Delhi District Court
Sc No: 208/13 State vs . Malkhan Singh on 14 March, 2016
SC No: 208/13 State Vs. Malkhan Singh
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 208/13
FIR No. 260/13
Police Station S.P. Badli
Under Section 376(2)/377/342/506
IPC & 4/10 POCSO
ID No. 02404R0-258982013
State
Versus
Malkhan Singh
S/o Sh. Imrat
R/o Plot No.263, Gali No.1
Khera Garhi Colony, Delhi ......Accused
Date of institution 18.09.2013
Judgment reserved on 23.02.2016
Judgment Pronounced on 11.03.2016
Decision Convicted
Judgment 1 of 25
SC No: 208/13 State Vs. Malkhan Singh
JUDGMENT
1. Accused Malkhan is facing trial on allegations of sexually assaulting his own daughter aged about 10 years.
2. FIR in question was registered on the statement of victim who stated that her mother unfortunately got expired an year before the incident. Her father (accused) was un- employed and was an alcoholic. On 31.05.2013 at 2.30-3.00 pm, accused came to the house drunk. At that time she was playing alone in an outer room. Accused pulled her into inner room and bolted the door from inside. Accused removed his clothes and also of victim and put his urinating part in her mouth. When victim started crying, accused tried to insert his urinating part in the urinating part of victim. Somehow, victim released herself from the clutches of accused and after wearing her clothes opened the door. Thereafter, accused slept. At about 6.00 pm, victim narrated the incident to her aunty who was residing in front of their house and then she reported the matter to the police at 100.
Judgment 2 of 25
SC No: 208/13 State Vs. Malkhan Singh
3. Accused was arrested and was charge-sheeted. Charge for the offence punishable U/s 6 POCSO (Protection of Children from Sexual Offences) Act, 2012 and 506 IPC was framed against the accused on 18.12.2013 to which accused pleaded not guilty and claimed trial.
4. Prosecution examined 14 witnesses.
5. PW1 Sheela Devi proved the school admission record of the victim as per documents Ex. PW1/A to C and proved the date of birth of the victim as 18.06.2003.
6. PW2 Maya (Aunty of victim) deposed that when she returned back from her work in the evening, victim came to her house and informed her that accused used to sexually assault her after consuming liquor and then victim reported the matter to the police.
Judgment 3 of 25
SC No: 208/13 State Vs. Malkhan Singh
7. PW3 Suman deposed that she received a phone call from her sister-in-law Maya (PW2) and she informed her that victim was sexually assault by her father.
8. PW4 victim in her testimony supported the contents of her complaint and testified that on the day of incident her father after taking out her clothes, inserted his urinating part in victim's mouth. Victim proved her statement given to the police as Ex. PW4/A and testified that she was medically examined.
9. PW5 Dr. Ruhi proved MLC of victim as Ex.PW5/A.
10. PW6 Dr. Meet,proved MLC of accused Ex. PW6/A.
11. PW7 ASI Sudesh Pal proved FIR and his endorsement on the rukka as Ex. PW 7/A & B. Judgment 4 of 25 SC No: 208/13 State Vs. Malkhan Singh
12. PW8 Ct. Om Prakash deposited case property with FSL.
13. PW9 Dr. Kapil Garg proved the death report of wife of accused/ mother of victim as Ex.PW9/A.
14. PW10 SI Ashok Kumar reached on the spot on receipt of DD and after coming to know that it is case of a sexual assault he informed the duty officer and thereafter WSI Manju reached at the spot and carried out investigations.
15. PW11 Ct. Devender collected samples of the accused after his medical examination and handed over to IO as per seizure memo Ex. PW11/A.
16. PW12 HC Devender, MHC(M) proved the deposit of case property with malkhana as per entries Ex. PW12/A. Judgment 5 of 25 SC No: 208/13 State Vs. Malkhan Singh
17. PW13 Ms. Rachna Tiwari Lakhanpal, Ld. MM proved statement of the victim U/s 164 Cr.P.C. as Ex. PW13/A.
18. PW14 SI Manju is Investigating Officer. She proved the seizure of exhibits of victim after her medical examination as per Ex. PW14/A, she prepared rukka Ex. PW14/B and got registered the FIR. She prepared site plan as Ex. PW14/C and proved the arrest of accused, his personal search and disclosure as per Ex. PW14/D-F. She obtained the age proof of victim and also the FSL result as Ex. F-1 and filed the charge-sheet.
19. In his statement recorded u/s 313 Cr.P.C, accused stated that victim under influence of his sister in law (wife of his brother) lodged a false complaint against him. At relevant time victim was residing with her grand-father. A day before the incident, he went to meet victim and his father told accused that victim doesn't listen him and also remains absent from house without disclosing her whereabouts. Accused scolded victim and Judgment 6 of 25 SC No: 208/13 State Vs. Malkhan Singh also slapped her. He told victim to stay with her grand-father but she revolted and became angry and later on under influence of his bhabhi, she lodged a false complaint.
20. It has been submitted on behalf of accused that in the present case the child witness has deviated from her version at different stages and thus her testimony which stands not corroborated by any other evidence is not reliable and worthy of any credit. It is further argued that there is no medical evidence to link the accused with crime and hence, accused is entitled to be acquitted.
21. Per-contra, Ld. Addl. PP for the State has submitted that the victim has duly supported the prosecution case and her testimony is corroborated by other witnesses and thus the case of prosecution stands proved against the accused beyond any reasonable doubt.
Judgment 7 of 25
SC No: 208/13 State Vs. Malkhan Singh
22. I have heard the rival contentions and have gone through the material on record.
23. Age of victim: Before dwelling upon the incident of assault, let us find out what was the age of victim at the time of incident. PW1 proved the admission record of the victim as per documents Ex. PW1/A to C and as per which the date of birth of victim is 18.06.2003. Date of birth of victim is not disputed by the defence in any manner nor any document has been brought on record contradict the record produced to prove the date of birth of victim. This goes to show that on the date of incident (31.05.2013), victim was about 10 years old, a "Child" within the meaning given under POCSO Act.
24. Testimony of victim: Testimony of victim has been attacked by the defence by arguing that the victim has given different versions of the incident. For appreciating this argument let us examine the statements of the victim. Firstly victim narrated the Judgment 8 of 25 SC No: 208/13 State Vs. Malkhan Singh incident to Doctor at the time of her medical examination. Version of victim as noted by the Doctor appearing in MLC, Ex. PW5/A reads as under:-
"..... Patient was alone with her younger brother age 3 years in her home and her father came in drunken state and took the patient to other room. At that time her brother was sleeping in other room. Her father put off all her clothes and also his own clothes and first tried to put his penis in her mouth but the patient started crying. Then he tried to put his penis to her vagina but she managed to escape from him and went outside the room and she told the incident to her neighbors about the incident. At about 6 PM patient went to her house and took bath. At that time she was threatened by her father if she told the incident to anyone, he will murder her. As stated by the patient herself this was the second time that her father done to her."
25. Thereafter the statement of victim Ex. PW4/A was recorded by the police and the English translation of the said statement reads as under:-
"...... my mother unfortunately got expired a year before the incident. My father is not employed anywhere and is drunkard. Today also on 31.05.2013 in the afternoon at about 2.30-3.00 pm my papa came drunk and at that time I was playing alone in the outer room. Papa pulled me into the inner room and bolted the same from inside. Then he removed his clothes and of mine. Thereafter, he inserted his urinating part in my mouth. When I started crying, he tried to insert his Judgment 9 of 25 SC No: 208/13 State Vs. Malkhan Singh urinating part in my urinating part. I got released myself, took my clothes and ran outside after opening the door. I wore my clothes. Thereafter Papa slept. In the evening at about 6.00 pm, when my Tai Mata who resides in our neighborhood came from her work, I narrated the incident to her and after taking her phone I reported the matter to the police at 100. Thereafter, you (police) came and inquired the matter from me in presence of Madam Nazma, NGO. I was counseled. My papa Malkhan tried to commit wrong act with me and inserted his urinating part in my mouth and threatened me to kill and not to disclose the incident to anybody. I want to get my papa punished....."
26. Thereafter the statement of victim Ex. PW13/A was recorded by Ld MM and the English translation of the said statement reads as under:-
"...... my age is 10 years. Yesterday afternoon at about 2:30- 3:00 PM I was playing alone in the outer room. My father came from outside and he was drunk. My younger brother was sleeping. I reside with my brother and papa. My mother was killed by smothering. My father was pressing neck of my mother from one hand and from the other hand he was putting clothes in her mouth. Papa had taken me in the inner room. Yesterday my Papa removed my clothes and his own clothes. First he inserted his urinating part in my mouth and then into my urinating part. I screamed and ran outside. Papa after wearing clothes slept. He be punished. "
Judgment 10 of 25
SC No: 208/13 State Vs. Malkhan Singh
27. Lastly, testimony of victim was recorded in the Court which reads as under:
" .... My mother has already expired a year back. It was summer season, I do not remember the date and month of the incident, but it happened last year, I was present in the house alone. My father came home at about 12/1 noon. At that time I was sleeping and my father got me up and I started playing in the house. My father was drunk at that time. My father took me to the last room forcibly. He forcibly took out my cloths. He also took out his own cloths. He forcibly hugged me. I was frightened and ran away and went to my Badi Mummy (Tai), who was our neighbor. After taking out his cloths, my father had inserted his urinating part in my mouth. I was terrified and immediately ran away from there by tyeing a towel. I informed the matter to the police on number 100 from the house of said neighbor. Police officials came and it recorded my statement ....."
28. Ld Counsel for accused has pointed out that in her statement Ex PW4/A (initial complaint) victim stated that she took her clothes and ran outside after opening the door and wore her clothes whereas in her testimony recorded in the Court, victim deposed that she was terrified and immediately ran away from there by tying a towel. It is argued that the different versions in the Judgment 11 of 25 SC No: 208/13 State Vs. Malkhan Singh testimony of victim as to what she wore after the incident is a fact of material consideration and the contradiction in the statement of the victim and her deposition on this aspect renders the testimony of the victim untrustworthy.
29. After going through the testimony of the victim, it can be inferred that victim has narrated the entire incident which happened with her. Matter as to what she was wearing after the incident is not a material contradiction to discard testimony of victim. This variation in the testimony of the victim does not go to the root of matter specially when victim in all of her statements has maintained that accused removed her clothes and had tried to commit wrong act with her.
30. Testimony of the victim, with relation to the incident is reassuring as she has been consistent throughout in describing what the accused did to her. Victim has consistently maintained that accused came drunk and removed her clothes. Accused had put his Judgment 12 of 25 SC No: 208/13 State Vs. Malkhan Singh private part in her mouth and tried to commit wrong act with her. Victim firstly narrated the incident to the Doctor, then to police as per her statement Ex. PW4/A and also to Ld. MM as per his statement Ex. PW13/A recorded U/s 164 Cr.P.C. Description of the act as given by the victim is accurate and is narrated with the understanding of a 10 year old child. In her cross examination, victim denied that she informed the police at the instigation of her Tai (Aunt) or that she lodged a false complaint against her father.
31. It would be seen that the Court has over the years attributed to the testimony of child witnesses the same kind of credibility that it attached to the statement of any other witness if the testimony is consistent. In the present case the victim has been consistent on the material particulars with regard to the incident of sexual assault on her.
Judgment 13 of 25
SC No: 208/13 State Vs. Malkhan Singh
32. More so, the testimony of victim also finds corroboration from the deposition of PW2 to whom she narrated the incident of sexual assault upon her by her father after consuming liquor. Despite the cross-examination of this witness no material contradiction came out.
33. Another pertinent aspect which has to kept in mind while appreciating testimony of victim is that her mother had unfortunately got expired. Her father who is accused in present case is the only person who was supposed to take care of her and in such a scenario, it is difficult to comprehend that a child would depose against a person with whom she has entire aspirations of life or who is the only person to support her. No reasons has been attributed to the victim as to why she would depose against her father who is her lone savior.
Judgment 14 of 25
SC No: 208/13 State Vs. Malkhan Singh
34. Thus, the testimony of victim is found to be truthful and reliable and no circumstance has been brought on record to discredit her testimony. Her testimony also finds support from other prosecution witnesses and also from PW2 & 3 to whom incident of assault was narrated.
35. Medical Evidence: It has been argued on behalf of the accused that there is no medical evidence on record to establish the assault on the victim. Defence has pointed out towards FSL Result Ex. F-1 as per which no blood or semen was detected on the exhibits of victim or accused. Defense has also highlighted MLC of victim Ex. PW5/A as per which the hymen of victim was found intact and no injury was noticed on the private parts of the victim. It has been submitted that in view of the observations on the MLC as well as FSL Result, it is not the case of sexual assault and hence accused is entitled to be acquitted.
Judgment 15 of 25
SC No: 208/13 State Vs. Malkhan Singh
36. No doubt that the medical and forensic evidence does not indicate the sexual assault however, the facts of the case are not suggestive of any discharge or penetration in the private part of the victim. In her deposition, victim stated that the accused inserted his penis in her mouth, she started crying and then accused attempted to put his urinating part in her private part but she managed to release herself and ran away from there. Therefore, the very fact that the hymen of victim is intact does not exonerate the accused as factually testimony of victim is not suggestive of any discharge by the accused or penetration in private part of the victim.
37. Victim in her initial statement given to the Doctor as recorded on the MLC (Ex PW5/A) has stated that her father put off all her clothes and also his own clothes and first tried to put his penis in her mouth but then she started crying. Then accused tried to put his penis to her vagina but she managed to escape and went outside the room. Therefore, only doubt which is existing as to Judgment 16 of 25 SC No: 208/13 State Vs. Malkhan Singh whether the accused had inserted his private part in the mouth of the victim or not. None the less, the sexual assault on the victim stands proved but is does not stands established that it was a penetrative sexual assault.
38. Defence taken by the accused: Accused has submitted that a day before the incident, he went to meet victim and his father told accused that victim doesn't listen him and also remains absent from house without disclosing her whereabouts. Accused scolded victim and also slapped her. He told victim to stay with her grand- father but she revolted and became angry and later on under influence of his bhabhi, she lodged a false complaint. However, no witness has been examined by the accused in this regard. Accused could have examined his father to testify about the incident as narrated by him but he did not do so for the reasons best known to him. Nonetheless accused has not been able to establish any of the facts as alleged by him.
Judgment 17 of 25
SC No: 208/13 State Vs. Malkhan Singh
39. From the discussions herein above, it emerges that:
i) Testimony of the victim is credible & trustworthy.
ii) Victim was sexually assaulted by the accused.
iii) PW2 & 3 corroborates the version of the victim.
iv) Penetrative sexual assault stands not proved beyond reasonable doubt.
iv) Accused failed to establish his defence.
40. Conclusion: In the light of the discussions made herein above, testimony of the victim is found trustworthy and reliable in respect of the incident of sexual assault on her by the accused. Accordingly, accused stands convicted for the offence punishable U/s 10 POCSO Act, 2012.
Judgment 18 of 25
SC No: 208/13 State Vs. Malkhan Singh
41. Matter be listed for hearing arguments on quantum of sentence for 14.03.2016.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
11.03.2016
Judgment 19 of 25
SC No: 208/13 State Vs. Malkhan Singh
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 208/13
FIR No. 260/13
Police Station S.P. Badli
Under Section 376(2)/377/342/506
IPC & 4/10 POCSO
ID No. 02404R0-258982013
State
Versus
Malkhan Singh
S/o Sh. Imrat
R/o Plot No.263, Gali No.1
Khera Garhi Colony, Delhi .... Convict
ORDER ON SENTENCE
1. Accused Malkhan stands convicted for the offence punishable U/s 10 POCSO Act. I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and Ld. Amicus Curiae for the convict.
Judgment 20 of 25
SC No: 208/13 State Vs. Malkhan Singh
2. Learned Addl. PP has vehemently argued that the offence committed by the convict in this matter are of highly derogatory in nature. Child victim was subjected to molested by the convict. It is further argued that POCSO was enacted by the Parliament bearing in mind that the offenders under the said Act shall be dealt with with heavy hand, therefore, stringent punishment has been provided for in the said Act. The Learned Addl. PP has prayed for the maximum punishment prescribed under Section 10 of the Act in the matter, so that the same may act as deterrent for other impending offenders.
3. Per contra, the learned defence counsel has submitted that convict has already undergone about 30 months imprisonment as under-trial in this case and it is submitted that the he is first time offender as such benefit of Probation of Offender's Act be granted to the convict.
Judgment 21 of 25
SC No: 208/13 State Vs. Malkhan Singh
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.
5. Convict despite being the father of the victim has sexually assaulted her. Children are entitled to expect the best from their parents, in terms of care and parental love, that they can possibly receive. But the convict gave her daughter such a betrayal of faith of relationship that would really be difficult for her to forget despite knowing that victim has already lost her mother and there is no body else in this world to take her care. Nature of offence committed by the convict does not demand any leniency. Interest of justice would be met, if the convict is sentenced to rigorous imprisonment for the period of 7 years and fine of Rs5000/- u/s 10 POCSO Act in default of payment of fine SI for 15 days. Benefit of section 428 Cr.P.C is extended to the convict.
Judgment 22 of 25
SC No: 208/13 State Vs. Malkhan Singh
6. Compensation: 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.
7. Concept of welfare and well being of children is basic for 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 legislation, 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. Section 33(8) POCSO Act, also mandates that in addition to the punishment to the accused, the victim be granted compensation for physical and mental trauma caused to him and for the rehabilitation of the victim.
Judgment 23 of 25
SC No: 208/13 State Vs. Malkhan Singh
8. Therefore, in order to provide Restorative and Compensatory Justice to the victim Rs 2,00,000/- (Rs. Two Lac only) is granted to the victim as compensation. Learned Secretary, D.S.L.S.A, North District, New Delhi shall ensure that the said amount is given to the victim within one month on receipt of this order and shall further ensure that the said amount is disbursed in such a manner that the same be used for welfare and rehabilitation of the victim.
9. A copy of this order along with the particulars of the victim be sent to learned Secretary, D.L.S.A, North District., Rohini Courts, Delhi for necessary compliance.
10. Convict is informed of his 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, Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 34-37, Lawyer Chamber Block, High Court of Delhi.
Judgment 24 of 25
SC No: 208/13 State Vs. Malkhan Singh
11. Copy of judgment and copy of order on sentence be supplied to convict.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
14.03.2016
Judgment 25 of 25