Delhi District Court
State vs . Bhagwan Dass @ Ram Khiladi on 25 April, 2014
State Vs. Bhagwan Dass @ Ram Khiladi
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 70 of 2013
ID No. : 02401R0166812013
FIR No. : 32/2013
Police Station : D.B.G.Road
Under Section : 292 (2)(a) IPC
& 4/6/7/8/10 of
POCSO
State
Versus
Bhagwan Dass @ Ram Khiladi
S/o Sh. Jagdish Kumar
R/o Village Arua, Post & PS. Maat
Distt. Mathura, U. P.
.........Accused
Date of Institution : 04.04.2013
Date of judgment reserved on : 17.04.2014
Date of judgment : 22.04.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Dinesh Sharma, Advocate, Amicus Curiae for the
accused
SC No. 70/13 Page 1 of 13
State Vs. Bhagwan Dass @ Ram Khiladi
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on January 27, 2013 at about 4:55 P.M, an intimation was received from police control room that one person had been apprehended at Punjabi Basti, Bhagat Singh Nagar, Karol Bagh. Said information was recorded vide DD No. 15 (Ex. PW7/A) and assigned to HC Anil Kumar who along with constable Hemant left for place of occurrence. It was alleged that ASI Pushpa (PW13) was in the area on patrolling due to election of Gurudwara Prabhandhak Committee. When she reached PP Shidipura, SHO asked her to reach the house of victim and to record her statement. Accordingly, PW13 reached Punjabi Basti, Bhagat Singh Nagar, Karol Bagh where house of victim was located. On reaching there mother of victim (PW4) got recorded her statement ( in order to withhold the identity of victim, her identity is also withheld and hereinafter she is referred to as complainant or mother of the victim).
(i) Complainant in her statement Ex. PW4/A alleged that on January 27, 2013, she was taking sunlight in the gali along with her four daughters; youngest was aged about 1½ years and eldest was 12 years. It was alleged that accused Bhagwan Dass who is a rickshaw-pullar was sitting on a motor cycle and watching something on his mobile phone. It was alleged that her three daughters went to near the accused and accused was showing something to them on his mobile phone. It was alleged that at about 4:20 PM, she left for her house asking her daughters to come at home. After about 20-25 minutes, her third number daughter aged about six years came to the house and told her that accused SC No. 70/13 Page 2 of 13 State Vs. Bhagwan Dass @ Ram Khiladi Bhagwan Dass had shown obscene photos to her on his mobile phone and he had also touched her private part over the underwear. Consequently, she rushed to the place of occurrence along with her daughter and her daughter pointed out towards the accused, consequently, she raised alarm and apprehended him. In the mean time someone informed the police at 100 number (since her daughter is the victim of sexual assault, hence her identity is withheld and hereinafter she is referred to as victim). On her statement an FIR for the offence punishable under Section 292 (2) (a) IPC and under Section 7/8 of Protection of Children From Sexual Offences Act (POCSO in short) was got registered.
(ii) During investigation mobile phone was recovered from the accused. Victim was got medically examined but her parents did not give their consent for her internal examination. Her statement under Section 164 Cr.P.C was got recorded. Documents relating to her age were collected which shows that her date of birth is February 2, 2008. Thus, she was minor at the time of incident. During her statement recorded under Section 164 Cr.P.C, victim alleged that accused also inserted finger in her vagina.
2. After completing investigation, a challan for the offence punishable under Section 292(2) (a) IPC and under Section 4/6/8/10/12 of POCSO Act was filed against the accused.
3. Vide order dated May 6, 2013, a charge for the offence punishable under Sections 6 & 10 of POCSO Act read with Section 292 (2)
(a)/354 IPC was framed against the accused to which accused pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has SC No. 70/13 Page 3 of 13 State Vs. Bhagwan Dass @ Ram Khiladi examined as many as following 13 witnesses:-
PW1 Father of the victim ( in order to withhold the identity of victim, his identity is also withheld and hereinafter he is referred to as father of the victim.) PW2 Victim PW3 HC Brij Mohan, duty officer PW4 Mother of the victim PW5 Elder sister of the victim PW6 Kishan Lal, formal witness informed the police control room PW7 Const. Dinesh, DD writer, formal witness PW8 Const. Shiv Karan, formal witness PW9 HC Anil Kumar, attended the call PW10 ASI Radhey Shyam, In-charge of PCR van PW11 Israr Babu, Nodal Officer PW12 Insp. Kamaljeet Kaur, 2nd investigating officer, filed the charge-sheet PW13 SI Pushpa, investigating officer
5. Accused was examined under Section 313 Code of Criminal Procedure wherein he admitted that he was sitting on the motor cycle but denied that he was watching any video clipping. He also admitted that he was called by making a call and further submitted that he was beaten up and thereafter, handed over to the police. He also admitted that police had seized his mobile phone and sealed with the seal of P and also admitted that he was arrested but denied that he had made any disclosure statement. However, he admitted that he was medically examined. He SC No. 70/13 Page 4 of 13 State Vs. Bhagwan Dass @ Ram Khiladi further submitted that SIM card found in the mobile phone was in the name of his friend. However, he took the plea that he has been falsely implicated in this case as about four days prior to the incident, some quarrel had taken place between him and father of the victim and at that time, father of the victim had threatened him that he would implicate him in a false case. It was further submitted that when he was sitting on the motor cycle, all three sisters came to him. Youngest one climbed over his shoulder whereas eldest one had snatched his mobile phone and ran away and he further submitted that he did not know what they had seen on his mobile phone. probably, they had seen obscene video clipping from his mobile phone. Thereafter, they had raised alarm. It was submitted that he had not shown any obscene video clipping either to the victim or to any other children, thus, he claimed innocence. However, in his defence, he failed to lead any evidence.
6. Learned counsel appearing for the accused contended that no reliance can be placed on the prosecution case as there is inordinate delay in lodging the FIR which shows that the FIR is a fabricated document. It was further submitted that there is no iota of evidence on record to prove the allegations of Section 6 of POCSO Act as none of the witnesses deposed that accused had inserted finger in her vagina as alleged by the victim in her statement under Section 164 Cr.P.C. It was further submitted that there is no allegation against the accused for the offence punishable under Section 354 IPC as there is no iota of evidence to show that accused had used any criminal force upon the victim. It was further submitted that there is material contradictions between the testimony of PW2 and PW5 as PW2 deposed that accused had shown dirty movie to her sister aged about 9 years also whereas PW5 deposed that the said sister had gone to house along with her. Further PW2 deposed that the accused had rubbed her SC No. 70/13 Page 5 of 13 State Vs. Bhagwan Dass @ Ram Khiladi vagina whereas PW5 deposed that accused had touched her legs only. It was further contended that prosecution case is that accused was apprehended from the spot itself at the pointing out of victim whereas PW4 in her deposition admitted that when she reached the spot accused was not there and accused was called later on by making a call. It was further contended that even the act of sexual assault is not mentioned in the site plan, which shows that no such incident had taken place. It was submitted that accused was watching obscene video clipping on his mobile phone. All of sudden, victim and her sisters came there and they all of sudden snatched the mobile phone from him and accidentally they had seen the glimpse of said video clipping and raised hue and cry, consequently public persons gathered there and they had beaten the accused. It was submitted that since the victim had seen the obscene video clipping accidentally, accused cannot be held liable even for the offence punishable under Section 292(2) (a) IPC.
7 Per contra learned Additional Public Prosecutor refuted the said contentions by arguing that there is no substance in the defence pleas. It was contended that from the testimony of victim, it becomes clear that accused had shown the obscene video clipping intentionally and while showing same, he had also touched her vagina. However, he fairly conceded that there is no sufficient evidence on record to prove the guilt of accused for the offence punishable under Section 6 of the POCSO Act.
8. I have heard rival submissions advanced by learned counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
SC No. 70/13 Page 6 of 13State Vs. Bhagwan Dass @ Ram Khiladi Whether there is any evidence to prove the guilt of accused for the offence punishable under Section 6 of POCSO Act:-
9. PW2 in her examination-in-chief deposed that accused had rubbed her shoo-shoo (vagina) after putting his hand in her underwear. She did not depose that accused had inserted his finger in her vagina as she alleged in her statement under Section 164 Cr.P.C. Even witness was not cross-examined by learned Additional Public Prosecutor on this point. It means that prosecution has not disputed the testimony of PW2 to that extent. PW4 also deposed that her daughter (PW2) informed her that accused had touched her vagina, thus even PW4 did not depose that victim told her that accused had inserted his finger in her vagina. Similarly, PW5 deposed that victim told her that accused lifted her frock and touched her legs. Admittedly, PW4 and PW5 were also not cross-examined by prosecution. It means that prosecution has also not disputed their testimony to that extent. Admittedly, the parents of the victim refused for her internal examination. This further shows that there was no allegation of insertion of finger in her vagina. There is no scintilla of evidence on record to prove the allegation of prosecution that accused had inserted finger in her vagina. On the contrary, from the deposition of witnesses examined by prosecution it is established that accused had not inserted his finger in her vagina. Thus, I am of the considered opinion that prosecution has miserably failed to prove the guilt of accused for the offence punishable under Section 6 of POCSO Act.
Contentions relating to recovery of mobile phone and showing the obscene movie on mobile phone:-
SC No. 70/13 Page 7 of 13State Vs. Bhagwan Dass @ Ram Khiladi
10. PW2 in her examination-in-chief deposed that accused had shown dirty photos to her sister aged about 9 years. Thereafter, he had shown the said photos to her and she clarified that photos were in the form of film. She further deposed that in the said movie, a girl was taking bath and initially the girl had removed the underwear of a boy, thereafter, the boy had removed the underwear of the girl and then started sucking his sho- sho. This shows that the video clipping which was shown to PW2 was obscene in nature. During cross-examination, a suggestion was put that when she along with her sister was playing, accused Bhagwan Dass was watching the movie on his mobile phone. This fact was admitted by the witnesses. Thereafter, another suggestion was given that her sister (PW5) had taken the mobile phone from the accused stating that she wanted to play games on the mobile phone. This fact was partly denied by the witness by stating that her sister did not take the mobile phone from the accused but she asked the accused that she wanted to play game on the mobile phone. However, she denied the suggestion that her sister had snatched the mobile phone from the accused and also denied the suggestion that while she had snatched the mobile phone she had seen a glimpse of said video-clipping. By putting these suggestions, accused intended to show that he was watching the obscene clipping on his mobile phone and victim and her sisters came there and they all of sudden snatched the mobile phone from him and they had glimpse of the said video-clipping. But these suggestions were denied by the victim. Similar, suggestions were put to PW4 and PW5 but they also denied the same.
11. From the testimony of PW2, it is established that the said video-clipping was a porn movie. It is also established that accused had shown the said video-clipping to the victim. Thus, accused is liable for the offence punishable under Section 292 (2) (a) IP.C. SC No. 70/13 Page 8 of 13 State Vs. Bhagwan Dass @ Ram Khiladi Contentions relating to the offence punishable under Section 10 of the POCSO Act:-
12. PW2 in her examination-in-chief deposed that when accused had shown the obscene video-clipping to her, he had inserted his hand in her underwear and also rubbed her shu-shu (vagina). Though a suggestion was put to the witness that accused had not touched her vagina but the same was denied by the witness. PW4 in her examination-in-chief also deposed that when PW2 came to house, she made a complaint that accused had touched her vagina. Thus, PW4 corroborated the testimony of PW2 to that extent. No doubt, there is contradiction between the testimony of PW2 and PW4 on the one hand and PW5 on the other hand as PW5 deposed that when PW2 came to the house, she told that the boy had lifted her frock and touched her legs. She further deposed that she had heard it when PW2 made complaint to her mother i.e. PW4. Admittedly, PW5 is a 10 years old girl and from her testimony it appears that the complaint was not made to her but it was made to her mother i.e. PW4. In these circumstances, there is every probability that she might have not over heard what exactly complaint was made by PW2 to PW4. To my mind the said contradiction is trival in nature and same does not affect the prosecution case in any manner.
13. PW2 was six years old at the time of incident. PW2 disclosed her age as six years and the same was corroborated by PW4 in her examination-in-chief by deposing that her age is six years. PW13 deposed that she had collected the copy of birth certificate from the father of victim and same was seized vide memo Ex.PW1/B. As per said document, the date of birth of victim is February 02, 2008. PW1 also proved this fact.
SC No. 70/13 Page 9 of 13State Vs. Bhagwan Dass @ Ram Khiladi Moreover, learned defence counsel made a submission on October 21, 2013 that he would not dispute the age of victim during trial and in view of his submission, witnesses relating to the age were dropped by the prosecution. Though the age is admitted by the accused, yet it is established that victim was about six years old at the time of incident. Since victim was below 12 years of age at the time of incident, the act of touching her vagina amounts aggravated sexual assault as defined under Section 9 of the POCSO Act which is punishable under Section 10 of POCSO Act. Accordingly, accused is liable for the offence punishable under Section 10 of POCSO Act.
Contentions relating to the offence of punishable under Section 354 Cr. P.C.:-
14. Learned defence counsel contended that no offence is made out under Section 354 IPC as the element of criminal force is missing. Section 354 pertains to assault or criminal force to woman with intent to outrage her modesty. Criminal assault is defined under Section 351 IPC whereas criminal force is defined under Section 350 Cr. P.C. Force is defined under Section 349 IPC which read as under :-
349. Force - A person is said to used force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways SC No. 70/13 Page 10 of 13 State Vs. Bhagwan Dass @ Ram Khiladi hereinafter described.
First - By his own bodily power.
Secondly - By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.
Thirdly - By inducing any animal to move, to change its motion, or to cease to move.
(emphasis supplied)
15. Bare Perusal of Section 349 reveals that touching of wearing of another person, which affects the sense of feeling of that person also amounts force and if the same is done with intention, it amounts criminal force as defined under Section 350 IPC. PW2 in her deposition categorically deposed that while accused had shown obscene video clipping to her he had inserted his hand in her underwear and rubbed her shu-shu (vagina) which affects the sense of her feeling. Thus, it cannot be said that there was no criminal force in the act of the accused. Rubbing of vagina of a female child amounts outraging her modesty, thus, accused is also liable for the offence of punishable under Section 354 IPC.
.
Delay in FIR & contradictions in the statement of witnesses:
16. As per prosecution version, the alleged incident had taken place at about 4.30 PM and FIR was registered at about 6.45 PM. PW13 in her cross-examination categorically deposed that she reached the house of complainant at 5.20 PM and thereafter she interrogated the victim and then recorded the statement of complainant. If she had taken about half an hour in interrogating the victim and recording the statement of complainant, it SC No. 70/13 Page 11 of 13 State Vs. Bhagwan Dass @ Ram Khiladi cannot be said that there was any delay in lodging the FIR. Thus, I do not find any substance in the contention raised by the defence counsel.
17. No doubt there is a contradiction between prosecution case and the statement of PW4 as prosecution has set up a case that accused was apprehended at the spot at the pointing out of victim but when PW4 entered the witness box, she deposed that when she reached the spot, accused was not there as he had already run away. Thereafter, she made a call to Bhagwan Dass on his mobile phone, consequently, he reached there, thereafter he was beaten, thereafter public persons gathered there and police reached there. Thereafter he was apprehended. But the said contradiction is not fatal to the prosecution case in any manner because accused did not dispute his presence at the spot. Even, he did not dispute the fact that he was watching obscene movie while sitting on the motorcycle, thus, to my mind the said contradiction is not fatal to the prosecution case in any manner.
18. Similarly no doubt there is a lapse on the part of the investigating officer as in the site plant Ex.PW13/B, it is no where mentioned that accused had rubbed her vagina but the said omission on the part of the investigating officer is not sufficient to discard the testimony of victim which otherwise appears to be trustworthy. Thus, in the absence of any cogent evidence, I am of the view that the said omission is not fatal to the prosecution case.
19. Admittedly, investigating officer failed to join any independent witness during investigation. PW13 in her cross-examination deposed that when she reached the spot first time several persons were present there. Though initially she deposed that public persons told her verbally about the SC No. 70/13 Page 12 of 13 State Vs. Bhagwan Dass @ Ram Khiladi commission of crime, but in her next breath, she deposed that she did not record their statement because they were not the eye witnesses. She further deposed that no person told her that he had seen the accused sitting on the motorcycle or that he was showing a video clipping to the victim on his mobile phone. However, one person named Kishan met there who told her that accused was beaten by PW4. Thus, as per deposition of PW13, no eye witness met there. Since pubic persons were present there, she was supposed to join independent witnesses during investigation but no sincere efforts were made in these regard. However, the said lapse on her part is not sufficient to discard the testimony of victim and other witnesses. It is also pertinent to point out that under Section 29 of the POCSO Act, onus is upon the accused to establish that he had not committed the offence. But in the instant case, accused failed to adduce any evidence in this regard. In the absence of any cogent evidence, said lapse on the part of investigating officer is not fatal to the prosecution in any manner.
20. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused beyond all reasonable doubts for the offence punishable under Section 10 of the POCSO Act and under Section 292 (2) (a) and 354 IPC, thus, I hereby hold the accused Bhagwan Dass @ Ram Khiladi guilty thereunder.
Announced in the open Court
on this 22nd day of April, 2014 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
TIS HAZARI COURTS, DELHI/sv
SC No. 70/13 Page 13 of 13