Delhi District Court
State vs . Tola Ram on 1 November, 2013
State Vs. Tola Ram
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 93 of 2013
ID No. 02401R0224102013
FIR No. : 136/2013
Police Station : Sarai Rohilla
Under Section : 8/10 of POCSO Act
State
Versus
TOLA RAM
S/o Sh. Mangli Chand,
R/o H.No. 19/152,
Sarai Basti, Sarai Rohilla,
Delhi.
.............Accused
Date of Institution : 06.05.2013
Date of Judgment reserved on : 23.10.2013
Date of judgment : 31.10.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Pankaj Sharma, Advocate, Amicus Curiae for the
accused
SC No. 93/13 Page 1 of 20
State Vs. Tola Ram
J U D G M E N T:-
1. Briefly stated facts of prosecution case are that on March 23, 2013 at about 10.10 PM, an intimation was received at police station Sarai Rohilla that one person had committed galat harket with a child behind Gurudwara Sarai Rohilla. Said information was recorded vide DD No. 70B (Ex. PW2/A). Accordingly, SI Parveen Mann along with constable Manoj Kumar reached there, where complainant (since complainant is the mother of victim of a sexual assault, in order to conceal the identity of victim, her identity is also withheld and hereinafter she is referred to as complainant or mother of victim) met them and got recorded her statement (Ex. PW5/A) to the investigating officer.
(i) Complainant in her statement alleged that on March 23, 2013 at about 9 PM, she was present at her house. Her daughter aged about 5 years (since she is the victim of sexual assault, her identity is withheld and hereinafter she is referred to as victim) came to house while weeping. On being asked, she told her that behind Gurudwara, one uncle met her and asked her to go to his house on the pretext that as he would give her some eatable items, consequently, victim accompanied him. It was alleged that the said uncle had taken the victim in his lap. Thereafter, accused removed her pant and touched her body by his hands and he also kissed her on her cheeks. It was also alleged that the said uncle (accused) had given teeth bite on her cheeks. When she started weeping, said person had left the victim, consequently, she rushed to her house. It was alleged that complainant went behind to Gurudwara along with her daughter, where her daughter identified the accused as uncle who had sexually assaulted her. Consequently, police arrested the accused. During investigation, SC No. 93/13 Page 2 of 20 State Vs. Tola Ram statement of victim was got recorded under Section 164 Cr.P.C.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 8/10 of Protection of Children from Sexual Offences, Act. Accordingly, case was registered as SC No. 93/2013.
3. Vide order dated May 15, 2013, a charge for the offence punishable under Section 10 of POCSO Act was framed against accused to which he pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following 5 witnesses:-
PW1 victim
PW2 Const. Ali Naved, formal witness, proved DD No.70B
PW3 HC Hari Om, duty officer, proved the FIR
PW4 Const. Manoj Kumar, joined the investigation with IO
PW5 SI Parveen Mann, investigating officer
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he has shown his ignorance about the incriminating evidence led by the prosecution and submitted that he has been falsely implicated in this case. He took the plea that he was running a small shop at premises No. 19/159, Sarai Basti, Sarai Rohilla. One builder Naveen had an eye on his property. It was submitted that on March 23, 2013, three daughters of complainant came to his shop. They wanted to see his house from inside; he told them that there was nothing to see in his house but since they insisted, he permitted them to see his SC No. 93/13 Page 3 of 20 State Vs. Tola Ram house. It was submitted that in the evening, their mother i.e. complainant came to him and asked him to let out the house on rent but he refused and at that time, complainant raised alarm that he had misbehaved with her and her daughter. It was alleged that complainant and property dealer Naveen intended to grab his property. It was further submitted that at the time of his arrest, key of the premises was given to the police but police kept the same stating that the key would be given to him whenever he would be released and if the key would be misplaced, he could get it prepare a duplicate key. Accused submitted that he has apprehension that his property might have been grabbed by above said persons after implicating him in this false case. It was further submitted that no intimation of his arrest was given to his family members but admitted that one Rishi Gujjar, his neighbour was called by the police at the time of his arrest. He further submitted that though he had put his lock when he was arrested but he did not know whether his property is intact or not. However, he refused to lead any evidence in his defence.
6 Since, accused in his statement under Section 313 Cr.P.C expressed that he has apprehension that complainant in conclusion with builder Naveen might have grabbed his property by implicating him in this case and no intimation of his arrest was given to his family members, a detail report was called from the SHO PS Sarai Rohilla. On October 10, 2013 SHO produced the family members i.e. two sons of accused. On October 11, 2013, SHO submitted his report that the premises was under
the lock and key of accused and the key is in the custody of police and same be handed over to the accused or his representative as and when requested by accused.
7. Learned counsel appearing for accused submitted that SC No. 93/13 Page 4 of 20 State Vs. Tola Ram accused has been falsely implicated in this case and due to that reason, no effort was made to join any independent witness. It was submitted that PW5 admitted in his cross-examination that he had not taken any action against public person who refused to join the investigation. It was further submitted that no reliance can be placed on the testimony of PW1 as there is inconsistency in his statement recorded under Section 161 Cr.P.C and 164 Cr.P.C.
8. Per contra, learned Additional Public Prosecutor submitted that from the testimony of PW1 it is established beyond reasonable doubts that accused had sexually assaulted the victim who was just 5 or 6 years old at the time of alleged incident. It was further submitted that presumption under Section 29 and 30 of Protection of Children from Sexual Offences, Act are also in favour of prosecution. Since, during trial, accused failed to adduce any evidence contrary to the testimony of PW1, it was submitted that there is no reason to disbelieve the testimony of PW1 which appears otherwise to be trustworthy.
9. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
10. Before dealing with the contentions raised by counsel for both the parties, I deem it appropriate to refer to the relevant provisions of the POCSO Act.
11. Under Section 29 of POCSO Act, presumption qua certain offences is in favour of prosecution and same reads as under:
SC No. 93/13 Page 5 of 20State Vs. Tola Ram
29. Presumption as to certain offences -
Where a person is prosecuted for committing or abetting or attempting to commit any offence under section 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
(emphasis supplied)
12. On bare perusal of Section 29, it becomes clear that if a person is prosecuted for committing or abetting or attempting to commit any offence punishable under Sections 3, 5, 7 & 9 of POCSO Act, Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. In the instant case, accused has been prosecuted for committing the offence of sexual assault as defined under Section 9 of the Act, thus, in terms of Section 29 of the Act, this Court is bound to draw a presumption in favour of the victim that accused had committed the offence unless contrary is proved by the accused. In other words, the onus is upon the accused to establish that he had not committed the offence of sexual assault. Admittedly, in the instant case accused has not adduced any evidence in his defence. In other words, he has not rebutted the said presumption in any manner, thus, this Court has no reason not to draw the presumption in favour of the victim.
13. Similarly, under Section 30 of POCSO Act, Special Court has to draw the presumption in favour of prosecution where culpable mental state is required on the part of accused. Section 30 reads as under:-
SC No. 93/13 Page 6 of 20State Vs. Tola Ram
30. Presumption of culpable mental state
- (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purpose of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation- In this section, "culpable mental state"
includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
(emphasis supplied)
14. Bare perusal of the Section 30 of the Act reveals that whenever a question of culpable mental state on the part of the accused is required to prove the guilt of accused, Court shall presume the existence of said mental state. Though accused can take the defence to prove the fact that he had no such mental state with respect to his act but accused has to prove the said fact beyond reasonable doubt and not by showing its existence by establishing preponderance of probability. Thus, under Section 30 of the Act, liberty is given to the accused to take a defence that he had no such mental state qua his act but he has to prove the said fact beyond reasonable doubt. In the instant case, accused has neither taken any such defence nor adduced any evidence, thus this Court is bound to draw a presumption that accused had culpable mental state qua his act.
SC No. 93/13 Page 7 of 20State Vs. Tola Ram
15. 'Culpable mental state' is defined in the explanation to Section 30 of the Act which includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. To bring home the guilt of accused under Section 9 of the Act, prosecution has to establish sexual intention on the part of accused but in terms of Section 30 of the Act, Special Court is bound to draw a presumption in favour of the prosecution that accused had such intention unless presumption is rebutted by the accused beyond reasonable doubt. But in this case, presumption is not rebutted by the accused in any manner.
16. Though prosecution has examined as many as five witnesses, yet prosecution case is based on the sole testimony of PW1. Since, other witnesses had not witnessed the incident, their testimony are not relevant to prove the culpability of accused. Learned counsel appearing for accused tried to assail the testimony of PW1 on the ground that since there is inconsistency between her statement made under Section 161 Cr.P.C and 164 Cr.P.C, hence no reliance can be placed on her testimony.
17. Now question arises as to whether there is any inconsistency between the testimony of PW1 as argued by learned counsel for accused. Perusal of the statement of victim recorded under Section 164 Cr.P. C reveals that victim had alleged that accused had called her inside his shop on the pretext of giving a ladoo and thereafter, he had given a teeth bite on her cheeks whereas in her statement under Section 161 Cr.P.C, besides the above, victim also alleged that accused had taken her in his lap and also removed her pant and thereafter, he touched her body with his hands. Thus, it becomes clear that there is some contradiction between the statement of victim recorded under Section 161 Cr.P.C and 164 Cr.P.C . However, it is well settled law that statement recorded under SC No. 93/13 Page 8 of 20 State Vs. Tola Ram Section 161 Cr.P.C cannot be used for any purpose except for contradictions. Similarly, it is also well settled law that the statement recorded under Section 164 Cr.P.C is not a substantive piece of evidence. The statement made in the Court is substantial piece of evidence and Court has to decide the case on the basis of statement made by witnesses in the Court and not on the basis of their statement made before the police and under Section 164 Cr.P.C. Indisputably, in her deposition, victim has not deposed that accused had removed her pant or he had touched her body after removing the pant. In these circumstances, the allegations levelled in her statement recorded under Section 161 Cr.P.C that accused had touched her body after removing her pant is not proved during trial. However, it is clear that victim has categorically testified that the accused had given teeth bite on her cheeks after taking her inside his shop. She further deposed that accused had given a ladoo to her and thereafter, he took her inside the shop. This shows that accused had taken the victim inside his shop on the pretext of giving a ladoo to her. She categorically deposed that accused did nothing else except giving teeth bite on her cheeks. In her cross-examination she deposed that when accused had given teeth bite on her cheeks, impression of teeth appeared on her cheeks When a question was put to the victim, as to whether accused had kissed her due to affection or love or he had given teeth-bite, victim clarified that accused had given teeth bite to her. In these circumstances, there is no reason to disbelieve the testimony of PW1 that accused had taken the victim inside his shop on the pretext of giving a ladoo and after giving ladoo, he had given teeth bite to the victim on her cheeks. PW1 identified the accused. Moreover, the identity is not disputed during trial.
18. As already discussed that under Section 29 and 30 of POCSO Act, presumption is in favour of prosecution. Indisputably, accused SC No. 93/13 Page 9 of 20 State Vs. Tola Ram is being prosecuted for the aggravated sexual assault as defined under Section 9 of POCSO Act, thus, in view of Section 29 of the Act, Court is bound to draw a presumption in favour of the victim that accused had given teeth bite on her cheeks after calling her inside his shop on the pretext of giving a ladoo. Similarly, under Section 30 of the Act, Court is also bound to draw a presumption in favour of the victim that accused had given teeth bite with a sexual intent. No doubt under Section 30 of the Act, accused has a right to take defence that he had no such mental state i.e. sexual intent while giving teeth bite or kissed the victim but onus was upon the accused and in terms of sub-Section (2) to Section 30, accused has to prove beyond reasonable doubts that he has no such intention but accused has not led any evidence in his defence to discharge his onus. Though during cross-examination of PW1 an attempt was made to establish that accused had no such sexual intent by giving a suggestion that accused had kissed her due to love and affection, but victim deposed that accused had given teeth bite on her cheeks, which proves that accused had not kissed the victim due to love and affection. In the absence of any contrary evidence on record, this Court has no reason to disbelieve the testimony of PW1.
20. Sexual assault is defined under Section 7 of the Act whereas Aggravated Sexual Assault is defined under Section 9 of the Act. From the testimony of PW1, it is established that accused had touched the body of victim by kissing or giving teeth bite on her cheeks with sexual intents, thus, accused has committed the offence of Aggravated Sexual Assault.
21. As per clause (m) to Section 9 of the Act, whoever commits sexual assault on a child below 12 years it would amount aggravate sexual SC No. 93/13 Page 10 of 20 State Vs. Tola Ram assault. In the instant case, victim was just 5 years old at the time of incident. Thus accused is liable for the aggravated Sexual Assault. During trial, on July 24, 2013, counsel appearing for the accused made a statement that he would not dispute the age of victim and in view of his submission, learned Additional Public Prosecutor requested to drop the name of witnesses relating to prove the age of victim. Admittedly, during investigation, investigating officer filed the birth-certificate of victim and as per the said certificate, victim was born on May 10, 2007 whereas the alleged incident had taken place on March 23, 2013. Thus, she was just above 5 years but less then 6 years at the time of incident. Since, accused committed sexual assault with a girl of less then 12 years of age, he is liable for Aggravated Sexual Assault which is punishable under Section 10 of the Act.
22. Learned counsel appearing for the accused also attempted to assail the prosecution case on the ground that investigating officer failed to examine any independent witness during investigation and he even failed to take any action against the persons who refused to join investigation. In his cross-examination, PW5 deposed that no other public person was ready to make the statement and he did not serve any notice to the persons who refused to join the investigation and he had not taken any legal action against them as they left from there without disclosing their name and address. On the basis of said deposition, it was argued that though the public persons were present at the spot but investigating officer failed to record their statement. Assuming for the sake of arguments that some public persons were present but there is nothing on record which may show that any public person had also witnessed the incident. As per the deposition of PW1, the said incident had taken place inside the shop. It means that persons were not in a position to see what was going on inside SC No. 93/13 Page 11 of 20 State Vs. Tola Ram the shop. Moreover, under Section 29 & 30 of POCSO Act, presumptions are in favour of the victim. Thus, the testimony of victim cannot be discarded mere on the ground that the investigating officer failed to record the statement of any public person. Admittedly, in the instant case, accused has failed to adduce any evidence to show even prima-facie that the alleged incident had not taken place. In the absence of any cogent evidence on record, I do not find any substance in the contention of learned defence counsel.
23. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeed to bring home the guilt of accused for the offence punishable under Section 10 of POCSO Act beyond the shadow of all reasonable doubts, thus, I hereby hold the accused Tola Ram guilty thereunder.
Announced in the open Court on this 31st day of October, 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 93/13 Page 12 of 20 State Vs. Tola Ram IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 93/13 ID No. 02401R0224102013 FIR No. : 136/13 Police Station : Sarai Rohilla Under Section : 8/10 POCSO Act State Versus Tola Ram S/o Mangli Chand R/o H.No. 19/152, Sarai Basti, Sarai Rohilla, Delhi .............Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Pankaj Sharma, Advocate, Amicus Curiae for the Convict ORDER ON THE POINT OF SENTENCE (ORAL):
SC No. 93/13 Page 13 of 20State Vs. Tola Ram
1. Vide separate judgement dated October 31, 2013, accused has been held guilty for the offence punishable under Section 10 of Protection of Children from Sexually Offences Act.
2 Learned counsel appearing for the convict requests to take a lenient view on the ground that he is a mature person of 50 years old having no criminal antecedent. Though he has a family, yet he is living separately since long and belonged to a low strata of society. It is further submitted that though complainant alleged that convict had touched the body of victim aged about 6 years after removing her pant and had given teeth biting when kissed her, yet during trial victim did not support the allegation that convict had touched her body after removing her pant. It is further submitted that even as per the judgement, convict had done nothing except giving teeth biting while kissing the victim. It is submitted that the possibility that convict had kissed the victim due to love and affection can not be ruled out. It is submitted that considering the age of the convict and his previous unblemished record, convict be released for the period already undergone.
3. Per Contra, learned Additional Public Prosecutor for the State controverted the above contentions and submitted that to protect children from sexual offences, legislature has enacted the POCSO Act and provided minimum sentence for the offence punishable under Section 10 of the Act, which may extend up to seven years. It is submitted that since legislature has provided minimum sentence, Court should not impose lesser sentence than the minimum sentence as provided under the Act as it would defeat the very purpose of the Act.
4. I have heard rival submissions advanced by counsel for both the SC No. 93/13 Page 14 of 20 State Vs. Tola Ram parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. No doubt, convict has been held guilty for commission of the offence of aggravated sexual assault as defined under Section 9 of the Act, which is punishable under Section 10 of the Act. Indisputably, minimum sentence of five years imprisonment which may extend up to seven years imprisonment is prescribed for the commission of offence of aggravated sexual assault. Sexual assault is defined under Section 7 of the Act as under:
"Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
6. From bare perusal of Section 7 of the Act it is limpid that its scope is quite large and it also includes from touching of vagina to hand or any other part of the body of a female child. Indisputably, touching of vagina is graver than touching of breast of a female child. Similarly, touching of breast is graver than touching of waist of a female child. Similarly, touching of waist is graver than touching of arm of a female child. But unfortunately, same minimum sentence i.e three years is provided for all above acts. Even no discretion has been given to Courts to impose less sentence than the period of three years in any circumstances. In other words, legislature has considered that same minimum sentence i.e. three years imprisonment should be awarded to the offender irrespective of the fact whether he has SC No. 93/13 Page 15 of 20 State Vs. Tola Ram been held guilty for touching the more sensitive parts of a child like vagina, penis, anus or breast or he has been held guilty for touching of other less sensitive parts of body of the child. In other words, legislature has ignored the gravity of offence while determining the quantum of sentence.
7. No doubt, under Section 8 of the Act, minimum sentence of three years can be extended up to five years, thus, it can be argued that Courts can impose minimum sentence of three years for touching less sensitive parts of the body of a child whereas sentence of more than three years can be awarded for touching more sensitive parts of the body. But this is not the criteria of determining the sentence under Section 8 of the Act, which runs as under:
"Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
8. Bare perusal of Section 8 reveals that Courts have no option except to award minimum sentence of three years. Similarly, there is nothing under Section 8, which may indicate that Courts should award more than three years punishment for touching the more sensitive parts like vagina, penis, anus, breast etc whereas minimum sentence of three years should be impose for touching less sensitive parts of the body. Moreover, there may be numerous circumstances which may be aggravating factors to award more than prescribed minimum sentence. For instance, if a offender kisses the whole body of a child in a public place, in such a situation, offender may deserve more sentence than minimum as prescribed under the Act.
SC No. 93/13 Page 16 of 20State Vs. Tola Ram
9. Aggravated sexual assault is defined under Section 9 of the POCSO Act. Sexual assault as defined under Section 7 becomes aggravated when it is either committed by a person as classified under Section 9 or with certain type of victims or it is committed by more than once. Since, in the instant case victim was below the age of 12 years, Section 9 of POCSO Act is attracted. Punishment for aggravated sexual assault is provided under Section 10 of the Act wherein minimum sentence is provided for five years which may extend up to seven years, Section 10 reads as under:
Punishment for aggravated sexual assault-"Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which my extend to seven years , and shall also be liable to fine."
(emphasis supplied)
10. In this regard the observations of Apex Court in Jagmohan Singh v. State of U.P., AIR 1973 SC 947 are relevant and same are reproduced as under:
"In India the difficulty encountered by the Commission had been overcome long ago and it is accepted by the public that only the Judges shall decide the sentence. Where an error is committed in the matter of sentence the same is liable to be corrected by appeals and revisions to higher Courts for which appropriate provision was made in the Criminal Procedure Code. The structure of our criminal law which is principally contained in the Indian Penal Code and the Criminal Procedure Code underlines the policy that SC No. 93/13 Page 17 of 20 State Vs. Tola Ram when the Legislature has defined an offence with sufficient clarity and prescribed the maximum punishment therefore, a wide discretion in the matter of fixing the degree of punishment should be allowed to the Judge. It was further observed by the Court that the policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. Take, for example, the offence of Criminal breach of trust punishable under Section 409 IPC. The maximum punishment prescribed for the offence is imprisonment for life. The minimum could be as low as one day's imprisonment and fine. It is obvious that if any standards were to be laid down with regard to several kinds of breaches of trust by the persons referred in that Section, that would be an impossible task. All that could be reasonably done by the Legislature is to tell the Judges that between the maximum and minimum prescribed for an offence, they should, on balancing the aggravating and mitigating circumstances as disclosed in the case, judicially decide what would be the appropriate sentence. Take the other case of the offence of causing hurt. Broadly, that offence is divided into two categories - simple hurt and grievous hurt. Simple hurt is again sub-divided - simple hurt caused by a lethal weapon is made punishable by a higher maximum sentence - Section 324. Where grievous hurt is caused by a lethal weapon, it is punishable under Section 326 and is a more aggravated form of causing grievous hurt than the one punishable under Section 325.
Under Section 326 the maximum punishment is imprisonment for life and the minimum can be one day's imprisonment and fine. Where a person by a lethal weapon SC No. 93/13 Page 18 of 20 State Vs. Tola Ram causes a slight fracture of one of the un-important bones of the human body, he would be as much punishable under Section 326-IPC as a person who with a knife scoops out the eyes of his victim. It will be absurd to say that both of them, because they are liable under the same section should be given the same punishment. Here too, any attempt to lay down standards why in one case there should be more punishment and in the other less punishment would be an impossible task."
11. It is also settled law that the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.
12. In the light of above discussion, I am of the view that to award appropriate sentence after considering all facts including aggravating and mitigating factors, some discretion should be given to the Courts while determining the quantum of sentence particularly when the scope of sexual assault is too large. To my mind, same minimum sentence for touching of more sensitive parts such as vagina or anus or penis of a child and for touching of non sensitive or less sensitive parts of body is not in the interest of justice. But Courts are bound to perform their duty and to award sentence in accordance with existing provisions of law unless and until the SC No. 93/13 Page 19 of 20 State Vs. Tola Ram provisions are amended suitably either by the legislature or clarified by the Higher Courts. Under Section 10 of POCSO Act, Court has no option except to award minimum sentence of imprisonment of five years, thus, this Court has no other option except to award the minimum sentence. No doubt, age of the convict and the fact that he is first offender having no criminal antecedent are the mitigating factors in favour of the convict, but in view of provisions of Section 10 of the Act, this Court is unable to give due weightage to the said mitigating factors.
13. In view of the above, I hereby sentence the convict Tola Ram rigorous imprisonment for five years and a fine of ` 1000/- in default simple imprisonment for 10 days for the offence punishable under Section 10 of the POCSO Act.
14. Benefit of Section 428 Cr.P.C be given to the convict.
15. Copy of judgment along with order on the point of sentence and copy of entire charge-sheet along with all depositions be given to the convict/his counsel free of cost.
16. File be consigned to record room.
Announced in the open Court on this 1st day of November 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 93/13 Page 20 of 20