Delhi District Court
Sc No. 1/16 : Fir No. 1043/15 : Ps Sultan ... vs Faiyaz @ Payazi on 30 January, 2017
SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 1/16)
Unique Identification No.: 02404R0001082016
State V/s Faiyaz @ Payazi
FIR No. : 1043/15
U/s : 376 IPC
& Sec. 6 of POCSO Act
P.S. : Sultan Puri
State V/s Faiyaz @ Payazi
S/o Sh. Ibrahim
R/o H. No. 1368, Katar Wali Gali,
Lakhi Ram Chowk, Pooth Kala,
Delhi
Permanent Address :
VPO : Pakli Barama,
PS & Tehsil - Barama,
Distt. Nawada, Bihar
Date of institution of case : 02.01.2016
Date of arguments : 07.01.2017
Date of pronouncement of judgment : 20.01.2017
Page 1 of 25
SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi
J U D G M E N T :
1.The facts of the case as borne out from the record are that at H.No. 1368, Lakhi Ram Chowk, Kartarwali gali, Village Pooth Kalan Delhi, in one room the family of child victim, a girl aged about 5 years (hereinafter referred to as 'child victim) and in the adjoining room one Bahadur Singh and accused Faiyaz @ Payazi @ Khan had been residing. The mother of child victim had been working in a factory where bangles were being manufactured. The said factory was in the same street where her house was situated. The accused and Bahadur Singh were working in another factory.
On 27.10.2015 at about 3 p.m., the mother of child victim was present at her factory when the child victim came to her and started weeping. She communicated to her that the accused had inserted his finger in her vagina as a consequence whereof blood had oozed therefrom. The mother after coming to know the aforesaid fact made a call at number 100 which was recorded at P S Sultan Puri through PCR as DD No. 47B and was entrusted to WASI Sita Devi ( herein after referred to as IO) for inquiry. The intimation of the said DD was also given to HC Surender, who also reached at the spot. IO made preliminary inquiry from the child victim and called Ms. Tabassum, a counsellor from NGO Nav Shristhi and got the child victim counseled from her. Thereafter the statement of the mother of child victim was recorded. The child victim was got medically examined at SGM Hospital where she was found to be suffering from slight congestion at her Page 2 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi hymenal area. There the mother of child victim did not permit the internal gynecological examination of the child victim. The statement of child victim U/S 164 CrPC was got recorded. The accused was arrested in the matter. The child victim was produced before child welfare committee. After completion of investigation the charge sheet in the matter was filed.
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 23.03.2016, charges u/s 5 (m) of POCSO Act 2012 (hereinafter referred to as the "Act"), punishable u/s 6 of Act and u/s 11 (ii) of the Act punishable u/s 12 of the Act, were framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 9 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 mother of the child victim, at the instance of landlord, who wanted to get his room vacated from Bahadur. Accused did not lead any evidence in his defence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Ms. Urmila Yadav, learned Amicu Curie, for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it Page 3 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi 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 member
(c) Medical Evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation
(a) Child victim and her family members
5. Child victim, in the present case was examined as PW4 and the relevant portion of her testimony is as under : "xxx Q. Beta batao kya hua tha?
Ans. Wo aadmi jo lamba sa tha usne yahan per ungli daali thi.
Q. Beta kahan per ungli daali thi?
Ans. Yahan, (while stating so, the child has pointed out towards her private part).
Q. Beta aap us samay kahan the?
Ans Main gali mai khel rahi thi wo mujhe le gaya aur
bola pepsi dunga aur pepsi bhi nahi di aur wo mujhe apni pant khol kar dikha raha tha.
Q. Beta aaj aap kahan aaye ho?
Page 4 of 25
SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi
Ans. Police Station.
Q. Beta aapko kisne bataya ye P S hai?
Ans. Main jaan gai thi kyonki mai yahan per pehle bhi aai thi.
Q. Jab aap pehle bhi yahan aaye the to kya hua tha?
Ans. Us aunty ko maine sab baat bata di thi (the child had referred to the recording of her statement U/S 164 CrPC.
xxx"
Child victim identified the accused in the court.
During crossexamination by learned Amicus Curie, she stated as under : "xxx Mere papa Kachori ki rehri bhi lagate hai.
Mere papa ab alag rehte hai. Wo bahut samay se alag rehte hain aur kabhi ghar nahi aate. Meri mummy kaam per paas main hi jaati hai, jahan mera Aangawadi hai. Unki chhutti 1 baje ho jaati hai. Fir baad mai jaa kar bahut raat ko aati hai aur mai ghar per akele hi rehti hu. Mere behan bhai Aakash, Pooja or Sakshi mere ghar main hi rehte hai. Jab mummy ghar per nahi hoti tab hum sab ghar Page 5 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi per hi khelte hai. Meri mummy Aakash ko apne sath le kar jaati hai kyonki wo bahut chhota hain. Ghatna ke samay wo uncle pados mai rehte the. Vol. Ab wo jail main hain. Un uncle ne mummy se kabhi koi baat nahi ki. Unki mummy se kabhi koi ladai nahi hui. Main akeli hi us jaghan per jaa sakti hu jahan meri mummy kaam karti hi kyonk wo paas main hi hai. Mujhe meri mummy Sakshi aur Pooja ki mummy ke paas chhod kar kaam per jaati hai. Main fir unhi ke ghar mai rehti hu jab tak meri mummy wapas nahi aati. Unke ghar ye gande wale uncle nahi aate the. Vol. Unke ghar sab achhe wale uncle aate hain. Jab uncle ne mujhe pepsi pilane ke liye bulaya to us samay Sakshi aur Pooja mere sath nahi thi. Maine uncle ki harkat ke baare main sirf apni mummy ko bataya tha.
Mai us samay gali main khel rahi thi Nanhi aur Gunni ke sath. Un uncle ka kamra paas mai hi tha. Unka ghar ground floor per tha. Us samay unke ghar per koi nahi tha. Meri mummy ne mujhe kahan tha ki waisa waisa bata dena jaisa jaisa wo aadmi ganda kaam kiya tha.
Meri mummy paani gali mai se bharti hai jahan se sab bharte hai. Wo uncle waha se paani nahi bharte. Mummy ka paani bharne per un gande uncle ke sath jhagda hua Page 6 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi tha. Ye kehna galat hai ki un uncle ne mummy ko thappad mara tha. Vol meri mummy ne unhe thappad mara tha.
Ye kehna galat hain ki maine aaj court main jhoothi
gawahi di hain.
xxx"
6. PW6 Smt. Meenakshi, mother of the prosecutrix, deposed that in the month of Oct 2015, she had been residing separately from her husband with her children in a tenanted room, in house no. 1348, village Phootkala, Lakhiram Chowk, Delhi and accused was also residing in one of the rooms as a tenant with another old person. She further deposed that at that time, she was working in the factory of manufacturing of silver bangles at katar wali gali, Lakhi Ram Chowk. She further deposed that on 27th day of a month, in the year 2015 at about 3:00 pm, child victim had come to her factory weeping and informed her that accused had done wrong act with her by inserting his finger in her private part and hearing this, she had returned to her rented room, where child victim had pointed towards the accused and told her that the said uncle had done wrong act with her. She further deposed that after coming to know about the incident, she had called at 100 number and police had reached there, however, by that time, the accused had ran away from the room. She further deposed about medical examination of child victim at SGM hospital and about her refusal for the internal gynecological examination of child victim vide her statement on MLC Ex. PW6/A. Page 7 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi She identified her signatures on her statement/complaint Ex.PW6/B and deposed that police had visited the spot ie., place of incident with her and child victim. She further deposed about arrest and personal search of the accused vide memoes Ex. PW6/C and Ex. PW6/D, about recording of statement of child victim by one lady judge in her chamber and about producing the child victim before CWC. She further deposed that the date of birth of child victim was 10.10.2010.
During crossexamination by learned Amicus Curie, she stated that IO had written the complaint. She further stated that she used to take both her children along with her at her work place. She further stated that there was a water tap at her house and all the tenants used to draw potable water there from and she used to draw water therefrom in the night. She admitted that there used to be limited hours, at which the water used to come in the tap, which used to result in long queue of tenants (1012 persons). She further stated that she never had any altercation with anybody on account of the aforesaid queue. She showed her lack of knowledge about a tenant by the name of Bahadur residing in her vicinity and stated that she had shifted from that house about three months prior to the date of FIR. She further stated that on 27.10.2015, she had taken both of her children along with her to her work place and volunteered to state that child victim had been playing in the street for sometime with twothree children of her age and was out for about one or one and a half hours. She denied that accused had been falsely implicated in this case at the instance of her then landlord as he wanted to evict Bahadur Singh from his tenanted room. She further denied that accused had Page 8 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi not done any wrong act with child victim or he had been falsely implicated in the present case by her at the instance of her landlord.
(b) Medical evidence
7. PW7 Dr. Gurdeep Singh, proved the MLC of the accused as Ex. PW7/A by identifying the handwriting and signatures of Dr. Tinku, who had examined the accused under his supervision and deposed that after examination, Dr. Tinku had given opinion about the potency of the accused.
8. PW9 Dr. Urmila, SR (Obs. & Gynae) proved the MLC of the child victim as Ex. PW6/A by identifying the handwriting and signatures of Dr. Savita and deposed that as per the MLC, on local examination, hymen of the child victim was found intact, but slight congestion was present over her hymeneal area. In reply to a court question, PW9 stated as under : "xxx Court question : What does congestion signify ?
Ans. It may be on account of insertion of finger in the vagina, infection, itching or scratching vaginal area with dirty finger.
xxx"
Page 9 of 25SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi During crossexamination, the witness admitted that MLC Ex. PW6/A was not prepared in her presence and she had no personal knowledge about the present case.
(c) Evidence of Formal witnesses
9. PW1, W/Ct. Babita was lying posted as D.D writer in PS Sultan Puri at the relevant time and she proved the attested copy of DD no. 47B as Ex. PW1/A, recorded by her regarding sexual assault upon the child victim by an old man (accused).
10. PW2 HC Sanjay, was lying posted as duty officer in PS Sultan Puri at the relevant time and he proved the computerized copy of FIR as Ex. PW2/A, endorsement made by him on rukka as Ex. PW2/B and certificate u/s 65B of Evidence Act as Ex. PW2/C.
11. PW3, Ms. Meenu Kaushik, ld. M.M, in her evidence proved statement of child victim as Ex. PW3/B, recorded by her under Section 164 Cr.P.C on 29.10.2015.
12. PW5 Sh. Rajiv Kumar, was the owner of house no. 1368, Village phootkala, near Lakhi ram chowk, Katar wali gali and he deposed that he had let out one room of the said house to Bahadur s/o Soti lal on 15.07.2015 and accused Page 10 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi was residing with Bahadur. He further deposed that another room in the said house was let out by him to PW6 Meenakshi on 17.10.2015. He further deposed that during investigation, police had come to him and made inquiry about the tenancy of Meenakshi and Bahadur and he had produced Aadhar card of Bahadur and his driving license Ex. PW5/A and Ex. PW5/B respectively to the police.
During crossexamination by learned Amicus Curie, he stated that accused was not related to Bahadur in any manner and volunteered to state that they were working in the same factory. He denied that accused had never resided with Bahadur in the said tenanted room.
(e) Evidence of police officials of investigation
13. PW8 W/ASI Seeta Devi, IO of the case, deposed that on 27.10.2015, after entrustment of DD No. 47B, Ex.PW1/A, she had gone to the spot i.e. house no. 1343, near Lakhi Ram Chowk, Phootkala, Delhi, where HC Surender Singh and Ct. Mohan, whom the information regarding DD No. 47 B was given by the duty officer on phone, had met her and at that time, complaint Meenakshi and child victim were also present there. She further deposed that on inquiry, complainant had told her that accused had committed wrong act with child vitim and after counseling of the child victim and Smt. Meenakshi, her mother through NGO counselor, statement Ex. PW6/B of Smt. Meenakshi was recorded by the counselor and on the basis of said statement, she made her endorsement, prepared rukka Ex. PW2/B and got the case FIR registered. She further deposed Page 11 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi about getting the child victim medically examined at SGM hospital, vide her MLC Ex. PW6/A and about preparation of the site plan Ex. PW8/A of the place of incident, at the instance of the complainant and the child victim. She further deposed about arrest and personal search of the accused vide memos Ex. PW6/C and Ex. PW6/D, about recording of disclosure statement Ex. PW8/B, about getting the place of incident pointing out by the accused vide pointing out memo Ex. PW8/C, about medical examination of accused, about getting the statement of child victim recorded u/s 164 Cr.P.C vide application Ex. PW3/A and about obtaining copy thereof vide application Ex. PW3/B. She further deposed that on 09.11.2015, child victim and her mother were produced before CWC Avantika where they both were counseled and the custody of the child victim was handed over to her mother Meenakshi vide order Ex.PW 8/D. She further deposed that complainant could not provide the age proof of the child victim as she was born at home. She further deposed that after recording the statement of witnesses, she filed the charge sheet in the matter on completion of investigation.
During crossexamination by learned Amicus Curie, she stated that Ex. PW6/B was written by NGO Counselor Tabassum and in the said complaint the name of the accused was not mentioned, but he was referred to as Khan. She further stated that she had got the accused identified from the child victim and had recorded her statement in this regard. She denied that Faiyaz and Khan were two different persons and volunteered to state that accused was known in the locality by the name of Khan. She denied that she had never got the accused identified either Page 12 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi from child victim or from her mother. She further stated that accused was not the tenant at the said room and one Bahadur was the tenant in respect of that room with whom he had been residing. She further stated that she did not make inquiry from the other children, with whom the child victim had been playing before the incident. She further stated that she did not come to know that there was a dispute between landlord and tenant Bahadur or that the child victim was suffering from some kind of infection at that time. She denied that accused had been falsely implicated in this matter at the instance of the landlord by using child victim as a pawn.
Arguments advanced at bar
14. The Ld. Addl. P P for the State has very vehemently argued that the FIR in the matter was recorded without any delay thereby ruling out any possibility of tutoring of child victim. It is further argued that the child victim has been consistent throughout the investigation and trial with regard to the act of penetrative sexual assault committed upon her by the accused. In the end it is argued that the accused has failed to prove his defence in the matter and as such the conviction of the accused for the charged offence has been prayed for.
15. Per contra, the Ld. Amicus Curiae, Ms. Urmila Yadav, advocate has very vehemently argued that no explicit reliance can be placed upon the testimony of Page 13 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi child victim as she is a child of tender age and is easily pliable by her mother. It is further argued that the medical evidence does not corroborate the version of child victim. It is next argued that the conviction of the accused cannot be based solely on the uncorroborated testimony of child victim. In the end the false implication of the accused in the matter at the instance of landlord PW5 Sh. Rajiv Kumar has been pleaded.
16. I have considered the arguments advanced at bar and carefully gone through the entire record.
17. It is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify by the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, "xxx A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would Page 14 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
18. Further, the Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, has been pleased to hold 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 Page 15 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi 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.
xxx"
19. If the law laid down in the aforesaid judgments is applied to the facts of the present case then it would be evident that the child victim is consistent in her all the statements i.e. recitals given in MLC Ex. PW 6/A, statement recorded U/S 164 CrPC Ex. PW 3/B, proceedings before CWC i.e. Ex. PW 8/D and her evidence recorded in the court. Despite the child victim being of tender age she has given clear and cogent account of the facts of the case. Her veracity could not be shaken even in her crossexamination by the defence. Her evidence is accordingly found to be trustworthy and believable. It is also worth noticing that the matter was reported to the police promptly.
20. The accused has claimed false implication in the matter. His defence is depicted in the crossexamination of PW5 and PW6 which is that the landlord PW5 wanted to evict the accused from the tenanted room and as such he got him falsely implicated in this matter in connivance with the mother of child victim. The other defence is that the accused had inimical terms with the mother of child victim on account of a quarrel which had taken place between them on the issue of drawing water from the tap.
Page 16 of 25SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi
21. 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.'
22. 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 17 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi 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.
23. 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.
24. In this case the claim of the accused that he has been falsely implicated in Page 18 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi the matter is not sustainable because PW5 has categorically deposed that one Bahadur Singh was his tenant and not the accused, therefore, why would PW5 conspire with the mother of child victim to evict him. The accused has not led any positive evidence to substantiate his defence. In terms of the aforesaid provisions the onus upon the accused to prove his innocence is quite heavy which he had failed to discharge. The defence has not questioned the age of child victim during trial. Although, there is no need for corroboration of the evidence of child victim, yet the medical evidence available on record duly corroborates the version of child victim as set out in the evidence of PW9.
25. In view of the above discussion, it is hereby held that prosecution has succeeded in proving charges against the accused for the offence punishable u/s 6 of the Act. Consequently, the accused stands convicted of the aforesaid offence.
26. Let the convict be heard on the point of sentence on 24.01.2017.
Announced in the open Court (Vinod Yadav)
on 20.01.2017 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
Page 19 of 25
SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi
IN THE COURT OF VINOD YADAV:ADDL. SESSIONS JUDGE01 (NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI (Sessions Case No. 1/16) Unique Identification No.: 02404R0001082016 State V/s Faiyaz @ Payazi FIR No. : 1043/15 U/s : 376 IPC & Sec. 6 of POCSO Act P.S. : Sultan Puri State V/s Faiyaz @ Payazi S/o Sh. Ibrahim R/o H. No. 1368, Katar Wali Gali, Lakhi Ram Chowk, Pooth Kala, Delhi Permanent Address : VPO : Pakli Barama, PS & Tehsil - Barama, Distt. Nawada, Bihar ....Convict 30.01.2017 Page 20 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi ORDER ON SENTENCE Pr: Ld.Addl.PP for state.
Convict produced from J.C with Ms. Urmila Yadav, ld. Amicus Curie. ORDER ON THE POINT OF SENTENCE In the present case, the convict - Faiyaz @ Payazi has been convicted u/s 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 aggravated penetrative sexual assault upon the child victim, a minor girl aged about 5 years by inserting his finger into her vagina 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 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 an old person aged about 50 years and is having the responsibility of his family consisting of his wife and three minor sons and he is the sole bread earner of his family. She further submitted that at the time of alleged incident, convict used to work as labour in a Plastic Dana Factory. She further submitted that convict is first time offender having clean antecedents and he has remained in Jail for a period of more than sixteen months, during trial of the case. She prays that in view of the aforesaid facts and circumstances, a Page 21 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi 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 the convict has been convicted in the matter, is highly derogatory. It stands proved that the convict had committed aggravated penetrative sexual assault upon the child victim, a minor girl aged about 5 years. However, considering that convict is first time offender having family to supply and having no previous criminal record, I take a lenient view and hereby award the convict to undergo 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, for offence u/s 6 of the Act.
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 Fundamental Rights of Personal Liberty and Life.
6. Even otherwise, the concept of welfare and well being of children is basic for any Page 22 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi 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 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 Page 23 of 25 SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi 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 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.
Page 24 of 25SC No. 1/16 : FIR No. 1043/15 : PS Sultan Puri : State V/s Faiyaz @ Payazi
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 30.01.2017) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
Page 25 of 25