meri beti S ke upar let gaya aur meri beti ki susu wali jagah mein apni susu karne wale dalane laga. Meri beti S ne ye bhi bataya ki jab wo rone lagi to us ladke ne darwaza khol diya. Jab darwaza khul gaya to meri beti S ne bataya ki wo apni pajami kachi pehnkar wahan se bhag aayi.
Ye sab janane ke baad, mein apne pati ko phone Page 5 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 karke ghar bulaya jo piche wali gali mein hi construction labour ka kaam kar rahe the. Unke ghar aane ke baad, meine saari batein jo mujhe meri beti ne batai thi, unko batai. Hamne apni Beti S se pucha ke kya wo uss ladke ko pehchan legi aur wo ghar bata degi, to usne kaha haan wo bata degi. Phir mere pati, meri beti S ko lekar wahan gaye, jahan meri beti S ne wo ghar pehchana aur uss ladke ko bhi pehchana. Phri mere pati ne 100 number par phone karke police ko bulaya aur uss ladke ko police ko soonp diya, jiska naam Mahender pata chala. Meine uss ladke ko pehle nahin dekha tha. Police ne mere bayan (Ex. PW4/A) likha tha, jis par meine apne angootha lagaya tha. .......
xxxxx"
The witness was crossexamined by ld. Defence counsel and in the crossexamination, she deposed as under : "xxxx Accused ka ghar mere ghar se piche wali gali mein hai,jahan pahunche ke liye 5 minute ka padal rastha hai. Hame hamare agal bagal ke log sab jaante hai. Accused ke ghar ke aaas pados ke log bhi hame jaante hai. Meri beti S jab rote hue ghar aayi to uske kapdo par halke halke khoon ke nisan the. Koi chot ke nisan nahi the. Page 6 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 Mere pati ke ghar aane se pahle, agal bagal ke kaafi log mere ghar par ikhete ho gaye the. Hame aisa koi padosi nahi mila jisne accused ko meri beti S ko lejate ya meri beti ko uske ghar se nikalte dekha. Ye kehna galat h ki accused ke mere pati se ghatna se 06 months pehle kuch kaha suni hui thi. Ye kehna galat h ki ye kaha suni iss baat par hui thi ki mere pati ne accused ka purse le liya tha.......
xxxx"
9. PW5 is the child victim in the present case and the relevant portion of her testimony is as under : Q: Beta uss din Kya hua tha?
A. Uss din mein mandir jaa rahi thi, to wo bhaiya mujhe raaste mein mile aur mujhse kehne lage ki mere saath mere ghar chal, mujhe kuch mangwana hai.
Q. Beta uske baad kya hua?
A. Uske baad mein un bhaiya ke saath unke ghar
chali gayi. Unhone ghar ka gate andar se band kar liya tha.
Q. Beta, phir kya hua?
A. Phir unhone meri pajami aur chadi utar di aur
apni pant bhi ghutno tak utaar di aur phir wo mere upar Page 7 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 let gaye.
Q. Beta, phir kya hua?
A. Un bhaiya ne apni susu meri susu mein mila di
thi, jis se mujhe bahut dard hua aur mein bahut jor se chikhi.
Q. Beta, phir kya hua?
A. Jab mein jor se chikhi to un bhaiye ne darwaza
khol diya. Darwaza khulne ke baad, mein rote hue
wahan se bhagi aur apne ghar aa gayi aur ghar aakar saari batein apni mummy ko batai.
Q. Beta, phir kya hua?
A. Uske baad meri mummy ne mere papa ko bulaya
aur mummy ne saari baatein papa ko batai. Phir papa mujhe un bhaiya ke ghar lekar gaye.
Q. Beta, phir kya hua?
A. Uske baad 100 number par phone kiya aur us
ladke ko police to soonp diya.
Q. Beta, phir kya hua?
A. Uske baad mere mummy papa mujhe hospital
lekar aaye jahan doctor aunty mujhe mili, unhone mujhse kuch puchtaach ki.
Q. Beta, kya aap pehle bhi court aaye ho?
A. Haan mein aayi hu.
Page 8 of 28
FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015
Q. Beta, wahan kya hua tha?
A. Court mein mujhe ek judge aunty mili thi.
Unhone mujhse pucha tha ki mere saath kya hua tha aur meine unko sab kuch sach sach bata diya tha. (While stating so, the child has referred to her statement recorded U/s 164 Cr.P.C Ex. PW5/A and also identified her signatures on the same) Q. Beta, kya aap un bhaiya ko pehchan sakte ho?
A. Haan. (While stating so, the child victim correctly identified the accused from the designs made in the wooden partition by specifically pointing towards the accused by her finger from the wooden partition). During her crossexamination, the child victim stated as under : Q Beta aapke ghar se un bhaiya ka ghar kitna door hai?
A. Thodi si door tha.
Q. Beta, kya un bhaiya kye apni susu aapki susu
mein daal di thi yaa milai thi?
A. Milai thi, daalne ki kosis ki thi.
Q. Beta jab un bhaiya ne ye sab kiya to aapko dard
hua tha aur khoon aaya tha?
A Dard hua tha, khoon nahi aaya.
Page 9 of 28
FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015
Q. Beta, aapne uss gande bhaiya ko pehle bhi kabhi
dekha tha?
A. Nahi, pehle nahi dekha tha.
Q. Beta, jo aaj aapne kaha hai wo aapke saath hua
tha yaa aap apne mummy papa ke kehne par aisa keh
rahe ho?
A. Aisa sach mein hua tha.
10. PW6 Sanjay is the father of the child victim and he deposed that on 24.04.2014, he was away for his work and at about 7.00 pm, on receipt of a call from his wife, he reached at his house and his wife Smt.Seema told him that their daughter i.e.child victim S was kidnapped by one boy. He further deposed that on confrontation, child victim S told him that when she was going to temple, she was lifted by one bhaiya, who took her to his room and removed her pajami and underwear and also removed his pant upto his knees and thereafter, he lied upon her daughter on the bed and committed assault upon her. The witness further deposed that thereafter, he took his daughter and she pointed out the room of accused Mahender and on entering inside the said room, he found accused Mahender wearing his pant and his daughter also pointed out towards accused and told him that accused had removed her pajami and committed assault upon her. He further deposed that accused tried to run away from there, but he managed to overpower him with the help of 4/5 persons and thereafter, they took the accused to the chowk and he made Page 10 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 a call at 100 number, on which police arrived at the spot. He further deposed about medical examination of child victim at SGM Hospital and about pointing out the place of incident to the Police.
During crossexamination by learned defence counsel, the witness stated that child victim had told him that the accused had fully inserted his private part in her private part. The witness was not able to tell the description of house of accused as well as the colour of clothes worn by accused. He further stated that his daughter was having blood stains on her private part, however, he volunteered to state that the said blood stains were wiped off by his wife and he had not handed over to the police that cloth through which his wife had wiped off the blood of his daughter. He further stated that he had not found any eye witness, who might have seen his daughter being taken in his house by the accused or his daughter coming out of his house after he had opened the door.
11. PW7, Dr. M. Das in his evidence has proved the MLC of accused as well as child victim prepared by him as Ex. PW7/A and Ex. PW7/B respectively and deposed regarding medical examination of accused as well as child victim.
12. PW8, Dr. Akansha in her evidence has proved the MLC of child victim prepared by Dr. Rashmi Verma by identifying her handwriting and signatures.
Page 11 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 During crossexamination, PW8 termed it correct that if the penis of a fully grown male is inserted into the vagina of such a tender age child, then hymen would definitely get torn. She further stated that in the present case, there would have been tenderness as well as reddishness on vagina in the case of full insertion of penis.
13. PW9 HC Vinod Kumar in his evidence has deposed that he was working as MHCM in Police Station Sultan Puri at the relevant time and the sealed exhibits in the matter were deposited with him, which he had handed over to Ct. Rijuddin for being deposited with FSL Rohini.
14. PW10, Ins. Lata Sachdeva is the main investigating officer of the present case and she deposed about the investigation carried by her in the present case. She further deposed that on 24.04.2014, on receipt of DD No. 89B Ex. PW10/A, SI Swaran went to the spot and on finding that the matter was pertaining to attempt to rape on a minor girl of four years, he requested to duty officer to send one lady officer and thereafter, on receipt of information vide DD No.41A Ex. PW10/B, she along with L/Ct. Sudesh reached at P85, Krishan Vihar, Sultanpuri, where she met SI Swaran and PW4 Smt.Seema, mother of child victim and child victim and PW4 Smt. Seema told her that child victim was subjected to sexual assault. She further deposed that in the meanwhile, PW6 Sanjay Kumar, father of the victim child had produced accused Mahender, who had committed wrong act with Page 12 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 his daughter and custody of accused was handed over by her to Ct.Indraj. She further deposed that after counseling of child victim and her parents, she recorded the statement Ex PW4/A of Smt.Seema in the presence of NGO official and thereafter, got the child victim medically examined at SGM hospital vide MLC Ex. PW7/B, through L/Ct. Sudesh. She further deposed about seizure of the exhibits vide seizure memo Ex. PW4/C, about making her endorsement, preparation of rukka Ex.PW3/B and getting the FIR registered. She further deposed about recording the statement of child victim in questionanswer form, about preparation of site plan Ex. PW10/C, about pointing out of the place of incident vide pointing out memo Ex. PW Ex. PW10/C1. She further deposed about arrest and personal search of the accused vide arrest memo Ex. PW10/D and vide personal search memo Ex. PW10/E and about pointing out the place of incident vide pointing out memo Ex.PW10/F. The witness further deposed about getting the accused medically examined at SGM Hospital and about seizure of the exhibits vide seizure memo Ex. PW10/G. The witness further deposed about getting the statement of child victim recorded u/s 164 Cr.P.C, vide her application Ex. PW10/H and about obtaining the copy thereof, vide her application Ex. PW10/J. She further deposed that on 29.04.2014, she got collected age proof Ex. PW2/D of child victim from her school. The witness further deposed that on 02.05.2014, she sent the exhibits to FSL through Ct. Rajuddin. The witness further deposed about collecting the PCR form Ex. PW10/L and about collecting the FSL result Ex. PX and filed the same in Page 13 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 court vide her request letter Ex.PW10/M. During crossexamination by learned defence counsel, the witness stated that she thoroughly investigated and inquired the incident. She further stated that she did not find any witness, who had seen the victim child being taken away by the accused or victim child coming out of the accused's house. The witness termed it correct that the child victim in her 161 Cr.PC statement stated that accused penetrated his penis in her urinating part.
This is all as far as the prosecution evidence in the matter is concerned.
15. From the crossexamination of witnesses, it is apparent that the defense which has been taken by the accused in the matter is that he has been falsely implicated in the case by the parents of child victim, because of previous enmity and even accused was not present at the spot at the relevant time.
To prove the aforesaid defence, the accused has examined DW1 in defense, the brief scrutiny thereof is as under.
16. DW1, Versha deposed that on 24.04.2014 (Thursday), at around 2.00 pm, she along with accused had gone to India Gate by bus, roamed around, took some snacks and at around 6.00 pm, she and accused got photographs (said photographs bear the date and time of the clicking of the photographs) MarkA and B clicked and that after 15/20 minutes, the person, who clicked their photographs, developed the photographs and handed over the same to them. She further stated that she as well as accused reached at the house at Page 14 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 about 7.45/8.00 pm on 24.04.2014.
During crossexamination by learned Addl. PP, DW1 stated that she did not have negatives of these photographs mark A and B and she showed her inability to produce the person, who had clicked these photographs.
17. The learned Addl. PP for the State has very vehemently argued that the evidence of child victim and her parents is consistent, in material particulars, whereas the accused has miserably failed in proving both his defenses i.e. of previous enmity and alibi and she prayed that accused be convicted for the charged offence.
18. Per contra, the learned defence counsel Sh. Subham Asri, Advocate, has raised following arguments :
(i) the accused has been falsely implicated in the case ;
(ii) the case of the prosecution is without any independent corroboration and is based on the testimony of interested witnesses ;
(iii) the accused has been able to prove his defence of alibi through documents mark A and mark B.
19. The learned defence counsel has referred to the evidence of child victim and her parents and has pointed out contradictions inter se and has argued that child victim in her evidence has stated that accused had only put his penis upon her vagina and had made an attempt to insert the same, but Page 15 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 because of pain, she had cried loudly as a consequence whereof, the accused had opened the door, whereas the father of child victim who was examined as PW6 has stated in his crossexamination that the child victim had told him that the accused had fully inserted his penis into her vagina, because of which, some blood had oozed therefrom, which had been wiped of by his wife. Similarly, the mother of child victim PW4 has also stated in her evidence that she had seen blood stains on the cloths (halke halke khoon ke nishan the) of child victim.
20. From the aforesaid contradictions, it has been inferred by the learned defence counsel that there is no consistency in the evidence of aforesaid witnesses and as such, the prosecution case is unbelievable.
21. I have considered the aforesaid contradictions in the light of the MLC of child victim, which has been proved on record as Ex. PW7/B as well as the MLC of accused which has been proved on record as Ex. PW7/A. In Ex. PW7/B, on the vulva of the child victim, discharge of some kind has been shown to have been found present. Even, on the underwear of the accused, semen stains were found present. If the medical evidence is considered in junxta position with the evidence of PW4 to PW6, then it become evident that the accused might have got aroused substantially and before he could have inserted his penis into the vagina of the child victim, he might have got discharged and the said discharge might have been found present on the vulva Page 16 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 of the child victim as well as his undergarment. Since, no injury or inflammation or redness of any kind was found present on the vaginal area of the child victim and her hymen was also found intact, therefore, the accused had not penetrated his penis into the vagina of the child victim. The main witness of the prosecution i.e. the child victim has testified only to the effect that the accused had just put his penis onto her vagina, as a consequence thereof, she had suffered pain and she had cried. The accused might have got scared and he allowed the child victim to go. There appears to be some exaggeration on part of PW4 and PW6 with regard to blood, but that is not sufficient to wash off the otherwise consistent testimony of child victim PW5. In the crossexamination of child victim, a specific question was put to her as to whether, the accused had penetrated his penis into her vagina, in answer thereto, she had categorically denied the same and had stated that he had only touched the vagina with his penis (milai thi, dalne ki koshish ki thi) (dard hua tha, khoon nahi aaya) . It is quite possible that the mother of child victim might have mistaken the semen stains on the clothes of child victim to be blood. Be that as it may from the testimony of child victim, it is evident that the accused had sexually assaulted her with strong sexual intent.
22. It is next argued by the learned defence counsel that the case of the prosecution solely rests upon the testimony of child victim as well as her parents and there is no independent corroboration thereof. He has referred to the crossexamination of PW4 and PW6 in this regard and has emphasized Page 17 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 that the place of occurrence is a thickly populated cluster, yet the police could not find any independent witness, who might have seen the accused taking away the child victim or the child victim coming out weeping from the house of the accused. I do not find any substance in this argument of the learned defence counsel. The time of incident was around 7.00 pm in the month of April. By this time, the twilight falls. Even otherwise, the locality is stated to be a jhuggie jhopri cluster, where most of the population is migratory/labour class and there is a general tendency amongst this type of population that they hardly pay any heed to what others do.
23. The learned defence counsel has further argued that there had been a quarrel between accused and the father of child victim six months prior to the date of incident as a consequence whereof, the accused has been falsely implicated in the matter. This defense of the accused is hollow on the face of it as the accused has not led any positive evidence in this regard. Therefore, nonexamination of any independent witness is not fatal to the case of prosecution, particularly when the child victim is consistent in her evidence before the court as well as her statement recorded by the learned Metropolitan Magistrate u/s164 Cr.P.C (Ex. PW5/A)
24. As regard the other defence of the accused of alibi, he has examined one Ms. Versha d/o Sh. Rajender Singh claiming her to be his girlfriend, who has stated in her evidence that on the date of incident, she along with accused Page 18 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 was present at India Gate from 2.00 pm to 8.00 pm and she has referred to two photographs purportedly having been clicked at about 6.00 pm through a digital camera by a private photographer at about 6.00 pm. The said photographs are admittedly digital documents and the same can be proved through the procedure prescribed under Section 65B of the Evidence Act. The learned defence counsel has very vehemently argued that these photographs were clicked by a private photographer, who could not be traced later on and as such, certificate u/s 65B of the Evidence Act could not be obtained from him. I do not find the two photographs (mark A and mark B) to be admissible in evidence for two reasons (i) firstly, till the time the prosecution evidence was in vogue, no suggestion of alibi was given to any of the prosecution witnesses and as such, these photographs are clearly after thought (ii)secondly, it is by now settled law that oral evidence in respect of digital documents is not admissible, if the said documents have not been proved in accordance with the procedure prescribed under Section 65B of Evidence Act.
25. The Hon'ble Supreme Court in latest judgment in Anvar P.V. v. P.K. Basheer and Others, passed in Civil Appeal No. 4226 of 2012 decided on 18.09.2014 has been pleased to hold that : xxxxx
22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law Page 19 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 on secondary evidence U/s 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
23. The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, ExhibitsP4, P8, P9, P10, P12, P13, P15, P20 and P22. Page 20 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.
24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and be feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is Page 21 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act." xxxxx (Underlining is mine)
26. In view of the above discussion, although, the prosecution has not been able to sustaine the charges u/s 6 of Act against the accused, however, charges u/s 363 IPC and u/s 10 of Act have been duly proved against the accused. The accused accordingly stands convicted under the aforesaid sections. He stands acquitted for the offence u/s 366 IPC. In view of accused having been convicted u/s 10 of Act, I need not consider the case under the alternative section 376 (2) (i) IPC.
27. A copy of this judgment be supplied to the convict free of cost. Let the accused be heard on the point of sentence on 25.07.2015.
(Announced in the open ) (Vinod Yadav)
(Court on 22.07.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
Page 22 of 28
FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015
IN THE COURT OF VINOD YADAV: ASJ01
(N/W): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 111/14)
Unique Identification No.: 02404R0166232014
State V/s Mahender
FIR No. : 460/14
U/s : 376 IPC and Section 6 of POCSO Act
P.S. : Sultan Puri
State
V/s
Mahender
S/o Shri Rekha Ram,
R/o O96, Krishan Vihar,
Sultan Puri, Delhi.
....Convict
27.07.2015
ORDER ON SENTENCE
Pr: Ld.Addl.PP for state.
Convict produced from J.C with Sh. Yashvir Singh, Ld. proxy counsel appointed by bar.
ORDER ON THE POINT OF SENTENCE In the present case, the convict - Mahender has been convicted u/s 363 IPC and Section 10 of POCSO Act, 2012.
Page 23 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and Sh. Yashvir Singh, ld. Proxy counsel, for the convict.
2. The learned Addl. PP has very vehemently argued that the sexual assaults upon the minor children are on rise in the society, whereby the mental and physical development of the children gets affected substantially. It is specifically emphasized that the child victim in the present case was of tender age i.e. aged about 51/2 years, when she was sexually assaulted by the convict. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 10 of the Act to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned proxy counsel for the convict has argued that convict is a young boy having age of 22 year and is having responsibility of maintaining his old aged parents as his elder brother used to remain outside India because of his job. It is further submitted that at the time of incident, the convict was doing job in Pharma Company and was pursuing his B.Com through correspondence. He prays that in view of the young age and future of the convict, a lenient view may kindly be taken in sentencing the convict.
4. I have given thoughtful consideration to the arguments advanced by Bar by both the sides and to the facts and circumstances of the case in totality. The offence, for which the convict has been convicted in the matter, is highly derogatory. However, I cannot loose sight of the fact that convict is of young age, having responsibility of his old aged parents. Bearing in mind, the facts and Page 24 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 circumstances of the case in totality, the interest of justice, would be met, if the convict is accorded minimum sentence prescribed under Sections 10 of POCSO Act, for which, the convict stands convicted as he has been able to make out good mitigating circumstances in his favour. I hereby award rigorous imprisonment for a period of 5 (five) years along with fine of Rs. 5,000/, in default of payment of fine, further SI for a period of 6 months, for the offence u/s 10 of POCSO Act. I further award rigorous imprisonment for a period of 2 (two) years along with fine of Rs. 1,000/ in in default of payment of fine, to undergo S.I for one month, for the offence u/s 363 IPC. Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C is accorded to the convict.
5. Coming now to the aspect of compensation to the victim child, who is a minor girl aged about 6 years, the Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
6. Even otherwise, the concept of welfare and well being of children is basic for Page 25 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire selfconfidence and selfrespect and a balance view of life with full appreciation and realization of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of Page 26 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses
(e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goal oriented perambulatory introduction."
7. Therefore, in order to provide Restorative and Compensatory Justice to the child victim, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation of Rs. 50,000/ (Rs. Fifty thousand only) to the child victim. The Page 27 of 28 FIR No. 460/14 : State V/s Mahender : PS Sultan Puri DOD: 22.07.2015 said amount shall be used for their welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
8. A copy of this order be sent to learned Secretary, D.L.S.A, North West Distt., Rohini Courts, Delhi and Director, Department of Woman and Child Development, GNCT of Delhi, for information and necessary action under intimation to this Court.
9. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that if he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
A copy of judgment and copy of order on sentence be supplied free of cost to convict against receipt.
File be consigned to record room.
(Announced in the open ) (Vinod Yadav)
(Court on 27.07.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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