Delhi District Court
State vs . Raghav on 4 March, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 127/13)
Unique ID case No. 02404R0235522013
State Vs. Raghav
FIR No. : 224/13
U/s : 376/506 IPC and 6 of POCSO Act
P.S. : Begum Pur
State Vs. Raghav
S/o Nem Kumar
r/o Village & PO Roshnabad,
PS Samsabad, Distt. Farukabad,
UP, Delhi.
Date of institution of case 21.08.2013
Date on which, judgment has been reserved 03.03.2014
Date of pronouncement of judgment 03.03.2014
JUDGMENT:
1. Briefly, stated the case of the prosecution is that the accused is the real maternal uncle (Mama) of the victim M. The accused had been residing with the family of victim M since three years prior to the registration of the present case. It is alleged that while staying with the family of the victim M, he started sexually harassing her. The victim M did not report about his acts and deeds to elders in the family, out of fear and shame and thus emboldened accused started sexually assaulting her and one day, about one SC No. 127/13 State Vs. Raghav Page No. 1 of 35 2 and a half years prior to registration of the present case, he committed penetrative sexual assault upon her and threatened to defame her, in case, she disclosed the incident to any one. The victim M again failed to disclose about the acts of the accused to her parents out of fear and shame and taking advantage of her hesitation, accused continued to commit penetrative sexual assault upon her, repeatedly. He also threatened to disfigure her by throwing acid on her face. On 14.07.2013, the victim child mustered courage to disclose about the acts of the accused to her mother and thereafter, the present case was registered against the accused. The case FIR was registered on complaint made by victim M herself. Accused was arrested in the present case upon identification of victim M and her parents. During the course of investigations, the accused as well as victim M were got medically examined. Statement of victim M u/s 164 Cr.P.C was got recorded. The IO herself recorded statement of other witnesses. After completing the investigation, charge sheet was prepared and filed in the Court through SHO concerned.
2. Upon committal of this case to the court of Sessions, charges for the offence under Section 5 (l) and (n) punishable u/s. 6 of POCSO Act was framed against the accused. An alternative charge u/s. 376 (2) (f) (n) IPC was also framed against the accused. Another charge u/s. 506 IPC was further framed against the accused Raghav, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution SC No. 127/13 State Vs. Raghav Page No. 2 of 35 3 evidence.
3. In order to prove its case, prosecution has examined 11 witnesses.
4. The PW1, Sh. Karan Singh, Principal, Nigam Pratibha Vidhyalaya, Begum Pur, Delhi, produced record from the school, wherein victim child/prosecutrix M was admitted in first class. The PW1 proved copy of admission form and affidavits of father of the victim child as Ex. PW1/A, Ex. PW1/B and Ex. PW1/B1, respectively and stated that as per the school record, the date of birth of child M is 10.12.1996. The witness also proved the relevant entry in admission register qua the victim child M as Ex. PW1/C and the certificate issued by her, as Principal of the school, giving details of date of birth of child, as Ex. PW1/D respectively.
5. The PW2, HC Kalyan Singh, was posted as the duty officer at PS Begumpur at the relevant time and had registered the case FIR in the present case. He proved the computerized copy of FIR as Ex. PW2/A and endorsement made by him on rukka as Ex. PW2/B.
6. The PW3, Smt. Seema, is the mother of the victim child and she deposed about the acts of the accused as told to her by the victim child. She further deposed about informing her husband about the same and stated that SC No. 127/13 State Vs. Raghav Page No. 3 of 35 4 thereafter, her husband turned the accused out of their house. She further deposed that whenever the victim M went to a public tap to fetch water, accused met her on the way and threatened to throw acid on her face or to stab her, in case, she disclosed about the incident to any one and when, victim M told about these threats to husband of PW3 (father of victim M), he took her to PS and got the complaint filed. The PW3 also deposed about the medical examination of the victim M and arrest of the accused. She also identified the accused.
During her crossexamination, PW3 stated that no birth certificate of prosecutrix was got prepared by her or her husband after coming to Delhi. She could not tell the date of birth of the victim M or any of her other children. She termed it correct that there were other tenants residing on the ground floor and first floor of house, in which, she was having her tenanted premises. She further stated that accused was residing with her in her tenanted premises prior to the incident and that after she had come to know about the incident, she had turned him out of her house and that thereafter, he took a separate premises on rent in some other building in the same locality.
In the present case, while recording the testimony of PW6 Sh. Gauri Shankar, one document/sketch Ex. PX came to be placed before the court and in view of the same, PW3 was recalled for further examination vide order 20.01.2014 passed by the court.
During her further examination, the PW3 deposed that sketch Ex. PX was handed over to her by her son Bimal, who told her that he had found SC No. 127/13 State Vs. Raghav Page No. 4 of 35 5 the same in the room of the accused. She also identified handwriting of the accused, who was her real brother, on the said sketch.
During further crossexamination, she explained that she had seen the accused writing as he used to give tuitions to her children. She also stated that she was given Ex. PX by her son prior to registration of the present case and that she gave Ex. PX to her husband on the same day and that her husband handed over Ex. PX to the police after 2/3 days.
7. The PW4 is victim child M. Her statement was recorded in camera proceedings and in the said proceedings, PW4 stated that : "............ Accused Raghav, present in the Court today, is my real maternal uncle and he had been residing with us for the last three years from the date of filing of the complaint. Two years prior, he started teasing me by pressing my neck, by pulling my hair and thereafter he went to the extent of holding my hand and pressing my breast. Out of fear, I could not tell about this to anyone in the family and moreover he used to threaten me to kill me by stabbing and by throwing acid to disfigure my face in case I told about his acts to anyone. Last year during winter days, I do not remember the exact date and month, I was alone in the house. Accused called me to his room in our house. Accused bolted the room from inside. He removed my salwar. I tried to raise alarm but accused shut my mouth by putting his SC No. 127/13 State Vs. Raghav Page No. 5 of 35 6 hand. He also removed his pant and "usne zabardasti mere sath galat harkat kari. Usne apni susu ki jagah meri susu ki jagah me dal di. " At that time my mother had gone to hospital to bring medicine. Accused did such wrong act with me many times whenever he found me alone in the house. Out of fear I did not disclose about his acts to anyone.
One day when my mother came back from hospital, I was weeping at that time. My mother asked me about the reason and thereafter I told her everything. My mother narrated all the incident to my father, who went to PS and lodged a complaint. Police came to my house and recorded my statement. ......"
The witness proved her statement as Ex.PW4/A and further deposed about her medical examination, which was conducted vide MLC Ex. PW4/B. She also stated that accused Raghav was arrested on her identification vide arrest memo Ex.PW4/C and that his personal search was also conducted vide personal search memo Ex.PW4/D. The witness identified her signatures on Ex. PW4/E i.e. the carbon copy of statement u/s.164 Cr.P.C.
The PW4 further stated that on her telling about the incident to her mother, her father also came to know about it and thereafter, the accused was turned out of the house by her father and that thereafter, the accused used to show knife to her brothers whenever they used to go in the gali. SC No. 127/13 State Vs. Raghav Page No. 6 of 35 7
During crossexamination, the PW4 stated that accused had teased her many times, but she could not tell the exact date and time of the same. She further stated that her mother used to visit hospital regularly during those days as she was not well. She further stated that the room of the accused was situated in front of her room on the same floor and that since the accused had shut her mouth by his hand, she could not raise alarm at the time he raped her, for the first time. She further termed it correct that her father and accused were doing business of sale of plastic chairs.
8. The PW5, Ms. Vandana, learned Metropolitan Magistrate, Delhi, had recorded the statement of prosecutrix u/s.164 CrPC and proved the proceedings conducted by her in this regard. She proved the application filed by IO for recording of statement of prosecutrix as Ex.PW5 /A; statement u/s 164 Cr.P.C of the victim child M, recorded by her as Ex. PW5/B ; the certificate given by her on the statement as Ex.PW5/C ; and the application filed by IO for supply of copy of the said statement as Ex.PW5/D.
9. The PW6, Sh. Gauri Shankar, is the father of the prosecutrix and he deposed almost on the same lines of his wife/PW3, Smt. Seema. He stated that on coming to know about the incident, he got annoyed and made inquiries from the accused, on which, accused admitted that he had done wrong act with the prosecutrix. He further stated that accused threatened his daughter to throw acid on her and also not to let her to marry anywhere else. SC No. 127/13 State Vs. Raghav Page No. 7 of 35 8 He also stated that he had lodged police complaint against the accused and proved the copy of same as Ex. PW6/A. During crossexamination, PW6 was confronted on certain additions made by him during his deposition in the court viz he (PW6) and his wife returning back from market and finding prosecutrix weeping and his (PW6) having come to know of the incident from his wife. He further stated that he had never done work of sale of plastic chairs in partnership with the accused and that the accused used to buy his own chairs for sale. He further stated that earlier they used to go together for sale of chairs and that accused used to have his own separate account of purchase and sale of chairs and had nothing to do with him (PW6) regarding his business. In reply to a specific court question regarding quarrel between him (PW6) and accused on any occasion, in connection with their separate business, the witness stated that accused used to instigate the customers not to buy chairs from him (PW6) and used to tell them that chairs, which he (PW6) was selling were defective and overpriced and that in this regard, there had been quarrel, 3/4 times, between him and the accused and that the last such quarrel took place 89 months prior to the registration of FIR in the present case. The witness denied the suggestion that he had tutored his daughter to file a false case against the accused as he wanted to settle score with him over a dispute regarding sale of plastic chairs. The PW6 volunteered to state that accused had drawn a sketch of his daughter and threatened to throw acid on her face and had written so on the said sketch and also depicted her disfigured face in SC No. 127/13 State Vs. Raghav Page No. 8 of 35 9 the sketch. The witness has also produced the said sketch Ex. PX and stated that the same had been drawn by the accused and the threat written on it was also in the handwriting of the accused and that he (accused) had also written his name on it. During further crossexamination, the witness stated that he had not given sketch Ex.PX to the police as it was recovered 34 days after registration of the case, from the room of the accused when his wife had gone there and that he had given photocopy of said sketch to the IO later on.
10. The PW7, HC Ram Kumar, was posted as MHCM at P.S. Begum Pur at the relevant time. He produced Register No. 19 and proved the relevant entries of deposit of sealed pullanda and sample seal at Malkhana as Ex. PW7/A.
11. The PW8, Ct. Azad had joined the investigations of the present case with PW11 W/SI Manju Yadav and deposed about the investigations carried by PW11 at the spot.
12. The PW10, Dr. Brijesh Singh, CMO, Sanjay Gandhi Memorial Hospital, had initially examined the prosecutrix/victim child M on 14.07.2013 and thereafter, referred her to Senior Resident (Gynae) for further examination.
On the same day, the PW10 had also examined the accused Raghav SC No. 127/13 State Vs. Raghav Page No. 9 of 35 10 vide MLC Ex. PW10/A and after his examination, he opined that "there is nothing to suggest that patient was not able to perform the act of sexual intercourse."
13. The PW9, Dr. Manisha Gupta, DGO, SGM Hospital, had examined the prosecutrix in Gynecology Department and proved her MLC as Ex. PW4/B. She further deposed that on examination, hymen of the patient was found torn.
14. The PW11, W/SI Manju is the Investigating officer of the present case and she deposed that on 14.07.2013, on receipt of a complaint Ex. PW6/A, she alongwith PW8 Ct. Azad went to H.No. B64, Rajeev Nagar, Begum Pur, Delhi and met the PW4/prosecutrix and her parents. She further stated that after inquiry, she recorded statement EX. PW4/A of the prosecutrix, who was found to be 17 years of age and that thereafter, she got the medical examination of the prosecutrix/victim child M conducted at SGM Hospital and that she collected MLC Ex. PW4/B from the Doctor. She further deposed that thereafter, on return to the PS, she made her endorsement on the statement, prepared rukka and got the case registered in the P.S and that thereafter, she apprehended accused Raghav on the identification of prosecutrix and her father and after making inquiry from him, she arrested him vide arrest memo EX. PW4/C, and conducted his personal search vide memo Ex. PW4/D. She further stated that thereafter, she recorded the SC No. 127/13 State Vs. Raghav Page No. 10 of 35 11 disclosure statement Ex. PW8/A of accused and that pursuant to his disclosure statement, the accused led the police party to House no. 93, Begum Pur, near Chopal Wali Gali, where he pointed out a room, in which he used to commit rape upon his niece (Bhanji) i.e. the prosecutrix vide pointing out memo Ex. PW8/B. She further deposed about the medical examiantion of the accused and proved the seizure memo, vide which his exhibits were taken into possession, by her, as Ex. PW8/C. She further deposed about getting recorded the statement of the prosecutrix/victim child M u/s 164 Cr.P.C and about collecting the age proof of the prosecutrix from her school. She also proved the site plan Ex. PW11/A, prepared by her at the instance of PW6 Sh. Gauri Shankar
15. After closing of prosecution evidence, statement of accused Badku was recorded u/s 313 Cr.P.C, wherein the accused denied the allegations of the prosecution and stated that he was innocent and had been falsely implicated in this case. He further stated that the sketch on Ex. PX and words written in Hindi on it are not in his handwriting and his name written in English on it was got written by him, by the Madam (IO) in the police station and that his room used to remain open as his sister had told him to leave his room open, so that it can be cleaned. He further stated that he was not aware, what was kept there in his absence, even prior to his arrest in the present case. He also denied having made any disclosure statement. He further stated that he was falsely implicated in this case by the SC No. 127/13 State Vs. Raghav Page No. 11 of 35 12 parents as well as prosecutrix in the present case because, he and father of the prosecutrix were doing the work of selling plastic chairs and there was certain money disputes between him and PW6 (father of the prosecutrix). He further stated that his signatures were obtained on blank papers and memos forcibly, which were used as incriminating evidence against him and that no offence, as alleged had ever taken place. The accused declined to lead evidence in his defence.
16. Arguments have been addressed by learned Amicus Curie for the accused as well as learned Additional PP for the State.
17. Learned Additional PP has contended that in view of the statements of PW3 Smt. Seema, PW4 prosecutrix M, PW6 Sh. Gauri Shankar and PW9 Dr. Manisha, prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has prayed that he be convicted for the charged offences.
18. On the other hand, learned defence counsel for accused has contended that prosecution has failed to prove its case against the accused and that the accused is innocent and has been falsely implicated in the present case because, he and father of the prosecutrix were doing the work of selling plastic chairs in partnership and that there was certain money disputes between him and PW6 (father of the prosecutrix). It is further stated SC No. 127/13 State Vs. Raghav Page No. 12 of 35 13 that there are several contradictions in the testimony of prosecutrix as well as her father, which make their testimony unbelievable. She has further stated that the prosecutrix was above 18 years of age at the time of incident, hence provisions of POCSO Act are not attracted and it is accordingly prayed that accused be acquitted of the charged offences.
19. I have heard rival contentions raised before me and also perused the record carefully.
20. In the present case prosecutrix is stated to be aged about 17 years at the time of filing of the complaint. In her complaint Ex.PW4/A, prosecutrix has leveled allegations of sexual assault against accused since three year prior to her filing of the complaint. In order to prove the age of the prosecutrix, the prosecution has examined PW1 Sh. Karan Singh, who produced record of first class wherein prosecutrix was admitted on the basis of admission form Ex.PW1/A and affidavits Ex. PW1/B and Ex. PW1/B1 submitted by the father of the prosecutrix. In the said documents, the date of birth of the prosecutrix has been mentioned as '10.12.1996' which was entered as such in the school record without any further verification. Admittedly no birth certificate of the child i.e. the prosecutrix was submitted by her father at the time of her admission in the school. Learned defence counsel for accused has contended that since no basis has been shown for recording of date of birth of prosecutrix in the school record, the prosecution SC No. 127/13 State Vs. Raghav Page No. 13 of 35 14 has failed to prove that the date of birth of prosecutrix is '10.12.1996' as mentioned in the record produced by PW1.
21. In this regard, in case of Jarnail Singh Vs. State of Haryana, Cri. Appeal No.1209 of 2010 decided on 01/07/2013, the Hon'ble Supreme Court held that Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 would be applicable while determining age even for child, who is victim of the crime.
22. Further, in case of Ashwani Kumar Saxena vs. State of M.P. (2012) 9 SCALE 90, it has been held that : "........ "Age determination inquiry" contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or that date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but SC No. 127/13 State Vs. Raghav Page No. 14 of 35 15 certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reason to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year..."
23. Thus, interpreting the rule 12 (3) the Hon'ble Supreme Court held that : "We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility."
24. Since in Delhi Juvenile Justice (Care and Protection of Children) Rules, have been enacted, which have come into force w.e.f. 24.09.2009 and the same would be applicable for determination of the age of the victim child. SC No. 127/13 State Vs. Raghav Page No. 15 of 35 16 The said rule is as under :
12.Procedure to be followed in determination of Age.
(1).....
(2).....
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
i. the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
ii. the birth certificate given by a corporation or a municipal authority or a panchayat;
iii. the matriculation or equivalent certificates, if available;
25. In the present case also the prosecution has produced record of first class to prove that the date of birth of prosecutrix is '10.12.1996'. No manipulation, tampering, addition or alteration could be brought out in the said record from detailed crossexamination of PW1. Admittedly, the record produced by PW1 was maintained in normal course of business of the school and is thus admissible u/s.32 of the Indian Evidence Act. Nothing has been brought on record to show that the school authorities were in any manner motivated to manipulate their record to favour the case of the prosecution. In view of the judgment of Hon'ble Supreme Court in case of SC No. 127/13 State Vs. Raghav Page No. 16 of 35 17 Jarnail Singh (Supra), I am of the opinion that prosecution has succeeded in proving that the date of birth of prosecutrix is '10.12.1996' and that she was aged about 14 years of age at the time when first alleged incident of sexual assault, reported by her vide complaint Ex.PW4/A dated 14.07.2013, took place.
26. The next question which arises for consideration is whether accused had committed repeated penetrative sexual assault on the victim/prosecutrix M. In the present case, accused is none other than real maternal uncle of victim N, who had been sexually harassing victim N since about two years prior to matter being reported to the police. He further committed repeated sexual assault/penetrative sexual assault upon the victim N, taking advantage of the fact that she could not muster courage to report about his misdeeds to any one. He subjugated victim N by threatening to defame her and/or to disfigure her face by throwing acid on her and/or by killing her. The case has been registered on complaint Ex. PW4/A made by victim N herself, who stated therein that accused, her maternal uncle (Mama), who had been residing with them since last about 3 years, had started indulging in repeated physical contact of sexual nature i.e. by touching her breast etc, since about two years prior to matter being reported. She further stated that about one and a half years prior to the reporting of the matter, one day, when her mother had gone to hospital and she (victim N) was alone in the house, accused called her to his room and bolted the door from inside and started SC No. 127/13 State Vs. Raghav Page No. 17 of 35 18 touching her with malafide sexual intention. The victim gave details of these acts and further stated that though, she raised alarm, since nobody was present in the house, she was not heard and that thereafter, accused removed her salwar, shut her mouth with his hand and established physical relations with her forcibly. At that time, he also threatened her that in case, she disclosed about the incident to any one, he would defame her. The victim N stated that out of shame and fear of being defamed, she did not disclose the incident to her parents and that thereafter, whenever, accused found her alone in her house, he used to force himself upon her and when prosecutrix threatened to tell about his acts to his mother, accused intimated her and told her that he would disfigure her by throwing acid on her. One day, she gathered courage and informed her mother about the acts of the accused, who in turn took her to police. On this complaint, case FIR Ex. PW2/B was registered at PS Begum pur against the accused on 14.07.2013.
27. The statement of victim u/s 164 Cr.P.C was recorded on 15.07.2013, wherein, she deposed as under : "Mera naam Madhu hai. Main 5th class tak padhi hoon.
Main uprokat pate par apne parivar ke saath rahti hoon. Mere mama Raghav hamare ghar me lagbhag pichhle 3 salon se rah rahe hai. Mama aksar mere saath chedkhani karte rahte hai. Ek din jab ghar me koi nahi tha, to mama mujhe kisi bahane se bulakar apne kamre me le gaye.
SC No. 127/13 State Vs. Raghav Page No. 18 of 35 19 Unhone mere haath bandhe aur munh bhi aur jabardasti galat kaam kiya. Main bahut ro rahi thi. Maine kaha, main mummy ko sab bata dungi, to unhone mujh par tejab dalne ki dhamki di, aur samaj me meri beijjati karne ko kaha. Main dar gai. Phir jab bhi kabhi main ghar par akeli hoti, to mama mere saath galat kaam karta. Maine dotin pahle himmat karke mummy ko sab bata diya. Mummy ne mama ko ghar se bahar nikal diya"
28. The statement of victim child was recorded in the court as PW4 on 13.01.2014 and during her said examination, which has already been reproduced hereinabove, she again deposed about the wrong acts of the accused.
29. From the above mentioned statements of the victim child M, it is seen that she has been consistent in her narration of the acts of the sexual harassment, sexual assault and penetrative sexual assault by the accused. The testimony of the victim M is duly corroborated by her MLC Ex. PW4/B, wherein hymen of victim child M was found torn by PW9 Dr. Manisha Gupta, who examined her and prepared the MLC Ex. PW4/B.
30. The testimony of PW4 is also corroborated by that of her parents i.e. PW3 Seema, her mother and PW6 Sh. Gauri Shankar, her father. Both SC No. 127/13 State Vs. Raghav Page No. 19 of 35 20 these witnesses have deposed that the accused had been staying with them during the relevant period. The PW6 also produced one sketch Ex. PX showing a disfigured face of a girl and stated that the same had been drawn by the accused, who used to threaten to disfigure the face of victim N by throwing acid on her face. He also stated that the words written therein, were in handwriting of accused, who wrote them to threaten the prosecutrix and her parents i.e. PW6 Gauri Shankar and PW3 Smt. Seema, not to disclose about the incident or to report about it to any one. Since the statement of PW3 Smt. Seema had already been recorded before PW Gauri Shankar was examined, before the court, Smt. Seema was recalled for further examination qua Ex. PX vide order 20.01.2014. During her said re examination, she deposed that Ex. PX was handed over to her by her son Bimal, who told her that he had found the same in the room of the accused and on seeing Ex. PX, PW3 stated that writing on the said sketch was of accused.
31. Thus, it appears from the deposition made by PW3 Smt. Seema, who is real elder sister of the accused, during her reexamination that the sketch Ex. PX was authored by none other than accused.
32. It is noteworthy that the PX i.e. sketch was put to the accused during his statement u/s 313 Cr.P.C and in response to the same, he answered as under : SC No. 127/13 State Vs. Raghav Page No. 20 of 35 21 "The sketch on Ex. PX and words written in Hindi on it are not in my handwriting. My name written in English on it was got written by me, by the Madam (IO) in the police station. My room used to remain open as my sister had told me to leave my room open, so that it can be cleaned. I do not know, what was kept there in my absence, even prior to my arrest in the present case."
33. In these facts and circumstances, in exercise of powers u/s 73 of the Indian Evidence Act, the accused was asked to write words "Mera naam Raghav, main Seema ka bhai hoon", on a separate sheet of paper. The writing on Ex. PX and the said sheet of paper, exhibited as Ex. PY, were compared and on comparison, it was apparent that the words written on Hindi on Ex. PX were written by the author of Ex. PY i.e. the accused. It was also observed that accused is a left hander and the alleged threats were written on the left side of the paper and the disfiguration of the face of the girl shown therein, was also from the left to right side (more on the left side). Thus, all the incriminating evidence including the testimony of the prosecutrix and the sketch and writing contained in Ex. PX point towards the culpability of the accused.
34. The only defence taken by the accused in the present case, is that he has been falsely implicated in the case by the father of the victim N, since SC No. 127/13 State Vs. Raghav Page No. 21 of 35 22 they were having business disputes. This defence, however, could not be proved by the accused by giving any specific instance or leading any evidence in his defence and thus, except for bald averment, nothing could be brought on record by the accused, which would enable the court to draw a conclusion that accused had been falsely implicated in the case due to business rivalery.
35. Ld. Amicus Curie for the accused has submitted that there is delay in lodging the FIR and same is fatal to the prosecution case and shows that case was registered against the accused after due consultation and deliberation. The submission made by learned Amicus curie cannot be sustained for simple reason that the accused in the present case is a close relative i.e. maternal uncle/mama of victim/prosecutrix M and her family and any finger pointed towards him resulted in four other pointing towards victim and her family. In this regard, it was held by Hon'ble Supreme Court in the case of Ramdas & Ors. vs. State of Maharashtra, (2007) 2 SCC 170, as under : "24. ........... In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose SC No. 127/13 State Vs. Raghav Page No. 22 of 35 23 the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."
SC No. 127/13 State Vs. Raghav Page No. 23 of 35 24
36. Ld. Counsel for the accused further submitted that there is inconsistency in the statements of the prosecution witness regarding the manner, in which Ex. PX was recovered and by whom and that prosecution has failed to explain why IO did not seize PX, on the same being handed over by parents of victim M, and/or her failure to produce the same before the court and getting the identity of author determined by obtaining opinion of handwriting expert. However, it is settled principal of law that benefit of faulty investigations conducted by the IO, cannot be given to the accused. In case of Karnel Singh Vs. State of MP (1995) 5 SCC 518 conviction of accused U/S 376 IPC was challenged before Hon'ble Supreme Court and one of the grounds of challenge was defective investigations. In the same case, the Investigating Officer of the case had not only failed to record statement of two material witnesses but had also drawn up a defective seizure memo. It was held in this case that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective.
37. Ld. Counsel for the accused further submitted that there arre many discrepancies and contradictions in the testimony of the prosecution witnesses, which make their testimony unbelievable and benefit of the same be given to the accused and he be acquitted. In this regard there is no hard SC No. 127/13 State Vs. Raghav Page No. 24 of 35 25 and fact rule that the conviction cannot be based on sole testimony of the victim / injured. The testimony of prosecutrix in the present case clearly bring out the traumatic experience she suffered at the hands of the accused. In case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence. It must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
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38. Lastly, it is contended that since there were no injuries on the person of prosecutrix, she was a consenting party to acts, if any, committed by accused. It is true that the MLC Ex. PW4/B of prosecutrix does not reflect any visible injuries, however, this by itself does not give rise to conclusion that prosecutrix was a consenting party. It has been held in the case of Tek Bahdur @ Tekender Nath vs. State (Govt. of NCT) of Delhi, reported as 2013 AD (Crl.) DHC 190 that : "....Absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case."
Even otherwise since in the instant case, prosecutrix has been proved to be a minor, aged about 14 years, when first of the reported incident took place and her consent for establishing physical relations with the accused is even otherwise, immaterial.
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39. The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved that accused, who was maternal uncle of the victim child M, teased her sexually and caught hold of her hand and pressed her breast and committed penetrative sexual assault upon the victim child M and after committing the said acts, he also criminal intimidated prosecutrix/victim child M, by threating to defame her and also threated to throw acid on her and to kill her and as such the prosecution has succeeded in proving the guilt of the accused Raghav on the face of record, beyond the reasonable doubts. Accordingly, I hold guilty accused Raghav for the offences u/s. 5 (l) and (m) of POCSO Act punishable u/s 6 of POCSO Act and also u/s 506 IPC and he is convicted accordingly.
Let the convict be heard on the point of sentence.
(Announced in the open Court ) (Illa Rawat)
(Today on 03.03.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 127/13) Unique ID case No. 02404R0235522013 State Vs. Raghav FIR No. : 224/13 U/s : 376/506 IPC and 6 of POCSO Act P.S. : Begum Pur State Vs. Raghav S/o Nem Kumar r/o Village & PO Roshnabad, PS Samsabad, Distt. Farukabad, UP, Delhi.
04.03.2014 ORDER ON THE POINT OF SENTENCE In the present case, the convict - Raghav has been convicted u/s 5
(l) and (m) of POCSO Act punishable u/s 6 of POCSO Act as well as 506 IPC.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Amicus Curie for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict, who is the real maternal uncle of the victim child M, misused the liberty of his relationship with victim child M and committed penetrative sexual assault upon her repeatedly. He also criminally intimated her and SC No. 127/13 State Vs. Raghav Page No. 28 of 35 29 threatened her to defame her and to throw acid on her and to kill her and that in view of the serious nature of offences, the convict does not deserve any leniency and she prays that maximum sentence prescribed under the law be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. Amicus Curie that the convict Raghav is a young man aged about 24years and is unmarried. He also submits that parents of convict have already expired and that he does not any close relative except his elder sister i.e. mother of the prosecutrix and there is none, who would come forward to take his responsibility. It is further submitted that convict belongs to a low strata of society and he is in custody for the last about eight months and he prays that a lenient view may be taken in this case and he be given a chance of rehabilitation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Amicus Curie and have carefully gone through the record of the case.
5. In the present case, the convict Raghav has been convicted for committing the offence punishable u/s- 5 (l) and (m) of POCSO Act punishable u/s 6 of POCSO Act as well as u/s 506 IPC. It stands proved that the convict, who is the real maternal uncle of the victim took advantage SC No. 127/13 State Vs. Raghav Page No. 29 of 35 30 of his relationship and access to the victim child M. He had been sexually harassing her since about three years prior to the registration of the FIR. Since the victim could not muster courage to report about his acts to her parents, he was emboldened to repeatedly sexually assault the victim child M. Since, the victim still hesitated to report the matter to her parents, in the winter season, prior to filing of the complaint, accused crossed all limits of decency and committed penetrative sexual assault upon his own real niece i.e. victim child M. Thereafter, he repeatedly, committed penetrative sexual assault upon her as and when, he found her alone in the house and to subjugate her, he threatened to defame her and her family, disfigure the face of the victim by throwing acid on her and by threatening to kill her. Though, ld. Counsel for the convict has prayed for a lenient view on the ground that convict is of young age, considering that the convict is the real maternal uncle (mama) of the victim child, who betrayed the trust of the victim as well as her family member, no such concession is called for in favour of convict. Normally, close relative like a maternal uncle (mama) is expected to protect the dignity and honour of his niece (bhanji) and this is a fundamental facet of human life. If the protector becomes the violator, the offence assumes a great degree of vulnerability. The sanctity of close blood relations, like in the present case, get polluted. The fact that convict betrayed the trust, which the victim M, his niece and her parents, reposed in him, over a continuous period of about three years prior to the reporting of the matter, makes his acts unpardonable. Rather, the acts of the convict can only be concluded to be SC No. 127/13 State Vs. Raghav Page No. 30 of 35 31 most cruel and gruesome as they have resulted in spoiling the entire life of an innocent young girl child, and thus, no leniency is called for in the matter. I hereby award the following sentence to convict Raghav :
(i) For offence u/s 6 of POCSO Act, the convict is sentenced to life imprisonment, along with a fine to the tune of Rs. 10,000/, in default of payment of fine, to further undergo simple imprisonment for six month.
(ii) For offence u/s 506 IPC, the convict is sentenced to rigorous imprisonment of three years along with a fine to the tune of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one month.
The sentences shall run concurrently.
Benefit u/s 428 Cr.PC be also given to the convict.
6. Coming now to the aspect of compensation to the victim, who is a minor girl, 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 against basic human rights as also the Fundamental Rights of Personal SC No. 127/13 State Vs. Raghav Page No. 31 of 35 32 Liberty and Life.
7. 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 care and attention of parents so SC No. 127/13 State Vs. Raghav Page No. 32 of 35 33 that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire self confidence 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 SC No. 127/13 State Vs. Raghav Page No. 33 of 35 34 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."
8. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 1,00,000/ (Rs. One lac only) to the victim child. The said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi. It is further directed that compensation amount, which is kept in secured form of FDR, shall not be released to any one, until the child attains the age of majority. In the event, the money is required for welfare of the child prior to child attaining the age of majority, the parents and/or guardian of the child may approach the court for released of the amount by moving appropriate application, in this regard. Consequently, the concerned bank, which issues the FDR, in the name of the child, shall not release the FDR amount to any one, till the child attains the age of majority, except by the order of this court. SC No. 127/13 State Vs. Raghav Page No. 34 of 35 35
9. A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi, Chief Secretary, GNCT of Delhi, Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi, for information and necessary action under intimation to this Court.
10. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 04.03.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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