Delhi District Court
'N'(Identity Is Being Withheld Being ... vs The State (Nct Of Delhi) on 31 August, 2015
Criminal Appeal No. 17/15 D.O.D.: 31.08.2015
IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS
JUDGE04 (NORTH): ROHINI COURTS: DELHI
Criminal Appeal No. 17/2015
Unique Case ID: 02404R0189362015
'N'(Identity is being withheld being JCL)
R/o Village Rakam Sera,
Post Dhedouli, PS Gumla,
District Gumla, Jharkhand ...Appellant
Versus
The State (NCT of Delhi) ...Respondent
Date of Institution : 22.05.2015
Date on which Order was reserved: 31.08.2015
Date on which Order pronounced : 31.08.2015
JUDGMENT:
1. The present appeal is directed against the judgment dated 22.04.2015 whereby the appellant has been found involved in commission of offence punishable U/s 376 IPC and Section 4 of POSCO Act as also against the order dated 30.04.2015 whereby the appellant has been directed to be kept at Special Home (Manju Ka Tila) for two years, passed by Juvenile Justice Board (In short, JJB).
2. In brief, the case of prosecution was that on unknown date and time about 3035 days prior to 20.04.2013, the appellant had committed JCL Vs. State Page 1 of 7 Criminal Appeal No. 17/15 D.O.D.: 31.08.2015 penetrative sexual assault upon minor girl namely 'S' (identity of prosecutrix being withheld) aged about 14 years at M218, Shakur Pur, Delhi and also threatened to kill her on disclosing the said incident to any person.
3. After filing of report before Juvenile Justice Board, notice for offences punishable U/s 376/506 IPC and Section 3/ 4 POSCO Act was given to appellant, who did not admit his involvement and claimed enquiry. During the course of enquiry, six witnesses namely PW1 Ms. Urmila, PW2 Sh. Tija Khajur, PW3 Ms. 'S' (prosecutrix), PW4 W/SI Rajbala, PW5 W/SI Sushila Rana and PW6 Dr. R. Kappu were examined before Juvenile Justice Board. Thereafter, statement U/s 281 Cr.PC of appellant was recorded. Appellant pleaded his innocence and claimed that he was falsely implicated in the case. However, he did not examine any witness in his defence.
4. After considering the evidence available before it, Juvenile Justice Board came to the conclusion that appellant was involved in the commission of offence punishable U/s 376 IPC and Section 4 of POSCO Act and consequently, passed order dt. 30.04.2015 U/s 15 of Juvenile Justice Act.
5. The impugned judgment dt. 22.04.2015 and subsequent order dated 30.04.2015 have been assailed mainly on the grounds that JJB did not appreciate the testimonies of prosecution witnesses more particularly that of PW3 and PW1 in correct perspective and the opinion formed by JJB was based upon assumption that appellant had forcibly made physical relationship with prosecutrix despite the fact that medical report was silent about any sign or entry or any spot of blood/semen.
6. Ld. counsel of appellant vehemently argued that Juvenile Justice JCL Vs. State Page 2 of 7 Criminal Appeal No. 17/15 D.O.D.: 31.08.2015 Board did not comply with the provision contained in Section 15(2) of Juvenile Justice (Care & Protection of Children) Act 2000 (herein after called JJAct) while passing the order dated 30.04.15 as JJB failed to called Social Investigation Report or any relevant report from native place of the appellant. He also submitted that there are contradictions and improvement in the statements made by prosecutrix as PW3 and PW1 Ms. Urmila. Therefore, the impugned judgment and order are liable to be set aside.
7. On the other hand, Ld Additional PP of State has supported the impugned judgment and subsequent order passed by JJB. He relied upon the testimony of prosecutrix namely 'S' (PW3) as well as that of PW1 Urmila in support of his contention that both the said witnesses have supported the case of prosecution on all material points. He also referred to MLC (Ex. PW6/A) in order to bring his point that ocular evidence in the form of testimonies of prosecutrix and PW1 Ms. Urmila coupled with medical evidence available on record, clearly established the guilt of appellant for the offences for which he has been found involved by concerned JJB. He therefore, urged that appeal is liable to be dismissed.
8. I have already heard Sh. Rishi Saini Adv on behalf of appellant and Sh. Pankaj Bhatia, Ld Additional PP on behalf of State. I have also gone through the material available on record.
9. From the perusal of record summoned from concerned JJB, it is quite evident that FIR in question was registered on the statement of prosecutrix namely 'S' on 20.04.2013. In the said statement, the prosecutrix claimed that she was resident of Jharkhand and had studied upto 6th class. JCL Vs. State Page 3 of 7
Criminal Appeal No. 17/15 D.O.D.: 31.08.2015 One boy namely Kailash who was also resident of same village, lured her and handed over her custody to his friend Prakash. Said Parkash brought her alongwith one more girl to Delhi abut two months back and handed over them to one Bhola Sahu. Said Bhola Sahu got her employed in few houses from time to time as maid servant against her wishes and lastly, she was kept at the office of one Ram Niwas situated at M218, Shakur Pur, Delhi, where JCL/appellant (who was brother in law (sala) of Ram Niwas) committed rape upon her and also extended threat not to disclose the same to any other person failing which he would get her killed. On 12.04.13, she managed to flee away from the said office and met Smt. Urmila (PW1) in whom she confided and narrated her ordeal.
10. The prosecutrix namely 'S' entered into witness box as PW3 and her statement was recorded in camera proceedings. During her statement, she is found to have supported the allegations mentioned in the report filed before concerned JJB. She categorically testified that appellant/JCL had forcibly removed her clothes and made physical relations with her and when she tried to shout, he forcibly closed her mouth by putting his hand. After working for 1415 days in the office of Ram Niwas, she ran away from there and met one lady namely Ms. Urmila who took her to Police Station, where she narrated the entire incident to the police. Accordingly, police recorded her statement (Ex. PW3/A) and got her medically examined and also kept her at Nirmal Chhaya Complex. She also deposed that her statement U/s 164 Cr.PC ( Ex. PW3/B) was also got recorded.
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11. In her cross examination, the prosecutrix is shown to have withstood the test of cross examination. The appellant could not impeach the testimony of prosecutrix through litmus test of cross examination. Simple suggestions were given on behalf of appellant to the said witness that he had not committed any wrong act with her but the said suggestion was denied by the witness.
12. The testimony of prosecutrix (PW3) was corroborated by PW1 Smt. Urmila, who testified during the course of enquiry before JJB that on 12.04.13, at about 9.00 pm when she reached at Azad Pur Bus Stand, she met the prosecutrix who was weeping at that time. She recognized her as prosecutrix was working as house maid in House no. A142, Manjlis Park, where she was also working. She brought the prosecutrix to her house. Subsequently, she took the prosecutrix to PS. In her cross examination, simple suggestion was given on behalf of appellant/JCL that she never met the prosecutrix and prosecutrix did not inform anything to her.
13. The oral testimonies of PW1 and PW3 are duly supported by medical evidence in the form of MLC Ex. PW6/A proved by PW6 Dr. R. Kappu, Medical Officer of BJRM Hospital. Although, Ld counsel of appellant vehemently argued that said MLC has not been proved in accordance with law as the concerned doctor who had prepared the said MLC, did not enter into witness box but said contention is without any merit. PW6 is also a doctor and said witness categorically deposed that concerned doctor who had prepared the said MLC, had already left the said hospital but he could identify the handwriting and signature of said doctor having worked JCL Vs. State Page 5 of 7 Criminal Appeal No. 17/15 D.O.D.: 31.08.2015 with her. No question whatsoever has been put to the said witness on the contents of MLC Ex. PW6/A. In other words, the correctness of MLC Ex. PW6/A has gone unchallenged and unrebutted from the side of appellant. The perusal of said MLC Ex. PW6/A would show that the hymen of prosecutrix was found torn at the time of her medical examination on 20.04.2013 at 4.00 pm as mentioned in her MLC. The prosecutrix was taken to BJRM hospital on that date and time with alleged history of sexual assault by some known person (placement service) about 3536 days back. It is also not in dispute that the prosecutrix (PW3) was minor girl at the time of commission of offence of penetrative sexual assault committed upon her.
14. In the light of aforesaid discussion and the evidence which came on record during the course of enquiry, it stood established that the prosecutrix had been victim of trafficking and she had been brought to Delhi with false promise to get her gainfully employed at some place but she was sexually abused by appellant/JCL who is proved to have committed rape upon her. It is nowhere the case of appellants/JCL that prosecutrix had any sort of previous enmity or ill will against him to depose falsely against him or to get him falsely implicated in the present case. It cannot be over looked that the prosecutrix hailed from rural background and was not matured enough to understand the knittygritties of the law. Her testimony as available on record is thus, found to be natural, truthful and free from doubt. Thus, there is no reason to disbelieve her testimony which is also duly supported by medical evidence available on record.
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15. In the light of aforesaid discussion, this Court does not find any infirmity or illegality in the conclusion arrived by JJB that appellant/JCL was involved in commission of offences punishable U/s 376 IPC and Section 4 of POCSO Act. Accordingly, the judgment dated 22.04.15 passed by JJB is hereby upheld.
16. This brings me down to the subsequent order dated 30.04.2015 passed U/s 15 of J.J Act. The perusal of said order would clearly show that JJB failed to call for Social Investigation Report as provided in Section 15(2) of J.J Act. It is needless to mention that said provision is mandatory as the word 'shall' has been used in the said provision. Thus, it was mandatory for JJB to call for said report before passing any order thereunder. Thus, the order dated 30.04.2015 cannot withstand in the eyes of law. Consequently, the order dated 30.04.2015 is hereby set aside and matter is remanded back to concerned JJB with direction to call for Social Investigation Report (SIR) and also to comply with other provision of law applicable to the case, in terms of Section 15 of Juvenile Justice Act and to pass fresh order U/s 15 of the said Act after providing an opportunity of hearing to JCL/appellant in accordance with law. Copy of this judgment be given free of cost to appellant/convict forthwith against proper receipt. TCR be sent back alongwith copy of this judgment. Appeal file be consigned to Record Room.
Announced in open Court today
on 31.08.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
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