Delhi District Court
State vs . Kamrul on 18 February, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 28/11)
Unique ID case No. 02404R0164572011
State Vs. Kamrul
FIR No. : 134/11
U/s : 363/354/376/511 IPC
P.S. : Mukherjee Nagar
State Vs. Kamrul
S/o Md. Alam
R/o Village Jaya,
P.S. Gayaghat,
District Mujjafarpur, Bihar
Date of institution of case 25.06.2011
Date on which, judgment has been reserved18.02.2013
Date of pronouncement of judgment 18.02.2013
JUDGMENT:
1 The case of the prosecution is that on 12.04.2011 Ex.PW2/A i.e. DD No.22A was registered at P.S. Mukherjee Nagar on receipt of information regarding quarrel at SC No.28/11 State Vs. Kamrul Page Nos. 1 of 23 2 Coronation Ground, near Police Picket, Mukherjee Nagar. The same was handed over to PW5 W/ASI Santosh and PW10 SI Yogesh Kumar for inquiry. The said police official reached the reported place i.e. Coronation Ground, Nirankari Colony, where victim / prosecutrix and accused Kamrul were found present. PCR Van No.C49 was also found present at the spot. It was revealed that accused Kamrul had been seen committing wrong act with prosecutrix by public persons and had been given beatings. The prosecutrix and the accused were taken in the PCR Van to BJRM Hospital where prosecutrix was examined vide MLC Ex.PW6/B and accused was examined vide MLC Ex.PW6/A. After medical examination, prosecutrix as well as accused were brought back to PS where statement of prosecutrix was recorded with the assistance of PW3 Ms. Reeta Nayyar from NGO Apni Didi. In her said statement prosecutrix stated that accused had made her sit on his rickshaw, given her food and tea and taken her around in the rickshaw till night. In the darkness of night accused removed salwar of prosecutrix and was seen by public persons and was given beatings by them. Prosecutrix also stated that her Chacha Rizwan was staying in Jama Masjid and that she did not know accused from before.
2 On this statement made by the prosecutrix, case FIR No.134/11 was registered under Section 363/354/376/511 IPC against the accused Kamrul. Further investigations of the case were marked to PW5 W/ASI Santosh. During the course of investigation, IO inspected the site and prepared the site plan. The rickshaw of accused was seized. Since there was no clue about the parents / guardian of prosecutrix, she was produced before concerned CWC for protection orders. The statement of prosecutrix was also got recorded u/s.164 CrPC. After completion of the investigation, SC No.28/11 State Vs. Kamrul Page Nos. 2 of 23 3 the charge sheet was prepared and filed in the court for trial. 3 Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/376/511 IPC were framed against the accused Kamrul. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4 In order to prove its case, prosecution has examined 10 witnesses. 5 PW1 is the prosecutrix. Her age was stated to be about 8 - 9 years when she appeared to depose before the Court. After being satisfied with the competence of the witness to depose in the Court by asking her general questions, the statement of this witness was recorded, wherein she deposed that on the day of incident accused Kamrul, who was duly identified by the prosecutrix in the Court, took her in a cycle rickshaw near black gate and tried to do 'Galatkam' with her. The prosecutrix elaborated by stating that he made her lay down on ground and opened his chain and opened her salwar and lay down upon her and tried to do 'Galatkam' with her and that it was dark at that time. Prosecutrix raised alarm and 4 persons came there and apprehended the accused and gave him beatings.
6 During her crossexamination by learned defence counsel, prosecutrix was asked about her residential address and her family. She could not give details of her residential address but stated that when she used to stay at her house, she used to go to school in a bus and that she was having a younger brother by the name of Kaif. She SC No.28/11 State Vs. Kamrul Page Nos. 3 of 23 4 also stated that she never met accused prior to the incident. Certain improvements in the statement of prosecutrix were pointed out in as much as in her complaint Ex.PW2/A, she had not mentioned that accused had made her lay down on the ground and opened his chain and opened her salwar to lay down upon her and tried to do 'Galatkam' with her. She had also not stated that she had raised alarm and 4 persons came there, apprehended the accused and gave him beatings. To elicit clarity whether the witness understood meaning of 'Galatkam', further questions were put to the witness by learned defence counsel in response to which she stated that she was told by her mother that whatever accused was trying to do with her was 'Gandakam'. She also stated that she had been brought to Court by a fat uncle and an aunt in a vehicle and that said fat uncle had tutored her about the facts told in the Court and she had accordingly, told the same. The witness was reexamined by learned Additional PP and during the said re examination, witness termed it correct that accused had actually taken her in a cycle rickshaw and tried to commit 'Gandatkam' with her and that she was not telling this fact on tutoring by fat uncle. During her crossexamination by learned Amicus Curie, the witness again stated that she had told whatever had been told to her by the fat uncle. 7 The PW3 Reeta Nayyar was working as President of NGO Apni Didi and had assisted the IO in recording of the statement of the prosecutrix. She deposed that on 12.04.2011 at about 11:00 PM, she received call from PS Mukherjee Nagar, pursuant whereto she went to PS and met W/ASI Santosh and the prosecutrix and that W/ASI Santosh examined prosecutrix in her presence and recorded her statement Ex.PW3/A. She further deposed that prosecutrix pointed out towards one rickshaw puller, who was present in Police Station at that time. The PW3 could not identify the rickshaw puller SC No.28/11 State Vs. Kamrul Page Nos. 4 of 23 5 during her chief examination, however, on accused being specifically pointed out to her during her crossexamination by learned Additional PP, PW3 identified the accused. 8 During her crossexamination by learned defence counsel, PW3 termed it correct that when she had met the prosecutrix for the first time, she was not pronouncing words properly. She also termed it correct that prosecutrix was not examined by any medical expert or Psychiatrist in her presence. She denied that she had simply signed on papers which were already written. She also denied that accused was not present in the Police Station when she went there.
9 PW7 HC Umesh Kumar is a Police official, who has been put forth as an eye witness of the incident. He deposed that on 12.04.2011 he was posted in PCR and that during his off duty hours, he was strolling in Coronation Ground at about 8:30 - 9:00 PM and that he saw one male person doing 'Galatkam' with a small girl. He further deposed that the salwar of girl was taken out and that he stopped that person from acting further. The PW7 clarified that he did not know that the man has actually done 'Galatkam' or not and that there was darkness in the area where the man and girl were found and that there was also a gate there and that the man was brought out of that area by PW7 and that in the meantime, some other persons collected at the spot. The PW7 gave call at 100 number from his mobile phone No.9868009917. PCR came to the spot and PW7 handed over said person and victim girl to PCR staff after which PW7 went home. On the next day, PW7 was called by the local Police in the Police Station and he pointed out the place of occurrence to IO whereupon site plan Ex.PW5/G was prepared by the IO. The PW7 identified the accused in the Court.
SC No.28/11 State Vs. Kamrul Page Nos. 5 of 23 6 10 During his crossexamination PW7 deposed that his duty hours were from 8:00 AM to 2:00 PM on 12.04.2011 and that he occasionally went to Coronation ground for strolling and that other public persons also came there for stroll etc. PW7 was confronted with his statement u/s.161 CrPC i.e. Ex.PW7/D1 wherein it was not recorded that he had seen one male person doing 'Galatkam' with a small girl and that the salwar of girl was taken off. He had also not stated that he had stopped that person from acting further and that he did not know if the man had actually done 'Galatkam'. He had further not stated in his statement Ex.PW7D1 that there was a gate where accused and prosecutrix were found and that accused was brought out of that area by PW7 and that some other public persons collected at the spot. PW7 denied that he had not seen the incident with his own eyes.
11 PW9 Ms. Vandana, learned MM, recorded the statement of prosecutrix u/s. 164 CrPC. She proved the proceedings in this regard as Ex.PW9/A to Ex.PW9/D. 12 PW8 HC Pritam Singh was posted in PCR Van C49 on 12.04.2011 and he deposed that on that day at about 8:50 PM, he had received a call regarding apprehension of one thief on the way from Camp to Burari before the drain (Nala) and that PW8 reached the spot and found public persons gathered there. He also found the accused and one girl. IO also reached at the spot and thereafter PW8 brought the accused to hospital in his PCR Van and thereafter returned back to his base. Since this witness resiled from his previous statement recorded u/s.161 CrPC, he was cross examined by learned Additional PP.
SC No.28/11 State Vs. Kamrul Page Nos. 6 of 23 7 13 During his crossexamination, PW8 termed it correct that he came to know name of accused as Kamrul and also the name of the girl, who was aged about 7 - 8 years and that accused was handed over to him by public persons in injured condition and that when W/ASI Santosh and SI Yogesh Kumar to the spot, PW8 narrated the facts to SI Yogesh and that ASI Santosh, who conducted inquiry from the girl whereupon the girl disclosed that accused was doing wrong act with her. He termed it correct that he did not narrate the exact version in his examinationinchief due to lapse of time. 14 During his crossexamination by learned defence counsel, PW8 stated that they had reached the spot at about 8:50 PM and found 30 - 35 persons gathered at the spot and that IO reached the spot within 5 - 7 minutes. He also stated that he had not handed over copy of log book of the PCR van to the IO regarding the visit to the spot. He clarified by stating that it was so as IO never requested him to hand over copy of the log book.
15 The PW6 Dr. Gopal was deputed by MS BJRM Hospital to depose in place of Dr. Vinod Kumar, who had examined the accused as well as prosecutrix on 12.04.2011. The PW6 deposed that Dr. Vinod Kumar was working under his supervision and that on that day, he had examined the accused / patient Kamrul vide MLC No.23981 on being brought to the hospital with alleged history of physical assault (beaten by public). He proved the MLC of accused as Ex.PW6/A by identifying the handwriting and signatures of Dr. Vinod Kumar thereupon. The PW6 further deposed that on the same day, Dr. Vinod Kumar had examined prosecutrix aged about 8 years, SC No.28/11 State Vs. Kamrul Page Nos. 7 of 23 8 who was brought by ASI Santosh for examination with alleged history of sexual assault and that on examination, no fresh injury was seen on the person of prosecutrix and hence, she was referred to Gynae Department for further management and examination. He proved the MLC of prosecutrix as Ex.PW6/B by identifying handwriting and signatures of Dr. Vinod Kumar thereupon.
During his crossexamination PW6 denied that he did not have personal knowledge about MLCs Ex.PW6/A and Ex.PW6/B. 16 PW2 HC Arvind Kumar was posted as Duty Officer at P.S. Mukherjee Nagar on 12.04.2011. He deposed that on that day at about 8:58 PM, he had received a message regarding quarrel, through PCR, and reduced the same into writing vide DD No.22A and handed over the same to SI Yogesh Kumar for necessary action who left for the spot along with W/ASI Santosh. He proved true copy of the said DD as Ex.PW2/A. The PW2 further deposed about registration of FIR of the present case on receipt of rukka by W/ASI Santosh. He proved the endorsement made by him on rukka as Ex.PW2/B and the computerized copy of FIR as Ex.PW2/C. 17 PW5 W/ASI Santosh is the investigating officer of the case and she deposed that on 12.04.2011 on receipt of Ex.PW2/A, she accompanied SI Yogesh Kumar to Coronation Ground, opposite Nirankari Sarowar, Burari Road. She further deposed that at the spot they found PCR officials and public persons and that HC Pritam, Incharge of PCR Van, produced the accused and one female child aged about 8
- 9 years before SI Yogesh. The SI Yogesh called Constable Anil, who was present at the Police Picket at Burari Road and thereafter on directions of SI Yogesh, PW5 and Ct. SC No.28/11 State Vs. Kamrul Page Nos. 8 of 23 9 Anil took the accused and prosecutrix to BJRM Hospital in the PCR Van. After the medical examination of the prosecutrix and the accused, both the prosecutrix and the accused were brought to Police Station where Ct. Anil handed over MLC of accused to PW5. The PW5 further deposed about recording of statement of prosecutrix vide Ex.PW3/A with the help of Smt. Rita Nayyar from NGO Apni Didi. The PW5 then deposed that on the basis of statement Ex.PW3/A, she prepared rukka Ex.PW5/A and handed it over to the duty officer, who registered the case FIR vide Ex.PW2/C and handed over its copy to PW5. The PW5 further deposed that the custody of child victim was handed over to Lady Constable Neelam, who was called from the Control Room, and that accused Kamrul was arrested vide arrest memo Ex.PW5/B and was personally searched vide memo Ex.PW5/C and that his disclosure statement was recorded Ex.PW5/D. The PW5 then deposed that accused led her and Ct. Anil to Coronation Ground and pointed towards one cycle rickshaw which was parked on the edged of Burari Road, Coronation Ground, while stating that he had brought the child victim in said rickshaw from Paharganj Pul and that the rickshaw was seized by PW5 vide memo Ex.PW5/E. The PW5 also deposed about producing the victim child before CWC Sewa Kutir for her protection orders and also about production of child before learned MM for her statement u/s.164 CrPC. She further deposed that the victim child was taken to Jama Masjid as she had deposed in her examinationinchief that her Chacha Rijwan residing in the area but she could not identify her Chacha's house and hence, victim child was taken to Nirmal Chaya. The PW5 proved the site plan of the place of incident as Ex.PW5/G, which she had prepared on 13.04.2011 at the instance of HC Umesh. The PW5 identified the accused as well as the case property i.e. the cycle rickshaw which was then exhibited as Ex.P1.
SC No.28/11 State Vs. Kamrul Page Nos. 9 of 23 10 18 During her crossexamination, PW5 stated that no inquiry or investigations were carried out by her before leaving the spot for hospital and that no public person was joined in investigations as it was night time. She also stated that prosecutrix was not able to give any specific address and that prosecutrix was taken to Jama Masjid area where she stated that she was residing with her uncle but could not point out any such place.
19 PW10 SI Yogesh Kumar was marked DD No.22 A i.e. Ex.PW2/A for investigations and was assigned further investigations of the case on 16.04.2011 when PW5 W/ASI Santosh was transferred from Police Station. He deposed that on 18.04.2011, he got the statement of victim child recorded u/s.164 CrPC and that on 22.05.2011 he recorded statement of HC Pritam, who was posted in the PCR Van which had gone to place of incident after the matter was reported, and that he had collected the PCR form. He proved the computerized copy of PCR form as Ex.PW10/A. The PW10 also deposed about preparing and filing of charge sheet of the present case in the Court.
20 During his crossexamination PW10 admitted that Ex.PW2/A i.e. DD No.22 A dated 12.04.2011 was regarding a quarrel and not about catching of thief as had been stated by him in his examinationinchief. He termed it correct that nothing had been mentioned in Ex.PW2/A regarding attempt to rape a minor child. PW10 also stated that he had made efforts to trace out the parents / family members of the minor child and that he had got flashed WT message, Zip Net information, information to Director CBI and SC No.28/11 State Vs. Kamrul Page Nos. 10 of 23 11 NCRB to trace out the family of victim child and that since the family of victim child could not be traced, she continued to remain in Nirmal Chaya as per orders passed by concerned CWC.
21 After closing of prosecution evidence, statement of accused Kamrul was recorded u/s 313 Cr.P.C. The accused stated that he is innocent and had been falsely implicated in the case after being lifted from his house. The accused further stated that his thumb impression were obtained forcibly by the Police on some blank papers and printed proformas and later on, those papers were converted into various memos against him. The accused declined to lead evidence in his defence.
22 Arguments have been addressed by learned Amicus Curie for the accused as well as learned Additional PP for the State.
23 Learned Additional PP has contended that prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused be convicted u/s.363/354/376/511 IPC. 24 Learned Amicus Curie for the accused on the other hand has contended that prosecution has miserably failed to prove its case against the accused and that accused has been falsely implicated in the present case. He has further contended that statement of victim child cannot be relied upon as she has made considerable improvements in her testimony before the Court and that even otherwise she was tutored to state whatever she has deposed in the Court by her escorts. It is also stated SC No.28/11 State Vs. Kamrul Page Nos. 11 of 23 12 that accused was apprehended due to misunderstanding and that there was theft in the area and that accused was apprehended on mistaken identity and that later on accused was falsely implicated in the present case by the Police in order to save persons, who had given beatings to the accused. It is lastly contended that since the prosecutrix is an orphan child, the charge for kidnapping is not made out against the accused at all. The learned Amicus Curie has relied upon judgment in case titled as Anop Kumar Vs. State of Gujarat, (1984) 1 Crimes 44.
25 I have heard the arguments put forward by ld. Addl. PP and learned Amicus Curie for accused Kamrul and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
26 The offence of kidnapping, which is punishable u/s.363 IPC is defined in Section 361 IPC which reads as under : "361 : Kidnapping from lawful guardianship :
Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation . The words 'lawful guardian' in this section include SC No.28/11 State Vs. Kamrul Page Nos. 12 of 23 13 any person lawfully entrusted with the care or custody of such minor or other person.
Exception . This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
27 While dealing with the page of this Section, the Hon'ble Supreme Court has held in the case of State of Haryana Vs. Raja Ram, AIR 1973, Supreme Court 819, as under : "The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor . . . . . . . . out of the keeping of the lawful guardian of such minor" in S.361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control : further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being SC No.28/11 State Vs. Kamrul Page Nos. 13 of 23 14 available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud.
Persuasion by the accused persons which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section."
28 In the present case the prosecutrix in her complaint Ex.PW3/A has clearly stated that accused had made her sit in his rickshaw for taking her to Jama Masjid and that he gave her food and tea and that he did not drop her at Jama Masjid and kept taking her around (Idhar udhar ghumata raha) and in the darkness of night, he removed her salwar and was seen by persons, who gave him beatings. She also stated that her Chacha Rijwan was staying in Jama Masjid. The incident in the present case is stated to have taken place on 12.04.2011 at about 8:00 PM and the statement Ex.PW3/A was made by prosecutrix on 13.04.2011 at 12:05 PM, shortly after the incident. 29 The statement of prosecutrix u/s.164 CrPC was recorded on 18.04.2011 wherein she made similar averments with some modifications in as much as she stated that accused had made her sit forcibly in the rickshaw and that he had not given her anything to eat, however, as regards the incident itself, she stated that accused took her around in rickshaw the entire day and as it was going to be dark, he removed her salwar and then people gave beatings to him.
SC No.28/11 State Vs. Kamrul Page Nos. 14 of 23 15 30 In her testimony before the Court recorded on 01.09.2011, after about 4 ½ months of the incident, the witness made further improvements stating that accused took her in a cycle rickshaw near black gate and thereafter he tried to do 'galatkam' with her. She also stated that accused made her lay down on the ground and thereafter opened his chain and opened her salwar and lay down upon her and tried to do 'galatkam' with her and that it was night time and that she raised alarm and that four persons came there and that gave him beatings. Though there have been modifications made by prosecutrix in her subsequent statements i.e. her statement u/s.164 CrPC recorded on 18.04.2011 Ex.PW9/B and her testimony as PW1 recorded on 01.09.2011, over and above her statement Mark "X" Ex.PW3/A, one thing which clearly emerges and is established from conjoint reading of all her statements is that accused had made the prosecutrix sit on his rickshaw and took her around on it and at night time he took prosecutrix to a park and removed her salwar.
31 It has been held in judgment in case of Ughar Ahir Vs. State of Haryana, AIR 1965, SC 277, that, "One hardly comes across a witness whose evidence does not contain a grain of untruth, or exaggerations and also embellishments."
32 It has been further held in judgment in case of Bhe Ram Vs. State of Haryana, AIR 1980 SC 957, that, SC No.28/11 State Vs. Kamrul Page Nos. 15 of 23 16 "Falsus in uno falsus in omnibus" does not apply to criminal trials and it is the duty of the Court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds." 33 In the present case also the narration of the incident by the prosecutrix in her complaint Ex.PW3/A, her statement u/s.164 CrPC Ex.PW9/B and testimony as PW1 clearly establishes the fact that accused had taken prosecutrix in his rickshaw and finally took her to a secluded dark place and removed her salwar. Further the presence of accused and the prosecutrix at the place of incident i.e. Coronation Ground is duly established by PW7 HC Umesh, who has been put forth as an eye witness to the incident. This witness in his wisdom clarified that he was not sure if accused had committed 'galatkam' with the prosecutrix or not but he had stopped accused from acting further and that at that time salwar of prosecutrix had been removed. Though learned Amicus Curie for accused has contended that testimony of PW7 cannot be relied upon as he is a Police witness, there is no rule of law that testimony of a police officer is unworthy of credence. It has been held in case of Kalpnath Rai Vs. State, 1998 AIR (SC) 201, Hon'ble Supreme Court observed that, "There can be no legal proposition that evidence of police officers, unless supported by independent witness, is unworthy or acceptance. Nonexamination of independent witness or even presence of such witness during the raid would cast an added duty on the court to adopt greater care while scrutinizing the evidence of the police officers. If the evidence of the police officer is found SC No.28/11 State Vs. Kamrul Page Nos. 16 of 23 17 acceptable it would be an erroneous proposition that court must reject the prosecution version solely or the ground that no independent witness was examined."
34 Learned Amicus Curie for accused has contended that since the prosecutrix was an orphan, there could not have been any kidnapping as she had no guardian for accused to "take her out of keeping of guardian" as is envisaged u/s.361 CrPC. However, in the present case it is seen that prosecutrix has stated in her statement Ex.PW3/A that she was staying in Jama Masjid area with her uncle (Chacha). Though the police officials took prosecutrix to the Jama Masjid area it appears by virtue of her tender age the witness could not point out the place where her Chacha was residing. Efforts made by the Police officials as well as CWC concerned, to trace out her family, proved to be futile. Rather contrary to what learned counsel has stated, the prosecutrix was under guardianship of her Chacha and because of the cruel act of accused in taking her away out of keeping of her said guardian, she has become an orphan child, a child requiring care and protection of law since all her ties with her natural family got severed by the act of the accused. Even otherwise, the concept of welfare and well being of children is basic for any civilized society as 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 : SC No.28/11 State Vs. Kamrul Page Nos. 17 of 23 18
"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 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 SC No.28/11 State Vs. Kamrul Page Nos. 18 of 23 19 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 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."
35 It was with these objects that a category of "Children in need of Care and Protection of Law was" was incorporated in the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as JJ Act, 2000). The Section 2(d) of JJ Act specified children, who fell within preview of category of "Children in need of Care and Protection of Law" (hereinafter referred to as CNCP). After the amendments in the year 2006, the children who are to be treated as CNCP include following amongst other : "2 (d ) "Child in need of care and protection" means a child ( i ) who is found without any home or settled place or abode and without any ostensible means of subsistence, ( ii ) . . . . .. .
SC No.28/11 State Vs. Kamrul Page Nos. 19 of 23 20
( iii ) . . . .. .
( iv ) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child, ( v ) who does not have parent and no one is willing to take care of or whose parents have abandoned him or who is missing and run away child and whose parents cannot be found after reasonable injury, ( vi ) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts, ( vii ) . . . . ..
( viii ) who is being or is likely to be abused for unconscionable gains, ( ix ) . . . . . "
36 This definition is inclusive and not exhaustive of the children, who are in need of care and protection of law. Further the children, who fall within definition abovementioned are responsibility of the State and the State continues to be their guardian till they attain age of maturity i.e. 18 years. Thus after coming into force of JJ Act, 2000, even an orphan child cannot be said to be without a guardian though, as already observed hereinabove, the victim child in the present case was apparently in care and custody of her Chacha (uncle) when "taken away" by the accused. 37 The judgment in the case of Anop Kumar Vs. State of Gujrat, relied upon by learned Amicus Curie for accused is not applicable in the facts and circumstances of SC No.28/11 State Vs. Kamrul Page Nos. 20 of 23 21 the present case.
38 Lastly learned Amicus Curie for accused has contended that testimony of prosecutrix / minor child cannot be relied upon as children are prone to be tutored and in the present case also from testimony of prosecutrix it is evident that she was tutored. 39 In this regard it has been held by Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, that : "There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."
SC No.28/11 State Vs. Kamrul Page Nos. 21 of 23 22
40 In the present case though the PW1, victim child, made some improvements during her statement before Court and there was slight element of tutoring, as already observed hereinabove, despite said improvements and embellishment, the testimony of PW1 inspires confidence specially in light of her complaint Ex.PW3/A and her statement u/s.164 CrPC Ex.PW9/B. The deposition of PW1 prosecutrix and PW7 HC Umesh with regard to the occurrence of the incidence is firm and convincing. I find no reason as to why a child of age of prosecutrix would get an innocent person implicated for an offence which was undisputedly committed with her.
41 Coming to charge u/s.376/511 IPC, from the testimony of the prosecutrix as well as that of eye witness PW7 HC Umesh Kumar what stands established is that accused had removed salwar of the prosecutrix. There is nothing mentioned by the eye witness as to the state in which the accused was found i.e. state of his clothing etc. The allegation made by the prosecutrix as PW1 is that accused had made her lay down on the ground, opened his chain, opened her salwar and lay down upon her and tried to do 'galatkam', has been made only during deposition before the Court and there appears to be an element of tutoring in these allegations in as much as she on one hand states that she was told by her mother that whatever accused was trying to do was 'gandakam', even though it is a matter of record that prosecutrix was separated from her family since the time of incident and had not met her mother, and in the second instance the prosecutrix has stated that her escort (fat uncle) had tutored about facts to be told in the Court. The MLC of the prosecutrix also does not find mentioned of any fresh injuries and SC No.28/11 State Vs. Kamrul Page Nos. 22 of 23 23 thus only conclusion drawn in these facts and circumstances is that accused had used criminal force with the intent to outrage her modesty.
42 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved the guilt of the accused Kamrul on record, beyond the reasonable doubts. Accordingly, I hold guilty accused Kamrul for the offences punishable u/s. 363/354 IPC and he is convicted accordingly.
(Announced in the open Court ) (Illa Rawat)
(Today on 18.02.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No.28/11 State Vs. Kamrul Page Nos. 23 of 23
24
FIR No. 134/11
P.S. Mukherjee Nagar
16.02.2013
Present : Ld. Addl. PP for the State.
Accused Kamrul produced from JC with counsel Sh. Abhishek Kaushik, learned Amicus Curie.
I am to send urgent report of age inquiry in case of State Vs. Deepak to Hon'ble High Court.
Be listed for further arguments, if any, otherwise for judgment on 18.02.2013.
ASJ/NW01
Rohini/Delhi
16.02.2013
18.02.2013
Present: Addl. PP for the State.
Accused Kamrul produced from JC with counsel Sh. Abhishek Kaushik, learned Amicus Curie.
Remaining arguments heard.
Vide separate judgment announced today in the open Court, accused Kamrul has been convicted u/s.363/354 IPC.
Be listed for arguments on the point of sentence on 22.02.2013.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 18.02.2013 SC No.28/11 State Vs. Kamrul Page Nos. 24 of 23 25 SC No.28/11 State Vs. Kamrul Page Nos. 25 of 23