Delhi District Court
State vs . Akash on 11 December, 2013
State Vs. Akash
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 68/13
ID No. : 02401R0164172013
FIR No. : 07/13
Police Station : Sadar Bazar
Under Section : 506/509 IPC &
11/12 POCSO Act
State
Versus
Akash
S/o Shyam Kumar
R/o 1113, Gali No. 11,
Sadar Bazar
Delhi
.........Accused
Date of Institution : 03.04.2013
Date of judgment reserved : 26.11.2013
Date of judgment : 03.12.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Ms. Kusum Gupta, Advocate, counsel for accused.
SC No. 68/13 Page 1 of 10
State Vs. Akash
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on January 27, 2013 at about 6.13 PM an intimation was received at Police Station Sadar Bazar that the incident of eve teasing had taken place at gali No. 11, near House No. 1119. The said information was reduced into writing vide DD No. 25A (Ex.PW4/B) which was assigned to ASI Tej Pal. SI Krishan Kumar who was on patrolling duty along with Const. Sonia and Const. Khem Chand also heard the information on his wireless set, accordingly he along with his staff reached the place of occurrence where victim (PW2) met him. (Since, PW2 is a victim of sexual assault, her identity is withheld and hereinafter she is referred to as complainant/victim). Victim got recorded her statement Ex.PW2/A to the police alleging that for the last few days accused Akash, who was residing in her neighbourhood used to harass and threaten her whenever she used to come out from her house and went to market to buy articles. He used to pressurize her to talk with him otherwise he would throw acid on her face. He also used to do obscene talks failing which he used to threat her to kill her. It was alleged that on January 27, 2013, she went to market to buy articles and on the way accused Akash met her and started obscene talk and also threatened her to kill her. It was alleged that she had narrated the incident to her parents, accordingly, they called the police. On her statement an FIR was got registered for the offence punishable under Section 506/509 IPC read with Section 11 of POCSO Act.
2. After completing investigation, challan was filed against the accused Akash for the offence punishable under Section 506/509 IPC read with Section 11/12 of POCSO Act.
SC No. 68/13 Page 2 of 103. After complying with the provisions of Section 207 Cr. P.C. a charge for the offence punishable under Section 506/509 IPC read with Section 12 of POCSO Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following 4 witnesses:-
PW1 Smt. 'X' (since she is mother of victim, in order to withhold the identity of victim, her identity is also withheld and hereinafter she is referred to as Smt. 'X' or mother of victim) PW2 Victim herself.
PW3 Const. Sonia, joined investigation with
investigating officer
PW4 SI Krishan Kumar, investigating officer
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied all incriminating evidence and submitted that he has been falsely implicated in this case.
6. Learned counsel appearing for accused submitted that prosecution case is based on the sole testimony of PW2. It was submitted that no reliance can be placed on her testimony as she has made substantial improvement in her testimony. It was submitted that though incident had taken place in the market but prosecution failed to produce any independent witness which may corroborate the testimony of PW2, thus, it was argued that no reliance can be placed on her testimony. It was submitted that accused has been falsely implicated in the case due to SC No. 68/13 Page 3 of 10 State Vs. Akash previous enmity between the families.
7. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing sagaciously that PW2 has corroborated the prosecution case on all material aspects and there is no evidence to establish that the accused has been falsely implicated. It was further submitted that during trial accused failed to produce any evidence contrary to the testimony of prosecution witnesses, thus there is no reason to disbelieve the prosecution case.
8. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. Though prosecution has examined as many as 4 witnesses, yet prosecution case is based on the sole testimony of victim i.e. PW2. Now question arises as to whether PW2 has made substantial improvements in her deposition or not?
10. In her examination-in-chief, PW2 deposed that on January 27, 2013, accused met her on the way and he caught hold her by arm and asked her to talk with him. She further deposed that earlier also accused caught hold by her arm. During her cross-examination, said portion of her testimony was got duly confronted with her statement Ex.PW2/A. Perusal of her complaint Ex.PW2/A reveals that she had not made any allegation that accused had ever caught hold her by arm. She only alleged that accused used to meet her on way whenever she went to market to buy articles and used to do obscene talks with her and when she asked him not to talk so, he used to threat her to kill. Since, the victim has not made any allegation in SC No. 68/13 Page 4 of 10 State Vs. Akash her complaint Ex.PW2/A that accused had at any point of time caught hold her by arm, this proves that victim had made improvement in her testimony by adding that accused had caught hold her by arm, thus, no reliance can be placed on her testimony to that extent.
11. However PW2 categorically deposed that on January 27, 2013 when she went to market to fetch milk, accused met her on the way and asked her to talk otherwise he would beat her. She also deposed that even prior to that accused threatened her that he would throw acid if she would not talk to him and he had restrained her from proceeding further.
PW2 has categorically alleged said allegations in her complaint Ex.PW2/A. Though PW2 was cross-examined in depth but nothing could be extracted during her cross-examination which may cause any dent in her testimony. Though in her cross-examination, she admitted that there was some quarrel between her parents and the accused prior to the incident but she categorically denied that she had falsely implicated the accused. She admitted in the cross-examination that she knew the accused previously and she explained it in her complaint by stating that accused was residing in her locality. Since, she knew the accused previously, complainant had no confusion in identifying the accused. She categorically denied the suggestion that she had falsely implicated the accused at the instance of her parents. PW1 also corroborated the testimony of PW2 by deposing that she had sent her daughter to fetch milk from the market. Kamna her niece aged around 10 years informed her that PW2 was coming while weeping, accordingly she came out from the house and saw that PW2 was coming back while weeping and on being asked, PW2 narrated the incident to her. Thereafter, they made a call to the police. During trial, accused failed to adduce any contrary evidence on record. In the absence of any contrary evidence, I do not find any reason to disbelieve their testimony.
SC No. 68/13 Page 5 of 1012. From the testimony of PW1 and PW2 it becomes clear hat accused used to harass the victim for several days whenever she used to go market and accused repeated the incident on January 27, 2013 when victim went to market to fetch milk. From her testimony, it becomes clear that accused used to compel the victim to do obscene talk with him failing which he would beat him or throw acid upon her.
13. To prove the guilt of accused for the offence of sexual harassment as defined under Section 11 of POCSO Act, prosecution is duty bound to prove that accused has repeatedly or constantly followed the victim directly or through electronic, digital or any other means with sexual intent. In the instant case, from the testimony of victim it becomes clear that accused repeatedly followed the victim whenever she used to go market. Since, accused used to compel the victim to talk with him and he also used to do obscene talk with her, it proves that accused had sexual intent while following the victim, thus, the act of accused squarely falls within the four corners of sexual harassment as defined under Section 11 of POCSO Act. The above said acts of accused also proves the guilt of accused under Section 509 IPC.
14. No doubt, the alleged incident had taken place in the market, thus, the public persons must be present at that time and this fact is also admitted by PW2 in her cross-examination. But mere fact that the investigating officer failed to record the statement of any public witness in support of the allegations made by the complainant is not sufficient to discard the testimony of complainant which otherwise appears to be trustworthy. Admittedly, during trial, accused has also failed to produce any independent witness to controvert the victim's version that he had not sexually harassed the victim either on January 27, 2013 or prior to that.
SC No. 68/13 Page 6 of 1015. PW2 in her testimony categorically deposed that accused had threatened to kill her and throw acid if she failed to talk with him, thus, accused has also committed the offence of criminally intimidation punishable under Section 506 Part-I of IPC.
16. Pondering over ongoing discussion, I am of the considered opinion that prosecution had succeeded to prove the guilt of accused beyond the shadow of all reasonable doubts for the offence punishable under Section 12 of POCSO Act and under Section 506/509 IPC.
Announced in the open court On 03rd December, 2013. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
SC No. 68/13 Page 7 of 10State Vs. Akash IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 68/13 ID No. : 02401R0164172013 FIR No. : 07/13 Police Station : Sadar Bazar Under Section : 506/509 IPC & 11/12 POCSO Act State Versus Akash S/o Shyam Kumar R/o 1113, Gali No. 11, Sadar Bazar Delhi.
.........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Ms. Kusum Gupta, Advocate, counsel for convict ORDER ON THE POINT OF SENTENCE: -
1. Vide separate judgment dated December 3, 2013, accused has been held guilty for the offence punishable under Section 12 of POCSO Act read with Section 506/509 IPC.
2. Learned counsel appearing for convict requests to release the SC No. 68/13 Page 8 of 10 State Vs. Akash convict on probation of good conduct on the grounds that he is a young boy of 22 years old having newly born baby aged about 2 months. He has also old parents. It is submitted that convict has no criminal antecedents and the report of Probation Officer is also in favour of the convict.
3. Learned Additional Public Prosecutor concedes that the report of Probation Officer is in favour of the convict and he has no criminal antecedents. On being asked, he submits that there is no legal bar to release the convict on probation of good conduct for the offence punishable under Section 12 of POCSO Act as no minimum sentence is provided for the offence punishable under Section 12 of the Act.
4. I have heard submissions made by counsel for the parties and perused the record carefully.
5. As per the report of Probation Officer, convict has no criminal antecedents and he got rehabilitation in traditional way as skilled labour and showed rectified behaviour in open Society after this case and he fulfils all terms and conditions of probation. He has old parents and grand parents.
Recently he has been blessed with a female child. Thus, there is nothing on record which may deprive the convict from the benevolent provisions of Probation of Offenders Act. As already stated that there is no specific bar in the POCSO Act to release the accused on probation of good conduct for the offence punishable under Section 12 of POCSO Act. Even no minimum sentence is provided under Section 12 of the Act like other provisions for graver offences.
6. In view of the aforesaid discussion, I am of the opinion that ends of justice will be met, if convict be released on probation of good SC No. 68/13 Page 9 of 10 State Vs. Akash conduct. Accordingly, convict be released on probation of good conduct for 12 months from today on furnishing a personal bond in the sum of ` 10,000/- with one surety in the like amount with condition that he shall appear and receive sentence as and when call during the said period and in the mean time, he shall maintain peace and be of good behaviour and shall not consume liquor or any other intoxicant during the said period. He shall also deposit ` 5,000/- as cost of proceedings under Section 5 of Probation of Offenders Act.
7. Cost of proceedings is deposited.
8. Copy of judgment along with order on the point of sentence be given to the convict/his counsel free of cost.
8. File be consigned to record room.
Announced in the open court On this 11th day of December, 2013. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
SC No. 68/13 Page 10 of 10