Delhi District Court
Sc No: 185/13 State vs . Sandeep on 4 February, 2016
SC No: 185/13 State Vs. Sandeep
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 185/13
FIR No. 278/13
Police Station SP Badli
Under Section 354 IPC & 8 POCSO
ID No. 02404R0-248742013
State
Versus
Sandeep
S/o Sh. Surjit Singh,
R/o Village Naugaon, District Manpuri,
PS Korawali, UP.
......Accused
Date of institution 06/08/13
Judgment reserved on 08/01/16
Judgment Pronounced on 29.01.2016
Decision Convicted
Judgment 1 of 13
SC No: 185/13 State Vs. Sandeep
JUDGMENT
1. Accused is facing trial on allegations of sexually assaulting victim S, a girl aged about 5 years.
2. FIR in question was registered on the written complaint lodged by complainant Jyoti wherein she alleged that on 11.06.2013 at about 12 noon she was going to bring her elder sister Santoshi. As she reached at Public Toilet near park, she saw that a person was having daughter of her neighbor namely 'S' aged around 4-5 years in his lap. He was putting his hands inside the underwear of victim and he was giving some snacks (Namkeen etc.) to her. He was doing some obscene act with her. She went back to the house for informed the incident to her sister Santoshi who in turn informed to the mother of the victim. Then some ladies of the locality went near the park and apprehended accused Sandeep. It was stated that accused has molested the victim and hence legal action be taken against him.
Judgment 2 of 13
SC No: 185/13 State Vs. Sandeep
3. Accused was arrested and charge-sheeted. Charge
for the offence punishable 10 POCSO (Protection of Children from Sexual Offences) Act, 2012 was framed against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution in all has examined 10 witnesses.
5. PW1 Jyoti is complainant, she deposed that on the date of incident at about 12 noon she was going to bring the daughter of his sister Santoshi. She saw on the back of a tempo parked near the park, accused had taken in his lap daughter of her neighbor aged around 4-5 years. Accused was putting his hands inside the underwear of victim and he was giving some snacks (Namkeen etc.) to her. Accused was doing some obscene act with her. She went back to the house for informing the fact to her sister Santoshi. Her sister Santoshi in turn informed to mother of the victim. Then her mother, mother of victim, Santoshi and other two ladies went near the park and that person was still sitting with the Judgment 3 of 13 SC No: 185/13 State Vs. Sandeep victim. That person was apprehended by all the ladies and brought him to the house. Somebody made a call to the police. Police came there and the said person was handed over to the police. Police recorded her statement proved as Ex.PW1/A. Police arrested accused vide memo Ex PW1/B and she shown the place where that person was doing the obscene act with victim. She proved her statement recorded u/s. 164 Cr.P.C. as Ex.PW1/C.
6. PW2 is mother of the victim. She deposed that on the date of incident she was sitting outside her house. At noon time, Jyoti along with her sister Santoshi came and told her that, a person was putting his hand in the underwear of her daughter near the park and he was sitting inside the tempo, which was parked in the park premises. Thereafter, she along with Santoshi & Jyoti went there, where she saw that her daughter was standing outside the tempo and accused was sitting inside the tempo. she started beating the accused. Thereafter, accused was brought in the locality and somebody had made the call to police. Police arrived there and Judgment 4 of 13 SC No: 185/13 State Vs. Sandeep accused was handed over to the police. Police took her daughter for her medical examination at BSA Hospital, but she had refused for her internal medical examination.
7. PW3 Dr Brijesh Narayan proved the MLC of the accused as Ex. PW3/A.
8. PW4 ASI Anoop Singh proved FIR in question as Ex PW4/A and his endorsement over rukka as Ex PW4/B.
9. PW5 Santoshi deposed that her younger sister Jyoti told her that a drunken man had taken victim in his lap and he was sitting in the three wheeler and was put his hand in the under garments of victim and assaulted her. She immediately went to the house of mother of victim and informed the above facts. She along with mother of victim went to that place and that boy was apprehended who was assaulting victim. Somebody called the police. Police apprehended and arrested the accused.
Judgment 5 of 13
SC No: 185/13 State Vs. Sandeep
10. PW6 Ct Radhika took the victim for her medical examination to BSA Hospital.
11. PW7 is victim but she was unable to give rational answers put to her and was not considered a competent witness.
12. PW8 Dr Nidhi Sehrawat proved the MLC of the victim as Ex PW8/A.
13. PW9 HC Ramesh Dutt proved the arrest of accused, his personal search & disclosure statement vide memo Ex PW1/B & Ex. PW9/A & B.
14. PW10 SI Ashok Kumar recorded the statement of complainant and prepared rukka Ex. PW10/A and got registered the FIR. He prepared site plan Ex. PW10/B at the instance of complainant. He arrested the accused and also got recorded the statement of complainant u/s 164 Cr.P.C.
Judgment 6 of 13
SC No: 185/13 State Vs. Sandeep
15. On conclusion of the prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. wherein the accused stated on the date of incident, he was standing and eating Namkeen near a park. Some children were playing there. They asked Namkeen from him to which he gave children to eat. After sometime, the mother of victim came there and gave Danda blows to him. He did not know what was the reason for that. He claimed that he did not commit any sexual assault on the child. He claimed his innocence.
16. Ld. Amicus Curiae has argued that the prosecution has miserably failed to prove its case. It is submitted that although although mother of the victim has been cited as eye witnesses to the incident but she has denied to have seen the incident. It is argued that there is no medical evidence of assault, therefore, the accused is entitled to be acquitted.
Judgment 7 of 13
SC No: 185/13 State Vs. Sandeep
17. Per contra, it has been submitted on behalf of the State that the testimonies of complainant and other witnesses are trustworthy and reliable and the same clearly establishes the guilt of the accused. It is submitted that the accused has been duly identified by the eye witness as the person who sexually assaulted victim. Hence, the prosecution case has been proved against the accused beyond any reasonable doubt.
18. I have heard the Ld. Amicus Curiae as well as the Ld. Addl. PP and perused the record.
19. Age of victim:- Since the charge against the accused is framed under POCSO Act, it is necessary to find out what was the age of victim on the date of the alleged commission of offence. Prosecution has not led any evidence to prove date of birth of the victim. However, MLC of the victim Ex. PW6/A mentions her as 5 years. It has also come in the testimony of other witnesses that the age of the victim was about 5 years. Defence has not disputed age Judgment 8 of 13 SC No: 185/13 State Vs. Sandeep of the victim in any manner. Thus, victim is found to be girl aged about 5 years and thus, is a 'child' within the meaning of POCSO Act and much below the age of 12 years.
20. Testimony of eye witness: First line of argument of the defense is that except for PW1 no body else claims to have seen the accused committing the sexual assault upon the victim. It is further submitted that the testimony of PW1 is not reliable for the simple reason that if at all she had seen the accused in indulging such an act then her first reaction was to stop the accused in doing such an act but she did not do so. It is argued that in these facts accused cannot be held guilty of committing such an act.
21. While appreciating the testimony of PW1, it has to be kept in mind that she was merely 16-17 years of age when she saw the incident happening. PW1 being herself a young girl could not had gathered the courage to stop the accused rather she preferred to rush to the house of the victim to inform her mother. Thus, I find Judgment 9 of 13 SC No: 185/13 State Vs. Sandeep that the reaction of PW1 on rushing to the house of the victim after seeing the incident was natural and her testimony cannot be rejected on this ground.
22. No material contradiction has come in cross- examination of PW 1 to disbelieve her deposition. She is stranger to accused and no motive has been attributed to her for making such allegations against the accused. More so, accused in his statement recorded u/s 313 Cr.P.C also admits that he gave namkeen to the children. Presence of accused on the spot with the victim stands established by not only from the testimonies of prosecution witnesses but the accused himself admits to be present on the spot.
23. True that except for PW1 nobody claims to have seen the accused putting his hands inside the underwear of the victim but another fact that establishes the guilt of the accused is that the victim was found in the company of accused by the mother of the victim as well as PW5 who reached the spot after being informed Judgment 10 of 13 SC No: 185/13 State Vs. Sandeep by PW1. Presence of accused with the victim clearly indicates his culpable state of mind. Needless to say that the accused has not been able rebut such a presumption established by facts.
24. Medical Evidence: It has been contended on behalf of the accused that there is no medical evidence on record which establishes that the victim was sexually assaulted. It is submitted that MLC of victim Ex. PW8/A does not mentions any injury on the person of victim. After going through the MLC of the victim I also find that there is no injury on the victim and the medical evidence does not suggest that the victim was sexually assaulted, however, the testimony of PW1 confirms that the accused was putting his hands inside the underwear of victim and that does not necessarily would injure the victim. Therefore, lack of medical evidence does not help the cause of accused in any manner.
Judgment 11 of 13
SC No: 185/13 State Vs. Sandeep
25. Settled proposition of law that the conviction can be based on the sole testimony of a witness, however the said testimony has to pass the test of trustworthiness and credibility. If the evidence of the complainant in the case is closely scrutinized and is read in conjunction with the other material on record then it would be evident that she is a trustworthy witness and doesn't appear to have been tutored by anybody. It is well settled law that the conviction on the sole evidence of a witness is permissible if such witness is found competent to testify by the court, after careful scrutiny of its evidence.
26. PW1/ complainant has leveled specific allegations of sexual assault on the victim and her testimony is found to be trustworthy and credible and hence, proves the guilt of the accused.
27. Conclusion: From discussions herein above, it emerges that:
i) Testimonies of PW1, 2 & 5 establishes that victim was in custody of the accused.
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SC No: 185/13 State Vs. Sandeep
ii) Testimony of PW1 is reliable who has seen the accused sexually assaulting the victim.
iii) Accused has duly identified by the witnesses.
iv) Mother of victim & an independent witness (PW5) corroborated chain of events.
v) Accused failed to establish any defence.
28. Accordingly, it is held that the testimonies of the eye witnesses are trustworthy and reliable in respect of the incident of sexual assault on the victim by the accused. Allegations also found corroboration from the deposition of the parents of the victim and medical evidence. Allegations against the accused of kidnapping a five year old child and committing sexual assault upon stands proved. Thus, the accused stands convicted for the offence punishable U/s 10 POCSO Act.
Matter be listed for hearing arguments on quantum of sentence for 04.02.2016 (GAUTAM MANAN) ASJ-01:NORTH:ROHINI:DELHI Judgment 13 of 13 SC No: 185/13 State Vs. Sandeep IN THE COURT OF SH. GAUTAM MANAN ADDITIONAL SESSIONS JUDGE-01, NORTH ROHINI, NEW DELHI In the matter of:-
S. C. No. 185/13 FIR No. 278/13
Police Station SP Badli Under Section 354 IPC & 8 POCSO ID No. 02404R0-248742013 State Versus Sandeep S/o Sh. Surjit Singh, R/o Village Naugaon, District Manpuri, PS Korawali, UP. ...... Convict ORDER ON SENTENCE
1. Accused Sandeep has been convicted U/s 10 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 Ld. Amicus Curiae for the convict.
Judgment 14 of 13
SC No: 185/13 State Vs. Sandeep
2. The learned Addl. PP has very vehemently argued that the offence committed by the convicts in this matter are of highly derogatory in nature. The child victims were subjected to molested by the convicts. It is further argued that the incestuous crimes in our society are presently on rise, which substantially hamper the mental and physical development of children. POCSO was enacted by the Parliament bearing in mind that the offenders under the said Act shall be dealt with with heavy hand, therefore, stringent punishment has been provided for in the said Act. The Learned Addl. PP has prayed for the maximum punishment prescribed under Section 10 of the Act in the matter, so that the same may act as deterrent for other impending offenders.
3. Per contra, the learned defence counsel has submitted that convict is a young persons. He has undergone about 24 months imprisonment as under-trial in this case, during Judgment 15 of 13 SC No: 185/13 State Vs. Sandeep which period, their conduct was never questioned by the Jail authorities. In the end, it is submitted that the convicts are the first time offender as such benefit of Probation of Offender's Act be granted to the convicts.
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.
5. In my considered opinion, the nature of offence committed by the convicts does not demand that they be released on Probation. Interest of justice would be met, if the convict is sentenced to rigorous imprisonment for the period of 5 years and fine of Rs5000/- u/s 10 POCSO Act in default of payment of fine SI for 15 days.
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SC No: 185/13 State Vs. Sandeep
6. Compensation: 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.
7. The concept of welfare and well being of children is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in legislation, 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. Section 33(8) POCSO Act, also mandates Judgment 17 of 13 SC No: 185/13 State Vs. Sandeep that in addition to the punishment to the accused, the victim be granted compensation for physical and mental trauma caused to him and for the rehabilitation of the victim.
8. Therefore, in order to provide Restorative and Compensatory Justice to the victims, Rs. 1,00,000/- (Rs.
One Lac only) is granted to the Victim as compensation. Learned Secretary, D.S.L.S.A, North District, New Delhi shall ensure that the said amount is given to the parents of the victim within one month on receipt of this order and shall further ensure that the said amount is disbursed in such a manner that the same be used for welfare and rehabilitation of the victim.
9. A copy of this order along with the particulars of the victim be sent to learned Secretary, D.L.S.A, North District., Rohini Courts, Delhi for necessary compliance.
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SC No: 185/13 State Vs. Sandeep
10. Convict is informed of his 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, Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 34-37, Lawyer Chamber Block, High Court of Delhi.
11. A copy of judgment and copy of order on sentence be supplied free of cost to convicts.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
04.02.2016
Judgment 19 of 13