Delhi District Court
State vs . Mohd. Zahid on 9 October, 2013
State Vs. Mohd. Zahid
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 103/13
ID No. 02401R0252012013
FIR No. : 76/13
Police Station : Nabi Karim
Under Section : 354D/341/509 IPC
& 8/12 POCSO Act
State
Versus
Mohd. Zahid
S/o Dinkatu
R/o Shamigano, Bhojpur,
Islampur, Uttar Dina Pur,
Bengal.
.............Accused
Date of Institution : 20.05.2013
Date of Judgment reserved on : 03.10.2013
Date of judgment : 08.10.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Pankaj Sharma, Advocate, Amicus Curiae for the
accused.
SC No. 103/13 Page 1 of 18
State Vs. Mohd. Zahid
J U D G M E N T:-
1. Briefly stated facts of prosecution case are that complainant (since complainant is the victim of sexual assault, her identity is withheld and hereinafter she is referred to as complainant/victim) aged about 13 years got recorded her statement Ex. PW1/A to the police in the presence of her mother that she studied in 9th standard. On April 25, 2013, she was coming back from her school on foot. At about 2.15 PM when she reached opposite AB-323, Amarpuri, Nabi Karim, Tea shop, accused Mohd. Zahid who was working at the said shop wrongfully restrained her and caught hold her hand forcibly and asked the complainant to accompany with him but complainant did not respond. It was alleged that even prior to that i.e. on April 22, 2013 and April 23, 2013, accused had attempted to wrongfully restrained the complainant and he had passed obscene gestures after seeing the complainant. It was alleged that complainant had narrated the incident to her mother, who narrated the incident to her father, who called the police. On the statement of complainant, an FIR for the offence punishable under Section 354D/341/509 IPC read with Section 12 of POCSO Act was registered. During investigation, statement of victim was also got recorded under Section 164 Cr.P.C. Accused was arrested.
2 After completing investigation, challan was filed against the accused for the offence punishable under Section 354D/341/509 IPC read with 8/12 of POCSO Act. Accordingly, case was registered as SC No. 103/2013.
3. Compliance of Section 207 Code of Criminal Procedure was SC No. 103/13 Page 2 of 18 State Vs. Mohd. Zahid made. Thereafter, vide order dated July 2, 2013 a charge for the offence punishable under Section 354D/341/509 IPC read with Section 8/12 of POCSO Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following seven witnesses:-
PW1 Smt. 'X' (since she is the mother of victim, in order to conceal the identity of victim her identity is also withheld and hereinafter she is referred to as Smt. 'X' or mother of the victim).
PW2 Victim/complainant
PW3 HC Ram Kesh, duty officer, proved the FIR
PW4 ASI Ameer Singh, duty officer, proved DD No. 16A
PW5 HC Suresh Kumar, joined the investigation with IO
PW6 SI Mohit Yadav, joined the investigation with IO
PW7 SI Kavita, investigating officer
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied all the incriminating evidence led by the prosecution and submitted that he has been falsely implicated in this case. However, he admitted that after arrest, he had been medically examined and also admitted that during trial, his counsel made a statement that he would not dispute the age of victim. However, he refused to lead any evidence in his defence.
6. Learned counsel appearing for the accused submitted that SC No. 103/13 Page 3 of 18 State Vs. Mohd. Zahid though prosecution has examined seven witnesses, yet, prosecution case is based on the sole testimony of victim (PW2). It was submitted that deposition of rest of the witnesses are not relevant to prove the culpability of accused as they had not witnessed the incident. It was submitted that no reliance can be placed on the sole uncorroborated testimony of victim as the same has not been corroborated from any independent corner. It was further submitted that though as per the deposition of PW2, the alleged incident had taken place opposite to tea shop despite that no effort was made to join any independent witness. It was further submitted that the victim had made substantial improvement in her deposition, thus no reliance can be placed on her testimony.
7. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing sagaciously that the testimony of victim cannot be discarded mere on the ground that investigating officer failed to find out any independent witness. It was submitted that there is no substantial improvement in the deposition of complainant. It was further submitted that under Section 29 & 30 of the POCSO Act, presumption is in favour of the prosecution and during trial, accused failed to produce any evidence contrary to the deposition of victim, thus, there is no reason to disbelieve the prosecution case.
8. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. Before dealing with the contentions raised by counsel for both the parties, I deem it appropriate to refer to the relevant provisions of the SC No. 103/13 Page 4 of 18 State Vs. Mohd. Zahid POCSO Act.
10. Under Section 29 of POCSO Act, presumption qua certain offences is in favour of prosecution and same reads as under:
29. Presumption as to certain offences -
Where a person is prosecuted for committing or abetting or attempting to commit any offence under section 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.
(emphasis supplied)
11. On bare perusal of Section 29, it becomes clear that if a person is prosecuted for committing or abetting or attempting to commit any offence punishable under Sections 3, 5, 7 & 9 of POCSO Act, 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. In the instant case, accused has been prosecuted for committing the offence of sexual assault as defined under Section 7 of the Act, thus, in terms of Section 29 of the Act, this Court is bound to draw a presumption in favour of the victim that accused had committed the offence unless contrary is proved by the accused. In other words, the onus is upon the accused to establish that he had not committed the offence of sexual assault. Admittedly, in the instant case accused has not adduced any evidence in his defence. In other words, he has not rebutted the said presumption in any manner, thus, this Court has no reason not to draw the presumption in favour of the victim.
SC No. 103/13 Page 5 of 1812. Similarly, under Section 30 of POCSO Act, Special Court has to draw the presumption in favour of prosecution where culpable mental state is required on the part of accused. Section 30 reads as under:-
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 purpose of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of prosecution.
(emphasis supplied)
13. Bare perusal of the Section 30 of the Act reveals that whenever a question of culpable mental state on the part of the accused is required to prove the guilt of accused, Court shall presume the existence of said mental state. Though accused can take the defence to prove the fact that he had no such mental state with respect to his act but accused has to prove the said fact beyond the reasonable doubt and not by showing its existence by establishing preponderance of probability. Thus, under Section 30 of the Act, liberty is given to the accused to take a defence that he had no such mental state qua his act but he has to prove the said fact beyond reasonable doubt. In the instant case, accused has neither taken any such defence nor adduced any evidence, thus this Court is bound to draw a presumption that accused had culpable mental state qua his act.
SC No. 103/13 Page 6 of 1814. 'Culpable mental state' is defined in the explanation to Section 30 of the Act which includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. To bring home the guilt of accused under Section 7 of the Act, prosecution has to establish sexual intention on the part of accused but in terms of Section 30 of the Act, Special Court is bound to draw a presumption in favour of the prosecution that accused had such intention unless presumption is rebutted by the accused beyond reasonable doubt.
15. Now coming to the contention raised by learned counsel that no reliance can be placed on the testimony of victim as same is not corroborated from any independent witness and she had made substantial improvement in her deposition.
16. In her deposition, PW2 testified that when she tried to get rid of herself from the accused, she sustained injury in her finger of right hand. It was contended that the said fact was not disclosed by the victim before the police in her statement Ex. PW1/A. Admittedly, the said fact is not mentioned in the said statement. However, this fact is mentioned in her statement Ex. PW2/A recorded under Section 164 Cr.P.C., thus, it cannot be said that victim has made any improvement in her deposition.
17. Similarly, victim in her deposition deposed that after seeing her accused used to pass indecent gestures/remarks and clarified that accused used to say 'Ao-Ao, Lelo-Lelo'. During her cross-examination, the said portion was duly got confronted with Ex. PW1/A and Ex. PW2/A. However, victim has clarified the indecent gestures in her subsequent supplementary statement dated May 15, 2013 which was recorded by the investigating SC No. 103/13 Page 7 of 18 State Vs. Mohd. Zahid officer. Mere fact that in her initial statement, she did not clarify the indecent gestures and clarified the same later on in her subsequent statement can not be treated as improvement in her deposition. PW7 in her cross-examination clarified that when victim alleged in her statement Ex. PW1/A that accused used to pass bad gestures after seeing her, she asked the victim to clarify the same and then victim clarified the same in her statement dated May 15, 2013. PW7 deposed that victim clarified that after seeing her, accused used to say 'Ao-Ao, Lelo-Lelo' and also used to pass gestures of flying kiss. In these circumstances, it cannot be said that victim had made any improvement in her deposition before the Court.
18. Admittedly, during investigation, investigating officer failed to record the statement of any independent witness which may corroborate the testimony of victim. In this regard, the cross examination of PW7 is relevant. In her cross-examination, she deposed that no person met her during investigation who corroborated the victim's statement. But it does not mean that no person had witnessed the incident. Mere fact that investigating officer failed to trace out any such person is not sufficient to discard the testimony of victim, which appears otherwise to be trustworthy. During cross-examination of victim, a suggestion was put to the accused that victim had friendship with the accused but same was denied by the victim. By putting the said suggestion, accused intended to say that since there was friendship between them, he had no sexual intent when he caught hold the hand of the victim but the same was denied by the victim. From the deposition of victim, it is clear that the alleged incident had taken place near the tea shop and as per the testimony of PW1, accused was working at the said tea shop, despite that accused failed to examine the owner of the tea shop to establish that no such incident had taken place. In SC No. 103/13 Page 8 of 18 State Vs. Mohd. Zahid other words, even the owner of the tea shop failed to appear in the witness box despite the fact that accused was his employee. In these circumstances, the testimony of victim cannot be discarded.
19. PW2 is the victim of sexual assault and the testimony of victim of sexual assault cannot be discarded on the mere ground that investigating officer failed to record the statement of any independent witness who may corroborate her version. If investigating officer failed to find out any person who could corroborate her version, then simultaneously, it is also true that investigating officer also failed to find out any person who may refute the version of complainant. In these circumstances, I do not find any substance in the contention raised by the learned defence counsel.
20. PW2 in her deposition categorically deposed that after the incident, she went to her house and narrated the incident to her mother who made a call to her husband, consequently, father of the victim made a call to the police. The testimony of victim to that extent is fully corroborated by PW1 i.e. mother of the victim who deposed that victim had narrated the incident to her and thereafter, she narrated the incident to her husband who made a call to the police.
21. Now question arises whether victim was child at the time of alleged incident or not. PW1 i.e. mother of the victim deposed that victim was 13 years old at the time of incident. Similarly, victim also deposed in her testimony that her age was 13 years at the time of incident. During the trial, counsel for the accused made a submission in the Court on August 7, 2013 that he would not dispute the date of birth of victim and on his submission, learned Additional Public Prosecutor dropped the name of SC No. 103/13 Page 9 of 18 State Vs. Mohd. Zahid Principal of the school of the victim as well the record clerk of MCD. Birth certificate of the victim as well as school record are on the Court record. As per the school record as well as birth certificate, the date of birth of the victim is June 15, 1999. Since, the alleged incident had taken place on April 25, 2013, thus victim was below 13 years at the time of incident. Hence, victim was child as defined under POCSO Act.
22. PW2 in her examination-in-chief categorically deposed that on April 25, 2013 at about 2.15 PM while she was coming back from her school and reached near the tea shop, accused caught hold her hand and asked her to accompany him. Consequently, victim tried to get rid of herself and in that process, she had sustained injury on her finger of right hand. Since, victim had immediately get rid of herself from the clutches of accused, it means that accused had caught hold the victim against her wishes. By catching the victim by hand, accused physically touched the victim. Since, it was against the wishes and willing of the victim and accused asked him to accompany him, it shows that accused had sexual intention while he physically touched the victim. As already discussed that presumption under Section 29 & 30 is also in favour of the prosecution, thus, this Court has no reason to disbelieve the prosecution version that accused had sexual intention when he physically touched the victim by catching hold her hand. Thus, accused committed sexual assault as defined under Section 7 of POCSO Act, which is punishable under Section 8 of the POCSO Act. Since, the said act of accused also amounts to victim the accused wrongfully, accused is also liable for the offence punishable under Section 341 IPC.
23. PW2 in her examination-in-chief also deposed that on earlier SC No. 103/13 Page 10 of 18 State Vs. Mohd. Zahid two occasions i.e. on April 22, 2013 and April 23, 2013 accused had passed indecent gesture by saying 'Ao-Ao-Lelo-Lelo', thus, accused had also committed the offence of sexual harassment as defined under Section 11 of the Act, which is punishable under Section 12 of the Act as well as under
Section 509 IPC.
24. Since, victim in her deposition nowhere alleged that accused followed her repeatedly, thus prosecution has failed to prove the guilt of accused under Section 354D IPC.
25. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused for the offences punishable under Section 8 & 12 of POCSO Act and also succeeded to establish the guilt of accused beyond the shadow of doubt for the offence punishable under Section 341/509 IPC, thus, I hereby hold him guilty thereunder. However, prosecution has miserably failed to prove the guilt of accused for the offence punishable under Section 354D IPC, thus, I hereby acquit him thereunder.
Announced in the open Court on this 8th day of October 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 103/13 Page 11 of 18 State Vs. Mohd. Zahid IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 103/13 ID No. 02401R0252012013 FIR No. : 76/13 Police Station : Nabi Karim Under Section : 354D/341/509 IPC & 8/12 POCSO Act State Versus Mohd. Zahid S/o Dinkatu R/o Shamigano, Bhojpur, Islampur, Uttar Dina Pur, Bengal.
.............Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Pankaj Sharma, Advocate, Amicus Curiae for the Convict SC No. 103/13 Page 12 of 18 State Vs. Mohd. Zahid ORDER ON THE POINT OF SENTENCE (ORAL):
1. Vide separate judgement dated October 8, 2013, accused has been held guilty for the offence punishable under Section 8 and 12 of Protection of Children from Sexually Offences Act and under Section 341/509 IPC.
2 Learned counsel appearing for the convict requests to take a lenient view on the ground that he is a young boy of 23 years old having no criminal antecedent. He further submits that even as per the judgement, convict had only caught hold the hand of victim and did no other obscene activity with the victim. It is submitted that considering the young age of the convict and his previous unblemished record, convict be released on the period for already undergone. It is submitted that no purpose would be achieved to keep the convict behind bars among hardcore criminals, it may not be good for the convict. Rather, it may become a cause to convert the convict into a hardcore criminal.
3. Per Contra, learned Additional Public Prosecutor for the State controverted the above contentions and submitted that to protect the children from sexual offences, legislature has enacted the POCSO Act and provided minimum sentence for the offences punishable under Section 8 of the Act, which may extend to five years. It is submitted that since legislature has provided minimum sentence, Court should not impose lesser sentence than minimum sentence as provided under the Act as it would defeat the very purpose of the Act.
4. I have heard rival submissions advanced by counsel for both the SC No. 103/13 Page 13 of 18 State Vs. Mohd. Zahid parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. No doubt, convict has been held guilty for commission of the the offence of sexual assault as defined under Section 7 of the Act, which is punishable under Section 8 of the Act. Indisputably, minimum sentence of three years imprisonment which may extend up to five years imprisonment is prescribed for the commission of offence of sexual assault. Sexual assault is defined under Section 7 of the Act as under:
"Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
6. From bare perusal of Section 7 of the Act it is limpid that its scope is quite large and it also includes from touching of vagina to hand or any other part of the body of a female child. Indisputably, touching of vagina is graver than touching of breast of a female child. Similarly, touching of breast is graver than touching of waist of a female child. Similarly, touching of waist is graver than touching of arm of a female child. But unfortunately, same minimum sentence i.e three years is provided for all above acts. Even no discretion has been given to Courts to impose less sentence than the period of three years in any circumstances. In other words, legislature has considered that same minimum sentence i.e. three years imprisonment should be awarded to the offender irrespective of the fact whether he has been held guilty for touching the more sensitive parts of a child like vagina, SC No. 103/13 Page 14 of 18 State Vs. Mohd. Zahid penis, anus or breast or he has been held guilty for touching of other less sensitive parts of body of the child. In other words, legislature has ignored the gravity of offence while determining the quantum of sentence.
7. No doubt, under Section 8 of the Act, minimum sentence of three years can be extended up to five years, thus, it can be argued that Courts can impose minimum sentence of three years for touching less sensitive parts of the body of a child whereas sentence of more than three years can be awarded for touching more sensitive parts of the body. But this is not the criteria of determining the sentence under Section 8 of the Act, which runs as under:
"Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
8. Bare perusal of Section 8 reveals that Courts have no option except to award minimum sentence of three years. Similarly, there is nothing under Section 8, which may indicate that Courts should award more than three years punishment for touching the more sensitive parts like vagina, penis, anus, breast etc whereas minimum sentence of three years should be impose for touching less sensitive parts of the body. Moreover, there may be numerous circumstances which may be aggravating factors to award more than prescribed minimum sentence. For instance, if a offender kisses the whole body of a child in a public place, in such a situation, offender may deserve more sentence than minimum as prescribed under the Act.
SC No. 103/13 Page 15 of 189. In this regard the observations of Apex Court in Jagmohan Singh v. State of U.P., AIR 1973 SC 947 are relevant and same are reproduced as under:
"In India the difficulty encountered by the Commission had been overcome long ago and it is accepted by the public that only the Judges shall decide the sentence. Where an error is committed in the matter of sentence the same is liable to be corrected by appeals and revisions to higher Courts for which appropriate provision was made in the Criminal Procedure Code. The structure of our criminal law which is principally contained in the Indian Penal Code and the Criminal Procedure Code underlines the policy that when the Legislature has defined an offence with sufficient clarity and prescribed the maximum punishment therefor, a wide discretion in the matter of fixing the degree of punishment should be allowed to the Judge. It was further observed by the Court that the policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. Take, for example, the offence of Criminal breach of trust punishable under Section 409 IPC. The maximum punishment prescribed for the offence is imprisonment for life. The minimum could be as low as one day's imprisonment and fine. It is obvious that if any standards were to be laid down with regard to several kinds of breaches of trust by the persons referred in that Section, that would be an impossible task. All that could be reasonably done by the Legislature is to tell the Judges that between the maximum and minimum prescribed for an offence, they should, on balancing the aggravating and SC No. 103/13 Page 16 of 18 State Vs. Mohd. Zahid mitigating circumstances as disclosed in the case, judicially decide what would be the appropriate sentence. Take the other case of the offence of causing hurt. Broadly, that offence is divided into two categories - simple hurt and grievous hurt. Simple hurt is again sub-divided - simple hurt caused by a lethal weapon is made punishable by a higher maximum sentence - Section 324. Where grievous hurt is caused by a lethal weapon, it is punishable under Section 326 and is a more aggravated form of causing grievous hurt than the one punishable under Section 325.
Under Section 326 the maximum punishment is imprisonment for life and the minimum can be one day's imprisonment and fine. Where a person by a lethal weapon causes a slight fracture of one of the un-important bones of the human body, he would be as much punishable under Section 326-IPC as a person who with a knife scoops out the eyes of his victim. It will be absurd to say that both of them, because they are liable under the same section should be given the same punishment. Here too, any attempt to lay down standards why in one case there should be more punishment and in the other less punishment would be an impossible task."
10. In the light of above discussion, I am of the view that to award appropriate sentence after considering all aggravating and mitigating factors, some discretion should be given to the Courts while determining the quantum of sentence. But Courts are bound to perform their duty and to award sentence in accordance with existing provisions of law unless and until the provisions are amended suitably either by the legislature or clarified by the Higher Courts. Under Section 8 of POCSO Act, Court has SC No. 103/13 Page 17 of 18 State Vs. Mohd. Zahid no option except to award minimum sentence of imprisonment of three years, thus, this Court has no other option except to award the minimum sentence.
11. In view of the above, I hereby sentence the convict Mohd. Zahid rigorous imprisonment for three years and a fine of ` 1000/- in default simple imprisonment for 10 days for the offence punishable under Section 8 of the POCSO Act. I also sentence the convict Mohd. Zahid rigorous imprisonment for a period of six months and a fine of ` 500/- in default simple imprisonment for 5 days for the offence punishable under Section 12 of POCSO Act. No separate sentence is passed for the offence punishable under Section 509 & 341 IPC. Both the sentences shall run concurrently.
12. Benefit of Section 428 Cr.P.C be given to the convict.
13. Copy of judgment along with order on the point of sentence and copy of entire charge-sheet along with all depositions be given to the convict/his counsel free of cost.
14. File be consigned to record room.
Announced in the open Court on this 9th day of October 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 103/13 Page 18 of 18