Delhi District Court
State vs Allaudeen on 5 May, 2018
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No. 53123/16)
State V/s Allaudeen
FIR No. : 185/16
U/s : 376 IPC
& Sec. 4/8 of POCSO Act
P.S. : Ashok Vihar
State V/s Allaudeen
S/o of Kabir @ Gopal
R/o Jhuggie C306,
CSA Colony, Opp. B67, WPIA,
Delhi.
Date of institution of case : 29.04.2016
Date of arguments : 03.05.2018
Date of pronouncement of judgment : 05.05.2018
J U D G M E N T :
1.The facts of the case as borne out from the record are that on 29.03.2016, after entrustment of DD no. 26A, SI Rama Saroha and Ct. Sonika Page 1 of 22 reached at the informed place i.e. CSA Colony, where ASI Raj Kumar, Ct. Satpal, both the child victims P and A, mother of child victim P and father of the child victim A were found present and father of child victim A produced the accused before her. SI Rama Saroha got both the child victims counseled through NGO counselor, got them medically examined at BJRM Hospital and also got accused medically examined. Thereafter, she made inquiry from the complainant Poonam and recorded her statement, wherein she stated that on that day, at about 7.00 pm, her neighbour Vidhya Sagar caught the accused redhanded while removing the underwear of his daughter i.e. child victim A and she also went there and on inquiry, child victim A told her that 8/10 days prior, accused took her to his house, got his children out of the jhuggie, removed her underwear as well as his clothes and lie upon her and touched his penis to her vagina, then ejaculated and when she raised alarm, accused left her and threatened that in case, she disclosed about the acts of accused to anyone, he will kill her by cutting her neck. Child victim A also disclosed that accused had also committed wrong act with the child victim P. Thereafter she made inquiry from her daughter/child victim P, who also told that accused took her to his house a day before yesterday and asked her to remove her underwear, for which, she refused and then, accused slapped her, pushed her, removed her underwear forcibly and also removed his pant and lie upon her and touched his penis to her vagina and then ejaculated and thereafter, he threatened her that in case, she disclosed about the acts of accused to anyone, he will kill her by cutting her neck and because of the fear of the accused, child victim A and P did Page 2 of 22 not disclose about his acts to any one. She requested for legal action against the accused.
On the basis of statement of the complainant as well as MLC, present case FIR was registered. Site plan of the place of incident was prepared. Accused was arrested and his personal search was conducted. The potency test of the accused got conducted at RML Hospital. Statement of both the child victims U/s 164 CrPC were got recorded. Documents regarding the date of birth of child victims were collected and thereafter, on completion of investigation, charge sheet was prepared and filed before this court.
2. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. Arguments on the point of charge were heard and on 11.07.2016, charges u/s 5 (m) of POCSO Act 2012 (hereinafter referred to as the "Act"), punishable u/s 6 of Act and u/s 506 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 13 witnesses, whereafter the PE in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the father of the child victim A in order to wipe him out from the locality. Accused did not lead any evidence in his defence.
Page 3 of 224. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Sh. Subham Asri, ld. Amicus Curie, for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
5. PW1, Ms. Meenu Kaushik, ld. M.M, in her evidence proved statements of the mother of child victim P and child victims A and P as Ex. PW1/B, Ex. PW 1/D and Ex. PW1/F respectively, recorded by her under Section 164 Cr.P.C on 30.03.2016.
There is no cross examination of this witness.
6. PW2 SI Prem Pal, was posted as duty officer in PS Ashok Vihar at the relevant time and he proved the computerized copy of FIR as Ex. PW2/A, endorsement made by him on rukka as Ex. PW2/B and certificate u/s 65B of Evidence Act as Ex. PW2/C. There is no material cross examination of this witness.
7. PW3, Sh. Mukesh Kumar, teacher, MC Primary School, Wazir Pur Industrial Area, CBlock, Delhi, has produced on record the documents with regard to the date of birth of child victims P and A, maintained by the school in due course, inter alia stating the dates of birth of child victims P and A to be 01.04.2006 and 20.03.2010 respectively. He has proved the relevant documents Page 4 of 22 in this regard as Ex. PW3/A to Ex. PW3/G. There is no cross examination of this witness.
8. PW4 Dr. Ritesh Kumar Singh, Sr. S.R, Dr. RML Hospital, Delhi, had examined the accused vide MLC Ex. PW4/A and had given report regarding his potency and deposed regarding the same.
9. PW5 Dr. Deepak Kumar, Medical Officer, BJRM Hospital, proved the MLCs of the child victim P and A as Ex. PW5/A and Ex. PW5/B respectively by identifying the handwriting and signatures of Dr. Vishal Soni, who had examined the victims under his supervision and deposed regarding the same.
There is no cross examination of this witness.
10. PW6 Dr. Vishal Soni, J.R. BJRM Hospital, examined both the child victims initially and proved their MLCs as Ex. PW5/A and Ex. PW5/B and deposed regarding the same.
There is no cross examination of this witness.
11. Child victim A in the present case was examined as PW7 and the relevant portion of her testimony is as under : "Q. Beta batao kya hua tha?
Ans. Ek din main shaam ko 6 baje gali mai khel rahi thi P....
Page 5 of 22ke sath to Allaudeen ne mera hath pakad liya aur mujhe apni jhuggi mai le gaye.
Q. Beta Allaudeen uncle kon hain?
Ans Wo meri gali mai rehte hain.
Q. Beta Allaudeen uncle ne jhuggi mai kya kiya?
Ans. Unhone apne kapda uttar diya aur mera kapda bhi uttar diya aur apna susu mere susu mai daal diya.. Main zor se chilai to mere papa aa gaye. Unhone Allaudeen ko mara, fir police ko bula liya police ne Allaudeen ko bahut mara.
Q. Allaudeen uncle ne aur kya kiya tha?
Ans. Wo mujhe chocolate de kar lalchaa raha tha.Ek din Alaudeen uncle meri deh per laut raha tha to maine unhe maar kar bhaga diya.
Q. Beta police ko kaise pata laga?
Ans. Police mai mere papa phone kare the.
Q. Beta aur kya hua tha?
Ans. Police Allaudeen uncle ko maar kar le gaye the.
Q. Beta police aapko kahin le kar gai thi?
Ans. Haan, apni taraf le kar gai thi ( the witness is referring to PS).
Q. Police aur aapko kahan le kar gai thi?
Ans. Hospital le kar gai thi.
Q. Beta kya aap pehle bhi court main aaye the?
Page 6 of 22
Ans. Haan, aunty ke kamre mai aai thi aur unhone mujh se sab kuchh puchha tha."
PW7 duly identified the accused in the court.
During crossexamination by ld. Amicus Curie, the PW7 stated as under : "Allaudeen uncle mere ghar se thodi doori per hi rehte hai ( the witness has pointed out the distance as the entire length of this court room i.e. about 20 ft). Ye kehna galat hai ki main Allaudeen uncle ke bachhon ke sath khelti thi. Ye kehna sahi hai ki Allaudeen uncle ne meri peshab karne wai jaghna main apni peshab karne wali cheez daali thi jis din police wahan aai thi. Ye hi baat main Judge aunty ko bhi bata di thi.
Poonam aunty achhi hai. Main Poonam aunty ke ghar jaati hu. Ye kehna sahi hai ki jaisa Poonam aunty kehti hai mai waise maanti hu. Ye kehna sahi hai ki Allaudeen ek bahut ganda aadmi hai. Vol. Wo saari ladkiyon ko chhedta hai. Ye kehna sahi hai ki mere mummy papa ne keh rakkha hai ki koi bhi Allaudeen ke ghar ke aaspaas nahi jayega. Ye kehna galat hai ki mohalle ke sab log Allaudeen ko uske gharmohalle se nikalwana chahate the. Ye kehna sahi hai ki meri mummy aur Allaudeen ki patni aapas mai kafi pehle se baat nahi karte. Ye Page 7 of 22 kehna sahi hai ki mai Allaudeen ke bachhon se baat nahi karti thi. Ye kehna sahi hai ki Poonam aunty bhi Allaudeen aur uski patni se baat nahi karti thi. Ye bhi kehna sahi hai ki mere papa aur P... ke papa bhi unse baat karna pasand nahi karte the. Ye kehna sahi hai ki mai aur meri saheliyan Aallaudeen ke ghar ke aaspas khelne bhi nahi jaate the. Vol. Mera bhai khelta kudta kabhi kabhi uske ghar ki taraf chala jaata tha. Ye kehna sahi hai ki hamara mohalle mai jaane ka raasta alag tha aur Allaudeen ka alag. Ye kehna sahi hai ki meri mummy ne keh rakkha hai ki kisi jaane ya pehchane aadmi se khane ki koi cheez nahi leni aur aajtak maine isi baat ka palan kiya. Ye kehna sahi hai ki main kisi jaan pehchan wale ke sath ghumne ke liye bhi nahi jaati. Ye kehna sahi hai ki Allaudeen uncle ke yaha ajeeb log aate hai jaalidaar topi wale. Ye kehna sahi hai ki meri mummy un ajeeb ajeeb logon se ghrina karti hai.
Ye kehna galat hai kyonki accused ko hamare mohalle mai koi pasand nahi karta isiliye unpe ye jhootha ilzam lagaya hai aur maine jhootha case dala hai."
12. Child victim P in the present case was examined as PW8 and the relevant portion of her testimony is as under : "Q. Beta Allaudeen uncle kon hain?
Page 8 of 22Ans. Wo mere ghar ke paas hi rehte hai.
Q. Beta kya hua?
Ans. Ek din main dopahar mai main apne ghar mai so rahi thi. Sote sote mujhe bahut zor se toilet laga aur mai toilet karne bahar gai to Allaudeen uncle ne mujhe zabardasti pakad kar apni jhuggi mai le gai Q Beta fir kya hua?
Ans. Usne apne kapda utara aur meri chaddi khol di aur mere upper let gaya aur apna toilet mere toilet se sata raha tha. Mujhe thoda thoda dard hua tha.
Q. Beta aur kya hua?
Ans. Usne mujhe bola tha ki agar tu ye baat kisi ko batayegi to tujhe jaan se maar dunga. Fir maine ye baat apni saheli A... ko batai aur usne ye baat meri mummy ko batai.
Q. Beta fir kya hua?
Ans. Fir A.... ke papa ne phone karke police ko bula liya. A...... ke papa ne us uncle ke bahut maara tha aur policewale us uncle ko bitha kar gadi mai le gaye the.
Q. Beta kya aap pehle bhi court mai kabhi apna bayan dene aai thi?
Ans. Haan, ek mam ke saamne aai thi.
Q. Beta policewale aapko kahin aur bhi le kar gaye the?
Page 9 of 22Ans. Haan, hospital mai le kar gaye the.
Q. Beta kya aap aaj Allaudeen ko pehchan sakte ho?
Ans. Haan. (She has duly identified the accused in the court)"
During crossexamination by ld. Amicus Curie, the PW8 stated as under : " Mera ghar aur A.... ka ghar bilkul sath sath sata hua hai. Ye kehna sahi hai ki mera ghar gali ke ek kone per hai aur Allaudeen ka ghar saamne wali line mai kone per hai. Jo toilet aur bathroom jisme hum log jaate hai wo Allaudeen ke ghar ki taraf nahi hai wo hamare ghar ki taraf hai. Ye bhi kehna sahi hai ki hamare ghar ke sath hi main road per jaane ke liye sadak jaa rahi hai. Ye kehna sahi hai ki jaisa mummy mujhe aur A.... ko samjhati hai hum waisa karte hai.
Ye kehna sahi hai ki sab mujhe Shatrughan Sinha ki ladki ke naam se jaante hain. Ye kehna sahi hai ki gali mai jab bhi bahar niklo koi na koi aunty nazar aa hi jaati hai. Ye kehna sahi hai ki gali mai itni bheed rehti hai ki hum log chhupan chupai bhi nahi kehl pate hai.. Ye kehna sahi hai ki agar koi kisi ke bachhe ke thappad bhi maar de to bheed ikathi ho jaati hai aur jhagda ho jaata hai. Ye bhi kehna sahi hai ki agar koi pati apni patni ya bachhe ko kheech kar andar le jaa raha ho to Page 10 of 22 bhi mohalle ke log ikathe ho jaate hai. Ye bhi kehna sahi hai ki agar mere papa bhi mujhe ghar ke andar hath pakad kar khelte hue le jaate the tab bhi aaspados ki auntiyan aa jaati thi ki kya kar rahe ho aur bachhon ko khelne do .
Ye bhi kehna sahi hai ki main ghar ke saamne hi khelti thi aur kabhi bhi gali ke dusre kone mai nahi jaati thi. Ye kehna sahi hai ki mai accused ke ghar ke aage naa to khelti thi aur naa hi jaati thi. Ye bhi kehna sahi hai ki main aur A.... bahut shararti kisam ke bachhe hai aur raaste mai aate hue ye tarika bana rahe the ki aaj to accused ka band bajayenge. Ye bhi kehna sahi hai ki mujhe bahar gawahi se pehle A.... ne kaha ki maine to accused ko dara diya ab tu dara kar aa aur maine bhi use kaha ki mai accused ki aisi ki taisi karke aaungi. Ye bhi kehna sahi hai ki main aur A.... khelte hue ye baatein karte the ki Allaudeen ko to hum chutki bajate hue mohalle se bahar nikalwa denge. Ye kehna sahi hai ki aaj mai court mai jhoothi gawahi dungi."
13. PW9, father of the child victim A, deposed that on 29.03.2016, at about 7.00/7.30 pm, he was returning back home from his work and when he reached outside the jhuggi of accused, he saw that accused had caught hold his daughter by her hand and her underwear was lying removed and on seeing him, her daughter Page 11 of 22 started weeping and being annoyed, he strictly asked accused as to what he was doing with the child victim and on hearing his voice, his wife and other persons from the neighbourhood had also gathered there. He further deposed that he called the police at 100 number and police arrived and made preliminary inquiry from his daughter in the presence of his wife and his daughter/child victim A had told that 810 days prior to that day, accused had sexually assaulted her by touching her private part with his private part. He further deposed that in the meanwhile, his neighbour Ms. P... the mother of child P had also reached and on seeing her, his daughter/child victim A had also told about the sexual assault committed by accused upon child P. He further deposed about apprehension of the accused by the police, about medical examination of both the child victims, about recording of the statement of Ms. P....., of both child victims as well as his statement about about registration of the case FIR. He further deposed about pointing out the place of incident by Ms. P...., about arrest and personal search of the accused vide memos Ex. PW9/A and Ex. PW9/B and about recording of his disclosure statement Ex. PW9/C. During crossexamination by ld. Amicus Curie, PW9 denied that his family had good intimacy with the family of P.... being from same state i.e. Bihar and volunteered to state that they are from different State and that he was having only neighbourly terms with the family of P.......... He further deposed that his wife washes clothes including the clothes of child victim A and that he and his wife had handed over any blood stained clothes of the child victim A to the Page 12 of 22 police. He further deposed that majority of his neighbours are 'muslims', but denied that the people of muslim community try to dominate in the area and volunteered to state that rest other muslims are not like accused. He admitted that the accused had not been doing any work and was thriving upon the income of his wife and was a drunkard and was in the habit of hurling abuses at all and sundry after getting drunk. He admitted that he as well as other muslims of the locality were also fed up with the accused and they were against him on account of his bad habits. He further stated that he had refused for the internal gynecological of child victim A on account of her tender age as well as the advise of doctor. He denied that in order to wipe out the accused from the locality, he planted a false case upon the accused.
14. PW10, Smt. P...., mother of child victim A, deposed that on 29.03.2016 at about 7 p.m., PW9 Vidya Sagar was coming back home and he saw that accused had caught hold of his daughter/child victim A, who had started weeping on seeing her father and thereafter, PW9 scolded the accused in a loud voice and on hearing that voice, she reached there and thereafter other persons from the locality had also gathered there and they started beating the accused and thereafer, PW9 had called the police at 100 number and after some time, police had reached there and had taken the accused to PS and on inquiry by the police, child victim A told her that accused had committed sexual assault upon her daughter P also and thereafter, she made inquiry from her daughter, who told her that accused had removed her Page 13 of 22 clothes and his clothes as well and touched her private part from his private parts and made her clothes wet. She further deposed that child victim A had also told her about the same thing, which was committed by accused upon her 810 days prior to 29.03.2016 and that both the victims kept quite and did not disclose this incident to anyone as the accused had threatened them not to disclose about the incident otherwise he would cut their heads (mundi kaat dunga). She further deposed about lodged her complaint Ex. PW 10/A with the police about medical examination of the child victims, about arrest and personal search of the accused vide memos Ex. PW9/A and Ex. PW9/B and about recording of his disclosure statement Ex PW9/C by the police.
During crossexamination, she denied that no offence was committed with her daughter or that just due to her closeness with PW9, she became witness in the present case. She further denied that her daughter never told her about the said incident as no such incident took place.
15. PW11 Dr. Sahil Maingih, PG, Dr. RML Hospital, Delhi, had examined the accused initially vide MLC Ex. PW11/A and referred him for potency examination and deposed regarding the same.
16. PW12, Ct. Ram Dayal was lying posted as D.D writer in PS Ashok Vihar at the relevant time and he proved the attested copy of DD no. 28 PP as Ex. PW 12/A, recorded by him regarding attempt rape upon the niece of the caller.
Page 14 of 2217. PW13 W/SI Rama Saroha, is the IO in the present case and she deposed that on 29.03.2016, after receipt of DD No. 26A Ex. PW13/A, she and lady Ct. Sonika went to the informed place, where ASI Raj Kumar, Ct. Satpal, Ct. Kuldeep, child victims A and P were found present and accused was produced before her by the father of the child victim A. She further deposed that during preliminary inquiry, she found the case to be of sexual assault of two small children and after getting both the victims counseled through NGO counselor, she took the accused and both the child victims in separate vehicles to BJRM Hospital, where the child victims were medically examined vide their MLCs being Ex. PW 5/A and Ex PW 5/B. She furthe rdeposed that thereafter, she recorded the statement Ex. PW10/A of the mother of child victim P, attested it, prepared the rukka Ex. PW13/B and got the case FIR Ex. PW 2/A registered. She further deposed about preparation of the site plan Ex. PW13/C, about getting the accused medically examined vide MLC Ex. PW13/C and about getting his potency test at RML Hospital vide MLC Ex. PW11/A and about obtaining the potency report Ex. PW 4/A. She further deposed about getting the statements of both the child victims and Smt. P...recorded U/S 164 CrPC vide her application Ex. PW 1/A and about collecting the copies thereof vide application Ex. PW1/H. She further deposed about collecting the documents Ex. PW3/A to Ex. PW3/H about age proof of both the child victims, about recording of the statements of the witness and about filing of the charge sheet on completion of the investigation.
Page 15 of 22During crossexamination by ld. Amicus Curie, she deposed that she had made inquiry from the neighbourers of the accused, but nobody could tell her anything about the incident and she did not find any independent witness who might have seen the child victims going in and coming out of the house of accused. She denied that she did not find any independent witness who might have seen the child victims going in and coming out of the jhuggi of the accused on the alleged date of incident as no incident had taken place or that this was the reason the hymen of both the prosecutrix was found intact. She furtherdenied that she did not investigate the matter fairly. She admitted that on inquiry, she came to know that the accused was a habitual drunkard and had a very loose character and the people of the locality were fed up with him.
18. The Ld. Addl. P P for the State has very vehemently argued that in the present case, the accused committed aggravated penetrative sexual assault upon the child victims, A and P, minor girls aged about 7 years and 8 years and both the child victims have supported the prosecution case and have been consistent throughout the investigation and trial with regard to the act of the accused and their testimony finds full corroboration with the evidence of other public witness. It is further argued that the accused has failed to prove his defence of false implication in the matter and as such the conviction of the accused for the charged offence has been prayed for.
Page 16 of 2219. Per contra, the Ld. Amicus Curiae, Sh. Subham Asri, has very vehemently argued that there are material contradiction and improvements in the testimony of the child victims and other public witnesses and as such, their testimony cannot be believed. He further argued that no independent witness was joined in the present case and that child victims being of tender age, are easily pliable by her parents and the accused being a person of bad habits was falsely implicated in the present case, in order to wipe him out from the locality. It is next argued that parents of the child victims have refused for internal medical examination of child victims and the conviction of the accused cannot be based solely on the uncorroborated testimony of child victims and as such, it is prayed that he be acquitted of the charged offence.
20. I have considered the arguments advanced at bar and carefully gone through the entire record.
21. As far as the age of both the victims is concerned, the same has been duly proved through their school record by PW3. The victim P was admitted in class 2nd in this school on the basis of date of birth mentioned by her mother as 01.04.2006. Victim A was admitted to 1 st class of this school on the basis of affidavit given by her paternal uncle with date of birth as 20.03.2010. There is no crossexamination to PW3 on behalf of the accused. Otherwise also, there is no reason to disbelieve the date of birth of both the victim given in their school Page 17 of 22 records in their first attended school. There is no reason as to why, their parents will mention a wrong date of birth at the time of admission of the victims in the school. The prosecution therefore, has proved that both the victims were below 12 years on the date of incident.
22. Coming to the main incident, both the victims are consistent throughout in their statements given to the ld. M.M. u/s 164 Cr.P.C as well as the statements given in the court. The accused was caught redhanded by the father of the child victim A, which fact is stated not only by the father of the victim A, but by the victim A herself. PW9, the father of victim A has categorically stated that on 29.03.2016, when he was returning from his work and reached outside the jhuggie of the accused, he saw accused holding the hand of his daughter and her underwear was lying removed. The victim started weeping and when he asked the accused as to what he was doing with the victim, public gathered and police was called. There is nothing in the crossexamination of PW9 to suggest that he did not catch hold the accused redhanded. The police was called immediately and there is no delay in lodging the FIR. Only because, the parents of the victim did not permit their medical examinations, is no reason to disbelieve the trustworthy testimonies of both the accused.
23. So far as the argument of notjoining independent witness in the present case is concerned, it is a well settled law that the conviction on the sole evidence of a Page 18 of 22 child witness is permissible if such witness is found competent to testify by the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, "xxx A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
24. Further, the Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, has been pleased to hold that : "xxx There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his Page 19 of 22 memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
xxx"
25. If the law laid down in the aforesaid judgments is applied to the facts of the present case then it would be evident that the child victims are consistent in their all the statements. There is no dispute that conviction can be based on the sole testimony of the reliable witnesses. Both the victims have specifically narrated their incidents to the ld. M.M that accused sexually assaulted them. Victim A has stated to the ld. M.M that accused took her to his jhuggie and removed her panty Page 20 of 22 and then lie upon her. In the meantime, her father came and rescued her. She also stated that about 10 days before also, accused took her to his jhuggie and inserted his susu in her susu and thereafter, her underwear got wet. Victim P has also stated that on a particular day, when she was coming from toilet, accused forcibly took her to his jhuggie and was touching his toilet wali jagah to her toilet wali jagah and her underwear got wet. He also threatened to cut her throat, if she disclosed about his acts to any one. Both the victims are of very tender age of 7 and 8 years and certainly can be influenced by the threats given by the accused. It was only when the father of victim A caught the accused redhanded, both the victims narrated the incident to their parents and then to the police.
26. The defence taken by the accused in the crossexamination that he being a Muslim was isolated and there was a conspiracy to throw him out of the area is not plausible. Father of the victim A in the crossexamination has specifically stated that majority of his neighbours are Muslims and the other muslims are not like the accused. This clearly shows that accused was not the sole Muslim living in that ares and there was no conspiracy to remove him from the locality.
27. I do not find any contradictions and improvement in the testimonies of both the victims, duly corroborated by the father of the victim A, who caught the accused redhanded on 29.03.2016. It cannot be ignored that there is a presumption against the accused u/s 29 of the Act that he has committed this act Page 21 of 22 and once the prosecution has established the guilt, it was for the accused to rebut that presumption, which he has failed to. Accused therefore, is convicted for committing offence punishable u/s 6 of the Act r/w u/s 5 (m) of the Act for committed aggravated penetrative sexual assault upon two victim children
28. Coming to the offence u/s 506 IPC, victim P has all among stated that after sexually assaulting her, the accused threatened to kill her, if she will disclose this fact to any person. There is no crossexamination on this aspect and as such, prosecution has proved that accused threatened victim P and because of that threats, she did not disclose about the sexual assault on her to any person including her parents. Prosecution as such, proved the commission of offence by the accused u/s 506 IPC beyond reasonable doubt and the accused is convicted for the offence punishable u/s 506 IPC as well.
29. Let the convict be heard on the point of sentence on 08.05.2018.
Announced in the open Court (Amit Kumar)
on 05.05.2018 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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