Delhi District Court
Sc No. 84/12 : Fir No. 194/12 : Ps Vijay ... vs Sumit @ Amar Singh on 22 August, 2016
SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 84/12)
Unique Identification No.: 02404R0377672012
State V/s Sumit @ Amar Singh
FIR No. : 194/12
U/s : 376 (2) (f) IPC
P.S. : Vijay Vihar
State V/s Sumit @ Amar Singh
S/o Sh. Devender
R/o B105, Vijay Vihar,
PhaseII, Delhi.
Date of institution of case : 20.10.2012
Date of arguments : 08.07.2016
Date of pronouncement of judgment : 19.08.2016
J U D G M E N T :
1.The facts of the case as borne out from the record are that on 03.06.2012, after entrustment of DD no. 19A, ASI Pardeep and Ct. Ram Mehar went to the informed place i.e. E128, Vijay Vihar, Phase2, Delhi and after some Page 1 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh time, W/SI Rekha also reached there. On inquiry, at the spot, it was revealed that rape had been committed upon child T, aged about 8 years (hereinafter referred to as 'child victim') and PCR van had already taken the child victim and her mother to BSA hospital. W/SI Rekha, after leaving ASI Pardeep at the spot, went to BSA hospital, where child victim was found admitted and on her MLC, concerned doctor had noted "H/O sexual assault by neighbour'. W/SI Rekha got the child victim and her mother counseled through NGO counselor and then made inquiries from Sunita, mother of the child victim and recorded her statement to the effect that on that day, at about 7.00 am, she had gone to her work as maid and had returned home at about 3.00 pm and child victim and her son Deepak started weeping on seeing her and on inquiry, child victim told her that on that day, at about 9.00 am, she was lying on the bed, suddenly accused entered into the room and lied down upon her after removing her underwear as well as his underwear, he inserted his penis into her vagina and when she raised alarm, her brother reached there and thereafter, accused fled away from the spot. She got called the police through her nephew Rajesh. She requested for legal action against the accused. On the basis of statement of mother of the child victim FIR was registered, spot was got inspected through the Crime Team. Child victim's exhibits were seized. As the accused claimed himself to be juvenile, his apprehension memo was prepared by JWO and his version was recorded and thereafter, he was sent to the Observation Home. Statement of child victim u/s 164 CrPC was got recorded and she was produced before CWC. Exhibits were sent to FSL. Age inquiry of the Page 2 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh accused was conducted and he was declared adult. After completion of the investigation, charge sheet in the matter was filed.
2. After committal, arguments on the point of charge were heard and on 21.02.2013, charges u/s 376 (2) (f) IPC, were framed against the accused, to which he pleaded not guilty and claimed trial.
During the trial of the case, the accused got absented himself on 14.08.2014 and despite issuance of the coercive measures, he could not be apprehended and ultimately, he was declared proclaimed offender vide order dated 29.10.2015.
Thereafter, the accused was apprehended again and was produced before the court on 21.11.2015 and on 01.04.2016, an additional charge u/s 174A I.P.C was framed against him, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 24 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 at the instance of her mother, however, he did not led any evidence in his defence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Ms. Urmila Yadav, ld. LAC, for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be Page 3 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh 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, her family members and public witness
(b) Evidence with regard to the age of the child victim
(c) Medical and Forensic Evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation
(a) Child Victim, her family members and public witness
5. Child victim, in the present case was examined as PW7 and the relevant portion of her testimony is as under : "xxxxx Q. Kya hua tha ?
Ans. Ek ladka Sumit mere upar chad gaya tha.
Q. Phir kya hua ?
Ans. Usne meri kachhi utar di aur apni bhi.
Q. Uss samay aap kaha the ?
Ans. Mein ghar par TV dekh rahi thi.
Q. Woh kaun sa din tha ?
Ans. Ravivar (Sunday).
Q. Aur kaun tha ghar par ?
Ans. Mera bhai Deepak bahar khel raha tha.
Q. Phir kya hua ?
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SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
Ans. Woh mere upar chad gaya, apni susu khol kar meri susu me dal diya.
Q. Phir kya hua ?
Ans. Mera bhai Deepak aya aur uss ladke ko dande se marne lag gaya.
Q. Aur kya hua tha ?
Ans. Mujhe dard hua tha.
Q. Aap uss ladke ko pehchante ho ?
Ans. Ha. Sumit hamare ghar ke udhar hi rehata tha.
Q. Phir kya hua ?
Ans. Hamane mummy ko bataya tha.
Q. Aur kya hua ?
Ans. Hamane shor machaya tha, toh mera bhai aaya tha.
Q. Phir kya hua ?
Ans. Jab mere bhai ne danda mara, woh chhod kar chala gaya.
Q. Aap pehle bhi kabhi Court aaye ho ?
Ans. Ha. Unhone bhi mere se aise hi pucha tha.
xxx"
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During crossexamination by learned LAC, the witness stated that : "xxx Q. Sumit aapke ghar ke aaspaas kabh se rehraha tha ?
Ans. Hamare ghar ke paas ek aurat thi uske ghar rehata tha, jab se woh aurat aayi thi tab se rehta tha.
Q. Kya woh aurat uski mummy hai ?
Ans. Nahi, woh waise hi rehta tha.
Q. Kya woh aurat abbhi rehti hai ?
Ans. Nahi.
Q. Kya aapki mummy yah papa ka uss aurat se
yah Sumit se kabhi jhagada hua ?
Ans. Nahi.
Q. Uss din se pehle Sumit tumahare ghar kabhi
aaya tha ?
Ans. Nahi, ussi din aaya tha.
Q. Aap ko uska naam kaise pata hai ?
Ans. Usse sab bulate the jaha woh rehta tha.
Q. kya aapke mummy papa waha jate the ?
Ans. Nahi.
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Q. Kya aap kabhi uss ghar me khelne gaye ?
Ans. Nahi.
Q. Mummy aur papa kitne baje duty jate hai ?
Ans. Mummy savere 7 baje duty jati hai aur raat ko 8 - 9 baje aati hai aur papa raat ko 5 baje jate hai phir sabazi late hai aur lagate hai aur 9 baje savere bechane jate hai.
(the witness by "5 baje" witness means that at that time it is dark and she means that it is early morning hours).
Q. Jis samay ki baat hai aapke papa kaha the ?
Ans. Woh gaon gaye the. Agra gaye the.
Q. Aap kis ke ghar me rehte ho ?
Ans. Hum Vinita ke ghar me kiraye par rehte hai.
Q. Uss samay Vinita kaha par thi ?
Ans. Woh apne kamare me thi.
Q. Uss samay Vinita ke kamare ka darwaja khula
tha ?
Ans. Ha.
Q. Aapke kamare ka darwaja bhi khula tha ?
Ans. Ha.
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SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
Q. Aapke kamara aur Vinita ka kamara saath
saath hai ?
Ans. Nahi. Pehla kamara Vinita ka hai phir bhich me ek kamara hai, hum tisre kamare me rehte hai.
Q. Kya Sumit aur uski aunty Vinita didi ke paas aati thi ?
Ans. Ha.
Q. Kya unke beech me ache se bolchal hoti thi
yah kabhi jhagada hua?
Ans. Vinita aur Sumit ki aunty ache se bolti thi.
Q. Jab aapke mummy papa duty jate the, toh Vinita didi ko dhyan rakhane ko bol ke jate the ?
Ans. Ha.
Q. Vinita did kaise apka dhyan rakhti thi ?
Ans. Woh aati bhi thi aur hum bhi chale jate the.
Q. Uss din Vinita didi tumhe dekhne aayi thi ?
Ans. Nahi.
Q. Woh kya kar rahi thi ?
Ans. Woh khana bana rahi thi.
Q. Apko kaise pata ki woh khana bana rahi thi ?
Ans. Jab unhe pata chala toh unhone bataya.
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SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
Q. Kya Sumit ke mummy papa uske sath rehte
the ?
Ans. Nahi.
Q. Uss din Sumit ne apse pani manga tha ?
Ans Ha.
Q. Use pani pilaya tha ?
Ans. Nahi woh pani ke bahane aaya tha.
Q. Uss din aapki mummy jaldi ghar kaise aayi
thi ?
Ans. Kabhi kabhi mummy jaldi ghar aajati hai.
Q. Kya Vinita aunty ke paas phone hai ?
Ans. Ha.
Q. Aur tumahari mummy ke paas ?
Ans. Ha par ab woh kharab ho gaya hai.
Q. Agar mummy ke jane ke bad tumhe baat karne
ho toh kya karte the ?
Ans. Hum Vinita aunty ke phone se baat karte the, yah dukan se karlete the.
Q. Mummy ke jane ke baad aap dono ghar ka
darwaja bandh rakhte ho ?
Ans. Ha.
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SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
Q. Uss din darwaja khula tha yah bandh tha ?
Ans. Khula tha.
Court question : Darwaja kyu khula chodha tha ?
Ans. Bhaiya bahar tha.
Q. Aap ka bhaiya kitna bada hai aap se ?
Ans. Teen sal bada hai.
Q. Jis samay Sumit aaya, bhaiya kya tha ?
Ans. Woh bahar bhetha tha.
Q. Sumit aur bhaiya ki dosti hai ?
Ans. Nahi.
Q. Bhaiya ne Sumit ko mana nahi kiya ki andar
kyu ja raha hai ?
Ans. Bhaiya ne dekha nahi tha.
Q. Kya tumne shor machaya tha ?
Ans. Ha.
Q. Shor sunke sabse pehle kaun aaya ?
Ans. Mera bhai.
Q. Vinita aunty aayi thi ?
Ans. Woh bad me aayi thi.
Q. Mummy ke aane se pehle aa gayi thi Vinita
aunty ?
Ans. ha.
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SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
Q. Jab Vinita aunty aayi toh Sumit wahi tha ?
Ans. Ha.
Q. Uss samay Sumit ne kapade pehne the ?
Ans. Ha.
Q. Aapke bhai ne Sumit ko sabse pehle danda
kaha mara tha ?
Ans. Peeth me.
Q. Kya uss din Vinita aunty ne mummy ko phone
kiya tha ?
Ans. Nahi mummy apne aap aagayi thi.
Q. Vinita aunty ne police ko bulaya tha ?
Ans. Nahi mummy ne bulaya tha.
Q. Mummy ko sari baate kisne batayi thi ?
Ans. Maine batayi thi.
Q. Aaj aapko mummy ne bataya ki kya bolana
hai ?
Ans. Nahi.
Q. Mummy ne bataya ke police ko aur Court ko
kya batana hai ?
Ans. Nahi.
Q. Uss din Sumit sirf pani pine aaya tha ?
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SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
Ans. Woh pani pine ke bahane aaya tha maine mana kardiya ki paani nahi hai. Phir woh mere upar chad gaya. Baad me woh fridge se pani nikal kar pine laga.
Q. Aapne shor machaya tha toh kaya kaha tha ?
Ans. Ha. Bachao - bachao.
xxx"
6. PW8 Deepak, elder brother of the child victim, aged about 12 years, is an eye witness of the incident and relevant portion of his testimony is as under : "xxx Q. Kab ki baat hai ?
Ans. 3.6.2012 savere 8 baje.
Q. Aap kaha the ?
Ans. Mein ghar ke bahar betha hua tha.
Q. Tanu kaha thi ?
Ans. Woh ghar me TV dekh rahi thi.
Q. Phir kya hua tha ?
Ans. Mein andar aaya toh woh ladka Tanu ke upar leta hua tha. Uske niche ke kapade nahi the. Tanu ke kapade bhi nahi the.
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SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
Q. Phir kya hua ?
Ans. Mein danda lene gaya, woh bhag gaya wahi
se.
Q. Kya aapne uss ladake ko aate dekha tha ?
A. nahi.
Q. Kya aap uska naam janate ho ?
Ans. Nahi.
Q. Kya aap usko pehchante ho ?
Ans. Ha. Jis ghar me hum kiraye par rehte hai,
waha woh bhi kisi ke sath rehta tha. Apne ghar nahi jata tha.
Q. Woh ladka aaj aaya hai ?
Ans. Ha. Bahar Court me betha hai.
Q. jab uss ladke ko aur behein ko dekha toh kya
laga ?
Ans. Ki woh gandi baat kar raha hai.
xxx"
During crossexamination by learned LAC, the witness stated that : "xxx Q. Jab tum danda le kar aaye, toh woh ladka tab tak chala gaya tha ?
Page 13 of 42SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh Ans Nahi, usse ek aurat ne aakar bagaya tha.
Q. Woh aurat kaun thi ?
Ans. Maine awaz di toh woh jaladi se aagayi. Woh wahi ussi makan me rahati thi.
Q. Uska naam pata hai ?
Ans. Nahi.
Q. Kya uska naam Vinita hai ?
Ans. Nahi.
Q. Aap kiske makan me rehte ho ?
Ans. Vinita ke.
Q. Vinita aunty aayi thi ?
Ans. Nahi, woh kamare me soh rahi thi.
Court ques. : bahar bethane se kya matalab hai ?
Ans. Mein ghar ke bahar betha tha, kamare ke bahar nahi.
Q. Sumit kaya se aaya tha ?
Ans. Woh ghar me hi tha. Bahar se nahi aaya tha.
Q. Sumit kaha par rehta tha ?
Ans. Hamare kamare se ek kamara chhod kar.
Q. Jab aunty aayi uss samay Sumit kya kar raha
tha ?
Ans. Usne kapade pehan liya the aur hamare fridge Page 14 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh se pani nikal kar pi raha tha.
Q.Apne aunty ko bataya tha ki Sumit ne kya kiya ?
Ans. Ha.
Q. Aunty ne Sumit ko pakada nahi ?
Ans. Nahi.
Q. Sumit kiske sath rehta tha uss kamare me ?
Ans. Woh ek aunty ke sath rehta tha. Woh sab
kamaro me aata jata rehta tha. Hamare kamare me pani lene aata tha.
Q. Vinita aunty kab aayi thi ?
Ans. Mummy ke aane se pehle.
Q. Vinita aunty ko kisne bataya tha ?
Ans. Maine.
Q. Aur mummy ko ?
Ans. Unko bhi maine bataya tha.
xxx"
7. PW19 Smt. Sunita, mother of the child victim deposed that on 03.06.2012. she had left her house for her work as maid servant, leaving her both her children i.e. child victim and PW8 Deepak and on her return at about 3.00 pm, she found her both children weeping and crying and on inquiry, child victim told her that accused, a resident of the same colony, had entered in the house at 9 AM, he Page 15 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh forcibly took off her clothes and also his clothes and thereafter, he laid upon her and committed wrong act (galat kaam) with her. She further deposed that her son Deepak, who was aged about 11 years at that time, told her that he had seen the accused doing galat kam with child victim and had also tried to rescue the child victim. She further deposed that hearing all this from her children, she got perplexed and thereafter, she called her nephew/PW10 Rajesh and asked him to call the police and PW10 called the police at 100 number.
She further deposed about arrival of the police, about getting the child victim medically examined vide MLC Ex. PW12/A, about recording of her statement Ex. PW3/A by the police, about pointing out the place of incident to the police, about seizure of bed sheet by the police, about handing over birth certificate Ex. PW19/A of child victim to the police and about its seizure vide memo Ex. PW 19/B. She identified the said bed sheet as Ex. P1, frock of child victim as Ex. P2 and her underwear as Ex. P3.
During crossexamination by ld. LAC, she stated that she had been working in 6 or 7 houses as maid servant in Sector8, Rohini at the time of incident and her children used to live alone in the house and in her absence, her landlady/PW11 Vinita used to look after her children. She further stated that she generally used to return to her house from her work at around 6 or 7 PM. She further stated that she was having mobile phone at the time of incident. She further stated that on the day of incident, she had returned home at around 3 PM. She further stated that her both children used to go to school, but the day of Page 16 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh incident was Sunday. She further stated that when she reached home, she found her both children present in the house and by that time, accused had already fled away. She further stated that accused used to visit the room in the house, where she was residing. She further stated that her son had seen the accused entering into her room and thought that he might have come to steal something and because of this reason, he followed the accused. She further stated that her son had seen that the accused had removed his clothes and her daughter's clothes and had laid down on her. She denied that her children had not told her anything or that she had concocted the entire story in order to take revenge from the accused as she was having an issue with his aunt.
8. PW10 Rajesh, neighbour of the child victim deposed that on 03.06.2012, on coming to know about commission of wrong act upon the child victim by the accused, he had called the police by dialing 100 number from his phone at about 4.25 pm and after some time, police had reached at the spot.
9. PW11 Ms. Vinita, owner of the house bearing no. E128, Vijay Vihar, PhaseII, Delhi, deposed that she had let out one of the rooms of her house on rent to PW10 Smt. Sunita (mother of the child victim), who used to work as maid servant and in her absence, child victim and her brother used to live in the rented house. She further deposed that on 03.06.2012, on her return at about 22.30 pm, child victim had told her that accused had committed rape upon her and thereafter, Page 17 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh her mother also reached there.
During crossexamination by learned LAC, she stated that no rent agreement was executed between her and any of her tenants. She further stated that Sunita used to leave home at about 7.00800 a.m. and used to come back at about 3.00 p.m and in the absence of Sunita, her children were being looked after by her and sometimes they used to visit their aunt's house(bua). She further stated that accused was never her tenant and was residing somewhere else in the same locality at some distance from her house, however, used to visit one of her tenants. The witness could not tell the name of the said tenant and deposed that they used to call her as gaiwali (as she used to sell milk of her cow).
(b) Evidence with regard to age of the child victim
10. The prosecution has examined PW14 Ms. Poonam Yadav, PRT, MC Primary School, Sector04, Rohini, Delhi, who produced the school record regarding date of birth of the child victim and deposed that as per the school record, she was admitted in the school in 1 st class, on the basis of admission form Ex. PW14/A and affidavit Ex. PW14/B of her father and her date of birth was entered in the school record as 01.03.2004. She also proved the relevant entry in the admission register as Ex.PW14/C. As per the school record, the child victim was admittedly aged about 8 years and 3 months, as on the date of incident. It is worthwhile to note that the defence has not disputed the age of child victim at any stage of trial.
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(c) Medical and Forensic evidence
11. PW9 Dr. Anju Gupta, Specialist Psychiatrist, had examined the child victim on 04.06.2012 and deposed that on examination, she did not observe any psychiatric symptoms and proved her report as Ex. PW9/A.
12. PW12 Dr. Dolly Bansal, SR (Obs. & Gynae), had examined the child victim vide MLC Ex. PW12/A and deposed that on local examination, there was no external injury over her genitalia and her hymen was found intact. She further deposed about taking the exhibits including frock and undergarments of the child victim, sealing the same and handing over the same to the IO. After going through the MLC, FSL result Ex. PW20/A and Ex. PW20/B and seeing the accused, she deposed that "possibility of partial penetration cannot be ruled out". She further deposed that in this case, the accused must not have reached at the stage of ejaculation, but partial penetration might have done by him.
During crossexamination by ld. LAC, the witness stated as under : '''xxx Q. Whether there is any basis of your reply given by you in response to the court question and if so is it reflected from the MLC and the FSL result?
A. I have already stated that I have gone through the MLC and FSL result in giving my reply. Hymen Page 19 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh is situated at the junction of anterior 2/3 rd and posterior 1/3rd of external genitalia in females. The possibility of partial penetration without any injury to hymen cannot be ruled out.
Q. The answer given by you is in general cases. Is the same answer also applicable in the present case in view of your findings given in MLC Ex. PW12/A?
A. Yes.
It is wrong to suggest that whatever I have stated is my personal opinion and is not based on the findings given in MLC of the victim and the FSL report.
xxx"
13. PW13 Dr. Vijay Dhankar, HOD, Forensic Medicine, BSA Hospital, Delhi, had examined the accused vide MLC Ex. PW13/A and had given report regarding his potency and deposed regarding the same. He further deposed about taking the exhibits of the accused, sealing and handing over the same to the IO.
14. PW20 Ms. Anita Chari, Senior Scientific Officer, (Biology), DNA Finger printing Unit, FSL, Rohini, had examined the exhibits of the present case and proved her reports as Ex. PW20/A and Ex. PW20/B. Page 20 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
(d) Evidence of Formal witnesses
15. PW10, Ct. Harish photographer of mobile crime team deposed that on 03.06.2012, he along with I/C, crime team/PW21 SI Prem Singh had gone at the spot i.e. house no. E128, Vijay Vihar, PhaseII, where on the directions of IO ASI Pardeep, he had taken five photographs of the spot from different angles. He proved the said photographs as Ex. PW1/A1 to Ex. PW1/A5 and negatives thereof as Ex. PW1/B1 to Ex. PW1/B5.
16. PW17, SI Prem Singh, Incharge of Mobile Crime Team, Outer Distt., deposed that on 03.06.2012, on receipt of a call from Control Room, he along with his staff had gone to the spot i.e. E128, Vijay Vihar, PhaseII, where ASI Pardeep met him and he got the spot photographed through PW1, inspected the scene of occurrence, prepared his report Ex. PW21/A and handed it over to the IO. He further deposed that bed sheet lying on the bed was taken into possession by the IO.
During crossexamination by ld. LAC, he stated that ASI Pardeep had briefed him about the occurrence and on the basis of that, he had taken steps to prepare report.
17. PW2 Ct. Jai Singh, had taken the exhibits of the present case to FSL Page 21 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh Rohini, vide RC no. 97/21/13 and deposited the same there and deposed regarding the same.
18. PW3 HC Rakesh Kumar was lying posted as Duty Officer in PS Vijay Vihar at the relevant time and he proved the endorsement made by him on the rukka as Ex. PW3/A and computerized copy of FIR as Ex. PW3/B. He further proved the attested copy of DD no. 19A as Ex. PW3/C recorded by him regarding commission of rape uon a girl at Shankar Chowk, F Block, Vijay Vihar, PhaseII, Rohini, Sector04, Delhi. He further deposed that after recording of the DD, he immediately informed ASI Pradeep for inquiry and thereafter, said call was given to W/SI Rekha.
19. PW4 HC Onkar Singh, Incharge of PCR Van L16, deposed that on 03.06.2012, on receipt of call from PCR control room, he had reached at house no. E128 Shankar Chowk, Vijay Vihar, PhaseII and met the child victim and her mother and mother of child victim informed that child victim had been raped by accused and thereafter, he took the child victim and her mother to BSA Hospital and got the child victim admitted there.
20. PW6, Ms. Meenu Kaushik, ld. M.M, in her evidence has proved statement of child victim as Ex. PW6/B, recorded by her under Section 164 Cr.P.C on 05.06.2012.
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21. PW15 Ct. Ravinder was lying posted as CIPA Operator at PS Vijay Vihar at the relevant time and he had typed the FIR in the matter on the computer and deposed regarding the same. He proved certificate u/s 65B of Evidence Act as Ex. PW15/A.
22. PW16 HC Hukminder was working as MHCM at PS Vijay Vihar at the relevant time and he proved the entries made by him in register no. 19 and 21 and copy of acknowledgment slip as Ex. PW16/A to Ex. PW16/C, which were made by him at the time of deposit of case property with him and at the time of sending the same to FSL Rohini. He further deposed that on 25.04.2013, he had received the FSL result and pullandas from the FSL, through Ct. Dinesh.
23. PW18, Ms. Nazma Khan, an NGO counselor from Nav Srishti had counseled the child victim and her mother and deposed regarding the same.
(e) Evidence of police officials of investigation
24. PW23 ASI Pradeep Kumar, initial IO of the case, deposed that on 03.06.2012, at about 4.25 pm, after entrustment of DD no. 19A, he along with PW22 Ct. Ram Mehar had gone to the spot i.e. FBlock, Vijay Vihar, PhaseII, Shankar Chowk, where he came to know that PCR officials had already taken the Page 23 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh child victim and her mother to BSA Hospital and after some time, PW24 W/SI Rekha, who was also informed about this call, had reached at the spot. He further deposed that after leaving him at the spot, PW24 and PW22 went to BSA Hospital. He further deposed about summoning the crime team at the spot, about getting the scene of the occurrence photographed and inspected by the crime team.
During crossexamination by learned LAC, he stated that house of accused was situated in Vijay Vihar, however, he could not tell the street number and block and volunteered to state that there were no numbers of the street in Vijay Vihar.
25. PW24 W/SI Rekha is the investigating officer of the case and she deposed that on 03.06.2012, after receiving message from her senior officers, regarding DD No.19A Ex.PW3/C, which had already been entrusted to PW23 ASI Pradeep, she had gone to the spot i.e. E128, Vijay Vihar, PhaseII, where PW23 SI Pradeep and PW12 Ct. Ram Mehar met her and on coming to know that the child victim and her mother had been removed to BSA Hospital by PCR officials, she also went to BSA Hospital with Ct. Ram Mehar, after leaving PW23 at the spot. She furtehr deposed about getting the child victim medically examined, about collecting her MLC and exhibits and about seizure of said exhibits vide seizure memo Ex. PW 22/A. She further deposed that after getting the child victim and her mother counseled through NGO counselor, she made inquiry from mother of the child Page 24 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh victim, recorded her statement Ex. PW3/A, made her endorsement Ex. PW24/A on it and got the case FIR registered through Ct. Ram Mehar.
She further deposed about getting the scene of occurrence inspected (vide report Ex. PW21/A) and photographed by the official of crime branch, about preparation of the site plan Ex. PW24/B at the instance of complainant, about seizure of the bedsheet lying on the bed after sealing it into a pullanda, vide seizure memo Ex. PW22/B, about recording of statement of child victim in questionanswer form, about recording of the statements of child victim's mother and of Ms. Vinita, daughter of landlady of the complainant. She further deposed that she had also gone to the house of accused and met his parents, who told her that they had turned the accused out of their house 15 days ago because of his conduct and they could not tell the whereabouts of the accused. She further deposed about recording of the statements of witnesses and about deposit of the case property with MHCM.
She further deposed that on 04.06.2012, she along with PW5 Ct. Kapil went in search of accused and also visited the house of child victim on the way, where the mother of the child victim handed over the documentary proof of her birth Ex. PW19/A and she had taken the same into possession vide memo Ex.PW 19/B. She further deposed that as the accused claimed juvenility, he was apprehended by her with the help of Ct. Kapil, vide apprehension memo Ex.PW 24/C and about recording the version of the accused vide memo Ex.PW24/D, about medical examination of the accused, about seizure of accused's exhibits vide Page 25 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh seizure memo Ex. PW5/A, about producing the accused before concerned JJB at Kingsway Camp from where, he was sent to OHBI, Delhi Gate.
She further deposed about getting the statement Ex. PW6/B of the child victim recorded vide application Ex. PW6/A and about collecting the copy thereof, vide application Ex. PW6/D. She further deposed about producing the child victim at CWC, Asha Kiran, Avantika, vide her application Ex.PW24/X and about handing over her custody to her parents, vide order Ex. PW24/Y. She further deposed about recording of the statements of child victim and her brother and about making inquiries about the school, in which, the accused was studying and after inquiry, she again went to school and traced out the admission entry of accused in his school by the name of 'Amar Singh' and obtained his age certificate Ex. PW24/F from the said school. She corrected herself by saying that school certificate was obtained by SI Tanwar, to whom the investigation was marked as she was on leave during the month of June/July, 2012. She further deposed that SI Tanwar got conducted age inquiry of accused from concerned JJB and upon conclusion of the said inquiry, accused was held to be an adult and thereafter, she prepared the charge sheet and filed the same in Court. She further deposed that during the course of investigations, she had also sent the case property sent to FSL She identified the bed sheet as Ex. P1 as seized by her. During crossexamination by learned LAC, she stated that she had reached at the spot at about 5:15 - 5:30 PM on a private motorcycle, however, she could not recollect its registration number. She further stated that since she had already Page 26 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh been handling one other case, she was having IO bag with her. She further stated that she made little bit inquiry from the child victim at hospital also, but at that time, she was scared and perplexed and due to this reason, she could not record her statement and recorded statement of her mother. She further stated that father of the child victim was out of station at the time of incident and hence, she did not record his statement. She further stated that child victim and her mother had told her the name, address and description of the accused on the day of the incident and she had searched for the accused on the day of the incident and had visited house no. B105, Vijay Vihar, PhaseII, at about 8.30 pm, but she did not record the statement of the parents of the accused. She further stated that there was television, fridge and one bed in the room where the incident had taken place and since, it had come in the statement of complainant as well as of child victim that the incident had taken place on the bed, where the bedsheet Ex.P1 was lying and that is why the said bedsheet was taken into possession by her. She further stated that on the day of incident, when she had reached at the spot, she did not meet Deepak and for the same reason, she interrogated him on 07.06.2012 and recorded his statement at that time.
26. PW22 Ct. Ram Mehar, had joined the investigations of the present case with PW23 ASI Pradeep Kumar and PW24 W/SI Rekha and deposed on the lines of PW23 and PW24. He further deposed about he having taken the rukka to the PS and about getting the case FIR registered, Page 27 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
27. PW5 Ct. Kapil had joined the investigation of the present case with PW24 W/SI Rekha on 03.06.2012 and deposed that accused was apprehended from House no. B105, Vijay Vihar, PhaseII and as the accused claimed juvenility, JWO SI Sunil Dagar was called and version of accused regarding the offence was prepared and thereafter, SI Sunil Dagar prepared the social background of the accused. He further deposed about getting the accused medically examined at BSA Hospital and about seizure of accused's exhibits vide seizure memo Ex. PW5/A.
28. PW17 SI G.R. Tanwar, formal IO, deposed that on 28.08.2012, after handing over of the further investigation of the case, he attended the proceedings before JJB, where accused was declared adult vide order dated 05.09.2012 and thereafter, the case was again handed over to PW24 W/SI Rekha, on her return from leave.
Arguments advanced at bar
29. I have heard arguments advanced at bar by the Ld. Addl. P P for the State and Ms. Urmila Yadav, Ld.Legal Aid counsel ( LAC) for the accused and perused the entire material on record.
30. The Ld. Addl. P P has very vehemently argued that the child victim was Page 28 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh aged about 8 years at the time of incident. She has been throughout consistent about the manner in which the sexual assault was committed upon her by the accused. Her evidence finds corroboration from the evidence of her brother PW8 as well as from the medical evidence.
31. Per contra, Ld. LAC has argued that there are apparent contradictions in the evidence of child victim and her brother on material particulars which go to the root of the matter. The medical and forensic evidence do not support the case of prosecution. The child victim and her brother are children of tender age, easily pliable and as such their evidence shall not be believed.
I have given thoughtful consideration to the arguments advanced at bar and my pleawise findings in the matter are as under: Whether the conviction can be based on the sole testimony of child victim.
32. The law with regard to the aforesaid preposition is fairly settled that if the evidence of the child victim appears to be truthful and trustworthy then there is no need to seek corroboration thereof and the conviction can be based thereupon whereas in case the evidence is little shaky then as a rule of prudence the court may seek corroboration thereof from other independent source. In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, Page 29 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh " A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
33. However, ld. Defence counsel has relied upon the judgment of Hon'ble High Court of Delhi in case reported as, "1998 (1) JCC (Delhi) 217", titled as, "Samey Singh V/s State", wherein after analysis of some decisions of Hon'ble Supreme Court as well as Hon'ble High Court of Delhi, it was held that in the facts and circumstances of the said case, it was highly unsafe for the court to have based conviction upon the sole testimony of witness of a tender age. The relevant part of the decision of the Hon'ble High Court is reproduced as under:
xxxxx
8. .....She has referred to the decision of the Apex Court reported as, "State of Assam V/s Mafizuddin Page 30 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh Ahmed, (1983)2 SCC 14". In this case, the Supreme Court approved the observation the High Court. Those observations read as under: "................... the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring."
9. She had also placed reliance on para 17 of the said judgement in which the court came to the conclusion that the fact that he was tutored is fully borne out by his own statement, as will be clear from the following portion of his deposition:
"Nana" accompanied me when I came to depose in the lower Court, but stayed outside. I stated in that Court that I had stated what "Nana" asked me to. The day before I came to depose, had told "Nana" what I would say.
10. Ms. Thakur submitted that this case is fully applicable to the facts of this case. In the instant case, instead of Nana, the mother and father of the prosecutrix coached and tutored her and her statement is the outcome of that tutoring and coaching.
11. She has also placed reliance on "Arbind Singh V/s State of Bihar, 1994 SCC (Crl) 1418". In this case, the court observed:
"Having taken a careful look at the evidence of this child witness, we are of the opinion that implicit faith and reliance cannot be placed on Page 31 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh her testimony since it is not corroborated by any independent and reliable evidence."
12. It is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring. We, therefore, think that appellant I was entitled to a benefit of doubt.
13. Ms. Thakur also placed reliance on Division Bench judgment of this court "Vijay Kumar V/s State, ILR (1981) II Delhi, 449". In this case, the well settled principle of law has been reiterated. The Court observed that if a person is to be convicted on the testimony of a child, it has to be ensured that the child had not been tutored and there is some corroboration available. Ms. Thakur submitted that this case also had great bearing on the facts of this case because in the instant case, the prosecutrix has been coached and tutored and there is no corroboration of her testimony The entire conviction is based solely on the testimony of this minor girl Sunita.
14. I have heard the learned counsel appearing for the appellant and I find considerable force in the submission of the learned amicus curiae. The learned counsel for the State could not support the prosecution story. The testimony of baby sunita gives a clear impression that she was coached and tutored before she gave the statement and it is also clear from the number of questions she had answered in the cross examination runs counter to her examination inchief. The medical evidence also proves the innocence of the Page 32 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh accused. There is no plausible explanation for undue delay in filing the first information report in this case. On consideration of all these factors, the benefit of doubt must go to the accused. The appeal is accordingly allowed and disposed of. The appellant is acquitted of all the charges. The bail bonds are cancelled.
Xxxxx Whether the evidence of child victim inspires confidence.
34. The child victim is consistent in her statement Ex. PW 6/B as well as her evidence recorded in the court with regard to the date and time of incident, the identity of the accused and the manner in which the accused had committed sexual assult upon her. The evidence of the child victim has already been set out under the head 'evidence of child victim' in the preeciding paragraphs.
35. The Ld. LAC has pointed out that the child victim in her evidence has stated that her brother had given a danda blow to the accused whereas her brother in her evidence has not stated so. The child victim in her evidence has stated that at the time of incident PW11 Ms. Vinita was cooking in her house, her brother however stated that she was sleeping in her room at that time whereas PW11 herself stated that she was not there at her room at that time and had gone to the house of one of her relative in the vicinity. It had been further pointed out that PW11 in her evidence has stated that she had made a call to the mother of child victim Page 33 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh whereafter she had come to her house whereas the mother of child victim in her evidence has not stated so.
36. On the strength of aforesaid contradictions it has been argued that the evidence of child victim is shaky.
37. I do not agree with the aforesaid submission of the Ld. LAC. This court cannot loose sight of the fact that the victim child as well as her brother are children of tender age and their evidence was recorded in the matter almost after one year of the incident yet both of them have stood to their guns . The contradictions pointed out by the Ld. LAC are minor in nature and the same appear to be an outcome of fading of memory of the small children with the passage of time. The said contradictions do not go to the root of the matter and can be conveniently ignored.
Whether the medical evidence supports the case of prosecution or not
38. From the perusal of the MLC of child victim Ex. PW 12/A it is evident that although her hymen was found intact yet slight discharge was found at libia. Whether this indicates the commission of sexual assault or not has been lucidly answered by the concerned witness i.e. PW12 Dr. Dolly Bansal, SR Gynecology as under : Page 34 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh "xxx I have gone through the FSL result Ex. PW20/A and Ex. PW20/B and I have seen the accused Sumeet present in the court today. After going through the MLC, FSL result and having looked at the accused I state in response to court question put to me on 25.4.2013 that the "possibility of partial penetration cannot be ruled out".
In this case the accused must not have reached at the stage of ejaculation but partial penetration might have been done by him.
xxx"
39. The present case is one which is of the period prior to the Criminal Law (amendment) Act, 2013. Even at that time the slight penetration of the vagina through the male organ was considered to be rape.
The evidence of PW12 clearly corroborates the version of child victim.
40. In addition to the charge of Section 376 IPC additional charge U/S 174 A IPC is also lying framed against the accused. The prosecution has examined CW1 HC Virender Bhardwaj, SI Brij Mohan (wrongly mentioned as CW1 again) and CW2 HC Rishipal. These three witnesses have categorically proved the fact that Page 35 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh the accused was declared a Proclaimed Offender during the course of trial. The evidence on this account is a matter of record.
41. In view of the above discussion the prosecution has succeeded in proving the charged offences against the accused. He accordingly stands convicted for offences punishable U/S 376 (2) (f) and Section 174A IPC. Let he be heard on the point of sentence.
Announced in the open Court (Vinod Yadav)
on 19.08.2016 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh
IN THE COURT OF VINOD YADAV:ADDL. SESSIONS JUDGE01 (NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI (Sessions Case No. 84/12) Unique Identification No.: 02404R0377672012 State V/s Sumit @ Amar Singh FIR No. : 194/12 U/s : 376 (2) (f) IPC P.S. : Vijay Vihar State V/s Sumit @ Amar Singh S/o Sh. Devender R/o B105, Vijay Vihar, PhaseII, Delhi.
....Convict
22.08.2016
ORDER ON SENTENCE
Pr: Ld.Addl.PP for state.
Convict produced from J.C with Ms. Urmila Yadav, ld. LAC Page 37 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh ORDER ON THE POINT OF SENTENCE In the present case, the convict - Sumit @ Amar Singh has been convicted for offences punishable u/s 376 (2) (f) IPC and Section 174A IPC.
I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and learned LAC, for the convict.
2. The learned Addl. PP has very vehemently argued that convict had committed rape upon the child victim T, a minor girl aged about 7 years and also remained absconded for a considerably long time, and that in view of the serious nature of offences, the convict does not deserve any leniency and she prays that maximum sentence prescribed under Section 376 (2) (f) IPC and 174A IPC may be awarded to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned LAC for the convict has argued that convict is a young boy aged about 23 years and has younger brother and old aged parents to support. She further submits that at the time of alleged incident, convict was working as a labour in a footwear factory and was supporting his family. She further submitted that convict is first time offender having clean antecedents and he has remained in Jail for a period of one and half months, during trial of the case. She prays that in view of the aforesaid 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 Page 38 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh 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 as he had committed rape upon a minor girl aged about 8 years, however, I cannot loose sight of the family circumstances of the convict, therefore, I am inclined to take lenient view in the matter, I hereby award the following sentence to convict Sumit @ Amar Singh :
(i) For offence u/s 376 (2) (f) IPC, the convict is sentenced to rigorous imprisonment for seven years along with a fine of Rs. 10,000/, in default of payment of fine, to further undergo simple imprisonment for three months.
(iii) For offence u/s 174A IPC, the convict is sentenced to rigorous imprisonment for a period of three years.
Both these sentences shall run concurrently.
Benefit of Section 428 Cr.P.C is accorded to the convict.
5. Coming now to the aspect of compensation to the prosecutrix, 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 Page 39 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh 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 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 Page 40 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh 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 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 victim girls, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant Page 41 of 42 SC No. 84/12 : FIR No. 194/12 : PS Vijay Vihar : State V/s Sumit @ Amar Singh compensation of Rs. 50,000/ (Rs. Fifty 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. 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 22.08.2016) Addl. Session Judge01
(NorthWest)
Rohini/Delhi
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