Delhi District Court
Sc No. 59140/16 State vs . Mohan Kumar on 19 April, 2018
SC No. 59140/16 State Vs. Mohan Kumar
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No.59140/16)
Unique Identification No. DLNT010084592016
FIR No. 245/16
Police Station Adarsh Nagar
Chargesheet filed 354/354 A IPC
Under Section & 8/10 POCSO Act
Charges framed 354/354 A IPC
Under Section & 10 POCSO Act
State V/s Mohan Kumar
S/o Hari Bahadur
R/o N9/A470, Lal Bagh
Azadpur, Delhi
Permanent Address :
Village Bhasi,
P.S. Mahender Nagar,
Distt. Kanchanpur,
Mahakali Anchal Nepal.
......Accused
Date of institution of case 16.07.2016
Date of arguments 03.04.2018 &
16.04.2018
Judgment Pronounced on 19.04.2018
Decision Convicted
Judgment : FIR No. 245/16 page 1 of 30
SC No. 59140/16 State Vs. Mohan Kumar
J U D G M E N T
1.The accused Mohan Kumar is facing trial in the present case on allegations of having used criminal force upon the victim K (identity withheld), aged about 8 years, in order to outrage her modesty and having sexually assaulted her, by kissing her and removing her underwear.
2. The facts in brief, which are borne out from the record are that victim K alongwith her family members was residing in the area of Azadpur, Delhi, and in the year 2016, she was studying in third class. Her father is a rickshawpuller, while her mother is working in a factory. On 25.05.2016, the victim K as well as both her parents were at home, when at about 9 AM, the mother of victim K sent the victim to the market, to bring some articles. On her way back, when the victim K was going upstairs to her house, one boy (accused) came there, caught hold of her hand, pulled her towards the corner, started kissing her and removing her underwear, upon which the victim started shouting. The younger brother of the victim saw the victim, and in the meantime the mother of the victim also arrived at the spot and apprehended that boy, and by that time the father of the victim also reached there, and called the police telephonically.
3. The information to the police was reduced into writing vide DD No. 16 A, pursuant whereto ASI Ram Avtar alongwith Ct. Dharmender reached at the spot and met the victim K and her mother, who handed over the accused in police custody. IO ASI Ram Avtar brought the victim, Judgment : FIR No. 245/16 page 2 of 30 SC No. 59140/16 State Vs. Mohan Kumar her mother and accused Mohan Kumar in the PS and since the matter pertained to sexual assault upon a girl, he requested the senior officers to depute a lady officer, pursuant whereto W/SI Sarita from PS Model Town reached at PS Adarsh Nagar. W/SI Sarita alongwith W/Ct. Kiran took the victim K and her mother to BJRM Hospital for the medical examination of the victim, whereafter she recorded the statement of the victim K, prepared the Tehrir and got the case FIR registered. ASI Ram Avtar inspected the place of occurrence, prepared the site plan and recorded the statements of the witnesses. The victim child was produced before the concerned court of Ld. MM, for recording of her statement u/s 164 CrPC. On an appropriate application moved by the IO, Ld. MM recorded the statement of the victim u/s 164 CrPC, and a copy thereof was obtained by the IO by moving another appropriate application. Accused was arrested, produced before the court concerned, from where he was sent to JC. The age proof of the victim was obtained, the statements of the witnesses were recorded and after completion of the investigation, the chargesheet was filed in the court by the IO.
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 offences u/s 354/354 A IPC and u/s 10 POCSO Act, on 29.07.2016 by the Ld. Predecessor of this court, to which he pleaded not guilty and claimed trial.
5. To substantiate its case, the prosecution examined nine witnesses in all, out of which PW 3, PW 5 and PW 7 are formal witnesses, PW 4, Judgment : FIR No. 245/16 page 3 of 30 SC No. 59140/16 State Vs. Mohan Kumar PW 6 and PW 9 are witnesses of investigation, while the PW 1, PW 2 and PW 8 are the material witnesses, being the victim herself, her mother and her father respectively.
FORMAL WITNESSES
6. PW 3 Ms. Pavitra, Teacher, Nigam Pratibha School, Azadpur Village, Adarsh Nagar, Delhi, brought on record the school record of the victim and deposed that as per the Admission / Withdrawal Register maintained in the school, the child K was admitted in the said school in 2nd class on 13.07.2015 vide admission no. 11988, and as per record, her date of birth is 28.10.2008, and the relevant entry of the said register was proved on record as Ex. PW3/A. Certified copy of the Admission Form filled up by the parents of the child and copy of the affidavit submitted by the parents of the child K at the time of her admission, were proved on record as Ex. PW3/B and Ex. PW 3/C respectively. The certificate issued by the Principal of the said school, certifying the date of birth of the student / victim being 28.10.2008, was proved on record as Ex. PW3/D. In her crossexamination by the Ld. Counsel for the accused, PW3 admitted it to be correct that no birth certificate issued from MCD or any other government agency was given by the father of student at the time of her admission.
7. PW 5 ASI Dev Dutt, No. 40/NW, PS Adarsh Nagar deposed that on 25.05.2016, while posted as Duty Officer at PS Adarsh Nagar, at about 8.10 PM, on receipt of a rukka from Ct. Dharmender sent WSI Sarita, he got the instant case FIR registered and handed over the copy Judgment : FIR No. 245/16 page 4 of 30 SC No. 59140/16 State Vs. Mohan Kumar of the FIR and original rukka to Ct. Dharmender for handing over to ASI Ram Avtar, and he proved on record the copy of the FIR as Ex. PW5/A, his endorsement on the rukka as Ex. PW5/B, and the certificate u/s 65 B Indian Evidence Act issued by him as Ex. PW 5/C.
8. PW 7 Mr. Anurag Dass, MM, Rohini Court, Delhi deposed that on 26.05.2016, on an application being assigned to him, he recoded the statement of the victim K u/s 164 Cr.P.C already Ex. PW1/B, and identified his signature on the same at point B. Vide order dated 26.05.2016 Ex. PW7/A, he allowed for supply of a copy of the statement of the victim u/s 164 Cr.P.C., to the IO.
WITNESS OF INVESTIGATION
9. PW 4 Ct. Dharmender, No. 2518/NW, PS Adarsh Nagar deposed that on 25.06.2016, while posted on Emergency Duty, alongwith ASI Ram Avtar, on receipt of DD No. 16 A Ex. PW 4/A, they reached at the spot and met the mother of the victim, who informed them that her daughter has been sexually assaulted by the accused (correctly identified). He further deposed that they took the accused, victim and her mother to PS, from where, the victim was taken to BJRM Hospital for her medical examination. He further deposed that SI Sarita, who had also reached there, recorded the statement of the victim, prepared the rukka and handed over the same to him for registration of the FIR and after getting the case registered, he handed over the copy of FIR and original rukka to ASI Ram Avtar. He further deposed that thereafter he alongwith ASI Judgment : FIR No. 245/16 page 5 of 30 SC No. 59140/16 State Vs. Mohan Kumar Ram Avtar reached at the spot, where ASI Ram Avtar prepared the site plan, at the instance of the victim. Accused was arrested and his personal search was conducted vide appropriate arrest memo and personal search memo already Ex. PW 2/A and Ex. PW 2/B respectively. He further deposed that IO recorded the disclosure statement of the accused Ex. PW 4/B, and prepared the pointing out memo Ex. PW 4/C at the instance of the accused.
In his crossexamination by the Ld. Counsel for the accused, PW4 deposed that IO had called the NGO for counselling of the victim though he did not remember the name of the NGO personnel, who came to counsel the victim.
10. PW 6 Ct. Kiran, No. 1855, PS Adarsh Nagar deposed that on 25.05.2016, she joined the investigation of this case alongwith SI Sarita and went to BJRM Hospital with victim, her mother and Ct. Dharmender, but the mother of the victim refused for internal medical examination of the victim.
11. PW 9 ASI Ram Avtar, No. 3123/NW, PS Swaroop Nagar, Delhi deposed on the lines of PW 4 that on receipt of DD No. 16 A Ex. PW 4/A, they reached at the spot, met the victim, her parents and the accused, and they brought them to the PS, where SI Sarita also came from PS Model Town, and she took the victim and accused to BJRM Hospital for their medical examination. He further deposed that after registration of the FIR, further investigation of the case was assigned to him and he obtained the MLC of the victim from WSI Sarita and went to the house of Judgment : FIR No. 245/16 page 6 of 30 SC No. 59140/16 State Vs. Mohan Kumar the victim, inspected the spot and prepared the site plan Ex. PW 9/A. He arrested the accused vide arrest memo already Ex. PW2/A and conducted his personal search vide personal search memo already Ex. PW2/B, recorded his disclosure statement already Ex. PW 4/B, prepared the pointing out memo already Ex. PW4/C at the instance of the accused. He further deposed that he recorded the statements of the witnesses, produced the accused before the concerned court, from where he was sent to JC. He also produced the victim before the concerned MM and got recorded her statement u/s 164 CrPC vide his application Ex. PW 9/B, and obtained a copy of the same vide his another application already Ex. PW7/A. He further deposed that he collected the age proof of the victim, completed the investigation and filed the chargesheet in the court.
MATERIAL WITNESSES
12. The prosecution, to substantiate its case, examined the victim K 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 date of incident at about 99:30 am, my mother sent me to buy some vegetables. After buying potatoes and spinach I was coming back to my house. At the ground floor of my house, a boy (Witness correctly identified the accused through wooden partition) met me, he pulled me in a corner and started kissing me. He also Judgment : FIR No. 245/16 page 7 of 30 SC No. 59140/16 State Vs. Mohan Kumar started to remove my underwear. In the meanwhile, my younger brother aged about 56 years came there. I was screaming. Hearing my voice my mother immediately come downstairs and apprehended the accused. I disclosed the incident to my mother. My father also came there who reported the matter to police. Police reached at the spot 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. I was got medically examined.
My statement was also recorded before Ld. MM. At this stage, an envelope is opened sealed with the seal of AD 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."
13. In her crossexamination by the Ld. Counsel for the accused, the victim / PW 1 deposed as under :
"On the date of incident I had seen the accused for first time. I was carying potatoes and spinach when accused pulled me. My mother works in a factory and my father is ERickshaw driver. My mother works from 9 am to 9 pm and my father works from 8 am till 11 pm. On the date of incident my mother had weekly off. Our house is located in a thickly populated colony. Market is very near to my house. Accused didn't visit our house at any point of time.
Judgment : FIR No. 245/16 page 8 of 30
SC No. 59140/16 State Vs. Mohan Kumar
When accused pulled me in a corner nobody noticed the same. My brother was coming back after playing. Nobody resides on the ground floor.
When my mother came, accused tried to escape but my mother apprehended me. None else except my mother came at the spot. Police came at the spot. It is correct that one Sitaram is our neighbor. I had seen accused visiting house of Sitaram. There is no dispute between us and Sitaram. When my mother tried to apprehend accused, accused scratched hand of my mother. My father later on came at the spot. It is wrong to say that accused has been falsely implicated as we had dispute with Sitaram. It is wrong to say that I have deposed falsely on tutoring of my mother. "
14. Ms. L mother of the victim entered the witness box as PW 2 and deposed as under :
"I have four sons and one daughter. Victim is my second born child aged about 10 years. On the date of incident, it was Wednesday and I had holiday on that day. At about 10 am, I sent my daughter to buy some household articles, at that time I was preparing breakfast. My son V came there and disclose to me that accused Mohan (present in the Court, correctly identified through wooden partition) had caught hold of my daughter/victim K and she was crying. I left cooking food and rushed Judgment : FIR No. 245/16 page 9 of 30 SC No. 59140/16 State Vs. Mohan Kumar downstairs. I saw that accused was in process of removing underwear of my daughter. I immediately caught hold of accused. I called my husband, who also reached there. My husband reported the matter to police. Police came there and recorded statement of my daughter already Ex. PW1/A bearing my signature at point B. Police prepared site plan of the place of occurrence and arrested accused. The arrest memo of the accused is bearing my signatures at point A and same is Ex. PW2/A and personal search memo of accused is bearing my signatures at point A and same is Ex. PW2/B. "
15. In her crossexamination by the Ld. Counsel for the accused, the mother of the victim / PW 2 deposed as under :
"We were residing on rent at our present address since last seven months. Our house is properly constructed room. Our building is built upto first floor. Each floor has 11 rooms. Our room is situated on first floor. At the relevant date of incident, there were only 23 rooms were occupied at ground floor and all the rooms on first floor were occupied at that time. Our gali is thickly populated. There is one kirana shop just outside our gali and market is also very near to our gali. On relevant day, my eldest son had gone for his stitching classes, my second eldest son gone for his School. Again said, Judgment : FIR No. 245/16 page 10 of 30 SC No. 59140/16 State Vs. Mohan Kumar for his tuition classes. Rest of my three children were at home.
I raised alarm when I reached at the spot and saw the incident. My husband came downstairs after hearing commotion and then he apprehended accused. When I came downstairs, accused tried to fled from the spot. I do not know whether accused used to visit house of our neighbor Sitaram or not. Vol. I had not seen accused earlier while coming or going to house of Sitaram.
Police came at the spot after 15 minutes after the incident. Police recorded my statement at PS. I also received injuries when I was trying to nab the accused at the spot. I had also gone to hospital with victim but I was not medically examined there.
My son V was with me and when he had gone downstairs for playing, he immediately returned and informed me regarding the incident. Police also made inquiry from my neighbors including one Sita and her husband.
It is wrong to suggest that I know accused prior to the incident or that I know that he used to work in marriage/functions as waiter. It is incorrect to suggest that in one marriage function in which accused was working as waiter and I had also attended the same or that despite my instruction he had not packed food for Judgment : FIR No. 245/16 page 11 of 30 SC No. 59140/16 State Vs. Mohan Kumar me or that to take revenge of the same, I made a concocted story after tutoring my daughter or that falsely implicated accused in present case. "
16. Mr. A, father of the victim entered the witness box as PW 8 and deposed as under :
MAIN DIYE GAYE PATE PAR APNE PARIWAR KE SATH RAHTA HU AUR BATTERY RIKSHAW CHALATA HU. DINAK 25.05.2016 KO SAMAY KARIB 9 BAJE SUBAH MAIN GHAR PAR THA, MERI PATNI KHANA BANA RAHI THI. ISI DAURAN MERA CHHOTA BETA B AAYA AUR APNI MUMMY KO KAHA KI 'K' HAMARI BETI, RO RAHI HAI. JO MERI PATNI NEECHE GAI, TO MAIN BHI UNKE PEECHHE GYA TO HUMNE DEKHA KI MULZIM MOHAN KUMAR, JO AAJ HAZIR ADALAT HAI (CORRECTLY IDENTIFIED) HAMARI LADKI K KO GODI ME UTHA RAKHA THA. BACHI RO RAHI THI AUR WO MERI BACHI KO KISS KAR RHA THA. JO HUMNE APNI BACHI SE POOCHA KI KYA BAAT HAI, JIS PAR BACHI NE BATYA KE YE UNCLE (MULZIM) MERE MUH PAR KISS KAR RAHA THA AUR MERI KACHHI NEECHE KI TARAF UTTAR RHA THA. HUMNE MULZIM KO PAKAD LIYA AUR POLICE KO ITLAH KI. POLICE NE MERE BHI BYAN LIKHA THA."
Judgment : FIR No. 245/16 page 12 of 30
SC No. 59140/16 State Vs. Mohan Kumar
17. In his crossexamination by the Ld. Counsel for the accused, PW8 deposed as under :
"MAIN APNI BATTERY RIKSHAW CHALANE KE LIYE AKSAR SUBAH JATA HU AUR SHAM KO AATA HU, LEKIN IS BABAT MERA KOI FIX TIME NAHI HAI.
MERE KUL 5 BACHE HAI, JISME 4 LADKE AUR EK LADKI VICTIM K HAI. MERA BADA LADKA SILAAI KA KAAM KARTA HAI AUR BAKI MERE SABHI BACHE SCHOOL JATE HAI. MERE LADKE SCHOOL ME 12 BAJE KE KARIB JATE HAI AUR GHATNA WALE ROZ BHI SCHOOL GAYE THE. US ROZ, MERI BETI VICTIM K, JO SUBAH 7 BAJE SCHOOL JATI HAI, SCHOOL NAHI GAYI THI. MERI PATNI EK FACTORY ME KAAM KARTI HAI, JO SUBAH 9 BAJE GHAR SE JATI HAI AUR SHAM KO 9.30 pm BAJE GHAR AATI HAI. GHATNA WALE ROZ MERI PATNI KI TABIYAT THIK NAHI THI, JIS KARAN WO KAAM PAR NAHI GAYI THI. MERA BETA B MERE BACHO ME TEESRE NUMBER PAR HAI. YE THIK HAI KI MERE KAMRE KE AAS PASS BHI HAI, JINME DUSARE KIRAYEDAR RAHTE HAI. YE THIK HAI KI SUBAH KE SAMAY HAMARE AREA ME CHAHAL PAHAL HOTI HAI.
MERE GHAR KE PASS BAZAR BHI LAGTA HAI, JO KI KARIB 10 BAJE KHULTA HAI. GHATNA WALE ROZ, MERI BETI KUCHH KHANEPEENE KA SAMAN LENE GAYI THI. POLICE KO PHONE MERI PATNI NE KIYA Judgment : FIR No. 245/16 page 13 of 30 SC No. 59140/16 State Vs. Mohan Kumar THA. POLICE 1520 MINUTES KE BAAD AA GAYI THI. POLICE NE MERE KAGJAT PAR THANE ME HASTAKSHAR BHI KARWAYE THE. POLICE NE MERE BETE B KE BYAN BHI LIKHE THE, JO KI THANE ME LIKHE THE. MAIN MULZIM KO GHATNE KE PAHLE SE NAHI JANTA THA. MERI BETI KO POLICE HOSPITAL BHI LE KAR GAYI THI, JO KI SATH ME MERI PATNI GAYI THI, MAIN NAHI GAYA THA. JAB POLICE AAYI TO HAMNE MULZIM KO POLICE KE HAWALE KAR DIYA. POLICE NE MERI BETI / VICTIM KE BYAN THANE ME LIKHE THE.
HUM SAB GALI MOHALLE KE LOGO NE MULZIM KO US WAQT MAARA BHI THA. YE KAHNA GALAT HAI KI MAIN MULZIM KO PAHLE SE JANTA HU, AUR KI AISI KOI VARDAAT MULZIM NE NAHI KI THI. YE KAHNA GALAT HAI KI MERI PATNI KA MULZIM KE SATH KISI BAAT PAR JAGDA HUA THA, AUR KI APNI PATNI KE KAHNE PAR, MULZIM KE KHILAF GAWAI DI HAI. YE KAHNA GALAT HAI KI GHATNA WALE ROZ MERE DO LADKE SCHOOL NAHI GYE THE, KYOKI US SAMAY GARMI KI CHHOOTIYAN CHAL RAHI THI. YE KAHNA GALAT HAI KI MAIN JHOOTHI GAWAI DE RAHA HU.
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 Judgment : FIR No. 245/16 page 14 of 30 SC No. 59140/16 State Vs. Mohan Kumar pleaded his innocence and stated that he has been falsely implicated in this case. He further stated that he was sitting in the stairs while the child was running upstairs listening to music on the mobile phone and he merely asked her to give the phone but she declined and rushed up to her mother and thereafter he was falsely implicated in the instant case.
19. I have heard Sh. Girish Giri, Ld. Addl. PP for the State on 03.04.2018, and Ms. Gulshan Khan, Ld. Amicus Curiae for the accused. Ld. Addl. P.P. for the State has contended that the victim as well as her mother, who arrived at the spot almost immediately and saw the later part of the incident, when the accused was trying to remove the underwear of the victim from her own eyes, have supported the prosecution case and have deposed convincingly and consistently. The accused was apprehended from the spot itself by the mother of the victim and both the victim as well as her mother have identified the accused to be the culprit. The father of the victim, who also arrived at the spot almost immediately, has also supported the prosecution case and has identified the accused as culprit, who had caught hold of her daughter, kissed her and as per the version of the victim, had also tried to remove her underwear. It is also contented that the fact that both the parents of the victim arrived at the spot almost immediately, has not been refuted by the accused, nor is there any dispute, that the victim child was aged about 8 years at the time of incident and therefore her emphatic testimony, duly supported by the testimony of her parents, and a prompt and thorough investigation conducted by the police, is sufficient to hold the accused guilty, in the instant case. It is also pointed out that the defence, which has been taken by the accused is not a consistent one but remained a shifting and Judgment : FIR No. 245/16 page 15 of 30 SC No. 59140/16 State Vs. Mohan Kumar inconsistent one, during the cross examination of the victim as well as her parents. Subsequently in his statement u/s 313 CrPC, an absolutely different defence was churned out by the accused, which does not inspire any confidence at all but rather proves that the accused himself is at a loss and is putting up sham defences, that too inconsistent ones. Conviction for accused is prayed for, by Ld. Addl. P.P. for the State.
20. Per contra, Ld. Counsel for the accused has contended that the alleged incident took place in the morning but the accused was arrested at night, which puts a dent in the case of the prosecution. It is also stated that though, admittedly, by the victim and other material witnesses, the alleged spot of occurrence was a densely populated area, no public witness was joined in the investigation. Further more, the mother of the victim, who stated that she also sustained scratches on her hand, was not got medically examined. It is also contended that there are material contradictions in the testimony of the victim in as much as she has stated in her crossexamination that she does not know the accused but in her statement u/s 164 CrPC, she has stated that she knew the accused. It is stated that the mother of the victim examined as PW 2, is not a reliable witness, as she has stated that one of her child had gone to school, which is an incorrect fact, as the alleged incident took place on 25.05.2016, when schools were closed due to summer vacations. It is stated that the accused has been falsely implicated in this case by the mother of the victim. Acquittal of accused is prayed for, by Ld. Counsel for the accused.
21. I have thoughtfully considered the arguments advanced, perused Judgment : FIR No. 245/16 page 16 of 30 SC No. 59140/16 State Vs. Mohan Kumar 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, the prosecution has examined PW 3 Ms. Pavitra, Teacher from the school, where the victim was studying, who brought on record the school record of the victim comprising of admission & withdrawal register maintained in the school, as per which, victim / student K was got admitted in the said school on 13.07.2015, and her date of birth is 28.10.2008, and the certified copy of relevant entry was proved on record as Ex. PW3/A. On the basis of the record, a certificate was also issued by the Principal, which is Ex. PW 3/D to the effect that the date of birth of the child / victim K was 28.10.2008. Apart from that, the certified copy of the admission form, which was filled up, by the parents of the student / victim and the copy of the affidavit submitted by the parents of the victim at the time of her admission, were also brought on record as Ex. PW3/B and Ex. PW 3/C, which also show that the date of birth of the victim as 28.10.2008. The said date of birth of the victim has not been disputed by the accused, as none of the assertions made by the said witness, was controverted.
23. Further more, the victim herself in her testimony as PW 1, recorded on 18.10.2016, has stated her age to be 10 years and in her testimony as PW 2, the mother of the victim has also deposed that the age of her daughter / victim K is about 10 years. No suggestion Judgment : FIR No. 245/16 page 17 of 30 SC No. 59140/16 State Vs. Mohan Kumar controverting the said depositions of victim (PW1) and her mother (PW2), has been put forth to the said witnesses. The date of birth of the victim is, therefore, accepted to be 28.10.2008, and as such on the date of alleged incident i.e. 25.05.2016, she was aged about 8 years, and hence she is a "Child" within the meaning given under section 2 (d) of the POCSO Act.
Medical & Forensic Evidence :
24. The victim was got medically examined at BJRM Hospital on the same day of incident i.e. on 25.05.2016 at about 6.34 PM, vide MLC No. 114605, as per which no external visible injury was seen, at the time of her medical examination. The victim was referred to SR Gynae but the mother of the victim refused for the internal medical examination of the victim. Since the mother of the victim refused for the internal medical examination of the victim and since there were no allegations of penetrative sexual assault / rape having been committed upon the victim, the samples / exhibits of the victim were never obtained nor sent to FSL for expert opinion, and as such no FSL result came on record.
The accused was also got medically examined at BJRM Hospital on the same day i.e. on 25.05.2016 at about 21.29 PM, vide MLC No. 114608, as per which no external visible injury was seen on the person of the accused.
Testimony of victim, material witnesses and Defence of accused.
25. The victim child was firstly made inquiries from, and her statement Judgment : FIR No. 245/16 page 18 of 30 SC No. 59140/16 State Vs. Mohan Kumar Ex. PW 1/A was recorded on 25.05.2016 by the IO, in which the child stated that both her parents were at home and she was also at home, as her school was closed due to vacations, and that she had gone to the market to purchase something and on her way back, when she was about to alight the stairs, a boy came and caught hold of her hand, pulled her towards the corner, where he started kissing her and removing her underwear, on which she started shouting and her younger brother, who saw her with the accused, went upstairs and narrated the incident to his mother, who arrived at the spot and apprehended the accused and that her father also came to the spot thereafter.
26. In her statement u/s 164 CrPC Ex. PW 1/B also, the version of the victim was consistent that the boy, whose name she did not know, caught hold of her hand, kissed her and started removing her underwear, giving the sequence of events that her younger brother saw her and immediately rushed to call his parents and soon thereafter her mother came running, caught hold of the accused and ultimately the police was called. In the court also, similar and consistent was the testimony of the victim as PW 1.
27. During the course of arguments, Ld. Counsel for the accused submitted that there was inconsistency in the crossexamination of the victim and her statement u/s 164 CrPC, to the effect that in her cross examination, she has stated that she knew the accused but in her statement u/s 164 CrPC she has stated that she did not know him. However, after scrutiny of the statement of the victim as PW 1 and her Judgment : FIR No. 245/16 page 19 of 30 SC No. 59140/16 State Vs. Mohan Kumar statement u/s 164 CrPC Ex. PW 1/B, I find no inconsistency at all in the two statements. Rather, in her statement u/s 164 CrPC, she has stated that she did not know the name of the boy and in her crossexamination in the court, she had merely admitted that she had seen the accused visiting the house of their neighbour Sita Ram, but there is no assertion coming forth from the side of the victim, in contradiction of any of her earlier statement that she either knew the accused or acquainted with him.
28. Pertinent it is to mention here that Ld. Counsel for the accused cross examined the child at length and also gave her a number of suggestions, but not even a single suggestion was given about the victim not having been so subjected to any sexual assault, at the hands of the accused or that the accused did not make an attempt to remove her underwear. It is also not disputed that the mother and father of the victim had also come to the spot almost immediately, and caught hold the accused red handed, also gave some beatings to him and handed over to him, to the police at the spot itself.
29. The testimony of the victim was duly corroborated by her mother examined as PW 2 and her father examined as PW 8, on all material particulars. Both the mother and the father of the victim have also asserted that though the mother of the victim was working in a factory, but on the day of incident, she was at her home, it being her weekly off, a factum which was not refuted on behalf of the accused during the lengthly crossexamination of PW 2 or even the victim. PW 8 / father of the victim also asserted that at the relevant time, he was also present at home and Judgment : FIR No. 245/16 page 20 of 30 SC No. 59140/16 State Vs. Mohan Kumar his presence in the home and subsequently at the spot, has not been refuted by the accused. The testimony of the victim is corroborative on all material particulars by her mother, who was also an eye witness of a part of the incident, when the accused was trying to remove the underwear of the victim.
30. The victim as well as her mother examined as PW 2 have testified that mother had nabbed the accused at the spot itself and had also given him a few punches and though the accused tried to flee, but the mother of the victim made his effort a futile one, and in this scuffle, she also sustained some scratches, at the hands of the accused. The said injuries have not been denied by the accused during the crossexamination either of the victim or PW 2, but it was only during the course of arguments that the Ld. Counsel for the accused has contended that no MLC of the mother was prepared.
31. It is to be kept in mind that the victim in the instant case is a small child of about 8 years of age, who was subjected to an unwarranted sexual assault at the hands of the accused, who was apprehended red handed. The scuffle which took place, would obviously have caused scratches and bruises on the person of the mother of the victim, but such superficial injuries on the person of the witness, which otherwise do not go to the root of the matter, did not require an intrinsic investigation, as the same is otherwise inconsequential and would not have any bearing on the actual issue in hand. Therefore, no medical examination of the mother of the victim, is inconsequential and does not, in any manner, affect the veracity of the prosecution case.
Judgment : FIR No. 245/16 page 21 of 30
SC No. 59140/16 State Vs. Mohan Kumar
32. In his defence, the accused has pleaded his innocence during the course of crossexamination of witnesses, in his statement u/s 313 CrPC and during the course of arguments, it is stated that the accused has been falsely implicated in this case. However, the accused did not ascribe any consistent motive for the victim or her parents to falsely implicate him in the instant case. During the course of cross examination of the victim, the name of one "Sita Ram" cropped up, whom the victim admitted to be their neighbour and stated that she had seen the accused visiting the said Sita Ram. However, she emphatically stated that there was no dispute between them and said Sita Ram and denied the suggestion that the accused has been falsely implicated due to a dispute with Sita Ram. The defence of the accused appears to be a sham one, because no reason for false implication of accused was given during the crossexamination of the victim. Even if, there had been a dispute between the victim's family and said Sita Ram, why would a visitor of said Sita Ram i.e. the accused be falsely implicated in this case. Therefore, this defence of the accused does not appear tenable at all.
33. The second defence of the accused finds an introduction during the crossexamination of PW 2 i.e. the mother of the victim, after she stated that she did not know whether the accused was a visitor to the house of their neighbour Sita Ram, but volunteered that she had never seen him coming in or going out from the house of Sita Ram. In the wake of this ignorance, came the new defence of the accused that he had been working as a waiter in a marriage function, which was also attended by PW 2 as a guest and since the accused had not packed food for her Judgment : FIR No. 245/16 page 22 of 30 SC No. 59140/16 State Vs. Mohan Kumar despite her instructions, she had concocted the story in order to take revenge from him and falsely implicated him in this case. The suggestions given to PW 2 in this respect were denied in toto by PW 2 and her denial was subsequently not raked up to be a false denial. The accused did not lead any defence evidence in order to establish that he had ever worked as a waiter in any marriage function or that there had been a marriage in which he worked as a waiter and PW 2 was a guest, and therefore the accused failed to substantiate his defence.
34. In the suggestions, which were given to PW 8, the previous two defences taken up by the accused in the crossexamination of the victim and her mother respectively, were given a back seat, by the accused and a new version was churned out that the accused had been falsely implicated because he had had a quarrel with the wife of the witness (PW8) i.e. PW 2 / mother of the victim, a suggestion which was emphatically denied by the witness. Interestingly, thereafter putting all the three inconsistent defences taken by the accused during the cross examination of the three material witnesses aside, in his statement u/s 313 CrPC, the accused has stated that he had been sitting in the stairs, while the child was running upstairs listening to music on the phone and he had merely asked her to give him her mobile phone, but she declined and rushed upstairs to her mother and thereafter he was falsely implicated in this case.
35. During the crossexamination of the victim and her parents, their testimony was a consistent one, resting on firm grounds, totally in corroboration with the prosecution case, there was never a suggestion Judgment : FIR No. 245/16 page 23 of 30 SC No. 59140/16 State Vs. Mohan Kumar which had come forth on behalf of the accused, despite lengthy cross examination of the three material witnesses, regarding this fourth defence, which was taken up by the accused about the child herself having run upstairs to her mother only because he had purportedly asked her to show him her mobile phone. From his own defence, taken by him in his statement u/s 313 CrPC, the accused has established his presence at the spot, by stating that he was sitting in the stairs, as well as the presence of victim child at the same spot and he having come into contact with the child, when no other person was present at the spot.
36. The victim's emphatic testimony against the accused that he caught hold of her hand, pulled her towards the corner, started kissing her and tried to remove her underwear, was all along a consistent testimony and with the frivolous and ever changing version of the accused, failing to shake the testimony of either the victim or her parents culls out, what is writ large is that the victim and her parents have deposed the truth and nothing but the truth, and there is no reason to doubt their testimony. It is the accused, who has been blowing hot and blowing cold in the same breath, putting up inconsistent excuses and defence, which do not inspire confidence. The victim and other witnesses are found to be trustworthy and reliable.
Offence u/s 354/354 A IPC and 10 POCSO Act.
37. The accused has been charged for the offences punishable u/s 354/354 A IPC and 10 POCSO Act and for ready reference, the relevant provisions of law are being reproduced herein below.
Judgment : FIR No. 245/16 page 24 of 30
SC No. 59140/16 State Vs. Mohan Kumar
Section 354. Assault or Criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
354 A. Sexual harassment and punishment for sexual harassment. (1) A man committing any of the following acts
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks shall be guilty of offence of sexual harassment.
Section 7 POCSO Act. Sexual Assault. Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent, which involves physical contact without penetration is said to commit sexual assault.
Judgment : FIR No. 245/16 page 25 of 30
SC No. 59140/16 State Vs. Mohan Kumar
38. The offence of sexual assault gets its aggravated form and falls within the ambit of 'Aggravated Sexual Assault', if the said offence is committed against a child below 12 years of age, as defined in section 9
(m) POCSO Act.
39. What constitutes an outrage to female's modesty, is nowhere defined. Modesty is an attribute associated with female human beings as a class and the essence of a woman's modesty is her 'sex'. In Raju Pandurng Mahale Vs. State of Maharastra, 2004 CrLJ 1441 : AIR 2004 SC 1677, the Hon'ble Supereme Court of India has observed as under :
"The ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman.
40. In Shekara Vs. State of Karnatka, 2009 (1) Crimes 472 :
2009(2) JCC 1074 : 2009(2) Supreme 301, the Hon'ble Apex Court has held that :
"Intention is not the sole criteria of the offence punishable u/s 354 IPC and it can be committed by a person assaulting or using criminal force, if he knows that by such act, the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The Judgment : FIR No. 245/16 page 26 of 30 SC No. 59140/16 State Vs. Mohan Kumar existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight."
41. From the bare reading of section 354 IPC, it is clear that it has three main ingredients i.e. a. that the person assaulted must be a woman, b. that the accused must have used criminal force on her, and c. that the criminal force must have been used qua the woman intending thereby to outrage her modesty.
42. Section 354A(1)(i) IPC also envisages physical contact and advances involving unwelcome and explicit sexual overtures, but ousts the element of use of any assault or criminal force, but may be by words or other overtures, causes harassment with sexual intent to the victim.
43. Reverting back to the case in hand, it is the emphatic testimony of the victim that the accused caught hold of her hand, pulled her towards the corner, which indicates force having been used upon the victim by the accused, and thereafter he started kissing her and started removing her underwear. Both the acts, emphatically described by the victim would have shocked the sense of decency of the child, who had the sensibility enough, to understand, that a wrong act has been committed upon her by Judgment : FIR No. 245/16 page 27 of 30 SC No. 59140/16 State Vs. Mohan Kumar the accused. The element of force having been exerted upon her and she having been manhandled by the accused, with a sexual intent, satisfies all the three necessary ingredients, which are required for an offence u/s 354 IPC to be brought home. Since this incident happened only once, and there was never any previous history of such an act ever having been attempted or the accused ever having made any previous sexual overtures qua the victim, in this solitary incident the use of force and assault having been used by the accused, the act of the accused falls under the ambit of section 354 and not 354 A. Therefore, the prosecution has succeeded in bringing home the guilt of the accused u/s 354 IPC and he is accordingly convicted for the offence punishable u/s 354 IPC.
44. The accused has also been charged for the offence punishable u/s 10 POCSO Act. Touching inappropriately, kissing and removing the underwear of a minor child by anyone with sexual intent, infringes the privacy of the victim and causes her to be distressed. Such infringement or sexual assault with an intention to outrage the modesty of a girl / woman, is contemplated as an offence punishable u/s 354 IPC, and also u/s 10 POCSO Act. From the testimony of the victim, which was corroborated on all material particulars by PW 2, it is clear that the accused, with a sexual intent, willfully caught hold of the victim child, pulled her towards the corner, kissed her and tried to remove her underwear and the mensria behind this act, is writ large that the accused did the said act intentionally with sexual intent, to derive perverse sexual pleasure. It has already been held that the age of the victim in the instant case is about 8 years of age, and therefore the offence committed in this Judgment : FIR No. 245/16 page 28 of 30 SC No. 59140/16 State Vs. Mohan Kumar case falls within the ambit of section 9 (m) POCSO Act, liable to be punished U/s 10 POCSO (Protection of Children from Sexual Offences) Act, 2012.
45. In view of my discussions above, it emerges that ;
(i) on the day of incident i.e. 25.05.2016, the victim was about 8 years of age;
(ii) on the date of incident the accused was present and sitting in the stairs, from where the victim child was running upstairs.
(iii) Testimony of the victim (PW1), her mother (PW2) and her father (PW8)is reliable and trustworthy,
(iv) The witnesses of investigation have corroborated the chain of events and complaint to the police is a prompt one.
(v) that the accused, with sexual intent, caught hold the victim, pulled her towards the corner, kissed her forcibly and tried to remove her underwear, in order to outrage her modesty and thus sexually assault her.
(vi) that accused was apprehended at the spot itself by the mother of the victim.
(viii) Accused failed to establish his defence.
46. Conclusion : In the light of my discussion above, the testimony of prosecution witnesses are found to be trustworthy and reliable, and the prosecution has succeeded in proving that the accused had committed Aggravated Sexual Assault upon the victim, aged around 8 years (below the age of 12 years) on the date of incident i.e. Judgment : FIR No. 245/16 page 29 of 30 SC No. 59140/16 State Vs. Mohan Kumar 25.05.2016, by catching hold of her hand, kissing her and trying to remove her underwear with sexual intent and therefore the accused is liable to be convicted for an offence of aggravated sexual assault as described u/s 9 (m) of the POCSO Act, and punishable U/s 10 of POCSO Act and for the offence punishable u/s 354 IPC.
47. Accordingly, the accused is convicted for the offences punishable U/s 10 of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and u/s 354 IPC.
48. Matter be listed for arguments on the quantum of sentence on 23.04.2018.
Announced in the open court
today i.e. on 19.04.2018 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 19.04.2018
Judgment : FIR No. 245/16 page 30 of 30