Delhi District Court
Sc No. 262/14 : Fir No. 801/14 : Ps Maurya ... vs Dalip @ Ballu on 28 January, 2016
SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 262/14)
Unique Identification No.: 02404R0410842014
State V/s Dalip @ Ballu
FIR No. : 801/14
U/s : 376 IPC & 6 of POCSO Act
P.S. : Maurya Enclave
State V/s Dalip @ Ballu
S/o Sh. Ram Chander
R/o C32, GP Block, Pitam Pura,
Delhi.
Date of institution of case : 15.12.2014
Date of arguments : 12.01.2016
Date of pronouncement of judgment : 23.01.2016
Page 1 of 38
SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
J U D G M E N T:
1. The facts of the case as borne out from the record are that on 18.10.2014, after receipt of information about attempt of rape upon a minor girl (hereinafter referred to as 'child victim') aged about 10 years at C32, Jhuggie, Gandhi Market, Pitam Pura, Delhi, DD no. 39A was recorded at police station Maurya Enclave and its inquiry was entrusted to PW10 ASI Ishwar Singh, who along with Ct. Yogesh reached at the informed place. Thereafter, on receipt of information about DD no. 39A and on the directions of senior officers, PW11 SI Upkar Kaur along with W/Ct. Archana also reached at the spot, where PW10 ASI Ishwar Singh met her and he produced child victim and her mother and on inquiry, mother of the child victim told her that uncle of child victim (chacha) had attempted to commit wrong act with her. Thereafter, PW11 SI Upkar Kaur took the child victim and her mother to Dr. B.S.A Hosptial for medical examination of child victim, but mother of the child victim refused for her daughter's internal gynecological examination. Child victim was also got counseled through NGO counselor and her statement was recorded by PW11 W/SI Upkar Kaur to the effect that on 15.10.2014, she was sleeping on a sofa in the jhuggie and someone made her to lie on the bed and suddenly, she woke up and saw that her uncle i.e. accused Dalip @ Bablu was lying Page 2 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu naked and thereafter, he inserted his penis into her vagina and she found white coloured watery fluid lying on her private parts and she felt pain in her private parts. Thereafter, she pushed the accused and in the process of falling from bed, his leg struck against her grandmother, who was sleeping there on floor and due to fear, she could not tell anything to her grandmother and father. Thereafter, on 17.10.2014, she called her mother at her grandmother's house and disclosed all these facts to her and her mother made a call at 100 number. She requested for legal action against the accused.
On the basis of the aforesaid statement of the child victim, the present case FIR was registered. Accused was arrested and his medical examination was got conducted. Statement of the child victim u/s 164 Cr.P.C was got recorded. Statements of the witnesses including mother of child victim were recorded. Documents regarding age of the child victim were collected from her school. After conclusion of the investigation, the charge sheet was prepared and filed in the court.
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 05.03.2015, charge u/s 5 (m) of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "Act"), punishable u/s 6 of Act, was framed against the accused, to which he pleaded not guilty and claimed trial. Page 3 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
3. In order to prove the charges against the accused, prosecution examined as many as 11 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 child victim at the instance of her mother. The accused wished to lead defence evidence, but did not examine any witness in his defence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Sh. Anil Rathi, ld. Defence counsel 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) Child victim and her family members
(b) Evidence with regard to the age of the prosecutrix
(c) Medical Evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation
(a) Child victim and her family members
5. The Child victim in the present case was examined as PW4 and the relevant portion of her testimony is as under : Page 4 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu "xxxxx Q. Beta, batao kya hua tha?
A Mere mummy, papa aur daadi ka jhagda hota tha, isliye meri mummy meri mausi ke ghar rehti thi, kyunki mere naana naani ki death ho gayi hai.
Q Beta, unka jagdha kis baat par hota tha?
A Kyunki meri mummy ko beta nahi hua, aur hum do hi
behne hai, iss baat par papa mummy ko maarte the aur daddi bhi jagdha karti thi.
Q Beta, aap kahan rehte the?
A Mein, ghatna se 10 din pehle apni daadi ke saath rehne
aayi thi.
Q Beta, batao aapke ke saath kya ghatna hui thi?
A 15 taarik, pichle saal diwali ke mahine ki baat hai, mere
chacha ne shaam ko 8.00 baje towel se mere muh beech diya.
Q Beta, phir kya hua?
A Meine, kaha chacha mujhe chod do, par wo mujhe chod
nahi rahe the, ussi time meri daadi ne sabun lene ke liye mujhe awaz lagai aur tab unhone mujhe chod diya.
Q Beta, phir kya hua?
Page 5 of 38
SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
A Raat ko 34 baje ke karib kisi ne mujhe sofa se uthakar
palang par leta diya. Jab meri aankh khuli to meine chacha ko apne saamne bina kapado (naked) ke dekha aur meri bhi leggings utari hui thi.
Q Beta, phir kya hua?
A Phir chacha mere upar let gaye aur apna susu mere susu
mein lagane lage. Mujhe dard hua tha aur chadar par aur mere upar kuch gila gila white white paani jaisa gira tha.
Q Beta, phir kya hua?
A Meine chacha ko dhaka maara, jis se mere chacha ka paon
meri daadi, jo jamin par so rahi thi ko lag gaya aur wo boli ki kya hua. Chacha ne kaha kuch nahi hua, so jaa, so jaa.
Q Beta, phir kya hua?
A Phir daadi no mujhe do thapad maare aur mein chupchaap
so gayi.
Q Beta, aapko daadi ne kyun thapad maare?
A Mujhe nahi pata, par din mein wo keh rahi thi ki mein
raat mein kyun uthi hui thi, jiski wajah se unki neend kharab ho gayi thi.
Q Beta, phir kya hua?
Page 6 of 38
SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
A Din mein meine daadi ko towel wali baat bhi batai thi, par
daadi ne kaha ki aisa kuch nahi hai, ye to sabse majak karta hai.
Q Beta, phir kya hua?
A Meine apni mummy ko phone karke daadi ke ghar bulaya
aur unhe saari baat bata di. Phir meri daadi ne mujhe meri mummy ke saamne do thapad maare the aur mere chacha mujhse keh rahe the ki mein jooth bol rahi hu.
Q Beta, phir kya hua?
A Meri daadi meri mummy ko gaali bakne lagi. Meri mausi
bhi mummy ke saath aayi thi, unko bhi meri mummy ne gaali nikali. Mere daadi ne papa ko bhi phone kar ke bula liya tha. Papa bhi mummy ko aur mausi ko gandi gandi gaaliyan de rahe the.
Q Beta, phir kya hua?
A Meri mummy ne 100 number par phone kar diya aur
police hum sab ko thane lekar aayi. Police nu mujhse puchtaach ki aur mujhe medical ke liye hospital lekar gaye.
Q Beta, phir kya hua?
A. Police ne mujhse saari batein puchkar record kar li thi.
xxx"
Page 7 of 38
SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
The witness identified her signatures on her statement Ex. PW4/A, her statement recorded u/s 164 Cr.P.C Ex. PW3/B and also identified the accused correctly in the court.
During crossexamination by the learned defence counsel, the witness stated as under : "xxx Ye kehna galat h ki iss case mein meine apni mummy ke kehne par chacha ko jootha fasaya hai. Vol. Mere saath aisa sachi mein hua tha. Ye kehna galat h ki meine joothi gawahi di hai.
xxx"
Thereafter, the child victim was recalled for further crossexamination on an application of accused u/s 311 Cr.P.C and was further crossexamination, wherein she stated as under : "xxxx Ye kehna galat hai ke 17102014 ko maine apni mummy ko phone karke nahi bulaya tha or meri mummy khud hi aayi thi. Ye kehna galat hai ke meri mummy or mausi ne aate hi meri Page 8 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu daadi ke sath ladna suru kar diya. Ye bhi kehna galat hai ke jab mere chacha (accused) ne meri mummy or mausi ko meri daadi ke sath ladne se mana kiya to meri mummy ne mere dwara ye jhootha case mere chacha ke khilaf banwa diya. Ye kehna galat hai ke police ko byan dene se pahle, court me judge sahab ko byan dene se pahle tatha is court me gawahi se pahle mujhe meri mummy, meri mausi or mausa ne mujhe acche se samjha diya tha ke mujhe kya byan dena hai.
Ye kehna sahi hai ke 15102014 se pahle bhi me bahot bar apne daadi ke ghar milne aati thi or waha rukti thi parantu kabhi bhi mere sath kisi tarah ka bura bartab accused ne nahi kiya. Ye bhi kehna sahi hai ke mere mummy papa ka aapas me jhagda rehta tha.
Ye kehna galat hai ke maine galat byan diya hai.
xxx"
6. PW11 Smt. Babita, the mother of the child victim, deposed that because of a dispute between her and her husband, she was residing separately from him for the last 23 years prior to the date of incident, however, child victim and her Page 9 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu other children used to visit their father and used to stay with him and their grand mother. She further deposed that prior to 15102014, child victim had gone to reside with her father and grand mother and on that day, child victim called her on her mobile phone and asked her to take her back, but she could not go there. She further deposed that on 17102014, child victim again called her and informed her while crying that she was sexually assaulted by the accused. She further deposed that on coming to know, she had gone to the house of her husband and found accused lying on the bed and she scolded him for his acts, on which, he started quarreling with her. She further deposed that when she told her husband and mother in law about the acts of the accused, her motherinlaw slapped child victim and scolded her as to why she was telling a lie and blaming her chacha and thereafter, she got scared and called the police at 100 number and thereafter police came there. She further deposed about taking the child victim to Ambedkar Hospital for her medical examination and about her refusal for her daughter's internal gynecological examination keeping in view her tender age. She further deposed about recording of statement of child victim by the police as well as about recording of her statement by one lady judge in her room. She further deposed about counseling of child victim at CWC Kingsway Camp. The witness identified the accused in the court.
Page 10 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu During crossexamination by the learned defence counsel, she denied that she had got the accused falsely implicated in the matter by using child victim as a tool so that the visitation rights of her daughters to the house of her husband may be snapped. She further denied that she had falsely implicated the accused with a view to avert action against her by her husband for she having being living in an adulterous union with her brother in law (jija). She further denied that prior to recording of the statement of child victim by the police, by the Ld. MM and before this court, she, her sister and her Jija had thoroughly tutored her as to what was to be stated and in what manner it was to be stated and accordingly, the child victim had made false statements at every stage.
(b) Evidence with regard to age of the child victim
7. The prosecution examined PW1 Sh. Arun, Primary Teacher, MCD Primary School, Mangol Puri, Y2/1, Delhi, who produced the school record regarding date of birth of the child victim and deposed that as per the school record, she was admitted in the school in 1st class, on the basis of admission form Ex. PW1/A and "Shapath Patra" Ex. PW1/B of her mother and her date of birth was entered in the school record as 05.08.2003. She also proved the relevant entry in the admission register as Ex.PW1/C. As per the school record, the child victim was admittedly aged about 11 years and 2 months, as on the date of incident. It is worthwhile to Page 11 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu note that the defence has not disputed the age of child victim at any stage of trial.
(c) Medical evidence
8. PW8 Dr. Bhavna Jain, CMO, deposed that accused was examined by Dr. Neeraj Kumar, under her supervision vide MLC Ex PW8/A and had then referred him to SR Surgery for local examination and to Forensic Department for his potency test.
9. PW9 Dr. Anita Sonvane, SR (Obs. & Gynae), had generally examined the child victim vide MLC Ex. PW9/A and deposed that mother of child victim had refused for her daughter's gynecological examination.
(c) Evidence of Formal witnesses
10. PW2 HC Kartik was lying posted as Duty Officer in PS Maurya Enclave at the relevant time and he proved the computerized copy of FIR as Ex. PW2/A, endorsement made by him on the rukka as Ex. PW2/B and certificate u/s 65B Evidence Act as Ex. PW2/C.
11. PW3, Ms. Meenu Kaushik, ld. M.M, in her evidence has proved statement Page 12 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu of child victim as Ex. PW3/B, recorded by her under Section 164 Cr.P.C on 18.10.2014.
12. PW2, HC Jay Roop was working as MHCM at PS Maurya Enclave and he proved the entry made by him in register no. 19 as Ex. PW5/A, which were made by him at the time of deposit of case property with him.
13. PW6 Ms. Madhu Dass, CIC Counselor, had counseled the child victim vide her report Ex. PW6/A and deposed regarding the same.
14. PW7 W/Ct. Archana had got the child victim medically examined at B.S.A Hospital, where her mother had refused for her daughter's gynecological examination and deposed regarding the same.
(d) Evidence of police officials of investigation
15. PW9 ASI Ishwar Singh deposed that on 17.10.2014, after entrustment of DD no. 39A, Ex. PW9/A regarding attempt of rape upon a 10 years old girl at Jhuggie No. C32, Gandhi Market, Pitampura, he along with Ct. Yogesh had gone to the place and met child victim and her mother and on inquiry, he came to know Page 13 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu that child victim had been sexually assaulted by her real chacha i.e. accused. He further deposed that on coming of know about this, he narrated the entire facts to the SHO and informed the duty officer to send a lady officer and after some time, PW11 SI Upkar Kaur reached there and he handed over the investigation to her and was discharged from there.
16. PW11 W/SI Upkar Kaur, is the investigating officer of the case and she deposed that on 17102014, as per the instructions of ACP Saraswati Vihar, she had reported at PS Maurya Enclave, where she was told that pursuant to recording of DD no. 39A, Ex.PW9/A, PW9 ASI Ishwar Singh and Ct. Yogesh already had left for the spot and thereafter, she along with L/Ct. Archana also reached at the informed place i.e. C32 GP Block, Jhuggi Pitampura and met PW9 ASI Ishwar Singh and Ct. Yogesh and PW9 produced the child victim and her mother before her. She further deposed that on inquiry, child victim told her that accused had tried to commit rape upon her. She further deposed about sending the accused to PS with ASI Ishwar Singh and Ct. Yogesh, about getting the child victim medically examined at BSA Hospital, Rohini and about getting the child victim counseled. She further deposed that on the basis of statement of child victim, she made her endorsement on rukka Ex. PW1/B and got the FIR in the case registered. She Page 14 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu further deposed about interrogation of the accused, about his arrest and his personal search vide arrest memo Ex. PW11/A and vide personal search memo Ex. PW11/B, about medical examination of accused vide MLC Ex. PW8/A, about seizure of accused's exhibit vide seizure memo Ex. PW11/C, about deposit of exhibits in mallkhana, about getting the statement of child victim recorded u/s 164 Cr.P.C, vide her application Ex. PW3/A, about collecting the copy thereof vide application Ex. PW3/D, about production of child victim and her mother before CWC, about collecting the documents regarding the age of the child victim from her school vide her application Ex. PW11/E, about recording of statements of the witnesses u/s 161 Cr.P.C and about preparation of the charge sheet and filing the same in the court.
During crossexamination by learned defence counsel, the witness stated that she had not made inquiries from the persons who were standing outside the house of accused and she volunteered to state that the incident of sexual assault had taken place inside the house and no public person would have got to see the same. She denied that she had deliberately not joined independent witnesses as during the course of investigation, she had come to know that it was a family dispute and no sexual assault had taken place with the child victim. She further denied that at the instance of the mother of child victim, she had tutored child victim and made Page 15 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu her to make her statement in a particular manner.
Arguments advanced at Bar
17. The Ld. Additional Public Prosecutor for the State has very vehemently argued that the child victim is consistent in her all statements with regard to the commission of act of sexual assault upon her by the accused on 15.10.2014 in the night and her testimony before the court is clear cogent and trustworthy and as such the conviction in the matter can be based on her sole testimony.
18. Per contra, Ld. Defence Counsel Sh. Anil Rathiadvocate has argued as under:
(a) That there is unexplained inordinate delay in recording of FIR in the matter ;
(b) That the the accused has been falsely implicated in the matter ;
(c) That the testimony of child victim is result of her tutoring by her mother ; and,
(d) That the investigation in the matter is faulty.
19. I have given thoughtful considerations to the arguments advanced at bar and Page 16 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu perused the entire material on record. My plea wise findings in the matter are as under:
(a) The plea of delay in recording of FIR in the matter
20. It is argued by Ld. Defence Counsel that the alleged incident as per the child victim had happened on 15.10.2014 in the night whereas the matter was reported to the police only on 17.10.2010 at 7:50 p.m and as such there is an unexplained delay which goes on to show that a coloured version of the child victim has come on record which is handiwork of her tutoring done by her mother. He has relied upon the law laid down by the Hon'ble High Court of Delhi in a recent judgment in the 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 sought to be achieved by registering the earliest information as FIR is interalia twofold:One, that the criminal process is Page 17 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu 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"
21. Per contra, Ld. Addl. P P for the State has very vehemently argued that the Page 18 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu child victim is of tender age. The sexual assault upon her was committed by none other than his real uncle (Chacha). She had reported the matter initially to her grand mother Smt. Rajwanti , even she did not believe her and scolded her and asked her to keep mum. Under the circumstances the child victim had no other alternative, but to communicate about the incident to her mother. She some how managed to lay her hand on a mobile phone and called her mother. Her mother in her evidence has explained that she could not come to the house of her husband on 16.10.2014 on account of some problem and when on 17.10.2014 she along with her sister went to the house of her husband, there her motherinlaw and brotherinlaw misbehaved with her. Ld. Addl. PP further submits that it is common knowledge that a child feels herself most secure in the four corners of her house, in the company of her family members, which definitely includes the very close relationship of chacha as well. Generally speaking the instances of sexual assaults by relatives, who are related through blood are rare and whenever, such assaults take place, the same cause a substantial amount of trauma and shock to a child, as this was a relation from whom, the child would not have expected such a libidous approach towards her, that too within the safe heavens of the four corners of her house. This court shall have to bear in mind that different people react differently under different situation, whereas some become speechless, some starts wailing while some others go to shock. As a matter of fact, it depends upon Page 19 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu individual and individual and there cannot be a set pattern or uniform rule of human reaction. There are cases where the victims have chosen to suffer the ignominy rather than to disclose the true facts to even the near and dears available around. In this regard, learned Addl. PP has relied upon the law laid down by the Hon'ble Supreme court in the case of Ramdas & Ors. Vs. State of Maharashtra, (2007) 2 SCC 170, which is reproduced hereunder : "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 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 Page 20 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu 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 each case and is a matter of appreciation of evidence by the court of fact.
xxxxx"
22. I have given due consideration to the law sited by both the sides. Reverting back to the facts of the case it is evident that the parents of child victim had strained relations as a consequence whereof her mother was staying separately with her. Page 21 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu The material grand parents of the child victim had expired long back and she does not have any maternal uncle. The child victim is supposed to have received shock of her life after suffering the sexual assault through the hands of her own real uncle and as such this shock might have got multiplied after even her grand mother had not believed her allegations. Therefore, she might have called her mother and as such some delay in reporting the matter to the police might have occurred. Bearing in mind the law laid down by the Hon'ble Supreme Court of India in Ram Dass (supra) because of peculiar facts and circumstances of the case, the delay in recording of FIR stands duly explained in the matter.
(b) Plea regarding false implication of the accused:
23. Ld. Defence Counsel has argued that the relations between the parents of child victim were strained. On account of social pressure, the mother of the child victim was duty bound to send the child victim to the house of her father. The mother of the child victim wanted the said visitation rights to be snapped and as such she got the accused falsely implicated in this case. It is further argued that the mother of child victim was living an adulterous life with her brotherinlaw ( Jija) which was not liked by the father of the child victim and with a view to obviate any action by her husband against her in this regard, the mother of the child victim got Page 22 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu the accused involved in this case.
24. Ld. Defence Counsel has taken me through the crossexamination of the mother of child victim who has been examined in the matter as PW10 and has referred to the suggestion given to her to the aforesaid effect.
25. In terms of the provision of Section 30 of the Act a heavy burden is cast upon the accused to prove his defence beyond reasonable doubt. The accused has not led any positive evidence to prove his aforesaid defence. Neither any order of any court has been pleaded whereby visitation rights of the child victim were granted to her father nor any police complaint against the mother of child victim filed by the brother of the accused i.e. father of the child victim has been placed on record.
Therefore, the defence taken in the matter is an after through and has not been proved.
(c) Plea regarding the testimony of child victim;
26. A perusal of the record reveals that the case of the prosecution is consistent throughout with regard to the commission of the offence of sexual assault upon the child victim by the accused. The matter was reported for the first time to the police Page 23 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu vide DD No. 39A on 17.10.2014 at 7:50 p.m in which the expression used was that an attempt to rape was made upon a minor girl. Thereafter in her statement Ex. PW 4/A, the child victim leveled clear and categorical allegation of sexual assault, she again supported her allegations in her statement Ex. PW 3/B recorded U/S 164 CrPC. In the report Ex. PW 6/A prepared by counsellor Ms. Madhu Dass also she had mentioned about the sexual assault in a clear manner. Before the Doctor at the time of preparation of her MLC Ex. PW 9/A also she had leveled clear allegations of sexual assault against the accused. She followed up her aforesaid allegations in her evidence recorded in the court. The relevant extract of her evidence has already been reproduced in the evidence section of this judgment.
27. The law is now fairly settled that the conviction can be based on the sole testimony of a child victim provided it's trustworthy. I find no reason as to why a child of such tender age as the child victim would implicate an innocent person for an offence which was undisputedly committed upon her. No plausible justification has come forth from accused, why such a vulnerable child would nurture enmity or grudge or ill will against him, particularly when she had not leveled such allegations with regard to her earlier visits to her father's place during the period of 23 years prior to the date of incident. In this regard it has been held by Hon'ble Page 24 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, that : "xxx There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. xxxx"
Page 25 of 38
SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
28. Per contra, Ld. Defence Counsel has relied upon the law laid down in case reported as, "1998 (1) JCC (Delhi) 217", titled as, "Samey Singh V/s State", wherein, it was held that in the facts and circumstances of the said case, it was highly unsafe for the court to have based conviction upon the sole testimony of witness of a tender age. The relevant part of the decision of the Hon'ble High Court is reproduced as under :
xxxxx
8. .....She has referred to the decision of the Apex Court reported as, "State of Assam V/s Mafizuddin Ahmed, (1983)2 SCC 14". In this case, the Supreme Court approved the observation the High Court. Those observations read as under: "................... the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring."
9. She had also placed reliance on para 17 of the said judgement in which the court came to the conclusion that the fact that he was tutored is fully borne out by his own statement, as will be clear from the following portion of his deposition:
Page 26 of 38
SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu "Nana" accompanied me when I came to depose in the lower Court, but stayed outside. I stated in that Court that I had stated what "Nana" asked me to. The day before I came to depose, had told "Nana" what I would say.
10. Ms. Thakur submitted that this case is fully applicable to the facts of this case. In the instant case, instead of Nana, the mother and father of the prosecutrix coached and tutored her and her statement is the outcome of that tutoring and coaching.
11. She has also placed reliance on "Arbind Singh V/s State of Bihar, 1994 SCC (Crl) 1418". In this case, the court observed:
"Having taken a careful look at the evidence of this child witness, we are of the opinion that implicit faith and reliance cannot be placed on her testimony since it is not corroborated by any independent and reliable evidence."
12. It is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring. We, therefore, think that appellant I was entitled to a benefit of doubt.
Page 27 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
13. Ms. Thakur also placed reliance on Division Bench judgment of this court "Vijay Kumar V/s State, ILR (1981) II Delhi, 449". In this case, the well settled principle of law has been reiterated. The Court observed that if a person is to be convicted on the testimony of a child, it has to be ensured that the child had not been tutored and there is some corroboration available. Ms. Thakur submitted that this case also had great bearing on the facts of this case because in the instant case, the prosecutrix has been coached and tutored and there is no corroboration of her testimony The entire conviction is based solely on the testimony of this minor girl Sunita.
14. I have heard the learned counsel appearing for the appellant and I find considerable force in the submission of the learned amicus curiae. The learned counsel for the State could not support the prosecution story. The testimony of baby sunita gives a clear impression that she was coached and tutored before she gave the statement and it is also clear from the number of questions she had answered in the cross examination runs counter to her examination inchief. The medical evidence also proves the innocence of the accused. There is no plausible explanation for undue delay in filing the first information report in this case. On consideration of all these factors, the benefit of Page 28 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu doubt must go to the accused. The appeal is accordingly allowed and disposed of. The appellant is acquitted of all the charges. The bail bonds are cancelled.
xxxxx
29. I have gone through all the aforesaid statements and evidence of the child victim which were recorded at differed stages of investigation and trial . I find her evidence consistent with regard to the commission of sexual assault against her by the accused. Therefore, the testimony of child victim in the matter is held trustworthy.
(d) Plea regarding the faulty investigation
30. Ld. Defence counsel has very vehemently argued that the investigation in the matter was not conducted properly as the Investigating Officer did not site the 'Mosi' of child victim as well as her father as witnesses which is fatal to the prosecution case. I have given thoughtful consideration to this argument of Ld. Defence Counsel as well. As far as the father of the child victim not having been made witness in this case. Firstly the sexual assault had admittedly not been committed by the accused in the presence of father of child victim and secondly it is apparent on record that he had strained relations with the mother of child victim and as such there was every likelihood that he would not have supported the case of Page 29 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu prosecution against his own brother. As far as not citing 'Mosi' of child victim as a witness is concerned, it would have been good on part of the Investigation Officer to have cited her as a witness atleast with regard to the aspect of the accused and her mother having picked up a quarrel with the mother of child victim on 17.10.2014 when she had accompanied her to the house of accused but not citing her as a witness in the matter is not fatal to the prosecution case in view of clear cogent and trustworthy testimony of child victim.
31. Now the question arise as to whether the prosecution has been able to prove the commission of aggravated penetrative sexual assault upon the child victim by the accused, the answer is clearly 'NO' as the child victim in her evidence and previous statements had stated that the accused had not been able to penetrate his penis into her private parts , however her evidence is clear with regard to removal of her clothes by the accused and he having touched her private parts with sexual intent and had even ejaculated upon her body parts. Therefore, through the evidence of child victim the prosecution has been able to prove the commission of offence punishable u/s 10 of the Act against the accused. The accused accordingly stands convicted for the said offence.
Page 30 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
32. Let the accused be heard on the point of sentence on 28.01.2016.
Announced in the open Court (Vinod Yadav)
on 23.01.2016 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
Page 31 of 38
SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
IN THE COURT OF VINOD YADAV:ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI (Sessions Case No. 262/14) Unique Identification No.: 02404R0410842014 State V/s Dalip @ Ballu FIR No. : 801/14 U/s : 376 IPC & 6 of POCSO Act P.S. : Maurya Enclave State V/s Dalip @ Ballu S/o Sh. Ram Chander R/o C32, GP Block, Pitam Pura, Delhi ....Convict 28.01.2016 ORDER ON SENTENCE Pr: Ld.Addl.PP for state.
Convict produced from J.C with ld. Defence counsel.
Page 32 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu ORDER ON THE POINT OF SENTENCE In the present case, the convict - Dalip @ Ballu has been convicted u/s 10 of POCSO Act, 2012.
I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and learned defence counsel, for the convict.
2. The learned Addl. PP has very vehemently argued that the sexual assaults upon the minor children are on rise in the society, whereby the mental and physical development of the children gets affected substantially. It is specifically emphasized that the child victim in this case was of tender age i.e. aged about 10 years, when she was sexually assaulted by the convict, real uncle (chacha) of the child victim. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 10 of the Act to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned defence counsel for the convict has argued that convict is a young boy of 22 years and is having old aged parents to support. He further submitted that convict is first time offender having clean antecedents and he has remained in Jail for a period of 15 months during trial of the case. He prays that in view of the aforesaid circumstances of the convict, a lenient view may kindly be taken in sentencing the convict.
Page 33 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu
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 the convict has been convicted in the matter, is highly derogatory. However, I cannot loose sight of the fact that convict is a young boy having clean antecedents and he is having old aged parents to support. Bearing in mind, the facts and circumstances of the case in totality, the interest of justice, would be met, if the convict is accorded minimum sentence prescribed under Sections 10 of POCSO Act, for which, the convict stands convicted as he has been able to make out good mitigating circumstances in his favour. I hereby award rigorous imprisonment for a period of 5 (five) years along with fine of Rs. 5,000/, in default of payment of fine, further SI for a period of 6 months, for the offence u/s 10 of POCSO Act.
Benefit of Section 428 Cr.P.C is accorded to the convict.
5. Coming now to the aspect of compensation to the child victim, who is a minor girl aged about 6 years, 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 Page 34 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the 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 Page 35 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu 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 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 Page 36 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu 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 compensation of Rs. 50,000/ (Rs. Fifty thousand only) to the child victim. 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. A copy of this order be sent to learned Secretary, D.L.S.A, North West Distt., Rohini Courts, Delhi and Director, Department of Woman and Child Development, GNCT of Delhi, for information and necessary action under intimation to this Court.
9. 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 Page 37 of 38 SC No. 262/14 : FIR No. 801/14 : PS Maurya Enclave : State V/s Dalip @ Ballu convict against receipt.
File be consigned to record room.
(Announced in the open ) (Vinod Yadav)
(Court on 28.01.2016) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
Page 38 of 38