Delhi District Court
Sc No. 58634/16 State vs . Santosh Kumar on 30 October, 2017
SC No. 58634/16 State Vs. Santosh Kumar
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No. 58634/16)
Unique Identification No. 02404R0361862015
FIR No. 803/15
Police Station Alipur
Under Section 376 IPC & 6 POCSO Act
State V/s Santosh Kumar
S/o Nagesh
R/o Raghunath Ka Makan
Village Singhu, Delhi.
......Accused
Date of institution of case 05.10.2015
Date of arguments 24.10.2017
Judgment Pronounced on 30.10.2017
Decision Convicted
J U D G M E N T
1.The accused Santosh Kumar is facing trial in the present case on allegations of having committed aggravated penetrative sexual assault / rape upon the victim S (identity withheld), aged about 10 years.
Judgment : FIR No. 803/15 page 1 of 26
SC No. 58634/16 State Vs. Santosh Kumar
2. The facts in brief, which are borne out from the record are that on 05.09.2015 at about 3.00 PM, the complainant / victim 'S' D/o Mr. R, aged about 10 years, who is a resident of a tenanted room in Amar Singh Ka Makan, Village Singhu, Alipur, Delhi, where she was living with her parents and three other siblings, was sent by her mother to a nearby factory for getting filtered water. On her way back, the accused Santosh Kumar, who used to work in the factory and was known to the victim, as he was living in the vicinity and used to be addressed by the victim as "Bhaiya", called her inside his room, offering her "Namkeen" / salted snacks. The victim went inside the room and the accused made her lie down on the ground and removed her Pajami and Panty and started inserting his urinal part in her urinal part, on which the complainant / victim raised an alarm and started screaming. The accused pressed her mouth and since the victim was crying, he gave her some Namkeen to eat. The clothes of the victim became blood stained, and the victim went back to her house, and told her mother about the accused Santosh having done wrong act with her. The mother of the victim informed her husband, who went after the accused and apprehended him, whereafter the police was informed. The police arrived at the spot and the victim was taken to hospital, where her medical examination was conducted and her MLC was prepared. Personnel from NGO was called, and after counselling of the victim, her statement was recorded, on the basis of which, after preparation of the Rukka, the case was got registered. The exhibits / samples of the victim / child were also obtained from the concerned doctor, as the mother of the victim agreed for the internal medical examination of the victim child. Outer clothes of the victim were Judgment : FIR No. 803/15 page 2 of 26 SC No. 58634/16 State Vs. Santosh Kumar also seized and after being sealed with the seal of hospital, all the exhibits were handed over to the IO, who seized the same vide appropriate seizure memo. On the next day, since there was sufficient evidence against the accused, he was arrested by the IO vide his arrest memo and personal search memo, and he was also got medically examined in the hospital, where his potency test was also conducted and his exhibits were seized by the IO. Subsequently, on the same day, the accused was produced in the concerned court, from where he was sent to JC.
3. Subsequently, on the same day, the victim as well as her mother were produced before the concerned MM, where their statements u/s 164 CrPC were recorded. The victim, in her statement u/s 164 CrPC, corroborated the prosecution version and her complaint but also added that the accused had inserted his urinal part in her urinal part thrice, due to which blood started oozing out from her urinal part and that she remained in the house of the accused for about half an hour and when she left the house of the accused, he told her not to disclose about the incident to anyone. The mother of the victim, in her statement u/s 164 CrPC, also supported the prosecution case and stated that she saw blood stains on the undergarments of her daughter. The exhibits of the victim as well as that of the accused were sent to FSL, and the result was awaited. The age proof of the victim was obtained by the IO from her school. The statements of the witnesses were recorded and after completion of the investigation, the chargesheet was filed in the court. Subsequently, the FSL result was obtained and filed in the court by the IO.
Judgment : FIR No. 803/15 page 3 of 26
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4. On appearance in the court, the accused was supplied with the copies, and after hearing the counsel for the accused and Ld. Addl. P.P. for the State, since prima facie case was made out, the accused was charged for the offence u/s 6 POCSO and in the alternative u/s 376 (2)(i) IPC on 02.05.2016 by the Ld. Predecessor of this court, to which he pleaded not guilty and claimed trial. Subsequently, vide order dated 24.10.2017, the charge was amended because as per the allegations, the offence which was committed, was covered under two heads simultaneously and not alternatively, and the accused was charged for the offence u/s 6 POCSO and u/s 376 (2)(i) IPC, to which he pleaded not guilty. Ld. Addl. P.P. for the State stated that after the amendment of the charge, no other witness is to be examined. Similarly, the accused stated that after the amendment of the charge, no witness is required to be cross examined afresh, nor any modification in his statement u/s 313 CrPC is required, nor any defence witness is to be examined.
5. To substantiate its case, the prosecution examined eight witnesses in all, out of which PW 4 and PW 7 are formal witnesses, PW5, PW 6 and PW 8 are witnesses of investigation, while the PW 1, PW 2 and PW 3 are the material witnesses, being the complainant / victim, her mother and her father respectively.
FORMAL WITNESSES
6. Dr. Ranjeet Kumar, Medical Officer, SRHC Hospital entered the witness box as PW 4 and deposed that on 06.09.2015, he medically examined the patient / accused Santosh, vide MLC no. 3374/15 which is Judgment : FIR No. 803/15 page 4 of 26 SC No. 58634/16 State Vs. Santosh Kumar Ex. PW 4/A. He further deposed that the blood sample of the accused was taken and was handed over to the IO in sealed condition.
7. PW 7 Dr. Shweta Jain, Specialist Obs & Gynae, SRHC Hospital was deputed by the Medical Superintendent, SRHC Hospital to deposed on behalf of Dr. Pallavi, who had worked with Dr. Shweta and has since left the hospital. PW 7, after seeing the MLC bearing no. 86/15, deposed that the same is in respect of a female patient S, aged about 10 years, and that the same was prepared by Dr. Pallavi and she identified the signature of Dr. Pallavi at point B on the said MLC which is Ex. PW 2/A. MATERIAL WITNESSES
8. The prosecution, to substantiate its case, examined the victim S as PW 1. After conducting preliminary examination of the victim by putting certain questions to her to assess the competency of victim / child to give rational answers, on being satisfied, the statement of the victim was recorded, wherein she deposed as under :
"On the day of incident my mother was suffering from high fever. She asked me to fetch some water from plant (factory). On the way accused Santosh (Present in the Court today and correctly identified by witness through wooden partition) met me on the way. Accused Santosh use to come to my house. I use to call him bhaiya. Accused asked me to accompany him to his room as he would give me mixture (Namkeen). I went along with him to his room. He bolted the door from inside. He took off my Judgment : FIR No. 803/15 page 5 of 26 SC No. 58634/16 State Vs. Santosh Kumar clothes and he removed his clothes as well. I raised alarm but no one came to rescue me. Then he made me lie down on the bedding on floor. Thereafter, he committed wrong act (choda chodi) with me. Blood started oozing out of my private part. He committed said act twice with me. Accused told me not to disclose the incident to anybody. Then he told me that I should go to my house and he will also be coming to my house.
I went to my house and narrated the whole incident to my mother and the matter was reported to the police. Police reached at the spot and and inquired from me. My statement was recorded by the police which is bearing my signatures at point A and my statement is now Ex. PW1/A. Accused was apprehended by my father. Police took me to hospital for my medical examination.
My statement was also recorded before Ld. MM.
At this stage, an envelope is opened sealed with the seal of AM and a statement U/s 164 Cr.P.C. is taken out. Witness has been shown the statement and she identifies her signatures at points A and the same is Ex. PW1/B."
9. In her crossexamination by the Ld. Counsel for the accused, the victim / PW 1 deposed as under :
Judgment : FIR No. 803/15 page 6 of 26
SC No. 58634/16 State Vs. Santosh Kumar
"It was evening time but it was before dusk. It took about 10 minutes to reach house of accused from our house. We are residing at the current address since childhood. I have one friend Neha who resides in our Gher. I know my neighbors by face but do not know their name. Nobody from our neighbor visit our house. Accused use to reside with other persons in his room. Other persons were also present when accused lured me to his room. No quarrel took place between my mother and accused prior to incident. My father neither took drinks along with accused nor had quarrel with him any point of time. My sister who was looking for me, met me on the way when I was going back to my home."
10. Mrs. M (mother of the victim) entered the witness box as PW 2 and deposed that she did not remember the exact month but on the 5 th day of a month in the last year, which was the day of Janamashtami, at about 23 PM, she was relaxing on the roof of her house, as she was not well, and she sent her daughter / victim S, aged about 10 years, for bringing filtered water from the nearby water plant, and when she did not return for 11 ½ hours, she sent her second daughter SU to look for her. She further deposed that when her daughter SU went out, she saw the victim S crying and coming out from the room of accused Santosh, who was correctly identified by the witness. On inquiry, victim S narrated the whole incident to her, that accused Santosh had sexually assaulted her. She checked the clothes of her daughter and found that the clothes of her Judgment : FIR No. 803/15 page 7 of 26 SC No. 58634/16 State Vs. Santosh Kumar daughter were blood stained. She further deposed that she telephonically informed her husband, who rushed to the house. They looked for the accused and apprehended and confined him in a room and thereafter called the police at 100 number. On arrival of the police, they handed over the accused to the police. She further deposed that she accompanied her daughter to the hospital and also gave permission for her internal medical examination vide her endorsement on the MLC Ex. PW 2/A at point A. She also deposed that the accused was arrested in her presence vide arrest memo Ex. PX1 and his personal search was conducted vide personal search memo Ex. PX2, both of which bear her signatures at point A. She further deposed that her statement was also recorded before the Ld. MM, and she identified her signature at point A on her statement u/s 164 CrPC Ex. PW2/B.
11. In her crossexamination by the Ld. Counsel for the accused, PW2 deposed that at the time of her marriage, she was 16 years of age and her first child was born after 11 ½ years of her marriage and there is a gap of 1 ½ years between her children. She did not have any registered birth certificate of her children issued by any government authority. She admitted that the place of incident is a populated area and the accused was residing in his room, with one Bengali person, but the said person had gone to his work on that day. She further deposed that as per her knowledge, nobody saw the accused taking her daughter in his room. She admitted that public persons had gathered at the spot and accused was apprehended by her and her husband. She did not search for any blood spots in the house of the accused. She denied that her Judgment : FIR No. 803/15 page 8 of 26 SC No. 58634/16 State Vs. Santosh Kumar husband used to drink with accused and they had a quarrel while doing so, or that due to this reason, the accused has been falsely implicated in this case.
12. Mr. R, father of the victim entered the witness box as PW 3 and deposed that he has four children and victim is her third born child. He further deposed that it was the 5 th day of the month of previous years, while he was working in the fields, at about 44.30 PM, his wife called him and narrated the whole incident to him. He alongwith his wife searched for the accused at his house and the nearby area and apprehended the accused near the water plant and confined him in a room, whereafter his wife called the police by dialing at 100 number. On arrival of the police, the accused was handed over in the police custody. His daughter and wife were taken to hospital for the medical examination of the victim child.
13. In his crossexamination by the Ld. Counsel for the accused, PW3 deposed that he did not have any quarrel with accused prior to the incident. He also deposed that the accused was residing with one more person but that person was on his duty on that day. He did not go inside the room of the accused, as it was closed. He deposed that he alongwith his wife apprehended the accused and thereafter public person gathered at the spot. He denied the suggestion that he used to drink with the accused or they had a quarrel while doing so or that the accused has been falsely implicated in this case.
WITNESSES OF INVESTIGATION
14. W/Ct. Nirmala, No. 2508/OD, PS Alipur entered the witness box Judgment : FIR No. 803/15 page 9 of 26 SC No. 58634/16 State Vs. Santosh Kumar as PW 5 and deposed that on 05.09.2015, she joined the investigation of the present case alongwith SI Dhirender and Ct. Mahavir and reached at the spot, from where they took the victim and her mother to SRHC Hospital for the medical examination of the victim. After medical examination of the victim, she collected the sealed exhibits of the victim and handed over the same to the IO SI Tejwati, who seized the same vide seizure memo Ex. PW5/A. She further deposed that the IO prepared the rukka and handed it over to Ct. Mahavir to get the case registered.
15. SI Dhirender, No. D360, PS Alipur entered the witness box as PW 6 and deposed that on 05.09.2015, while being posted on emergency duty, on receipt of DD No. 24 A, he alongwith Ct. Nirmal and Ct. Mahavir reached at the spot, where they met the victim and her parents. He further deposed that the victim was got medically examined at SRHC Hospital. Regarding the incident, WSI Tejwati was informed, who reached at the spot and recorded the statement of the victim, prepared the Tehrir, handed over the same to Ct. Mahavir to get the case registered. He further deposed that on 06.09.2015, accused Santosh (correctly identified) was arrested vide arrest memo Ex. PX1 and his personal search was also conducted vide personal search memo Ex. PX2. On 18.09.2015, he sent the exhibits of this case to FSL through Ct. Baljeet. He further deposed that 24.09.2015, he collected the age proof of the victim from her school. He prepared the chargesheet and handed over the same to MHC(R).
Judgment : FIR No. 803/15 page 10 of 26
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16. IO SI Tejwati, No. 5052 D, PS Alipur entered the witness box as PW 8 and deposed that on 05.09.2015, while being posted at PS Alipur at about 9.30 PM, on receipt of an information from the Duty Officer, regarding commission of rape, she reached at SRHC Hospital, where she met the victim, her mother, SI Dhirender, W/Ct. Nirmala and Ct. Mahavir. She recorded the statement of the victim, on the basis of which, she prepared the rukka Ex. PW8/A and handed over the same to Ct. Mahavir to get the case registered. She seized the exhibits of the victim vide seizure memo already Ex. PW 5/A. She arrested the accused and conducted his personal search vide arrest memo Ex. PX1 and personal search memo Ex. PX2, and also recorded the disclosure statement of the accused Ex. PW 8/B. She got the accused medically examined and seized the exhibits / samples of accused vide seizure memo Ex. PW8/C. She further deposed that on 06.09.2015, she produced the victim and her mother before the Ld. MM and got recorded their statements u/s 164 CrPC.
17. In her crossexamination by the Ld. Counsel for the accused PW8 deposed that she arrested the accused from his house, and that the distance between the house of the accused and that of the victim is about 500 meters. She denied the suggestion that the accused was handed over to her by the mother of the victim.
18. After close of PE, the statement of the accused was recorded u/s 313 CrPC wherein he denied the prosecution case in its entirety, and claimed his innocence. He further stated that on the date of incident, the Judgment : FIR No. 803/15 page 11 of 26 SC No. 58634/16 State Vs. Santosh Kumar victim herself had come to her house, but he had not done anything to the victim and he has been falsely implicated in this case by the father of the victim and that he was apprehended by the police from his house. However, he preferred not to lead any defence evidence.
19. I have heard Sh. Sanjay Jindal, Ld. Addl. PP for the State and Mr. Mithlesh Kumar, counsel for the accused. Ld. Addl. PP for State has contended that the victim is an innocent child of 10 years of age, who despite her tender age, has competently and vividly deposed about the incident as it took place with her and has supported the prosecution case to the hilt, corroborating her initial two versions i.e. the complaint and her statement u/s 164 CrPC, with minor deviations, which can easily be over looked. The parents of the victim have also corroborated the version of the victim and have categorically identified the accused, to be the person who committed the offence, qua their daughter and that the prosecution case is proved to the hilt, by all the supporting and corroboratory witnesses. It is further contended that the defence, which has been raised by the accused is a sham one, there being no evidence on record to show any previous dispute or malice between the parents of the victim, especially her father, and the accused and therefore there is no reason to doubt the version of the victim, which can easily be relied upon to base the conviction of the accused. It is also pointed out that the accused has himself admitted in his statement u/s 313 CrPC about the child having come in his room and therefore, the accused is liable to be convicted for the offences charged with.
20. Per Contra, Ld. Counsel for the accused has contended that the Judgment : FIR No. 803/15 page 12 of 26 SC No. 58634/16 State Vs. Santosh Kumar version of the mother and father of the victim is that they had apprehended the accused, kept him in confinement and thereafter handed over the accused in the custody of the police on the date of incident itself, when the police arrived at the spot. Whereas, as per record, the incident allegedly took place on 05.09.2015 at around 3.00 PM, while the accused was arrested on 06.09.2015 at 3.30 AM. Further more, the MLC of the victim shows no external injury on the person of the victim, which totally belies any sexual assault upon her person. Further more, the FSL result, which has been received is against the prosecution version as there was no semen found on the pubic samples / exhibits of the victim, which were taken, nor was any semen detected on her clothes. It is further contended that no male DNA profile was generated from the sources of exhibits 2b, 2c, 3a and 3b, which are the baby pants, baby underwear, pant and one banian having dirty brown stains. It has been further argued that the accused has been falsely implicated in this case by the victim at the instance of her father due to previous quarrel between them. It is prayed that the accused, having been falsely implicated, be acquitted.
21. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law.
Age of the victim
22. To ascertain the age of the victim child, the prosecution relied upon the school record of the victim, which comprises of the certificate issued by the Principal of the M.C. Primary School, Singhu, Girls, Delhi, Judgment : FIR No. 803/15 page 13 of 26 SC No. 58634/16 State Vs. Santosh Kumar the photocopy of the affidavit submitted by the parents of the victim child at the time of her admission, photocopy of the admission form, photocopy of the relevant page of the admission / withdrawal register and the same were proved on record as Ex. PX5 to PX8 respectively, as the accused admitted the said documents to be true, as has been recorded by the Ld. Predecessor of this court in the proceeding sheet dated 20.01.2016. As per the school record of the victim child S, which has not been disputed by the accused, but rather admitted by him to be correct, the date of birth of the victim child S is 01.11.2005. There is nothing on record to disbelieve the said school record and that the date of birth of the victim child is 01.11.2005 and therefore it is accepted that the date of birth of the victim child S is 01.11.2005. As such, on the date of alleged incident i.e. 05.09.2015, the victim was aged about 10 years, and hence she is a "Child" within the meaning given under the POCSO Act.
Medical and forensic Evidence :
23. The medical evidence in the instant case came forth in the form of the MLC of the victim bearing no. 86/15 dated 05.09.2015 prepared at 10.15 PM, which was proved as Ex. PW2/A, wherein it has been categorically mentioned that the victim S had herself stated that she has been sexually assaulted by a man namely Santosh at around 3.00 PM on the same date i.e. 05.09.2015 in his room in Singhu village. The MLC has the observation that no scratches were found on her external genitalia nor was there any external injury present but there was slight bleeding present in the vagina. Initially, the mother of the victim at 10.15 PM, refused for the internal medical examination of her daughter / victim Judgment : FIR No. 803/15 page 14 of 26 SC No. 58634/16 State Vs. Santosh Kumar and this factum finds a recording on the MLC under the signature of Mrs. M / mother of the victim at point A. However, subsequently at 10.30 PM, there is a categorical statement made by the mother of the victim Mrs. M, wherein she agreed for the internal medical examination of the victim, after she had been explained the consequences, which the said internal examination of the victim would entail. Consequently, the samples / exhibits of the victim, after her internal medical examination, were collected, sealed by the seal of hospital and were handed over to the IO, who seized the same vide seizure memo Ex. PW 5/A. It is pertinent to mention that the said Sexual Assault Kit, which was prepared by the doctor concerned, also contained the clothes of the victim, which were also seized by the IO on the same day i.e. 05.09.2015.
24. The accused was also medically examined at SRHC Hospital on
06.09.2015 vide MLC Ex. PW 4/A, which finds a mention regarding some bruises of linear pattern over his back, which were one day old. The samples of the accused were also seized and it was also opined that there was nothing to suggest that the said person / accused was unable to perform sexual intercourse. The exhibits of the victim as well as that of the accused were sent for expert analysis to the FSL and the Result therefrom Ex. F1 has been received, as per which on Biological Examination, Blood was detected on exhibits 1k i.e. Dark brown foul smelling liquid alongwith syringe kept in two separate tubes marked as step 14 blood collection of victim , 1ll i.e. Dark brown foul smelling liquid kept in a tube marked as step 15 urine and oxalate blood vial, 2b i.e. one baby pants having dirty brown stains, 2c one baby underwear having dirty dark brown stains, 3a i.e. one pants, 3b ie. One banian having dirty brown Judgment : FIR No. 803/15 page 15 of 26 SC No. 58634/16 State Vs. Santosh Kumar stains, 4 i.e. one sealed cloth parcel sealed with the seal of SRHC Hospital Narela Delhi containing exhibit '4' and exhibit 5 i.e. one sealed cloth parcel sealed with the seal of SRHC Hospital Narela Delhi containing exhibit 5 kept in a plastic container. It is further revealed from the FSL result that Semen could not be detected on exhibits 1a, 1b, 1c, 1d, 1e1, 1e2a, 1e2b, 1f1, 1f2a, 1f2b, ig, ih, 1i1, 1i2a, 1i2b, ij, 2a, 2b, 2c, 3a and 3b, which are the samples / exhibits of the victim and the accused.
25. On DNA examination of the exhibits / samples of the victim and the accused, it was found that Exhibit 2b (Baby pants), exhibit 2c (underwear) exhibit 3a (pants) and exhibit 3b (banian) were subjected to DNA isolation. DNA was isolated from the source of Exhibits 2b, 2c, 3a & 3b. No male DNA profile was generated from the source of exhibits 2b, 2c, 3a & 3b. Identifier plus PCR Amplification kit was used for STR amplication and Data was analysed by using Gene mapper IDX software.
Testimony of the material witnesses
26. The testimony of the child victim S, which was recorded on 20.01.2016 was emphatic, crisp and very firm. Starting from the reason why she went to the factory this is for fetching water during the day time on the asking of her mother, to meeting the accused on the way, who asked her to accompany him to his room, as he would give her Namkeen, is unflinching and in her crossexamination, the said factum is not even denied. Rather in his statement u/s 313 CrPC recorded on 06.01.2017 by the Ld. Predecessor of this court, the accused himself, in response to question no. 35 put forth to him by the Ld. Predecessor of this court, has Judgment : FIR No. 803/15 page 16 of 26 SC No. 58634/16 State Vs. Santosh Kumar stated that "On the date of incident, victim herself came to my house and after a short while she went away." The testimony of the victim is also very firm and elucidative to the effect that the accused took off his clothes, removed his own clothes, made her to lie down on the bedding on the floor and thereafter he committed wrong act (ChodaChodi) with her, whereafter blood started oozing out of her private part. She has also categorically stated that she raised an alarm but no one came to rescue her and accused committed this wrong act with her twice. Thereafter the accused left her and she went to her house and narrated the whole incident to her mother.
27. In the lengthly crossexamination of the victim on behalf of the accused, there was no question which came forth from the side of the accused as to why the child started bleeding from her private part. No doubt, keeping in view the tender age of the witness, the suggestions were not allowed to be given to the witness by Ld. Predecessor and it was mentioned at the end of the testimony of the witness that the contradictions in her statement shall be given due attention at the time of hearing of final arguments, but in the wake of the accused himself admitting that the child had come to his house but he not giving any reason as to why the child would suddenly visit him, and why such a detailed version came forth from the mouth of the victim, describing the whole act of penetrative sexual assault, the testimony of the victim comes forth as more truthful, with no dent in it being put from the side of the accused during the course of crossexamination of the victim.
28. PW 2 Mrs. M / mother of the victim duly corroborated the version Judgment : FIR No. 803/15 page 17 of 26 SC No. 58634/16 State Vs. Santosh Kumar of her daughter, about the victim having been sent to fetch water from the water plant and when she did not return for 11 ½ hour, she (PW2) sent her second daughter SU to look for her. She also deposed that when her second daughter SU went out, she saw the victim crying and coming out from the room of the accused. She also deposed that on being told about the sexual assault upon the victim by the accused, she checked the clothes of the victim and found the same blood stained, whereafter she called her husband and narrated the whole incident to him, and they went in search of accused, apprehended him and confined him in a room. Surprisingly, in the lengthly crossexamination of PW 2 also, there is no rebuttal that no sexual assault upon the person of the victim was committed by the accused, nor has the presence of blood on the clothes of the victim, as deposed by PW 2, been controverted. PW 2 being a seasoned woman, has also not been given any suggestion regarding nonpresence of any blood on the clothes of the victim or that PW 2 was deposing falsely in this regard.
29. PW 3 Mr. R, father of the victim, who was called by his wife and was narrated the entire incident, also corroborated the version of his wife to the effect that on being narrated the entire incident, he immediately went in search of the accused and apprehended him near the water plant and confined him in a room, and thereafter the police was called.
30. Therefore, all the three material witnesses came across as very cogent and lucid ones and they stood on firm ground even during their grilling examination, and put forth the version of the horrific sexual assault purportedly by the accused upon the victim, a child of 10 years of age.
Judgment : FIR No. 803/15 page 18 of 26
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All the three material witnesses supported the prosecution case on all material particulars and were found to be truthful and their version is totally reliable.
Witnesses of investigation
31. The instant case is a case of a prompt FIR, having been made a few hours after the commission of penetrative sexual assault upon the victim S at about 3.00 PM on 05.09.2015. On receipt of the call vide DD No. 24 A, PW 6 SI Dhirender accompanied by Ct. Nirmal and Ct. Mahavir reached at the spot. Investigation continued the entire night, with the first task of the investigating agency being that of taking the victim to the hospital for her medication examination, which was conducted at 10.15 PM onwards, and after the completion of necessary formalities, the accused was arrested on 06.09.2015 at 3.30 AM vide his arrest memo Ex. PX1 and personal search memo Ex. PX2.
32. Similar was the testimony of the main IO SI Tejwati, who was examined as PW 8. In her crossexamination PW 8 stated that she arrested the accused from his house and that no public persons had gathered at the spot, and due to this reason, no public witness was joined in the investigation, though she denied that it was the mother of the victim, who handed over the accused to her. This being the only contradiction between the testimony of the IO and that of PW 2, who stated that on arrival of the police, accused was handed over to the police, there is nothing which raised any doubt over the promptness and truthfulness of the investigation, which was conducted by the investigating agency.
Judgment : FIR No. 803/15 page 19 of 26
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Defence of the accused
33. The defence, which was raised by the accused, was very clumsily put forth by the accused to the victim (PW1), her parents (PW2 and PW 3 respectively) as well as to the IO (PW8) to the effect that the accused used to consume liquor with the father of the victim and that they had a quarrel while doing so, due to which accused has been falsely implicated in this case. No specific date or time of any such quarrel has been mentioned during the crossexamination of any of these witnesses. The said suggestion, which was put forth to all the said three witnesses was categorically denied by them, and in fact the victim denied her father having taken drinks with the accused or ever had any quarrel with him. It is apparent that while giving this suggestion, what is intrinsic in it, is that quarrel, if any, which the accused was mentioning in his defence, must have happened prior to the incident. If this was the case, the child would never had gone to the house of the accused either by herself, as stated by the accused in his statement u/s 313 CrPC, or on being lured by the accused even on the promise of some snacks being given by the accused to the child. The very fact that the child went to his house, is evidence enough, that the relations between the accused and the family members of the child were cordial ones and the child from the inception of her testimony indicated the said factum by stating that she used to address the accused as Santosh Bhaiya.
34. PW 1 in the course of her testimony has also stated that after committing the wrong act, she was told to go away and he would be coming to her house later. This part of her testimony was also not challenged during her crossexamination and therefore had the relations Judgment : FIR No. 803/15 page 20 of 26 SC No. 58634/16 State Vs. Santosh Kumar between the accused and the family members, especially the father of the victim, been on rough grounds and not cordial, he would never have told the child that he would be coming to her house later. The defence, which is taken by the accused of false implication only because of some quarrel, appears to be a sham one, as even the IO in her crossexamination, has stated that during her investigation, she did not come to know of any quarrel between the accused and the father of the victim. The accused did not prefer to lead any evidence in his defence and thus did not bring forth any witness who could have testified that there had been a quarrel between the father of the victim and the accused at any point of time, to lend more corroboration to his defence. Therefore, the defence, which has been raised by the accused does not inspire any confidence.
35. The thrust of the arguments of the Ld. Counsel for the accused was that the accused has been falsely implicated and that it is evident from the factum that as per the parents of the victim (PW2 and PW3) they had apprehended the accused and handed him over in the custody of the IO, whereas the IO has stated that she arrested the accused from his room and that accused was not handed over to her by the mother of the victim, and that if the accused had been apprehended on 05.09.2015, why was his arrest made on 06.09.2015.
36. Reporting to the police and registration of the FIR are very prompt, being made on the same day itself i.e. 05.09.2015, whereafter the first IO came to the spot, took the victim to the hospital, where her medical examination was conducted in the wee hours of the next day i.e. 06.09.2017, and it was thereafter at about 3.00 AM that the accused was Judgment : FIR No. 803/15 page 21 of 26 SC No. 58634/16 State Vs. Santosh Kumar arrested by the IO, as came forth in the testimony of PW 6 SI Dhirender and PW 8 SI Tejwati. Accused being arrested at 3.00 AM on 06.09.2015 (intervening night of 5th and 6th September, 2015) is not refuted. Therefore, there is no delay of one day, in the arrest of the accused, as has been contended by the Ld. Counsel for the accused, but rather the date changed because of the investigation and the medical examination of the child being conducted in the wee hours of 5 th and 6th September, 2015.
37. It was the version of PW 2 as well as PW 3 that on being narrated the incident by their daughter, as would have been the reaction of any normal prudent persons, they firstly confronted the accused, and thereafter apprehended and confined him in his room. It was from his room that the accused was arrested by PW 8 at 3.00 AM on 06.09.2017. Neither the assertion of PW 2 and PW3 that accused was apprehended by them and was confined in his room has been refuted or challenged by the accused during their crossexamination, nor the IO's version that the accused was arrested at around 3.00 AM on 06.09.2015 from his house, was challenged. The statement of the mother of the victim in her testimony as PW 2 that they had handed over the accused to the IO, becomes inconsequential, which does not effect or make worthless, the otherwise cogent and very firm testimony of all the other prosecution witnesses.
38. The second contention, on which much hue and cry was made by the Ld. Counsel for the accused was that the FSL result Ex. F1 is "negative one" in as much as in the Biological Examination as well as Judgment : FIR No. 803/15 page 22 of 26 SC No. 58634/16 State Vs. Santosh Kumar DNA Analysis, no semen was found either on the clothes of the victim or on her other exhibits including vaginal swab, which were taken after her internal medical examination, and that this indicative, that no sexual assault ever took place upon the victim and that the victim as well as her parents have not deposed the truth. No doubt, no semen has been detected on the exhibits 1a, 1b, 1c, 1d, 1e1, 1e2a, 1e2b, 1f1, 1f2a, 1f2b, ig, ih, 1i1, 1i2a, 1i2b, ij, 2a, 2b, 2c, 3a and 3b, which are the samples / exhibits of the victim and the accused, and even DNA analysis of the exhibits / samples of the accused and the victim gives a clear chit that no male DNA profile was generated from the source of exhibits / samples of the victim.
39. At this juncture, it would not be out of place to refer to the definition of penetrative sexual assault as defined in section 3 and section 6 of the POCSO Act and that of rape, which is defined in section 376 IPC, with which the accused has been charged with. A bare reading of the said two sections clearly indicates that it is only penetration of either penis or finger or any other part of the body or any object etc into the vagina, anus etc of the victim, which constitutes the commission of offence of penetrative sexual assault / rape respectively as described in the said two sections. For the said offence of penetrative sexual assault as described in section 3 of POCSO Act and aggravated version as described in section 5 of POCSO Act and punishable u/s 6 POCSO Act and offence of rape u/s 376 IPC, does not make "ejaculation of semen"
and its presence to be imperative for the offence to be complete.
40. The victim has categorically stated that she was subjected to Judgment : FIR No. 803/15 page 23 of 26 SC No. 58634/16 State Vs. Santosh Kumar penetrative sexual assault. No defence has been put forth from the side of the accused to demolish the said testimony of the victim child. Presence of the victim child in the room of the accused on the date of incident i.e. 05.09.2015 at 3.00 PM is not denied but rather admitted by the accused in his own statement u/s 313 CrPC. The victim child has categorically stated that the blood started oozing out from her private part, which has not been denied or controverted by the accused during the crossexamination of the victim.
41. PW 2 / mother of the victim has also categorically stated that there was blood present on the clothes of the victim, when the child returned home at about 4.30 PM on 05.09.2015. In the MLC of the victim Ex. PW2/A, there is an observation coming forth from the doctor concerned Dr. Pallavi, that there was slight bleeding PIV and there is no observation that this bleeding was due to "Mensuration Cycle" of the child, nor any suggestion has come from the side of the accused to this effact. The clothes of the victim were seized on the same day itself i.e. on 05.09.2015 by the doctor concerned and were sent to FSL for expert opinion and as per the FSL Result Ex. F1, blood was detected on exhibits 2b (baby pants having dirty brown stains), Ex. 2c (baby underwear having dirty dark brown stains), Ex. 3a (one pants) and Ex. 3b(One banian having dirty brown stains), and therefore even the FSL has found that the child's clothes were all blood stained, being similar to the blood which was sent by way of Ex. 4, which was the blood sample of the victim. Therefore, there is no denial that the child's clothes were blood stained on 05.09.2015 and from her MLC also it is clear that there was a slight bleeding from her private parts, crystallizing the truthfulness Judgment : FIR No. 803/15 page 24 of 26 SC No. 58634/16 State Vs. Santosh Kumar of the version of the victim and her mother regarding blood oozing out from the private parts of the victim. How the child started bleeding, has not been explained by the accused. The only explanation and the probable, plausible and authentic explanation which came forth from the victim child, aged about 10 years, is that she was subjected penetrative sexual assault by the accused, resulting in the child bleeding from her private part. No doubt, there was no injury on the external genitalia of the victim, as observed in her MLC but it is her genitalia, which was got torn internally, which resulted in the bleeding and which stand accounted for only by one plausible explanation that it was due to a penetrative sexual assault, the reason of mensuration cycle having been eliminated.
42. In the MLC of the accused Ex. PW 4/A there is an observation about bruises, which were one day old. Accused has not denied or controverted the presence of such bruises. How it came about is not explained by the accused but is reflective of some untoward happening with the accused a day before. Inference is against the accused.
43. In view of my discussions above, it emerges that ;
(i) on the day of incident, the victim was about 10 years of age;
(ii) the accused took the victim with him to him room, in order to sexually assault her;
(iii) the accused committed penetrative sexual assault upon the victim by inserting his penis in her urinary part.
(iv) the witnesses are trustworthy and accused has not been able to raise any defence.
Judgment : FIR No. 803/15 page 25 of 26
SC No. 58634/16 State Vs. Santosh Kumar
44. Conclusion : In the light of my discussion above, the
testimony of prosecution witnesses is found to be trustworthy and reliable, and the prosecution has succeeded in proving that the accused committed Aggravated Penetrative Sexual Assault upon the victim, aged around 10 years, at the time of incident, and thus having committed an offence described u/s 5 (m) of the POCSO Act, and punishable U/s 6 of POCSO Act and for offence u/s 376 (2)(i) IPC.
45. Accordingly, the accused is convicted for the offence punishable U/s 6 of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and u/s 376 (2)(i) IPC.
46. Matter be listed for arguments on the quantum of sentence on 31.10.2017.
Announced in the open court
today i.e. on 30.10.2017 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 30.10.2017
Judgment : FIR No. 803/15 page 26 of 26