Delhi High Court
Sunder vs State on 8 August, 2016
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 26th July, 2016
Decided on: 8th August, 2016
+ CRL.A. 789/2015 and Crl.M.A. No. 9763/2015
SUNDER ..... Appellant
Represented by: Mr. S.K. Sethi, Advocate.
versus
STATE ..... Respondent
Represented by: Mr. Kewal Singh Ahuja, APP
for the State with SI Bhagat
Singh, PS Ashok Vihar.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. The instant appeal has been filed by Sunder challenging the impugned judgment dated 23rd April, 2015 whereby the appellant has been convicted for the offence punishable under Section 8 of Protection of Children from Sexual Offences Act, 2012 (in short „POCSO Act‟) in FIR No. 146/2013 registered at PS Ashok Vihar and the order on sentence dated 1st May, 2015 directing him to undergo rigorous imprisonment for a period of three years and to pay a fine of `1,000/- in default to undergo simple imprisonment for a period of three months for the offence punishable under Section 8 of POCSO Act.
2. The prosecution case is that on 17th May, 2013 around 6:13 PM, DD No. 23A was received with respect to eve teasing at Jailorwala Bagh. The aforesaid DD entry was handed over to SI Ram Kumar PW-11. He along CRL.A. 789/2015 Page 1 of 8 with Ct Amit PW-5 reached the spot and found Smt. Nisha PW-6 along with two girls i.e. victim children „M‟ and „N‟. PW-11 brought them to the police station and handed over the victim children and the lady to W/SI Rajesh PW-10. PW-10 recorded the statement of „N‟ PW-3 aged 12 years who stated that her mother passed away after she was born and she used to work in the houses. She stayed with Nisha PW-6 who had a 11 years old daughter, the victim child „M‟ PW-7. PW-3 further stated that when she along with PW-7 used to come back in the evening after work, one dark complexioned boy aged 25 years use to follow them (peeche lag jata tha) since past three days. PW-3 further stated that on 15th May, 2013 around 5:00 P.M., the appellant held her hand near the dustbin, pulled her and asked her to sit in the car. PW-3 bit his hand and escaped from there and informed Nisha about it. PW-3 further stated that on the same day at night, when „M‟ was sleeping on the roof, the appellant fondled with his hands her chest/breast, thighs and removed her pants/leggings till the thighs, on which PW-7 screamed and the appellant left. PW-3 further stated that on 16th May, 2013 when she along with PW-7 had gone to call the bangle seller, the appellant came and started making obscene gestures and said "mere naam ki chudiyan pehen le". PW-6 Nisha saw all this and called back both the children. PW-3 stated that on 17th May, 2013, in the evening when she along with PW-6 Nisha and PW-7 were returning back from work, the appellant was standing near Rahul‟s shop. Both the victim children pointed out towards the appellant who tried to run away. However, the appellant was apprehended by the public persons and police was called. On the basis of the statement of PW-3, FIR Ex. PW-2/A was registered for the offence under Section 7 punishable under Section 8 of POCSO Act and Section 354 IPC.
CRL.A. 789/2015 Page 2 of 83. Learned counsel for the appellant contends that there is an unexplained delay in recording of the FIR. There was previous animosity between PW-6 Nisha and the sister of the appellant, Guddu as a result of which the appellant has been falsely implicated in the present case. Further, it was contended that there were a number of public persons present but no one was cited. It was also pointed out that the learned Trial Court failed to appreciate that the appellant was arrested from Jailer wala Bagh and not from the spot. Furthermore, the appellant had produced two witnesses but the evidence of the defence witnesses was not appreciated by the Learned Trial Court. There was no reference to the dustbin incident in the statement of victim child „M‟ recorded under Section 164 Cr. P. C. Learned counsel for the appellant further contends that there was no previous complaint against the appellant and there being material contradictions and improvements in the testimony of the three witnesses, he is entitled to be acquitted.
4. Learned APP for the State on the other hand contends that there are no inconsistencies or contradictions in the statements of the witnesses. Furthermore, witnesses have not been confronted with their previous statements under Section 164 Cr.P.C. There are material contradictions in the statement of DW-1, Shailesh Kumar and DW-2, Suraj. DW-2 who is the brother of the appellant stated in his cross-examination that there was no enmity with PW-6, Nisha and Guddu, their sister. Hence the defence of the appellant was falsified by his own witness.
5. Victim Child „N‟ who was aged 12 years at the time of the incident was examined as PW-3. After satisfying that PW-3 was capable of understanding the questions and give rational answers, the learned CRL.A. 789/2015 Page 3 of 8 Magistrate recorded the statement of the victim child „N‟. She deposed in sync with her earlier statement made before the police.
6. Smt. Nisha, mother of victim child „M‟, who was examined as PW-6, corroborated the testimony of PW-3. She stated that „M‟ and „N‟ had complained her that one boy of dark complexion used to follow them and once he eve teased „N‟ in the area of Jailorwala Bagh, near the public dustbin. She further stated that she gave 3-4 slaps to the appellant when he was apprehended by the public persons. During her cross examination, she stated that the appellant was not known to her prior to the incident. PW-6 further stated that she saw the appellant running from the roof after outraging the modesty of her daughter at night. PW-6 also stated that she heard the words "mere naam ki chudiyan pehen le" when the appellant came after seeing the victim children near the bangle seller. She deposed that she did not protest on the conduct of the appellant at that time because he was under the influence of alcohol and she called back the victim children to avoid further interaction with the appellant. PW-6 denied the suggestion that family of the appellant was her earlier neighbour and she also denied to have known any girl by the name of Munni.
7. Victim Child „M‟ who was aged 11 years at the time of the incident was examined as PW-7. PW-7 also corroborated the version of PW-3. She also stated that the appellant fondled over her chest/breast and thighs and pulled down her black coloured leggings upto the knees. She further stated that when she started shouting, the appellant gagged her mouth.
8. PW-1 Suraj Gupta, Head Teacher, Primary School, Muradpur, Block Safipur, District Unnao, Uttar Pradesh stated that as per the records the date of birth of „N‟ was "4th May, 2000". PW-4 Sh. Hari Om, Assistant Teacher, CRL.A. 789/2015 Page 4 of 8 MC Primary Model School, Ashok Vihar, New Delhi stated that as per the affidavit filed by the father of „M‟, the date of birth was "10th April, 2003". Thus the prosecutrix proved that both the victims were minor at the time of incidents i.e. „N‟ was aged 13 years and „M‟ was aged 10 years.
9. Learned counsel for the appellant contends that there are contradictions in the testimony of the three witnesses. It would be appropriate to note the testimony of each of the witness with regard to the three incidents i.e. at the dustbin, while buying bangles and at the roof top. The chart illustrating the statements of the three witnesses for the three incidents is as under:
PW'S 1st INCIDENT 2nd INCIDENT 3RD INCIDENT
Statem (DUSTBIN) (CHUDIWALA) (ROOFTOP)
ent
PW3 Pg 3: "Ek baar sham Pg 3: "Ek bar hum kaam Pg 2: "Ek baar mere chacha
Victim ke samay, isne karke aa rahe the toh apane jhuggi ki chaat banwa
N (Accused) mujhe sadak per ye (Accused) rahe the toh hum log neeche
kuredan ke paas roka khada hua tha. Wahan wali chaat par so rahe the toh
aur mera haath pakar per ek chudiwala bhi ye aadmi (Accused) raat mein
liya aur mujhe aaya hua tha. Meri mausi aagya aur Manju ko per se
khinchte hue bola ke ne hum se kaha ke jao khichne laga aur uske saath
chal gadi mein baith. chuddi dekh lo. Hum badtamizi karne laga. Manju
Maine uske haath per chudiwala ko bulane gaye zor se chilai to wahe chaud kar
kaat liya aur main to ye (Accused) aadmi bhag gaya."
apna haath chudwa humare samane khada ho Pg 4: Q: "Apne doctor ko tab
kar bhag gayi aur gaya aur galat -galat kuch bataya?"
ghar pahunch kar ishare karne laga aur A: "Maine kaha tha ki usne
maine sari baat bola ke mere naam ki (Accused) meri chhati aur
Nisha aunty ko chudiyaan pehen lo. jhango (breast & thighs) par
batai." Mausi ne hume dekh liya haath phera tha aur meri pant
aur usse bhi dekh liya aur utarne ki koshish ki."
hume bula liya." Pg 6: "Jab Accused ne Manju ke
per (leg) pakar kar chhat per
khicha tha tab kya aap ne
accused ko dekha tha?"
A: "Nahi. Manju ne hi mujhe
bataya tha ki kala-kala admi
CRL.A. 789/2015 Page 5 of 8
tha."
PW6 Pg 3: The incident of Pg 1: One day a Bangle Pg 2: In the same night, I was
(Mothe eve teasing near seller came to our galli sleeping with the victim children
r of public dustbin and I asked both the on the roof as some construction
PW7/ (Kudedan) was told victim children to call the work was going on in my house.
Victim to me by my daughter said bangle seller. The The Accused came on the roof
M) as victim child N was Accused was present near and pulled the pant of my
scared. the said bangle seller and daughter i.e Victim M and he
he made obscene gestures touched her entire body. My
towards Victim N and daughter raised alarm and due to
asked her to wear bangles which we got up but Accused
in his name (mere naam had run away by jumping from
ki chudiyaan pehen le). I the iron stairs of the other
called both the girls back jhuggi.
at home. Pg 3: I myself saw the Accused
Pg 3: I had heard the running from the roof after
words 'mere naam ki outraging the modesty of my
chudiyaan pehen le' with daughter in the night. It was
my own ears and 12:00 midnight at that time. I
thereafter I called both was sleeping at that time.
the victim children back Pg 4: The roof of my jhuggi is
to the house. After seeing not attached with roof of any
both the girls near the other jhuggi. On the night of the
bangle seller, Accused incident, since the repair work
also came there. I| did not was going on in the room of my protest on the conduct of jhuggi at the instance of the the Accused at that time landlord, we were asked to sleep as he was under the on the roof of some other jhuggi influence of alcohol and I of the landlord.
only called back both the
victim children to the
house to avoid further
interaction with the
Accused.
The bangle seller came in
the gali in the evening at
about 5:00pm on
16.05.13.
PW7 Pg 2: "Pichle saal Pg 2: "Durse din Pg 3: "Ussi din raat me 12 baje
Victim 15th May ko, mein aur chudiwali gali me aayi yeh ladka hamari chat par aaya
M Neetu kaam karke thi. Mummy ne bola ja tha. Hamare landlord uncle
ghar wapas ja rahe usse bula lao. Mein aur apne ghar mein kaam karwa
CRL.A. 789/2015 Page 6 of 8
the. Kudedan ke paas Neetu chudiwali ko rahe the toh unhone hame dusre
yeh jo ladka betha bulane gaye. Yeh jo ladka makaan ki chaat par sone ko
hai, ne Neetu ka hai samne aakar khada bola tha. Hum waha so rahe the.
haath pakad liya. ho gaya aur Neetu se Yeh ladka chhat phand (jumped
Usne Neetu ko bola bola "mere naam ki over) kar aa gaya. Usne hamare
chal mere saath gadi chudi pehen le." Usne yaha par hath phera (the witness
mein. Phir Neetu ne ishare karke bhi yeh bola. has made a gesture of fondling
uske haath par kaat Phir hum ghar aa gaye. with hand over her chest/ breast
liya aur hum bhag Chudiwali ghar aa gayi & thighs). Maine kale rang ki
aaye." thi aur who chala gaya legging pehni thi, uss ladke
tha." (Accused) ne meri legging pakad
kar mere ghutno (Knees) se
niche khich li. Mein apni legging
pakadkar chilane lagi. Uss ladke
ne mere muah daab diya tha
(Accused gagged me). Jab woh
chala gaya tab mein chilayi.
Mummy uth gayi thi aur unhone
usko piche se jaate hue dekha"
10. As noted in the chart there is no contradiction at all nor any improvement with regard to the testimony qua incident at the dustbin or while buying bangles. The defence of the appellant in his statement under Section 313 Cr.P.C. is that he has been falsely implicated in this case due to the previous enmity between his sister Guddu and Nisha PW-6. Appellant examined defence witnesses including his brother Suraj as DW-2. Suraj deposed that he had no knowledge that appellant used to follow the two girls or that we went to the roof of their house. He further deposed that there was no enmity between his brother and the said lady i.e. Nisha and the two children. He volunteered that once a quarrel took place between Nisha and his cousin sister, when his brother abused Nisha due to which they were having inimical relations. He could not tell the date, month or year when this quarrel took place and stated that this was when his cousin was living in the jhuggis which had been demolished about 5/6 years back. DW-2 also CRL.A. 789/2015 Page 7 of 8 admitted that he had asked the lady why she was beating Sunder, to which she replied that „yeh idhar udhar ladkiyo ko dekhta hai'. Thus the defence of the appellant of false implication due to enmity has not been probablised.
11. Considering the evidence on record, I find no infirmity in the conviction of the appellant for offence punishable under Section 8 of the POCSO Act and the order on sentence. Appeal and the application are accordingly dismissed.
12. Copy of this order be sent to Superintendent Central Jail Tihar for updation of the Jail record.
13. TCR be returned.
(MUKTA GUPTA) JUDGE AUGUST 08, 2016 'vn' CRL.A. 789/2015 Page 8 of 8