Delhi District Court
Sc No. 43/15 : Fir No. 97/15 : Ps ... vs Bittu @ Rajesh on 9 January, 2017
SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 43/15)
Unique Identification No.: 02404R0088182015
State V/s Bittu @ Rajesh
FIR No. : 97/15
U/s : 376(2) (f)/377/506 IPC
& Sec. 4 of POCSO Act
P.S. : Kanjhawala
State V/s Bittu @ Rajesh
S/o Sh. Phool Singh
R/o H. No. 928, VPOLadhpur,
Delhi.
Date of institution of case : 04.03.2015
Date of arguments : 21.12.2016
Date of pronouncement of judgment : 04.01.2017
J U D G M E N T :
1.The facts of the case as borne out from the record are that in a three story building at Village Ladpur, Delhi (real address withheld) at ground floor Page 1 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh family of Tauji of prosecutrix A, a girl aged about 15 years ( herein after referred to as prosecutrix) had been residing, at the first floor she had been residing with her mother and two brothers whereas at second floor the accused, her real uncle ( also step father) had been residing. The father of prosecutrix had expired about 34 years prior to the recording of FIR in the matter whereafter her mother had re married the accused as per their family custom.
On 03.02.2015 at about 11:40 a.m. an information was received at PS Kanjhawala through PCR, on the call of the mother of prosecutrix that the accused had committed rape upon prosecutrix. The said information was recorded as DD No. 29B at P S and was entrusted for investigation to WASI Anita (herein after referred to as IO), who went to the spot mentioned in the said DD along with lady Ct. Pushpa. At the spot the prosecutrix and her mother were found present. IO made preliminary inquiry from them and found it to be a case of sexual assault and as such she took the prosecutrix and her mother to SGM Hospital and got the medical examination of the prosecutrix conducted whereby she was found to be pregnant of 2830 weeks. Thereafter IO called a counselor from NGO and got the prosecutrix counseled and recorded her statement to the effect that about 78 months prior to that date, the accused had committed penetrative sexual assault upon her in their house, after putting her under criminal intimidation . Thereafter he kept on committing sexual assault upon her as and when he got an opportunity to do so. She did not report the matter to anybody in the family, however her mother became suspicious after noticing her baby bump . Thereafter she Page 2 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh communicated the entire facts to her mother, who conducted urine pregnancy test upon her which was found positive. The matter was accordingly reported to the police. On the basis of aforesaid statement present case FIR was registered and investigation was carried out by IO. Accused was arrested and his disclosure statement was recorded. Exhibits were deposited in the Mal khana. Statement of the prosecutrix u/s 164 Cr.P.C was got recorded. Site plan of the place of incident was prepared. Birth certificate of the prosecutrix was got collected. Exhibits were got sent to FSL, Rohini. As the prosecutrix was pregnant, her samples could not be taken. After conclusion of the investigation, charge sheet was prepared and filed in the court.
Subsequently on, 28.04.2015, prosecutrix gave birth to a child, who was declared dead on 29.04.2015 and thereafter, postmortem on the body of child was conducted. The blood sample of child and accused were sent to FSL and after receipt of FSL Result, supplementary charge sheet was filed against the accused.
2. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. Arguments on the point of charge were heard and on 18.03.2015, charges 506 IPC and u/s 5 (j) (ii), (n) and (p) of POCSO Act 2012(hereinafter referred to as the "Act"), punishable u/s 6 of Act, alternatively u/s 376 (2) (h)
(n)/377 IPC, were framed against the accused, to which he pleaded not guilty and claimed trial.
Page 3 of 34SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh
3. In order to prove the charges against the accused, prosecution examined as many as 15 witnesses, whereafter the PE in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the prosecutrix at the instance of her mother. Accused examined himself in defence and thereafter, DE was closed.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Sh. Subham Asri, learned Amicu Curie, for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories :
(a) Prosecutrix, her family member and public witnesses
(b) Evidence with regard to the age of the prosecutrix
(c) Medical and Forensic Evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation
(a) Prosecutrix, her family members and public witnesses
5. Prosecutrix, in the present case was examined as PW2 and the relevant portion of her testimony is as under : "xxx ..... Mere papa ki karib teen saal pehle death ho chuki hai Page 4 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh aur meri mummy ko papa ki jagah par Safari Karamchari ki naukari mil gayi thi. Meri mummy subah naukari par jaldi nikal jaati hai. Papa ki death ke kuch mahino baad, family ke logo ke kehne par meri mummy se mere chacha ne maang bhar kar shaadi kar li thi, aur uske baad mere chacha Rajesh @ Bittu, (accused) hamare saath rehne lage. Mere dono bhai bhi kaam karte the aur subah hi ghar se chale jaate the. Mere chacha bhi safai karamchari ka kaam karte hai. Mere chacha kaam par nahi jate the aur wo apne daroga (Sanitary Incharge) ko Rs.4,000/ her mahine de dete the jiss se unki hazaari (attendance) lagti rehti thi. Mere chacha jyada time ghar par hi rehte the. Pichle saal diwali ke aas paas ki baat hai. Dophar ke 1.00 baje ki baat hai, mein ghar par akeli thi. Mere chacha bahar se aaye the aur meine unhe khana de diya.
Uske baad, mein juthe bartan unke kamre se lekar jaise hi jaane lagi, unhone mujhe piche se pakad liya aur phir kamre ki kundi laga di aur mujhe darakar, dhaka maarkar palang par daal diya aur mere saare kapade utarwa diye. Phir unhone mere saath galat kaam kiya.
Q. Beta, kya galat kaam kiya?
Court Observation: The witness is hesitating in giving the Page 5 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh answer to this question. However, after some time, she has answered as under :
A. Jab, meri mummy or tai ne mera urine test karaya tha, to pet mein mere chacha Rajesh ka bacha hi paya.
Q. Beta, galat kaam se aapka kya matlab hai?
A. Mere chacha ne apne kapade utarkar, mere kapade bhi utar diye the aur mere pisab ki jagah par apne pisab karne wala daal diya tha. Usne mere saath bahut galat tarike se galat kaam kiya tha.
Q. Beta, bahut galat tarike se aapka kya matlab hai? A. Usne, mere saath laterine karne wali jagah se bhi galat kaam kiya tha.
Mein shor nahi kar saki kyunki usne mere muh beench rakha tha aur mujhe dara rakha tha. Mere chacha ne mere saath aisa kai baar kiya. Mein unke dar ki wajah se ye baat kisi ko nahi bata saki. Ek din meri tai ghar par aayi hui thi aur unhone mujhe dekhkar meri mummy ko kaha ki lakdi ko doctor ko dikha kar aao. Meri mummy mujhe doctor ke paas le gai, to doctor ne mummy ko kaha ki mujhe gas ki problem hai aur phir mummy mujhe wapas ghar par le aayi. Baad mein mummy ne mujshe pucha to Page 6 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh meine mummy ko saari baatein bata di. Meri mummy ne mera ghar par hi mera urine test kiya aur uss par unko pata chala ki mein pregnant hu. Mummy ne phir police ko phone kar diya. Meine police ko mummy ke saamne saari baatein bata di thi. ....
Pehle bhi mein court mein aayi thi jahan par mera bayan hua tha aur mein judge sahab ko ye bataya tha ki pehli baar mere chacha ne mujhe current lagar kar daraya tha aur mere saath galat kaam kiya tha. Mere chacha ne meri ungliya bhi chaku se kaat thi......
February ya March' 2015 meine ek bache ko bhi janam diya tha, jo paida hone ke baad mar gaya. Mein SGM hospital mein kai din tak admit rahi thi.
xxx"
She identified her signatures on her statement/complaint Ex. PW2/A, on her statement recorded u/s 164 Cr.P.C as Ex. PW2/B and on the site plan Ex. PW 2/C. During crossexamination by learned Amicus Curie, she stated as under : "xxx Mera ghar teen manzila hai. Ground floor par mera tau wah tai rehte hai. First floor par hum log Page 7 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh rehte hai aur second floor par mere chacha (accused) rehte the. Ye kehna sahi h ki hamare floor par jaane ke liye staircases ground floor par tau tai ke kamre se nikalti hai. Ye kehna sahi h ki pehli manzil ki awaze, ground floor par sunai deti hai awem ground floor ki awazein pehli manzik par bhi sunai deti hain.
Q Beta ye batao ki jab mulzim ne aapke saath pehli baar galat kaam kiya tha ko kya aapko bleeding hui thi?
A Haan, hui thi.
Ye kehna sahi h ki ye khoon palang ki chadar aur mere kapado par bhi lag gaya tha. Meri mummy ghar ke kapade awem mere kapade dhoti hai. Vol. Kyunki meri tabiyat thik nahi rehti. Ye kehna sahi h ki pehle bhi mere kapade meri mummy dhoti thi. Ye kehna sahi h ki meine apne mummy ko accused ke bare mein koi shikayat nahi kari jab tak meri tai ne mujhe doctor ko dikhane ke liye nahi keh diya. Meine doctor sahab ko apni doctori jaanch ke dauran, apni tai wah mummy ke saamne bata diya tha ki accused ne diwali ke aas paas mere saath galat kaam kiya tha. Doctor ne mera achi tarah se checkup kar liya tha aur usne mujhe gas ki problem batai thi. Doctor ne mujhe kaha tha ki mein maa banane wali hu. Doctor Page 8 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh ke paas jaane se pehle, meine apni mummy ko bataya tha ki mera mahina aana bandh ho gaya. Vol. Ye baat meine mummy ko uss time batai thi jab meri tai aur meri mummy mujhe doctor ke paas le gayi thi. Doctor ke paas jab mein apni tai aur mummy ke saath gai thi, tab mere pet mein 7½ mahine ka bacha tha.
Mujhe nahi pata ki meri mummy ki shaadi mere papa se kab hui thi.
Ye kehna sahi hai ki mere asli papa ki death ke baad, meri mummy accused se shaadi nahi karna chahti thi. Ye baat thik hai ki meri maa ko accused shuru se hi pasand nahi tha. Ye kehna sahi hai ki meri mummy aur accused ke beech mein choti choti baaton par takrao hota rehta tha. Ye kehna sahi hai ki takrao ke waqt mere tau tai bhi kai baar beech bacaho karne aa jate the. Ye kehna sahi hai ki meri mummy itni dukhi ho jaati thi aur kehti ki iss aadmi se alag hokar kiraye ke kisi aur makaan mein reh le. Ye kehna sahi hai ki mein bhi chahti thi ki accused iss ghar se nikal jaye kyunki wo meri mummy se aksar ladai karta rehta tha. Ye kehna sahi hai ki accused naa to mujhe aur naa hi meri mummy ko phuti aankh bhata tha. Ye kehna sahi hai ki jab accused jail gaya to Page 9 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh meine aur meri mummy ne rahat ki saans li. Ye kehna galat hai ki accused ne mere saath koi galat kaam nahi kiya.
xxx"
6. PW6 Smt. Pooja, mother of the prosecutrix, deposed that after about 1 or 1 1/2 years of the death of her husband, she had married with accused, who was her devar, after intervention of her family members as per customs and thereafter, accused started residing with her on her floor. She further deposed that she used to leave home early in the morning and come back in the evening hours and her sons also used to leave home for their respective work and prosecutrix used to remain in the house. She further deposed that on 03rd day of a month in the year 2015, about 34 months back, prosecutrix had informed her that accused had been doing wrong act with her in her absence and that on one day accused came in the afternoon at about 1.00 PM and when she was taking back the utensils of accused, he dragged her in his room and made her to lie on the bed and committed wrong act with her. In reply to a question, she clarified that accused had established physical relations with the prosecutrix forcibly. She further deposed that after coming to know about this fact, she conducted pregnancy test of prosecutrix through a kit and came to know that she was pregnant and thereafter, she called the police at number 100. She further deposed that police arrived and recorded the statement Ex. PW2/A of prosecutrix , wherein she named the accused. She further deposed Page 10 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh that thereafter, prosecutrix was taken to Sanjay Gandhi Hospital, where doctor had disclosed about 71/2 months pregnancy of prosecutrix and thereafter, she was admitted in the hospital and delivered a baby boy, who died on the next day. She further deposed about recording of her statement as well of prosecutrix by the police and about preparation of site plan Ex. PW2/C of the room of the accused by the police. She further deposed that prosecutrix pointed towards a bedsheet of red and golden colour with prints, which was lying on the bed and told the IO that it was the same bedsheet, on which accused used to commit wrong act with her and thereafter, said bed sheet was taken into possession by the IO after sealing the same vide seizure memo Ex.PW6/X. She further deposed about seizure of the birth certificate Ex. PW5/A of prosecutrix issued by MCD vide memo Ex.PW 6/A, about admission of the prosecutrix in the hospital and about recording of her statement by the police.
During crossexamination by learned Amicus Curie, she stated that she was married to the brother of accused about 17 years ago, however, she could not tell the date, month and year of her marriage. She admitted that she was not an eye witness to the incident and the said factum was told to her by prosecutrix. She further stated that prosecutrix never showed her any kind of injury caused upon her body by the accused. She admitted that she used to wash the clothes of prosecutrix along with other domestic clothes and stated that she never noticed any blood stain on the clothes of the prosecutrix as well as bed sheet. She denied that prosecutrix did not sign the complaint Ex.PW2/A as she was not supporting Page 11 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh the version given by her to police official or that was the reason that the signatures of prosecutrix were not obtained on Ex.PW2/A. She denied that in order to get rid of accused, she got him falsely implicated in the present case or that the statement Ex.PW2/A was dictated by her to the IO. She denied that she had not noticed any blood stains on the clothes of prosecutrix or on the bedsheet while washing as no such incident had taken place or that prosecutrix got pregnant from some other person and not from the accused. She further denied that she had not got the prosecutrix medically examined before the registration of FIR, as she never complained about any gynecological, including stomach problem.
7. PW9 Sh. Naresh Kumar, uncle of prosecutrix, deposed that on 01.05.2015, he had identified the dead body of the child of the prosecutrix, at the mortuary of SGM Hospital, vide his statement Ex. PW9/A and thereafter, the dead body was handed over to his bhabhi Pooja, vide memo Ex. PW9/B.
(b) Evidence with regard to age of the prosecutrix
8. The prosecution has examined PW5 Sh. Meetha Lal Meena, APHI, Birth & Death, Narela, NDMC, Delhi, who produced the record regarding date of birth of the prosecutrix and proved copy of birth certificate as Ex. PW5/A and copy of entry in the register of births as Ex. PW5/B and deposed that as per the record, prosecutrix was born at home on 10.06.1999 and on the basis of information given Page 12 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh by her father, her name was registered in their office on 14.09.1999.
(b) Medical and Forensic evidence
9. PW4 Dr. Anubha Verma, SR Gynae, SGM Hospital, Mangol Puri, Delhi, had examined the prosecutrix vide MLC Ex. PW4/A and deposed that prosecutrix was found pregnant of 2830 weeks and her mother had refused for prosecutrix's internal gynecological examination.
10. PW11 Dr. Kamal Kumar, SR, Pediatric, SGM Hospital, Delhi, deposed that on 29.04.2015, he had taken the blood sample of the new born baby and handed it over to PW7 W/SI Anita. He proved the MLC as Ex. PW7/H prepared by him in this regard.
11. PW12 Dr. Ankita, SR Gynae, SGM Hospital, Delhi, deposed that on 29.04.2015, prosecutrix, who was seven months pregnant, was brought to the hospital and her delivery was conducted and baby was sent to nursery. She proved her detailed report as Ex. PW12/A prepared in this regard.
12. PW13 Dr. Manish Ranjan, SR, Pediatric, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi, proved the detail death summary report of child as Ex. PW7/K and opinion regarding the cause of death of child as Ex. PW7/K1 and deposed regarding the same.
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13. PW15, Dr. Dhruv Sharma, Asstt. Director (Biology), FSL, Rohini, had examined the exhibits of the present case and proved his detailed DNA Finger Printing Report as Ex.PW15/A. He deposed that after examination of the exhibits, he opined that DNA profiling (STR analysis) was sufficient to conclude that the source of Exhibit '1' (Blood sample of the accused) was the biological father of the source of exhibit '3'. (blood sample of new born baby).
During crossexamination by learned Amicus curie, he admitted that It is correct that DNA matching profile was not 100 % accurate, but it was 99.99999.....% correct. He had denied that he had prepared the report at the instance of the IO just to connect the accused scientifically in the present case.
(d) Evidence of Formal witnesses
14. PW1 HC Anand, was lying posted as duty officer in PS Kanjhawala at the relevant time and he proved the computerized copy of FIR as Ex. PW1/A, endorsement made by him on rukka as Ex. PW1/B and certificate u/s 65B of Evidence Act as Ex. PW1/C. He also proved the copy of DD no. 29B dated 03.02.2015 as Ex. PW1/D, which was recorded regarding commission of penetrative sexual assault upon the prosecutrix by the devar of the caller and deposed that said DD was assigned to PW7 W/SI Anita, who along with L/Ct. Pushpa proceeded for the spot.
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15. PW3, HC Raj Kumar, was working as MHCM at PS Kanjhawala at the relevant period and he proved the entries made by him in register no. 19 and 21 as Ex. PW3/A to Ex. PW3/F and Ex. PW3/X, at the time of deposit of case property with him and at the time of sending the same to FSL Rohini respectively and deposed regarding the same.
16. PW8 Ct. Sandeep had taken the exhibits of the present case to FSL Rohini, vide RC No. 59/21/15, and deposited the same there and deposed regarding the same.
(e) Evidence of police officials of investigation
17. PW7 W/SI Anita, IO of the case, deposed that on 03022015, after receipt of DD no. 29B, Ex.PW1/D, she along with lady Ct. Pushpa went to the spot, where prosecutrix and her mother were found present and mother of the prosecutrix informed her that her dever Bittu @ Rajesh had committed rape upon the prosecutrix. She further deposed that after coming to know about this, she took the prosecutrix and her mother to SGM Hospital along with lady Ct. Pushpa and got the prosecutrix medically examined. She further deposed that after getting the prosecutrix counseled through NGO counselor, she collected her MLC, wherein UPT was found positive and the prosecutrix was admitted in hospital. She further deposed that she recorded the statement Ex. PW2/A of the prosecutrix and on the basis of said statement, she made her endorsement on the rukka Ex. PW1/B and Page 15 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh got the case FIR registered. She further deposed about arrest and personal search of the accused vide memos Ex. PW7/A and Ex. PW7/B, about recording of his disclosure statement Ex. PW7/C, about pointing out of the place i.e. the bed lying in a room of the first floor of H. No. 928 where he had committed rape upon her, vide memo Ex. PW7/D, about getting him medically examined vide MLC Ex. PW7/E and about deposit of his exhibits in Mal khana. She further deposed about getting the statement of prosecutrix recorded u/s 164 Cr.P.C vide application Ex. PW7/F and about collecting copy thereof vide application Ex.PW7/G. She further deposed about preparation of site plan Ex. PW2/C at the instance of prosecutrix and her mother, about collecting document Ex. PW5/A regarding age of the prosecutrix and about its seizure vide memo Ex.PW6/A. She further deposed that after completion of proceeding on that day at the spot, she had taken the prosecutrix and her mother again to the hospital and got the prosecutrix admitted there. She further deposed about sending the exhibits to the FSL Rohini, about recording the statements of the witnesses, about seizure of bed sheet Ex. P1 used at the time of commission of offence, vide seizure memo Ex.PW6/X and about preparation of charge sheet and filing the same in the court. She further deposed that on 28042015, she was informed by the complainant that prosecutrix had delivered a male child in the SGM Hospital and thereafter, she collected the MLC Ex. PW7/H of new born child and taken into possession the blood sample of the child vide seizure memo Ex.PW7/J. She further deposed that after receiving information about death of the child, she again went to the hospital Page 16 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh and got the dead body of the new born child preserved for the purpose of postmortem, but doctor refused for postmortem as it was a natural death. She further deposed that she had sent the bed sheet and blood sample of the new born to FSL Rohini and after collecting the FSL result Ex. PW7/M and the treatment documents Ex. PW7/L of the prosecutrix and her new born child, she prepared the supplementary charge sheet and filed the same in the court through SHO.
During crossexamination by ld. Amicus Curie, she denied that she had not investigated the matter fairly or sincerely or that took the version of the prosecutrix as well as her mother to be gospel truth or that she did not join any of the family members as the witness in the present case as no one had supported the false case lodged by the prosecutrix and her mother. She denied that prosecutrix had filed the complaint against accused at the instance of her mother, who was unhappy with her marriage with him. She further denied that after taking due legal assistance from the prosecution branch before filing of charge sheet, she keep on changing her investigation or that she took the blood sample of the accused and sent it to FSL ante time and ante dated and this was the reason, no seizure memo was prepared by her regarding the same or that she had managed the biological exhibits in the matter in connivance with the para medical staff in the hospital or had manipulated the same upon the other exhibits with whom the same was to be compared later in the FSL.
18. PW14 ASI Jagbir, subsequent IO of the case, deposed that on 01.05.2015, Page 17 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh after being handed over further investigation in the case, he was informed by PW 7 W/SI Anita that on 28.04.2015, the prosecutrix had delivered a male child, who had died on 29.04.2015 and on her directions the dead body of the said child had been preserved and thereafter, he got the dead body of the said child identified through PW6 Smt. Pooja and PW9 Sh. Naresh, vide statements Ex.PW9/A and Ex.PW10/A respectively and then he made a request to the Incharge Forensic Department for conducting postmortem upon the dead body of that child vide application Ex.PW8/A, but the concerned doctor/Incharge refused for the postmortem of the child vide death summary already ExPW7/K and the relevant report in this regard was prorved as ExPW7/K1. He further deposed about handing over the dead body of child to Smt. Pooja, maternal grand mother of that child vide memo Ex. PW9/B and about handing over the further investigation to PW7 W/SI Anita.
19. PW10 Ct. Baljeet, had joined the investigation of the present case with IO/PW14 ASI Jagbir Singh and deposed that IO got the dead body of the child of the prosecutrix identified through PW6 Smt. Pooja and PW9 Sh. Naresh Kumar vide their statements Ex. PW10/A and Ex. PW9/A, respectively, in his presence and thereafter, dead body was handed over to PW6 Pooja.
Arguments advanced at bar Page 18 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh
20. The Ld. Addl. P P for the State has very vehemently argued that the prosecutrix was a child within the meaning of Section 2 (d) of the Act and she has been consistent in all her statements and evidence recorded in the matter with regard to the manner in which she was subjected to repeated penetrative sexual assault by the accused, who was none other than her step father. It is further argued that the forensic evidence conclusively proves that the prosecutrix was subjected to penetrative sexual assault by the accused and as such the conviction of the accused for the charged offence has been prayed for.
21. Per contra, the Ld. Amicus Curiae Sh. Shubham Asri, advocate has very vehemently argued that the accused was falsely implicated in this case by the mother of prosecutrix by using the prosecutrix as a pawn, with a view to usurp the share of accused in the joint family property. It is further argued that there is huge unexplained delay in reporting the alleged matter to the police. In the end it is argued that the blood sample of accused was illegally obtained by the IO and a part thereof was projected as blood sample of new born baby of the prosecutrix to obtain favourable FSL result and as such the acquittal of the accused in the matter has been prayed for.
22. I have given thoughtful consideration to the arguments advanced at bar and gone through the entire material on record.
Page 19 of 34SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh Plea with regard to delay in reporting the matter to the police
23. As per the case of prosecutrix the accused had been subjecting her to repeated penetrative sexual assault for the last about 78 months prior to the date of reporting the matter to the police. She has consistently stated that right from the day when the accused had committed sexual assault upon her for the first time till the last encounter the accused had kept her under criminal intimidation and as such she could not muster courage to report the matter either to her mother or to her other family members and the matter came to be known to her mother when she noticed her baby bump.
24. The Ld. Amicus Curiae has very vehemently argued that the so called delay in reporting the matter has occurred because the mother of the prosecutrix had concocted a false story, after taking legal advice and undergoing deliberations and as such a coloured version has come on record. He has relied upon the law laid down in case titled as Rajinder Prasad & Anr. vs. State, in Crl. A. 8/2000, decided on 19.05.2014, wherein the Hon'ble High Court of Delhi, has been pleased to hold that : "xxx In criminal trail, one of the cardinal principles is registration of earliest information as FIR. As observed by Hon'ble Supreme Court in Lalita Kumari V/s Govt. of Uttar Pradesh and Ors., MANU/SC/1166/2013 : (2014) 2 SCC1, the object Page 20 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh sought to be achieved by registering the earliest information as FIR is interalia twofold:One, that the criminal process is set into motion and is well documented from the very start ; and Second, that the earliest information received in relation to the commission of a cognizable offense is recorded so that there cannot be any embellishment, later. In case there is delay in lodging the FIR, the court looks for plausible explanation for the delay in lodging the report. The reason is obvious. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished the version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming to the police or before to the court, the court always views the allegation with suspicion and looks for satisfactory explanation. If no such explanation is found, the delay is treated as fatal to the prosecution case.
xxxx"
25. The reliance has also been placed upon Thulia Kali v. The State of Tamil Page 21 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh Nadu, MANU/SC0276/1972: (1972) 3 SCC 393, wherein it was held that the delay in lodging the first information report quite often results embellishment as a result of afterthought. On account of delay the report not only gets bereft of the advantage of the spontaneity, but also danger creeps in, of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation.
26. No doubt that the court shall have to bear in mind that different people /witnesses react differently in differently situations, whereas some become speechless, some start wayling, while some other run away from the scene and yet there are some, who may come forwarded with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction.
27. On the other hand, the Ld. Addl. PP has relied upon the judgment titled as Ramdas & Ors. Vs. State of Maharashtra, (2007) 2 SCC 170, wherein Hon'ble Supreme Court has been pleased to hold that : "xxx
24. ......... In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police Page 22 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in Page 23 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh each case and is a matter of appreciation of evidence by the court of fact.
xxx"
28. I have considered the decisions cited by both the sides. In my considered opinion the accused was in a fiduciary relationship with the prosecutrix being her step father (brother of her deceased father) . The mother and brothers of the prosecutrix used to leave for their work in the morning and would return home in the evening whereas the accused and prosecutrix used to remain at home . Therefore, the accused had opportunity to groom the prosecutrix to succumb to his pressure. It has come on record in the statement of prosecutrix recorded U/S 164 CrPC Ex. PW 2/B that to criminally intimidate her the accused had electrocuted her and had also inflicted injuries upon her with a knife. This court had noticed the scars of the healed injuries of the prosecutrix. As held by the Hon'ble Supreme Court in Ramdass ( supra) the conduct of the prosecutrix in not reporting the matter to her mother and other relatives can be perfectly understood to be justified as she had been frightened of the conduct of accused, who used to remain at home all the time. It is clearly evident that no delay in reporting the matter to the police took place after the prosecutrix disclosed about the facts to her mother. Therefore, the prosecution has explained the delay in reporting the matter to the police.
Plea with regard to the false implication of accused.Page 24 of 34
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29. This has to be born in mind that the present case is under Protection of Children from Sexual Offences Act and this act was enacted with the objective that the children of tender age are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in condition of freedom and dignity. The aims and object of the act further consider it imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical emotional, intellectual and social development of the child. The preamble of the Act reads as under : 'An act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.'
30. Therefore, the act is a special act, which has been enacted bearing in mind the child psychology as well as the latent sexual abuse of children in the society as well as family, which is apparent from the provisions of Section 29 and 30 thereof, which are reproduced as under :
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Page 25 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
30. Presumption of culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
31. In the light of the aim and objects of the Act and the specific provisions like Section 29 and 30 of the Act, reproduced hereinabove, the presumption of innocence of the accused as is available to him under ordinary criminal jurisprudence is not available, in child abuse jurisprudence and the presumption, if any, available under the Act are to be considered strictly in accordance with the provisions of the Act and not under the ordinary criminal jurisprudence.
32. The defence of the accused as borne out from the crossexamination of Page 26 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh prosecutrix and her mother as well as his own evidence is that the mother of prosecutrix was not happy in her married life with the accused and she wanted to usurp his share in the ancestral property and as such, she got him falsely implicated in this matter by using prosecutrix as a pawn. The accused has not led any positive evidence to prove his defence. Admittedly, the other family members of the accused had been residing in the same house, but none of them came forward to support his defence. The onus to prove his innocence in the matter was very heavy upon the accused, which he has miserably failed to discharge.
Plea with regard to FSL
33. The FSL result Ex. PW7/M clearly establishes that the accused was the biological father of the child delivered by the prosecutrix. The accused has taken defence that the IO had got collected his blood sample illegally, a part whereof was passed on as the blood sample of new born baby and as such, the FSL result was obtained illegally. I do not find any substance in this averment of the accused for the simple reason that no suggestions were given to PW3 HC Raj Kumar, MHC(M) that the exhibits of the case were tampered with by the IO. Similarly, PW11 Dr. Kamal Kumar, was also not crossexamined by the defence. He was the most material witness as he had collected the blood sample of the new born baby and had handed over the same to the IO after sealing the same. The aforesaid defence taken by the accused on the face of it appears to be an afterthought and is not liable to be believed.
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34. Accordingly, the prosecution has succeeded in proving charges against the accused for the offence punishable u/s 6 of the Act and Section 506 IPC. Consequently, the accused stands convicted of the aforesaid offences.
35. Let the convict be heard on the point of sentence on 09.01.2017.
Announced in the open Court (Vinod Yadav)
on 04.01.2017 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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IN THE COURT OF VINOD YADAV:ADDL. SESSIONS JUDGE01 (NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI (Sessions Case No. 43/15) Unique Identification No.: 02404R0088182015 State V/s Bittu @ Rajesh FIR No. : 97/15 U/s : 376(2) (f)/377/506 IPC & Sec. 4 of POCSO Act P.S. : Kanjhawala State V/s Bittu @ Rajesh S/o Sh. Phool Singh R/o H. No. 928, VPOLadhpur, Delhi.
....Convict
09.01.2017
ORDER ON SENTENCE
Pr: Ld.Addl.PP for state.
Convict produced from J.C with Sh. Subham Asri, ld. Amicus Curie.
Page 29 of 34SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh ORDER ON THE POINT OF SENTENCE In the present case, the convict - Bittu @ Rajesh has been convicted u/s 506 IPC and 6 of 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 learned Amicus Curie, for the convict.
2. The learned Addl. PP has very vehemently argued that convict had committed repeated penetrative sexual assault upon her step daughter, a minor girl aged about 15 years and made her pregnant and tarnished the relationship between a father and daughter and that in view of the serious nature of offences, the convict does not deserve any leniency and she prays that maximum sentence prescribed under Section 506 IPC and Sec. 6 of the Act, be awarded to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned Amicus Curie for the convict has argued that convict is a middle aged persons aged about 40 years and at the time of alleged incident, convict used to work in MCD. He further submitted that convict is first time offender having clean antecedents and he has remained in Jail for a period of more than two years, during trial of the case. He prays that in view of the aforesaid facts and circumstances, a lenient view may be taken in sentencing the convict.
4. I have given thoughtful consideration to the arguments advanced by Bar by both the sides and to the facts and circumstances of the case in totality. The offence, for which Page 30 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh the convict has been convicted in the matter, is highly derogatory. It stands proved that the convict had committed repeated penetrative sexual assault upon the prosecutrix and made her pregnant and thereafter, threatened her for dire consequences. However, considering that convict is first time offender having no previous criminal record, I take a lenient view and I hereby award the following sentence to convict Bittu @ Rajesh :
(i) For offence u/s 6 of POCSO Act, the convict is sentenced to rigorous imprisonment for a period of 10 (ten) years, along with a fine to the tune of Rs. 5,000/, in default of payment of fine, to further undergo simple imprisonment for three month.
(ii) For offence u/s 506 IPC, he is sentenced to rigorous imprisonment of three years along with a fine to the tune of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one month.
Both these sentences shall run concurrently.
Benefit u/s 428 Cr.PC be also given to the convict.
5. Coming now to the aspect of compensation to the child victim, the Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Page 31 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh Fundamental Rights of Personal Liberty and Life.
6. Even otherwise, the concept of welfare and well being of children is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire selfconfidence and self respect and a balance view of life with full appreciation and realization of the role which they have to play in the nation building Page 32 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goaloriented perambulatory introduction."
7. Therefore, in order to provide Restorative and Compensatory Justice to the victim girls, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant Page 33 of 34 SC No. 43/15 : FIR No. 97/15 : PS Kanjhawala : State V/s Bittu @ Rajesh compensation of Rs. 1,00,000/ (Rs. One lac only) to the prosecutrix. The said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
8. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that if he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
A copy of judgment and copy of order on sentence be supplied free of cost to convict against receipt.
File be consigned to record room.
(Announced in the open ) (Vinod Yadav)
(Court on 09.01.2017) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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