Delhi District Court
Sc No. 184/13 : Fir No. 281/13 : Ps Ashok ... vs Shokeen Mohmad on 21 August, 2015
SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 184/13)
Unique Identification No.: 02404R0322372013
State V/s Shokeen Mohmad
FIR No. : 281/13
U/s : 354/354D/323 IPC
P.S. : Ashok Vihar
State V/s Shokeen Mohmad
S/o Jakhruddin
R/o Jhuggie No. N28/B18,
Near Aara Machine Chowk,
Ashok Vihar, Delhi
Date of institution of case : 16.11.2013
Date of arguments : 14.08.2015
Date of pronouncement of judgment : 18.08.2015
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SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad
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 25.09.2013 on receipt of DD no. 37 PP, Ex. PW9/A, regarding rape of caller's daughter at House No. N28/126, Aara Machine Chowk, WIPA, Delhi, PW10 SI Ved Parkash along with PW7 HC Surya Kant and W/Ct. Rekha went to the spot, where child victim S, a minor girl aged about 16 years, (hereinafter referred to as child victim) along with her parents namely Smt. Kamlesh and Sh. Rampal were found present. They were informed about sexual assault upon child victim and physical assault upon her father by the accused. Thereafter, the child victim and her parents were taken to BJRM Hospital. In the meanwhile, PW8 W/SI Shashi Lata also reached at BJRM Hospital, on the directions of senior officers and then the child victim and her father were got medically examined at BJRM Hospital. After medical examination, PW8 W/SI Shashi Lata collected the MLCs and on their return to PS, she recorded the statement of child victim, wherein she stated that on 25.09.2013, at about 8.30 pm, she was returning to her jhuggie after taking tuition at Aara Machine Chowk, WPIA and on the way, she saw that accused, who was residing in her neighbourhood, was standing outside his jhuggie and as soon as, she reached in Page 2 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad front of his jhuggie, he caught hold of her hand and pulled her towards his jhuggie and when she tried to free herself, he caught hold of her breasts. She further stated that in the meanwhile, her mother and father reached at the spot and they took strong exception to the acts of accused, on which, he attacked her father and injured him on his hand and head. She further stated that accused used to follow her while going and returning from school and requested for legal action against him.
On the basis of aforesaid statement of child victim, the present case was registered. During investigation, PW10 SI Ved Parkash prepared the site plan of the place of incident at the instance of child victim. Accused was arrested and got medically examined. Thereafter, the statement of child victim u/s 164 Cr.P.C., was got recorded. After completion of investigation, charge sheet in the matter was filed.
2. After committal, arguments on the point of charge were heard and vide order dated 07.02.2014, charges u/s 323 IPC and u/s 7 of Prevention of Children from Sexual Offences Act, 2012, (hereinafter referred to as "Act"), punishable u/s 8 of Act, alternative u/s 354 IPC and u/s 11 of Act punishable u/s 12 of the Act, alternatively u/s 354D IPC were framed against the accused, to which, he pleaded not guilty and claimed trial.
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3. In order to prove the charges against the accused, prosecution examined as many as 12 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 under the pressure of her parents. He further stated that child victim was having friendly relations/love affair with him and he did not commit any offence in the present case. The accused did not lead evidence in his defence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Ms. Indra Kumari, learned counsel for the accused and perused the 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) Child victim and her family members
(b) Evidence with regard to age of the child victim
(c) Medical evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation.
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SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad
Child victim and her family members
5. The Child victim in the present case was examined as PW5 and the relevant portion of her testimony is as under : " xxxxx On 25.09.2013 at about 8:30 PM, I was coming back from my tuition class and was going back to my home along with my mother. When me and my mother had hardly covered some distance from the tuition class to the road, one person met my mother on the way with whom she started talking and I started going towards my home alone. Accused Shokeen Mohmad, was sitting on the door of house of some other person in the corner of the gali. I knew accused as he is residing in my neighbourhood. As soon as I reached at the place where accused was standing, he stopped my way by putting his foot on my foot. When I protested as to why he had stopped my way, he caught hold of me by my hand and pressed my mouth and thereafter dragged me towards the room where he was standing. He shut the door of the room but not bolted it from inside. When I tried to run, he came Page 5 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad from behind and caught my both hands from behind and kissed me and thereafter he pressed my breast. While doing so, he also opened string of my salwar and in the process I had scratch marks of his nails on my stomach. In the meanwhile my mother banged the door of the room and took me out from there. My mother started shouting and crying loudly and public persons gathered there. I narrated my mother about the acts of accused inside the room. If my mother had not reached there in time accused could have done anything with me. My father came to know about the incident, who also reached at the spot and he asked accused as to why he had done so with me. On this accused gave beatings to my father. The family members of accused also came there and they also gave beatings to my father. My parents called the police. .....
xxxx"
The witness proved her statement recorded by police as Ex. PW5/A. She further deposed about her medical examination and about arrest and personal search of the accused and proved his arrest memo as Ex. PW5/B and personal Page 6 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad search memo as Ex. PW5/C. She also deposed about her pointing out the place of incident to the police, where accused misbehaved with me. The witness proved her statement recorded u/s.164 CrPC as Ex. PW4/B. During crossexamination by the learned defence counsel, the witness denied that she was having friendly relation with accused and used to talk to him on mobile phone. She further stated that her mother had reached at the place, where accused had misbehaved with her after 10 / 15 minutes and no person was coming and going from the gali when accused met her and started dragging her. She further stated that she could not raise alarm, when accused was dragging her, as accused had put his palm on her mouth.
6. PW3 Smt. Kamlesh, mother of child victim, deposed that on 25th day of a month before October, 2013, at about 8:30 PM, she had gone to take child victim back from her tuition class as usual and while, she was on the road near her tuition center, someone met her and she started talking to that person and in the meanwhile child victim went towards home alone. She further deposed that at that time, the accused Shokeen Mohmad was sitting on the door of his house, at the corner of the gali and since, she was standing on the road, she was able to see him sitting there. She further deposed that when child victim was crossing the gali, accused pressed the foot of child victim with his foot, twisted her hand after Page 7 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad holding it and thereafter, he pressed her mouth and dragged her towards the room and while doing so he pressed her breasts. She further deposed that she immediately rushed towards them and saw that accused had opened the string of her salwar and even there were scratch mark on the stomach of child victim and at that time, she was crying. She further deposed that when, she rescued child victim and was trying to bring her back, accused had scuffle with her (hatha pai karne laga). She further deposed that she took child victim to home and after some time, her husband/PW6 came and child victim narrated the incident to him and on hearing this, PW6 went to the house of accused to talk to him and the accused and his family members gave beating to him and the accused gave tooth bite and scratches from his nails to him and thereafter, she called the police at 100 number. She further deposed about arrival of police at the spot, medical examination of child victim and her husband and recording of the statement of child victim. The witness further deposed that the accused had made life of child victim very tough as he used to follow her to her school everyday in the morning and while coming back from the school in the afternoon and due to this reason, child victim had stopped going to her school after passing out her 10th class. She further deposed that on coming to know about the acts of the accused, she tried to make him understand not to do so in a very polite manner, but he did not mend his ways. Page 8 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad During crossexamination by learned defence counsel, the witness stated that the child victim used to take tuition classes, which were given at his home by one teacher and she used to go to drop and bring back child victim from her tuition classes daily. The witness termed it correct that the incident had taken place in other gali than the gali in which their houses was located and it was dark at that time. She volunteered to state that the street lights were on in the gali and one could see clearly in their illumination. She further stated that general public was not coming and going in the gali at the time of incident. She volunteered to state that many persons had collected on hearing cries of child victim. She further stated that no complaint was lodged by her prior or after the present complaint about the acts of accused. She volunteered to state that the accused used to give threats to them. The witness denied that child victim was having a love affair with accused.
7. PW6 Sh. Rampal, the father of the prosecutrix, deposed that on 25.09.2013 at about 8:30 PM, on his return to his jhuggie, he came to know that accused Shokeen Mohmad had caught hold of the hand of child victim and did some chedchad with her and he immediately went there at the spot, which was near to his jhuggi and found her wife/PW3 Kamlesh and child victim and accused there Page 9 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad and at that time, PW3 was shouting in a loud voice at the accused. He further deposed that he also started scolding the accused, on which accused started quarreling with him and the accused slapped him and gave him fists blows and the accused also gave him tooth bite and scratches with his nail. He further deposed that on his information, police reached the spot and got him as well as child victim medically examined.
He further deposed that after being released on bail, the accused again misbehaved with child victim by by holding her hand on her way in the gali and on their protest, he threatened him and his wife to see them later on. He further deposed that on one night, accused came along with his 4 - 5 friends under the influence of liquor and created scene in front of his house and thereafter, parents of the accused were called but they, instead of scolding him, leveled allegations of false implication of their son in the present case. He further deposed that the accused had created scene and pressurized him and his family members not to depose against him in the Court (Agar koi bhi gawahi dega toh mein usse chaku se mar dunga) and he also threatened child victim on her way to her school.
During crossexamination by lerarned defence counsel, the witness stated that he received a call from his brotherinlaw regarding the incident and on reaching at the locality, he saw crowd collected outside his house and the house of the accused. He volunteered to state that his house and house of accused Page 10 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad were near to each other.
Evidence with regard to age of the prosecutrix
8. PW1, Sh. Hariom, Primary Teacher, MC Primary Model School, B2, Ashok Vihar, PhaseII, Delhi, has produced on record the documents with regard to the date of birth of child victim, maintained by the school in due course, inter alia stating the date of birth of child victim to be 20.01.1998. He has proved the relevant documents in this regard as Ex. PW1/A to Ex. PW1/D, which establish that the age of child victim at the time of incident was about 15 years and 8 months approximately.
During crossexamination by learned defence counsel, the witness termed it correct that the entry in admission register was not made either by him or in his presence. The defence did not seriously dispute the age of child victim.
Medical evidence
9. PW11 Dr. Prem Bishnoi, proved the MLC of the injured Rampal as Ex. PW11/A and MLC of the child victim as Ex. PW11/B by identifying the handwriting and signatures of Dr. Tariq Khan and Dr. Pankaj, respectively who had examined the injured and child victim under his supervision. The witness also Page 11 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad proved the MLC of the accused as Ex. PW11/C by identifying the handwriting and signatures of Dr. Pankaj and Dr. Anil, who had prepared the same.
10. PW12 Dr. Poonam Barnwal, also proved the MLC of the child victim as Ex. PW11/B and deposed that patient/child victim had refused for her internal gynecological examination.
Evidence of Formal witness
11. PW2, HC Rajesh was lying posted as duty officer in PS Ashok Vihar at the relevant time and he has proved the endorsement made by him on rukka as Ex. PW2/A, computerized copy of FIR as Ex. PW2/B and certificate u/s 65B of Evidence Act as Ex. PW2/C.
12. PW4, Sh. Bhupinder Singh, ld. M.M, in his evidence has proved statement of the child victim as Ex. PW4/B, recorded by him under Section 164 Cr.P.C on 26.09.2013.
13. PW9, Ct. Aditya Malik, was lying posted as DD writer in PS Ashok Vihar at the relevant time and he has proved the copy of DD no. 37 PP as Ex. PW9/A, recorded by him on receipt of information "N28/126, Aara Machine Chowk, Page 12 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad WPIA, caller ki beti ke saath rape hua hai".
Evidence of police officials of investigation.
14. PW7 HC Surya Kant deposed that on receipt of DD no. 37 PP, Ex. PW7/A, he along with W/Ct. Rekha had gone to jhuggie no. N28/C136, CSA Colony, WPIA and met child victim and her parents and he was informed that one boy, residing in their neighbourhood, had done chedchad with the child victim and had given beatings to the father of the child victim, who had sustained some injuries. He further deposed about getting the child victim and her father medically examined at BJRM Hospital. He further deposed that in the meantime, PW8 W/SI Shashi Lata also reached the hospital and she recorded the statement of the child victim at hospital and got the child victim counseled through NGO. He further deposed about the investigations carried out by PW8 W/SI Shashi Lata. He further deposed about registration of FIR, arrest and personal search of the accused and about getting the accused medically examined.
15. PW8 W/SI Shashi Lata joined the investigation of the present case with IO/PW10 SI Ved Parkash on 25.09.2013 and got the child victim and her father medically examined and deposed that after medical examination of the Page 13 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad child victim, she recorded her statement Ex. PW5/A, made her endorsement Ex. PW8/A thereupon and then, she along with child victim, her parents and PW10 SI Ved Parkash returned to the PS. She also deposed about getting the child victim counseled through NGO official.
16. PW10 SI Ved Parkash is the Investigating Officer of the case and he deposed about investigation carried out in the present case. He deposed that on 25.09.2013, on receipt of DD no. 37 PP Ex.PW9/A, he along with PW7 HC Surya Kant and W/Ct. Rekha reached at N28/126, Aara Machine Chowk, WPIA, Delhi, where child victim, her mother Kamlesh and her father Rampal were found present. He further deposed about medical examination of the child victim and her father at BJRM Hospital, about recording of the statement of child victim by PW8 W/SI Shashi Lata, about registration of the FIR, about getting the child victim counseled through NGO official and preparation of the site plan Ex. PW10/A at the instance of child victim. He further deposed about arrest of the accused on the identification of child victim vide arrest memo Ex. PW5/B, about his personal search vide personal search memo Ex. PW5/C and about medical examination of the accused. He further deposed about collecting the age proof Ex. PW1/D of the child victim from her school, about getting the statement of the child victim recorded u/s 164 Cr.P.C vide his application Ex. PW4/A and obtaining the copy Page 14 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad thereof vide his application Ex. PW4/D. He further deposed about preparation of charge sheet and filing the same in the court.
During crossexamination by the learned defence counsel, he stated that he reached at the house of the child victim at about 9.30 pm and at that time, some public persons were also present at the spot, besides the child victim and her parents. He further stated that the spot was situated in a thickly populated area and many jhuggies were there. He further stated that it was told by the child victim and her parents that the spot was situated in front of the house of the accused, but on inspection, he found that it was not exactly in front of the house and was just near the house of the accused i.e. about 57 meters.
Arguments advanced at Bar
17. The learned Addl. PP for the State has very vehemently argued that the child victim PW5 is consistent in her statement recorded by the police u/s 161 Cr.P.C, her statement recorded u/s 164 Cr.P.C i.e. Ex. PW4/B and in her deposition before the court. It is very vehemently emphasized that the age of the child victim on the date of incident was less than 18 years as per document Ex. PW1/A to Ex. PW1/D and the evidence of child victim finds corroboration from the evidence of her parents i.e.PW3 and PW6 and as such, the conviction can be safely made in the matter.
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18. Per contra, the learned defence counsel has very vehemently argued that the child victim PW5 is not consistent in her statement recorded u/s 161 Cr.P.C i.e. Ex. PW5/A, her statement recorded u/s 164 Cr.P.C i.e. Ex. PW4/B and her testimony recorded in the court. It is further argued that there is no independent corroboration of the version of child victim.
19. I have given thoughtful consideration to the arguments advanced at bar and perused the entire material on record. My findings in the matter are as under.
20. Perusal of the above referred three statements of child victim reveals that in her deposition before the court, she has made some exaggerations, however, in the major part, her testimony has remained consistent. In her deposition, the exaggeration which she has made is regarding the untying of the string of her salwar by the accused and of receiving scratch mark on her stomach, whereas in her other two statements, she did not say a word about these two facts. The child victim has largely remained consistent with regard to the date, time and place of the incident and the accused having touched her inappropriately. The mother of child victim i.e. PW3 has also made similar exaggerations in her deposition, but she has also largely remained consistent with regard to the date, time and place of the Page 16 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad incident. The exaggeration pointed out by the learned defence counsel in the evidence of PW3 and PW5 are not material and in any case, the same do not go to the root of the matter. The accused has not been able to impeach the credit of the aforesaid witnesses in the crossexamination as far as the offence of sexual assault upon PW5 is concerned. Perusal of the testimonies of PW3 and PW5 reveals that there were no material contradictions or discrepancies in their testimonies and the contradictions/ discrepancies, if any were minor or trivial in nature and these were not fatal to the case of the prosecution.
21. In the case titled as "Sukhdev Yadav and others Vs. State of Bihar" (reported as JT2001(7) - SC597), it has been laid down by the Hon'ble Supreme Court of India that: "The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence. It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment sometimes, there would be a deliberate attempt to offer the same. Sometime, the witnesses in their over anxiety to do better from the witness box Page 17 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad details out an exaggerated account."
22. As regards the argument of the learned defence counsel that the present case is based upon the testimony of only the interested witnesses and police witnesses is concerned, the same does not carry any weight in the eyes of law. It is well settled law that it is not the quantity of evidence, but the quality thereof, which is material and important. Here in this case, the incident is of the month of September and that too in the night hours and the probability of finding independent persons having witnessed the incident was very bleak. It is common knowledge that even otherwise, the people residing in jhuggie jhopri cluster hardly come forward to depose in criminal matters as a large chunk of people residing in such areas are hand to mouth and they do not want to entangle themselves with the police. Even otherwise, the incident might have been completed in a short span and as such, the possibility of no one having seen the same can also not be ruled out. In the cross examination of PW3, a specific question in this regard was put, in answer whereof, the witness replied that at the time of incident, the persons from the general public were not coming and going in the gali.
23. A witness can not lack credibility only on account of the fact that he or she is related to the injured/victim, if otherwise the said witness appears to be Page 18 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad trustworthy and no personal enmity of the witnesses have been alleged towards the accused. In fact, the relation of the witnesses with the injured/victim can hardly be a ground to discard their version. Further, in the case titled as "Maranadu and Anr. Vs. State by Inspector of Police, Tamil Nadu" (cited as 2008 V AD (Cr.) (S.C.) 327), it has been laid down by the Hon'ble Supreme Court of India that:
" Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person".
24. PW6, Sh. Rampal, the father of the child victim was beaten by the accused and the prosecution has been able to prove the injuries upon his person through his MLC Ex. PW11/A, which shows the injuries as under :
(i) Abrasion over forehead (upper)
(ii) Abrasion over Right index finger Page 19 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad
25. The defence has not seriously disputed the age of the child victim in the matter and the fact that at the time of incident, she was about 151/2 years old. Even otherwise, through documents Ex. PW1/A to Ex. PW1/D, age of the child victim has been duly proved by the prosecution. 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."
26. 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.
27. A close scrutiny of the statements of child victim i.e. Ex. PW5/A and Ex. PW4/B as well as her evidence recorded in the court, reveals that the accused had touched her at her breast with sexual intent and as such, the offence of sexual Page 20 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad assault as defined u/s 7 of the Act punishable u/s 8 thereof, stands duly established on record.
28. Through, the MLC Ex. PW11/A, the prosecution has further been able to prove the hurt caused by the accused to PW6 and as such the ingredients of Section 323 IPC have also been established on record.
29. In view of the above discussion and the material on record, the accused stands convicted for offence punishable u/s 8 of the Act and u/s 323 IPC.
30. Let the convict be heard on the point of sentence on 21.08.2015.
Announced in the open Court (Vinod Yadav)
on 18.08.2015 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 184/13)
Unique Identification No.: 02404R0322372013
State V/s Shokeen Mohmad
FIR No. : 281/13
U/s : 354/354D/323 IPC
& 7/8 of POCSO Act
P.S. : Ashok Vihar
State
V/s
Shokeen Mohmad
S/o Jakhruddin
R/o Jhuggie No. N28/B18,
Near Aara Machine Chowk,
Ashok Vihar, Delhi
....Convict
21.08.2015
ORDER ON SENTENCE
Pr: Ld.Addl.PP for state.
Convict in person along with counsel Ms. Indra Kumari.
Page 22 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad ORDER ON THE POINT OF SENTENCE In the present case, the convict - Shokeen Mohmad has been convicted u/s 323 IPC and u/s 8 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 Ms. Indra Kumari, ld. Defence counsel, for the convict.
2. The learned Addl. PP has very vehemently argued that the sexual assaults upon the minor girls are on rise in the society, whereby the mental and physical development of the children gets affected substantially. It is specifically emphasized that the when the parents of child victim objected to the acts of the convict, the convict attacked her father and injured him on his hand and hand. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 8 of the Act and u/s 323 IPC to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned counsel for the convict has argued that convict is 28 years old and is having responsibility of maintaining his wife and two younger brothers, one sister of marriageable age and old aged parents. It is further submitted that the convict is the sole bread earner of his family as his elder brother is residing separately with his Page 23 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad family. It is further submitted that convict is doing the work of putting a rehri of chicken and is first time offender and had remained in custody for more than three months during trial. He prays that in view of the aforesaid family circumstances of the convict, a lenient view may be taken in sentencing the convict.
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 the sole bread earner of his family, having responsibility of his family. 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 8 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 3 (three) years along with fine of Rs. 1,000/, in default of payment of fine, further SI for a period of 3 months, for the offence u/s 8 of POCSO Act. The convict is further sentenced to simple imprisonment of six months for the offence u/s 323 IPC.
Both the aforesaid sentences shall run concurrently.
Benefit of Section 428 Cr.P.C is accorded to the convict. Page 24 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad
5. Coming now to the aspect of compensation to the child victim, who is a minor girl, 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 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 Page 25 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad 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 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 Page 26 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad 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 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 child victim, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation of Rs. 10,000/ (Rs. Ten 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. Page 27 of 28 SC No. 184/13 : FIR No. 281/13 : PS Ashok Vihar : State V/s Shokeen Mohmad
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.
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 21.08.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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