Delhi District Court
State vs . Salim on 21 May, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 49/13)
Unique ID case No. 02404R0071362013
State Vs. Salim
FIR No. : 29/13
U/s : 376/506 IPC
& u/s. 3/ 4 of POCSO Act, 2012
P.S. : Sultanpuri
State Vs. Salim
S/o Din Mohd.,
R/o A4/173, Sultanpuri,
Delhi.
Permanent r/o : E137,
Shiv Vihar, Vikash Nagar,
P.S. Uttam Nagar.
Date of institution of case - 08.03.2013
Date on which, judgment has been reserved 16.05.2014
Date of pronouncement of judgment - 16.05.2014
JUDGMENT :
1 Briefly stated the case of the prosecution is that the accused SC No. 49/13 State Vs. Salim Page No. 1 of 25 2 Salim, who is stepfather of victim child R, aged about 14 years, committed penetrative sexual assault upon her, repeatedly, during the period from 12.08.2012 to 12.12.2012. He also criminally intimidated victim R not to disclose about the incident to anyone by threatening to kill her. The matter could be reported to the police only on 10.01.2013 when victim child R mustered courage to confide in her mother about the misdeeds of the accused. The mother of the victim child R took her to PS where victim R gave her complaint Ex.PW5/A pursuant to which FIR was registered against the accused under the Provisions of POCSO Act. During the course of investigations, IO got the victim R medically examined and the samples collected from the victim by the concerned doctor were also seized by the IO. The victim R also pointed out the place of incident to the IO who prepared the site plan. On 11.01.2013 accused Salim was arrested at the pointing out of the victim. He too was got medically examined and samples collected from him were seized by the IO. During the course of further investigations, IO collected the age proof of the victim child R, got her statement u/s.164 CrPC recorded and also produced the victim child R before the concerned CWC from where she was handed over in custody of her mother. The exhibits of the case were got sent to FSL Rohini. After completion of investigation, charge sheet was prepared and filed in the Court of learned MM through the SHO concerned.
2 After hearing arguments, charge for the offence under Section 5
(n) punishable under Section 6 of POSCO Act, 2012 was framed against the accused. An alternative charge for the offence under Section 376 IPC and a SC No. 49/13 State Vs. Salim Page No. 2 of 25 3 separate charge for the offence under Section 506 IPC was also framed against the accused. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 3 In order to prove its case, prosecution has examined 15 witnesses.
Prosecutrix and other public witnesses 4 The PW3, Smt. Zareena, is the mother of the victim child R and wife of accused Salim. She deposed that she was working as a maid servant in kothis and that she had five children including the victim child R, who was her first born child. She further deposed that the victim child R was born to her from her first husband Jumman from whom she was got divorced by her parents and that thereafter she got married to accused Salim about 15 years ago. The PW3 further deposed that she had two sons and two daughters from her wedlock with the accused and that when she came from the house of her first husband, the victim child was about two months old and was aged about 15 / 16 years at the time of incident. The PW3 then deposed that sometimes, at the end of year 2012, she saw that her daughter R used to remain quite and scared (sehmi - sehmi si) and that on 09.01.2013 she spoke to victim R and gently coaxed her to tell her reason for the same on which victim R told her that whenever she (PW3) was away from home for work, accused Salim used to rape her, on her return from the school in the afternoon. The PW3 further deposed that accused was SC No. 49/13 State Vs. Salim Page No. 3 of 25 4 working as a musician in Jagrans and used to remain at home during the day time while she (PW3) was away for work during day time. The PW3 stated that victim child R told her that accused had raped her many times between 12.08.2012 to 12.12.2012 and had further threatened her not to disclose about the same to anyone or he would kill her. The PW3 stated that on hearing these revelations from victim R, she gathered courage and went to lodge a report against the accused on 10.01.2013. The PW3 then deposed about the medical examination of victim R vide MLC Ex.PW3/A, preparation of site plan by the police at the instance of victim R and about the arrest of the accused on 11.01.2013 in the present case.
5 During her crossexamination, the PW3 was asked about the date of her marriage with the accused but she could not tell the same. She also stated that she had stayed with her first husband for about a year and that victim R was born at the residence of her parents. The PW3 denied that the victim was a real daughter of accused and not of her first husband Jumman. The PW3 further denied that accused had told her that victim R was meeting two boys or that due to this reason she (PW3) had a quarrel with accused. During her further crossexamination PW3 stated that 4 / 5 months prior to the incident, she and her children had stayed separately from the accused for about 3 / 4 days as quarrel had taken place between her and the accused and that thereafter she returned back to the house of accused. She also stated that the accused used to give her beatings every now and then. The PW3 denied that the quarrel between her and the accused had taken place on account of two boys whom victim used to meet. The PW3 SC No. 49/13 State Vs. Salim Page No. 4 of 25 5 was questioned regarding the age of her other children and stated that her eldest daughter N, born from accused, was aged about 14 years, and that thereafter her son A was born and was aged about 13 years and thereafter another son S aged about 10 years and daughter M aged about 7 years were born. During her further crossexamination, PW3 stated that at the time of incident, her children used to go to school at about 7:00 AM and returned back at about 2:00 PM and that thereafter her daughter N used to go to learn Mehandi in Craft Classes at about 3:00 PM and returned back at about 4:30 PM and that her son A used to go to tuition classes at about 3:00 PM and that he too returned back home at about 4:30 PM and that her other children S and M remained in the house to play around. The PW3 also stated that there are only one room in their house and that her son S and M never complained to her about accused having locked the victim R in the room with him. The PW3 denied that no incident as disclosed by victim R had taken place or that she had falsely implicated the accused in the present case as she did not want to live with him and that victim R had also given a false statement against the accused as he used to object to her relations with two boys.
6 The PW5, R, is the victim child. Her statement shall be discussed at length in the following paragraphs of the judgment. 7 The PW8, Sh. Kishori Lal, is the landlady of the premises where victim R was residing with her family. He deposed that accused Salim was residing on the second floor of his house since 10 months prior to the SC No. 49/13 State Vs. Salim Page No. 5 of 25 6 incident and that earlier, for many years, accused had been residing as a tenant in a house in the neighborhood of PW8 and hence no rent agreement was executed between him (PW8) and the accused. The PW8 further deposed that accused was working in an orchestra party and used to go for Jagrans, etc., during the night time and that he remained at home during the day time and that Smt. Zareena, wife of accused, was working as maid servant in different kothis. The PW8 further deposed that Smt. Zareena had vacated his house after the incident vide her letter Ex.PW8/A written to the SHO of PS Mangolpuri.
Formal witnesses 8 The PW1, Smt. Kumkum Kumar, Vice Principal, produced original record from Sarvodya Kanya Vidyalaya, UBlock, Mangolpuri, Delhi, wherein victim child R was admitted in sixth class and proved copy of admission form and SLC of feeder / previous school, submitted by Smt. Zareena, mother of the child, as Ex.PW1/A and Ex.PW1/B respectively ; photocopy of the relevant entry in the admission register as Ex.PW1/C and the original certificate of date of birth, issued by the School Principal as Ex.PW1/D. As per record produced by PW1, the date of birth of child R is 01.06.1998.
9 The PW6, Smt. Radha Bhardwaj, is a member of NGO DAV Educational and Welfare Society and deposed regarding the counseling of victim child and her mother.
SC No. 49/13 State Vs. Salim Page No. 6 of 25 7 10 The PW4, Sh. Dheeraj Mor, learned MM, had conducted the proceedings u/s.164 CrPC and proved the same as Ex.PW4/A to Ex.PW4/D i.e. the application filed by IO for recording of statement of victim child u/s.164 Cr.P.C as Ex.PW4/A ; statement of victim child u/s.164 CrPC as Ex.PW4/B ; the certificate given by PW4 as Ex.PW4/C and application for supply of copy of said statement, filed by IO, as Ex. PW4/D. Doctor witnesses 11 The PW9, Dr. Bina, was working as CMO on 10.01.2013 and she deposed that on that day, patient - prosecutrix was examined by her vide MLC Ex.PW3/A and that at the time of examination, no fresh external injury was visible and that she referred patient to gynecology department for further management and opinion.
12 The PW15, Dr. Archana, SR Gyne, had conducted the gynecological examination of the victim on 10.01.2013 vide MLC Ex.PW3/A. She further deposed that she had taken samples of the patient as detailed on the MLC and had further given her observation that "hymen ruptured, vagina vulua - no sign of injury".
13 As far as MLC of accused is concerned, no witness was summoned qua the same as accused admitted his own MLC bearing No. 736/13 vide his statement dated 24.09.2013.
SC No. 49/13 State Vs. Salim Page No. 7 of 25 8 Police witnesses 14 The PW13, HC Ram Avtar, was posted as Duty Officer at PS Sultan Puri at the relevant time. He deposed that on 10.01.2013 at about 02:40 PM, Smt. Zareena came to PS along with her daughter i.e. victim R and informed him that her daughter had been sexually assaulted by her second husband, who was stepfather of the child and that PW13 reduced the said information into writing vide DD No.25A. He produced the original DD register and proved the attested true copy of DD No.25A as Ex.PW13/A and photocopy of original DD No.25A as Ex.PW13/B. 15 The PW2, HC Anoop Kumar, was posted as duty officer at PS Sultan Puri at the relevant time. He proved the endorsement by him on the rukka as Ex. PW2/A and computerized copy of FIR as Ex. PW2/B. 16 The PW14, W/SI Rekha, is the investigating officer in the present case and she deposed regarding the investigations carried out by her and the documents prepared by her during the course of investigations. She deposed that on 10.01.2013, DD No.25 A PW13/A was entrusted to her and that she went to PS Sultan Puri where the victim child was present along with her mother and NGO Radha Bhardwaj. She then deposed that she made inquiry from the victim child, who told PW14 that her stepfather i.e accused Salim had been committing rape upon her since last August 2012 and that mother of victim child also told PW14 about this fact. She further SC No. 49/13 State Vs. Salim Page No. 8 of 25 9 deposed that NGO Radha Bhardwaj counseled the prosecutrix as well as her mother and that thereafter the victim gave a written complaint Ex.PW5/A in her own handwriting to PW14. She further deposed that she had taken the victim, along with her mother, and Lady constable Manju to SGM Hospital for her medical examination where the victim was medically examined vide her MLC Ex.PW3/A and that after her medical examination the concerned doctor had handed over the exhibits of the victim to PW14 which were seized by her vide seizure memo Ex.PW10/A and that thereafter she came back with the prosecutrix and her mother and lady constable Manju. She then deposed that she made her endorsement Ex.PW14/A and prepared rukka and handed it over to the duty officer for registration of FIR and that she recorded the statement of Radha Bhardwaj NGO U/s 161 CrPC and that she took the copy of FIR from duty officer and left the PS for the spot along with the prosecutrix, her mother and lady constable Manju where she prepared site plan Ex.PW5/B at the instance of prosecutrix and that she made efforts to search the accused but in vain. The PW14 further deposed that she recorded the supplementary statement of victim and her mother U/s 161 CrPC and they were discharged from there and that she and lady constable Manju came back at PS where she deposited the exhibits with the MHC(M) and recorded the statement of lady constable Manju u/s.161 CrPC. 17 The PW14 further deposed that after sometime she along with Ct. Dharamvir again went to the house of prosecutrix in search of accused Salim and left the PS at about 11:30 PM and that accused Salim was not found present at home and his wife Zareena told her (PW14) that he usually SC No. 49/13 State Vs. Salim Page No. 9 of 25 10 came late in the night and that she made inquiry from the neighbours, who also told PW14 that accused Salim generally came back late at night and that PW14 tried to examine the landlord of the prosecutrix but he was not available due to late night hours. The PW14 then deposed that at about 12:00 midnight when she was returning back from the house of the prosecutrix, she saw accused on pointing out by Smt. Zareena and that the accused was apprehended by Ct. Dharamvir. The PW14 then stated that she interrogated the accused and thereafter he was arrested vide his arrest memo Ex.PW5/C and was personally searched vide memo Ex.PW5/D and that the accused also made his disclosure statement vide Ex.PW11/A and that thereafter the accused pointed out the place of incident i.e. the bed lying in the room on which he had committed rape upon the victim and that PW14 prepared pointing out memo Ex.PW5/E at his instance. The PW14 further stated that the accused was taken to SGM Hospital for his medical examination and after his medical examination, the concerned doctor handed over the sealed exhibits and sample seal to her which were taken into possession by her vide seizure memo Ex.PW11/B and that thereafter the accused was brought to PS. 18 The PW14 further deposed that on 11.01.2013, she produced the accused before the concerned Court from where he was remanded to JC and that thereafter she moved an application Ex.PW14/C for recording the statement of prosecutrix u/s.164 CrPC and that after getting the statement of the prosecutrix recorded u/s.164 CrPC, she moved another application Ex.PW14/D for supply of the copy of said statement and that thereafter the SC No. 49/13 State Vs. Salim Page No. 10 of 25 11 victim was produced before CWC where she was given counseling on her application Ex.PW14/E and that the custody of victim was given to her mother vide order of CWC Ex.PW14/F. 19 The PW14 further deposed that on 16.01.2013, she sent the exhibits of the prosecutrix and accused to FSL Rohini through HC Giri Raj. The PW14 then deposed that on 30.01.2013, she collected the age proof of the prosecutrix from school. She further stated that on 12.02.2013, she recorded the statement of one Kishori Lal, the landlord of the house where accused was residing with his family and prosecutrix. She further stated that she collected the certificate u/s.65 B Indian Evidence Act Ex.PW14/G from Ct. Amit, computer operator.
20 During the crossexamination by learned amicus curie for accused, the PW14 stated that on 10.01.2013, victim along with her mother met her at about 3:30 - 4:00 PM in the PS and that the victim was taken to SGM Hospital for her medical examination at about 5:30 - 5:45 PM and that they came back from there at PS at about 8:15 - 8:30 PM and that PW14 prepared rukka and handed over the same to the duty officer at 9:00 PM. She admitted that the house of accused was situated in a thickly populated area and that the room of accused was situated on second floor and that the occupant of first floor were present inside their room at that time but she did not call them to join the investigation due to late night hours. The PW14 then stated that the other four children of Smt. Zareena and accused Salim were present in the room when she had gone to the house of victim for the SC No. 49/13 State Vs. Salim Page No. 11 of 25 12 first time but she did not record the statement of younger sisters of victim. She further stated that accused was not aware of their presence at his house and that is why he did not try to run away from there when he was apprehended and that accused was brought in his room and thereafter he was interrogated and that all the documents pertaining to arrest of accused were prepared by her in her handwriting at the spot itself and that they had reached SGM Hospital with accused at about 12:45 AM. 21 During her further crossexamination by learned amicus curie, the PW14 denied the suggestion that Smt. Zareena had told PW14 that her husband i.e. the accused Salim was not maintaining her and her children or that on this point only, PW14 called the accused from his house to PS in government vehicle i.e. gypsy through one Constable or that the accused was falsely implicated in the present case on the advice of Radha Bhardwaj, NGO. She further denied that accused being the step father of the prosecutrix objected to her talking to two boys angered by which prosecutrix took the extreme step of filing a false complaint against him. 22 The PW10, L/Ct. Manju, had got conducted the medical examination of the victim child vide MLC No.728/13 and proved the seizure memo of exhibits taken from the victim child by the concerned doctor as Ex.PW10/A. 23 The PW11 Ct. Dharamvir Singh, had joined the investigations of the present case with IO W/SI Rekha and deposed regarding handing over SC No. 49/13 State Vs. Salim Page No. 12 of 25 13 of the original rukka and copy of FIR to IO. He further deposed that he had taken the accused to SGM Hospital for his medical examination. He proved the disclosure statement of accused as Ex.PW11/A and the seizure memo of exhibits, taken by the concerned doctor, from accused during his medical examination as Ex.PW11/B. 24 The PW7, HC Giri Raj Prasad, had deposited the exhibits of the present case with FSL, Rohini, and proved the copy of RC and copy of acknowledgment receipt of FSL as Ex.PW7/A and Ex.PW7/B respectively. 25 The PW12, HC Ganga Sharan, was posted as MHCM at PS Sultanpuri at the relevant time. He produced the original register No.19 and proved the relevant entries regarding deposit of the case property and sending the same to FSL Rohini as Ex.PW12/A to Ex.PW12/D. 26 After closing of the prosecution case, statement of accused was recorded u/s.313 CrPC. Accused termed all the incriminating evidence against him to be incorrect. He deposed that he had been falsely implicated in this case by victim R and his wife Zareena. He further stated that he was working as a musician and used to beat drums in the jagran and that he remained away from house for weeks together in connection with his work. He also stated that victim R was his real daughter and that she was having friendly relations with two boys of Sultanpuri which was objected to by him (accused). He further stated that his wife Zareena had also deposed against him as she was under influence of one Deepa, who was separated from her SC No. 49/13 State Vs. Salim Page No. 13 of 25 14 husband. He then stated that on one occasion, he had caught victim R with her all friends and had scolded her and that thereafter he did not permit her to go out of the house due to which a quarrel had taken place between him and his wife Zareena and he was got falsely implicated in the present case. The accused did not lead any evidence in his defence despite opportunity. 27 Learned Additional PP has contended that from the statements of PW5 victim child R and PW3, Smt. Zareena, mother of the victim child, prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has prayed that accused be convicted for the charged offences.
28 On the other hand, learned amicus curie for accused has contended that accused is innocent and has been falsely implicated in the present case. It is then contended that there has been inordinate delay in lodging of the FIR since the last alleged incident of penetrative sexual assault on the victim child R, as per the prosecution, had taken place on 12.12.2012 despite which the victim filed her complaint only on 10.01.2013. It is further contended that victim child is a real daughter of the accused and that the whole story has been concocted by the victim R, who was angry with the accused for objecting to her relationship with two boys at Sultanpuri. It is further contended that Smt. Zareena, wife of the accused, also supported the victim child R as her mind had been poisoned by one Deepa, her friend. Learned Amicus Curie has also contended that there are material contradictions and discrepancies in the statement of various prosecution SC No. 49/13 State Vs. Salim Page No. 14 of 25 15 witnesses and has thus prayed that the accused be acquitted of the charged offence.
29 I have heard the arguments put forward by ld. Addl. PP as well as learned amicus curie for the accused 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.
30 In the present case, accused Salim, who is stepfather of victim child R, aged about 14 years, is alleged to have committed penetrative sexual assault upon her, repeatedly, during the period from 12.08.2012 to 12.12.2012 and also criminally intimidated victim R not to disclose about the incident to anyone by threatening to kill her.
31 As far as the age of the victim child R is concerned, it is not disputed that the victim child is a minor aged about 14 years. Even otherwise prosecution has examined PW1 Smt. Kumkum Kumar, who produced record of the school wherein the victim child R was admitted in sixth class on the basis of admission form Ex.PW1/A, submitted by her mother, and school leaving certificate Ex.PW1/B issued by previous school. As per record produced by PW1, the date of birth of victim child M is 01.06.1998. The date of commission of offence in the present case during the period from 12.08.2012 to 12.12.2012. Thus the prosecution has succeeded in proving that the victim was just about 14 years old at the time of incident.
SC No. 49/13 State Vs. Salim Page No. 15 of 25 16 32 The next question which arises for consideration is whether accused had committed repeated penetrative sexual assault upon the victim child R, his stepdaughter, during the period between 12.08.2012 to 12.12.2012.
33 The FIR in the present case was registered on 10.01.2013 when victim R went to PS Sultanpuri with her mother PW3 Zareena and gave her complaint Ex.PW5/A wherein she stated that she was residing at Mangolpuri with her mother Zareena, stepfather Salim and other brothers and sister. She further stated that her stepfather i.e. accused Salim had raped her on 12.08.2012, when she was alone in the house, and that thereafter he had threatened her that in case she told about the incident to anyone he would kill her. She alleged that after the said incident also accused had raped her 3 / 4 times and that on 12.12.2012 also when she was alone in the house, in the afternoon, accused raped her. The victim R stated that she could gather courage to confide in her mother, about the acts of the accused, only now and prayed that appropriate action be taken against him. 34 The victim R was produced before the learned MM for her statement u/s.164 CrPC on 11.01.2013, wherein her statement Ex.PW4/B was recorded. In the said statement, the victim reiterated that the accused, her stepfather had raped her in August, 2012, when she was alone in the house. She further clarified that accused had forcibly removed her clothes and raped her and had threatened her that in case she told about the SC No. 49/13 State Vs. Salim Page No. 16 of 25 17 incident to anyone, he would kill her and that due to said threat, she got scared and did not tell about it to anyone. The victim then stated that thereafter accused forcibly raped her 3 / 4 times and that on 12.12.2012 when she was alone in the house, accused again raped her. She further stated that she was much harassed by the continued torture by the accused and one day she gathered courage and narrated everything to her mother. She again prayed that appropriate action be taken against the accused. 35 The prosecutrix was summoned to depose before the Court and was examined as PW5. In her statement before the Court, the victim R reiterated the contents of her complaint Ex.PW5/A. She deposed as under : "On 12.08.2012, I was present alone at home.
Accused Saleem present in the Court today was present at home and was watching T.V. All my step brothers and sisters were away from home. I was doing household work outside the room where accused was sitting and watching T.V. He called me inside the room and bolted the door from inside and he did 'jabardasti' with me. He committed rape upon me. I could not raise alarm as accused had threatened me to kill me and my mother. Thereafter also he committed rape upon me 34 times as and when he got opportunity. He lastly committed rape SC No. 49/13 State Vs. Salim Page No. 17 of 25 18 upon me on 12.12.2012. Since the accused threatened me to kill my mother, I did not tell her about the incident and moreover, health of my mother was not good at that time and due to the said reason I alongwith my younger sister Nagma used to do the household work in kothis in place of my mother. I told about the fact of rape to my mother on 09.01.2013.
On that day, I alongwith my sister came from kothis after finishing the work there and found that my father came in drunken condition and started beating my mother. He was scolding my mother that why she was not going to her work and was pretending to be ill. In fact the accused was not getting opportunity to commit rape upon me as I was going for the work of my mother in her place and mother was also at home during those days. I told my mother about the acts of the accused who went downstairs and told about this fact to the landlord. On 10.01.2013, my mother took me to the police station where I filed my complaint Ex.PW5/A which is in my handwriting and bears my signature at point A."
36 The victim R further deposed about her medical examination at SGM Hospital and stated that site plan Ex.PW5/B was prepared at her instance by the police. She also deposed about the arrest of the accused on SC No. 49/13 State Vs. Salim Page No. 18 of 25 19 the night intervening 10 / 11.01.2013 and proved her signatures on his arrest memo Ex.PW5/C, personal search memo Ex.PW5/D and the pointing out memo Ex.PW5/E. 37 Certain Court questions were also asked from the victim R to elicit further details regarding the conduct of the accused qua the other younger sisters of the victim R. In response to the Court question, the victim R stated that accused had not sexually abused any of her younger sisters since they were his real daughters and he loved them more than her. 38 Further Court question was asked from victim R as to whether she had discussed this matter with her younger sisters and in response to the same victim R stated that her younger sisters knew about the sexual assault on her (victim R) by the accused but they did not disclose any such conduct of the accused qua them (younger sisters of the victim R). 39 During her crossexamination, the victim child R stated that on 12.08.2012 all her stepbrothers and sisters were away from home while she was doing household work and that accused was watching television at that time and had called her inside the room, bolted the door and then did "zabardasti" with her. The victim was questioned as to the school timings followed by her and her brothers and sisters. She deposed that they all went to school at about 7:00 AM and returned back at about 1:00 PM and that in the month of August and September, PW5 had been going for tuitionclasses from 3:00 PM to 5 PM and that her sister N and brother A also used to go for SC No. 49/13 State Vs. Salim Page No. 19 of 25 20 their respective tuition classes while her brother S and sister M remained at home. As regards her mother victim R stated that her mother used to go for work at 6:00 AM and returned back at about 8 / 9 PM and that the household work was done by her (PW5) along with her sister N. 40 During her further crossexamination, PW5 stated that on 12.08.2012 she had not been allowed to go for tuition and only her brother A had gone for tuition while her sister N had gone to market to do some purchasing. The PW5 denied that she was the real daughter of accused and was treated with love and affection by him. She also denied that she was friendly with two boys of Sultanpuri which was objected to by the accused, who even had a talk about it with Smt. Zareena, mother of the PW5, due to which a quarrel took place between them. The victim volunteered to state that she was not even allowed to broom or clean outside the house by the accused. The PW5 termed it correct that a quarrel had taken place between the accused and her mother in the month of October after which her mother had shifted to some other house with all the children including PW5. The PW5 denied that reason for said quarrel between the accused and her mother was friendship of PW5 with two boys from Sultanpuri.
41 When all the statements of victim R i.e. her complaint Ex.PW5/A, her statement u/s.164 CrPC Ex.PW4/B and her deposition before the Court as PW5 are perused, it is seen that the victim child has been consistent in her narration and has deposed with clarity about the SC No. 49/13 State Vs. Salim Page No. 20 of 25 21 manner in which accused Salim, her stepfather, had committed repeated penetrative sexual assault upon her from 12.08.2012 to 12.12.2012. She has also explained that due to the threats given to her by the accused, she could not disclose about his acts to anyone and it was only on 09.01.2013 that she could summon sufficient courage to confide in her mother about the trauma suffered by her at the hands of the accused.
42 It is noteworthy that after the registration of the present case the victim was got medically examined at SGM Hospital on 10.01.2013 and was examined by PW15 Dr. Archana, SR Gynecology, who prepared her MLC Ex.PW3/A and gave specific observation that the hymen of the patient was ruptured even though there was no sign of injury on her private parts. Considering that the last episode of penetrative sexual assault by the accused is alleged to have taken place on 12.12.2012 whereas the victim was examined on 10.01.2013, there is every possibility of injuries being amiss on the private parts of the victim R, however, there is no explanation how the hymen of a 16 year old minor girl i.e. victim child R was found ruptured. It is noteworthy that only suggestions which have come in the defence is that the victim R was having friendly relations with two boys from Sultanpuri area, there is no allegation that victim R had indulged in any physical relations with any of the said boys and thus it was for the accused to explain or to elicit from crossexamination of the prosecution witnesses how the findings of 'hymen ruptured' came to be on the MLC of the victim. 43 The learned amicus curie for the accused has argued extensively SC No. 49/13 State Vs. Salim Page No. 21 of 25 22 on the delay in lodging of the FIR by the victim R and her mother. In this regard it is seen that the victim was a step child of accused and Smt. Zareena, mother of victim R, and there were four other younger siblings of victim R to be looked after which coupled with threats extended to the victim R by the accused acted as a sufficient deterrent for her to not to mention about the incident to anyone. Even otherwise the delay in lodging of the FIR is not of such grave consequences in cases like present one where the aggressor is a close family member. 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 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 SC No. 49/13 State Vs. Salim Page No. 22 of 25 23 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."
44 Another contention raised by learned amicus curie is that accused has been falsely implicated in the case by the mother of the victim child R, under tutoring by one Deepa, and by victim R, due to objections raised by accused to her friendship with two boys from Sultanpuri. It is contended that a few months prior to the filing of the complaint, there had been a quarrel between the accused and PW3 Smt. Zareena on the issue of SC No. 49/13 State Vs. Salim Page No. 23 of 25 24 victim R's friendship with the said boys and that at that time PW3 Smt. Zareena had stayed separately from the accused for 4 / 5 days and the present case is also outcome of the said quarrel. It is seen that questions regarding quarrel between accused and Smt. Zareena were specifically put to Smt. Zareena during her crossexamination as PW3 but she has specifically denied that friendship of victim R with two boys was reason for her quarrel with the accused 4 / 5 months prior to the incident. She has in fact stated that accused used to give her beatings every now and then. Further though the accused has claimed that prosecutrix is his own real daughter, it is difficult to comprehend why victim R as well as her mother i.e. PW3 Smt. Zareena would dispute the paternity of the victim R and deny that accused is the real father of victim R. Even considering that there had been a quarrel between accused and PW3 Zareena on one occasion, nothing has been brought on record which would lead to conclusion that the accused and PW3 Smt. Zareena had been having a turbulent and disturbed matrimonial life. No previous instance of quarrel and / or dispute between the accused and PW3 Smt. Zareena has been mentioned or referred to which could have ultimately prompted PW3 Smt. Zareena to revolt against her husband and to testify against him and also tutor PW5 victim R to depose against him by altogether denying his paternity. Though it has been contended that PW3 Smt. Zareena had acted out of her love and affection for victim R and could not stand allegation of her friendship with other boys, it is against the normal course of human conduct for a parent to standby one child only, over and above the interest and wellbeing of four other minor children whose liability would have and is now required to be shouldered by PW3 Smt. Zareena all SC No. 49/13 State Vs. Salim Page No. 24 of 25 25 by herself. Rather it would have been a normal course for mother, in a similar situation, to have stood by her tainted husband rather than her daughter specially when she had four other younger daughters and sons. Thus the contention raised by the learned amicus curie that accused has been falsely implicated by PW3 Smt. Zareena and PW5 victim R is not elicit any confidence.
45 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved the guilt of the accused Salim on record, beyond the reasonable doubt. Accordingly, I hold guilty accused Salim for the offences punishable u/s 5(n) punishable u/s.6 of POCSO Act, 2012 and u/s. 506 IPC and he is convicted accordingly.
(Announced in the open Court ) (Illa Rawat)
(Today on 16.05.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
SC No. 49/13 State Vs. Salim Page No. 25 of 25
26
FIR No.29/13
PS Sultanpuri
State Vs. Salim
16.05.2014
Present: Ld. Additional PP for the State.
Accused produced from JC with counsel Ms. Sadhna Bhatia, learned amicus curie.
Arguments heard.
Vide separate judgment announced today in the open Court, accused Salim has been convicted u/s. 5 (n) punishable u/s. 6 of POCSO Act and u/s. 506 IPC.
Be listed for arguments on the point of sentence on 19.05.2014.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 16.05.2014 19.05.2014 Present: Ld. Additional PP for the State.
Accused produced from JC with counsel Ms. Sadhna Bhatia, learned amicus curie.
Arguments on the point of sentence heard.
Be listed for orders on the point of sentence on 21.05.2014.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 19.05.2014 SC No. 49/13 State Vs. Salim Page No. 26 of 25 27 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 49/13) Unique ID case No. 02404R0071362013 State Vs. Salim FIR No. : 29/13 U/s : 376/506 IPC & u/s. 3/ 4 of POCSO Act, 2012 P.S. : Sultanpuri State Vs. Salim S/o Din Mohd., R/o A4/173, Sultanpuri, Delhi.
Permanent r/o : E137, Shiv Vihar, Vikash Nagar, P.S. Uttam Nagar.
21.05.2014 Present : Ld. Addl. PP for the State.
Convict produced from J.C., with Ld. Amicus Curie. ORDER ON THE POINT OF SENTENCE In the present case, the convict - Salim has been convicted u/s 5 (n) punishable u/s.6 of POCSO Act, 2012 and u/s 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. SC No. 49/13 State Vs. Salim Page No. 27 of 25 28
2. It has been submitted by the Ld. Addl. PP that in the present case, convict raped his step daughter R, a minor girl aged about 14 years, and in view of the serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, learned Amicus Curie for the convict submits that the convict Salim is aged about 35 years and is illiterate and that he is having wife and five minor children i.e. two sons and three daughters and all his children are school going. She has further stated that convict's parents have already expired and that he is the only bread earner of his family. It is also submitted that convict belongs to a low strata of society and has been in custody since last about one and half years. It is lastly submitted that convict was doing the work as musician and is not having previous criminal antecedents and she 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 as well as Ld. Amicus Curiae and have carefully gone through the record of the case.
5. In the present case, the convict Salim has been convicted for committing the offence punishable u/s - 5 (n) punishable u/s.6 of POCSO Act, 2012 and u/s. 506 IPC. It is relevant to mention here that the victim SC No. 49/13 State Vs. Salim Page No. 28 of 25 29 child in the present case is a minor dependent step daughter of the convict and she is the eldest child in the family. She was aged about 14 years at the time of the incident. The convict, who was the step father of the victim child R, was required to discharge his responsibility towards the victim child and her siblings and he ought to have lived upto the faith and trust reposed in him by his children including the victim child R. In a similar situation, the Hon'ble Supreme Court in case of State Vs. Asha Ram, report in 2006 Crl.L.J. 139, has held that : "There can never be more grave and heinous crime than the father being charged of raping his own daughter. He not only delicts the law but it is a betrayal of trust. The father is the fortress and refuge of his daughter in whom the daughter trusts. Charged of raping his own daughter under his refuge and fortress is worst than the gamekeeper becoming a poacher and treasury guard becoming a robber."
6. In the above mentioned case of Asha Ram, the father Asha Ram was convicted for having raped his daughter by the trial court, but was acquitted by the Hon'ble High Court. His acquittal by Hon'ble High Court was challenged before Hon'ble Supreme Court, which set aside acquittal of accused with following observation on the quantum of punishment : ".........Here is the case where the crime committed by the respondent not only delicts the law but it has a deleterious effect on the civilized society. Gravity of the crime has to be SC No. 49/13 State Vs. Salim Page No. 29 of 25 30 necessarily assessed from the nature of crime. A crime may be grave but the nature of the crime may not be so grave. Similarly, a crime may not be so grave but the nature of the crime may be very grave. Ordinarily, the offence of rape is grave by its nature. Moreso, when the perpetrator of the crime is the father against his own daughter it is more graver and the rarest of rare, which warrants a strong deterrent judicial hand. Even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of hapless woman. This is more so when the perpetrator of the grave crime is the father of the victim girl. Father is a fortress, refuge and the trustee of his daughter. By betraying the trust and taking undue advantage of trust reposed in him by the daughter, serving food at odd hours at 12.30 a.m., he ravished the chastity of his daughter, jeopardized her future prospect of getting married, enjoying marital and conjugal life, has been totally devastated. Not only that, she carries an indelible social stigma on her head and deathless shame as long as she lives."
7. In the present case, the testimony of the victim child R clearly brings out her plight and agony. It is noteworthy that due to the acts of the convict, the victim child has suffered irreparable loss and mental agony. The victim was only 2 months old, when her mother, PW3 Smt. Zareena, left the SC No. 49/13 State Vs. Salim Page No. 30 of 25 31 house of her first husband. Later on, she married the convict and has two sons and two daughters from her wedlock with the convict. Though, the victim R is not the real daughter of the convict, considering that convict married Smt. Zareena, knowing that she had responsibility of R, it was expected that convict would bring her up as his real daughter and would show same respect for her dignity, wellbeing and chastity as he would have done for his real daughters. To the contrary, the convict sexually abused his step daughter, repeatedly, and also criminally intimated her. The deplorable and unthinkable acts of convict do not call for any leniency and I hereby sentence him as under :
(i) For offence u/s 5 (n) of POCSO Act punishable u/s 6 of POCSO Act, the convict is sentenced to ten years rigorous imprisonment, along with a fine to the tune of Rs. 5,000/, in default of payment of fine, to further undergo simple imprisonment for six months.
(ii) For offence u/s 506 IPC the convict is sentenced to one year rigorous imprisonment, along with a fine to the tune of Rs. 2,000/, 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.
8. 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 SC No. 49/13 State Vs. Salim Page No. 31 of 25 32 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 Liberty and Life.
9. 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 SC No. 49/13 State Vs. Salim Page No. 32 of 25 33 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 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 SC No. 49/13 State Vs. Salim Page No. 33 of 25 34 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."
10. 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. It is further directed that the said amount be deposited in the form of a FDR in the name of the victim child R, to be paid to her on attaining the age of majority/18 years, after which, 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 guardian of the child may approach the court for release 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. 49/13 State Vs. Salim Page No. 34 of 25 35
11. 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 Women and Child Development, GNCT of Delhi, for information and necessary action under intimation to this Court. Another copy of this order be also sent to the Distt. Child Protection UnitI, Sewa Kutir Complex, Kingsway Camp, Delhi for information, coordination and filing of report of compliance.
12. 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 21.05.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
SC No. 49/13 State Vs. Salim Page No. 35 of 25