Delhi District Court
Fir No. 319/13 : State vs Surender : Ps Kanjhawala Dod: ... on 10 August, 2015
FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE:
(NORTHWEST)01: ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 18/14)
Unique ID case No.02404R0024382014
State Vs. Surender
FIR No. : 319/13
U/s : 377 IPC & 4 of POCSO Act
P.S. : Kanjhawala
State Vs. Surender
S/o Kawal Singh
R/o B346, Sawda JJ Colony,
Delhi.
Date of institution of case 15.01.2014
Date of arguments : 27.07.2015
Date of pronouncement of judgment : 05.08.2015
J U D G M E N T:
The facts of the case as borne out from the record are that on 16.10.2013, at about 4.40 pm, DD no. 25A was recorded in the PS, through PCR call, regarding commission of a wrong act with a four years old child (hereinafter referred to as child victim). Copy of the said DD was marked to PW13 SI Sudhir Rathi and he along with Ct. Amit went to the spot i.e. B353, Sawda, JJ Colony, where complainant/PW12 Mohd. Ansar met them Page 1 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 and he produced accused Surender before PW13 SI Sudhir Rathi, stating that accused Surender had committed a wrong act with his son/child victim. PW13 SI Sudhir Rathi recorded the statement of the complainant, wherein he stated that on 16.10.2013, he was present at his house and child victim, who was playing nearby his house, was not seen for some time and at about 4.20 pm, two boys namely PW4 Wasim and PW5 Tyeb brought accused Surender to his house and at that time, child victim was also with them. He further stated that PW4 Wasim told him that he along with his friend/PW5 Tyeb had gone for a walk near Cremation ground, Sawda Colony and at about 4.00 pm, on hearing the screams of child victim, they both reached near the bushes and found that accused Surender was committing penetrative sexual assault against the order of nature upon child victim and they got freed child victim and caught hold of accused Surender and took him to his house. The complainant further stated that on inquiry, child victim told him that Surender Uncle had taken him to the bushes near Cremation ground on the pretext of giving him toffee and thereafter, he removed his pant, lied down upon him and committed wrong act with him, on which, he felt pain and raised alarm and on hearing the alarm, two uncles i.e. PW4 and PW5 reached there and saved him. He further stated that on hearing this, he made a call at 100 number and requested for medical examination of child victim and for proper legal action against accused Surender.
Thereafter, the accused was got sent to PS through Ct. Amit. The child victim was got medically examined at SGM Hospital and after his medical Page 2 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 examination, exhibits were seized. On the basis of the aforesaid statement of complainant and the MLC of the child victim, the FIR in the present case was registered. Child victim was got counseled. Accused was arrested and his disclosure statement was recorded and pursuant thereto, pointing out of the place of incident was got conducted. Age proof of the child victim was collected and his statement u/s 164 Cr.P.C was got recorded. Exhibits were got 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 20.02.2014, charge u/s 5 (m) of Prevention of Children from Sexual Offences Act, 2012, (hereinafter referred to as "Act") punishable u/s 6 of the Act, alternatively u/s 377 IPC, was 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 13 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. The accused examined two witnesses in his defence.
4. I have heard arguments advanced at bar by the learned Addl. PP for the State and perused the written arguments filed on record by Sh. G.S. Sharma, Page 3 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 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 can be broadly classified into the following categories :
(a) Child victim and his family members
(b) Public witnesses
(c) Medical evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation.
The evidence of Child Victim and his family members
5. The child victim in the present case was examined as PW9 and the relevant portion of her testimony is as under :
"xxxx Q. Beta batao kya hua tha ?
Ans. Mein ghar ke bahar khel raha tha. Mujhe
Surender uncle khich kar le gaya tha.
Q. Beta aap Surender uncle ko kaise jante ho ?
Ans. Woh humari gali me rehte hai.
Q. Phir apko Surender uncle khich kar kaha le
gaye ?
Ans. Woh daru pee kar mujhe jungle me le gaye
the.
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FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015
Q. Phir kya hua ?
Ans. Surender uncle ne apni pant khol di aur meri
bhi pant khol di. Phir apne juju ko mere muh (mouth) me de raha tha aur gandi baat bhi kar raha tha.
Q. Phir Kya hua ?
Ans. Meri pant puri khol di thi aur gandi baat kar
raha tha. (While stating so, the witness pointed with his hand towards his anal region to specify where accused had done gandi baat with him) Q. Beta aap juju se kaya samjhate ho ?
Ans. Juju se susu karta hai.
Q. Aur kaya hua ?
Ans. Mujhe payas lagi thi, usne pani bhi nahi pine
diya.
Q. Phir kaya hua ?
Ans. Wahan do bhaiya aye the. Surender Uncle ko
maar ke ghar le gaye the. Mujhe godi me ghar le gahe the.
Q. Apke Ghar par koon tha ?
Ans. Mummy, papa, bhai and behan
Q. Phir kaya hua ?
Ans. Dard kar raha tha. Khoon nikal raha tha.
Q. Phir kaya hua ?
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FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015
Ans. Aur koi ne police ko phoon kar diya. Phir
police aa gai, Surender uncle ko jail me le gayi. ...........
Q. Aur apne kuch kahna hai ?
Ans. Surender Uncle mujhe sulakar gandi baat
kar raha tha. .............
xxxx"
During crossexamination by learned defence counsel, the witness stated as under : "Q. Kaya apki mummy ka aur Surender uncle ka pahle jagra hua tha ?
Ans. Haan. Uski behan ne road par pani gira diya tha.
Q. Kaya Surender uncle ka ghar apke ghar ke samne
hai ?
Ans. Thoda aage rehte hai ?
Q. Kaya jis jagah, Surender uncle apko le gaye the, waha aur log bhi aate hai ?
Ans. Nahi. Wahan admi ko gar dete hai, to woh bhoot ban jata hai. Dono bhaiya bhi, bhoot se dar gaye the. Q. Kaya us jagah ke asspass Makan hai ?
Ans. Koi nahi rehta hai. Wahan par jungle hai, aur nahar hai.
Q. Kaya nahar me log nahane jaate hai ?
Page 6 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 Ans. Nahi. Ganda pani hai. Koi nahayega, to bhoot maar kar chala jayega.
Q. Kaya apne aaj jo bataya, wo mummy papa ke kahne se bol rahe ho ?
Ans. Nahi. Surender Uncle ne esa kiya tha.
Q. Kaya us jungle me light lagi hai ?
Ans. Nahi. Blub ek bhi nahi tha."
6. PW12 Mohd. Ansar is the father of the child victim and he deposed that on the day of Bakri Eid last year i.e. 16.10.2013, on his returning back to his house at about 4:00 PM from his work, he found that his son i.e. child victim was playing in the gali. He further deposed that thereafter, child victim did not come back after a considerable time and at about 4:30 PM, two boys namely Tayyab and Waseem (PW4 and PW5) came to his house with child victim and accused Surender and on inquiry, PW4 and PW5 told him that they had gone to nearby Shamshan Ghat/Graveyard at about 4:00 PM for a walk, where they heard screams of a child and that after hearing the same they went towards that side and saw that accused Surender was laying upon the child victim and was doing wrong act with him after removing the pant of the child and thereafter, they rescued the child victim from accused Surender and brought them to his house. He further stated that on inquiry, his son/child victim told him that accused Surender took him towards the bushes near Shamshan Ghat with him, on the pretext of giving Page 7 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 him toffee and thereafter he removed his pant and committed wrong act with him after laying upon him and that due to pain, he cried and started weeping and on hearing his cries, PW4 and PW5 came and rescued him and brought him back to home. He further deposed that thereafter, he called the police, who reached at his house and made inquiries from him as well as child victim and thereafter, police recorded his statement Ex. PW12/A. He further deposed about medical examination of the child victim at SGM Hospital and about seizure of exhibits by the police vide seizure memo Ex. PW12/B. He further deposed about arrest and personal search of the accused, vide arrest memo Ex.PW12/C and personal search memo Ex. PW12/D. He also deposed about making of the disclosure statement Ex.PW12/E by the accused, about pointing out of the place of incident by the accused, vide pointing out memo Ex.PW12/F and about preparation of the site plan of the place of incident at the instance of child victim.
During crossexamination, the witness termed it correct that accused did not take child victim along with him in his presence and that Waseem and Tayyab belongs to his community.
Evidence of Public witnesses
7. PW4 Wasim has deposed that on 16th day of October 2013, at about 4.00 pm, he had gone for a stroll with his friend/PW5 Tyeb, near Nahar, near Shamshan Ghat, Delhi and there, while talking, they heard screams and they found that one man (accused) was doing wrong act (galat kaam) with a male Page 8 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 child of tender age and at that time, the child victim as well as that man were not wearing their clothes. He further deposed that he caught hold of the child victim and his friend/PW5 Tyeb caught hold of the accused and at that time, the child victim told that accused was his uncle and brought him there on the pretext of giving him something. The witness further deposed that the child victim could not tell his address, but he led them to his house, where they handed over the child victim as well as accused, to the parents of child victim and they left thereafter.
8. PW5 Tyeb, has deposed on the lines of PW4 Wasim, about the incident and about rescuing the child victim from the clutches of the accused.
Medical Evidence
9. PW3, Dr. Manoj Dhingra, after examination of MLC dated 16.10.2013 as well as child victim, had opined on the MLC Ex. PW3/A that "the possibility of sodomy cannot be ruled out" and deposed regarding the same.
During crossexamination, this witness stated that MLC was prepared on 16.10.2013 by Dr. Rajesh and the child victim was produced before him for opinion on 18.10.2013 at about 11.00 am.
10. PW6 Dr. M. Das in his evidence has proved the MLC of accused prepared by him as Ex. PW6/A inter alia opining that there was nothing to suggest that individual was incapable of performing sexual intercourse. He further deposed that as per the MLC, the accused was under the influence of Page 9 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 alcohol and there were two abrasions on his person.
11. PW7 Dr. Rajesh, had initially examined the child victim on 16.10.2013, prepared MLC Ex. PW3/A and thereafter, referred him to SR Surgery and Forensic, for further opinion and management and deposed regarding the same.
12. PW8 Dr. Sunny, SR Surgery, examined the child victim on 16.10.2013 and deposed that on examination of the anus of the victim child, he found "3 linear mucosal tear present (5 O'clock, 7 O'clock and 11 O'clock) present" and he also noticed "Sphincter spasm present". He further deposed that thereafter, he took swab from perianal area of the child victim and per rectal and proctoscopy was deferred due to pain. In reply to a question, the witness clarified the reason for presence of Sphincter Spasm by stating that in the present, the Sphincter Spasm could be due to linear tear.
Formal witnesses
13. PW1, Sh. Hardyal Singh, School Incharge, from MCD Primary School, JJ Sawda, B block, Delhi, in her evidence has deposed about the date of birth of child victim to be 20.03.2008, on the basis of the record maintained in the school, which is the school first attended by the child victim.
The defence in crossexamination of this witness has not disputed the Page 10 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 date of birth of the child victim. The child victim was admittedly aged about 6 years, on the date of incident.
14. PW2 SI Ashwani Kumar, was lying posted as duty officer in the police station Kanjhawala at the relevant time and he has proved the case FIR as Ex. PW2/B, recorded by him pursuant to rukka received by him in the matter.
15. PW10, Sh. Sumedh Kumar Sethi, ld. M.M, in his evidence has proved statement of the child victim as Ex. PW10/B, recorded by him under Section 164 Cr.P.C on 19.10.2013.
Evidence of police officials of investigation.
16. PW11 W/SI Somna deposed that on 16.10.2013, at the instance of PW13 SI Sudhir Rathi, she got the child victim counseled through an NGO counsellor, made inquiries and thereafter, recorded his statement Ex. PW11/A in questionanswer form.
17. PW13 SI Sudhir Rathi is the main investigating officer of the case and he deposed that on 16.10.2013, at about 4:40 pm, on receipt of D.D. No25A, Ex.PW13/A, he along with Ct. Amit went to the spot ie. B353, Sawada, J.J. Colony, Delhi, where they met the complainant and found that accused Surender was lying caught by the complainant. He further deposed that on Page 11 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 inquiry, the complainant told him that the accused had committed wrong act with child victim and thereafter, he recorded the statement Ex. PW12/A of complainant, got the child victim medically examined at SGM Hospital, collected the MLC, seized the exhibits vide seizure memo Ex. PW12/B and returned to PS, where, he prepared the Rukka and got the FIR in the present matter recorded. He further deposed about counselling of the child victim through NGO by PW11 W/SI Somna, about arrest and personal search of the accused, vide memos Ex.12/C and Ex.PW12/D, respectively, about recording of the disclosure statement Ex. PW12/E made by the accused, about preparation of the pointing out memo Ex. PW12/F, about preparation of the site plan Ex.PW13/B at the instance of child victim. He further deposed about medical examination of the accused vide MLC Ex.PW6/A and stated that at that time, the accused was under the influence of liquor. Witness further deposed about seizure of the exhibits vide seizure memo Ex.PW13/C and about deposit of exhibits with the MHCM. He further deposed that on 18.10.2013, he obtained forensic opinion from Dr. Manoj Dhingra on 18.10.2013, as advised by SR Surgery on the MLC Ex. PW3/A of the child victim. He further deposed about getting the statement of the child victim recorded u/s 164 Cr.P.C through Ld. M.M and obtaining copy thereof. He further deposed about sending the exhibits to the FSL and about collection of age proof of the child victim. He further deposed that thereafter, on his transfer, SI Rajesh prepared the charge sheet and filed the same in the court.
Page 12 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 During crossexamination by the learned defence counsel, the witness stated that he had reached at the house of complainant at about 4:50 PM and termed it correct that at that time, 5/10 public persons were present. He further termed it correct that public witnesses namely Waseem and Tayyab were from the same community as of complainant, however, he showed his lack of knowledge, if they belonged to same caste or not. He further stated that there was an electricity pole near the place of incident.
This is all as far as the prosecution evidence in the matter is concerned.
18. 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 the child victim by using him as a tool and the object of his false implication in the matter, was to take revenge of a previous quarrel between him and the father of the child victim.
19. To prove the aforesaid defence, the accused has examined two witnesses, in defense, the brief scrutiny thereof is as under.
20. DW1, Sh. Rajeev Kumar Jha, deposed that in the October 2013, on the eve of BakrId, accused Surender and the father of the child victim had consumed liquor and had a quarrel and thereafter, Ajmeri, mother of the child victim, went to the house of accused Surender and gave beatings him as well as to her own husband and he intervened and separated them. He Page 13 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 further stated that on arrival of police, he told the police officials that the children had been playing in the vicinity only and no such thing had happened and that the accused and the parents of the child victim used to quarrel daily and that Ajmeri, mother of the victim, was a quarrelsome woman, who used to quarrel with other people from the gali also. He further stated that the place of incident was a thorough fare and not only people, but vehicles like bus etc. also used to pass through that way.
During crossexamination by learned Addl. PP, DW1 stated that accused Surender was his next door neighbour and he termed it correct that he had come to depose in the court on behalf of Surender at his instance as well as at the instance of his wife and that he was having good cordial relations with accused Surender and his family. The witness further stated that there were bushes near and inside the shamshan ghat and that there was a canal behind the shamshan ghat. He further admitted that he was not an eye witness to the incident.
21. DW2 Ruksana deposed that on the eve of Bakra Id, on 16 th day of last year, at about 2.00 pm, a quarrel had taken place between accused Surender and Ajmeri, mother of the victim child as accused Surender and husband of Ajmeri had consumed liquor and she also intervened in the said quarrel.
During crossexamination by learned Addl. PP, she termed it correct that on that day at about 4.00 pm, she was inside his house as guests were coming and going. She further termed it correct that she could not say that Page 14 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 any such incident had taken place at Shamshan Ghat or not as she had not gone there on that day. She also termed it correct that they were having cordial relations with the family of the accused, but they were not having good relations with the mother of the child victim.
22. I have heard arguments advanced at bar by learned Addl. PP and considered the written arguments placed on record by Sh. G.S. Sharma, ld. Defence counsel.
23. The learned Addl. PP has very vehemently argued that the evidence of child victim PW9 is clear, cogent and consistent. The medical evidence duly corroborates the evidence of PW9. It is further argued that even the eye witness account is duly corroborative of the evidence of PW9, whereas the defence evidence produced in the matter by the accused does not inspire confidence and as such, the conviction of the accused for the charged offences has been prayed for .
24. Per contra, from the written arguments placed on record, the argument of the defence are as under :
(a) that the evidence of child victim PW9 cannot be considered as his evidence is outcome of tutoring ;
(b) that PW4 and PW5 are planted witnesses and there are material contradictions in their evidence ;
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(c) that the accused has been falsely implicated in the case as is apparent from the evidence of DW1 and DW2 ;
(d) that the prosecution has miserably failed in giving explanation of the injuries suffered by the accused ;
(d) that from the material on record, two views are evidently possible in the matter, one in favour of the accused and the other in favour of the prosecution and as such, the view favouring the accused has to be accepted by the court.
25. I have given anxious considerations to the arguments of both the sides and my findings in the matter are as under.
26. The police investigation in the matter was set into motion through DD no. 25A Ex. PW13/A, pursuant whereto, IO PW13 SI Sudhir Rathi along with Ct. Amit had gone to the spot and found the accused apprehended and the child victim in injured condition. The FIR in the matter was recorded on the basis of the statement of PW12 i.e. father of the child victim and the child victim and accused, both were promptly taken to hospital for their medical examination.
27. The learned defence counsel has very vehemently argued that the Page 16 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 evidence of PW9 should not be considered on account of his tender age and his susceptibility to be swayed by others. The learned counsel has relied upon the following judgments in this regard :
(i) State vs. Jai Hind, 2012 (4) JCC 2490
(ii) Ashad vs. State of Delhi, 2013 (4) JCC 2952
(iii) State of Karnataka vs. Shantappa Madivalapa Galapuji & Ors. 2009 Crl. J. 2442
28. I have duly considered the aforesaid judgments. The ratio of the aforesaid judgments is that the conviction can be based even upon the sole testimony of the child witness provided the court finds the same to be clear, cogent and trustworthy and free from any kind of tutoring.
29. Adverting to the facts of the present case, as per the evidence of child victim on the date of incident, he was playing outside his house in the gali, when the accused, who is also his neighbour took him to the spot on the pretext of getting him toffees, chocolates and biscuits and thereafter, committed penetrative sexual assault upon him against the order of nature. PW4 and PW5 reached at the spot after hearing the screams of the child victim. The child victim is consistent about his stand in his statement recorded u/s 161 Cr.P.C, his statement recorded u/s 164 Cr.P.C i.e. Ex. PW10/B and his evidence recorded in the court. The defence could not make any dent in his evidence, even in his sustained crossexamination. Page 17 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 Therefore, present is the case, in which the explicit reliance can be placed upon the testimony of PW9.
30. The medical evidence duly corroborates the version of PW9. A perusal of the MLC Ex. PW3/A of child victim shows following injuries on his rectum : "Foreign body (Grass ??) Present in anus 3 linear mucasal tear present (5 o'clock, 7 o'clock & 11 o'clock)"
31. From the MLC of accused i.e. Ex. PW6/A, it is evident that even after, almost seven hours of the incident, the alcohol level in his body was substantial, thereby giving an indication that at the time of commission of offence, he must have been under strong influence of alcohol. The examining doctor found the presence of foreign body (grass) in the rectum of the child victim, thereby indicating that the undergarment of the child victim was removed by the accused and he made him to lie down on the ground, where there was presence of grass. This foreign body was duly collected by the examining doctor and the same also finds mention in FSL report. Therefore, the medical evidence duly corroborates the version of PW9.
32. As regarding the argument of the learned defence counsel that the prosecution has not been able to explain the injuries upon the person of accused i.e. abrasion on his left side cheek and right knee is concerned, the Page 18 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 same stands duly explained in the evidence of PW9, wherein he categorically stated 'wahan do bhaiya aye the. Surender uncle ko mar ke ghar le gaye the. Mujhe godi me ghar le gaye'
33. The defence has disputed the presence of PW4 Sh. Wasim and PW5 Sh. Tyeb at the spot on the ground that they were chance witnesses planted by the police. To emphasize this point, learned defence counsel has relied upon following judgments :
(i) Jarnail Singh & Ors. vs. State of Punjab, AIR 2010 SC 3699
(ii) Shankar Lal vs. State of Rajasthan, AIR 2004 SC 3559
34. I have gone through the aforesaid judgments. The ratio of the aforesaid judgments would be applicable in the facts of the present case, only after this court holds that PW4 and PW5 are introduced witnesses. PW9 has duly deposed about their coming to the spot and rescuing him, in his evidence as well as his statements recorded u/s 161 Cr.P.C and u/s 164 Cr.P.C. The statement of PW9 u/s 161 Cr.P.C was recorded promptly by the police and there was hardly any time for the parents of child victim to have tutored him and concocted a story about the presence of PW4 and PW5 and simultaneously would have got caused injuries at the anus of the child victim.
35. Learned defence counsel has questioned the aforesaid two witnesses to be the eye witnesses in the matter by pointing out a contradiction in their Page 19 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 evidence. It has been pointed out that PW4 in his crossexamination, had stated that on the date and time of the incident, he along with PW5 had gone in search of some work, whereas PW5 in his crossexamination, had stated that he along with PW4 had gone to the jungle to smoke. According to this court, the aforesaid contradiction is a minor one and with regard to the material part, about the incident, being witnessed by them, both these witnesses are consistent. The said contradiction does not go to the root of the matter and can be safely ignored. From the tenure and demoner of both these witnesses, it is evident that they had actually witnessth the incident and were neither chance witnesses nor introduced witnesses.
36. Now let us examine as to whether the accused has been able to prove his defence in the matter or not. In his statement recorded u/s 313 Cr.P.C, he has taken defence of false implication by the mother of the child victim on account of a quarrel, which had taken place between him and the parents of child victim. To prove his defence, he has examined two defence witnesses.
Both these witnesses have admitted in their evidence that they were inimically disposed towards the family of child victim and had good relations with the family of the accused. DW1 in his zeal to give evidence in favour of the accused, has gone on to state that on the date of incident, the accused had consumed liquor with the father of the child victim and a quarrel had taken place between them, wherein the father of the child victim had given beatings to the accused and he intervened and separated them. He has further stated Page 20 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 that thereafter, the matter was reported to the police. His evidence is contrary to the material on record. The police in this matter, was informed for the first time at 4.40 pm on 16.10.2013 vide Ex. PW13/A, wherein the information about 'galat kam' with a four year old child was given. This witness contradicted himself in his crossexamination by stating that the actual incident had taken place on 13.10.2013 and not on 16.10.2013 as is the case of the prosecution. It is evident from a close scrutiny of his evidence that some quarrel might have taken place between the accused and the father of the child victim on 13.10.2013, wherein father of the child victim might have given beatings to the accused. It is also possible that on account of accused having received beatings through the hands of the father of the child victim, he might have taken revenge by committing sexual assault upon the child victim.
37. Even the evidence of DW2 Smt. Ruksana, does not inspire confidence as in her crossexamination, she categorically admitted that on the date of incident, because of bakarid she was inside her house attending to her guests. In later part of her crossexamination, she has claimed ignorance about the incident.
38. Here, it would be appropriate to set out a paradigm shift in the Act which is a special legislation. In the Act, by virtue of Section 29 and 30, there is a presumption of commission of offence by the accused for offences U/s 3, 5, 7 and 9 and in any prosecution for any of the offences under this Act, which Page 21 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state. The accused is required to prove that no such mental state w.r.t the act charged as an offence existed beyond reasonable doubt and not merely establishing its existence through preponderance of probability.
39. In the end, it has been bleakly submitted in the written arguments by the learned defence counsel that the forensic evidence does not support the case of prosecution. I have gone through the FSL report dated 29.05.2014 in the matter. The concluding part whereof, is reproduced hereunder "DNA profile (STR) analysis were performed on exhibits "2" (Oral swab of victim), "3" (Oral swab of victim), "4" (Oral swab of victim), "5" (perinea swab of victim), '6' (Musosal swab of victim) and "8" (blood in gauze of accused) is sufficient to conclude that DNA profile generated from the source of exhibit '8' (blood in gauze of accused) is not matching with DNA profile generated from the source of exhibits "2" (Oral swab of victim), "3" (Oral swab of victim), "4" (Oral swab of victim), "5" (perinea swab of victim) and '6' (Musosal swab of victim)."
40. A perusal of the aforesaid conclusion in the FSL report, at the most suggests that despite the accused having penetrated the child victim per rectum, he might not have ejaculated inside the anus of the child victim.
41. In the act, the definition of the penetrative sexual assault is as under :
3. Penetrative sexual assault : A person is said to Page 22 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 commit "penetrative sexual assault" if
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person ; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person ; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person ; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
42. Therefore, the FSL report is not very material in the matter, particularly in the teeth of overwhelming medical evidence on record. Therefore, this argument of the learned defence counsel carries no weight in the facts and circumstances of the present case.
43. The defence has not disputed the age of the child victim as is apparent from the evidence of PW1, who was not subjected to any crossexamination and as per evidence of this witness, the child victim was aged about 41/2 years on the date of incident.
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44. From the aforesaid discussion and the material on record, the prosecution has been able to prove the charge against the accused beyond reasonable doubt. The accused accordingly stands convicted for offence punishable u/s 6 of the Act. As the accused has been convicted u/s 6 of the Act, I need not to go to the alternate charge u/s 377 IPC.
44. Let the accused be heard on the point of sentence on 10.08.2015 (Announced in the open ) (Vinod Yadav) (Court on 05.08.2015) Addl. Session Judge (NorthWest)01 Rohini/Delhi Page 24 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 IN THE COURT OF VINOD YADAV: ASJ : (NORTHWEST)01:
ROHINI DISTRICT COURTS: DELHI (Sessions Case No. 18/14) Unique ID case No.02404R0024382014 State Vs. Surender FIR No. : 319/13 U/s : 377 IPC & 4 of POCSO Act P.S. : Kanjhawala State Vs. Surender S/o Kawal Singh R/o B346, Sawda JJ Colony, Delhi. ....Convict 10.08.2015 ORDER ON SENTENCE Pr:Ld.Addl.PP for state.
Convict produced from J.C, with counsel Sh. G.S. Sharma, Advocate.
ORDER ON THE POINT OF SENTENCE In the present case, the convict - Surender has been convicted u/s 6 of POCSO Act, 2012.
Page 25 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and Sh. G.S. Sharma, learned defence counsel for the convict.
2. The learned Addl. PP has very vehemently argued that sexual assault cases against 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 was of tender age, when he was subjected to aggravated penetrative sexual assault (carnal intercourse) by the convict and in the said assault, the child received injuries on his anal region. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 6 of the Act in the matter, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned defence counsel has argued that convict is aged about 33 years, having his wife and one minor daughter aged about 51/2 years and his parents have already expired. It is further stated that the convict has been in J.C, for the last about two years as an undertrial prisoner in this case, during which period, his conduct was never questioned by the Jail authorities. It is further contended that convict is a first time offender and at the time of his arrest, he was working as driver and was earning his livelihood. He prays for leniency in sentencing the convict. Page 26 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015
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 having the responsibility of his family consisting of his wife and a minor daughter. Bearing in mind, the facts and circumstances of the case in entirety, the interest of justice, would be met, if the convict is accorded minimum sentence prescribed under Sections 6 of POCSO Act, for which, the convict stands convicted as he has been able to make some mitigating circumstances in his favour. I hereby award sentence to convict Surender to Rigorous Imprisonment for a period of 10 (ten) years and fine of Rs. 10,000/, in default of payment of fine, further SI for a period of 6 months.
Benefit of Section 428 Cr.P.C is accorded to the convict.
5. Coming now to the aspect of compensation to the victim, who is a minor boy, 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 Page 27 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 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 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 Page 28 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 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 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 Page 29 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 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 goaloriented 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 said amount shall be used for his 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 Page 30 of 31 FIR No. 319/13 : State V/s Surender : PS Kanjhawala DOD: 05.08.2015 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 10.08.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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