Delhi District Court
Sc No: 246/13 State vs . Amar Deep Kujur on 13 January, 2016
SC No: 246/13 State Vs. Amar Deep Kujur
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 246/13
FIR No. 78/13
Police Station Alipur
Under Section 377 IPC & 4 POCSO
ID No. 02404R0-165762013
State
Versus
Amardeep Kujur
S/o Sh. Albat Kujur
R/o Village Udni, Post Hisri,
PS Doomri, Tehsil Doomri,
District. Gumla, Jharkhand.
......Accused
Date of institution 20.12.2013
Judgment reserved on 19.12.2015
Judgment Pronounced on 08.01.2016
Decision Convicted
Judgment 1 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
JUDGMENT
1. Child Welfare committee sent a letter dated 13.02.2013 to the SHO, PS S.B. Dairy alleging that in a report submitted by Child Survival India, NGO, a 7 years old male child has alleged that he was sexually abused and harassed by the children of Ashiyana Children Home, Alipur, Delhi.
2. On the basis of aforesaid letter, an FIR u/s 377 IPC and 4 POCSO Act was registered and the victim S aged about 7 years was got medically examined. His statement was recorded in the presence of NGO wherein the victim alleged that during his stay at Children Home for Boys-II, Alipur, he was sexually assaulted by the other three inmates namely Nawal, Pankaj and Ashish. During the investigation, it also came into light that the victim was HIV positive and on the directions of Hon'ble Delhi High Court the security guard of child Home was interrogated and got tested for HIV.
Judgment 2 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
3. Statements of children who were named by the victim as offenders were also recorded and during the investigations, it was found that the victim was sexually assaulted by the guard of Children Home, Alipur namely Amardeep (accused).
4. Accused was arrested and was charge-sheeted in the present case. Charge for the offence punishable u/s 6 POCSO (Protection of Children from Sexual Offences) Act was framed against the accused on 28.04.2014 to which he pleaded not guilty and claimed trial.
5. Prosecution in all has examined 16 witnesses.
6. PW1 Kamla Lekhwani, Chairperson of Child Welfare Committee deposed that the victim was got admitted to Children Home for Boys, Alipur on 13.12.2012 for care and protection as his mother died of HIV two years back and he was looked after by his maternal grandmother. After the death of Judgment 3 of 19 SC No: 246/13 State Vs. Amar Deep Kujur victim's grandmother, there was no one to look after him and for that reason he was admitted to Children Home for Boys. Victim was examined and was found to be HIV positive and thereafter his custody was handed over to Child Survival India, NGO who is looking after HIV +ve Children. The said NGO informed the Welfare Committee that the victim was sexually abused by three boys and security guard Amardeep. CWC directed for registration of FIR. She further deposed that Hon'ble Delhi High Court also suo- moto took the cognizance of the matter and she filed a compliance report before Hon'ble Delhi High Court which is Ex. PW1/A.
7. PW2 victim deposed that his parents have already expired and when he was residing in Children Home, three boys and accused Amardeep kissed him on his lips and they did act from his back. Victim deposed that they took out his pants and touched their Lulu (private part) with his anus and all of them did this act with him repeatedly for some days. After doing the act, they used to tell the victim not to tell the incident to anybody otherwise they Judgment 4 of 19 SC No: 246/13 State Vs. Amar Deep Kujur would kill him. He further deposed that whenever they used to do the act with him, he used to feel pain and it used to bleed. He deposed that the accused Amardeep was working there as security guard and he identified the accused in the court. Victim proved his statement given before the Magistrate as Ex. PW2/A.
8. PW3 Dr. Kuldeep Singh proved the MLC of the victim as Ex. PW3/A.
9. PW4 Sh. Shashank Mishra, deposed that the statement of three children namely Nawal, Pankaj and Ashish were recorded by the IO in his presence as per his statement Ex. PW4/A to C respectively.
10. PW5 Dr. Rakesh also proved the medical examination of the victim vide MLC Ex. PW3/A. Judgment 5 of 19 SC No: 246/13 State Vs. Amar Deep Kujur
11. PW6 Ct. Shankar proved the arrest and personal search of accused as per memo Ex. PW6/A and B respectively.
12. PW7 Ms. Sheela Mann deposed that she is Project Director of Child Survival India and the victim was referred to their NGO for his care as he was infected with AIDS. During his counseling session victim stated that he was sexually abused and did not want go back to the boys home. Thereafter, matter was reported to CWC vide letter dated Ex. PW7/A and the statement of victim was recorded by the IO in her presence as per Ex. PW7/B.
13. PW8 Ct. Sher Ali deposed that he collected the exhibits of the victim after his medical examination which were seized by the IO as per Ex. PW8/A.
14. PW9 Dr. Vijay Dhankar, proved the clinical examination reports of the accused as Ex. PW9/A that of victim and other boys as Ex. PW9/B to E. Judgment 6 of 19 SC No: 246/13 State Vs. Amar Deep Kujur
15. PW10 Ms. Seema Malik proved the attendance register pertaining to the accused from 12.12.2012 to 21.02.2013 as per record Ex. PW10/A and also the attendance pertaining to victim as per Ex. PW10/B-1 to B-10.
16. PW11 Ct. Bhim Singh took the copy of FIR and original tehrir to Observation Home, Alipur and handed over the same to SI Manoj.
17. PW12 HC Ajay Kumar proved the FIR as Ex. PW12/A and his endorsement on rukka as Ex. PW12/B.
18. PW13 HC Manoj Kumar proved the deposition of case property with the malkhana and to the FSL as per entries Ex. PW13/A to C. Judgment 7 of 19 SC No: 246/13 State Vs. Amar Deep Kujur
19. PW14 SI Satish Kumar got recorded the statement of victim u/s 164 Cr.P.C.
20. PW15 SI Manoj Kumar, Investigation Officer arrested the accused and recorded his disclosure statement as Ex. PW15/A. He also got conducted the potency test on all the named persons by the victim.
21. PW16 Dr Vishal Chaudhary, SR Surgery examined the victim on 14.02.2013 as per his observations Ex PW16/A. On examination of the victim he found peri-anal tears at 12'O Clock, 1'O Clock, 5'O Clock & 6'O Clock positions of the victim. He deposed that the tears present on the victim indicated that he was sexually assaulted.
22. On conclusion of prosecution evidence statement of accused was recorded u/s 313 Cr.P.C wherein the accused stated Judgment 8 of 19 SC No: 246/13 State Vs. Amar Deep Kujur that he did not commit sexual assault on the victim and he used to be on duty from 12 noon to 8 pm and he had no access to the children after 8 pm and he did not commit any wrong.
23. It has been contended by Ld. Amicus Curiae that the victim in his initial statements did not name the accused as a sexual offender rather the victim only named three other inmates of Children Home as the offenders who sexually assaulted the victim. It is stated that the attendance record of the accused would show that his duty was from 12 noon to 8 pm and hence the accused had no access to children and hence the accused is entitled to be acquitted in the present case.
24. Per contra Ld. Addl. PP for the State has submitted that the testimony of the victim and his previous statements establishes that the victim was sexually assaulted and the testimony of the victim is reliable, trustworthy and establishes the guilt of the accused beyond any reasonable doubt.
Judgment 9 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
25. I have heard Ld. Amicus Curiae for accused and have also gone through the record.
26. Age of the victim: Since the charge against the accused is framed under POCSO Act, it is necessary to find out what was the age of victim on the date of the alleged commission of offence. Although, the prosecution has not examined any witness in order to prove the date of birth of the victim nor any document has been produced in that respect, however, PW-1 Chairperson of CWC testified to the effect that the victim was 7-8 years old when he got admitted to Children Home for Boys, Alipur on 13.12.2012 as his mother had died and her maternal grand mother who was looking after him, unfortunately, also got expired and the father of victim was in jail with allegations of raping his own daughter. MLC of the victim has also been proved on record as Ex. PW-3/A which mentions the age of the victim as 7 years. Defence has not disputed the age of victim in any manner. Thus, on the basis of the statement Judgment 10 of 19 SC No: 246/13 State Vs. Amar Deep Kujur of PW-1 as well as the MLC of the prosecutrix, it can be safely held that the age of the victim was about 7-8 years on the date of the alleged commission of offence.
27. Testimony of Victim: It has been vehemently argued by Ld. Amicus Curiae that the victim did not name the accused as the person who used to commit sexual assault upon him and in this regard, defense has relied upon the statement of the victim recorded by PW-7 SI Manoj Kumar proved on record as Ex. PW-7/B, wherein, the accused has only named three boys of the Children Home namely Ashish, Pankaj and Naval as the culprits. It is stated on behalf of the accused that initially the allegations were made by the victim against these boys only and later on under pressure from the police, the accused was falsely implicated after the cognizance of the matter was taken by the Hon'ble High Court.
Judgment 11 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
28. In order to appreciate, this contention of the defense, it would be appropriate to reproduce what the victim has stated in his statement recorded u/s 164 Cr.PC proved on record as Ex. PW-2/A. Statement of the victim reads as under:-
"Amar Ashiyana mein chowkidar tha. Amar kaam karne ke liye kehta tha. Who meri poti wali jagah mein apni susu wali jagah dalta tha. Usne kai baar aisa kiya. Muje darata tha. Meri poti me bahut khoon aata tha. Woh kehta tha ki maine kisi ko kuch bataya to wo muje maar dega."
29. While recording the afore-said statement, the Ld. MM, observed that the victim was very scared initially even at the name of Amar. With great effort, he uttered only above said version about the incident.
30. Besides, the above-noted statement, the testimony of the victim was recorded in the court. In his examination in chief victim deposed as under:
Judgment 12 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
"Earlier I used to live in Children Home at Delhi. I do not remember the name of the said Children Home. My father is in Jail and my mother has already expired. When I was in Children Home in Delhi, three boys and one Amar Deep had kissed me on my lips. They also did from my back.
Court Observation:-The child is using the word "Bhaka-Bhak", stating that they did Bhaka - Bhak with him, which is a wrong act.
Court Question:- How did they do that act with you?
Answer:- They took out my pant and touched their (the witness is using the word "Lulu") with my anus. All of them did this act with me repeatedly for some days. After doing the said act, they used to say that, I should not tell about this to anyone, otherwise, they will kill me. Whenever they used to do that act, I used to feel pain and it used to bleed. The said three boys used to live there and Amar was working there as security guard. I do not remember the name of the said three boys."
31. Statement of the victim recorded u/s 164 Cr.PC as well as his testimony gives an account of the assault on the victim. Victim not only narrated the incident but he also gave entire description of the act of the accused. It is pertinent to note that while recording the testimony of the victim, the Court observed that Judgment 13 of 19 SC No: 246/13 State Vs. Amar Deep Kujur when asked to identify the accused, victim started sobbing and stated that he does not want to see him. While recording the statement u/s 164 Cr.PC, the Ld MM observed that the accused was very scared even while taking the name of the accused. The observations made during recording the testimony of the victim indicates that the victim was under fear of the accused.
32. No doubt, the statement Ex. PW-7/A does not mentions the name of the accused as a wrong doer but this can not be a ground to disbelieve the testimony of the victim who was found to be traumatized by the acts of accused. In this regard, victim categorically deposed that accused used to threaten him after committing his sexual assault.
33. Testimony of the victim, with relation to the incident is reassuring as he has been consistent throughout in describing what the accused did to him. Victim firstly narrated the incident to to Ld. MM as per his statement Ex. PW2/A recorded U/s 164 Judgment 14 of 19 SC No: 246/13 State Vs. Amar Deep Kujur Cr.P.C. Victim has been consistent on the material particulars with regard to the incident of sexual assault on him. Description of the act as given by the victim is accurate and is narrated with the understanding of a 7-8 year old child. His testimony is found reliable, truthful & trustworthy.
34. Medical & Forensic Evidence: Ld Amicus Curaie has drawn attention of the Court towards DNA Report dated 26.11.2013 and HIV Test Report of the accused and has submitted that neither blood nor semen of the accused was detected on the anal swab of the victim. It is also submitted that as per the prosecution case victim was HIV +ve and had the accused sexually assaulted the victim then he would also had contacted HIV but his HIV Test Report is negative. It is argued that in absence of medical & forensic evidence accused cannot be held guilty.
Judgment 15 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
35. Merely because no semen or blood of the accused was not found on the anal swab of the victim cannot be reason to exonerate the accused as the anal swab of the victim was taken many days after the incidents of sexual assault. Furthermore, it is not necessary that if a anal sex is done with a HIV +ve person than the person doing so, would essentially be transmitted HIV. Therefore, the arguments advanced by the defense in this regard has no merits at all and accused cannot be exonerated due to lack of forensic evidence.
36. Victim was medically examined by PW16 Dr Vishal Chaudhary vide MLC Ex PW16/A. On examination of the victim he found peri-anal tears at 12'O Clock, 1'O Clock, 5'O Clock & 6'O Clock positions of the victim. He deposed that the anal tears present on victim indicated that victim was sodomized. This medical evidence also corroborates the version of victim that he was sexually assaulted. As stated above, the victim has duly identified the accused to be the culprit.
Judgment 16 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
37. Defence taken by the accused: Accused has submitted that he was having duty hours from 12 Noon to 8 pm and thereafter, he had no access to the victim and thus there was no opportunity for him to sexually assault to the victim. It is stated that the victim in his cross-examination has alleged that the wrong act used to be committed upon him after 11 pm when he had gone to sleep. It is argued that in such a scenario the accused whose duty hours ended at 8 pm, had no access to the victim after that.
38. Victim has named the accused as an assaulter. Victim is merely 7 years old boy living without support of his family. Noticing the circumstances of the case, it is not difficult to comprehend that he must have hardly learnt to see time on a watch. Thus, it would be very difficult for him to tell the time of his sexual assault. Victim has specifically deposed that while the other boys used to go for sleep after that accused used to commit sexual assault, it shows he might have deposed the time of assault as after 11 pm only on his estimation.
Judgment 17 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
39. Thus, in the light of the fact that the testimony of child victim is found truthful & reliable the defence taken by the accused is not found acceptable.
40. From the discussions herein above, it emerges that:
i) Testimony of the victim is credible & trustworthy.
ii) Victim has identified accused as an assaulter.
iii) Narration of the victim of the entire incident finds corroboration from the medical evidence.
iv) Accused failed to establish his defence.
41. Conclusion: In the light of the discussions made herein above guilt of the accused stands proved. Accused stands convicted for the offence punishable U/s 6 POCSO Act.
Judgment 18 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
42. Matter be listed for hearing arguments on quantum of sentence for 13.01.2016.
Announced in open Court on Day of 8th January, 2016.
( Gautam Manan )
ASJ-01/North/ Rohini Court/Delhi
Judgment 19 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 246/13
FIR No. 78/13
Police Station Alipur
Under Section 377 IPC & 4 POCSO
ID No. 02404R0-165762013
State
Versus
Amardeep Kujur
S/o Sh. Albat Kujur
R/o Village Udni, Post Hisri,
PS Doomri, Tehsil Doomri,
District. Gumla, Jharkhand.
......Convict
ORDER ON SENTENCE
1. Accused Amardeep Kujur has been convicted
Under Section 6 POCSO Act. I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and Ld. Amicus Curiae for the convict.
Judgment 20 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
2. Learned Addl. PP has vehemently argued that the offence committed by the convict in this matter is of highly derogatory in nature. Child victim was subjected to sexual assault by the convict in an Observation Home despite he being suffering from HIV +ve condition. It is further argued that the incestuous crimes in our society are presently on rise, which substantially hamper the mental and physical development of children. POCSO was enacted by the Parliament bearing in mind that the offenders under the said Act shall be dealt with with heavy hand, therefore, stringent punishment has been provided for in the said Act. Learned Addl. PP has prayed for the maximum punishment prescribed under Section 6 of the Act in the matter, so that the same may act as deterrent for other impending offenders.
3. Per contra, the learned defence counsel has submitted that convict is a young man aged about 30 years. He has already undergone about 28 months imprisonment as under-trial in this Judgment 21 of 19 SC No: 246/13 State Vs. Amar Deep Kujur case, during which period, his conduct was never questioned by the Jail authorities. In the end, it is submitted that the convict is the first time offender as such benefit of Probation of Offender's Act be granted to the convict.
4. I have given thoughtful consideration to the arguments advanced by Bar by both the sides and to the facts and circumstances of the case in totality.
5. In my considered opinion, the nature of offence committed by the convict does not demand that he be released on probation. He has molested a child without parents and had shown no mercy on him. Interest of justice would be met, if the convict is sentenced to Rigorous Imprisonment for a period of 10 years along with fine of Rs. 5,000/-, in default SI for a period of 1 month for the offence punishable u/s 6 POCSO Act. Benefit of Section 428 Cr.P.C is accorded to the convict.
Judgment 22 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
6. Compensation: 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.
7. 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 legislation, 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. Section 33(8) POCSO Act, also mandates that in addition to the punishment to the accused, the victim be granted compensation for physical and mental trauma caused to him and for the rehabilitation of the victim.
Judgment 23 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
8. Therefore, in order to provide Restorative and Compensatory Justice to the victim, Rs. 2,00,000/- (Rs. Two lac only) is granted to the victim as compensation. Learned Secretary, D.S.L.S.A, North District, Delhi shall ensure that the said amount is given in the account of the victim within one month on receipt of this order and shall further ensure that the said amount is disbursed in such a manner that the same be used for health care, welfare & rehabilitation of the victim.
9. A copy of this order along with the particulars of the victim be sent to learned Secretary, D.L.S.A, North District., Rohini Courts, Delhi for necessary compliance.
10. Convict is informed of his right to prefer an appeal against this judgment. He has been apprised that if he cannot afford to engage an Advocate, he can approach the Legal Aid Cell, Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 34-37, Lawyer Chamber Block, High Court of Delhi.
Judgment 24 of 19
SC No: 246/13 State Vs. Amar Deep Kujur
11. A copy of judgment and copy of order on sentence be supplied free of cost to convict.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
13.01.2016
Judgment 25 of 19