Delhi District Court
Sc No: 180/13 State vs . Suresh Mehto @ Aslam on 12 January, 2016
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 180/13
FIR No. 258/13
Police Station Narela
Under Section 363/366 IPC &
10 POCSO
ID No. 02404R0-212852013
State
Versus
Suresh Mehto @ Aslam
S/o Sh. Shankar Mehto,
R/o Village Akhadaghat, PS Moti Jheel,
PO Company Bagh, District Mujaffarpur, Bihar.
......Accused
Date of institution 02.08.2013
Judgment reserved on 22.12.2015
Judgment Pronounced on 07.01.2016
Decision Convicted
Judgment 1 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
JUDGMENT
1. Accused is facing trial on allegations of kidnapping & sexually assaulting victim M, a girl aged about 5 years.
2. FIR in question was registered on the written complaint lodged by mother of victim M, wherein she alleged that on 21.04.2013 at about 11:30 PM, a fire broke out in their colony and she went to see that fire. When she returned back at about 00:15 AM she did not find her daughter 'M' at home. When she was searching her daughter she noticed a crowd near her house and when she reached near the crowd, she found that accused was being beaten by public persons. They told the complainant that her daughter was taken by the accused near House No. 3531, E-Block with intention to commit wrong act with her. Accused had slapped the victim and had removed her undergarment. Then victim also informed the complainant that accused had taken her in his lap and there he slapped victim & removed her undergarment. Complainant Judgment 2 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam alleged that since the accused tried to commit sexual assault upon the victim an action be taken against him.
3. Accused was arrested and charge-sheeted. Charge for the offence punishable u/s 363/366 IPC & 10 POCSO Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution in all has examined 18 witnesses.
5. PW1 is complainant & mother of victim. She supported the allegations made by her in her complaint proved on record as Ex PW1/A. She also proved her statement given before Ld. MM u/s 164 Cr.P.C. as Ex. PW1/B and seizure memo of date of birth certificate of her daughter as Ex PW1/C. Judgment 3 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam
6. PW2 is sister of complainant deposed on the lines of complainant. She deposed that when they found the victim, a lady told her that she heard the screams of victim and when she went in her adjoining house, that lady saw that accused had gagged the mouth of victim and at that time victim was without undergarment. She duly identified the accused in the Court.
7. PW3 Razia deposed that she was roaming in the street with her mother-in-law(PW12) as there was no electricity in the locality. Her mother-in-law heard screams of victim from a under construction house near her house. When her mother-in-law tried to find out the reason for that by shouting "kaun hai - kaun hai" victim in terrified condition came running towards her mother- in-law and came in her lap. Accused was also present at the said place. She called some boys from the locality for help. Accused was apprehended with the help of neighbors, who beat him there. Victim was weeping and she was wearing only frock and she was without underwear and stated that the accused was not known to her.
Judgment 4 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
8. PW4 Dr Mukesh Narang proved the MLC of the accused as Ex PW4/A.
9. PW5 Dr Hema Mahawan proved the MLC & treatment Sheet of the victim as Ex PW5/A & B. She deposed that on local examination of the victim slight edema & inflammation near introits was seen.
10. PW6 Meetha Lal, proved the date of birth of the victim as 07.12.2008 as per birth certificate Ex. PW6/A of the victim issued by the Sub-Registrar of Birth and Death, MCD.
11. PW7 is victim but victim was unable to give rational answers put to her and she was not considered as competent witness.
Judgment 5 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
12. PW8 is father of the victim. He deposed that a fire had erupted in their Jhuggi cluster in the night of 21.04.2013. He along with his wife went outside to see the fire and when they returned at about 12.30 midnight, they found that their daughter victim 'M' was missing from the house. In search of the victim, they reached at a spot where some public persons were beating a man as he had picked up victim and they were objecting it. Public persons informed him that the accused brought victim there and had removed her undergarments and intended to rape her. Accused also slapped victim number of times. On seeing the condition of victim public had raised alarm and caught hold of accused him and gave beating. When he went to call the police on 100 number accused ran away from there. Police came at the spot and apprehended the accused from the park near a Hospital Pooth Khurd. He duly identified the accused in the Court.
Judgment 6 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
13. PW9 Ct Pradeep proved DD No.5B about an
information in respect of incident of attempted rape upon a 5 year old girl as Ex PW9/A.
14. PW10 Ct Vijay Prakash proved the arrest of accused, his personal search, disclosure statement & pointing out memo vide Ex. PW10/A to D.
15. PW11 Ct Nakul reached the spot with the IO and took the victim for her medical examination to SRHC Hospital. He also took the Rukka and got registered the FIR.
16. PW12 Samid-ul-Nisa deposed that on the date of incident, at about 12 midnight, there was no electricity in her locality and fire had broken out in the Jhuggis near the park. All the residents of the locality went to the side of fire. She went to the vacant plot no. E-3529 from where cries of a child were coming. She saw that accused had overpowered victim who was weeping Judgment 7 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam and victim was naked from the lower part. She called her daughter- in-law namely Razia (PW3) who also reached at the spot. Some persons of the locality overpowered the accused and beaten him. Police reached the spot and she showed place of occurrence to the police.
17. PW13 Dr Avdesh proved the MLC of the accused as Ex PW13/A & B.
18. PW14 Dr Rajiv Rajan proved the age of accused to be between 20-25 as per report of Medical Board constituted for age estimation of the accused as Ex PW14/A.
19. PW15 Sachin Gupta, ld MM recorded the statement of complainant under 164 Cr.P.C as Ex PW1/B. Judgment 8 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam
20. PW16 Ct Nisha reached the spot with the IO and took the victim for her medical examination to SRHC Hospital and to BSA Hospital for her gynecological examination.
21. PW17 SI Amit recorded the statement of complainant and prepared rukka Ex. PW17/A and got registered the FIR. He prepared site plan at the instance of Samid-ul-Nisa. (PW12). Thereafter, the investigation was conducted by SI Seema.
22. PW18 SI Seema is Investigating Officer of the case. She proved the FIR as Ex PW18/A. She arrested the accused and also got conducted ossification test of the accused.
23. On conclusion of the prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. wherein the accused stated that while he was returning back from his work, he saw that victim was going towards the area where fire had broken out. He immediately took her aside in order to save her from any accident.
Judgment 9 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
In the meantime, public persons gathered there and gave him beatings. He claimed his innocence.
24. Ld. Defence Counsel has argued that the prosecution has miserably failed to prove its case. It is submitted that although prosecution cited PW 3 & 12 as eye witnesses to the incident but both of them denied to have seen the incident. It is argued that prosecution has failed to establish either that accused kidnapped the victim or committed sexual assault upon her, therefore, the accused is entitled to be acquitted.
25. Per contra, it has been submitted on behalf of the State that the testimonies of the PW 3 & 12 are trustworthy and reliable and the same clearly establishes the guilt of the accused. It is submitted that the accused has been duly identified by the parents of the victim and the eye witnesses as the person who sexually assaulted victim. Hence, the prosecution case has been proved against the accused beyond any reasonable doubt.
Judgment 10 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
26. I have heard the Ld. Amicus Curiae as well as the Ld. Addl. PP and perused the record.
27. Age of victim:- Prosecution has proved the date of birth of the victim as 07.12.2008 as per her birth certificate Ex. PW6/A issued by the Sub-Registrar of Birth and Death, MCD. That goes to show that the victim was about 4 years and 8 months old at the time of incident and thus, she is a child within the meaning of POCSO Act.
28. Testimony of eye witnesses: First line of argument of the defense is that no body had seen the accused committing the sexual assault upon the victim. It is submitted that the victim although examined could not depose regarding sexual assault upon her, if any, by the accused and in absence of any witness to the incident accused cannot be held guilty.
Judgment 11 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
29. True that victim has not been able to depose in respect of the incident but as per the witnesses, on the date of incident there was no electricity in the locality and a fire had broken out in the Jhuggis near the park. Residents of the locality went to the direction of fire. PW12 heard cries of a child and she went towards a vacant plot no. E-3529 from where cries were emanating. There she saw that accused had overpowered victim who was weeping and victim was naked from the lower part. She called her daughter-in-law namely Razia (PW3) who also reached at the spot. Some persons of the locality overpowered the accused and beaten him.
30. Similarly, PW3 daughter-in-law of PW12 deposed that while she was roaming with PW12 in her locality, her mother- in-law heard screams of victim from a under construction house. Her mother-in-law tried shouted "kaun hai - kaun hai", then victim in terrified condition came running towards her mother-in-law and came in her lap. Victim was weeping and was wearing only a frock Judgment 12 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam and was without underwear. Victim told her that the accused was not known to her. Accused was present there and was apprehended with the help of neighbors, who beat him.
31. No material contradiction has come in cross- examination of PWs 3 & 12 to disbelieve their deposition. Description of the incident as testified by PW3 & 12 finds support from the version of incident given by parents of the victim as well. Testimonies of witnesses establishes that victim was with the accused in an under construction house and was naked from her lower part when she came out running towards PW12 who reached there after hearing cries of the victim. Both PW3 & 12 are stranger to accused and no motive has been attributed to them for making such allegations against the accused.
32. More so, accused in his statement recorded u/s 313 Cr.P.C also admits that he had taken victim with him aside though for a different reason. Accused stated that he saw victim going Judgment 13 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam towards fire and in order to save her he took victim aside. Explanation given by the accused for taking her aside does not appeal to senses for the simple reason that if at all accused was wanting to save the child from fire, he would have simply taken her back to her house by asking her address from residents of locality instead of doing so, accused took the victim to an isolated under construction house.
33. Another fact that establishes the guilt of the accused is that the victim was found naked by PW3 & PW12 who reached at the place of occurrence. As per his MLC Ex PW4/A, accused was found under influence of alcohol, he being adult person picking a small unknown girl, taking her to an isolated place and then removing her undergarment clearly indicates his culpable state of mind. Needless to say that the accused has not been able rebut such a presumption established by facts.
Judgment 14 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
34. Medical Evidence: Victim was examined at about 03:30 am on the same night at SRHC Hospital vide Emergency Ticket Ex PW5/B. As per this document "slight edema & inflammation on labia (near introit)" was found on the victim. Medical evidence clearly indicates that victim was sexually assaulted though it is not the case of penetrative sexual assault on the victim.
35. Conclusion: From discussions herein above, it emerges that:
i) Testimonies of PW3 & 12 establishes that victim was in custody of the accused at an isolated place.
ii) Accused has been duly identified by the witnesses.
iii) Parents & relative of victim corroborated chain of events.
iv) Accused failed to establish any defence.
Judgment 15 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
36. Accordingly, it is held that the testimonies of the eye witnesses are trustworthy and reliable in respect of the incident of sexual assault on the victim by the accused. Allegations also found corroboration from the deposition of the parents of the victim and medical evidence. Allegations against the accused of kidnapping a five year old child and committing sexual assault upon stands proved. Thus, the accused stands convicted for the offence punishable U/s 363/366 IPC and 10 POCSO Act.
Matter be listed for hearing arguments on quantum of sentence for 12.01.2016 (GAUTAM MANAN) ASJ-01:NORTH:ROHINI:DELHI Judgment 16 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam IN THE COURT OF SH. GAUTAM MANAN ADDITIONAL SESSIONS JUDGE-01, NORTH ROHINI, NEW DELHI In the matter of:-
S. C. No. 180/13 FIR No. 258/13
Police Station Narela
Under Section 363/366 IPC & 10
POCSO
ID No. 02404R0-212852013
State
Versus
Suresh Mehto @ Aslam
S/o Sh. Shankar Mehto,
R/o R/o Village Akhadaghat, PS Moti Jheel, PO Company Bagh, District Mujaffarpur, Bihar.
......Convict ORDER ON SENTENCE
1. Accused Suresh Mehto @ Aslam has been convicted U/s 363/366 IPC & Section 10 POCSO Act. I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and Ld. Counsel for the convict.
Judgment 17 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
2. Learned Addl. PP has very vehemently argued that the offence committed by the convict in this matter is of highly derogatory in nature. The child victim was subjected to sexual assault by the convict. It is further argued that the incestuous crimes in our society are presently on rise, which substantially hamper the mental and physical development of children. POCSO was enacted by the Parliament bearing in mind that the offenders under the said Act shall be dealt with with heavy hand, therefore, stringent punishment has been provided for in the said Act. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 10 of the Act in the matter, so that the same may act as deterrent for other impending offenders.
3. Per contra, the learned defence counsel has submitted that convict is a young man aged about 38 years. He has already undergone about 32 months imprisonment as under-trial in this case, during which period, his conduct was never questioned by the Judgment 18 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam Jail authorities. In the end, it is submitted that the convict is the first time offender as such benefit of Probation of Offender's Act be granted to 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.
5. In my considered opinion, the nature of offence committed by the convict does not demand that he be released on probation. Interest of justice would be met, if the convict is sentenced to Rigorous Imprisonment for a period of 5 years along with fine of Rs. 5,000/-, in default SI for a period of 1 month for the offence punishable u/s 10 POCSO Act & Rigorous Imprisonment for a period of 5 years along with fine of Judgment 19 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam Rs. 5,000/-, in default SI for a period of 1 month for the offence punishable u/s 363/366 IPC each. Sentence imposed on the convict shall run concurrently. Benefit of Section 428 Cr.P.C is accorded to the convict.
6. Compensation: 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.
7. 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 legislation, 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 Judgment 20 of 16 SC No: 180/13 State Vs. Suresh Mehto @ Aslam and develop. Section 33(8) POCSO Act, also mandates that in addition to the punishment to the accused, the victim be granted compensation for physical and mental trauma caused to him and for the rehabilitation of the victim.
8. Therefore, in order to provide Restorative and Compensatory Justice to the victim, Rs. 1,00,000/- (Rs. One lac only) is granted to the victim as compensation. Learned Secretary, D.S.L.S.A, North District, New Delhi shall ensure that the said amount is given to the parents of the victim within one month on receipt of this order and shall further ensure that the said amount is disbursed in such a manner that the same be used for welfare and rehabilitation of the victim.
9. A copy of this order along with the particulars of the victim be sent to learned Secretary, D.L.S.A, North District., Rohini Courts, Delhi for necessary compliance.
Judgment 21 of 16
SC No: 180/13 State Vs. Suresh Mehto @ Aslam
10. Convict is informed of his 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, Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 34-37, Lawyer Chamber Block, High Court of Delhi.
11. A copy of judgment and copy of order on sentence be supplied free of cost to convict.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
12.01.2016
Judgment 22 of 16