Delhi District Court
Sc No.152/2014: Fir No.241/2014: Ps ... vs Hari Kishore Dod: 07.05.2015 on 12 May, 2015
SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No.152/2014)
Unique Identification No.: 02404R0241892014
State V/s Hari Kishore
FIR No. : 241/2014
U/s : 341/354D IPC r/w Section 12 of POCSO Act, 2012
P.S. : Subhash Place
State V/s Hari Kishore,
S/o Shri Bhikari Thakur,
R/o House No.600, Shakarpur JJ Colony, Delhi.
Date of institution of case : 04.08.2014
Date of arguments : 07.05.2015
Date of pronouncement of judgment : 07.05.2015
J U D G M E N T:
BRIEF FACTS OF THE CASE:
The facts of the case, as borne out from the record are that on 04.03.2014, on receipt of DD No.39A, which was regarding "chedchad" with an 11 year old girl, WSI Upkar Kaur alongwith W/Ct.Archana reached at I601, JJ Colony, Shakurpur, Delhi, where she met SI Vijay Kumar and Ct.Dinesh. SI Vijay Kumar produced the girl child S (hereinafter referred to as the "child victim") and accused Hari Kishore before her. On coming to know that the matter was pertaining to molestation of child victim, WSI U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 1 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 Upkar Kaur called the member of NGO and got the child victim counselled.
Thereafter, she recorded the statement of child victim, who stated that she was a student of classVI and her father was having a mobile phone shop at I601, Shakurpur JJ Colony. She further stated that whenever she used to go to the shop of her father, the accused, who used to work at H.K Hair Cut Saloon which was just opposite to the mobile shop of her father, used to stare at her. She further stated that on 04.03.2014, at about 8.30 PM when she was going on her electronic scooty, to her house from the shop of her father, accused Hari Kishore came in front of her electronic scooty, showed her a piece of paper on which his mobile phone number was scribbled and asked to make friendship with her. In the meantime, her mother Smt.Aarti Bansal, who was following the child victim on foot also came at the spot and on seeing the mother of child victim, accused ran away from there with that piece of paper.
2. On the basis of aforesaid statement, WSI Upkar Kaur prepared rukka and case FIR in the matter was registered. Thereafter, she prepared site plan, recorded the statement of mother of child victim, collected the MCD DOB certificate of child victim. During the course of investigation, accused was arrested and was got medically examined from Bhagwan Mahavir Hospital, Pitampura, Delhi. Thereafter, on 14.03.2014, statement of child victim was got recorded U/s 164 Cr.P.C and on the next day, i.e 15.03.2014 she was produced before CWC from where her custody was restored to her parents. Since, the accused had raised the plea of juvenaility, IO WSI Upkar U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 2 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 Kaur after completion of investigation, initially filed the chargesheet before JJBII. The JJBII conducted enquiry qua the age of accused and vide its order dated 01.08.2014 came to the conclusion that accused was not a juvenile and hence the chargesheet before this court U/s 12 of Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act") r/w Section 341/354D IPS was filed against the accused.
3. After filing of the chargesheet in the matter, copy thereof alongwith documents was supplied to the accused and after hearing arguments on the point of charge, vide order dated 25.09.2014, charges U/s 11 punishable U/s 12 of POCSO Act r/w Section 354D/341 IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove the charges against the accused, prosecution examined as many as 10 witnesses, whereafter 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 present case at the instance of Smt.Aarti Bansal, i.e the mother of child victim S, however, the accused did not lead any evidence in defence in support of his aforesaid contention.
5. I have heard arguments advanced at bar by the Ld.Addl.PP on behalf of State and Shri S.M Pandey, Ld.Defence Counsel and perused the U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 3 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories:
(a) The evidence of child victim S and her family members;
(b) The evidence w.r.t the age of child victim and accused;
(c) The evidence of formal witnesses and;
(d) The evidence of police officials of investigation.
The evidence of child victim S and her family members:
6. Child victim was examined in the matter as PW9, who in her evidence has deposed on the lines of her statement recorded by the police as Ex.PW9/A as well as her statement recorded U/s 164 Cr.P.C by the Ld.MM as Ex.PW7/B. The material part of the evidence of the child victim is reproduced as under:
xxxxx On 04.03.2014 at about 8.30 PM, I was coming back from my shop to home on my electric scooty. My mother was following me on foot. When I was on the way, accused Hari Kishore (present in court today, correctly identified by the witness through the designs made in the wooden partition) stopped me by obstructing my scooty. Accused Hari Kishore is running a saloon by the name of H.K Hair Cut, just opposite to our shop in IBlock. Accused Hari Kishore offered his phone number on a piece of paper to me and he also offered U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 4 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 friendship. My mother who was following me on foot, saw all this and she gave 23 slaps to accused Hari Kishore, but he ran away from there alongwith the piece of paper. Thereafter, we came back to our shop from where my mother called the police at 100 number. Earlier also, accused used to stare me from his shop whenever I used to visit my shop.
xxxxx In her crossexamination, the defence did not question the presence of child victim and accused at the spot at the time of incident.
7. The mother of child victim has been as PW2, who has duly corroborated the evidence of child victim in material particulars. Her testimony could not be shaken by the defence in her crossexamination.
The evidence w.r.t the age of child victim and accused:
8. The age of the child victim has not been disputed by the defence. As per the DOB Certificate of the child victim, issued by the Government of NCT of Delhi, being Ex.PW10/B1, her DOB is 19.02.2002, meaning thereby as on the date of incident, the child victim was aged about 12 years and one month.
PW1, the Principal of the school first attended by the accused was examined in the matter, who produced the relevant record showing the DOB of accused as 10.12.1994, meaning thereby that the accused was aged about 19 years as on the date of incident. On a plea of juvenality raised by the U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 5 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 accused, age enquiry was conducted by JJBII, Delhi Gate and vide order dated 01.08.2014, he was declared "major" as on the date of commission of offence in this case. The accused did not challenge the said order and as such, it attained finality.
Evidence of formal witnesses:
9. PW3, HC Naresh Kumar was lying posted as Duty Officer in PS Subhash Place at the relevant time and he has proved recording of case FIR in the matter as Ex.PW3/A.
10. PW4, Smt.Bala, the landlady of the shop of accused deposed about she having rented out shop No.I600, JJ Colony, Shakurpur, Delhi to him.
11. PW6, Ms.Madhu Dass, CIC Counsellor in her evidence deposed that on the request of IO, WSI Upkar Kaur, she had counselled the child victim on 04.03.2014.
12. PW7, Shri Sushil Anuj Tyagi, Ld.MM has proved the statement of child victim recorded by him U/s 164 Cr.P.C as Ex.PW7/B. U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 6 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 The evidence of police officials of investigation:
13. PW10, WSI Upkar Kaur is the IO of case. In her evidence, she stated that on 04.03.2014, she was looking after the cases involving offences against women in respect of PS Netaji Subhash Place. On the said day, on the directions of ACP Saraswati Vihar, she was asked to attend to the present case, reported in PS Subhash Nagar vide DD No.39A (Ex.PW10/A). She accordingly went to the spot where she found SI Vijay Kumar and Ct.Dinesh Kumar. There, she recorded the statement of child victim, prepared rukka and got the case FIR in the matter registered. During the interaugnum, she prepared site plan, collected the DOB documents of child victim, called the NGO and got the child victim counselled. On 14.03.2014, she got recorded the statement of child victim U/s 164 Cr.P.C and also produced her before CWC. After completion of investigation, she filed chargesheet in the matter.
14. PW5, Ct.Dinesh has deposed on the lines of IO, PW10.
15. This is all as far as the evidence in the matter is concerned.
16. The Ld.Addl.PP for the State has very vehemently argued that the evidence of child victim is clear, cogent and trustworthy which is duly corroborated by the evidence of her mother, PW2. It is further argued that the accused has not been able to prove his defence as contemplated U/s 33 of POCSO Act.
U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 7 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015
17. Per contra, the learned defence counsel has argued that the prosecution case rests solely upon the testimony of child victim and her mother and there is no independent corroboration thereof and as such, it would be highly unsafe to convict the accused merely on the basis of testimony of interested witnesses. It is next argued that the piece of paper which the accused allegedly tried to pass on to the child victim after stopping her was not taken into police possession and as such the prosecution has failed to prove the factum of sexual harrasment of child victim by the accused.
18. I have given thoughtful consideration to the rival arguments. The evidence of child victim taken as a whole inspires confidence. There is a thread of truth in her all the three depositions, i.e Ex.PW9/A, Ex.PW7/B and her testimony recorded in the court. PW2 is a natural witness. Admittedly, she was following the child victim on foot as the child victim was on her electronic scooty. She had the occasion to see the accused stopping the electronic scooty of child victim and his attempt to handover a piece of paper containing his mobile number to her. It was night time and there is likelihood that there were less number of passers by at the spot. Even otherwise, it is settled law that conviction can be based upon the sole testimony of child victim, if it inspires confidence and is free from blemish.
19. It would be appropriate to set out the paradigm shift in POCSO which is a special legislation. In POCSO, by virtue of Section 29 and 30, U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 8 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 there is a presumption of commission of offence by the accused for offences U/s 3, 5, 7 and 9 and in any prosecution for any of the offences under this Act, which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state. The accused is required to prove that no such mental state w.r.t the act charged as an offence existed, beyond reasonable doubt and not merely establishing its existence through preponderance of probability.
20. Further, it is well settled law that the conviction on the sole evidence of a child witness is permissible, if such witness is found competent to testify and 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:
xxxxx " 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 U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 9 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 witness and there is no likelihood of being tutored."
xxxxx
21. As regards the argument of the learned defence counsel that the paper slip allegedly containing the mobile number of accused which he tried to pass on to the child victim having not been recovered and as such, the prosecution case is false does not carry any weight in the teeth of the occular evidence of child victim and her mother. Even otherwise, it has come in the evidence of the mother of child victim that after receiving 23 slaps from her, the accused had run away from the spot and as such, the possibility of accused having thrown or destroyed the said paper slip cannot be ruled out.
22. Therefore, I do not find any substance in the arguments of learned defence counsel. The prosecution through the evidence of child victim and her mother has been able to prove the commission of offence U/s 341 IPC as well as Section 12 of POCSO Act against the accused. The accused accordingly stands convicted for offences punishable U/s 341 IPC and Section 12 of POCSO Act.
23. Let the convict be heard on the point of sentence on 12.05.2015.
Dictated & Announced in (Vinod Yadav)
the open Court on 07.05.2015 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 10 of 13
SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015
IN THE COURT OF SH. VINOD YADAV : ADDITIONAL SESSIONS JUDGE01, ROHINI COURTS : DELHI (Sessions Case No. 152/2014) Unique ID case No.02404R0241892014 State Vs. Hari Kishore FIR No. : 241/14 U/s : 341/354D IPC & 12 of POCSO Act P.S. : Subhash Place State Vs. Hari Kishore S/o Shri Bhikari Thakur, R/o House no. 600, Shakarpur, JJ Colony, Delhi.
....Convict
26.02.2015
ORDER ON SENTENCE
Pr: Ld. Addl. PP for the state.
Convict in person with Sh. Rajnish Kumar Antil, proxy counsel. I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Proxy counsel for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict sexually harassed the victim child, a minor girl aged about 12 years, by stopping U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 11 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 her electronic scooty and tried to give her, his phone number, and in view of the serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence as prescribed u/s 12 of POCSO Act and u/s 341 IPC, may be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. Proxy counsel that the convict Hari Kishore is a young boy aged about 18/19 years and is having clean antecedents. He further submitted that convict belongs to a respectable family and is running a Saloon of hair cutting and is not having any previous criminal record and as such, it is prayed that a lenient view may be taken in this case and he be given a chance of rehabilitation by being released on probation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Proxy counsel and have carefully gone through the record of the case.
5. In the present case, the convict Hari Kishore has been convicted for committing the offence punishable u/s 12 of POCSO Act for sexually harassing the victim child and u/s 341 IPC. Keeping in view the facts and circumstance of the present case, having regard to the fact that convict is a young boy and is having clean antecedents, I take a lenient view and grant the benefit of probation u/s.4 (1) of Probation of Offenders Act, 1956 to the convict Hari Kishore and release him on probation on furnishing of probation bond in the sum of Rs. 20,000/ with one surety in the like amount for a period of one year for the offence punishable u/s 12 of POCSO Act and u/s 341 IPC.
Copies of the judgment and order on the point of sentence be supplied to U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 12 of 13 SC No.152/2014: FIR No.241/2014: PS Subhash Place: State V/s Hari Kishore DOD: 07.05.2015 the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Vinod Yadav)
(Court on 12.05.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
U/s 354D/341 IPC r/w Section 11 (iv) & 12 of POCSO Act: "Convicted" Page 13 of 13