Delhi District Court
Prosecution vs Ravi S/O Jai Ram Pandey on 31 May, 2017
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSIONS JUDGE+1/ SPECIAL JUDGE
(POCSO), SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI
Sessions Case No : 128/2016
FIR No. : 266/2013
Under Section : 356/377/363/379/411/342/34 IPC & 4
POCSO ACT
Police Station : Madhu Vihar
In the matter of :
State
...........Prosecution
VERSUS
Ravi s/o Jai Ram Pandey
R/o : H. No. 607, Bhuwapur,
Kaushambi, Ghaziabad U.P.
Permanent R/o : H. No. A-365,
Vikas Nagar Colony, Gorakhnath Mandir
Gorakhpur, U.P.
.............. Accused
Date of Institution : 16-08-2013
Date of reserving judgment : 25-05-2017
Date of pronouncement : 31-05-2017
JUDGMENT
1) Accused Ravi was sent up for trial by the police of Police Station Madhu Vihar for the offences punishable under Section 356/377/363/379/411/342/34 of Indian Penal Code, 1860 (herein after referred to as "IPC" in short) and under Section 4 FIR No. 266/2013, PS : Madhu Vihar Page 1 of 24 2 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO" in short) on the allegations that on 17.05.2013 at about 1:00 p.m. one boy (name withheld as he is minor) came to the Police Post to HC Surender Singh and disclosed about the incident happened with him. He alongwith Ct. Manoj taken him to LBS Hospital and his medical examination was got conducted. After forensic examination sodomy was verified and thereafter his statement was recorded. On the basis of which FIR was registered. Thereafter victim child / complainant identified the spot and at his instance accused Ravi was apprehended and bed-sheet over which sodomy was committed was also seized. The blood sample, anal swab and underwear of the victim and underwear of the accused were also seized. Accused told name of other co-accused as Vinay, however, he could not be arrested as his address was not found. The statement of the victim was got recorded under S. 164 Cr.PC from Ld. Metropolitan Magistrate. Exhibits were sent to FSL for examination. After completion of investigation, the charge-sheet was filed.
2) Subsequently FSL result was also received wherein it is reported that on the bed-sheet human semen was detected however the result could not be concluded to match with blood sample of accused due to partial profile generated from the source of exhibits i.e. bed-sheet and blood sample on gauze of accused.
FIR No. 266/2013, PS : Madhu Vihar Page 2 of 243
3) After supplying the necessary copies to accused, after finding prima facie case, my Ld. Predecessor vide order dated 27-09-2013 charged the accused for the offences punishable under sections 379/34 IPC, 356/34 IPC, 363/365/342/377 IPC and under section 4 of POCSO, to which he pleaded not guilty and claimed trial.
4) The prosecution in support of its case, examined as many as 12 witnesses.
5) The prosecution examined the following material witness:-
i. PW-1 (name withheld as he is minor) is the victim. He proved his statement recorded by police as Ex.PW-1/A, seizure memo of bed-sheet as Ex.PW-1/B, statement recorded by Ld. MM as Ex.PW-1/C, arrest memo of accused as Ex.PW-1/D and personal search memo Ex.PW-1/E. He also identified his underwear as Ex.P1 and bed-sheet as Ex.P2.
6) The prosecution also examined the following witness regarding age of victim :
i. PW-2 Sh. Vishram Singh, Hindi Teacher, Vivekanand Bal Vidya Mandir, Chauhanpur, Sahaswan, Badaun, U.P. who proved the photocopy of original register as Ex.PW-2/A, transfer certificate as Ex.PW-2/B, certificate regarding date of birth issued by the school authority as Ex.PW-2/C. As per record date of birth of the victim was 01.07.1999.FIR No. 266/2013, PS : Madhu Vihar Page 3 of 24
4
7) The prosecution also examined the following formal witnesses:
i. PW-3 Dr. Sachin Gupta, GDMO, Swami Dayanand Hospital Shahdara, Delhi is the doctor who examined the accused Ravi and proved the MLC as Ex.PW-3/A and referred him to the forensic expert for potency test.
ii. PW-6 Ct. Sukhbir is the witness who deposited the exhibits with FSL.
iii. PW-7 HC Sushil Kumar is the MHC(M) with whom case properties/exhibits were deposited and who got deposited the same with FSL for examination. In this regard, he proved the photocopy of relevant entries in register no.19 in as Ex.PW-7/A and photocopy of RAC as Ex.PW-7/B and deposit receipt of pullandas at FSL office as Ex.PW-7/C. iv. PW-8 ASI Virender Singh is the duty officer who got recorded the formal FIR of this case. He proved his endorsement on the rukka as Ex.PW-8/A and computerized FIR as Ex.PW-8/B. v. PW-9 Dr. Ranvir Singh is the witness who deposed on behalf of Dr. Rohan who prepared the surgery notes in respect of victim child and proved the same as Ex.PW-9/A. vi. PW-10 Dr. Virender, the then CMO in LBS Hospital is the witness who examined the victim child and stated that there was only tenderness on examination but no visible injury was found and the patient was referred to department of FIR No. 266/2013, PS : Madhu Vihar Page 4 of 24 5 Forensic Medicine as well as Surgery.
vii. PW-11 Dr. Vinay Singh, Specialist Forensic Medicine, LBS Hospital is the doctor who examined the victim child and opined that possibility of sodomy/ annal intercourse of an adult erect penis, or (sic) any structure resembling it (sic) cannot be ruled out and proved his endorsement on the MLC as Ex.PW-11/A. He also examined accused regarding his potency test and opined that there was nothing to suggest that patient was incapable to perform sexual intercourse / impotent and proved his opinion as Ex.PW-11/B.
8) The prosecution also examined the following witnesses of investigation:
i. PW-4 HC Surender Singh is the witness to whom complainant / victim child had narrated the incident firstly at Police Post ISBT Anand Vihar and who recorded his statement. In addition to other, he proved rukka as Ex.PW- 4/A. He is also witness of arrest of accused and seizure of bed-sheet from the house of the accused.
ii. PW-5 Ct. Manoj is witness, who got medically examined the victim from the hospital and seizure of exhibits and arrest of accused and seizure of bed-sheet and medical examination of accused. In addition to other, he proved seizure memo Ex.PW-5/A of two sealed parcels with sample seal handed over to him by the doctor after medical examination of FIR No. 266/2013, PS : Madhu Vihar Page 5 of 24 6 victim. He also proved seizure memo of two sealed pullandas as Ex.PW-5/B which were handed over to him by the doctor after medical examination of the accused. iii. PW-12 SI Raj Kumar is the investigating officer (IO). In addition ot other memos, he proved site plan as Ex.PW- 12/A, his applications for recording statement u/s 161 Cr.PC as Ex.PW-12/B, and application Ex.PW-12/C, application for submitting the FSL Result as Ex.PW-12/D and FSL Result, which is admissible u/s 293 Cr.PC. as Ex.PW-12/E.
9) After conclusion of prosecution evidence, the statements of accused was recorded under section 313 Cr.PC wherein he denied the prosecution evidence and claimed to be innocent. He admitted that he was medically examined. He stated that this is a false case and he has been falsely implicated in this case. The victim / child was pick-pocketer and used to pick-pocket of the passengers and public persons at the bus stand. He was working in the PCO at bus stand and he had seen the boy roaming around in the ISBT. He stated that he (victim) had kept one empty bag at their shop and gave one mobile phone for charging. Thereafter he left. After days work, he went to his room which is opposite to the ISBT. Victim came and demanded Rs.10,000/-, otherwise threaten to implicate him in case. He refused and went away leaving his sleeper at their room.
Thereafter, victim came alongwith the police and made false complaint. Police also took away bed-sheet (sic) and planted the FIR No. 266/2013, PS : Madhu Vihar Page 6 of 24 7 same. However, he chose not to lead evidence in his defence.
10) I have heard Sh. S. K. Tripathi, Ld. Addl. P.P for State and Sh. Gautam Pal, Advocate from DLSA for accused. I have also gone through the record.
11) Firstly, it is worthwhile to have overview of legal provisions and in the light of the legal provisions, facts shall be discussed.
12) Section 29 of the POCSO, provides presumption for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9, where the Special Court shall presume the commission of such offences unless the contrary is proved. It is worthwhile to mention that the presumption is given for offence under sections 3, 5, 7 and 9. These are the sections which define the offence and are not punishing sections. Punishing sections are 4, 6, 8 and 10 respectively to above defining section.
13) Section 30 provides the presumption regarding culpable mental state. The Special Court shall presume the existence of such mental state. However, the accused in his defence can prove that he has no such mental state with regard to such charge. However, presumption is not available for offence punishable under S. 12 of POCSO.
14) Section 42 provides if the commission of offence is punishable under this Act or also under any other law for the time being in FIR No. 266/2013, PS : Madhu Vihar Page 7 of 24 8 force, the offender shall be liable to be punishment which provides punishment greater in degree.
15) The accused in this case has been charged for the offence punishable U/s 4 of POCSO and therefore presumption is available to the prosecution.
16) Section 2(d) of POCSO, defines, the "child" means any person below the age of 18 years.
AGE OF THE VICTIM
17) Firstly, I shall examine the issue regarding the age of the victim to find out whether POCSO Act is attracted to the present case. To prove the age of the victim, the prosecution examined PW-2 Sh. Vishram Singh, Hindi Teacher of the school and stated that the child was admitted in the aforesaid school in second standard and the date of birth as mentioned by his parents at the time of admission was 01.07.1999. However, no document regarding date of birth was given by the parents of the victim in the school and child has left the studies from the school on 20.05.2012. In this regard, he proved the photocopy of original register as Ex.PW-2/A, transfer certificates as Ex.PW-2/B and and birth certificate issued by their school as Ex.PW-2/C. There is no cross-examination of this witness except a suggestion that the birth record is manipulated one. Apart from the same, there is nothing on record, which show that date of birth is incorrect. Accordingly, I take the age of the child as 13 years and 10 FIR No. 266/2013, PS : Madhu Vihar Page 8 of 24 9 months on the date of incident.
18) Now coming to other aspects of the matter. Statement of the victim was recorded in Child Witness Court Room through Video Conferencing. PW-1 victim / child, boy, (name withheld as he is minor) testified that on 17.5.2013 at 9:00 a.m., he had come at Anand Vihar Bus Stand to receive his mother who had to come from Rajasthan after taking her medicines and he was sitting at the platform whose number he does not remember and was waiting for mother and suddenly one boy came and snatched his bag and run away, he followed him and asked him to return his bag but he handed over the bag to some another boy and caught hold his hand and took him to his house. His house was located in a village across the road. He kept him detained in a room and did galat kam with him. He made him to masturbate him (mutthi marwai) and then he removed his pant and committed carnal intercourse (meri gand maari) with him. He stated that he threatened him not to disclose the fact to anyone otherwise he will kill him. Thereafter, he stayed there and when the boy slept, he came out after opening the door and approached the police at Anand Vihar Bus Stand and narrated the facts. The police officials accompanied him to the house of that boy and he was apprehended by the police. He stated that thereafter he was taken to the hospital where he was medically examined and provided treatment. He stated that his statement was recorded by Ld. Magistrate. He stated that police had FIR No. 266/2013, PS : Madhu Vihar Page 9 of 24 10 recovered his bag from the house of that boy and seized one bed-sheet on which galat kamm was done with him by that boy. IO seized the said bed-sheet.
19) He also stated that he narrated the facts in his statement recorded by Ld. MM and had stated to Ld MM in his statement that when he was searching the urinal for urinate, two boys chased him and when he ran away, one of them stopped him from front side and another from the back side. The boy who had done galat kaam with him was named Ravi whose name he came to know when inspector asked his name. When he (accused) was taking him alongwith him (accused), the public had also enquired from him (accused) as to why he (accused) was taking him by catching hold his hand on which he (accused) told that he (victim) was his brother and had run away from house. He identified the accused Ravi.
20) PW-4 HC Surender Singh testified that on 17.05.2013, he was posted as Head Constable at PS Madhu Vihar, Delhi and on that day, he was present at Chowki, ISBT, Anand Vihar where complainant (name withheld as he is minor) met him and narrated about the incident. He deputed Ct. Manoj (PW-5) to get complainant the medically examined from LBS Hospital and he also accompanied them. After medical examination, he recorded of victim and prepared rukka on the same and sent Rukka through Ct. Manoj for registration of FIR. Thereafter he brought the complainant back at Police Chowki, ISBT, Anand Vihar and FIR No. 266/2013, PS : Madhu Vihar Page 10 of 24 11 thereafter SI Raj Kumar from PS Madhu Vihar reached at Police Chowki and he produced the complainant before him and handed over the MLC to him. Thereafter complainant took the police team to the place of occurrence i.e. village Bhovapur and accused was found on the 1st Floor of the House No.607 and complainant identified him and he was apprehended and arrested. Private photographer was also called at the spot who clicked photographs. He also stated that a bed-sheet of red, black and yellow colour was also seized from the house of accused. Medical examination of the accused was also conducted. He also identified bed sheet.
21) PW-5 Ct. Manoj Kumar corroborated PW-4 regarding he had taken the victim for medical examination and after medical examination doctor handed over two sealed parcels alongwith sample seal to him which was seized by IO. He stated that IO prepared a rukka in the hospital and sent him with Rukka to PS for registration of FIR and after registration of FIR, he returned to Police Post alongwith SI Raj Kumar. He further corroborated PW-4 regarding raid to the house of accused, his arrest and seizure of bed-sheet at the instance of victim child. He stated that after medical examination of accused, two sealed pullandas were received which he handed over to the IO who seized the same. He also identified the bed sheet.
22) PW-12 SI Raj Kumar, IO testified that on the receipt of information at about 2:00 p.m. from HC Surender regarding FIR No. 266/2013, PS : Madhu Vihar Page 11 of 24 12 victim has been taken to hospital, he reached at the hospital. He also deposed / corroborated regarding arrest of the accused and recovery of bed-sheet, medical examination of the accused. He also stated that statement of victim u/s 164 Cr.PC was also got recorded and exhibits were got deposited with FSL and subsequently he also obtained age proof the victim and proved FSL Result Ex.PW-12/E which is admissible under S. 293 Cr.PC.
23) Ld. Counsel for accused submitted that there are material inconsistencies in the statements of the victim who initially claimed that one boy snatched his bag and run away and he followed him and asked him to return his bag but he handed over the bag to some another boy and caught hold his hand and took him to his house whereas in his earlier statement recorded u/s 164 Cr.PC he stated that he was feeling natural call and was looking for place to urinate and in the meantime 2 boys chased him (peeche par gaye) and when he run away, one boy surrounded him from front and another boy from back and apprehended him and snatched his bag and one boy took him to his room. It is further submitted that as per statement PW-4 HC Surender Singh, the photograph of the spot got clicked from the private photographer but there are no photographs filed on record. It is also submitted that bag was recovered from the spot as per the version of the victim but there is no such bag. It is also submitted that FSL result is negative and doctor who had FIR No. 266/2013, PS : Madhu Vihar Page 12 of 24 13 conducted his examination has left the services of the hospital and another doctor who had been examined could not proved the medical examination of the victim.
24) On the other hand, Ld. Addl. PP for State submitted that there are no inconsistency between statements of the victim. Further, he submitted that the doctor who had given forensic opinion regarding unnatural sexual assault had been examined, who had examined the victim. It is further submitted that although as per FSL, DNA of accused could not be matched due to partial profile generated from source of exhibit, however, human semen was found positive on the bed-sheet, which corroborates to the victim and therefore prosecution has succeeded in proving their case against accused.
25) The evidence on the child witness is to be appreciated as per the law laid down by Hon'ble Supreme Court in case of K. Venkateshwarlu v. State of A.P., (2012) 8 SCC 73 wherein it is held that the evidence of the child witness has to be subjected to closest scrutiny. To quote :-
9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or FIR No. 266/2013, PS : Madhu Vihar Page 13 of 24 14 inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion.
Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.
26) Victim in his statement recorded u/s 164 Cr.PC and statement made to the police stated regarding snatching of his bag although there is inconsistency as to when bag was snatched, while sitting in the platform or while he was searching for toilet. He has also made some improvements from statement made to the police Ex.PW-1/A and statement made to Ld. MM where he stated that when he shouted people on the way asked accused as to why he has was taking victim by catching hold his hand on which accused told that victim was his brother and had run away from house. Apart from these inconsistencies, his testimony is consistent as to in the manner sodomy was committed with him. As regards escape also, there are FIR No. 266/2013, PS : Madhu Vihar Page 14 of 24 15 inconsistency as in his statement made to police he stated that he kept sitting and when said boy person felt sleepy he opened latch and run away whereas in his statement made to Ld. MM he stated that he asked they for toilet on which they allowed him to go, however, when he was examined in the court he gave both version. In view of the variation in statement made to the police and to Ld. MM u/s 164 Cr.PC. the testimony of such witness can only be trusted if it found corroboration on material points with independent evidence.
27) The independent evidence in this case is medical evidence as well as forensic evidence. The medical evidence is proved by PW-10 Dr. Virender who proved the MLC of Victim as Ex.PW-10/A and found tenderness. The victim was referred to SR Surgery/ Forensic Deptt. for further local examination for unnatural sexual assault. Doctor at SR Surgery to whom victim was referred, on rectal examination, found posterior perineal skin, tear present (superficial), small superficial and tear. This witness could not be examined, however, referred the patient for forensic examination. PW-11 Dr. Vinay Kumar Singh, Specialist Forensic Medicine had examined the victim for determination of unnatural sexual assault, who opined that possibility of sodomy/ annal intercourse of an adult erect penis, any structure resembling cannot be ruled out. Therefore from the forensic medical examination, it is established that there was injury on the anal region of the victim. \ FIR No. 266/2013, PS : Madhu Vihar Page 15 of 24 16
28) The second corroboration comes from the human semen found on the bed-sheet. Although DNA profile could not generated from the exhibits, human semen was detected on the bad-sheet recovered from the house of the accused, it corroborates the version of the victim that carnal intercourse was done with him at the house of the accused by the accused.
ARREST OF ACCUSED, SEIZURE OF THE BEDSHEET AND RECOVERY OF BAG .
29) Now coming to the veracity and authenticity of the seizure of bed-sheet and forensic evidence. PW-1 victim child had deposed regarding seizure of the bed-sheet on which galat kam was done by accused from the house of the accused at his instance. He also stated that police had recovered his bag from the house of accused. He had put his thumb impression on the arrest memo and personal search memo. In his cross-examination he admitted that police had shown the bed- sheet to him at the police station. He also stated that police had seized his bag from the room of the accused. He could not give the address of room where he was taken by the accused but he can locate and identify the room. He stated that the room was located on second or third floor of the building. There was no gate on the entrance of the building.
30) PW-4 HC Surender Singh is also witness of arrest of accused and seizure of bed-sheet. He stated that complainant took the FIR No. 266/2013, PS : Madhu Vihar Page 16 of 24 17 police team to the place of occurrence, where accused was found present on the 1st Floor of House No.607 and at the instance of complainant / victim child, accused was arrested and bed-sheet was seized. He also identified bed-sheet. He also stated that private photographer was also called at the spot who clicked photographs. In his cross-examination he stated that parcel of bed-sheet was prepared at the spot. The documents which were prepared at the spot regarding arrest and seizure of bed-sheet were signed by complainant and him as well as by the accused. It was a single story house. He also categorically stated that no bag was seized from the spot. He denied the suggestion that bed-sheet was not seized in his presence or that same was planted in this case.
31) PW-5 Ct. Manoj is another witness regarding arrest, seizure of bed-sheet at the identification of complainant / victim child. He also denied the suggestion that no bed sheet was seized in his presence.
32) PW-12 SI Raj Kumar, Investigating Officer, is also witness of arrest and seizure of bed-sheet at the instance of victim child. However, he also deposed that at the site one black colour bag containing the clothes of the victim was also found which was also seized. In his cross-examination he stated that he did not seized any bag from ISBT Anand Vihar. He stated that he did not took the photographs of scene of crime. The house of Mam Chand was double storied. He had denied suggestion that FIR No. 266/2013, PS : Madhu Vihar Page 17 of 24 18 nothing was recovered from the aforesaid house or that the bed- sheet was planted by putting the semen on the same which was taken from the accused at the PS.
33) Therefore, there is no discrepancy regarding seizure of the bed-sheet. The police witness stated that it was seized at the spot itself whereas the victim child stated that he was shown bed-sheet in the police station. Therefore the possibility of tampering with bed-sheet has to be ruled out.
INTEGRITY OF FSL RESULT
34) It is submitted by Ld. Counsel for accused that accused was made to sprinkle semen on the bed-sheet in the police station forcibly and the exhibits were tampered with in order to falsely implicate the accused in this case. Moreover, FSL result is negative in respect of DNA examination.
35) PW-1 PW Victim child has stated that he was medically examined in the hospital.
36) PW-4 HC Surender Singh also stated that victim as well as accused were medically examined from the hospital. There is no cross-examination regarding tampering with the exhibits except a suggestion that bed-sheet was planted in this case.
37) PW-5 Ct. Manoj stated in respect of victim, after medical examination, doctor handed over two sealed parcels with sample seal to him which he handed over to the IO who seized FIR No. 266/2013, PS : Madhu Vihar Page 18 of 24 19 the same. He similarly stated that after medical examination of accused, two sealed pullandas were received which he handed over to IO who seized the same. He was also merely given suggestion that no bed-sheet was seized in his presence or that same was planted.
38) PW-7 HC Sushil Kumar (MHC) stated that on 17.05.2013, HC Surender had deposited five sealed pullandas in the mallkhana alongwith sample seal and he deposited the same vide serial no. 831 of register no.19 and proved photocopy of the same as Ex.PW-7/A. He also stated that on 28.05.2013, the said pullandas were sent to FSL Rohini through Ct. Sukhbir vide RC Ex.PW-7/B and Ct. Sukhbir handed over deposit receipt of pullandas at FSL office Ex.PW-7/C. He further stated that as long as seal pullandas remained in his custody no one has tampered the seal. In his cross-examination he stated that he did not obtain the signature of HC Surender on the mallkhana register and he could not time when these pullandas were deposited in the mallkhana. He also admitted that he did not obtain signature of Ct. Sukhbir on the register no.19 when he [MHC(M)] handed over pullandas to him. He denied the suggestion that the entry in register is ante date and ante time.
39) PW-6 Ct. Sukhbir corroborated PW-7 regarding exhibits deposited at FSL by him after receiving the same from him. He also stated that so long as seal pullandas remained in his custody no one has tampered the same. In his cross-examination FIR No. 266/2013, PS : Madhu Vihar Page 19 of 24 20 he stated he had signed RC Register, and admitted that copy of the same is not on the judicial file. He could not tell impression of seal on the pullandas. He denied the suggestion that he did not take any pullandas to FSL or that he had tampered the same.
40) PW-12 SI Raj Kumar stated that medical examination of the victim was got conducted. At about 5:00 p.m. he was informed that the investigation was handed over to him and HC Surender handed over him two parcels containing anus swab and underwear of the victim sealed with the seal of LBS Hospital and also handed over him the MLC of the victim. Accused was arrested at the identification of accused and he was got medically examined. The doctor handed over him the blood sample and underwear of the accused sealed parcel sealed with the seal of LBS which was seized. On 28.05.2013 the exhibits were got deposited with FSL Rohini. In his cross-examination he stated that he did not prepare any seal handing over memo. He was also given suggestion that the bed-sheet was planted by putting the semen on the same which was taken from the accused at the PS.
41) Therefore, from the evidence of above said witnesses, apart from minor details which witnesses would not remember at such long gap between event and deposition, there is nothing which casts doubts about the integrity of the exhibits and tampering with the same. Therefore, it is established from the statement of above witnesses, that there is no possibility of FIR No. 266/2013, PS : Madhu Vihar Page 20 of 24 21 tampering between seizure of the case properties, its deposition with MHC(M) and then to FSL Rohini for examination.
42) As regards the result of FSL, the FSL result is admissible under S. 293 Cr.PC and detection of semen on the bed-sheet, which was recovered from the house of the accused at the pointing of victim that he was made to lie on the said bed-sheet and then offence was committed by accused. However, after DNA examination, it was reported that result could not be concluded due to partial profile generated from the source of exhibits i.e. bed-sheet and blood sample on gauze of accused.
43) As regards the contention of Ld. Counsel for accused regarding recovery of bag and photographs of site was taken, admittedly on record there are no photographs of spot nor there is bag which was allegedly snatched by the accused from the victim child. Although the IO has stated that bag containing clothes was recovered yet the same is not made part of charge-sheet but other witness have not corroborated. As regards non-availability of photographs, it does not materially affect the prosecution case. Therefore the accused is entitled to benefit of doubt as far as theft and snatching is concerned. Accordingly, I am of the opinion that prosecution has failed to prove offences punishable u/s 379/34 IPC and 356/34 IPC against the accused.
44) However, the prosecution has succeeded in providing that victim child was kidnapped with intention to confine him FIR No. 266/2013, PS : Madhu Vihar Page 21 of 24 22 wrongfully and for doing carnal intercourse. It is also proved that accused had wrongfully confined him in a house. The prosecution has also proved that accused has committed carnal intercourse against the order of nature with victim child. Therefore offences punishable u/s 363/365/342/377 IPC stands proved against accused.
45) As regards the POCSO, accused was charged for offence punishable u/s 4 POCSO for committing penetrative sexual assault against victim child aged about 12 years. It is held that victim was aged about 13 years and 10 months at the time of commission of offence. There is presumption against the accused of commission of offence and also mental state u/s 29 and 30 of POCSO. The prosecution has established the commission of offence by statement of victim and corroborative evidence and accordingly offences punishable u/s 4 POCSO Act is also proved. The accused has failed to rebut the presumption against him.
CONCLUSION
46) From the statement of victim which is duly corroborated by other independent evidence, it is established that victim child was kidnapped with intention to confine him wrongfully and for doing carnal intercourse. It is also proved that accused had wrongfully confined him in a house. The prosecution has also proved that accused has committed carnal intercourse against FIR No. 266/2013, PS : Madhu Vihar Page 22 of 24 23 the order of nature with victim child, whose age is held to be 13 years and 10 months on the date of commission of offence.
47) Accordingly, I am of the opinion that prosecution has succeeded in proving offences punishable u/s 363/365/342/377 IPC and under S. 4 POCSO Act.
DEFENCE OF ACCUSED
48) Now coming to the defence of the accused. He stated that the victim / child was pick-pocketer and used to pick-pocket of the passengers and public persons at the bus stand. He was working in the PCO at bus stand and he had seen the boy roaming around in the ISBT. He stated that he (victim) had kept one empty bag at their shop and gave one mobile phone for charging. Thereafter he left. After days work, he went to his room which is opposite to the ISBT. Victim came and demanded Rs.10,000/-, otherwise threaten to implicate him in case. He refused and went away leaving his sleeper at their room. Thereafter, victim came alongwith the police and made false complaint. Police also took away bed-sheet (sic) and planted the same. However, he had not led any evidence in his defence. The defence version has come from the first time in his statement recorded u/s 313 Cr.PC which is neither substantiated nor it is brought on record that victim was involved in any pick- pocketing case or that he was roaming in the area of ISBT. The defence of the accused is of bald denial and sham and it does FIR No. 266/2013, PS : Madhu Vihar Page 23 of 24 24 not improbablise the prosecution version.
49) Therefore, as per discussion above, I am of the opinion that prosecution has succeeded in proving offence punishable punishable u/s 363/365/342/377 IPC and under S. 4 POCSO Act against accused beyond reasonable doubt. Accordingly, accused is convicted for offence punishable punishable u/s 363/365/342/377 IPC and under S. 4 POCSO Act.
50) Let arguments be heard on the quantum of sentence. Announced in the open court today i.e. 31.05.2017 (GURDEEP SINGH) ASJ-1+SPL. JUDGE (POCSO) SHAHDARA/KKD/DELHI/31.05.2017 FIR No. 266/2013, PS : Madhu Vihar Page 24 of 24