Delhi District Court
State vs . Tej Kumar @ Tinku on 4 March, 2014
State Vs. Tej Kumar @ Tinku
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 53/13
ID No. : 02401R0121122013
FIR No. : 266/12
Police Station : Prasad Nagar
Under Section : 342/377 IPC &
6/8 POCSO Act
State
Versus
Tej Kumar @ Tinku
S/o Sh. Roshan Lal,
R/o H. No. 16/168-I ,
Bapa Nagar, Karol Bagh,
Delhi.
.........Accused
Date of Institution : 12.03.2013
Date of judgment reserved on : 17.02.2014
Date of judgment : 28.02.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Dinesh Sharma, Advocate, Amicus Curiae for the
accused
SC No. 53/13 Page 1 of 36
State Vs. Tej Kumar @ Tinku
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on December 21, 2012, complainant (since she is the Nani of a male victim of sexual assault, in order to conceal the identity of victim, her identity is also withheld and hereinafter she shall be referred to as a Nani of the victim or complainant) got recorded her statement (Ex. PW3/A) to the police alleging that her grandson (victim) aged about 6 years at about 6 PM went to public toilet to ease himself and she also followed him. It was alleged that when victim was easing himself in the public toilet, accused named Tinku also entered the same toilet and bolted the door from inside. Consequently, victim started weeping and after hearing his scream, complainant raised alarm, consequently, public persons gathered there and they got opened the door by banging the door of the toilet. It was alleged that at that time, the pant of victim was down, public persons gave beating to Tinku. On being asked, victim told the complainant that accused had given a sum of ` 20/- and attempted to commit sodomy with him. Consequently, a call was made to the police. Accused was handed over to the police. On her statement Ex.PW3/A, an FIR for the offence under Section 342/377/511 of Indian Penal Code (IPC in short) read with Section 4/18 of Protection of Children from Sexual Offences Act (POCSO Act in short) was got registered.
2. Accused was arrested by the police and he was got medically examined. Victim was also sent for medical examination.
3. During investigation, statement of victim was also got recorded under Section 164 of Code of Criminal Procedure (Cr. P.C. in SC No. 53/13 Page 2 of 36 State Vs. Tej Kumar @ Tinku short).
4. In his statement under Section 164 Cr. P.C., victim alleged that when he returned from his school in the evening, he told the complainant that he had to go to toilet, accordingly complainant asked him to go to outside as there was darkness at the toilet located in the house. Consequently, victim went to public toilet. It was alleged that when he was inside the toilet, accused named Tinku came there to whom he knew previously. Accused had given water in a container and he also entered the toilet and bolted the door from inside. Accused had put down his pant and gave ` 20/- and asked him let him to do sodomy with him (victim). Accused asked him to stand facing towards wall and thereafter he hugged him from behind and also put down his pant and thereafter he committed sodomy with him by inserting his penis in his anus. Consequently, he started weeping. It was further alleged that at that time accused was under the influence of liquor. Public persons came there and they rescued the victim and also gave beating to the accused. It was alleged that he rushed to his house and narrated the incident to the complainant, accordingly, complainant called the police.
5. After completing investigation, challan was filed against the accused for the offence punishable under Section 342/377 IPC read with Section 6/8 of POCSO Act.
6. Vide order dated March 12, 2013, cognizance was taken. Thereafter, case was assigned to this Court in terms of order dated March 18, 2013, accordingly case was registered as Sessions Case No. 53/13.
7. Vide order dated March 26, 2013, a charge for the offence SC No. 53/13 Page 3 of 36 State Vs. Tej Kumar @ Tinku punishable under Section 377/342 IPC read with Section 6/8 of POCSO Act was framed against the accused to which accused pleaded not guilty and claimed trial.
8. In order to bring home the guilt of accused, prosecution has examined as many as following 16 witnesses:-
PW1 Victim, material witness
PW2 Roop Chand, tea vendor, material witness but
turned hostile.
PW3 Complainant, Nani of the victim.
PW4 HC Vijay Singh, duty officer, proved the FIR.
PW5 Sonu Kumar, employee of public toilet, material
witness but turned hostile.
PW6 Const. Suresh Kumar, joined investigation with
IO.
PW7 HC Raghu Raj, joined the investigation with IO.
PW8 HC Devender Singh, MHC(M).
PW9 HC Raghu Nath, MHC(M).
PW10 Rakesh Kumar, Primary Teacher, proved the
date of birth of victim from the school record.
PW11 HC Rajesh Kumar, formal witness.
PW12 Const. Pratap Singh, formal witness.
PW13 SI Mangej Singh, investigating officer
PW14 Dr. Avinash, proved the MLC of accused.
PW15 Const. Anil, joined the investigation with IO.
PW16 Dr. Shyam Sunder, proved the MLC of victim.
SC No. 53/13 Page 4 of 36
State Vs. Tej Kumar @ Tinku
9. On culmination of prosecution evidence, accused was examined under Section 313 Code of Criminal Procedure wherein he denied each and every incriminating evidence led by the prosecution against him except that he was medically examined vide Ex.PW14/A and biological samples were taken vide Ex.PW11/A. It was submitted that he was consuming liquor near public toilet and maternal uncle of victim was also consuming liquor there but separately. As maternal uncle called him and offered him to take drink, he had taken a peg with him. Thereafter, the maternal uncle of the victim had given some money to him to fetch half bottle of liquor. It was submitted that since he was under the influence of liquor, he lost the said money. On this point, a quarrel had taken place between him and maternal uncle of the victim and thereafter his maternal uncle had got falsely implicated him in this case.
10. In order to prove his innocence, he examined himself as a DW1 and his brother Bharat Bhushan as DW2.
11. Before raising contentions on the facts of the case, learned counsel appearing for the accused raised a question of law as to whether any presumption can be drawn in favour of prosecution in terms of Section 29 of the POCSO Act. It was submitted that prosecution is not entitled for any presumption on mere prosecution of the accused; rather prosecution has to prove its case beyond reasonable doubt by leading cogent evidence. It was submitted that it is well settled law that every accused is presumed to be innocent unless his guilt is proved and if presumption is drawn in favour of prosecution under Section 29 of the POCSO Act on mere launching of prosecution against the accused, accused will be deprived from his fundamental right of claiming innocence. It was further submitted that accused cannot produce evidence in negative to prove his innocence. It SC No. 53/13 Page 5 of 36 State Vs. Tej Kumar @ Tinku was further submitted that presumption also lies in favour of prosecution in different statues like under Negotiable Instruments Act, NDPS Act, Indian Evidence Act, Prevention of Corruption Act but by the mere fact that some presumption in provided in the statute, complainant/prosecution can not be exonerated from their liability. Rather, it is well settled law that to draw a presumption in favour of complainant under Negotiable Instrument Act, complainant has to prove certain facts. In supports of his contentions, he relied upon the judgements Babu versus State of Kerala, Criminal Appeal No. 104 of 2009 decided by Apex Court on August 11, 2010, Mallavarapu Kasivisweswara Rao versus Thadikonda Ramulu Firm and others, (2008) 7 SCC 655 and Rangappa versus Sri Mohan, (2010) 11 SCC 441. It was argued that from the said judgements, it will become clear that prosecution cannot be absolved from its liability to prove the guilt of accused beyond the shadow of all reasonable doubts. It was submitted that in order to draw a presumption in favour of prosecution, prosecution has to prove the actus-rea on the part of the accused otherwise no presumption can be raised in favour of prosecution.
12. Learned counsel further contended that assuming for the sake of arguments that presumption can be raised in favour of prosecution, even then accused is entitled to disprove the prosecution case by the evidence led by prosecution and there is no requirement under law which may compel the accused to adduce independent evidence to rebut the presumption and in support of his contention, he relied upon the judgment K Ponnuswamy versus State of Tamilnadu by Inspector of Police, AIR 2001 SC 2464.
13. Per contra, learned Additional Public Prosecutor refuted the said contentions by vigorously arguing that in terms of Section 29 of the SC No. 53/13 Page 6 of 36 State Vs. Tej Kumar @ Tinku POCSO Act, presumption lies in favour of prosecution as soon as a person is prosecuted for any of the offences as enumerated under Section 29 of POCSO Act and onus is upon the accused to establish that he had not committed the offence. It was submitted that since in the instant case, a charge has been framed against the accused, onus is upon the accused to establish that he had not committed the offence. It was further submitted that to discharge the onus, accused has to lead cogent evidence in accordance with law. Since, in the instant case accused has failed to lead sufficient evidence, accused is liable to be held guilty for the charges framed against him.
14. Before dealing with the provisions of Section 29 of POCSO Act, I prefer to refer to Section 139 of the Negotiable Instrument Act (NI Act in short) and same reads as under: -
139. Presumption in favour of holder - It shall be presumed, unless is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability.
(emphasis supplied)
15. Bare perusal of the Section 139 of NI Act reveals that whenever a cheque is issued under Section 138 of the NI Act, Court shall presume unless contrary is proved that the said cheque was issued in discharge of in whole or in part of any debt or any other liability. However, to draw a presumption under Section 139 of the NI Act, complainant has to prove some other facts to prove the guilt of accused and same are defined in Clause (a) to (c) of Section 138 of NI Act and same are reproduced as under:-
SC No. 53/13 Page 7 of 36State Vs. Tej Kumar @ Tinku
138. Dishonour of cheque for insufficient, etc., of funds in the account - ............................................................
Provided that nothing contained in this Section shall apply unless: -
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may, makes a demand for the payment of the said amount of money by giving a notice in writing, to be drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
(emphasis supplied)
16. From the combined reading of Section 138 and 139 of the NI Act, it becomes crystal clear that before raising a presumption in favour of complainant, complainant has to establish that he had presented the cheque within the period of its validity; he has to establish that either he was payee or holder of the cheque in due course; that he had made a demand for the payment of amount by giving a notice in writing to the drawer of the cheque within 30 days on receipt of the information from the bank regarding the return of the said cheque as unpaid; and the drawer of the cheque failed to make the payment within 15 days on receipt of the said notice. On proving the above facts, a presumption will be drawn in favour of the complainant/plaintiff that the cheque was issued in discharge of whole or in part of any debt or any other liability. However, the presumption is rebuttable but initial onus is upon the defendant/accused to show that the SC No. 53/13 Page 8 of 36 State Vs. Tej Kumar @ Tinku cheque was not issued in discharge of any debt or any other liability.
17. But, presumption under Section 29 of the POCSO Act is not similar to the presumption as under Section 139 of NI Act. Section 29 of the POCSO Act reads as under:
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7 and Section 9 of this Act, the Special 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.
(emphasis supplied)
18. To draw a presumption in favour of prosecution, prosecution has to establish that accused is prosecuted for committing or abating or attempting to commit any of the offences which are mentioned:-
(i). under Section 3 of the Act i.e. Penetrative Sexual Assault.
(ii). under Section 5 of the Act i.e. Aggravated Penetrative Sexual Assault.
(ii). under Section 7 of the Act i.e. Sexual Assault.
(iv). under Section 9 of the Act i.e. Aggravated Sexual Assault.
19. Once prosecution is succeeded to establish the aforesaid pre-requisite condition, Special Court is bound to draw a presumption in favour of the prosecution that the said person i.e. accused has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved.
SC No. 53/13 Page 9 of 3620. Bare perusal of Section 29 of the Act reveals that the initially burden is upon the accused to show that he was not involved in the said case and once he is succeeded to raise a doubt over a prosecution case or to show his innocence by preponderance of probabilities, onus will be shifted upon the prosecution to prove the guilt of accused.
21. Now coming to the judgement relied upon by the counsel for accused. In case Babu versus State of Kerala (supra), it was observed by the Apex Court in Para 24:
"24. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The Courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like Negotiable Instrument Act, 1881; Prevention of Corruption Act, 1988; and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstance provided in those Statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in providing a negative fact. However, in case where the statue does not provided for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstance, such as those of statutes as referred to herein- above that the burden of proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution.
(emphasis supplied) SC No. 53/13 Page 10 of 36 State Vs. Tej Kumar @ Tinku
22. It is pertinent to state that the Apex Court had no opportunity to discuss the provision of Section 29 of POCSO Act as the Act was not in existence at that time. However, from the judgment, it is explicit that presumption of innocence is subject to statutory exception. It is also limpid that unless statute provides burden of proof upon the accused to prove his innocence, presumption of innocence shall be in favour of the accused and onus shall always be upon the prosecution to prove the guilt of accused. In other words, Legislature can shift the burden of proof on the accused by way of statutory provisions. Thus, to my mind, the said judgment is not helpful to the accused in any manner because Legislature by way of Section 29 of the POCSO Act withdrew the presumption of innocence from the accused and shifted the initial burden of proof upon the accused to show his innocence.
23. In case Mallavarapu Kasivisweswara Rao versus Thadikonda Ramulu Firm and Others (supra) it was held by the Apex Court that :-
"Upon consideration of various judgements as noted herein- above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he SC No. 53/13 Page 11 of 36 State Vs. Tej Kumar @ Tinku relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence it neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.
(emphasis supplied)
24. It becomes pellucid from the above said judgment that once execution of promissory note is established or it is admitted by the defendant, presumption will arise in favour of plaintiff but same shall be rebuttable. Defendant can prove non-existence of consideration by raising probable defence and if defendant is proved to have discharge the initial onus of proof by showing that the existence of consideration was improbable or same was illegal, the onus would shift to the plaintiff. Accused can discharge the onus by leading direct evidence or bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. However, in case where defendant fails to discharge initial onus, plaintiff would invariably be held entitled to the benefit of presumption in his favour. Thus, according to the said judgment, if the defendant is proved to have discharged the initial onus of proof showing SC No. 53/13 Page 12 of 36 State Vs. Tej Kumar @ Tinku that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of negotiable instrument. On the basis of same analogy, in the case of Protection of Children from Sexual Offences Act initially burden of proof is on the accused to show his innocence and if accused is succeeded to discharge his initial burden of proof , the onus would be shifted upon the prosecution to prove its case. No doubt, to discharge his onus, accused can also take assistance of the evidence led by the prosecution.
25. To my mind the findings of Rangappa versus Sri Mohan (supra) is also not helpful to the accused in any manner because in the said case, accused was asked to lead evidence first in view of the presumption under Section 139 of NI Act. As already discussed, there is a lot of difference between the presumption provided under Section 139 of NI Act and Section 29 of the POCSO Act. Under Section 139 of the NI Act presumption can be raised on the proof of certain facts which are mentioned in Section 138 NI Act whereas under POCSO Act, there is no other requirement to raise presumption except that accused has been prosecuted for any of the offences as enumerated in Section 29 of the Act. To my mind, in the present case said condition has been satisfied by the prosecution. I also do not find any substance in the plea of the defence, that prosecution is required to prove actus-rea before claiming presumption under Section 29 of the POCSO. If prosecution is asked to prove the actus-rea as a pre-requisite to draw presumption in its favour, Section 29 would become redundant because if prosecution is succeeded to prove the actus-rea, it would not require any presumption to prove the guilt of accused.
SC No. 53/13 Page 13 of 3626. Now coming to the next limb of arguments whether accused can discharge the onus by referring the evidence led by prosecution or not?
27. 'Shall presume' is defined under Section 4 of the Indian Evidence Act and same reads as under:
"Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."
(emphasis supplied)
28. A Combined reading of Section 29 of the POCSO Act with Section 4 of Indian Evidence Act makes it clear that unless and until accused disproves the prosecution case, Court shall presume that he has committed the offence.
29. 'Proved and disproved' are defined in Section 3 of Indian Evidence Act and same are read as under:
"Proved" - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist.
"Disproved" - A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
(emphasis supplied) SC No. 53/13 Page 14 of 36 State Vs. Tej Kumar @ Tinku
30. On perusal of the definition of 'proved and disproved', it becomes explicit that a fact can be proved or disproved after considering the matter before it. 'Matter' includes the material placed before the Court and if after considering the material, Court either believes it to exist or considers its existence so probable that a prudent person under the circumstances of the particular case to act upon the supposition that it exist it would amount to prove the fact otherwise it would be disproved. As already discussed in Mallavarapu Kasivisweswara Rao (Supra) that the defendant can discharge the initial burden either by direct evidence or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies makes it clear that accused can also discharge his initial onus by taking the assistance from the evidence led by the prosecution to disprove the prosecution case. Since, in the instant case prosecution has led the evidence, to my mind, accused can disprove the prosecution case by relying upon the evidence led by prosecution and if accused succeeds to disprove the prosecution case or to bring on record preponderance of probabilities by referring the evidence led by prosecution or otherwise, the onus will be shifted upon the prosecution to prove the case beyond reasonable doubt.
Contentions relating to the facts of the case:-
31. Learned defence counsel contended that no reliance can be placed on the testimony of victim as there is not only inordinate delay in lodging the FIR but there is also inordinate delay in getting recording the statement of victim under Section 164 Cr. P.C.
32. Per contra, learned Additional Public Prosecutor countered SC No. 53/13 Page 15 of 36 State Vs. Tej Kumar @ Tinku the submissions by arguing that there was no delay in lodging the FIR but conceded that though there was some delay in recording the statement of victim under Section 164 Cr. P.C, yet submitted that same is not sufficient to discard the testimony of victim, which is otherwise trustworthy.
33. First question emerges from their submissions is as to whether there was any delay in lodging the FIR, if yes, whether it is fatal to the prosecution case. Second question arises is as to whether there was any delay in getting recording the statement of victim under Section 164 Cr.P.C?
34. As per prosecution case, the alleged incident had taken place on December 21, 2012 at about 6 PM. and rukka was prepared at 11.20 PM, thereafter, FIR was got lodged at 11.35 PM. This is undisputed fact that police reached the spot on receipt of a call from wireless operator and the information was recorded vide DD No. 25A (Ex.PW4/A). As per record, the same was received in the police station at 6.16 PM and the information was that one person was doing dushkaram (sodomy) with a boy at I-Block near House No. 16/186 Hardyan Singh Road, Bapa Nagar, Delhi. This proves that there was no delay on the part of the victim party to inform the police about the alleged incident. Pursuant to the said call, SI Mangej Singh along with HC Raghu Raj reached the spot. As per endorsement made on the statement of complainant, it becomes clear that before preparing rukka, investigating officer had sent the victim and accused to the hospital for medical examination and when they returned from the hospital, he prepared the rukka. No doubt, to lodge an FIR, there was no requirement to wait for the result on the MLC of the accused or victim because the allegations levelled by the complainant disclosed the commission of cognizable offence, thus her statement was sufficient for the investigating SC No. 53/13 Page 16 of 36 State Vs. Tej Kumar @ Tinku officer to proceed with the matter by making necessary endorsement on her statement but he did not do so. The negligence on the part of investigating officer cannot be a ground to discard the prosecution case. Perusal of the MLC reveals that the victim reached the hospital at 10.30 PM. Since, the incident had taken place at about 6 PM, it means that victim was sent to the hospital after considerable time. PW13 in his cross-examination deposed that DD No. 25A was received to him between 6.20 PM to 6.25 PM and thereafter he reached the spot between 6.45 PM to 7 PM and he recorded the statement of complainant by 7.50 PM to 8 PM. Victim and accused were sent to hospital for medical examination, it means that constable took about 2 ½ hours to reach the hospital which appears quite unreasonable. He further deposed that he had received the MLC between 10.30 PM to 11 PM. Since, as per MLC, victim reached the hospital at 10.30 PM, thus, it is highly improbable that investigating officer would get the MLC prior to 11 PM. Since, the victim reached the hospital at 10.30 PM, it means that he was not sent to the hospital at 8 PM as deposed by PW13 but he must have been sent to the hospital much later probably between 9.30 PM to 10 PM. As the distance between hospital and the place of occurrence was not too far. The same can be covered within half an hour easily particularly in night. No doubt, it is manifested from the above that there are certain lapses in the testimony of PW13, but to my mind, the said lapses are not sufficient to discard the testimony of victim, if it is otherwise trustworthy.
35. Next question is as to whether there is any delay in getting recording the statement of victim under Section 164 Cr. P.C?
36. Indisputably, the alleged incident had taken place on December 21, 2012 and the statement of victim under Section 164 Cr. P.C was got recorded on January 11, 2013, thus, there is delay of about 20 SC No. 53/13 Page 17 of 36 State Vs. Tej Kumar @ Tinku days in getting recording the statement of victim under Section 164 Cr. P.C. No doubt, under Section 25 of POCSO Act, a duty has been cast upon the investigating officer to get record the statement of victim under Section 164 Cr.P.C but there is nothing either in POCSO Act or Code of Criminal Procedure, which may show that any time period is prescribed for getting recording the statement of victim under Section 164 Cr. P.C. Since, the Legislature has not fixed any time schedule to get record the statement of victim under Section 164 Cr. P.C., it would not be proper for the Court to fix any such time schedule. Admittedly, in the instant case, the victim is aged about only six years, thus some time may be required to the victim to come out from the trauma. Moreover, in the instant case, no effort was made by the defence to seek explanation from the investigating officer about the said delay. In other words, no opportunity was given to the investigating officer to justify the delay in moving the application to get record the statement of victim under Section 164 Cr. P.C.. There may be numerous reasons for such delay for instance investigating officer may not be available or victim may not be available. In the absence any cogent evidence, I am of the view that the delay is not sufficient to discard the testimony of victim.
37. Learned counsel appearing for the accused energetically contended that no reliance can be placed on the testimony of victim as prosecution case is that accused had given a currency note of ` 20/- to the victim but the said currency note was not recovered from the spot despite the fact that investigating officer had checked the toilet carefully. On the other hand, learned Additional Public Prosecutor refuted the said contention by arguing that mere fact that the currency note of ` 20/- was not recovered is not sufficient to disbelieve the deposition of victim.
38. As per the testimony of PW1, accused had given a currency SC No. 53/13 Page 18 of 36 State Vs. Tej Kumar @ Tinku note of ` 20/- but the same had fallen in the toilet itself. It is admitted case of the prosecution that the said note could not be recovered. PW13 in his cross-examination deposed that though he had checked the toilet carefully but the said note was not found. It is undisputed fact that after the incident numerous persons gathered there and they had beaten the accused also. In such circumstances, it can not be ruled out if the said currency note might have been picked up by any person. To my mind, the non-recovery of currency note is not fatal to the prosecution case in any manner.
39. Learned defence counsel further vigorously argued that no reliance can be placed on the testimony of victim as no injury was found on the rectum of victim. It was submitted that had the full penis been inserted as deposed by the victim, there would have been some injuries on the rectum of victim but it is not so. Thus, the testimony of victim is unreliable. On the converse, learned Additional Public Prosecutor refuted the said contentions by arguing that the testimony of victim can not be discarded on the mere ground that no injury was found on his person.
40. From the MLC of victim, it is manifested that no injury mark was found on his anus. PW16 Dr. Shyam Sunder in his testimony reiterated the fact that he did not notice any injury on the person of victim. In his cross-examination he deposed that if a male of 25 years have a anal sex with a boy of 6 years old with full insertion of penis, there is every likelihood that injury would cause on the anus of the boy. However, injury may not appear, if there is a partial insertion of penis. Similarly, PW14 Dr. Avinash in his cross-examination clarified that there may be very less chance that injury may not cause on the rectum of victim aged about 6 years if there is full insertion of penis in his anus. He also clarified that there is no hard and fast rule if any injury will be caused on the penis. Thus, from the testimony SC No. 53/13 Page 19 of 36 State Vs. Tej Kumar @ Tinku of PW14 and PW16, it becomes clear that injury will be caused only if there is full insertion of penis. PW1 in his testimony nowhere deposed that accused had inserted his full penis. Rather, he deposed that uncle accused hugged him from behind and inserted his penis in his anus and since he felt pain he started crying, thereafter, someone opened the door and rescued him. Even no attempt was made during his cross-examination to seek clarification whether accused had inserted his penis full or partial. In the absence of any cogent evidence, it will not be proper to arrive at a conclusion that accused had inserted full penis. PW16 has clarified that injury may not be possible if the insertion of penis is partial or insignificant. Accordingly, I do not find any substance in the contention raised by the defence counsel.
41. Learned counsel further contended that no reliance can be placed on the testimony of prosecution case as there was no occasion for the victim to go to public toilet when there was a toilet in the house itself. On the converse of learned Additional Public Prosecutor refuted the said contention by arguing that PW1 and PW2 had clarified the same in their testimony for the reason going to public toilet.
42. PW1 in his examination-in-chief deposed that his Nani (complainant) asked him to go outside for toilet, accordingly, he went to the public toilet located at some distance from his house. PW1 in his cross- examination admitted that there is a toilet at the roof of the house. PW3 clarified in her deposition that she asked the victim to go outside because there was no light at that time. In view of the explanation furnished by the witnesses, I do not find any substance in the contention raised by the counsel.
SC No. 53/13 Page 20 of 3643. Learned counsel further contended that no reliance can be placed on the testimony of prosecution version as their testimony are not corroborated by any independent witnesses as all the independent witnesses turned hostile. Learned Additional Public Prosecutor refuted the said contention by arguing that mere fact that few witnesses did not support the prosecution case is not sufficient to discard the entire prosecution case.
44. In order to prove the guilt of accused, prosecution had also relied upon the statement of PW 2 Roop Chand, tea vendor who allegedly opened the door of toilet and PW5 Sonu Kumar who was working as a caretaker in the public toilet. However, both the witnesses turned hostile and did not support the prosecution case. PW2 deposed that he had seen some quarrel was going on between the accused and one Manish on December 21, 2012 at about 6 PM and bleeding was going on from the mouth of Tej Kumar and he was in drunken condition. However, he denied the fact that when he had gone to public toilet to attend the call of nature, victim also entered the toilet and at that time accused also came there and he was having currency note of ` 10/- in his hand and was also having a water container and entered the same toilet in which victim had entered and when he heard screaming of victim, he had opened the door and rescued the victim. Similarly, PW5 also did not support the prosecution case by deposing that he did not hear the weeping of any child from any toilet or that public banged the door of toilet and got it opened and thereafter rescued the child. However, PW2 and PW5 deposed that police came there and apprehended one person and thereafter they went away. PW2 deposed that police had taken the accused from the spot. Though, PW5 deposed that police had taken one person but failed to depose whether he was accused or someone else. Thus, from their testimony, it is clear that police had apprehended one person and police had taken him to SC No. 53/13 Page 21 of 36 State Vs. Tej Kumar @ Tinku the police station and PW2 deposed that said person was Tej Kumar. PW5 also testified that public person told him that one boy was inside the toilet and he was a small boy. In these circumstances, it can not be said that PW2 and PW5 did not support the prosecution case in any manner. Rather the testimony of PW5 corroborates the testimony of PW1 who deposed that he went to public toilet and the alleged incident had taken place with him. Mere fact that they failed to corroborate the entire prosecution case is not sufficient to discard the testimony of victim particularly when both the witnesses deposed that police came there and they apprehended one person i.e. accused and one small boy was inside toilet.
45. Learned counsel appearing for the accused contended that no reliance can be placed on the testimony of victim as same is contrary to the prosecution case because prosecution had set up a case against the accused that only attempt was made to commit sodomy whereas victim deposed that accused had in fact committed sodomy. It was further submitted that prosecution has set up a case that complainant accompanied the victim and she was waiting outside when victim was inside the toilet but when she appeared in the witness box she deposed that she did not accompany with the victim and came to know about the incident when victim returned to house while weeping and narrated the incident.
46. Learned Additional Public Prosecutor fairly conceded that there are contradictions between in the testimony of complainant, statement of victim recorded by the investigating officer under Section 161 Cr. P.C. and their deposition made in the Court but submitted that there is no contradiction between testimony of victim and statement made before the learned Metropolitan Magistrate under Section 164 Cr. P.C. it was SC No. 53/13 Page 22 of 36 State Vs. Tej Kumar @ Tinku submitted that it appears that investigating officer had not conducted the investigation fairly and diligently, due to that reason the said contradictions have cropped up in the prosecution case. It was submitted that since there is no contradiction between the prosecution case and the statement made before the learned Metropolitan Magistrate, there is no reason to disbelieve the prosecution case.
47. Before dealing with the contentions raised by counsel for both the parties, I prefer to deal with the testimony of PW13 SI Mangej Singh, investigating officer. If we believe the testimony of PW13, he reached the spot by 6.25 PM and remained there till 12 night. According to his testimony, complainant also remained with him till 12 midnight. Admittedly, complainant is an old lady of 60 years. It means that PW13 forced the complainant to be remained at the spot for about 6 hours despite the fact that he had recorded her statement by 7.50 PM. This shows how PW13 had conducted the investigation. According to him, he had just waited for the MLC of the victim and accused during the period 8 PM to 11 PM. In other words, he remained at the spot just to wait for MLCs for about 3 hours. To my mind, it is highly unbelievable. Though in order to justify his presence at the spot during the said period, he swiftly added that he made inquiry from PWs Roop Chand, Manish, Sonu and 2-3 other persons and also recorded their statement. However, when he was asked whether he had mentioned this fact in the endorsement made on the statement of complainant, he took a somersault by deposing that he had recorded the statement of the said persons during the period 11.20 PM to 12 PM i.e. after sending the rukka. It means that he remained at the spot for about 3 hours without any work. Is it believable? Answer is certainly, No.
48. As already discussed that the testimony of PW13 to the SC No. 53/13 Page 23 of 36 State Vs. Tej Kumar @ Tinku extent that the victim was sent to the hospital by 8 PM is also not digestible as the victim reached the hospital only at 10:30 PM. Had he been sent to the hospital by 8 PM, he would have reached the hospital by 8:30 PM or 8:45PM as the distance between the hospital and place of incident is not too far. Admittedly, the victim is a tot aged about 6 years and the alleged incident had taken place approximately at about 6 PM. If the victim was sent to the hospital by 8 PM and he reached the hospital at 10:30 PM and returned to the spot by 11 PM, it means that the victim was forced to be remained with the police for about 5 hours. Considering age of the victim, it was not the duty of investigating officer to expedite the matter or to relieve him at the earliest. We know that police officials are also human being and they are not superman and it is also not feasible to conduct the entire investigation at the spot itself, which police officers generally used to claim knowingly well that their claim is not genuine. If PW13 had sent the victim to the hospital at 8 PM, he could have asked the constable to relieve the victim at the earliest or if he did not send the victim, he could easily record in the rukka that victim being the tot was given some time to come out from trauma and to have had his dinner and thereafter he was sent to hospital for medical examination. Needless to say that investigating officer is required to adopt human approach while dealing with a child victim.
49. PW2 and PW5 deposed that after apprehending the accused, police official had left from the spot. In these circumstances, it appears more plausible that after recording the statement of complainant, PW13 must have left for the police station and prepared the rukka in the police station when he received the MLC and in order to justify that he had conducted all investigation at the spot, he had concocted a story that he remained there till 12 midnight, which in the given circumstances is highly improbable and unbelievable.
SC No. 53/13 Page 24 of 3650. Now coming to the testimony of the complainant. No doubt, there is contradiction between the complaint Ex.PW3/A and deposition made by the complainant in the Court. In her complaint Ex.PW3/A, she alleged that she accompanied the victim while he went to public toilet to ease himself and she saw that accused had entered the same toilet in which victim had entered and thereafter accused had bolted the door from inside and when she heard weeping of victim, she raised alarm and public persons got opened the door and rescued the victim. Admittedly, the complainant is uneducated old lady and she in her deposition categorically deposed that she had not made any such statement to the police. Rather, she deposed that when victim returned from the school at 6 PM, he asked her that he had to go to toilet to ease himself, accordingly, she told him to go to public toilet as there was no light. Accordingly, victim had gone to public toilet located near her house and after 30-40 minutes, victim returned to house while weeping and told her that his maternal uncle had beaten him. She had also noticed finger marks on his cheek. Victim also narrated the incident to her and told that public persons were beating Tinku. Accordingly, she reached there and saw that public persons were beating Tinku. Thereafter, she made a call to the police and police reached there. She was cross-examined in detail by the learned Additional Pubic Prosecutor but she denied all averments made in the complaint Ex.PW3/A. No doubt, the said contradictions create a doubt over the prosecution case. But the allegations made in the Ex.PW3/A are otherwise not probable because if complainant be present at the time of incident while waiting outside the toilet, she would not have allowed the accused to enter the same toilet. Rather she would have raised hue and cry immediately. But it is no so. Even no effort was made by the investigating officer to seek clarification from her why she did not raise alarm when she had seen the accused to enter the same toilet. This shows that her statement was not SC No. 53/13 Page 25 of 36 State Vs. Tej Kumar @ Tinku recorded in the manner in which she might have stated to the police and the possibility that investigating officer might have recorded the statement of complainant of his own cannot be ruled out. The testimony of PW3 is fully corroborated by PW1 who deposed that he informed the incident to his Nani when he reached the house after incident. Even in his statement under Section 161 Cr. P.C. victim did not allege that his Nani had followed him or accompanied him when he went to public toilet. No doubt, in his statement he also alleged that his Nani and others had banged the door to rescue him but no effort was made to seek clarification from him how his Nani reached there when he did not state that his Nani accompanied him.
51. In his statement under Section 164 Cr. P.C. victim had narrated the incident in detail and in his statement he did not state that his Nani also accompanied him. Rather he deposed that after the incident, he returned to his house and narrated the incident to his Nani. Since, there is no substantial deviation in the deposition of victim from his statement made under Section 164 Cr.P.C., I do not find any reason to discard the victim's testimony.
52. Learned defence counsel also pointed out some improvements in the testimony of PW1 as PW1 did not state in his statement under Section 161 Cr. P.C that when accused inserted his penis, he felt sever pain. To my mind, the said improvement is insignificant and is not sufficient in any manner to discard the testimony of victim. PW1 also admitted that he told the name of accused as Tinku to the police but this fact is not mentioned in the statement under Section 164 Cr. P.C. To my mind, the said improvement is not fatal to the prosecution case in any manner as in his examination-in-chief, he categorically deposed that he knew the accused previously as he was working in the factory located near SC No. 53/13 Page 26 of 36 State Vs. Tej Kumar @ Tinku his house. Even accused admitted in his testimony that he was working in the jeans factory. Admittedly, accused and victim are also residing in the same locality i.e. Bapa Nagar. Accused's house number is 16/168 whereas the house number of victim is 16/181. In these circumstances, there is no reason to disbelieve the testimony of PW1 when he deposed that he knew the accused previously. He also deposed that accused is working in the factory where threads of jeans are being manufactured.
53. From the aforesaid discussion, it becomes clear that there is some contradictions between the prosecution case and the statement of complainant i.e. PW3 but there is no material contradiction between the statement of victim recorded under Section 164 Cr.P.C and the testimony of PW1, thus, I do not find any reason to discard the testimony of victim.
54. Learned counsel appearing for the accused contended that no reliance can be placed on the testimony of victim as he is a tutored witness as when he was asked where did he go, he immediately stated that he went to toilet after intimating his Nani. I am unable to understand how the answer to the said question is sufficient to arrive at a conclusion that he was a tutored witness. Though during cross-examination numerous questions were asked from the witness, but he had given rational answers to all the questions. During entire deposition of PW1 nothing has been pointed out specifically which may be sufficient to arrive at a conclusion that he was a tutored witness. Rather, from his testimony it is abundantly clear that he had narrated the incident vividly. Thus, I do not find any merit in the submission made by the counsel.
55. Before dealing with the testimony of victim, I prefer to deal with the evidence led by the accused. To prove his innocence, he examined SC No. 53/13 Page 27 of 36 State Vs. Tej Kumar @ Tinku himself as DW1 and his brother Bharat Bhushan was examined as DW2. By virtue of their testimony, accused intended to prove that he was sent to liquor shop by the maternal uncle of victim after giving a currency note of ` 500/- and a slip containing the brand name of liquor with direction to bring a bottle of liquor of the said brand. But on the way, he had lost the currency note of ` 500/- and the said slip and due to that reason, the maternal uncle of victim had picked up a quarrel with him and thereafter gave beating to him and then falsely implicated him in this case.
56. Perusal of the testimony of DW1 reveals that he himself admitted in his examination-in-chief that he reached the public toilet but took the plea that he did not know how he reached there. This corroborates the testimony of victim that accused was in the public toilet when the alleged incident had taken place. Though, accused took the plea that he was sent to the liquor shop to fetch a liquor bottle of a particular brand and maternal uncle of victim had given a sum of ` 500/- but on the way ` 500/- was lost. From the testimony of DW1, it becomes clear that he was consuming liquor near public toilet. He took the plea that he lost amount of ` 500/- and slip as he was under the influence of liquor. If there is any substance in his deposition, it means that he was not in a position to recall where was he; what was he doing? Thus, if in that inebriated condition he entered public toilet and committed sodomy with the victim, there is no reason to disbelieve the testimony of victim when he categorically deposed that it was accused who entered the toilet and committed sodomy with him.
57. DW1 and DW2 also set up a case that accused was arrested from his house but their testimony is contrary to evidence on record. Not only all the police officials witnesses categorically deposed that accused SC No. 53/13 Page 28 of 36 State Vs. Tej Kumar @ Tinku was arrested from the spot itself but even hostile witnesses namely PW2 and PW5 also testified that accused was arrested from the public toilet itself. Thus, defence version to the extent that he was arrested from his house does not inspire any confidence. Rather, it appears that a story was invented to disprove the prosecution case.
58. Perusal of the personal search memo of the accused proves that neither any cash amount nor any slip was recovered from the possession of accused. If he was consuming liquor near public toilet and the sum of ` 500/- was given to him, it means that he must have lost the said amount near public toilet, but the same was not noticed by anyone. Even no suggestion was given to the witnesses examined by the prosecution. Even no question was put to PW13 about the said amount of ` 500/-. It is also admitted case of the accused that he was consuming liquor there and maternal uncle of victim was consuming liquor at some distance with 2-3 other persons. But no attempt was made to bring them in the witness box. In the absence of any cogent evidence, I do not find any substance in the defence version. On the contrary, defence version corroborates the testimony of victim to the extent that accused had entered the public toilet in inebriated condition.
59. Now coming back to the testimony of PW1. PW1 in his examination-in-chief categorically deposed that when he asked his Nani (PW3) that he had to go to toilet to ease himself, his Nani asked him to go to outside, accordingly, he went to public toilet, which was located at some distance from his house. He further deposed that while he was sitting inside the toilet, one uncle i.e. accused came there and pushed water pot inside the toilet and thereafter the said uncle also entered the said toilet and thereafter the said uncle bolted the door from inside and put down his SC No. 53/13 Page 29 of 36 State Vs. Tej Kumar @ Tinku pant and gave ` 20/- stating that 'gaand mara le'. He further deposed that the said uncle hugged him from behind and inserted his penis in his anus. Thereafter, he cried as he felt sever pain. Someone came there and opened the door by pushing hard and rescued him. He further deposed that the said uncle i.e. accused was beaten by the persons who rescued him and other persons also gathered there and they had also beaten him. He also clarified that the name of said uncle was Tinku and he knew him previously as he was working in factory near his house. Though witness was cross-examined in length, but nothing came out during his cross- examination which may cause any dent in his testimony. In his cross- examination, he clarified that accused remained inside the toilet for a short while but stated that he cannot tell duration in minutes. Since, victim was mere 6 years old at the time of incident, it is not expected from such a witness to recall each and every minor detail. Thus, when he failed to tell the duration, to my mind, same is not fatal to the prosecution case in any manner. As already discussed that the improvements as pointed out in the testimony of PW1 are insignificant because all substantial facts are mentioned in his statement under Section 164 Cr. P.C.
60. No doubt, PW1 deposed that his maternal uncle reached there later on when someone called him. Assuming for the sake of arguments that his maternal uncle had also given beating to the accused, I am of the view that beating was a natural reaction on the part of his maternal uncle and this does not prove that he had falsely implicated the accused.
60. PW2 testified that accused was in drunken condition when he was apprehended by the police. This further corroborates the testimony of PW1. From the testimony of PW1 and PW2, it becomes clear that accused SC No. 53/13 Page 30 of 36 State Vs. Tej Kumar @ Tinku was in inebriated condition when he entered the public toilet and thereafter entered the toilet where victim was easing himself and thereafter he committed sodomy with him.
62. Now question arises as to whether general defence under Section 85 IPC is available to the accused or not? Section 85 of IPC reads as under:
85. Act of a person incapable of judgment by reason of intoxication caused against his will - Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
(emphasis supplied)
63. To claim a defence under Section 85 of IPC, accused has to establish that he was intoxicated without his knowledge or against his will. Admittedly, in his deposition, accused himself admitted that he was consuming liquor without any force or pressure, thus he was very much aware that he was consuming liquor. Admittedly, it is not the case of accused that someone had forced him to consume liquor against his knowledge or will. Thus, to my mind, accused is not entitled to claim defence under Section 85 of IPC.
64. From the testimony of PW1, it is established that act of accused falls within ambit of Section of 5 of POCSO Act as he was much below 12 years at the time of incident and his act also satisfies the SC No. 53/13 Page 31 of 36 State Vs. Tej Kumar @ Tinku ingredients of Section 377 IPC, thus accused is liable for the offence punishable under Section 6 of POCSO Act as well as Section 377 IPC. Since, accused had also bolted the door from inside the toilet, accused is also liable for the offence punishable under Section 342 IPC. Since, act of accused proves his guilt for the offence punishable under Section 6 of POCSO Act, no separate finding is required for the offence punishable under Section 8 of the POCSO Act which is minor in nature.
65. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused beyond the shadow of all reasonable doubts, thus, I hereby hold the accused Tej Kumar guilty for the offence punishable under Section 377/342 IPC read with Section 6 of POCSO Act.
Announced in the open Court on this 28th day of February, 2014 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central district, Tis Hazari, Delhi SC No. 53/13 Page 32 of 36 State Vs. Tej Kumar @ Tinku IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 53/13 ID No. : 02401R0121122013 FIR No. : 266/12 Police Station : Prasad Nagar Under Section : 342/377 IPC & 6 POCSO Act State Versus Tej Kumar @ Tinku S/o Sh. Roshan Lal, R/o H. No. 16/168-I , Bapa Nagar, Karol Bagh, Delhi.
.........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Dinesh Sharma, Advocate, Amicus Curiae for the accused ORDER ON THE POINT OF SENTENCE : -
1. Vide separate judgement dated February 28, 2014, accused had been held guilty for the offence punishable under Section 6 of the SC No. 53/13 Page 33 of 36 State Vs. Tej Kumar @ Tinku Protection of Children from Sexual Offences Act, 2012 (POCSO Act in short) and under Section 377/342 of Indian Penal Code (IPC in short).
2. Learned counsel appearing for the convict prays for minimum sentence on the grounds that convict is a young boy of 26 years having no criminal antecedents. It is further submitted that even as per prosecution version, convict was under the influence of liquor, thus there is every possibility that he had committed the sodomy under the influence of liquor otherwise there is nothing on record which may show that he had committed the offence with premeditation.
3. Per contra, learned Additional Public Prosecutor requests for maximum punishment on the ground that since convict had chosen an innocent tot aged about 6 years to satisfy his lust, he does not deserve any leniency.
4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. Indisputably, victim was just six years old at the time of incident and this is one major substantial aggravating factor against the accused. But on the other hand, there are several mitigating factors in favour of the convict, which are also relevant to determine the quantum of sentence. First mitigating factor is that convict is a young boy of 26 years old having no criminal antecedent. Secondly, that there is nothing on record which may suggest that it was a premeditated offence. Thirdly, the convict was in inebriated condition. Though this fact is not relevant for the purpose of deciding the culpability, yet to my mind, same is relevant for the purpose SC No. 53/13 Page 34 of 36 State Vs. Tej Kumar @ Tinku of sentence. Since, he was in inebriated condition, the possibility that sexual desire may develop all of sudden after finding the victim alone can not be ruled out. Fourth, there is nothing on record, which may suggest that the convict had acted in any cruel manner; no injury is found on the person of victim. Fifth, from the evidence of doctors, it can safely be culled out that there was either partial or insignificant insertion of penis. Though this fact is not relevant to hold the culpability of the accused but certainly is relevant at the time of determining the sentence.
6. Considering the aforesaid aggravating factors and mitigating factors, I am of the considered opinion that it is not a fit case to award maximum punishment as prayed by learned Additional Public Prosecutor.
7. Minimum sentence for the offence punishable under Section 6 of the POCSO Act is ten years which may extend to imprisonment for life.
Considering the mitigating factors, I am of the considered opinion that ten years punishment is apposite in the facts and circumstances of the case.
8. In the light of aforesaid discussion, I hereby sentence the convict Tej Kumar @ Tinku rigorous imprisonment for ten years and a fine of ` 10,000/- in default of further simple imprisonment for a period of six months for the offence punishable under Section 6 of POCSO Act. No separate sentence is passed for the offence punishable under Section 377 IPC as the same act i.e. penetrative sexual assault also falls within the ambit of Section 377 IPC. However, convict Tej Kumar @ Tinku is also sentenced rigorous imprisonment for six months for the offence punishable under Section 342 IPC. All sentences shall run concurrently and convict shall be entitled for the benefit of Section 428 Cr.P.C.
SC No. 53/13 Page 35 of 369. Since, the victim must have undergone some trauma due to act of the convict, a compensation is recommended to the victim under Section 357A Cr. P. C. Accordingly, copy of order on the point of sentence be sent to the Secretary Legal Aid Service, Central District to determine the quantum of compensation. SHO Prasad Nagar shall assist the Secretary Legal Aid Service in determining the quantum of compensation and in identification of the victim.
10. Copy of judgement along with order on the point of sentence be given to the convict/his counsel free of cost. Since, during trial accused is represented by learned amicus-curiae, copy of deposition of all witnesses and copy of charge be also given to the convict free of cost.
11. Fine amount is not paid.
12. File be consigned to record room.
Announced in the open Court on this 4th day of March, 2014 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central district, Tis Hazari, Delhi SC No. 53/13 Page 36 of 36