Delhi District Court
Sc No. 27874/2016 State vs . Surender Page No. 1 Of 14 on 10 May, 2018
IN THE COURT OF SH. VIMAL KUMAR YADAV
SPECIAL JUDGE (POCSO ACT)( CENTRAL): DELHI
S.C. No. 98/14
New Case No. 27874/2016
CNR No. DLCT01-001527-2014
FIR No. 523/14
PS : Paharganj
U/ss: 342/377/511 IPC
& u/s. 4/8/12/18 of the POCSO Act
State
Versus
Surender
S/o Sh. Budhram
R/o Village Gazipur, PS Incholi,
District Meerut, U.P.
and also at Mother Dairy Booth,
Gali No. 10, Chuna Mandi,
Pahar Ganj, Delhi.
.......Accused
Date of Institution : 14.11.2014
Date of judgment reserved on : 08.05.2018
Date of judgment : 10.05.2018
JUDGMENT
1. The prosecution's case takes off when the Father of the Victim alongwith victim "V" (since the victim is a minor child of sexual assault, his particulars are withheld in order to conceal his identity and he has been referred hitherto as 'the victim') reached at PP SC No. 27874/2016 State Vs. Surender Page No. 1 of 14 Sangatrashan and lodged complaint to the effect that he is residing with his family in the area of Pahar Ganj, studying in class 8th and his age is about 15 years, stating further that at about 09.30 p.m., he went to Mother Dairy Booth, Choona Mandi, Pahar Ganj to fetch the milk. But the shopkeeper / sales man of milk booth, seemingly, deliberately gave the milk to him at the end of the lot and when the victim was about to go back, the shopkeeper / sales man of milk booth took his container / 'Dolchi' of milk and put it inside the milk booth. He then took the victim to a Dhaba for food. Both of them had their dinner at the dhabha and after eating it, accused took him back in the Mother Dairy Booth and closed the shutter of the booth. The accused then undressed both himself and the victim 'V' and misbehaved with victim by showing his private part to the victim and also asked the victim to take it in his mouth, on refusal of the victim, the accused tried to insert his male organ in to the anus of victim by using sputum. The victim further stated that he started weeping and when he tried to raise alarm, accused gagged his mouth with his hand but after that accused somehow left the victim. Thereafter, victim went to his house and disclosed about the incident to his grand-mother, who was searching for him and met him on the way. The grand-mother and father of the victim alongwith others then went to the Mother Dairy Booth of accused and with the help of public, accused was apprehended and taken to the PS. The complaint resulted in the present FIR under sections 342/377/511 of IPC and 3/8/18 of the POCSO Act which was registered against the accused Surender.
2. The medical examination of the victim "V" was got carried out, site plan was prepared. Thereafter, on 16.10.2014, statement of SC No. 27874/2016 State Vs. Surender Page No. 2 of 14 the victim under section 164 Cr.P.C. was also got recorded. Necessary documentation in the process of investigation i.e. arrest memo, personal search memo etc. were also carried out. The disclosure statement of the accused was also recorded. Counseling of Victim was got done through the Counselor from the 'Salam Balak Trust', Nabi Karim, Pahar Ganj, Delhi and his age proof was collected by the Investigating Officer. On completion of requisite formalities qua the investigation, charge sheet under sections 342/377/511 IPC and 3/8/18 of the POCSO Act has been filed against the accused.
3. In compliance of section 207 Cr.P.C., accused was provided with the copy of the charge-sheet. The allegations/material on record led to framing of charge under sections 342/377/511 IPC and 4 read with section 18/8/12 of the POCSO Act as the composite reading of the charge sheet threw up a prima facie case against the accused under the afore-said sections of IPC and the POCSO Act.
4. Of the 11 witnesses arrayed in the list of witnesses proposed to be examined by the prosecution, in order to establish its case against the accused Surender, 10 were examined, whereas one was dropped by the prosecution. PW-1 is Head Clerk of the school of the victim, who proved school records qua the admission of the victim in which date of birth of victim was recorded as 11.08.2000 on the basis of the birth certificate issued by NDMC, Mandir Marg, Delhi i.e. Ex.PW1/D; PW-2 is Constable Somveer, who took the victim to the hospital and got conducted his medical examination besides proving certain documents qua the arrest of the accused, disclosure statement and preparation of pointing out memo; PW-3 is Ram Das i.e. dhabha owner, who deposed that the accused and the victim were there at his dhabha about two weeks ago prior to 31.10.2014 where SC No. 27874/2016 State Vs. Surender Page No. 3 of 14 they had dinner; PW-4 is 'R D' (mother of victim) narrated the incident as told to her by the victim; PW-5 is victim himself, who narrated the incident and proved documents related to him; PW-6 is Head Constable Dayanand i.e. Duty Officer and proved the FIR, his endorsement on the rukka and had also issued certificate under section 65-B of the Indian Evidence Act; PW-7 is 'A @ A' i.e. father of the victim, who also narrated the incident as told to him by the victim; PW-8 is Dr. Amit Modi, who medically examined the victim 'V' and prepared his MLC Ex.PW8/A; PW-9 is Sub-Inspector (retired) Satpal, Investigating Officer, who proved certain documents and PW-10 is W/Sub-Inspector Sushila, Juvenile Officer, who conducted necessary proceedings.
5. After conclusion of the evidence led by the prosecution, statement of accused under section 313 Cr. P.C. was recorded on 10.01.2018 in which he, expectedly, controverted the evidence and opted to lead evidence in his defence. Accused submitted that he has been falsely implicated in the present matter as the Mother Dairy Booth was allotted to one Rajesh Kumar and accused and one Munender were the employees' at the above-said Mother Dairy Booth. He further stated that his duty hours were in the morning from 04.00 a.m. to 01.00 p.m. and the duty hours of Munender were 04.00 p.m. to 11.00 p.m., indicating thereby that he was not present at the mother dairy booth. He knew the father of the victim as he used to borrow money from the accused on various occasions of festivals etc.. Father of the victim is sweeper and also working as a drum beater in the locality in which the booth is situated. Accused further stated that the father of victim took a loan of Rs. 50,000//- from accused and when accused demanded back the same, he implicated SC No. 27874/2016 State Vs. Surender Page No. 4 of 14 the accused in the present case through his son /victim.
6. I have considered the contentions raised by the rival sides and perused the record as well.
7. Ld. Addl. PP for State, contended that the prosecution is able to drive home its case on the strength of the testimony of the prime witness i.e. the victim, whose age has been proved by PW-1 to be of less than 18 years which brings the provisions of the POCSO Act into play. There is independent public witness who substantiate, supplement or corroborate the testimony of the victim i.e. PW-3 Ram Das in whose dhabha victim and the accused had gone for a dinner on the fateful day. The other witnesses i.e. Smt. 'R D' (grandmother of the victim) and the father of the victim together with other witnesses from the police and the hospital takes the case of the prosecution to its destination.
8. The Counsel for the accused, on the other hand, came up with the plea that the testimony of the vital witnesses is full of discrepancies and inconsistencies, which puts a question mark on the credibility of the case of the prosecution. The investigation is defective as an important witness i.e. friend of the victim namely Akshay has not been made a witness despite the fact that the victim has stated that he had conveyed his friend that he was being taken by the accused forcefully to the dhabha. Despite the fact that the case of the prosecution reflects that the accused was taken out from the mother dairy booth by public persons and was handed over to the police, but none of the public persons were joined in the investigation by the Investigating Officer. The medical evidence does not support the case of the prosecution at all. As per the evidence coming on record, the victim was found normal and nowhere there was any SC No. 27874/2016 State Vs. Surender Page No. 5 of 14 reflection that he was being taken forcefully to the dhabha or was under any kind of pressure, which also negates the case of the prosecution as the behaviour of the victim is apparently contrary to the normal conduct in the given circumstances. This fact has been stated by the victim for the first time before the Court as nowhere in the charge sheet this fact has been narrated, therefore the investigating agency cannot be blamed for not having joined Akshay in the investigation. Secondly, none from the public wants to entangle himself or herself into the police or Court proceedings for the perceived harassment and that is why general public persons are reluctant to be a part of the investigation, though they may be present there as onlookers or may have also witnessed the actual incident. As such, investigation cannot be considered to be defective as the factual situation in a given set up is always to be kept in mind. The Courts have gone to the extent of saying that the flaws in the investigation should not be given undue primacy and the mischief in the same is to be identified as to whether the same is bona fide or mala fide and thereafter reduce the true import of the facts. Reference in this context can be made to Dayal Singh v. State of Uttaranchal 2012 VII AD (S.C.) 541 = (2012) 8 SCC 263 while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under; (SCC pp. 280-83, paras 27-36) "Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P., (1972) 3 SCC 613, this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court to see if the evidence given in court should SC No. 27874/2016 State Vs. Surender Page No. 6 of 14 be relied upon and such lapses ignored.
Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, 2004 IV AD (S.C.) 365 = (2004) 3 SCC 654, held: (SCC p. 657, para 5) 'In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.' Reference can also be made to Paras Yadav v. State of Bihar, (1999) 2 SCC 126, State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715, Ram Bali v. State of U.P. 2004 VI AD (S.C.) 49 = (2004) 10 SCC 598, Karnel Singh v. State of M.P., (1995) 5 SCC 518, Ram Bali.
9. Prosecution is under obligation to establish, in order to invoke the provisions of the POCSO Act that the victim was a child in terms of definition given in section 2 (d) of the POCSO Act which contemplates that a person is a child who has not attained the age of 18 years on the relevant date. Apart from the age, prosecution is also under obligation to establish that the victim was confined in such a manner that he was prevented to move beyond a point in any direction in order to bring home the allegations under section 342 IPC and that there was an attempt to commit unnatural sex by the accused with the victim to prove the remaining charges framed against the accused.
10. As regards the age of the victim, apart from the testimony of the victim and his father, testimony of PW-1 Sanjay Gupta from the school of the victim is of utmost importance. In his testimony, which SC No. 27874/2016 State Vs. Surender Page No. 7 of 14 has gone unrebutted and unchallenged, it has been stated by PW-1 Sanjay Gupta that the victim was admitted in the school on 03.07.2007 in 1st class and in the Admission/Withdrawal Register, his date of birth has been noted as 11.08.2000, as can be seen from the photocopy of the Admission/Withdrawal Register Ex.PW1/A. The date of birth was entered into the Admission/Withdrawal Register on the basis of the original Birth Certificate issued by NDMC, Mandir Marg, photocopy of which is Ex.PW1/D, which was annexed with the application for admission by the father of the victim, copy of which is Ex.PW1/C. Based upon these documents, the Principal had issued a certificate with regard to the date of birth of the victim Ex.PW1/B. In the light of the aforesaid facts, it can be concluded that the age of the victim was less than 18 years as the date of incident is the intervening night of 15-16.10.2014. The age of the victimthus, comes to be 14 years at the relevant time. There is no reason to disbelieve this fact in view of the unchallenged testimony of PW-1 to which support has been lended by the father of the victim, who has categorically given the date of birth of the victim as 11.08.2000. The date of birth reflected in the first school attended and Birth certificate have been held to be a relevant fact in order to ascertain the date of birth of a person. Reference in this context can be made to Mahadeo S/o Kebra Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637.
11. It is the testimony of the victim alone which is of the utmost importance as regards the other aspects which are to be established by the prosecution as it was the victim who alone knows as to what happened with him and what was done by whom, where and when. In his testimony, the victim has clearly stated that the accused, who has been identified by him correctly, instead of handing SC No. 27874/2016 State Vs. Surender Page No. 8 of 14 over the container with which the victim had come for fetching the milk, kept it inside the Mother Dairy Booth and after feeding the victim with dinner at a nearby dhabha, the accused brought the victim back to the Mother Dairy Booth and confined him inside it. Thereafter, the accused had downed the shutter of the Mother Dairy Booth. Thus, the requisite ingredients of Section 342 IPC emerge on record.
12. It has also been stated by the victim that after downing the shutter of the milk booth, accused not only removed his clothes, but the clothes of the victim also and did 'galat kaam; with him which has been clarified by the victim as 'he made me bend and he inserted his penis in my anus'. This testimony in itself is enough to take the case not only a step further rather culmination of the charges also under which the accused has undergone the trial. This statement is indicative of the fact that the offence under section 377 IPC and 4 of the POCSO Act were completed. However, the testimony of the victim cracks up in the cross examination when it is brought on record that the victim had not protested when he was being taken to dhabha where he ate his dinner comfortably. If he was under some kind of pressure or was not comfortable and not willing to go with the accused to take the dinner then he could have either ran away or raised alarm or told the fellow persons in the dhabha or the dhabha owner. There is no answer to this. Although, the victim says that while he was being taken to the dhabha by the accused against his will, he had told this fact to one of his friends Akshay, but seemingly Akshay did not take it seriously. Then again, the victim has stated in his statement under section 164 Cr.P.C. that the accused could not succeed in committing the unnatural sex act with the victim whereas he had stated about the insertion of the male organ by the accused SC No. 27874/2016 State Vs. Surender Page No. 9 of 14 into his anus in his testimony before the Court. It is settled law that the testimony of the victim alone in sexual offences is sufficient to record a finding against the accused, of course when, if it is found to be worthy of reliance, credible and acceptable. In this context, reference can be made to State of Punjab v. Gurmit Singh (1996) 2 SCC 384 : AIR 1996 SC 1393.
13. However, as a rule of precaution, corroboration can be sought as per the facts of the case. In the instant case, it is all the more required in view of the circumstances in which the victim was placed. He had left from his house to fetch the milk from the nearby Mother Dairy and did not return for at least 2-2 ½ hours. This is a very unusual circumstance in itself as to why the parents did not start looking for the victim. There was ample opportunity with the victim to raise hue and cry and invite the attention of the public persons as the milk booth is situated in a thickly populated area of Pahar Ganj. There was no occasion with the victim to accompany the accused to a Dhabha for dinner. All these all have been raised on behalf of the accused to highlight that it is a false and fabricated case. It is asserted on behalf of the accused that he has been falsely implicated in this case by the father of the victim, who had borrowed about Rs.50,000/- from the accused and when the accused started egging upon the father of the victim to return that money, he not only refused to return, but got the accused implicated in this case with the assistance of his son i.e. victim.
14. The versions of both the victim and the accused remain unsubstantiated, victim qua his being sexually assaulted as no trace in the medical examination of the victim is there. Similarly, the plea put forth on behalf of the accused that he had lended Rs.50,000/- to SC No. 27874/2016 State Vs. Surender Page No. 10 of 14 the father of the victim also remains in the air, neither any documentary nor any oral evidence of a 3rd person/independent person has been brought on record by the accused. The defence thus taken by the accused remains unsubstantiated and in the realm of an assertion only. So far as the testimony of the victim is concerned that the accused had inserted his male organ into the anus of the victim, except the oral assertion there is nothing whereas the circumstances reflect that in such an eventuality there must have been something in the shape of medical evidence as the victim was sent for medical examination almost immediately after the incident. And in case of penetration of the full grown male organ, the traces are bound to be there on the vital parts of the body of not only the victim but the accused's body also. Absence of any such mark/trace is intriguing.
15. Notwithstanding the fact that testimony of the victim alone in case of sexual assaulted is sufficient but the circumstances of the instant case require an assurance in the form of some or the other corroboration. Absence of any injury or any trace of sexual assault on the body of the victim puts a question mark about the nature and extent of the sexual assault. Even the age difference and the organs involved, some or the other traces in the form of tenderness, redishness or something of this nature is bound to be found on the body of the victim. As nothing of this form is there, therefore the acts of the accused remain in the realm of an attempt only and that seem to be the reason why accused has been charged under Section 377 IPC and 4/18 of POCSO Act.
16. The defence put forth has no legs to stand upon that father of the victim had borrowed Rs.50,000/- from the accused and SC No. 27874/2016 State Vs. Surender Page No. 11 of 14 instead of returning the same, got the accused falsely implicated. There is no document reflecting the loan, nor there is any other evidence in any form, written or oral to establish that the father of the victim had borrowed the aforesaid sum from the accused. Incidentally, the accused has taken a different stand in his bail application wherein it was contended that there was a fight on account of refusal to provide milk to the victim by the accused as the metal coin/ token which is instrumental to fetch the milk from the Mother Dairy got struck into the socket meant for it. This change in defence puts a question mark about the bonafide of the accused and in turn strengthened the hands of the prosecution. The case of the prosecution also gets strength from the tesimony of Ramdass, the dhaba manager where the accused and the victim had gone for dinner on the fateful day. The version of the victin thus gets substantiated so far as the accused taking him out to dhabha and having dinner is concerned. In such circumstance there appears no reason to disbelieve the other portion of the testimony of the victim. As a result, the accused gets entangled into the cross hairs of his own defence and the testimony of the victim seals the fate of the accused.
17. The testimony of the victim unwaivering so far as the sexual assault is concerned which consists of the removal of clothes of the victim and attempting the sodomised him. The act remained in the realm of attempt only as has emerged, notwithstanding the version coming in the complaint Ex.PW5/A or in the statement under Section 164 Cr.P.C Ex.PW5/B. The victim was confined in the booth has already been established / shown therefore what is on record is that the victim went to fetch the milk from Milk Booth where he was SC No. 27874/2016 State Vs. Surender Page No. 12 of 14 deliberatly placed at last to receive the milk and thereafter the accused put the milk container/ 'dolchi' of the victim in the Milk Booth and lured or forced him to have dinner at the nearby dhabha. All this seemingly was done to pursuade/ presurize the victim to submit to the unnatural lust of the accused but despite the victim being in a very delicate situation under the confinement in the Mother Dairy Booth, he somehow managed to come out from the clutches of the accused and reported the matter to his parents who inturn caught hold of the accused and handed him over to the police.
18. It has also come in evidence of victim that accused had disrobe him and also exhibited his male organ (penis) which contitutes the offence of sexual harassment as defined in Section 11
(ii) of the POCSO Act, punishable under section 12 of the POCSO Act. The intent was sexual which is writ large on the record, therefore the prosecution need not fall back on Section 30 of the POCSO Act, raising a presumption in this context. As the accused has been charged under section 8 of the POCSO Act also and the record reflects that he had sexually assaulted the victim by removing his clothes and touched the private parts of the victim, therefore the offence of sexual assault is also made out. But then, the accused being held responsible for a graver offence of Section 4 read with Section 18 of the POCSO Act, therefore the ingredients being more or less common, therefore the accused is not required to be separately held responsible. However, in view of the fact that the facts are covered under both the heads and not only charge has been framed, but the ingredients have also surfaced on record, therefore despite their being an overlap, the finding is to be recorded against him in this context as well.
SC No. 27874/2016 State Vs. Surender Page No. 13 of 14
19. The evidence on record constitute the offence under Section 342IPC, 377/511 IPC, Section 4/18 and Section 8/12 of the POCSO Act, accordingly the accused is held guilty and convicted Digitally signed by under the afore-said sections. VIMAL VIMAL KUMAR KUMAR YADAV Date: 2018.05.12 Announced in the open Court YADAV 01:26:30 +0530 on this 10th day of May, 2018 (VIMAL KUMAR YADAV) SPECIAL JUDGE (POCSO ACT /ASJ-01/CENTRAL/THC, DELHI SC No. 27874/2016 State Vs. Surender Page No. 14 of 14