Delhi District Court
Sc No. 210/13 : Fir No. 244/13 : Ps ... vs Janki on 19 December, 2015
SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 210/13)
Unique Identification No.: 02404R0364172013
State V/s Janki
FIR No. : 244/13
U/s : 376 (2)/376(C)/506 IPC
& 6 of POCSO Act
P.S. : Kanjhawala
State V/s Janki
S/o Late Kunjal
R/o Village Nihala,
Teh. Sant Kabir Nagar,
P.S. Daughra, Post Sonichara
Bazar, Distt. Gorakhpur
Date of institution of case : 20.12.2013
Date of arguments : 14.12.2015
Date of pronouncement of judgment : 16.12.2015
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SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki
J U D G M E N T:
1. The facts of the case as borne out from the record are that on 22.08.2013, prosecutrix S (hereinafter referred to as 'prosecutrix'), her mother/PW2 Smt. Kalpana and PW9 Sh. Jagmohan went to Police Station Kanjhawala, where PW2 reported about the commission of sexual assault upon the prosecutrix by her husband i.e. accused Janki, since last one year and on the basis of this information, DD no. 38A Ex. PW5/A was recorded. Thereafter, the prosecutrix was sent to Sanjay Gandhi Memorial Hospital, where her medical examination was conducted and thereafter, she was got counseled through NGO counselor and then her statement was recorded by PW11 W/SI Neetu, wherein she stated that she had been residing with her father i.e. accused at Ramchander Farm House, Sultan Pur Road, near Chor Pyaun, Main Bawana Road, Delhi for the last one or one and a half years, where accused used to look after the cattles, whereas she used to lift cow dung and her mother used to visit her on every Sunday at the said Farm House. She further stated that one day, accused consumed alcohol, removed her clothes and committed penetrative sexual assault upon her forcibly under threat to kill her and thereafter, he further threatened her that in case, she disclosed about his acts to any one, he would kill her and her mother. She further stated that thereafter accused committed repeated penetrative sexual assault upon her on various dates, Page 2 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki due to which, she did not have menstrual period for two months. She further stated that on 17.08.2013, accused lastly committed penetrative sexual assault her and on 23.08.2013, when her mother came to meet her, she disclosed all these facts to her whereafter she brought her to the PS. She requested for strict legal action against accused.
On the basis of the aforesaid statement of the prosecutrix, the present case FIR was registered and investigation of the case was carried out by PW11 W/SI Neetu. During the course of investigation, PW11 prepared the site plan. Accused was arrested and his disclosure statement was recorded. Accused was medically examined at SGM Hospital. Statement of the prosecutrix u/s 164 Cr.P.C was got recorded. Exhibits were sent to the FSL. After conclusion of the investigation, the charge sheet was prepared and filed in the court.
2. Arguments on the point of charge were heard and on 25.03.2014, charges u/s 5 (l) & (n) of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "Act"), punishable u/s 6 of Act, alternatively u/s 376 (2) (f) (i) and (n) IPC and u/s 506 IPC, was framed against the accused, to which he pleaded not guilty and claimed trial.
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3. In order to prove the charges against the accused, prosecution examined as many as 11 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 prosecutrix at the instance of her mother. The accused did not wish to lead defence evidence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Sh. Yashvir Singh, ld. Legal Aid Counsel (LAC) for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories :
(a) Prosecutrix, her mother and public witnesses
(b) Medical Evidence
(c) Formal witnesses
(d) Evidence of police officials of investigation.
(a) Prosecutrix, her mother and public witness
5. The prosecutrix in the present case was examined as PW10 and the relevant portion of her testimony is as under : Page 4 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki "xxxxx Mere papa Ram Chand ke farm house me rehte the. Mein jab 14 saal ki thi tab mere papa mujhe gaon se apne sath farm house me rehne ke liye le aaye the. Iss farm house me mein aur mere papa rehte the. Meri mummy apne mayke me rehti thi. Meri mummy har Sunday ko mujhse milne farm house me aati thi.
Jab me gaon se papa ke pass rehne aayi thi uske 10 - 15 din baad, ek din papa ne mere sath galatkam kiya tha. Mere papa ne uss samay daru pee rakhi thi.
Ques.: What do you mean by 'galatkam' ?
Ans. Mein ab shadi shuda hu. Jo kam pati patni karte hai woh kaam mere papa ne mere sath kiya tha. Mere papa ne mere sath sharirik sambandh banaye the.
Mujhe mere papa ne daraya tha ki agar maine yeh sab baat apni mummy ko batai toh mein tujhe kaat dunga. Mere papa ne mere sath yeh sab 2 mahine tak kiya. Woh har hafte me ek bar mere sath galatkam karte the.
Ek baar farm house me chori ho gayi thi aur accused Janki Dass fasnewala tha, tab maine yeh sab baat Page 5 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki apni mummy ko bata di thi. Maine apni mummy ko bata diya tha ki papa Janki ne mere sath yeh sab kiya hai. Mummy ne yeh sab baat farm house ke malik ko bata di thi. Uske baad hum sab Kanjhawala thane me gaye the aur waha par maine police ko sari baat bata di thi. Jo police ne likh li thi aur maine uss par sing kiye the.
....xxx The witness identified her signatures on her complaint Ex. PW10/A and on her statement Ex. PW10/B recorded u/s 164 Cr.P.C.
During her crossexamination by learned LAC, the witness stated that she was illiterate. She termed it correct that since the age of 21/2 years, she had been living in the village and that her mother never resided with her in the village. She also termed it correct that her mother had performed second marriage after leaving the accused and accused used to send money at village, however, she denied that said money was for her study. She stated that her mother used to come to meet her at the said Farm house on every Sunday and she used to remain there with her from the morning till evening.
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6. PW2 Smt. Kalpana, mother of the prosecutrix deposed that after her marriage with the accused, he took her to Farm House of one Ram Chander, where he was working as Chowkidar and prosecutrix was born from this wedlock at the said Farm House. She further stated that after the birth of the prosecutrix, accused started maltreating her and leveled false allegations on her character and hence, she left him and prosecutrix, who was about 2 years old, at the said Farm House and went to the house of her parents and thereafter, on every Sunday she used to go to the said Farm House and used to meet the prosecutrix. She further deposed that about 9 - 10 months prior to 22.05.2014 (date of her deposition before the court), she had gone to meet prosecutrix at the said Farm House, where she found that prosecutrix was having stomach ache. Initially, she did not tell her about the reason of her stomach ache, but after a considerable persuasion, prosecutrix told her that accused had raped her on the previous night and he had been repeatedly doing this since last one year and he had also threatened her not to disclose about the same to anyone, otherwise he would kill her and prosecutrix. She further deposed that on coming to know about these facts, she took the prosecutrix to PS Kanjhawala and reported the matter and the police recorded her statement as well as of the prosecutrix. She further deposed about medical examination of the prosecutrix at SGM Hospital, about their counseling and about Page 7 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki arrest of the accused. She further deposed that the accused had initially left the prosecutrix to his native village in the custody of his brother and sister in law (bhabhi) and only about one year prior to reporting of matter, he had brought the prosecutrix to Delhi at the said Farm House and thereafter she started meeting with her on every Sunday. She further deposed that prosecutrix did not tell her anything about the acts of accused as she had been threatened by him but due to her stomach ache on that day, she told her about the incident.
During crossexamination by learned LAC, the witness stated that she had told the police about the entire facts, which were deposed by her in the court. The witness was confronted with her earlier statements mark X and Y about the fact of her marriage with the accused, about taking her to the said Farm House, about birth of the prosecutrix at Farm house, about giving of beatings to her by the accused and about leaving the accused. She also deposed about the facts of her remarriage, about her meeting with the prosecutrix at the said Farm House and about her considerable persuasion, after which, prosecutrix told her the factum of rape by the accused.
7. PW9 Sh. Jagmohan, was owner of the concerned Farm House, situated at Sultanpur Dabas, where accused was employed as a guard and he deposed that Page 8 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki prosecutrix was born at his Farm House and when she was aged about one year, accused had left her in his native village Nayila, Gorakhpur District and when she attained age of about 12 - 13 years, accused brought her back to his farm house and PW2 Kalpana, mother of the prosecutrix used to visit his Farm House on every Sunday to meet the prosecutrix. He further deposed that probably in the month of September/October 2013, the mother of the prosecutrix came to the farm house and told him that accused had been doing wrong acts with the prosecutrix for the last one year and on hearing this he along with prosecutrix, her mother and his wife went to PS, where the prosecutrix got lodged her complaint against the accused and after registration of the FIR, the police came to his farm house and arrested the accused vide arrest memo exhibited as Ex.PW9/A. During crossexamination by learned LAC, the witness stated that prosecutrix had been residing in his farm house since about one year prior to the lodging of the case FIR in the case. The witness was confronted with his statement recorded u/s 161 Cr.P.C Mark PW9/DX on many aspects such as accused having left prosecutrix in his native village when she was aged about one year and having brought her back when she was aged about 14 years and the mother of the prosecutrix coming to meet her on every Sunday. He further stated Page 9 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki that he used to visit farm house after a gap of about 15 - 20 days regularly and there were other farm houses near to his farm house. He further stated that he himself did not either see or heard accused making sexual contact with the prosecutrix. He denied that wife of accused in connivance with him, got lodged a false case against the accused through the prosecutrix.
(b) Medical evidence
8. PW1 Dr. M. Das, had examined the prosecutrix initially vide MLC Ex. PW1/A and had then referred her to SR Gynae for further examination and deposed regarding the same. He proved the MLC of the accused as Ex. PW1/B by identifying the handwriting and signatures of Dr. Binay Kumar and also deposed about the potency report given by Dr. Binay Kumar.
9. PW3 Dr. Supriya proved the MLC of the prosecutrix as Ex. PW1/A by identifying the handwriting and signatures of Dr. Parvinder, the then SR (Gynae) and deposed that as per MLC, prosecutrix's hymen had 'old torn'.
(c) Evidence of Formal witnesses
10. PW4 Ct. Umesh had taken the exhibits of the present case to FSL, Rohini Page 10 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki and deposited the same there and deposed regarding the same.
11. PW5 SI Ashwani Kumar was lying posted as Duty Officer in PS Kanjhawala at the relevant time and he deposed that in the intervening night of 22/23.08.2013, at about 7.25 pm, complainant/PW2 along with her daughter/prosecutrix and PW9 Jagmohan had come to PS Kanjhawala and informed him about wrong act with the prosecutrix by her father/accused and he had recorded this information vide DD no. 38A Ex. PW5/A and and after recording it, the inquiry of the said DD was entrusted to PW11 W/SI Neetu. He has proved the computerized copy of FIR as Ex. PW5/B and endorsement made by him on the rukka as Ex. PW5/C.
12. PW6 HC Anoop Singh in his evidence deposed that he was working as MHCM in Police Station Kanjhawala at the relevant time and the sealed exhibits in the matter were deposited with him and he proved entry made by him in register no. 19 as Ex. PW6/A.
13. PW8 HC Rajbir Singh in his evidence deposed that he was working as MHCM in Police Station Kanjhawala at the relevant time and he had sent the Page 11 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki exhibits of the present case to FSL Rohini through PW4 Ct. Umesh vide RC No. 161/21/13 and proved the copy of RC as Ex. PW8/A and acknowledgment receipt as Ex. PW8/B.
(d) Evidence of police officials of investigation
14. PW11 W/SI Neetu, is the investigating officer of the case and she deposed that on 22.08.2013, after entrustment of DD No. 38A, Ex. PW5/A to her, she met the prosecutrix, her mother and Sh. Jagmohan, owner of the farm house and during inquiry, the prosecutrix leveled allegations of commission of wrong act upon her by the accused and thereafter, she got the prosecutrix medically examined at SGM Hospital through PW7 Ct. Kiran and seized the exhibits of the prosecutrix vide seizure memo Ex. PW7/A. She further deposed that thereafter, she got the prosecutrix and her mother counseled and recorded the statement Ex. PW10/A of the prosecutrix, on which, she made her endorsement Ex.PW11/A, prepared rukka and got the FIR in the matter registered through duty officer. She further deposed about arrest of the accused from the said Farm House on the identification of prosecutrix vide arrest memo Ex.PW9/A, about his personal search vide memo Ex. PW11/B, about recording of his disclosure statement Ex. PW11/C, about getting the accused medically examined at SGM Hospital through Ct. Munde, Page 12 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki about preparation of the site plan Ex.PW11/D at the instance of the prosecutrix and about seizure of the exhibits of the accused vide seizure memo Ex. PW11/E. The witness further deposed about getting the statement of prosecutrix u/s 164 Cr.P.C recorded, about her production before CWC, about depositing the case property in Mal Khana, about recording of statements of the witnesses and about sending the exhibits of the present case to FSL, Rohini. She further deposed that as the mother of the prosecutrix could not produce any document regarding the age of the prosecutrix, she got conducted her bone age examination and collected the report Ex. PW11/F from SGM Hospital in this regard.
During crossexamination by learned Legal Aid counsel, the witness stated that the complainant had come to PS at about 7:30 PM on 22.08.2013 and she remained in the PS for about half an hour and thereafter she was taken to hospital through a private vehicle. She termed it correct that she did not seize any clothes such as bed sheet or clothes of the prosecutrix. She volunteered to state that she did not do so as the prosecutrix had disclosed that the last incident of rape had taken place much prior to the date of lodging of the FIR. She termed it correct that she had not make any inquiry from the persons in the adjoining farm houses. She volunteered to state that there were only 2 - 3 farm houses and it was an abundant area and nobody was found at that time there. Page 13 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki
15. PW7 W/Ct. Kiran had joined the investigation of the present case with PW11 W/SI Neetu on 22.08.2013 and deposed about medical examination of the prosecutrix at Sanjay Gandhi Memorial Hospital and about seizure of the exhibits of the prosecutrix by PW11 vide seizure memo Ex. PW7/A. Arguments advanced at Bar
16. The Ld. Addl. PP for the State has very vehemently argued that the prosecutrix has been consistent in her statements recorded during the investigation and her evidence recorded in the court. Her allegations against the accused of commission of repeated penetrative assault are also consistent. It is further argued that as per the age determination report Ex. PW 11/F the age of prosecutrix was found to be between 14 15 years as on the date of her bone age Xray conducted on 22.11.2013 and as such she was a child within the meaning of Section 2 (d) of the Act. It is also argued that the prosecutrix is also consistent in her statements and evidence with regard to the criminal intimidation given to her by the accused. On the basis of the aforesaid material the conviction of the accused for the charged offences has been prayed for.
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17. Per contra, the Ld. LAC Sh. Yashvir Singh advocate has argued as under: A. That there is an unexplained delay in recording of FIR in the matter ;
B. That the medical and forensic evidence does not support the prosecution case ;
C That the prosecutrix was major as on the date of recording of FIR ;
D. That there are apparent contradictions in the evidence of PW2, PW9 and prosecutrix PW10 which go to the root of the matter and makes the case against accused improbable and as such the false implication of the accused in the matter cannot be ruled out ;
E That the accused has been able to prove his defence in the matter ; and, F That the conviction in the matter cannot be based on the sole testimony of prosecutrix.
18. I have given thoughtful consideration to the arguments advanced at bar and the entire material on record . My pleawise findings in the matter are as under: Page 15 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki A. Plea regarding unexplained delay in recording the FIR
19. The Ld. Defence counsel has very vehemently argued that prosecutrix was allegedly being subjected to repeated penetrative sexual assault by the accused for the last about 1 year prior to the date of recording of FIR but she chose to remain silent and filed the present FIR only on 23.08.2013 at the instance of her mother PW2. It is further argued that even as per the version of prosecutrix she was lastly subject to sexual assault on 17.08.2013 and as such the huge delay in reporting the matter to the police is fatal to the prosecution case .
20. In this regard, ld. LAC has relied upon the judgment in the case titled as Rajinder Prasad & Anr. vs. State, in Crl. A. 8/2000, decided on 19.05.2014, wherein the Hon'ble High Court of Delhi, has been pleased to hold that : "xxx In criminal trail, one of the cardinal principles is registration of earliest information as FIR. As observed by Hon'ble Supreme Court in Lalita Kumari V/s Govt. of Uttar Pradesh and Ors., MANU/SC/1166/2013 : (2014) 2 SCC1, the object sought to be achieved by registering the earliest information as FIR is interalia twofold:One, that the criminal process is Page 16 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki set into motion and is well documented from the very start ; and Second, that the earliest information received in relation to the commission of a cognizable offense is recorded so that there cannot be any embellishment, later. In case there is delay in lodging the FIR, the court looks for plausible explanation for the delay in lodging the report. The reason is obvious. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished the version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming to the police or before to the court, the court always views the allegation with suspicion and looks for satisfactory explanation. If no such explanation is found, the delay is treated as fatal to the prosecution case.
xxxx"
21. The learned LAC has also relied upon the judgment in the case titled as Thulia Kali v. The State of Tamil Nadu, MANU/SC0276/1972: (1972) 3 SCC Page 17 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki 393, wherein it was held that the delay in lodging the first information report quite often results into embellishment as a result of afterthought. On account of delay the report not only gets bereft of the advantage of the spontaneity, but also danger creeps in, of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation.
22. On the strength of the law laid down in the aforesaid judgments it is argued by the Ld. LAC that the true version of the case has not come on record and the one which has come on record is coloured one which cannot be believed on account of unexplained delay.
23. Per contra, learned Addl. PP has relied upon the law laid down by the Hon'ble Supreme court in the case of Ramdas & Ors. Vs. State of Maharashtra, (2007) 2 SCC 170, which is reproduced hereunder : "xxx
24. ........... In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very Page 18 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be Page 19 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.
xxxxx"
24. It is further argued by the Ld. Addl. P P for the State that the prosecutrix was staying alone with the accused in the farm house. Her mother had already remarried long ago and was not staying with accused. The prosecutrix had no one to fall back upon to whom she could tell her grievance. It is further argued that the accused had kept her under constant treat of liquidation and as such her not disclosing to anybody about the sexual assault cannot be faulted particularly in the peculiar facts and circumstances of the case where the perpetrator of the crime is none other than her own real father.
25. As approved by the Hon'ble Supreme Court in Ram Dass's case ( supra) it is a case, where the prosecutrix continued to suffer the sexual assault under the threat of ignominy, liquidation and bad name to her father. It is also quite apparent that she did not even tell about it to her mother. She finally communicated about the sexual assault to her mother on 22.08.2013 and thereafter the FIR was recorded in the matter. The matter was reported to the police vide DD No. 38A ( Ex. PW Page 20 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki 5/A) at about 7:25 p.m. After conducting preliminary inquiry from prosecutrix, her mother and landlord PW9, IO got the medical examination of prosecutrix conducted. After the medical examination she got the prosecutrix counseled through councelor Ms. Anuradha from NGO Navshristhi and only thereafter recorded her statement Ex. PW 10/A at about 1:00 a.m. and finally the FIR was registered. Therefore, there is hardly any delay which is unexplained as far as recording of FIR is concerned and as regards the delay in reporting the matter to the police by the prosecutrix is concerned the same also stands explained in view of the peculiar facts and circumstances of the case as well as the law laid down in the case of Ram Dass ( supra).
B Plea regard the medical and forensic evidence not supporting the prosecution case.
26. The Ld. LAC has referred to the MLC of prosecutrix i.e. Ex. PW 1/A as well as the FSL result in the matter and it is contended that the MLC only shows 'hymen old torn' and nothing else. Similarly the FSL result shows neither semen nor any foreign biological material was found on the exhibits of prosecutrix. It is further argued that the reasons for the tears in the hymen could be other than sexual assault as well. I do not find any substance in the aforesaid argument of the Ld. Page 21 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki Defence Counsel on account of the facts and circumstances of the case. It is evident from the record that the last sexual assault upon the prosecutrix was committed on 17.08.2013 whereas her MLC was prepared on 22.08.2013. In the MLC it has been categorically mentioned by the gynecologist that the prosecutrix did not have her menstrual period for the last two months. The Doctors PW1 and PW3 were not crossexamined by the defence and as such there is an admission on part of defence about the correctness of the medical evidence. Even otherwise as per Section 30 of the Act, it was incumbent upon the accused to have proved through cogent positive evidence as to how the hymen of the prosecutrix was torn as she was living alone with accused only at the said farmhouse. Therefore, there is enough medical corroboration of the allegations of the prosecutrix. As far as forensic evidence is concerned, the last sexual assault with prosecutrix had admittedly taken place on 17.08.2013, whereas biological samples were taken on 23.08.2013 during which period, she had presumably taken bath and changed clothes as well.
C Plea regarding the age of prosecutrix.
27. The Ld. Defence Counsel has argued that the age of prosecutrix was opined to be between 1415 years merely on the basis of her bone age Xray report Ex. Page 22 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki PW 11/F and no other document showing her authentic date of birth has been proved on record. It is argued that the date of birth based upon bone age Xray is merely an opinion and cannot be taken as an authentic proof of age and in several cases wide variations have been found in such age estimations. In my considered opinion this argument is not available to the accused. Firstly, accused himself is the father of prosecutrix and it is he who should have produced the best available evidence with regard to her age and secondly, PW2 and PW9 had mentioned the age of prosecutrix to be about 14 years . They were not crossexamined on this aspect by the defence. It is evident on record that the prosecutrix had never attended any school and the accused had never got her birth recorded with MCD and as such no material was available to the IO with regard to the age of prosecutrix and she had no other alternative but to go for bone age Xray. As per the settled law plus minus two years on either side is the norm in case of range of age suggested by the bone age Xray. Even adopting this norm in the age estimation given in Ex. PW 11/F the prosecutrix was a child with the meaning of Section 2 (d) of the Act even as on the date of reporting the matter to police, whereas her sexual exploitation had been going on for the last one year prior thereto.
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D Plea regarding contradictions.
28. The Ld. LAC has firstly pointed out the contradiction in the evidence of PW2, PW9 and PW10 with regard to the matter being reported to the police. It is pointed out that PW10 in her evidence has stated that she had communicated about the sexual assault to her mother PW2 , who had in turn communicated the same to landlord PW9 and thereafter they had gone to Police Station whereas PW2 in her evidence has stated that when she had visited PW10 in the farm house, prosecutrix had complained of stomach ache and when she had repeatedly asked about the reason thereof then only PW10 had told her about the sexual assault and thereafter she had taken her to Police Station. Whereas, PW9 in his evidence has stated that PW2 had come to him and told him about the sexual assault committed by the accused upon PW10 and thereafter he along with PW2 and PW10 had gone to the Police Station. Although there appears to be a minor contradiction in the matter in the evidence of aforesaid three witnesses but the same does not go to the root of the matter as it is not disputed that ultimately the matter was reported to the police and all the aforesaid three witnesses had gone to Police Station to report the matter. Who had told whom initially about the sexual assault is not much relevant in the cases under the Act.
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29. The next contradiction pointed out by the Ld. Defence Counsel is about the sequence of events which took place during investigation after recording of DD No.38 A. It has been pointed out that both PW2 and PW 10 have stated that statement Ex. PW 10/A was recorded first in point of time whereas IO PW11 as well as the judicial file reveals that after the recording of DD No. 38 A prosecutrix was taken to hospital for her medical examination, thereafter she was got counseled and only thereafter her statement Ex. PW 10/A was recorded. It is a matter of fact that both PW2 and PW10 are illiterate and they are not presumed to know the nitty gritty of investigation and they deposed only on the basis of what they had generally experienced during investigation and their giving of sequence of events may not strictly match with the one contained in judicial file. Even on this account the contradiction which has been pointed out is minor and the same does not effect the merits of the case.
D Plea regarding the defence of the accused.
30. The Ld. Defence Counsel has very vehemently argued that the accused has been falsely implicated in the matter by PW2 as she wanted to have the custody of PW10 from the accused. The defence of false implication of the accused in the matter is that the accused had never committed sexual assault upon the prosecutrix Page 25 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki and the same might have been committed by some other person as the children from the adjoining farm houses had access to the farm house where the prosecutrix was staying with the accused.
31. This has to be born in mind that the present case is under the Act and this act was enacted with the objective that the children of tender age are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in condition of freedom and dignity. The aims and object of the act further consider it imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical emotional, intellectual and social development of the child. The preamble of the Act reads as under : 'An act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.'
32. Therefore, the act is a special act, which has been enacted bearing in mind the child psychology as well as the latent sexual abuse of children in the society as Page 26 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki well as family, which is apparent from the provisions of Section 29 and 30 thereof, which are reproduced as under :
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
30. Presumption of culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
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33. In the light of the aim and objects of the Act and the specific provisions like Section 29 and 30 of the Act, reproduced hereinabove, the presumption of innocence of the accused as is available to him under ordinary criminal jurisprudence is not available, in child abuse jurisprudence and the presumption, if any, available under the Act is to be considered strictly in accordance with the provisions of the Act and not under the ordinary criminal jurisprudence.
34. I have given thoughtful consideration to the crossexaminations of three material witnesses i.e. PW2, PW9 and PW10 particularly the questions put to them in the form of putting the defence of the accused. As far as the false implication of the accused by PW2 is concerned the same on the face of record appears false. It is evident from the evidence of aforesaid three witnesses that PW2 had been making visits to the farm house to meet the prosecutrix ( PW10) on ' Sundays' for the last about one year prior to the date of recording of FIR. On all such visits no untoward incident was reported to her by the accused . If, the PW2 had the intention of falsely implicating the accused she could have easily done during that period of one year and why would she wait for one year to implicate him. It was orally argued by the Ld. Defence counsel that PW2 had got the accused falsely implicated in the matter because she wanted to have the Page 28 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki custody of the prosecutrix. There are no basis for this argument on record. It is, clearly evident that PW2 had left the accused when prosecutrix was one year old and she remained away from her for more than 10 years and the accused has not been able to show as to how all of a sudden she wanted to have custody of prosecutrix particularly when during the aforesaid period of 10 years she had given birth to two other girl children from her subsequent husband.
35. As far as the other defence that somebody else might have committed sexual assault upon the prosecutrix is concerned the same also does not have any force as in the farm house except for the accused and prosecutrix nobody else was residing and it was for the accused to have discharged the burden of proving the fact that somebody else had committed sexual assault upon the prosecutrix. The accused has not led any positive evidence to prove his defence. Accordingly, he has failed to discharge the heavy burden of proof which is cast upon him under Section 30 of the Act.
F Plea of conviction based upon sole testimony of prosecutrix.
36. I am conscious of the settled proposition of law that the conviction can be based on the sole testimony of a child victim, however the said testimony has to Page 29 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki pass the test of trustworthiness and credibility. If the evidence of the prosecutrix in the case is closely scrutinized and is read in conjunction with the other material on record then it would be evident that she is a trustworthy witness and doesn't appear to have been tutored by anybody. It is well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify by the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that : " xxx 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 Page 30 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki competent witness and there is no likelihood of being tutored.
xxxx"
37. If the law laid down in the aforesaid decision is applied to the facts of present case then it would be evident that the prosecutrix has leveled specific allegations of sexual assault and criminal intimidation against the accused.
38. Therefore, through the evidence of PW10 the prosecution has succeeded to prove the ingredients of offence punishable U/S 6 of the Act as well as Section 506 IPC. The accused accordingly stands convicted for the said offences.
39. Let the accused be heard on the point of sentence on 19.12.2015.
Announced in the open Court (Vinod Yadav)
on 16.12.2015 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI (Sessions Case No. 210/13) Unique Identification No.: 02404R0364172013 State V/s Janki FIR No. : 244/13 U/s : 376 (2)/376(C)/506 IPC & 6 of POCSO Act P.S. : Kanjhawala State V/s Janki S/o Late Kunjal R/o Village Nihala, Teh. Sant Kabir Nagar, P.S. Daughra, Post Sonichara Bazar, Distt. Gorakhpur ....Convict Page 32 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki 19.12.2015 ORDER ON SENTENCE Pr: Ld.Addl.PP for state.
Convict produced from J.C with Sh. Yashvir Singh, ld. LAC. ORDER ON THE POINT OF SENTENCE In the present case, the convict - Janki has been convicted u/s 6 of POCSO Act, 2012 and u/s 506 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, who is the real father of the prosecutrix, had tarnished the sanctity of relationship between a father a daughter by committing penetrative sexual assault upon her repeatedly. He also criminally intimated her and threatened her to kill her 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 6 of the Act 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 middle Page 33 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki aged man aged about 40 years and at the time of alleged incident, he was working in a Farm House as a chowkidar. He further submitted that convict is first time offender having clean antecedents and he has remained in Jail for a period of 21/2 years during trial of the case. He 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 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. It stands proved that the convict, who is the real father of the prosecutrix utterly misused his relationship and access to her. He kept on sexually exploiting her till about one week prior to the registration of the FIR. Normally, close relative like a father is expected to protect the dignity and honour of his daughter and this is a fundamental facet of human life. If the protector becomes the violator, the offence assumes a great degree of magnitude. The sanctity of close blood relations, like in the present case, gets polluted. The convict had betrayed the trust of his own daughter. Rather, the acts of the convict can only be concluded to be most cruel and gruesome as they have resulted in spoiling the entire life of an innocent young girl child, and thus, no leniency is called for in the matter. I hereby award the following sentence to convict Janki :
(i) For offence u/s 6 of POCSO Act, the convict is sentenced to rigorous imprisonment for a period of 14 (fourteen) years, along with a fine to the tune of Rs. Page 34 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki 5,000/, in default of payment of fine, to further undergo simple imprisonment for three month.
(ii) For offence u/s 506 IPC, the convict is sentenced to rigorous imprisonment of three years along with a fine to the tune of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one month.
Both the sentences shall run concurrently.
Benefit u/s 428 Cr.PC be also given 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 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 Page 35 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki 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 process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left Page 36 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki 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. For the time being, the quantum of compensation is not being decided today as it is Page 37 of 38 SC No. 210/13 : FIR No. 244/13 : PS Kanjhawala : State V/s Janki apparent on the face of record that the prosecutrix presently stands married and has been residing in her matrimonial home. Calling her in court for the purpose of quantification of the compensation amount may not in turn spoil the atmosphere qua her in her matrimonial home. It would be in the fitness of things, if her mother is called in the court for the aforesaid purpose.
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 19.12.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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