Delhi District Court
State vs . Dashrath on 1 July, 2017
1
In the court of Ashwani Kumar Sarpal, Addl. Sessions Judge
cum Presiding Officer of Special Court under POCSO Act,
(East District), Karkardooma Courts, Delhi.
FIR NO.524/14
PSKalyan Puri
U/S354/506 IPC &
8 OF POCSO ACT
STATE VS. DASHRATH
(SC117/14)
***************
JUDGMENT: As per record, accused remained in custody from 872014 till 622017. Initially charge for offences under section 354 and 506 IPC as well as section 8 of POCSO Act was framed against accused vide order dated 292014 but lateron the charge for offence of sexual assault under section 8 of POCSO Act was amended and altered to aggravated sexual assault under section 10 of POCSO Act on basis of application of prosecution moved under section 216 Cr.P.C. due to the fact that age of victim was less than 12 years at the time of incident. Accused pleaded not guilty to the charges framed against him. After alteration of the charge, accused even did not opt to recall any witness again for further cross examination. In his statement recorded u/s 313 Cr.P.C., accused described himself as an innocent person and denied committing of any offence.
2PROSECUTION ALLEGATIONS: On 1562014 at 4.55 p.m., on receipt of PCR call bearing DD no. 34A made by uncle regarding teasing of his niece by one boy, ASI Shiv Murti along with Ct. Raj Kumari reached at house no. 21/144, Kalyan Puri where victim child aged about 8 years (whose identity is hereby withheld) and her mother Smt. Santosh met. Victim was sent to LBS hospital for medical checkup. However, in the alleged history given to doctor, it was reported by victim and her mother that on 1362014 at 5 p.m., neighbour namely Dashrath grappled with victim and tried to remove her cloths when she was playing on terrace of her house. Mother of the victim however refused for internal medical examination of the child. Both victim and her mother also refused to give any statement to IO ASI Gyan Amba who had reached in the hospital and taken over the investigation from ASI Shiv Murti. On the basis of DD no. 34A and history of sexual assault given in MLC, FIR was got registered by the IO ASI Gyan Amba at 10.55 p.m. on the same day. Mother of the victim did not cooperate with IO and also did not allow the statement of victim recorded under section 164 Cr.P.C. on the pretext that victim was not well. She also did not want to take any action against the accused who had also absconded by that time.
Thereafter, case was assigned to SI Malti Bana who arrested the absconding accused on 872014 and his medical examination was conducted. Then statement of victim was recorded by MM concerned on 972014. At that stage, mother and uncle of the victim gave their statements to the police. IO after completion of investigation, filed the charge sheet in court and due to not pleading guilty by accused, trial started.
3EVIDENCE LED: Prosecution in order to prove its case examined following total 11 witnesses;
PW1 Sh. R.P. Meena, principal of school where victim was studying proved the admission and birth record of the victim. PW2 is the minor victim (whose identity is not being disclosed herewith) PW3 Sh. Chiranji Lal simply gave his mobile phone to maternal uncle of the victim (PW4) in order to call the police on 1562014. PW4 Sh. Surender Kumar is the maternal uncle of the victim who called the police and got the absconding accused arrested subsequently.
PW5 Smt. Santosh is the mother of the victim.
PW6 HC Ram Kishore duty officer simply recorded formal FIR after receipt of rukka from IO.
PW7 Ct. Raj Kumari associated with the first IO ASI Shiv Murti and reached at the house of the victim after receipt of PCR call and from there took victim to hospital for her medical examination. PW8 Ct. Manoj Kumar associated with the third/last IO SI Malti Bana at the time of arrest of the accused and is a witness of his formal arrest and personal search. He also took accused to hospital for his medical examination, PW9 ASI Shiv Murti being the first IO had reached house of victim and took her to hospital for medical examination and handed over the investigation to second IO ASI Gyan Amba there.
PW10 ASI Gyan Amba is the second IO who partly investigated the case.
4PW11 SI Malti Bana being the third/final IO of the case proved the arrest of the accused. She got the accused medically examined and got recorded the statement of victim under section 164 Cr.P.C. as well as completed the remaining investigation and ultimately filed the charge sheet in court.
It is important to mention here that accused during his statement u/s 294 Cr.P.C. admitted his own two MLC Ex. PA1 and PA2 as well as MLC of the victim Ex. PA3 prepared by doctor. He in his statement under section 313 Cr.P.C. totally denied the allegations of prosecution but did not opt to lead any evidence in defence.
REASONS FOR DECISION: I have heard Addl. PP for state and counsel for the accused and gone through the record. Following points arose during arguments;
(a) There is no dispute about age of the victim: PW1 is the principal of the school who proved the admissionwithdrawl register of the school and birth certificate of victim which shows that she was born on 122006. It means that on the date of incident, victim was just 8 years old. No dispute was raised on behalf of the accused regarding age of the victim, so she comes within the definition of 'child' as given under section 2 (d) of POCSO Act and this Act becomes applicable in the present circumstances.
(b) Admissibility of statement of victim recorded u/s 164 Cr.P.C.: Police got the statement of the victim Ex. PW2/A recorded under section 164 Cr.P.C. from the Metropolitan Magistrate concerned but 5 that MM is not summoned to prove the fact of recording it. However, statement of victim u/s 164 Cr.P.C. was recorded by the Metropolitan Magistrate in discharge of his official duties under law so the same can be taken into consideration even without its formal proof by the concerned MM. Otherwise also victim PW2 in her deposition proved this statement being given by her to the MM concerned, so it has to be read in evidence especially when no cross examination was done on the same. Moreover, this statement u/s 164 Cr.P.C. can be treated as a part of the judicial proceedings performed by the judicial officer so is perse admissible in evidence. Hence, no benefit can be given to the accused merely due to non examination of the MM concerned in the court. Mere fact that mother and uncle of the victim had also accompanied the victim to the court on the day when her statement was recorded does not mean that they had tutored the victim to depose against the accused falsely.
(c) Whether victim was a tutored witness: Victim PW2 at one stage of her cross examination stated that her maternal uncle and police aunti had told her what she have to say in the court on that day. From this simple submission of the victim, it can not be presumed that she was a tutored witness. Otherwise also, victim subsequently clarified that she was only told by her uncle and police aunti to tell whatever she had earlier stated. If the statement of the victim PW2 is read as a whole, then I find no ground to hold that she was tutored by anyone to depose in a particular manner. Maximum it can be said that her uncle or IO had refreshed her memory. If any one including family member refreshes the memory of the very small child aged about 8 years before giving statement in court, then that act does not amount to tutoring her. Moreover, the court before recording statement of victim put various preliminary questions to her and after satisfying that she was 6 a competent witness started recording her statement which also leads to the inference that victim was not under any influence or pressure at the time of giving statement in court. Thus, the plea taken by the counsel for the accused that statement of victim cannot be relied upon being tutored witness is hereby rejected.
(d) Victim is reliable and trustworthy: Victim in her statement given in the court as PW2 described in detail how and in which manner, accused committed 'badtameezi' with her. As per victim, accused took out her pant and made her to lie down on the floor and then he lied upon her. She also stated that at that time her face was facing the floor. Accused had also removed his pant before lying on her and she also felt something wet on her back. Nothing substantial has come in the cross examination of the victim which indicates that she was telling a lie or was giving imaginary version. Thus, from the above statement of the victim (who even if was minor child of 8 years old), it is fully proved that accused had committed sexual assault on her with sexual intent and feeling though it is not proved that accused actually penetrated his penis into the vagina or anus of the victim. It can be said that act of the accused to penetrate could not be started and he ran away just thereafter due to some reasons. Further more, victim in her statement u/s 164 Cr.P.C. Ex. PW2/A had also corroborated the same story as given in the court and also specifically stated that accused had touched her lower back portion. This statement under section 164 Cr.P.C. can be considered as a material piece of evidence which is also proved by the victim having given to the MM concerned. The act of the accused as described by the victim is fully covered within the definition and purview of 'sexual assault' as defined under section 7 of the POCSO Act because physical contact with sexual intent had already completed. Removing of the pant of the victim and 7 his own pant and then lying upon her indicates that intention of the accused was to commit the sexual offence. When the manner in which 'badtameezi' was done is described specifically and it is found that it was infact an improper touching without any penetrative act, then conviction can be based upon it especially when no cross examination was done in respect of this version of the victim PW2. Even elder normal human being forgets the dates after some times so mere fact that victim could not tell the exact date when the incident happened itself is not sufficient to reject her testimony because it cannot be expected from a minor child of 8 years to remember the dates and days minutely. I find no ground to disbelieve this statement of the victim in this regard. Accordingly, after considering the statement of victim PW2, I am fully satisfied that she is telling truth in the court and her statement can be relied upon being trustworthy.
(e) Identity of the accused fully established: Victim PW2 correctly identified the accused even in court through video conferencing and even stated on seeing him that he was the same person who was living in the adjacent house and had come on the roof by jumping wall and did 'badtameezi' with her. As per mother of the victim PW5, when she went to house of the accused with victim on 1562014 just after coming to know about the incident, then she started weeping loudly. The same thing was repeated by uncle of the victim while appearing in the court as PW4. Victim was also present when the accused was arrested on 872014 and on seeing him, she started weeping as stated by the IO PW11. These versions of PW4, PW5 and PW11 were not disputed in their cross examination in any manner even by putting any contrary suggestion. Otherwise also accused admittedly was living in the adjacent house of the uncle of the victim and there was a common wall between houses and accused was known to the 8 family of the victim so there is no dispute left regarding identity of the accused being the real culprit in any manner. No question of conducting any TIP of the accused arose in such situation.
(f) Delay in lodging FIR: The incident took place on 1362014 in evening hours in the house of maternal grand mother (Nani) of the victim where she had gone during summer vacations. Victim did not tell anyone about the incident though her parents were also present in the said house and started telling to go to her Dadi (grand mother)'s house. On the insistence of victim, she was taken to house of her grand mother on 1462014. There she told about the incident to her cousin (daughter of Bua). Thereafter Bua of victim came to know about the incident and she brought back the victim to her Nani's house on 1562014. There victim told about the incident to her mother PW5 and uncle PW4. Mother of the victim, then went to the house of the accused and she slapped him. Uncle of the victim then called the PCR at 4.55 p.m. from the mobile phone of PW3. Formal FIR was lodged by the police at 10.55 p.m. on the basis of DD entry and MLC on 1562014. Thus, maximum it can be said that there was a delay of about 2 days in reporting the matter to police. PW7 who took victim to hospital for medical examination stated that victim and her mother had given history to the doctor who recorded the same on MLC. Mere fact that thereafter mother of the victim did not cooperate with the IO and opted not to give the statement to the police immediately on the pretext that she did not want to take any action, does not lead to the conclusion that no offence was committed. Mother and other family members of the victim might not have given the statement to the police either due to existence of relationship of neighbourhood or due to apprehension of some social stigma. In such 9 situation, the further delay in giving formal statement to police even after registration of FIR can be excused and not adversely affecting the prosecution case. For this delay, blame cannot be put upon the victim in any manner as she was a minor child at the time of incident and it cannot be expected from such a minor child that she would herself go to the police station and report the matter. Victim in her statement also referred about the threats given by the accused by showing knife not to tell anyone about the incident. It appears that victim could not tell about incident even to her parents immediately due to fear of the accused. The threats were very apparent and had affected the victim badly because she started weeping loudly when her mother took her to house of the accused after coming to know about the incident after two days. Further more, when the mother of the victim came to know about the incident after two days, then also at first stage she did not choose to give statement to police. The act and conduct of the mother of the minor victim not to cooperate with the police and even not allowing the victim to give statement before MM concerned in my view is not fatal to the prosecution case. In such situation, the delay of two days in informing the police can be ignored and subsequent non cooperative attitude of the mother of the victim is not sufficient to hold that a false case was registered against the accused.
When the statement of victim and other witnesses is reliable, then delay in reporting the matter to police is not a serious issue. Otherwise also, this delay is only of two days which can be pardoned in the present facts and circumstances where the heinous offence was committed with a minor aged about 8 years. Prosecution case cannot be discarded merely on the ground of delay of about two days in reporting the matter to police. Thus, the plea raised on behalf of the accused regarding delay in lodging FIR is liable to be rejected.
10(g) Informing the incident first time to cousin instead of parents: Victim in her statement alleged that she had informed about the incident first time to her Bua's daughter on next day i.e. 1462014 instead of her own parents who were present in the same house and were available. It is very difficult to find out what was the mood and mentality of the victim child that she instead of informing her parents, informed about the incident first time on next day to her bua's daughter. Such act of the victim cannot be said as unnatural to disbelieve her totally as very small child may not be able to take a rational decision whether to tell about the incident firstly to her immediately close family members or to others. PW4 in his statement stated that the victim was keeping quiet on the evening of incident and did not tell them anything but was insisting to go to her Dadi's house. Remaining quiet by the victim also leads to the inference that she had come under a shock due to the sexual assault committed upon her and threats given by accused by showing knife. The non informing of her parents and even uncle just after the incident due to fear of accused and shock suffered can be treated as sufficient ground for condoning the delay in lodging the matter to police. In such situation, the testimony of the victim cannot be rejected at all.
(h) Non examination of some witnesses: As per prosecution allegations, victim firstly reported the matter to her Bua's daughter on the next day of incident and then to her Bua who passed over this information to mother of the victim on second day. Prosecution has neither examined Bua nor her daughter but in my view non examination of them is not fatal to the prosecution case as the court has to see the quality of evidence and not the quantity. When some of the prosecution witnesses have to repeat the same things which have 11 already been stated by others in the court, then it is justified not to examine them unnecessarily being the evidence of repetitive nature. PW5 in her statement alleged that police had recorded the statement of her Nanad Smt. Rekha (Bua of victim) but no such statement is found on the record. Even if it is presumed that prosecution has intentionally withheld that statement from the court, then also that will not make the case doubtful. Accordingly, prosecution case can not be seen with any doubt merely due to non examination of some witnesses having repetitive character when the testimony of the victim is trustworthy and reliable.
(j) Uncle of the victim PW4 had no enmity with the accused: There is no dispute of the fact that houses of accused and PW4 are situated just adjacent to each other and roof of both houses is separated only by 2 feet high wall which is very easily crossable. Accused in his statement u/s 313 Cr.P.C. alleged that he was falsely involved in the present case because there was a dispute between him and the maternal uncle of the victim Sh. Surinder (PW4) because he was taking drink while sitting on the roof of his house. Accused who was living adjacent to the house of PW4 was present on the roof of his house. PW4 had asked the accused to go down but he refused. Thereafter PW4 caught the accused and gave him slap and again asked him to go down failing which he would see him and would face the dire consequences. According to the accused this was the reason of his false involvement in this case. However, this defence story is not reliable because no such suggestion was put to PW4 when he appeared in the witness box. Even this story was not put to the victim also in her cross examination but it was simply suggested that her maternal uncle (PW4) was on inimical terms with the accused which 12 fact was denied by the victim. PW4 though is not the eye witness of the incident but he after coming to know the incident from the victim called the police by using the mobile phone of PW3 and subsequently got the accused arrested. His version given in this regard can be relied upon and the defence story as raised by the accused regarding his false involvement in the case due to quarrel with the PW4 is hereby rejected.
(k) Medical report of the victim has to be read along with her statement: Victim was medically examined and MLC prepared in this regard is Ex. PA3 which is admitted by the accused in his statement under section 294 Cr.P.C. Prosecution was not required to prove this MLC when the same was admitted by the accused. No doubt the internal examination of the victim was not done but the alleged history given to the doctor immediately which is reproduced in this MLC can be taken into consideration and has to be read along with the statement of the victim given in court being corroborative evidence. Victim in her statement has stated that when accused had lied down upon her, she felt wet on her back. It may be the semen of the accused but since the medical examination was done after two days of incident and no such traces of semen was found then from mere this fact it cannot be presumed that no such sexual assault took place which is described in this MLC. MLC of the victim does not show existence of any physical injury and even victim in her statement also deposed that she had not suffered any injury. Mere fact that there was no physical injury on the body of the victim does not mean that no sexual assault took place with her as stated. Accordingly, the history of offence given to doctor in MLC of the victim has to be considered being an admitted document.
13(l) Non recovery of knife by the police: Victim deposed in her statement that accused had threatened her by showing a knife that in case she told about the incident to anyone he would kill her. As per victim the knife brought by the accused was a knife used for cutting vegetables. Victim also stated that police had not shown any knife to her. Even no knife was recovered by the police from the possession of the accused. However, mere this fact of non recovery of knife itself is not sufficient to hold that threats were not given. The testimony of the victim regarding threats given are not challenged at all in the cross examination so the court has to believe that accused had also committed offence of giving threats to the victim.
(m) Accused used to drink liquor is no defence: A suggestion was given to the victim PW2 that accused used to drink liquor and she showed ignorance about the same. PW4 in his statement deposed that accused usually remains in inebriated condition which fact was not denied. Even in the cross examination of PW5 a suggestion was put by counsel for the accused and she confirmed that accused usually remains in inebriated condition. However, accused cannot be permitted to take a defence that he had committed the offence under influence of liquor and he had no knowledge what he was doing. Taking a defence that offence was committed under influence of the liquor is not permissible when it is not the case of the accused that he had not taken the liquor voluntarily.
(n) Absconding of the accused: After coming to know about the incident, PW4 and PW5 went to house of the accused immediately on 1562014. PW5 gave him slap and PW4 telephoned to the police but 14 the accused run away meanwhile. He was caught after about one month on 872014. Though there is a contradiction whether the accused was caught on the information given by PW4 to the police or on the basis of secret information as stated by IO PW11 but that is not material because the arrest of the accused on that day is not in dispute. The conduct of the accused in absconding from the police also leads to the inference that he had committed the offence.
(o) Prosecution also proved various investigation aspects: From the statement of police witnesses, recording of formal FIR, preparation of different memos etc. are proved. How and in which manner, particular investigation was done and what documents were prepared are proved by these officials. The police officials who investigated the matter at different stages had no enmity with the accused so the motive imputed to them that they falsely implicated the accused in this case at behest of PW4 is liable to be rejected. Mere non joining of any resident of the locality where accused was arrested or when inquiry was made from the victim and her mother is not sufficient to hold that police officials are to be disbelieved.
I find no serious contradictions in the statement of witnesses to hold that they are not trustworthy. In view of the above discussions, it is hereby held that prosecution has fully proved the case beyond doubt. It is established on record that accused had committed offence of sexual assault upon the minor victim aged about 8 years and she was also threatened by showing knife to kill in case she disclosed about the incident to anyone. The act of removal of cloths of the victim and touching her was with the intention to outrage her modesty also. Accused has also failed to rebut the presumption existing against him in respect of his culpable mental state to commit the offence as defined under section 30 of the POCSO Act.
15Accordingly, the accused is hereby convicted for offence under section 354 and 506 IPC and section 10 of POCSO Act. Let he be heard on point of sentence.
Digitally signed by ASHWANI ASHWANI KUMAR SARPAL
KUMAR SARPAL Location: Delhi
Date: 2017.07.01 15:14:30 +0530
Dated172017. (Ashwani Kumar Sarpal)
Addl. Sessions Judge1
Judge, Special Court, POCSO