Delhi District Court
State vs Bhanu Pratap on 31 August, 2017
IN THE COURT OF SH. PARVEEN SINGH,
JUDGE SPECIAL COURT (POCSO ACT)
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 162/16
FIR No. 480/16
PS Khajuri Khas
U/s 376/377/506 (II) IPC &
Section 6 POCSO Act.
State
Versus
Bhanu Pratap,
S/o Sh. Kishore Kumar
R/o H. No. E12/26, Nehru Vihar,
Dayalpur, Delhi. ....Accused.
Date of Institution : 09.09.2016.
Date of Arguments : 10.08.2017.
Date of Pronouncement : 24.08.2017.
(Section 437A Cr.P.C stands complied with)
JUDGMENT
Briefly stated the case of the prosecution is, that on 16.06.2016, victim aged about 06 years alongwith her mother had come to FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 1 of 24 ASJ01/NE/KKD: 24.08.2017 the police station. She alleged that on 06.06.2016, she alongwith her mother had gone to the house of her maternal grandparents at H. No. 26, Gali no. 12, 33 Foota road, Dayalpur, Delhi. She further alleged that in the evening of 07.06.2016, her mother had left her at the house of her maternal aunt. Thereafter, her mother had gone to market. She further alleged that her maternal uncle Bhanu Pratap came there and on the pretext of giving something, he took her to the bathroom. In the bathroom, he made her lie on a bench and then he took off her panty. He also removed his underwear and then inserted his urinary organ in her urinary organ. She further alleged that he also inserted his penis in her anus and threatened her not to disclose about it otherwise he would kill her brother and father. She further alleged that earlier also accused used to kiss her and used to touch her vagina. On 15.06.2016, while playing, she informed about these acts of accused to her cousin Manvi, who informed about it to her mother. On being asked, she informed about the acts of accused to her mother. Hence, the present FIR was registered. After completion of investigation, charge sheet u/s 376/377/506 IPC and Section 6 POCSO Act was filed against the accused.
2. On 13.10.2016, charge u/s 6 of POCSO Act and an alternate charge u/s 376 and 377 IPC and u/s 506 (II) IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined 13 witnesses.
4. PW1 is HC Rajesh Kumar Sharma. He deposed that on FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 2 of 24 ASJ01/NE/KKD: 24.08.2017 16.06.2016 at about 06.00 p.m., being posted as duty officer at PS Khajuri Khas, he registered FIR No. 480/2016. Copy of FIR was Ex.PW1/A. He made endorsement Ex.PW1/B on the rukka. He also issued certificate u/s 65B Evidence Act which was Ex.PW1/C.
5. PW2 is the victim. PW3 is Smt. N, mother of the victim. Their testimonies shall be considered at a later stage as and when required.
6. PW4 is lady Ct. Tara. She deposed that on 16.06.2016, on the instructions of IO SI Mamta Chuahan, she had taken the victim to JPC Hospital for medical examination. After medical examination of the victim, she collected the MLC of the victim and handed the custody of victim to the IO. She also handed the MLC to the IO. No exhibits were seized or sealed by the doctor.
7. PW5 is Dr. Ishtikhar Ahmed. He deposed that on 17.06.2016 at about 03.44 p.m., he examined accused Bhanu Pratap and prepared MLC no. 800 (Ex.PW5/A). On local examination, no external injuries were found upon the patient. He referred the patient to surgery department for potency test and advised for collection of blood and semen sample.
8. PW6 is Dr. Neelu Singh. She deposed that on 16.06.2016 at about 06.45 a.m, she examined the victim and prepared MLC no. 5018 which was Ex.PW6/A. She further deposed that in the local examination, hymen was found torn and redness was found. She also prepared emergency FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 3 of 24 ASJ01/NE/KKD: 24.08.2017 registration card Ex.PW6/B.
9. PW7 is Manvi. She deposed that on 15.06.2016, while playing, victim informed her while she (victim) was visiting the house of her maternal grandparents, her maternal uncle Bhanu Pratap had closed her in a bathroom where he touched her private parts with his male organ. She informed these facts to the mother of the victim.
10. PW8 is Dinesh Kumar, Librarian from Adarsh Gyan Sarovar Balika Vidyalay. He deposed that the victim was admitted in their school on 15.04.2015. Copy of her admission form was Ex.PW8/A and copy of her admission and withdrawal register was Ex.PW8/B. he also proved the birth certificate of victim as Ex.PW8/C. As per records, the date of birth of victim was 02.07.2009. Certificate issued by Vice Principal was Ex.PW8/D.
11. PW9 is Ct. Khushi Ram. He deposed that on 16.08.2016, on the instructions of IO, he collected the exhibits of the case and deposited them with FSL Rohini vide RC Ex.PW9/A. After depositing the exhibits, he obtained the acknowledgment Ex.PW9/B and handed that to the MHC(M).
12. PW10 is Dr. Yanshul Rathi. He deposed that on 17.06.2016, he examined Bhanu Pratap and gave his observations on MLC Ex.PW5/A.
13. PW11 is ASI Sukhveer. On 17.06.2016, IO SI Mamta Chauhan deposited one wooden bench and exhibits of the accused vide entry Ex.PW11/A. On 16.08.2016, vide RC Ex.PW11/B, through Ct.
FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 4 of 24 ASJ01/NE/KKD: 24.08.2017
Khushi Ram, he had sent the exhibits of the case to FSL and the acknowledgment is Ex.PW11/B. On 28.12.2016, Ct. Dinesh had deposited the result from FSL alongwith exhibits and he made entry Ex.PW11/A.
14. PW12 is SI Mamta Chauhan. She is the IO of the case. Her testimony shall be considered at a later stage.
15. PW13 Ct. Ashish Yadav. He was a witness to the arrest of accused. He deposed that at the instance of victim and her mother, accused was arrested vide arrest memo Ex.PW3/C. Personal search of accused was conducted vide memo Ex.PW3/D. Accused was taken to JPC Hospital for medical examination. He handed the MLC and sealed pulindas to the IO who seized them vide memo Ex.PW12/C.
16. Thereafter, on 19.05.2017, statement of accused u/s 313 Cr.P.C was recorded and accused preferred to lead evidence in his defence. He examined Sheela as DW1.
17. DW1 Sheela deposed that Nirmal is mother of victim. She is her sister's daughter. Accused is son of her other sister. Nirmal's parents had died when Nirmal was very young. She further deposed that Nirmal was brought up by the parents of the accused and her marriage was also solemnized by the accused parents. After her marriage, husband of Nirmal started asking her to bring her share from family properties i.e. a plot which belonged to the parents of Nirmal. However that plot had been sold by father of accused in order to bear the expenses of marriage of Nirmal and FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 5 of 24 ASJ01/NE/KKD: 24.08.2017 her two siblings. As Nirmal could not get any share/ money from the parents of accused, accused was falsely implicated in this case. There had been many disputes and quarrels between Nirmal and parents of accused on this issue.
18. I have heard learned Addl. PP for the State as well as learned counsel for the accused. I have also gone through the written submissions filed on behalf of the accused.
19. It has been contended by learned Addl. PP for State that the sole testimony of the victim, who was a small child of 08 years old at the time of her examination before the court, should be sufficient to convict the accused. He has further contended that the victim/ child who appeared as PW2 has been natural and consistent in her testimony. This small child was subjected to anal and vaginal penetrative sexual assault by the accused and it was natural for a small child to keep that information to herself in the circumstances detailed by her and in natural course of things, she disclosed it to her friend while playing. He has further contended that the entire testimony of this child, if taken into consideration, clearly proves the guilt of the accused. He has further contended that there is a presumption u/s 29 of POCSO Act and the accused has not rebutted that presumption. He has thus contended that the prosecution has proved its case beyond all reasonable doubts and the accused should should be convicted.
20. On the other hand, it has been contended on behalf of the FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 6 of 24 ASJ01/NE/KKD: 24.08.2017 accused that the victim (PW2) in her complaint dated 16.06.2016 had stated that her maternal uncle took her in toilet where he gave her a blackberry and made her lie on a bench and then he inserted his private part in her private part. She also stated that her maternal uncle had also inserted his private part in her anus. However, in her statement u/s 164 Cr.P.C, she was completely silent about the bench and of the fact of insertion of his private part by the accused in her private part. He has further contended that victim /PW2 in her examination in chief dated 10.11.2016 had stated that accused made her lie on bed. He has thus contended that there are many contradictions in the complaint made by the victim and in her statement u/s 164 Cr.P.C and the statement given before the court. He has further contended that the victim during her cross examination had stated that at the time of incident children namely Divya and Daksh were playing with her. However, the IO has neither interrogated the above said children nor made them witness in this case. He has further contended that PW3 mother of the victim in her testimony before the court had stated that after three days of the incident, her jethani Kamlesh and her mother in law told her about the victim being raped by the accused. However, in her statement u/s 161 Cr.P.C, which was recorded on 16.06.2016, she had stated that she came to know about the incident on 15.06.2016 from PW7 Manvi. However, the police has not made Kamlesh and Kiran a witness in this case. He has further contended that PW3 in her cross examination had stated that on FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 7 of 24 ASJ01/NE/KKD: 24.08.2017 15.06.2016 at about 09.30 p.m. Kamlesh came to her and informed her about the incident and at that time, her husband was also present in the house. However, the police has not cited the father of the victim a witness in this case. He has further contended that after coming to know about the incident, no immediate call to the PCR was made and the complaint was registered on 16.06.2016. He has further contended that PW7 Manvi in her testimony had never stated that the victim told her that accused inserted his male organ in her private part after lying her on bench. He has further contended that the IO in her cross examination has admitted that she did not examine the other friends of the victim and the mother of Manvi. He has further contended that even the FSL report does not support the case of the prosecution. He has further contended that the IO as well as PW3 mother of victim have admitted that accused is not the real brother of PW3 and after the death of parents of PW3, she was taken care of by the parents of the accused. He has further contended that after her marriage, PW3 started demanding her share in the property and when they refused, the present case was registered against the accused.
21. I have carefully considered the rival submissions and perused the record.
22. For the case to be covered under POCSO Act, the first and foremost requirement is that the victim should be a child as per the definition of POCSO Act.
FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 8 of 24 ASJ01/NE/KKD: 24.08.2017
23. Although it is very clear that the child is below 18 years of age because when she was examined before the court, it was seen by the court that she was of a very tender age and she also disclosed her age as 08 years and by no stretch of imagination, she could be said to be a child of above 18 years.
23A. Even otherwise, I find that PW8 Dinesh Kumar, librarian from Adarsh Gyan Sarovar Balika Vidyalay, had brought the record from his school. He proved the copy of admission form of victim as Ex.PW8/A and copy of admission and withdrawal register as Ex.PW8/B. He also proved the birth certificate of the victim as Ex.PW8/C. As per the birth certificate of the victim as issued by MCD, her date of birth was 02.07.2009. In statement u/s 313 Cr.P.C of the accused, this certificate was put to him and it was also put to the accused that the date of birth of the victim was 02.07.2009. He stated that it was a matter of record. Therefore, it stands proved on record that victim was born on 02.07.2009. The incident had happened on 07.06.2016. At that time, the child / victim was a little below 07 years of age and thus was a child within the definition of POCSO Act.
24. The next question which needs to be decided is, whether the accused had committed penetrative sexual assault upon the victim? In this regard, the testimony which is of foremost importance is, the testimony of the victim.
25. The incident had allegedly happened inside a bath room where FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 9 of 24 ASJ01/NE/KKD: 24.08.2017 no one apart from the perpetrator and the victim was present. Therefore, the sole witness to prove the offence by direct evidence is the victim.
26. It is a well settled law that in such cases if the testimony of the victim is found to be credible then her sole testimony is sufficient to bring home a finding of guilt.
27. On this point, in Ramdas v. State of Maharashtra, (2007) 2 SCC 170 , Hon'ble Supreme Court has held as under:
23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which case shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony.
28. Further, in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, Hon'ble Apex Court has held as under: "22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 10 of 24 ASJ01/NE/KKD: 24.08.2017 howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. to be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
29. Therefore, even if the victim is the sole witness of the incident, conviction can be rendered if her testimony is found to be credible.
30. In view of the above legal propositions, let us see the testimony of the victim.
31. Victim, appearing as PW2, deposed that accused was her maternal uncle. In summer vacations, she had visited the house of maternal grandparents, who resided at Dayalpur. There was one house between the house of accused and her maternal grandparents. One day, she, alongwith children of her mausi and mama, was playing in a room at the ground floor FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 11 of 24 ASJ01/NE/KKD: 24.08.2017 when accused came and told all the children that he would play with them. He asked other children to go upstairs and instructed the victim to remain with him at the ground floor. All other children went upstairs. Thereafter, accused made her lie on a bed, took off her underwear and his underwear and then inserted his organ into her urinating place. She cried with pain but then he again inserted his organ into her rectum (potty wali jagah). He then left her saying that he would repeat this act when she would be playing but if she told of his acts to anyone, he would flee away. Whenever she used to visit her maternal grandparents, the accused would do like this. For the first time, she told all these acts of the accused to her cousin Manvi and Manvi told all these facts to her mother. Her mother questioned her and then she also told all these facts to her (victim's) mother. Thereafter, her mother called the police and her statement Ex.PW2/A was recorded by the police. She was taken to the hospital for medical examination. Her statement u/s 164 Cr.P.C was also recorded. The statement u/s 164 Cr.P.C was Ex.PW2/B.
32. During her cross examination, she deposed that when they were playing on the ground floor, her maternal grandmother, maternal aunt and her aunt (mausi) were present on the upper floor. The names of children of her mausi were Daksh and Divya and the name of her mausi was Soni. Manvi was the daughter of her elder uncle (tau). She was elder to her and everyday, they would play together. She did not remember that how many FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 12 of 24 ASJ01/NE/KKD: 24.08.2017 days after the incident, she had told about it to Manvi. When she told about these facts to Manvi, initially she was talking to Divya and then Manvi reached there and asked Divya as to what they were talking about. Then she told about the incident to Manvi, who, in her presence, told about it to her mother. Again said, she (Manvi) told about the incident firstly to her mother and Manvi's mother told about it to her mother. She deposed that her mother had told her as to what she had to depose in the court. In response to the court question, whether the facts deposed by her were false facts deposed at the behest of her mother; she replied that she was telling about a true incident which had taken place with her. She denied that no such incident had taken place with her or that she was deposing falsely on being tutored by her mother.
33. The next material witness is Manvi in whom, the victim had confided for the first time. She appeared as PW7 and deposed that the victim is the daughter of her uncle Mehak Raj and aunt Nirmal. On 15.06.2016, while the victim was playing with her, victim told her that when she had visited the house of maternal grandparents in summer vacations, her (victim's) maternal uncle had closed her in a bathroom and after taking off her clothes, touched her private parts with his male organ. On hearing this from the victim, she told these facts to her mother as well as to the mother of the victim.
34. During her cross examination, she deposed that police had not FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 13 of 24 ASJ01/NE/KKD: 24.08.2017 recorded her statement. Victim had told her about these facts at around 67 p.m. She admitted that when the victim was disclosing about these facts to her, she was not crying. After the victim had told her about it, she immediately told these facts to her mother. She (her mother) called the mother of victim to her house where her mother told these facts to her mother. She denied that victim had not disclosed anything to her or that she was deposing falsely after being tutored by her mother and that of the victim.
35. From the testimonies of these two witnesses, nothing has emerged which could be said to be unnatural. The testimony of the victim is a very natural testimony and the conduct of the victim is also a very natural conduct for a child aged about 07 years.
36. During the cross examination of the victim, nothing has come out which could discredit her testimony.
37. Learned counsel for the accused has contended that the victim, in her statement u/s 164 Cr.P.C, was completely silent about the accused inserting his private part into her private part. However, I find that this contention of learned counsel for accused is not supported by the facts available on record. In her statement u/s 164 Cr.P.C, which was recorded in Hindi, the victim had stated as under: Mere mama Bhanu ne jab mummy bazaar gayi thi toh mama Bhanu ne gusalkhane me le jakar meri kachhi utaar di aur apni kachhi utaar kar meri aur apni susu karne wali jagah FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 14 of 24 ASJ01/NE/KKD: 24.08.2017 ko aage peechhe dono taraf se bheench diya tha. Aur kaha ki agar apni mummy ko bataogi toh tere papa aur bhai ka gala kaat dunga. Pehle jab vo aate the to vo aage pechhe se dono aur se meri kachhi me hath dete the.
38. From a perusal of the aforesaid statement u/s 164 Cr.P.C, it can be clearly inferred that the victim was stating about the vaginal and rectal sexual assault by the accused upon her. Children of such a tender age, as the victim was at the time of incident, do not always have appropriate words to describe the incident and they have their own language to describe what had happened to them.
39. In her statement u/s 164 Cr.P.C, the victim had clearly stated that the accused had taken off her panty as well as his underwear and then she stated that "meri aur apni susu karne wali jagah ko aage peechhe dono taraf se bheench diya tha". The victim is talking about the pressure which she felt on her vagina and rectum. Therefore, merely because the victim was not expressing or was not using the exact words to describe vaginal and rectal penetration, it cannot be said that the victim, in her statement u/s 164 Cr.P.C, was silent about the sexual assault committed upon her by the accused or that while testifying before the court, she had made improvements.
40. The fact that victim was sexually assaulted has also been corroborated by medical evidence.
41. The victim was medically examined by PW6 Dr. Neelu Singh.
FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 15 of 24 ASJ01/NE/KKD: 24.08.2017
She deposed that she medically examined the victim and prepared MLC Ex.PW6/A. She further deposed that during the local examination of the victim, her hymen was found torn and erythema was found present and the patient was not allowing even insertion of one finger.
42. During her cross examination, she admitted that redness was possible by wearing tight clothes or by fall or by insect bite. The court then specifically questioned the doctor about the redness/ erythema present on the private parts of the victim and asked the doctor's opinion that: what were the injuries present on the victim suggestive of ? The doctor answered that these were suggestive of a possible sexual assault. She admitted that the hymen in a female can tear because of strenous exercises, sports activities etc. and it is possible in case of a seven years old female child also.
43. Although in this case, the victim's testimony has been found to be completely natural and reliable and there was no requirement of any corroboration but the medical evidence as discussed above proves the fact that the victim had been sexually assaulted and thus, corroborates the testimony of the victim.
44. As regards the other contention of learned counsel for accused that the victim in her examination in chief had stated that accused made her lie on a bed while in her complaint dated 16.06.2016, she had stated that the accused made her lie on a bench, I find that this is a minor variation which appeared in the version of a small child and cannot be said to be a FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 16 of 24 ASJ01/NE/KKD: 24.08.2017 contradiction as a child of such a tender age cannot be expected to recall each and everything in vivid detail.
45. The next contention raised on behalf of the accused is that the IO had neither cited other children namely Divya and Daksh as witnesses nor cited Kamlesh, Kiran and the father of victim as a witness. However, I find that merely because some other people, who could have known about the incident or who have heard about the incident, have not been made witness, it does not take in any manner the credibility of the testimony of the victim, which clearly stands on its own feet especially when the victim has come out to be a credible witness.
46. As regards the contention of learned counsel for the accused that PW7 Manvi has stated that the victim had not told her that the accused had inserted his male organ in the private parts of the victim, I find that the testimony of PW7 Manvi in this case is only relevant to the effect that the first person to whom the victim had told about the sexual assault upon her is Manvi. This fact has not only be proved by PW7 but has also been proved by PW3 mother of the victim.
47. As regards the contention of learned counsel for the accused that there was a delay in lodging the FIR, I find that it is not unusual for the children to withhold the information of such a traumatic incident either because of fear of perpetrator or because of the shame instilled in the children from a very young age with regard to their private parts. Therefore, FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 17 of 24 ASJ01/NE/KKD: 24.08.2017 it was very natural for the victim to withhold this information until she could confide in somebody who would have believed her.
48. It has been stated by the victim and PW7 that they were not only related but were very good friends and everyday, they would play together. Therefore, it is natural that the victim, because of her comradery, had developed faith in PW7 and she confided in PW7. Had it not been for the victim confiding in PW7, this incident like many others would have gone unreported.
49. As regards the contention of learned counsel for the accused that the FSL report is not supporting the case of the prosecution, I find that the FSL report could merely have been a corroborative piece of evidence and it would have been necessary for such a corroboration if the testimony of the victim is found to be not reliable. However, it is not so in the present case.
50. As a defence, it has been contended on behalf of the accused that because mother of the victim could not get a share in the property, the accused has been falsely implicated in this case. To prove it, the accused has examined DW1 Sheela. However, testimony of DW1 Sheela is not reliable for three reasons. First is that DW1 is related to the accused. Secondly, DW1 had never approached earlier before any authority with this version and thirdly, there is no evidence on record to show that in fact, there is a property dispute which is going on between the mother of the victim FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 18 of 24 ASJ01/NE/KKD: 24.08.2017 and the parents of the accused or whether there was any mediation/ panchayat or litigations between the parties with regard to a property dispute.
51. In view of the above discussions, I find that the testimony of the victim is completely reliable and is sufficient to bring home the guilt of the accused.
52. It is also to be noticed that there is a presumption u/s 29 of the POCSO Act, which 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 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.
53. It is to be seen that the provision of section 29 of the POCSO Act had been added by the legislature in order to protect the children from sexual assault and to ensure that the victims of such assault get justice and that is why the legislature had raised a presumption in favour of the prosecution.
54. This presumption of course is rebuttable. However, as discussed above, the accused has not been able to rebut this presumption either by denting the case of the prosecution or by leading his own evidence. I accordingly find that it has been proved beyond all reasonable FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 19 of 24 ASJ01/NE/KKD: 24.08.2017 doubts that on 07.06.2016, accused Bhanu Pratap had committed vaginal and rectal sexual assault upon the victim, who, at the time of incident, was about 06 years of age and thus, the accused had committed aggravated sexual assault upon the victim as per section 5 (m) of the POCSO Act. The accused is accordingly convicted for offence punishable u/s 6 POCSO Act.
55. Be heard separately on the point of sentence.
Announced in open court (Parveen Singh) today on 24.08.2017. Judge Special Court (POCSO Act) (This judgment contains 20 pages ASJ01, North East Distt., and each page bears my signatures.) Karkardooma Court, Delhi.
FIR No. 480/16 (Parveen Singh)
Judge Spl. Court (POCSO Act)
PS Khajuri Khas 20 of 24 ASJ01/NE/KKD: 24.08.2017
IN THE COURT OF SH. PARVEEN SINGH,
JUDGE SPECIAL COURT (POCSO ACT)
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 162/16
FIR No. 480/16
PS Khajuri Khas
U/s Section 6 POCSO Act.
State
Versus
Bhanu Pratap,
S/o Sh. Kishore Kumar
R/o H. No. E12/26, Nehru Vihar,
Dayalpur, Delhi. ....Convict.
ORDER ON SENTENCE
Convict Bhanu Pratap stands convicted for offence punishable u/s 6 of the POCSO Act.
2. Arguments on the point of sentence have been heard.
3. Ld. Addl. PP for State has contended that the convict, despite being related to the victim, had committed penetrative sexual assault upon her, who was aged about 06 years at the time of incident and thus, he has broken her trust. He has further contended that such an incident is very FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 21 of 24 ASJ01/NE/KKD: 24.08.2017 traumatic and scars the child for life. He has further contended that the convict was very well aware that the victim was helpless and he had raped her. There are no mitigating circumstances and therefore, maximum imprisonment i.e. sentence of imprisonment of life should be awarded to the convict and a heavy fine should be imposed.
4. Countering the same, it is contended by learned counsel for the convict that convict is of very young age. He has no previous criminal antecedents. He has thus prayed that lenient view should be taken towards the convict.
5. I have considered the rival contentions and weighed the mitigating and aggravating circumstances.
6. The Hon'ble Delhi High Court in Vikas Yadav v. State of Govt of UP in Crl. A. 910/2008 in judgment dated 06.02.2015 had held that an inquiry is required to be conducted by the court in order to arrive at a just and reasonable fine to be imposed upon the convicts.
7. The socio economic status of the convict was asked for.
8. SHO PS Khajuri Khas has filed socio economic report of the convict. According to the report, the convict is of 24 years of age. He is 10th passed. He is doing a private job and is earning Rs.8,000/ per month.
9. The fact, that convict had committed a predatorial crime with a 06 years old child to satisfy his lust, makes the crime very serious and heinous. On the other hand, the fact that the convict has clean antecedents;
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he is of 24 years of age and that there are chances of him being reformed are mitigating circumstances in his favour. Considering these, I find that this is not a case where maximum sentence should be awarded.
10. Considering the facts, I find that ends of justice would be served if convict Bhanu Pratap is sentenced as under:
(a) U/s 6 of the POCSO Act, convict Bhanu Pratap is hereby sentenced to undergo rigorous imprisonment for a period of 10 years and,
(b) A fine of Rs.40,000/ is also imposed upon the convict. In default of payment of fine, he will undergo simple imprisonment for a period of three months.
11. Benefit of section 428 Cr.P.C shall be given to the convict.
12. The victim is entitled to a compensation u/s 357 Cr.P.C, where from the fine imposed upon the convict, compensation can be awarded to a person who had suffered any loss or injury because of that crime.
13. I accordingly order that u/s 357 (2) Cr.P.C, out of the fine of Rs.40,000/, Rs.30,000/ shall be paid to the victim as compensation.
14. As regards the other mandate of section 357 Cr.P.C regarding defraying the expenses incurred by the State on investigation and prosecution of this case, Ld. Addl. PP has submitted that the State is not in a position to quantify the expenditure incurred upon the prosecution or FIR No. 480/16 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 23 of 24 ASJ01/NE/KKD: 24.08.2017 investigation of this case. In these circumstances, I find myself handicapped to arrive at an amount which the convict should be ordered to pay to the State on account of expenses incurred by State in investigation and prosecution of this case.
15. As the victim is a child who had suffered a trauma which may have left indelible marks on her young mind, the victim is also entitled to a compensation under Section 357A Cr.P.C. Therefore, copy of judgment and order on sentence be sent to the Secretary DLSA NE to assess and pay appropriate compensation to the victim under Delhi Victim Compensation Scheme.
16. Copy of judgment and order on sentence be given to the convict free of cost.
Announced in open court (Parveen Singh) today on 31.08.2017. Judge Special Court (POCSO Act) (This order contains 04 pages ASJ01, North East Distt., and each page bears my signatures.) Karkardooma Court, Delhi.
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