Delhi District Court
Sc No. 182/14 : Fir No. 730/14 : Ps Aman ... vs Sudarshan on 10 December, 2015
SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 182/14)
Unique Identification No.: 02404R0292992014
State V/s Sudarshan
FIR No. : 730/14
U/s : 354/376/511 IPC & Sec. 10 of POCSO Act
P.S. : Aman Vihar
State V/s Sudarshan
S/o Shree Ram Prajapati
R/o B337, Gali no. 2, Gauri Shankar Enclave,
Prem NagarII, Delhi.
Date of institution of case : 12.09.2014
Date of arguments : 23.11.2015
Date of pronouncement of judgment : 08.12.2015
J U D G M E N T:
BRIEF FACTS OF THE CASE :
1. The facts of the case as borne out from the record are that on 10.07.2014, at Page 1 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan about 6.00 pm, on the direction of SHO, PS Aman Vihar, duty officer produced copy of DD no. 56B, Ex. PW8/A as well as child A, aged about 6 years, (hereinafter referred to as 'child victim'), and her mother/PW11 Smt. Bindu Devi before PW14 W/SI Manisha, who made initial inquiries from them and after getting the child victim and her mother counseled, she recorded statement of PW11, wherein she stated that on 10.07.2014, at about 2.30 pm, child victim had gone to purchase toffee from a nearby kiryana shop and returned back at about 2.40 pm, weeping and told that shopkeeper i.e. accused had climbed over her back, removed her underwear down and dropped some water like sustance on her hip.
PW11 further stated that on hearing this, she along with child victim had gone to the house of the accused, but mother of the accused started quarreling with her and then, her husband made a call to police. She further stated that accused had attempted to commit a wrong act with child victim and requested for legal action against accused.
On the basis of the aforesaid statement of the mother of child victim, the present case FIR was registered and investigation of the case was carried out by PW14 W/SI Manisha. During the course of investigation, PW14 got the child victim medically examined at SGM Hospital and prepared the site plan at the instance of complainant. Accused was arrested and pointing out memo of the place of occurrence was prepared. Accused was medically examined and his potency test Page 2 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan was got conducted. Age documents of the child victim were collected. Statement of the child victim u/s 164 Cr.P.C was got recorded. After conclusion of the investigation, the charge sheet was prepared and filed in the court.
2. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. On 29.01.2015, charges u/s 9 (m) of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "Act"), punishable u/s 10 of Act read with Section 18 of the Act, 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 14 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 child victim at the instance of her mother. The accused did not lead any defence evidence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Ms. Dhaneshwari, ld. defence counsel for the accused and perused the entire material on record as well as written submission filed on behalf of the accused. Before adverting to the arguments advanced at bar, it would be Page 3 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories :
(a) Child victim and her family members
(b) Evidence with regard to the age of the child victim
(c) Medical Evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation.
(a) Child victim and her family members
5. The child victim in the present case was examined as PW12 and the
relevant portion of her testimony is as under :
"xxxxx
Q: Beta Kya hua tha?
A. Mein school se aakar toffee lene gayi thi.
Wahan par, dukan wale bhaiya ne mujhe dukan me andar le liya, aur meri pajami utar kar, mere upar pichhe se chadh gaya. Wo mujhe chhod nahi rahe the, main rone lagi. Phir unhone mere pichhe pani dal diya.
Q. Beta, kab ki baat h ye?
A. Din ki baat hai.
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Q. Beta, phir kya hua ?
A. Mein rote hue ghar aayi, aur mummy ko sab
bata diya.
Q. Beta, phir kya hua ?
A. Phir papa ne police bula li, aur police mujhe
hospital lekar gayi.
Q. Beta kya aap pehle bhi court aaye the ?
Ans. Haan.
Q. Kaya aap aaj us dukan wale bhaiya ko pehchan
logi ?
A. Haan. (witness has correctly identified the
accused and on seeing him, the child has got scared.
xxxxx"
During her crossexamination by learned defence counsel, the witness stated as under : Q. Beta jab aap toffee lene gaye the, to gali me koi tha ? Ans. Nahi.
Page 5 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan Q. Jo dukan wale bhaiya hai, unke mummypapa se aap baat karte the ?
Ans. Nahi.
Q. Kaya dukan wale bhaiya aur uske mummypapa apke ghar aye the ?
Ans. Haan. Unke mummypapa ek bar aye the, jab dukan wale bhaiya pakde gaye the.
Q. Beta apko kisne bataya ki dukan wale bhaiya pakde gaye ? Ans. Mujhe pata tha.
Q. Beta aap toffee ke liye kitne paise lekar gaye the ? Ans. Ek rupya.
Q. Beta aap kitni bar us dukan par toffee lene jate the ? Ans. Main kai bar jati thi.
Q. Kaya bhaiya ke mummy papa bhi dukan par baithte the ? Ans. Haan. Kabhikabhi.
Q. kaya aap unke ghar me bhi aatejate the ?
Ans. Nahi.
Q. Kaya apke mummypapa aur bhai behan apke sath us dukan par chij lene jate the ?
Ans. Mummy papa kabhi nahi jate the. Bhai Behan jate the. Page 6 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan Q. Beta aaj apne jo bola, wo mummy ke kehne par bola hai, ya esa hua tha ?
Ans. Esa hua tha.
Q. Jab aap toffee lene dukan par gaye the, to kaya bhaiya ke mummy papa bhi us samay, dukan me the ?
Ans. Nahi.
6. PW11 Smt. Bindu Devi, mother of the child victim deposed that on 10.07.2014, child victim came from her school at about 2.00 pm and after some time, she went to purchase a toffee from a nearby shop and after 10/15 minutes, she returned back weeping. She further deposed that on her inquiry, child victim told her that "dukan wala bhaiya meri peeth par upar chadh gaya tatha meri pehni hui kachhi ko niche karke mere chutad par pani jaisa kuch dal diya", and on hearing this, she along with child victim went to the house of accused, where mother of the accused started quarrelling with her. She further deposed that in the meanwhile, her husband also reached there and called the police at 100 number, on which police reached at the spot. The witness further deposed about her counseling, about recording of her statement Ex PW11/A by the police, about medical examination of child victim, about preparation of site plan of the place of Page 7 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan incident by the police at her instance as well as at the instance of child victim. She further deposed about recording of statement of child victim by one Judge Sahib and about arrest and personal search of the accused vide memos Ex. PW11/B and Ex. PW11/C. During crossexamination by learned defence counsel, the witness termed it correct that there were other houses near her house. She further stated that there was only one shop in their gali and that was of the father of the accused and though, in the morning and evening time, a number of passersby used to pass through her gali, but generally, during noon time, the gali was not very busy. She further stated that the shop of the accused was at a distance of about 15 paces from her house. She volunteered to state that the accused had confessed his guilt to her and sought for her forgiveness. She further stated that at the time of incident, no neighbour was present in the gali.
7. PW9 Sh. Bigan Kumar, father of the child victim, deposed that on 10.07.2014, at about 2.00 PM, on receipt of call from his wife/PW11 Smt.Bindu Devi that accused had done "galat kaam" with child victim, he immediately reached his house and found a large number of persons having gathered there and on hearing the matter from his wife, he called the police at 100 number and police Page 8 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan reached at the spot and conducted investigation in the matter.
During crossexamination by leanred defence counsel, the witness stated that on the date of incident, he had received phone call from his residential phone number.
(b) Evidence with regard to age of the child victim
8. The prosecution has examined PW2 Sh. Raman Kumar, Asstt. Teacher, Nigam Pratibha Kanya Vidhyalaya, Mundka (old), Delhi, who produced the record regarding admission of child victim in the said school and deposed about the date of birth of child victim to be 13.10.2008, on the basis of the record maintained in the school, which is the school first attended by the child victim.
The defence in crossexamination of this witness has not seriously disputed the date of birth of the child victim. The child victim was admittedly aged about 5 years and 11 months, on the date of incident.
(c) Medical evidence
9. PW4 Dr. Vijay, CMO, had examined the accused vide MLC Ex. PW4/A and deposed regarding the potency of the accused.
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10. PW5 Dr. Geeta Aggarwal, SR Gynae, has proved the MLC of the child victim as Ex. PW5/A by identifying the handwriting and signatures of Dr. Rashmi Verma and deposed regarding the same.
(d) Evidence of Formal witnesses
11. PW1, HC Kulvinder Kumar, was lying posted as duty officer in PS Aman Vihar at the relevant time and he has proved the computerized copy of FIR as Ex. PW1/A and certificate u/s 65 B of Evidence Act as Ex. PW1/B.
12. PW3, Ms. Meenu Kaushik, ld. M.M, in her evidence has proved statement of the child victim as Ex. PW3/B, recorded by her under Section 164 Cr.P.C on 07.04.2015.
13. PW6 W/Ct. Manju had got the child victim medically examined at SGM Hospital and deposed regarding the same.
14. PW7, L/Ct. Anita was lying posted as Channel Operator at CPCR and she proved the PCR form as Ex. PW7/A, filled by her and certificate u/s 65B of the Evidence Act as Ex. PW7/B. Page 10 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan
15. PW8, Ct. Sandeep had recorded the DD no. 56B Ex. PW8/A and deposed regarding the same.
16. PW10 Sh. Ram Babu, a neighbour of the accused, deposed that Sri Ram, father of the accused was having a shop in his house and said shop was being run by Sri Ram and his wife and sometime, accused also used to sit on the said shop.
(e) Evidence of police officials of investigation
17. PW14 SI Manisha is the investigating officer of the case and she deposed that on 10072014, at about 6.00 p.m., on entrustment of DD no. 56B Ex.PW8/A to her, duty officer produced child victim and her mother before her and she made inquiry from them and after getting the child victim and her mother counseled, she recorded the statement Ex. PW11/A of Smt. Bindu Devi and thereafter, got the child victim medically examined at SGM Hospital, Mangol Puri vide MLC Ex.PW5/A. She further deposed that thereafter, she made endorsement on the statement of Smt. Bindu, prepared rukka Ex.PW14/A and got the FIR in the matter registered. She further deposed that on 22082014, on assignment of the further investigation of the case after addition of Section 376/511 IPC, she Page 11 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan recorded the statement of the relevant witnesses and thereafter, prepared the charge sheet and filed the same in the court.
18. PW13 SI Kamlesh Kumar, subsequent IO of the case deposed that on 10072014, on entrustment of the investigation after registration of FIR, he reached at the spot and prepared site plan Ex. PW13/A of the scene of occurrence at the instance of Smt. Bindu Devi. The witness further deposed about arrest and personal search of the accused on 11.07.2014, on the identification of Smt. Bindu Devi, vide arrest memo Ex. PW11/B and personal search memo Ex. PW11/C. He further deposed that accused took them to the place of incident, where he pointed the place of incident vide pointing out memo Ex.PW13/B. The witness further deposed about medical examination of the accused vide MLC Ex. PW4/A and about getting the statement of child victim recorded u/s 164 Cr.P.C vide his application Ex. PW3/A. He further deposed that on 15072014, child victim was produced before CWC, from there her custody was restored to her mother after her counseling vide order Ex.PW13/C. He further deposed about collecting the age proof Ex. PW2/F of child victim from school, about recording of the evidence of witness and preparation of the charge sheet and further deposed that after adding the Section 376/511 IPC, further investigation was conducted by WSI Manisha.
Page 12 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan During crossexamination by learned defence counsel, the witness stated that he did not join the neighborers in preparation of site plan. He further stated that he had prepared the arrest memo, personal search memo and disclosure statement of the accused at the spot in the gali in front of house of the accused. He further stated that the area in question was thickly populated.
Arguments advanced at Bar
19. Ld. Additional Public Prosecutor for the State has very vehemently argued that the child victim is consistent in her statement recorded U/S 161 CrPC, U/S 164 CrPC and her evidence recorded in the court, with regard to the entire process of the commission of sexual assault. It is further argued that the evidence of parents of the child victim besides being corroborative to the evidence of child victim is consistent and as such the conviction of the accused in the matter has been prayed for.
20. Per contra, Ld. Defence Counsel has argued as under:
(a) That there is unexplained delay in recording of FIR in the matter.
(b) That the medical evidence does not support the prosecution case.
(c) That there is no independent corroboration of the evidence of child victim Page 13 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan
(d) That the accused has been falsely implicated in the matter.
21. I have given thoughtful considerations to the arguments advanced at bar and perused the entire material on record. My plea wise findings in the matter are as under:
(a) The plea of delay in recording of FIR in the matter
22. It is argued by Ld. Defence Counsel that the incident in the matter took place on 10.07.2014 at about 2:30 p.m. whereas the FIR was recorded on 11:30 p.m. It is argued that this delay besides being unexplained is fatal to the prosecution case. In this regard, ld. Defence counsel has relied upon the judgment in the case titled as Rajinder Prasad & Anr. vs. State, in Crl. A. 8/2000, decided on 19.05.2014, wherein the Hon'ble High Court of Delhi, has been pleased to hold that : "xxx In criminal trail, one of the cardinal principles is registration of earliest information as FIR. As observed by Hon'ble Supreme Court in Lalita Kumari V/s Govt. of Uttar Pradesh and Ors., MANU/SC/1166/2013 : (2014) 2 SCC1, the object sought to be achieved by registering the earliest information Page 14 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan as FIR in interalia twofold:One, that the criminal process is set into two motion and is well documented from the very start ; and Second, that the earliest information received in relation to the commission of a cognizable offense is recorded so that there cannot be any embellishment, later. In case there is delay in lodging the FIR, the court looks for plausible explanation for the delay in lodging the report. The reason is obvious. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished the version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming to the police or before to the court, the court always views the allegation with suspicion and looks for satisfactory explanation. If no such explanation is found, the delay is treated as fatal to the prosecution case.
xxxx"
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23. The learned defence counsel has also relied upon the judgment in the case titled as Thulia Kali v. The State of Tamil Nadu, MANU/SC0276/1972: (1972) 3 SCC 393, wherein it was held that the delay in lodging the first information report quite often results into embellishment as a result of afterthought. On account of delay the report not only gets bereft of the advantage of the spontaneity, but also danger creeps in, of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation.
24. On the strength of law laid down in the aforesaid judgments it has been argued that because of unexplained delay mentioned herein above the coloured version of case has come on record.
25. Per contra, learned Addl. PP has relied upon the law laid down by the Hon'ble Supreme court in the case of Ramdas & Ors. Vs. State of Maharashtra, (2007) 2 SCC 170, which is reproduced hereunder : "xxx
24. ........... In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police Page 16 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be Page 17 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.
xxx"
26. Reverting back to the facts of the present case the child victim had gone to the shop of accused where she was sexually assaulted by him at about 2:30 p.m. . The child victim came back home weeping and narrated the incident to her mother, who reported the matter to the police at about 3:28 p.m. it was recorded in the Police Station as DD No. 56B ( Ex.PW 8/A). Pursuant whereto HC Pyare Lal went to the spot and he found that the matter was relating to the sexual assault upon a tender age girl. He requested the Police Station to mark the said case to a lady Police Officer. Accordingly the matter was entrusted to Woman SI Manisha Sharma, who had returned back to the Police Station after attending her cases in the court at about 6:00 p.m. and had thereafter made inquiries from the child victim and her parents and she got the child victim counseled through a counsellor from NGO and got the child victim medically examined from hospital and only thereafter the statement of mother of the child victim was recorded and in the process the FIR was ultimately written at about 11:30 p.m. From the aforesaid Page 18 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan narration it is apparent that there was no delay on part of the parents of child victim in reporting the matter to the police. There is clear explanation/justification with regard to slight delay in recording of FIR because of the peculiarity of the case as the child victim was small child of 6 years of age, she was traumatic. She was got counseled and then taken to the hospital for her medical examination which might have taken some time and only thereafter the FIR was registered. Therefore, it is hereby held that the prosecution has explained the slight delay in recording of FIR.
(b) Plea regarding medical evidence not supporting the prosecution case
27. Ld. Defence Counsel has argued that the mother of child victim did not permit the Doctor to conduct internal gynecological examination of child victim and as such except for the narration of alleged history mentioned by the mother of child victim in MLC Ex. PW 5/A there is nothing else suggestive of sexual assault.
The said MLC does not show any kind of injury being sustained by the child victim. This argument of the Ld. Defence Counsel has no weight in the teeth of the facts of the present case. The present case is not a case of commission of penetrative sexual assault. There is further no allegation of the child victim that Page 19 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan she was subjected to brutality, or force having been used against her by the accused while committing sexual assault upon her. Therefore, absence of physical injury in the MLC of the child victim does not go against the case of prosecution. In my considered opinion the medical evidence in this case is inconsequential.
(c) Plea regarding no independent corroboration.
28. Ld. Defence counsel has very vehemently argued that the prosecution case rest solely on the evidence of child victim and despite the public witnesses being available the prosecution has not examined any of them and as such conviction in the matter cannot be based solely upon the testimony of the child victim.
29. I am conscious of the settled proposition of law that the conviction can be based on the sole testimony of a child victim, however the said testimony has to pass the test of trustworthiness and credibility. If the evidence of the child victim is closely scrutinized and is read in conjunction with the other material on record then it would be evident that she is a trustworthy witness and doesn't appear to have been tutored by anybody. It is well settled law that the conviction on the Page 20 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan sole evidence of a 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.
xxxx"
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30. In case of Pancchi Vs. State of U.P., AIR 1998 SC 2726, it was further held : "xxx It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring.
xxx"
31. A perusal of the evidence of the parents of child victim reveals thatthe mother of child victim Smt. Bindu Devi (PW11) in her crossexamination has stated that the shop of the accused was the only shop in the gali and since it was noon time there were not many passers by and as such nobody might have seen the accused committing the sexual assault upon the child victim. Whereas the father of child victim Sh. Began Kumar (PW9) in his evidence has stated that the public persons had gathered at the spot only after the police had arrived at the spot and not prior thereto. Even otherwise in a case of sexual assault the Investigating Officer is not suppose to roam around the spot talking to the persons about the sexual assault Page 22 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan as that will lead to causing further injury upon the modesty of the child victim and her family members. Even otherwise in view of the law laid down in the aforesaid judgments the conviction can be based upon the sole testimony of the child victim provided, it inspires the confidence of the court. Therefore, independent corroboration of the child victim is not warranted in this case.
(d) Plea with regard to false implication of the accused
32. The learned defence counsel has very vehemently argued that the accused was not present at the shop at the time of alleged incident. She has referred to a suggestion in this regard given to the mother of child victim in her cross examination, who had denied the said suggestion. The accused has not produced any positive evidence to prove his absence from the spot at the time of incident.
33. This has to be born in mind that the present case is under Protection of Children from Sexual Offences Act and this act was enacted with the objective that the children of tender age are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in condition of freedom and dignity. The aims and object of the act further consider it imperative that the law operates in a manner that the best interest Page 23 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical emotional, intellectual and social development of the child. The preamble of the Act reads as under : 'An act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.'
34. Therefore, the act is a special act, which has been enacted bearing in mind the child psychology as well as the latent sexual abuse of children in the society as well as family, which is apparent from the provisions of Section 29 and 30 thereof, which are reproduced as under :
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 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.
30. Presumption of culpable mental state - (1) In any prosecution Page 24 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan 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 purposes of this section, a fact is said to be proved only when the Special Court believes it exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
35. In the light of the aim and objects of the Act and the specific provisions like Section 29 and 30 of the Act, reproduced hereinabove, the presumption of innocence of the accused as is available to him under ordinary criminal jurisprudence is not available, in child abuse jurisprudence and the presumption, if any, available under the Act are to be considered strictly in accordance with the provisions of the Act and not under the ordinary criminal jurisprudence. Therefore, the accused has not been able to substantiate his defence in the matter.
36. Now finally, this is required to be seen as to what offence was committed by the accused in the matter and whether the ingredients thereof have been proved by Page 25 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan the prosecution or not. The accused has been charged with the offence punishable u/s 10 of the Act r/s 18 of the Act i.e. aggravated sexual assault upon the child victim.
The word sexual assault has been defined in Section 7 of the Act, which is reproduced 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."
37. A perusal of the aforesaid definition reveals that before an act of assault could be termed to be a sexual assault, the same should have been done by the accused with sexual intent and further that the physical touch with sexual intent has to be at private parts of either victim or accused or both.
38. The prosecution has been able to prove through the evidence of child victim that the accused had removed her underwear, had touched her posterior with sexual intent and had ejaculated on her posterior, therefore, the ingredients of Section 7 of the Act have been established on record. The age of the child victim on the date of incident was about 6 years and this fact has not been disputed by the Page 26 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan defence, therefore, the prosecution has been able to further prove the commission of offence punishable u/s 10 of the Act.
39. Therefore, in view of the above discussion and clear and cogent evidence of the child victim with regard to commission of sexual assault upon her by the accused, the accused stands convicted for the offences punishable u/s 10 of the Act.
40. Let the accused be heard on the point of sentence on 10.12.2015.
Announced in the open Court (Vinod Yadav)
on 08.12.2015 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE:
(NORTHWEST)01: ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 182/14)
Unique Identification No.: 02404R0292992014
State V/s Sudarshan
FIR No. : 730/14
U/s : 354/376/511 IPC & Sec. 10 of POCSO Act
P.S. : Aman Vihar
State
V/s
Sudarshan
S/o Shree Ram Prajapati
R/o B337, Gali no. 2, Gauri
Shankar Enclave,
Prem NagarII, Delhi.
....Convict
10.12.2015
ORDER ON SENTENCE
Pr: Ld.Addl.PP for state.
Convict produced from J.C with ld. Defence counsel.
Page 28 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan ORDER ON THE POINT OF SENTENCE In the present case, the convict - Sudarshan has been convicted u/s 10 of POCSO Act, 2012.
I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and learned defence counsel, for the convict.
2. The learned Addl. PP has very vehemently argued that the sexual assaults upon the minor children are on rise in the society, whereby the mental and physical development of the children gets affected substantially. It is specifically emphasized that the child victim in this case was of tender age i.e. aged about 6 years, when she was sexually assaulted by the convict. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 10 of the Act to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned defence counsel for the convict has argued that convict is a young boy of 19/20 years and is a student and at the time of alleged incident, he was studying in B.com, first year. He further submitted that convict is first time offender having clean antecedents and he has remained in Jail for a period of 18 months during trial of the case. He prays that in view of the aforesaid circumstances of the convict, a lenient view may kindly be taken in sentencing the convict. Page 29 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan
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. The offence, for which the convict has been convicted in the matter, is highly derogatory. However, I cannot loose sight of the fact that convict is a young boy and also a student, having entire future ahead. Bearing in mind, the facts and circumstances of the case in totality, the interest of justice, would be met, if the convict is accorded minimum sentence prescribed under Sections 10 of POCSO Act, for which, the convict stands convicted as he has been able to make out good mitigating circumstances in his favour. I hereby award rigorous imprisonment for a period of 5 (five) years along with fine of Rs. 5,000/, in default of payment of fine, further SI for a period of 6 months, for the offence u/s 10 of POCSO Act.
Benefit of Section 428 Cr.P.C is accorded to the convict.
5. Coming now to the aspect of compensation to the child victim, who is a minor girl aged about 6 years, the Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court that the jurisdiction to pay compensation (interim and final) has to be treated to be a part Page 30 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
6. Even otherwise, the concept of welfare and well being of children is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents Page 31 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire selfconfidence and self respect and a balance view of life with full appreciation and realization of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children Page 32 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goaloriented perambulatory introduction."
7. Therefore, in order to provide Restorative and Compensatory Justice to the victim girls, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation of Rs. 50,000/ (Rs. Fifty thousand only) to the child victim. The said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
8. A copy of this order be sent to learned Secretary, D.L.S.A, North West Distt., Rohini Courts, Delhi and Director, Department of Woman and Child Development, GNCT of Delhi, for information and necessary action under intimation to this Court.
9. The convict is informed that he has a 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, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
Page 33 of 34 SC No. 182/14 : FIR No. 730/14 : PS Aman Vihar : State V/s Sudarshan A copy of judgment and copy of order on sentence be supplied free of cost to convict against receipt.
File be consigned to record room.
(Announced in the open ) (Vinod Yadav)
(Court on 10.12.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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