Delhi District Court
State vs Gautam on 8 December, 2014
SC No. 84/2/13
FIR No.126/13
PS. Chhawla
State VS.Gautam
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE01, DWARKA COURTS, NEW DELHI
In the matter of :
SC No. : 84/02/2013
FIR No. : 126/13
Police : Chhawla
Station
Under : u/s 12 of The
Section Protection of Children
from Sexual Offences
Act, 2012 and u/s 323
Indian Penal Code,
1860.
State
Versus
Gautam
S/o Jag Soran
R/o H.No.E48, Qutub Vihar
PhaseI, Goyla Dairy
New Delhi. ... Accused
Fresh charge : 30.09.2013
sheet
received by
way of
assignment.
SC NO: 84/2/13 1/23
SC No. 84/2/13
FIR No.126/13
PS. Chhawla
State VS.Gautam
Reserved for : 08.12.2014
judgment on
Judgment : 08.12.2014
announced
on
JUDGMENT
1. The prosecution story in brief is that on 05.05.2013 on receipt of DD No.31A, IO ASI Paras Kumar alongwith Ct.Ramveer and W/Ct Manju had gone to House No.E71, Qutub Vihar, Phase1, Goyala Dairy, Chhawla where they met child victim alongwith her father. [The name of child victim and her father is being withheld to protect their identity U/s 33(7) of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act).] The Child victim made a complaint against accused.
2. In her complaint Ex.PW1/A, Child victim had stated that on 05.05.2013, her friend came to her house to meet her and at about 8.30 p.m. when she was coming back after leaving her friend to her house then near Mayank SC NO: 84/2/13 2/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam Property, one boy namely Gautam, to whom she knew before, started passing obscene comments and misbehaving with her. Child victim had stated that when she tried to make him understand then accused slapped her twice and used abusive language.
3. On the basis of complaint of child victim, FIR NO.126/13 PS Chhawla was registered and matter was taken up for investigation. During the course of investigation, statement of child victim U/s 164 Cr.P.C was recorded.
4. After completion of investigation, accused was charge sheeted for the offence u/s 8 and 12 POCSO Act and u/s 506 IPC. The chargesheet was directly filed before this court. After taking cognizance, accused was summoned and copy of chargesheet was supplied to him. Thereafter, after hearing the arguments and perusing the material on record, accused was charged for the offence u/s 12 of POCSO Act and u/s 323 IPC to which he pleaded not guilty and claimed trial. Thereafter, the matter was posted for prosecution evidence.
SC NO: 84/2/13 3/23SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam
5. Prosecution has examined in all 07 witnesses.
6. PW1 Child Victim has deposed on oath that on 05.05.2013, her friend Preeti had come to her house and at about 8.30p.m., she had accompanied her friend Preeti to some distance from her house and thereafter, when she was returning to her house and reached near the office of Mayank Properties, she found accused Gautam standing with some of his friends. PW1 deposed that she knew accused Gautam as he happened to reside in the same locality. PW1 deposed that accused Gautam passed comments as follows: "AAJ ISKO UTHALANGEY AUR PAAS KAY NAALEY PAR LEKAR JAYENGAY". PW1 deposed that she ignored the comment of accused Gautam. Thereafter accused Gautam caught hold of her hands, to which she commented that whether he is not having sister at his house. PW1 deposed that thereafter accused Gautam slapped her twice or thrice and also threatened her to abduct her. PW1 deposed that she became scared of the threats of accused and came back to her house. PW1 deposed that she narrated the whole incident to her mother initially and thereafter to her SC NO: 84/2/13 4/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam father, who advised her to call at 181 number. Thereafter, she called at 181. PW1 deposed that her statement was recorded vide Ex PW1/A. PW1 deposed that thereafter she took the police official to the place of incident. PW1 proved her statement u/s 164 Cr.P.C vide Ex.PW1/B. PW1 Child victim correctly identified the accused.
7. PW2 HC Ranjit Singh was the duty officer and he has proved the registration of FIR No. 126/13 vide Ex PW2/A.
8. PW3 Lady constable Manju Kumari has deposed on oath that on 05.05.2013, she was posted at P.S Chhawla at women help desk. PW3 deposed that on that day, at about 11.00p.m, she alongwith IO ASI Paras, Ct Rambir reached at house no. E71, Qutub Vihar PhaseI Goyla Dairy, Najafgarh, New Delhi, where child victim and her father met them. PW3 deposed that ASI Paras recorded the statement of child victim and prepared rukka and handed over the same to Ct Rambir for getting the case registered. PW3 deposed that after registration of case Ct.Rambir came back at the spot alongwith copy of FIR SC NO: 84/2/13 5/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam and original rukka and handed over the same to ASI Paras. PW3 further deposed that from there child victim led them to the house of accused Gautam and at that time, accused was present at his house and at the in stance of child victim, accused was arrested. PW3 proved the arrest of accused vide memo Ex.Pw3/A. PW3 de posed that thereafter accused was taken to hospital for his medical examination. PW3 correctly identified the accused. PW3 deposed that accused was arrested at about 1.001.15 a.m on 06.05.2013 and the information of arrest was given to the father of accused. PW3 denied that she had not joined the investigation and therefore, she do not remember much about the proceedings.
9. PW4 Ms.Swati Katiyar, Ld. MM, Patiala House Courts has proved the recording of statement of child victim on 06.05.2013 vide Ex.PW1/B.
10.PW5 Damyanti Gharia, Vice Principal from Govt. Girls Sr.Sec.School has proved the relevant entry in admission register with regard to date of birth of child victim vide SC NO: 84/2/13 6/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam Ex.PW5/A. PW5 also proved the school leaving certifi cate of class Vth of child vitim vide Ex.PW5/B.
11.PW6 Constable Ram Veer has deposed on oath that on 05.05.2013, he was on emergency duty from 08:00 pm to 08:00 am. PW 6 deposed on the same lines as deposed to by PW3 Lady Ct.Manju Kumari. PW6 deposed that he af ter registration of case, returned to the house of com plainant and handed over the same to ASI Paras. PW6 deposed that accused was taken to R.T.R.M. Hospital for his medical examination.
12.In his cross examination by counsel for accused, PW6 deposed that he did not know whether IO had recorded the statement on spot of any body else except the child victim. PW6 deposed that when accused was arrested 56 persons were present there but he can not tell their relation with the accused. PW6 deposed that he along with IO and three more police officials took the accused to the hospital for his medical examination. PW6 denied that he is deposing falsely on the behest of IO. PW6 de nied that as he had never been the part of investigation, SC NO: 84/2/13 7/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam therefore, he did not know or remember many things stated to be carried out in his presence. PW6 denied that no document was prepared in his presence but he had put his signature on the behest of the IO wherever he re quired.
13.PW7 ASI Paras Kumar is the investigating officer of this case. PW7 has deposed on oath that on 05.05.2013, he was on emergency duty from 8.00 p.m. to 8.00 a.m. PW7 has deposed that at around 11.00 p.m. on receipt of DD no. 31A Ex. PW7/X, he along with Ct. Rambeer and W/Ct. Manju reached at the spot i.e. near Mayank Property at BhaiBhai Road, Kutub Vihar, Nazafgarh. Where the child victim along with her father met them. PW7 deposed that he made inquiries from child victim and recorded her statement Ex. PW1/A. PW7 deposed that he prepared rukka Ex. Pw7/A and handed over to Ct. Rambeer for getting the case registered, who after registration of the case returned to the spot along with copy of FIR and original rukka. PW7 deposed that he prepared the site plan Ex. Pw7/B at the instance of complainant. PW7 deposed that at the instance of child SC NO: 84/2/13 8/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam victim accused Gautam was arrested from his house. PW7 further deposed that on 06.05.2013, statement of child victim was recorded by the Ld. MM. PW7 deposed that during investigation, he recorded the statement of witnesses and collected the documents from the school of child victim with regard to the age of child victim. PW7 deposed that on completion of the investigation, he prepared the chargesheet and filed in the court.
14.In his cross examination by counsel for accused, PW7 deposed that after preparing the site plan, it was not altered. PW7 deposed that he did not record the statement of father of child victim at any point of time. PW7 voluntarily deposed that the statement of child victim was recorded in the presence of her father. PW7 deposed that the distance between the spot and house of the accused is about 400500ft. PW7 denied that he did not investigate the matter fairly and properly or that all the documents were prepared while sitting in the police station.
15.After closure of prosecution evidence, entire SC NO: 84/2/13 9/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam incriminating evidence was put to accused u/s 313 Cr.P.C. Accused stated that it is a false case. Accused stated that he was falsely implicated in this case and on the date of incident, he was talking to his friend Amar while standing in the street in front of Mayank properties and at that point of time child victim was passing by and she misunderstood that they were talking about her. Thereafter she abused them and left and got the false case registered against him. Accused further stated that he would like to lead defence evidence.
16.In his defence evidence, DW1 Sh.Miraj has deposed on oath that on 05.05.2013 at about 8.008.15 PM, he alongwith Gautam and Amar @ Murga were standing near property shop on road and they were talking to each other and Gautam was discussing with him regarding one madam. DW1 deposed that meanwhile, one girl who's name he did not remember passed by them and started shouting as she thought that they were taunting her. DW1 deposed that thereafter, he went to his home and he did not know what happened thereafter.
SC NO: 84/2/13 10/23SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam
17.In his cross examination, DW1 admitted that they were standing near Mayank property Bhai Bhai Road, Qutub Vihar. DW1 deposed that he knew accused since his childhood. DW1 deposed that he never disclosed the above facts to police officials at any point of time. DW1 deposed that since the date of incidence Amar left Delhi and never returned. DW1 denied that he also ran away from the spot to save himself from the clutches of law. DW1 denied that girl(Victim) was returning to her house at about 8.30 PM. DW1 denied that accused Gautam has commented "AAJ ISKO UTHA LENGE AUR PASS KE NAALE PAR LE KAR JAYENGE".
18.After the closure of defence evidence, matter was posted for final arguments.
19.I have heard the ld. Addl.PP for state and counsel for accused Sh.Avnish Rana and have perused the material available on record.
20.In the present case, accused has been charged of SC NO: 84/2/13 11/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam sexually harassing the child victim by making comments and by using abusive language to her on 05.05.2013 at about 8.20 p.m. near the office of Mayank Property within the jurisdiction of PS Chhawla under section 12 of POCSO Act and secondly, for having caused simple injury by slapping her threefour times under section 323 IPC when she objected to the sexual harassment being done by accused.
21.The onus to prove the aforesaid charges was upon the prosecution. The prosecution has examined the material witnesses and victim of this case i.e. child victim as PW1.
22.PW1 has deposed on oath that on 05.05.2013, her friend Preeti had come to her house and at about 8.30 p.m., she had accompanied Preeti to some distance from her house and thereafter, when she was returning, accused and his friends met her near the office of Mayank Property and accused commented "AAJ ISKO UTHALANGEY AUR PAAS KAY NAALEY PAR LEKAR JAYENGAY". When child victim ignored the said comment, accused caught hold of her hand and thereafter, slapped the child SC NO: 84/2/13 12/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam victim twice or thrice and also threatened her.
23.Child victim also proved the giving of her statement to the police Ex.PW1/A and her statement given before the Ld.Magistrate under section 164 Cr.P.C. Ex.PW1/B.
24.In the police statement as well as in the statement given to the Ld.Magistrate, child victim had stated that accused had slapped her and had abused her and in the statement given before the Ld.Magistrate, she has also stated that accused had commented "Aaj Isse Uthava Lenge".
25.Further, there is presumption under section 30 of the POCSO Act that the aforesaid act of sexual harassment was done by accused with sexual intent. It was for the accused to have rebutted the said presumption under section 30 of the POCSO Act but no cogent evidence has been led on record by the accused to rebut the said presumption.
26.In the present case, it is proved on record that accused SC NO: 84/2/13 13/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam and his friends were standing near the office of Mayank Property on the date and time of incident. Further, evidence of Child victim that accused had made comments upon her "AAJ ISKO UTHALANGEY AUR PAAS KAY NAALEY PAR LEKAR JAYENGAY" and had used abusive language to her and had slapped her twothree times, remained consistent from the initial complaint given to the police Ex.PW1/A, before the Ld.Magistrate Ex.PW1/B and in her deposition before this court.
27.Further, as discussed herein above, nothing material was brought out in her cross examination which could create a doubt in her testimony. Hence, prosecution has been able to prove its case beyond reasonable doubt that accused had sexually harassed the child victim by passing comments "AAJ ISKO UTHALANGEY AUR PAAS KAY NAALEY PAR LEKAR JAYENGAY" and by using abusive language to her. The very comment of " AAJ ISKO UTHALANGEY AUR PAAS KAY NAALEY PAR LEKAR JAYENGAY"
carries with it sexual intent and the act of passing aforementioned comments alongwith abuses, falls within the definition of "Sexual Harassment" as defined SC NO: 84/2/13 14/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam by Section 11 (i) of POCSO Act which provides as follows: " 11. Sexual harassment. A person is said to commit sexual harassment upon a child when such person with sexual intent,
(i) Utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child.
28.Further, it is also proved in the light of evidence of PW1 Child victim that she suffered simple hurt u/s 323 IPC on account of 23 slaps given by the accused.
29.Ld.defence counsel has highlighted various inconsistencies in the evidence of child victim to show that she is not a reliable witness. It was submitted during the course of arguments that although alleged incident is of 8.30 p.m. but there is a considerable delay in reporting the matter to the police at around 11.50 p.m. and delay has not been properly explained by the SC NO: 84/2/13 15/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam prosecution. It was further submitted that although child victim in her cross examination had stated that initially she had told about the incident to her mother and thereafter to her father and on his advice, she had called at 181 number but in the initial complaint given to the police Ex.PW1/A and in the statement made before the Ld.Magistrate Ex.PW1/B, such facts were not mentioned and, therefore, delay has not been properly explained. It was further submitted that even the comment of "AAJ ISKO UTHALANGEY AUR PAAS KAY NAALEY PAR LEKAR JAYENGAY" was not mentioned in the police statement Ex.PW1/A as well as in the statement before Ld.Magistrate Ex.PW1/B. Further, child victim also admitted that she had not stated in her statement before the police Ex.PW1/A and in her statement before the Ld.Magistrate Ex.PW1/B that accused had caught hold of her hands. Therefore, her deposition before this court that accused had caught hold of her hands is material improvement and makes her testimony unreliable and untrustworthy.
30.Lastly, it was submitted that although child victim had SC NO: 84/2/13 16/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam deposed before this court that accused was standing with his friends but no such statement was given by child victim in the police statement Ex.PW1/A.
31.Ld.defence counsel further submitted that in the light of aforesaid contradictions and improvements made by child victim, her evidence cannot be believed and accordingly, made a prayer to acquit the accused.
32.The first contention raised by defence counsel regarding there being a delay in recording the FIR, is not acceptable as although incident is of 8.30 p.m. and the same was reported to the police at around 11.50 p.m. but child victim has explained in her evidence that initially she had stated the entire facts to her mother and thereafter to her father, who had advised her to call at 181 number and thereafter, in her cross examination, she had further explained that initially complaint was not made as she was waiting for her father to return home.
33.The deposition of child victim that they have made a SC NO: 84/2/13 17/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam complaint to the police after her father returned home, is duly corroborated by the statement given by her before the Ld.Magistrate Ex.PW1/B which was recorded on 06.05.2013 i.e. immediately after the incident which took place in the night of 05.05.2013. That the child victim had called Women Help Line No.181 is further proved by DD no.31A Ex.PW7/X. Although it is true that in the initial complaint given to the police Ex.PW1/A, aforementioned facts which caused delay in reporting the matter to the police, were not mentioned but in the opinion of this court that is not fatal to the prosecution case as at the earliest available opportunity, child victim had narrated the facts before Ld.Magistrate under section 164 Cr.P.C. on the next day. Further, father is generally considered to be the head of the family and all decisions are taken in consent with him. Therefore, since father of child victim was not at home at the time of the incident, therefore, child victim discussing the alleged incident with her father and thereafter reporting the matter at Women Help Line No.181 explains the delay and no malafide can be attributed to the child victim. Therefore, on this ground, prosecution story is not SC NO: 84/2/13 18/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam required to be disbelieved.
34.The second point highlighted by defence counsel regarding the material improvement made by child victim is the fact that no such comments i.e. "AAJ ISKO UTHALANGEY AUR PAAS KAY NAALEY PAR LEKAR JAYENGAY"
were stated by the child victim in the police complaint Ex.PW1/A or in the statement before the Ld.Magistrate under section 164 Cr.P.C. Ex.PW1/B.
35.Although it is true that in the police complaint Ex.PW1/A, the nature of comment is not specifically mentioned by child victim but she has stated that accused had passed lewd comments and was misbehaving with her. It is a settled principle of law that FIR need not be an encyclopedia of all the facts and brief allegations are sufficient which can be later on explained by the complainant.
36.In the present case, nature of lewd comments passed by accused were explained by the child victim at the earliest available opportunity i.e.on the next day while giving her SC NO: 84/2/13 19/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam statement under section 164 Cr.P.C.before the Ld.Magistrate Ex.PW1/B. In the said statement, child victim had stated that accused commented that "Aaj Isse Uthava Lenge". Therefore, deposition made by child victim that "AAJ ISKO UTHALANGEY AUR PAAS KAY NAALEY PAR LEKAR JAYENGAY" is not required to be disbelieved even though there is slight improvement in the said comment which was not in the statement given before the Ld.Magistrate Ex.PW1/B but said improvement is not material one and can be easily ignored.
37.The third improvement highlighted by defence counsel was with regard to accused standing with his friends.
38.Although it is true that in the police statement Ex.PW1/A, child victim did not state that when accused had misbehaved with her, he was standing with his friends but in her statement under section 164 Cr.P.C.before Ld.Magistrate Ex.PW1/B, she had stated that accused was standing with his friends when he had misbehaved with her.
SC NO: 84/2/13 20/23SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam
39.The factum of accused standing with his friends near the office of Mayank Property stands duly proved in this case by accused giving suggestion to PW1 child victim that he was standing there with his friends and by the admission of accused in his statement under section 313 Cr.P.C. wherein he has admitted that on the date of incident, he was standing near Mayank Property with his friend Amar.
40.Therefore, although in the initial complaint given to the police Ex.PW1/A, the factum of accused standing with his friends was not mentioned but by admission of accused himself under section 313 Cr.P.C. and by the statement of child victim under section 164 Cr.P.C.before the Ld.Magistrate Ex.PW1/B, this fact stands proved and deposition made by child victim before this court that accused was standing with his friends, cannot be doubted or can be termed as material improvement. Accordingly, the contention of defence counsel is rejected.
41.The defence of accused was that on the date of incident, SC NO: 84/2/13 21/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam he was standing with his friends and they were talking amongst themselves which was wrongly interpreted by child victim as they were commenting upon her and accordingly, she had made a false complaint to the police.
42.In order to prove its defence, accused had examined his friend i.e. DW1 Miraj. DW1 Miraj claimed to have witnessed the incident on 05.05.2013 at about 8.008.15 p.m.when he was standing with accused and he has deposed that no such comments were made by accused to the child victim and she had wrongly interpreted the discussion which the accused was having with his friends.
43.The presence of DW1 Miraj on the date of incident near the office of Mayank Property is demolished by accused himself as while being examined under section 313 Cr.P.C., accused had stated that on the date of incident, he was talking to his friend Amar while standing near the office of Mayank Property. Accused did not state that he was standing with his friend Miraj on the date of SC NO: 84/2/13 22/23 SC No. 84/2/13 FIR No.126/13 PS. Chhawla State VS.Gautam incident. Therefore, statement of accused under section 313 Cr.P.C.itself proves that DW1 Miraj was a planted witness who had no concern with the incident in question. Further, non examination of his friend Amar by accused makes this court draw an adverse inference under section 114(g) of the Indian Evidence Act, 1872 against accused that in case accused had examined Amar in this case, his testimony would not have been favourable to his defence. Therefore, defence of accused in this case, has not been proved and is required to be disbelieved.
44.Accordingly, accused is convicted for the offence under section 12 read with Section 11(i) of POCSO Act. Accused is also convicted for the offence under section 323 IPC for slapping the child victim twice or thrice.
Announced in the open court (Vikas Dhull) Dated: 08.12.2014 ASJ01/Dwarka Courts New Delhi SC NO: 84/2/13 23/23