Delhi District Court
State vs . Arun on 31 March, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 73/13)
Unique ID case No. 02404R0176352013
State Vs. Arun
FIR No. : 170/13
U/s : 509 IPC & u/s. 11 / 12 of POCSO Act
P.S. : Sultanpuri
State Vs. Arun
S/o Sh. Subhash,
R/o C7/363,
Sultanpuri, Delhi.
Date of institution of case - 07.06.2013
Date on which, judgment has been reserved 31.03.2014
Date of pronouncement of judgment - 31.03.2014
JUDGMENT :
1 Briefly stated the case of the prosecution is that the accused is a relative of victim M, aged about 14 years, and he sexually harassed the victim by uttering words / abuses and making sound / gesture towards her and asked her to give him her mobile phone. The acts of the accused caused distress to the victim child M, who informed her parents about it. A PCR call was made, pursuant to which PW7 HC Rakesh reached the spot along with PW6 Ct. Sukhbir Singh. The victim child M made her complaint, pursuant to which the present case was registered against the accused. SC No. 73/13 State Vs. Arun Page Nos. 1 of 18 2 During the course of investigation IO prepared the site plan of the place of incident. He also joined father of victim child M in investigations. Initially accused was produced before concerned Juvenile Court as he appeared to be less than 18 years of age as on the date of commission of offence. Later on IO obtained school certificate of accused, wherein his date of birth was mentioned as 24.07.1993, according to which his age came to be about 19 years and 17 days as on the date of commission of offence. Since the accused was found to be a major as on the date of commission of offence, his charge sheet was filed before this Court upon completion of investigations.
2 After hearing arguments, charge for the offence under Section 11
(i) punishable under Section 12 of POSCO Act was framed against the accused. An alternative charge u/s 509 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 seven witnesses.
4 The PW1, HC Mukesh, was posted as duty officer at PS Sultanpuri on 02.03.2013 and had recorded DD No.31 A regarding misbehaving / eve teasing at C7/217, Sultanpuri, and deposed regarding the same. On the same day, he also recorded the case FIR, in the present case, on receipt of rukka sent by IO HC Rakesh Kumar. He produced the original SC No. 73/13 State Vs. Arun Page Nos. 2 of 18 3 record and proved the copy of DD No.31 A as Ex.PW1/A, endorsement made by him on rukka as Ex.PW1/B and computerized copy of FIR as Ex.PW1/C. 5 The PW2, Sh. Mukesh, is the father of the victim child M, however, he only stated that on the day of incident, on return from his duty at about 3:00 / 4:00 PM, he came to know that a quarrel had taken place between someone and his children and that somebody had called the police. He also stated that his statement was not recorded by the police and that only his name and address had been asked and his signatures were taken on some papers by the police.
6 This witness was crossexamined at length by learned Additional PP wherein contents of his statement u/s.161 CrPC i.e. Mark "X" were put to him, however, PW2 denied that in his statement Mark "X" he had told the police that on 02.03.2013 when he came back from duty at about 4:00 PM, his daughter / victim child M told him that on that day when she had gone to purchase something from the market, accused Arun had misbehaved with her by making obscene gestures and using abusive language for her. He also denied having stated in the said statement that on hearing this, he gave a call to police at 100 number or that police came and recorded statement of his daughter M. From further crossexamination of PW2, it was brought out that accused was related to PW2 and was residing in the same block at Sultanpuri and as accused was his relative, he wanted to save accused from legal consequences.
SC No. 73/13 State Vs. Arun Page Nos. 3 of 18 4 7 During his crossexamination by learned defnece counsel, the PW2 termed it correct that he was not present at the time of incident and had been told about it the persons from locality and that none of the public persons had named accused Arun.
8 The PW3, M is the victim child. Her statement shall be discussed at length in the following paragraphs of the judgment. 9 The PW4, Sh. Bhupinder Singh, 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. 10 The PW5, Smt. Shakuntala, is the principal from MCD Primary school and produced the original record wherein victim child was admitted in 2nd class and proved the copy of admission form and school leaving certificate of previous school at Shakurpur, EBlock submitted by Sh. Mukesh, father of the victim child, as Ex.PW5/A and Ex.PW5/B respectively. The photocopy of the relevant entry of the admission register was proved as Ex.PW5/C and the original certificate issued by the school was proved as Ex.PW5/D. As per record produced by PW5, the date of birth of victim child was proved to be 01.02.2001. SC No. 73/13 State Vs. Arun Page Nos. 4 of 18 5 11 The PW7, HC Rakesh Kumar, is the investigating officer in the present case and he deposed regarding the investigations carried out by him and the documents prepared by him during the course of investigations. He proved the rukka, prepared by him on the basis of statement of the victim child M, as Ex.PW7/A ; site plan as Ex.PW7/B ; supplementary statement of the victim child M as Ex.PW7/C ; arrest memo of accused as Ex.PW7/C ; personal search memo of accused as Ex.PW7/D ; disclosure statement of accused as Ex.PW7/E ; the version of child in conflict with law (when initially accused was produced before concerned JJB) as Ex.PW7/F ; the social background report of accused as Ex.PW7/G and bond executed by Sh. Subhash, father of the accused, as Ex.PW7/H. 12 During crossexamination, the PW7 stated that DD No. 31 was pertaining to 'chedchad' at C7/317, Sultan Puri and that they reached at the spot after receiving the call within 15 minutes, and that three/four other public persons were found standing near the house of the victim child in the gali and that the father of victim child was present outside his house, however, the victim child was inside her house, when they reached there. The PW7 then deposed that he informed the SHO that the call was pertaining to chedchad with a girl child and there was a requirement of lady police officer and that since at that time, no lady officer or there was a SubInspector was present in the police station, he himself conducted the proceedings by the order of SHO. The PW7 further deposed that he recorded the statement of the victim child while sitting inside her house, in the presence of her father, SC No. 73/13 State Vs. Arun Page Nos. 5 of 18 6 and that Ct. Sukhbir left the spot with rukka for PS at about 6.00 pm while he remained at the spot and that Ct. Sukhbir Singh came back to the spot at about 7:15 - 7:20 PM. The PW7 further deposed that he had made inquiry from the public persons about the incident but they did not join the investigation and that they also did not disclose their names and addresses. He also stated that he did not make inquiry from the shopkeeper from where the victim child had gone to purchase something on the day of incident and that he did not make any inquiry if the victim child was having any mobile phone of her own or not.
13 During his further crossexamination, the PW7 deposed that SI Bharat Bhushan, JWO, reached at the house of accused at about 8:00 PM and remained there for about 1 - 1 ½ hours. The PW7 denied the suggestion that he prepared site plan while sitting at the PS and that is why he did not obtain signature of any witness on it. The PW7 deposed that he could not give any reason as to why SI Bharat Bhushan did not prepare the apprehension memo and other documents in his own handwriting. He volunteered to state that SI Bharat Bhushan being the senior officer had directed him to do so and that is why he prepared these documents in his own handwriting. The PW7 denied the suggestion that apprehension memo of accused Ex.PW6/A was not prepared at the instance of SI Bharat Bhushan or that in fact he had prepared the same of his own at PS and had obtained the signatures of SI Bharat Bhushan thereupon later on in the PS. He further denied the suggestion that the victim child M was not ready and willing to give her statement or that at the instigation of her father and SC No. 73/13 State Vs. Arun Page Nos. 6 of 18 7 mohalla people, she was compelled to give her statement. 14 The PW6 HC Sukhbir had joined the investigation of the present case with PW7 HC Rakesh Kumar and deposed on the lines of PW7. 15 After closing of prosecution evidence, statement of accused Arun was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been falsely implicated in the case. He further stated that no such incident had ever taken place. The accused declined to lead evidence in his defence. 16 Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State. 17 Learned Additional PP has contended though there has been some variance in the version given by the victim child M, the testimony of PW2 Mukesh, father of victim, clearly brings out that the victim has deposed under pressure of her family / father, who had compromised the matter with the accused, who is their relative. It is also contended that when specific leading questions were put to victim child M, she gave correct version and in view of the same, prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has prayed that accused be convicted for the charged offences.
18 On the other hand, learned counsel for accused has contended that accused is innocent and has been falsely implicated in the present case. SC No. 73/13 State Vs. Arun Page Nos. 7 of 18 8 It is further submitted that as far as PW2 Sh. Mukesh is concerned, he was not present at the spot and he acted on instigation of the neighbourers when he returned back in the evening. It is also contended that testimony of the victim M is not reliable and that she has even otherwise denied that any such incident had taken place, in her examination in chief. It is then contended that there is serious lacunae in the prosecution case since the incident is alleged to have taken place during broad day light when several public persons were present despite which IO did not join any public person in the investigation and that this itself indicates that the case put forth by prosecution is a false one. It is accordingly prayed that the accused be acquitted of the charged offence.
19 I have heard the arguments put forward by ld. Addl. PP as well as learned counsel 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.
20 In the present case, accused is alleged to have uttered abusive words and made sound / gesture towards victim child, aged about 12 years, and also asked her for her phone number. The acts of accused are stated to have caused sexual harassment to victim child M. 21 As far as the age of the victim child M is concerned, it is not disputed that the victim child is a minor aged about 12 years. Even otherwise prosecution has examined PW5 Smt. Shakuntala, who produced SC No. 73/13 State Vs. Arun Page Nos. 8 of 18 9 record of the school wherein the victim child M was admitted in second class on the basis of admission form Ex.PW5/A, submitted by her father, and school leaving certificate Ex.PW5/B issued by previous school. As per record produced by PW5, the date of birth of victim child M is 01.02.2001. The date of commission of offence in the present case is 02.03.2013. Thus the prosecution has succeeded in proving that the victim was just about 12 years old at the time of incident.
22 The next issue which arises for consideration whether accused had sexually harassed the victim child M by his actions and utterances as detailed in complaint Ex.PW3/A. In order to prove the allegations against the accused, the prosecution has relied upon the testimony of victim child M. The incident in the present case is alleged to have taken place on 02.03.2013 at about 10:00 AM and was reported to the police at about 4:50 PM, as is reflected from Ex.PW1/A i.e. DD No.31A. Thereafter PW7 HC Rakesh Kumar reached the spot and recorded the statement of victim child M vide Ex.PW3/A, on the basis of which the present FIR was registered against the accused. In her statement the victim child M stated that on that day she had gone to a shop, at about 10:00 AM, to purchase some articles and when she was returning back, accused Arun, who was residing in the same gali, was seen standing outside his house i.e. house No.C7/363, Sultanpuri, Delhi. The victim child alleged that accused made gestures at her with his hand and abused her and asked her to give him her mobile number. The victim came home and informed about the acts of accused to her mother and father on their return from duty and her father in turn reported SC No. 73/13 State Vs. Arun Page Nos. 9 of 18 10 the matter to the police at 100 number.
23 The victim was produced for her statement u/s.164 CrPC before learned MM on 12.04.2013 and in her said statement i.e. Ex.PW4/B, she reiterated that on the day of incident, she had gone with her sister to a shop near her house to purchase something. She further stated that accused Arun, who was residing in the neighbourhood, met them on the way and that the said Arun was her cousin brother. She then stated that accused called her to the backside of gali. Out of fear victim child M returned back to her home with her sister and informed her mother about the entire incident. The mother of victim M went to house of Arun and later gave a call at 100 number. The victim stated that Arun had touched her feet thereafter and asked for her forgiveness.
24 The victim appeared before the Court and was examined as PW3 on 17.02.2014. Since PW3 prosecutrix M is the victim child, her statement was recorded in camera proceedings in the Court Room. It was ensured that the victim child was comfortable while deposing and for this purpose, certain preliminary questions were put to victim child M to ascertain her competence to depose as witness and to be satisfied that she understood the importance of speaking truth. After being so satisfied, her testimony was recorded on oath. In the relevant portion of her statement the victim deposed as under : "Q. M . . . batao kya hua tha ?
SC No. 73/13 State Vs. Arun Page Nos. 10 of 18 11
Ans. Mujhe kuch bhi nahi pata.
Q. Kabhi police apse mili thi ?
Ans. Nahi.
Q. Police ne apse kisi paper par sign karaye the ?
Ans. Nahi.
Q. Apka kisi se jhagada hua tha ?
Ans. Nahi.
Q. Kya kissi ne apke sath galat tarike se baat kari yah apke sath galat bartav kiya ?
Ans. Nahi."
25 It is seen from the above statement that victim child M did not disclose anything about the alleged incident during her initial examination in chief. Thereafter learned Additional PP sought leave to put certain leading questions to the witness, which was allowed, considering the tender age of the witness. Some Court questions were also asked from the witness during this stage of her examination. The witness deposed as under in response to leading questions and Court questions put to her : "Q. Kya aap ghar ke paas dukan se saman laine jati ho ?
Ans. Nahi.
Q. Kya 02.03.2013 ghar ke paaswali dukan se savere 10 baje saman laine gayi thi ?
Ans. Nahi.
SC No. 73/13 State Vs. Arun Page Nos. 11 of 18 12 Q. Kya tum Arun ko janti ho (the learned Additional PP has pointed towards the accused, who is sitting behind the wooden partition in the last row of chairs in the Court Room) ?
Ans. Ha, woh hamare rishtey me chacha lagate hai.
Q. Kya Arun apke ghar ke paas rehta hai ?
Ans. Ha.
Q. Kya 02.03.2013 ko jab aap saman lekar aa rahi
thi tab apko Arun raste me mila aur apko obscene words bol kar apse apka phone number manga ?
Ans. Nahi.
At this stage, the witness was shown her complaint and she identified her signatures at point "A" on the same and thereafter complaint was exhibited as Ex.PW3/A. The witness further deposed, Q. Complaint Ex.PW3/A par apke sign kaise aaye ? Ans. Pata nahi.
Q. Kya yeh sahi hai ki apke papa ne 100 number par phone karke police ko bulaya tha aur police ne apse sab kuch puch kar complaint Ex.PW3/A likhi aur apne sign kiye ?
Since in response to the said question, the witness nodded her SC No. 73/13 State Vs. Arun Page Nos. 12 of 18 13 head in affirmative and did not utter anything from her mouth, further Court questions were put to her, Court Ques. : Beta kya apne police ko bataya tha ki aap ghar ke paas dukan se saman laine gayi thi aur tab Arun apko mila jisne apse gandi ishare kiye aur gandi gali di aur apse apka phone number manga ?
The witness was explained the question by speaking slowly and after understanding the same, the witness answered as under : Yes mam.
The witness has also nodded her head in affirmative while stating so.
Court Q. Beta abhi apne kaha ki aisa kuch nahi hua aur phir apne kaha ki joh apne police ko bataya woh sab sach tha, apki dono me se kaun si baat sahi hai ?
Ans. Jo police ko bataya woh sahi tha.
Court Q. Apne pehle yeh kyu kaha ki aisa kuch
nahi hua tha, kya apko kisi se darr hai ?
In response to said Court question, the witness has remained quiet and did not answer the question though the same was repeated to her 4 / 5 times.
SC No. 73/13 State Vs. Arun Page Nos. 13 of 18 14
Court Ques. Kya aap accused Arun ko bachana
chahti ho kyunki woh apka risheteydar hai ?
Ans. Nahi, me to usse kabhi baat bhi nahi karti
thi.
Ques. Kya aap pehle bhi Court me aaye the ?
Ans. Ha.
Ques. Kya apne tab Judge Saheb ko sab bataya tha ?
Ans. Ha.
The witness identified her signatures at point "A" on the Ex.PW3/B i.e. the carbon copy of statement of witness u/s.164 CrPC.
At this stage, the statement Ex.PW3/B was read over to the witness slowly and after hearing the statement, the witness stated that she had stated so to learned MM."
26 During her crossexamination by learned defence counsel, the
victim deposed as under :
"Q. Kya apke paas apna mobile phone hai ?
Ans. Nahi.
Q. Kya apke mummy papa dono kaam par
jate hai ?
Ans. Yes.
SC No. 73/13 State Vs. Arun Page Nos. 14 of 18
15
Q. Woh kitne baje kaam se aate hai aur
kaun pehle aata hai ?
Ans. Mummy aati hai 3:00 baje aur papa
4:00 baje aate hai.
Q. Kya 02.03.2013 se pehle Arun ne apse
kabhi baat kari thi yah aisi koshish kari thi ?
Ans. Nahi.
Q. Kya Arun se apki kabhi baatchit hoti
thi ?
Ans. Nahi.
Q. Beta kya apko pata hai ki Arun subah
kam par jata hai aur sham ko aata hai?
Ans. Nahi.
Q. Beta 02.03.2013 ko apki Arun se koi
baat nahi hui thi. Kya yeh sahi hai ?
Ans. Ha.
Q. Kya yeh baat sahi hai ki aapne apne
papa ko kuch nahi bataya tha aur galiwalo ne unhe bataya tha ?
Ans. Yeh baat thik hai.
Q. Jab apke complaint Ex.PW3/A par sign
karaye toh woh police uncle the yah police aunty thi ?
Ans. Police uncle the.
Q. Kya yeh baat sahi hai ki aisa kuch nahi
hua tha isliye apne papa ko kuch nahi bataya tha ?
SC No. 73/13 State Vs. Arun Page Nos. 15 of 18 16 (The witness has nodded her head in affirmative.) Court Ques. : Beta kya apne mummy ko bataya tha ?
Ans. Ha.
Court Ques. Kya mummy ne yeh baat papa ko batai thi ?
Ans. Ha." 27 Learned counsel for accused has relied upon the testimony of
the victim child M before the Court to contend that she has denied the incident in her examination in chief and that even otherwise there are material contradictions in her testimony which make the same unreliable. On the other hand learned Additional PP has submitted that the victim child M has deposed under pressure from her father / parents and that her father PW2 Sh. Mukesh has clearly admitted during his crossexamination by her that he has compromised the matter with the accused and his family and that accused was related to him and hence, he wanted to save the accused from legal consequences.
28 When the testimony of victim child M is perused carefully, I find considerable force in the submission made by learned Additional PP that the victim child M was under tremendous pressure from her family, when she appeared to depose before the Court, as some compromise had already taken place between the accused, who is their relative, and her family. It is noteworthy that in response to a specific Court question as to which of the SC No. 73/13 State Vs. Arun Page Nos. 16 of 18 17 two statements i.e. her statement wherein she denied that accused had done any wrong and her complaint to the police Ex.PW3/A was correct, the witness stated that "jo police ko bataya woh sahi tha". Further the statement u/s.164 CrPC Ex.PW3/B, made by witness to the learned MM was also read over to witness and after hearing, she stated that she had made such a statement to learned MM. From careful perusal of the testimony of victim child M it is apparent that the accused had in fact indulged in alleged acts and caused sexual harassment to the victim and a complaint regarding the said acts was made to the police vide Ex.PW3/A but later on a compromise was effected between the family of the accused and the family of the victim, who were not only related to each other but were living in close proximity in same gali, and the victim was thus pressurized by her father / family to deny that any incident had taken place but due to her tender age and having understood the responsibility to speak the truth, the victim child M came up with true and correct version of the incident in portions of her testimony as PW3. Thus notwithstanding the fact that PW2 Sh. Mukesh, father of the victim, has failed to support the case of the prosecution and IO too has failed to join public persons in investigations despite their availability, I am of the opinion that prosecution has succeeded in proving its case u/s.11 (i) punishable u/s.12 of POCSO Act against the accused. The alleged lacunaes pointed out by learned defence counsel have apparently occurred since in the present case not only was the statement of victim child recorded by a police officer of the rank of Head Constable but the entire subsequent investigations were also entrusted to the said Head Constable in utter contravention of Section 24 (1) of the POCSO Act. However, the testimony SC No. 73/13 State Vs. Arun Page Nos. 17 of 18 18 of the victim cannot be thrown out for these lacunaes, deliberate or otherwise, left by the investigating agency.
29 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved the guilt of the accused Arun on record, beyond the reasonable doubt. Accordingly, I hold guilty accused Arun for the offences punishable u/s 11(i) punishable u/s. 12 of POCSO Act, 2012 and he is convicted accordingly.
(Announced in the open Court ) (Illa Rawat)
(Today on 31.03.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
SC No. 73/13 State Vs. Arun Page Nos. 18 of 18
19
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 77/13) Unique ID case No. 02404R0176352013 State Vs. Arun FIR No. : 170/13 U/s : 509 IPC and 11 and 12 POCSO Act P.S. : Sultan Puri State Vs. Arun S/o Sh. Subhash 31.03.2014 Present : Ld. Addl. PP for the State.
Convict in person with counsel.
ORDER ON THE POINT OF SENTENCE In the present case, the convict - Arun has been convicted u/s 11 (i) of PCOSO Act punishable u/s 12 of POCSO Act.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. defence counsel for the convict. SC No. 73/13 State Vs. Arun Page Nos. 19 of 18 20
2. It has been submitted by the Ld. Addl. PP that in the present case, convict Arun sexually harassed the victim child M, a minor girl aged about 14 years by uttering words/abuses and making sound/gesture towards her and asked her to give him her mobile phone 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 convicts.
3. On the other hand, it has been submitted by the Ld. defence counsel that the convict Arun is a young boy aged about 20/21 years and is having bright future. He further submitted that convict belongs to a respectable family and is not having any previous criminal record and as such, it is prayed that a lenient view may be taken in this case and he be given a chance of rehabilitation by releasing him on probation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. defence counsel and have carefully gone through the record of the case.
5. In the present case, the convict Arun has been convicted for committing the offence punishable u/s 12 of POCSO Act for harassing the victim child M. Keeping in view the facts and circumstance of the present case, having regard to the fact that convict is a young boy aged about 20 years, who is having a bright future ahead and further considering the family circumstances of the convict, I take a lenient view and grant the benefit of SC No. 73/13 State Vs. Arun Page Nos. 20 of 18 21 probation u/s.4 (1) of Probation of Offenders Act, 1956 to the convict Arun and release him on probation on furnishing of probation bond in the sum of Rs. 10,000/ with one surety in the like amount for a period of one year for the offence punishable u/s 12 of POCSO Act.
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 31.03.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
SC No. 73/13 State Vs. Arun Page Nos. 21 of 18