Delhi District Court
State vs . Bhagwat Singh on 21 August, 2015
IN THE COURT OF SH. SIDHARTH SHARMA
ADDITIONAL SESSIONS JUDGE-01 & SPECIAL JUDGE (NDPS)
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. : 430/2013
Under Sections : 354 IPC & 9(m)/10 POCSO Act
Police Station : Madhu Vihar
Sessions Case No. : 109/2013
Unique I.D. No. : 02402R0306752013
In the matter of :-
STATE Vs. BHAGWAT SINGH
S/o Anand Singh
R/o A10-A, Gali No. 8, West Vinod Nagar,
Delhi-110092. .............. Accused
Date of institution : 19.09.2013
Date of reserving judgment : 17.08.2015
Date of pronouncement : 21.08.2015
Decision : Convicted
JUDGMENT
1. Brief facts of the case of the prosecution are that on 25.07.2013, at around 04.15 p.m., mother of the minor girl, aged 7 years (hereinafter referred as 'child victim' or 'victim') gave Rs. 10 to her daughter/ child victim to purchase cream roll from the nearby shop. Child victim went to the shop where accused (shopkeeper) asked St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 1 of pages 27 her to come inside to see his house. She refused to enter into the house but accused forcibly took her inside the room behind the shop where he kissed her on her lips. At that time, someone came on the shop to purchase due to which accused had to come outside and the child victim followed him, took cream roll and returned to her home weeping. Upon asking of her mother as to why the victim was weeping, victim narrated the whole incident to her mother and on return of the father of victim from his work, matter was reported to the police who reduced the same in writing vide DD No. 45-A which was handed over to SI Anuradha for investigation. SI Anuradha reached at the spot and got the victim medically examined from LBS Hospital vide MLC No. 153/13 whereupon doctor mentioned alleged history of molestation. SI Anuradha recorded the statement of victim in the presence of her parents and on the basis of statement of victim, her MLC and circumstances of the case, present case FIR was registered. Further investigation was assigned to SI Sanjeev Kumar. During investigation, IO arrested the accused at the instance of father of victim and produced him before the court and got him remanded to judicial custody. IO recorded statement of witnesses and on 03.08.2013, IO produced the victim before ld. Metropolitan Magistrate who recorded her statement u/s 164 Cr.PC wherein, she St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 2 of pages 27 repeated the same facts as stated by her in her statement to police. IO obtained date of birth certificate of victim, issued from MCD, as per which her date of birth was found as 19.02.2006 and after completion of investigation, challan was filed.
2. After supplying copies to the accused and upon hearing arguments, charge u/s 354 IPC and 9(m)/10 POCSO Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution in support of its case examined following 9 witnesses:
(a) PW1 is the child victim who has supported the case of prosecution.
(b) PW2 Smt. Geeta is the mother of child victim, who also supported the case of prosecution.
(c) PW3 Sh. Manish is the father of child victim and deposed on the same lines as PW2 deposed.
(d) PW4 HC Paras Ram is the Duty Officer. He proved the registration of present case FIR.
(e) PW5 is Ct. Arjun Singh who had went to the spot and participated in the initial investigation.
(f) PW6 Sh. Ankur Jain, Metropolitan Magistrate proved statement u/s 164 Cr.PC of victim, recorded by him.
(g) PW7 SI Sanjeev Kumar is the second IO of the case had filed the challan and he deposed about the investigation conducted by St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 3 of pages 27 him.
(h) PW8 Dr. Tapasi Chatterjee, CMO from LBS Hospital, Delhi, proved MLC of the victim.
(i) PW9 SI Anuradha, the first IO who deposed about the initial investigation conducted by her.
4. PE was closed and statement of accused u/s 313 Cr.PC was recorded wherein he denied the case of prosecution and stated that due to enmity, he has been falsely implicated in the present case. He, however, admitted that child victim had come to his shop but she started disturbing the articles kept in the shop due to which some articles fell down and some were broken upon which accused scolded20 her who went back crying and thereafter, he has been implicated in the present case.
5. Accused produced 3 defence witnesses in support of his version.
DW1 Mahesh Singh deposed that he was one of the customers who were present at the time of incident. He is also son of tenant of the accused. DW2 Smt. Sunita Rawat is the bhabhi (brother's wife) of accused and DW3 Smt. Gayatri is the sister of accused.
6. I have heard arguments from Sh. Anil Kumar, ld. Addl. PP for State and from Sh. A.K. Tiwari Advocate for accused and carefully gone through the record including the evidence on record. St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 4 of pages 27
7. PW1 child witness is a seven years aged girl and therefore, her testimony was recorded in the Vulnerable Witness Room through video conferencing with the aid of Support Person. Being minor, she deposed without oath that on 25.07.2013, at around 04.00 p.m., she had gone to nearby shop for purchasing cream roll for which her mother gave Rs. 10/- to her. After reaching shop and asking the shopkeeper (accused herein) to give her cream roll, accused asked her to accompany him as he wanted to show his house to her, even though she refused, yet shopkeeper caught hold of her hand and took her inside the shop where he kissed her on her lips and said that he would show his house inside. In the meanwhile, two customers arrived at shop and shopkeeper came outside, victim also followed him and accused gave her cream roll after taking money. Thereafter, victim went to her house weeping. When her mother asked her the reason of crying, she narrated the whole incident to her mother who in turn revealed the facts to victim's father who called the police and thereafter, present case FIR was registered. PW1 also stated that she was taken to hospital and was medically examined by the doctor. She proved her statement given to police as Ex.PW1/A as well as her statement u/s 164 Cr.PC recorded by ld. MM. PW1 victim identified the accused to be the same shopkeeper St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 5 of pages 27 who had sexually assaulted her.
In her cross-examination, PW1 victim stated that when she reached the shop, no one else was present there except the accused. She stated that she went to the school on the day of incident and did not go for any tuition classes. He further stated that she does not recognize two customers who had subsequently come to the shop of accused. She categorically denied the suggestion that she had started touching the articles on the counter and some of the articles got broken due to which accused got annoyed and scolded her. She stated that she had told the complete facts to the police at PS. In the cross-examination, she categorically stood by her testimony and denied that she was deposing falsely at the instance of her parents. She further denied that she had been tutored by her parents and no such incident happened at any point of time.
8. PW2 Smt. Geeta, mother of the child victim has supported the prosecution version and stated that at about 04.00 p.m., her daughter took Rs. 10/- to purchase cream roll from the shop opposite from house. PW2 deposed that when her daughter came back she was weeping and upon her inquiry, if she had fallen down, she said that she would never go to the house of said uncle. On St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 6 of pages 27 further inquiry, victim stated that "uncle gande hain" and he forcibly took her inside the house. PW2 thought that the accused might have done something in fun and told her daughter that she would rebuke the shopkeeper. The witness went to the shopkeeper who was standing outside and he replied that he was just making fun. Witness got satisfied and came back to her house but she got suspicious as PW1 consistently told her that she would never go to the said shop. PW2 again inquired her daughter/ victim as to whether he had done anything wrong to her at which, victim told that accused had touched his lips with her lips. PW2 asked the victim if accused had done any other wrong act to which, victim denied. She then narrated that she could come outside of the house as some other customer has come. PW2, mother of the victim was cross-examined where suggestions were given to her regarding enmity due to creation of noise by the customers of accused which was denied by said witness. She further denied the suggestion that she had falsely implicated the accused. She stated that her daughter/ victim narrated the facts to her within 10 minutes after she returned back from the shop. She further stated that her husband came back at about 05.30 p.m., and within 30 minutes of his arrival at home, she stated the incident to St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 7 of pages 27 him. PW2 further stated that police came and took her daughter to the hospital and also recorded statement of her daughter and of herself at PS. She denied the suggestion her husband and her dewar went to the shop of accused and caused damage to his shop and molested his sister Gayatri.
9. PW3 Manish is the father of the victim child. He has categorically deposed that on 25.07.2013, when he came back from his duty at around 05.30/ 06.00 p.m., his wife informed him about the untoward incident that happened to their daughter. He has deposed on the same lines as PW1 and PW2 and narrated the incident regarding his daughter having gone to the shop and thereafter accused forcibly took her daughter inside the shop and touched his lips with her lips. He further inquired her daughter who affirmed the incident. He called the police who took his wife and daughter/victim to LBS Hospital. PW3 was taken to PS and after sometime, his wife and daughter/ victim also came to PS and their statement was recorded. PW3 further stated that accused was arrested in his presence. He proved arrest memo Ex.PW3/A and personal search memo Ex.PW3/B. He further stated that he had submitted birth-certificate of his daughter/victim to the IO which is Ex.PW3/C. He has also identified St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 8 of pages 27 the accused. In cross-examination, PW3 denied that he was having bad relations and therefore, had falsely implicated the accused. He denied the suggestion that he ever protested the accused regarding noise created by the customers or he had threatened him of dire consequences. He denied the suggestion that since he was court employee, he would implicate the accused in false case. Thus, nothing material could be extracted in the cross-examination of this witness who narrated the sequence of incident as it happened and denied the suggestion that he went to the shop of accused to give him beatings. He denied the suggestion that in anger he molested the sister of the accused on the same evening i.e. the day of incident. He denied that he had given apology to father of the accused after causing damage to his shop and misbehaved with his sister.
10. The other witnesses i.e. PW4 HC Paras Ram, the Duty Officer is the formal witness who has proved registration of present case FIR Ex.PW4/A. PW5 Ct. Arjun Singh accompanied the IO and got the medical examination of the victim conducted and thereafter, got the FIR registered on the basis of Rukka, prepared by IO. He came back to the spot after registration of FIR and in his presence on the St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 9 of pages 27 pointing out of victim, accused was apprehended and was arrested vide arrest memo Ex. PW3/A and was personally searched vide memo Ex.PW3/B. During his cross-examination, this witness gave details of the investigation and stood by his testimony as to whatever he had witnessed. PW6 Sh. Ankur Jain, Metropolitan Magistrate proved the statement u/s 164 Cr.PC of the child victim, recorded by him. PW7 SI Sanjeev Kumar is the second IO who took over the investigation on the direction of SHO from first IO/SI Anuradha. He reached at the place of occurrence and arrested the accused. He recorded the statement of parents of victim and got the accused medically examined. He also got the statement u/s 164 Cr.PC of victim recorded by ld. MM. In his cross-examination, PW7 admitted that he did not prepare any site plan of the place of incident. In the remaining cross-examination, PW7 IO stood by his testimony given in is examination-in-chief. He completed the investigation and filed the challan. PW8 Dr. Tapasi Chatterjee, CMO from LBS Hospital, Delhi has proved the MLC Ex.PW8/A of victim. PW9 W/SI Anuradha is the initial IO. She went to the spot after receiving DD No. 45-A which was marked to her for investigation. She got the victim medically examined from LBS Hospital and recorded her statement in the presence of her parents. Further investigation was assigned to St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 10 of pages 27 SI Sanjeev Kumar.
11. The statement of accused u/s 313 Cr.PC was recorded wherein he denied the case of prosecution and stated that there were two-three customers present on the shop on the day of incident and he had scolded the victim because she had caused loss to some of the articles kept in the shop. Accused has further taken defence that parents of the child victim who were living opposite to his house were having prior enmity with him.
All the three witnesses examined by the accused in his defence are interested witnesses. DW1 Mahesh Singh is tenant of father of the accused who claimed to have seen the incident and stated that victim had caused damage to the articles kept in the shop and that accused had been falsely implicated. In his cross-examination by ld. Addl. PP for State, DW1 could not give satisfactory answers as to whether he went to PS and police refused to record his statement. He admitted that he did not file any complaint in writing to any senior police officer when police did not record his version. DW2 Smt. Smt. Rawat is bhabi of accused and DW3 Smt. Gayatri is the sister of accused and both these witnesses gave their evidence in support of the accused.
St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 11 of pages 27
12. In the present case, onus was upon the victim to prove that accused committed sexual assault upon her to prove offences u/s 354 IPC and u/s 10 POCSO Act, for which accused has been charged with. Section 354 IPC reads as under :
"Assault or criminal force to woman with intent to outrage her modesty.- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine."
Section 9(m) POCSO Act (punishable u/s 10 POCSO Act) defines the offence of aggravated sexual assault committed on on a child below twelve years, and term sexual assault has been defined u/s 7 POCSO Act is that "whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault"
St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 12 of pages 27 The material witness of the prosecution in this case is PW1 Child Victim, who is a young girl of aged 7 years. Before appreciating the evidence of PW1 child victim, I would like to refer to the law as to the evidentiary value of evidence of child victim.
13. In the matter of State of Karnataka v. Shantappa Madivalappa Galapuji, 2009 A.I.R. (SC) 2144, it was held by the Hon'ble Supreme Court of India in paras 6 and 7 as under :-
"6. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these question, because of tender years, extreme old age, disease-whether of mind, or any other cause of the same kine. A child of tender aged can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States, (159 US 523). The evidence of a child witness is not required to be rejected per se, St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 13 of pages 27 but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon,[See Suryanarayana v. State of Karnataka, 2000 (1) RCR (Cri.) 602 : (2001) (9) SCC 129].
14. In Dattu Ramrao Sakhara v. State of Maharashtra, 1997 (3) RCR (Criminal) 227 : [(1997) 5 SCC 341] it was held as follows : (SCC p 343, para 5) :
"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 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 demeanour must be like any other competent witness and there is no likelihood of being tutored."
The decision on the question whether the child St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 14 of pages 27 witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
From the a aforesaid judgment, it is clear that while appreciating evidence of child victim, the only precaution which the court should take is that child witness is reliable and there is no likelihood of child victim being tutored.
15. In this case, star witness of the prosecution is the victim child/ St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 15 of pages 27 prosecutrix, aged seven years, who has been examined as PW1. In her deposition before the court, she had narrated the incident, categorically stating that the accused shopkeeper caught hold of her hand and took her inside the room of his shop. PW1 further stated that accused touched his lips with her lips and then two customers came at the shop due to which accused had to come outside to attend the customers and in the meantime, victim girl also came outside at shop and after taking cream roll on payment of Rs. 10/-, she went back to her home and narrated the incident to her mother. The victim child/ PW1 had also repeated the same incident consistently before ld. Metropolitan Magistrate in her statement u/s 164 Cr.PC. It is seen that nothing could be extracted from cross- examination to discredit this witness.
PW2 Smt. Geeta, mother of the victim child also deposed about the incident in the similar manner as was told to her by her daughter/ victim child. PW2 is also a natural and credible witness. In her examination-in-chief, she stated that she did not first believed the version of her daughter/ victim child and told her that the accused might have done so for fun purpose and assured her that she would go and rebuke the accused. PW2 went to the accused shopkeeper St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 16 of pages 27 where according to her, accused stated that he had done it for fun only and she upon being satisfied came back but finding her daughter/ victim child disturbed, she again heard her version and thereafter, asked her if the accused had done anything more to which victim child replied in negative. This itself shows that both the witnesses i.e. PW1 and PW2 are speaking truth. The contention of ld. Defence counsel that these are tutored witnesses cannot be believed because these two witnesses could have been tutored or false witnesses if they would have added much more to their version, like removing of clothes of victim child, touching private parts of her or penetration but victim child or her mother did not state anything more than that accused locked his lips to the lips of victim child. It was only the fortune of victim child that customers came outside the shop due to which accused shopkeeper had to stop his objectionable sexual behaviour and the victim child was also able to escape from the clutches of the accused.
16. Even otherwise as already observed hereinabove, the child victim has clearly identified the accused, when he appeared to deposed before the court, and gave detailed account of acts committed by him on the day of the incident. On the other hand, accused has not given any plausible explanation for his alleged false implication in St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 17 of pages 27 the present case. Only defence taken by him is that he has been falsely implicated in the present case due to previous animosity. This bald defence has not been elaborated upon by the accused by giving any reason for the alleged inimical relations between him and the parents of the child victim. It is noteworthy that the factum of said inimical relations and reason thereof were within special knowledge of the accused and hence, it was his responsibility to prove that there existed such reasons, which motivated the parents of child victim K, to tutor K and have a false case registered against the accused. In a case of Rajkumar v. State of M.P., 2014 III AD (S.C) 257, Hon'ble Supreme Court relied upon the earlier judgments in (I) Prithpal Singh & Ors., v. State of Punjab & Anr., (2012), 1 SCC 10 and (ii) State of W.B. v. Mir Mohammad Omar, AIR 2000 SC 2988, and held that :
"....... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused, beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 18 of pages 27 inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Indian Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
In the present case also accused has failed to discharge the burden of proving inimical relations between him and the parents of the accused. With regard to contention of ld. Defence counsel that there was enmity between the accused and the parents of victim child, as per requirement of Section 29 and 30 of POCSO Act, the onus to prove the said contention is heavily on the accused but accused in his defence evidence or in the cross-examination of PWs could not prove anything on record to show that there was any previous enmity due to which he had been falsely implicated in this case. As I have already discussed, all the three material witnesses i.e. PW1 victim child, PW2 and PW3 (parents of victim child) are consistent, natural and credible witnesses who could not be shaken in the cross-examination and in view of my said observation, the accused St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 19 of pages 27 has failed to discharge the onus. Accused could not bring any credible evidence oral or documentary to prove that there was previous enmity of parents of victim with that of family of accused. There is no written or verbal complaint made by the police regarding any incident of quarrel showing any previous enmity between accused and the family of victim. The witnesses examined by the prosecution are not only reliable but are trustworthy and credible and therefore, I am of the opinion that ingredients of section 354 IPC i.e. using of criminal force upon any woman to outrage her modesty has been clearly proved by the witnesses and therefore, accused is liable to he held guilty for commission of offence u/s 354 IPC. It is also seen that victim is a girl of 7 years of age and therefore, sexual assault as per definition provided u/s 9 (m), POCSO Act becomes aggravated sexual assault. The element of 'sexual intent' as is required as per definition of 'sexual assault' under the provisions of POCSO Act, can be inferred in the present case from the action of accused of catching hold of the hand of child victim by him and then taking her inside the room behind the shop where he kissed her by touching her lips with his lips. It was only good fortune of the child victim that some customers came at the shop and St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 20 of pages 27 accused had to come outside due to which victim succeeded in escaping from the clutches of the accused and therefore, it is clear that accused made physical contact (without penetration) with the child victim/ prosecutrix with 'sexual intent' and therefore, he is liable to be held guilty for commission of offence u/s 9(m), punishable u/s 10 POCSO Act.
However, ld. Counsel for accused has pointed out that there are contradictions in the statement of child victim and her parents but he could not draw my attention to any major discrepancy in the testimony of witnesses which could be fatal to the case of prosecution. Even otherwise, it is a settled law that minor inconsistencies in the statement of witnesses, in fact, goes to show that the witnesses are not tutored and there are bound to be some contradictions and inconsistencies in the deposition of various witnesses and as the child witness is not expected to give evidence as a matured person would have given. Ld. Counsel for the accused has vehemently argued on the point of previous enmity as has been discussed above, there was heavy onus upon the accused to prove enmity once prosecution was able to prove the case u/s 10 POCSO Act and in my opinion, accused has miserably failed to discharge his St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 21 of pages 27 onus that he has been falsely implicated due to previous enmity and therefore, this contention of ld. Defence counsel is rejected.
17. Applying the case law as discussed above and considering the totality of facts and circumstances of the case in the light of testimony of material witnesses i.e. child victim as well as her parents, who have identified the accused correctly in the court, in my considered opinion, prosecution has been succeeded in proving its case against the accused and accordingly, accused Bhagwat Singh held guilty and is convicted for commission of offence u/s 354 IPC and u/s 9(m) POCSO Act (punishable u/s 10 POCSO Act). As the minimum sentence provided u/s 10 POCSO Act is the imprisonment for 5 years, convict be taken into custody.
18. Let the convict be heard on point of sentence on 24.08.2015 at 02.00 p.m. Announced in the open court today on 21st August, 2015 (SIDHARTH SHARMA) Addl. Sessions Judge-01 & Spl. Judge (NDPS) Karkardooma Courts/Shahdara Distt./Delhi St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 22 of pages 27 IN THE COURT OF SH. SIDHARTH SHARMA ADDITIONAL SESSIONS JUDGE-01 & SPECIAL JUDGE (NDPS) SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI FIR No. : 430/2013 Under Sections : 354 IPC & 9(m)/10 POCSO Act Police Station : Madhu Vihar Sessions Case No. : 109/2013 Unique I.D. No. : 02402R0306752013 In the matter of :-
STATE Vs. BHAGWAT SINGH
S/o Anand Singh
R/o A10-A, Gali No. 8, West Vinod Nagar,
Delhi-110092. ............ Convict
ORDER ON SENTENCE
1. Vide my separate judgment, announced on dated 21.08.2015, accused Bhagwat Singh has been convicted for commission of offence punishable u/s 354 IPC and u/s 10 POCSO Act.
2. I have heard submissions on the point of sentence from Sh. Anil Kumar, ld. Additional Public Prosecutor for State and from Sh. A.K. Tiwari Advocate from DLSA for convict.
3. Ld. counsel for convict has prayed that the convict is a married person, having responsibility of his wife and minor child as well as his old aged parents. He further states that convict is the only earning member of his family and is anyhow managing livelihood for his family by running a St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 23 of pages 27 small shop. It is also argued that convict has no previous criminal involvement and has already spent a considerable period in the imprisonment during trial of the present case and if he is sentenced to undergo further imprisonment, his family family members who are totally dependent on the convict, will have to suffer a lot. It is prayed that convict should be given a chance to reform and taking a lenient view in the matter, benefit of probation be granted to the convict. In support of his prayer, ld. counsel for convict has relied on the following case laws :
a) Budh Ram v. State of Rajasthan, 1996 CRI LJ 1243 Rajasthan High Court.
b) Daulat Ram v. State of Haryana, AIR 1972 SC 2434 (V 59 C
464).
c) Jatan Singh v. State of Rajasthan, 1995 (3) Crimes 773.
d) Haji Mal @ Danish v. State of Delhi, 2015 (2) LRC 273 (Del).
4. On the other hand, ld. Addl. PP for State has argued that convict has been held guilty for commission of offence u/s 354 IPC as well as u/s 10 POCSO Act and Section 10 POCSO Act provides imprisonment for a period not less than five years and therefore, benefit of probation cannot be granted to the convict. He has further argued that crime against child victims in the society are on rise and to convey a strong message in the society, convict deserves to be dealt with strictly to St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 24 of pages 27 provide a deterrent.
5. I have heard arguments from both sides. The judgment of Hon'ble High Court of Rajasthan in the case of Budh Ram (Supra), as relied by ld. Counsel for convict provides that even where minimum sentence is prescribed, benefit of probation can be granted to the convict. Said judgment is of the year 1996 and is not applicable on the present case under POCSO Act, 2012 which is a special Act and came into force only since 14.11.2012. The other judgments relied by ld. Counsel for convict are not dealing with the facts of present case and therefore, do not help the convict in the present case. The relevant law has been settled recently by Hon'ble Supreme Court of India in case of State of Tamilnadu v. A. Parthiban, AIR 2007 SC 51 wherein it has been observed that 'principles enunciated under the Probation Act cannot be extended at all in view of the mandate contained in Section 18 of the Prevention of Corruption Act, 1988' and Section 360 of Cr.PC, benefit of probation was not given. It is also observed and held that where a statute prescribed a minimum sentence the Court cannot reduce the sentence any further [2001 (1) RCR (Crl.) 532 SC relied] and after discussing the various case laws, Hon'ble Supreme Court has categorically laid down that for the offences where minimum St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 25 of pages 27 sentence has been provided, benefit of probation cannot be extended. In view of the aforesaid discussion, I do not consider it a fit case for grant of probation under Probation of Offenders Act to the convict.
6. Section 354 IPC provides punishment with imprisonment for a period of one year which may extend to 5 years, and with fine. Section 10 POCSO Act provides punishment (for commission of offence of aggravated sexual assault) with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
7. However, considering the young age of the convict; his family circumstances and the fact that he is not involved in any other criminal case, I take a lenient view against the convict and sentence him to undergo RI (Rigorous Imprisonment) for a period of five years for commission of offence u/s 10 POCSO Act with the fine of Rs. 2,000/- and in default of payment of fine, simple imprisonment (SI) for 15 days. I also sentence the convict to undergo RI for two years for commission of offence u/s 354 IPC with the fine of Rs. 2,000/- and in default of payment of fine, SI for 15 days. Both the sentences shall run concurrently. Fine paid.
However, benefit of Section 428 Cr.PC be given to the convict for the period already suffered by him in JC during trial of the case.
8. Let the convict be sent to JC to suffer the imprisonment.
9. File be consigned to Record Room after due compliance.
10.Copy of 'judgment' as well as this 'order on sentence' be given to the convicts free of cost.
St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 26 of pages 27
Announced in the open court
today on 24th August, 2015 (SIDHARTH SHARMA)
Addl. Sessions Judge-01 & Spl. Judge (NDPS)
Karkardooma Courts/Shahdara Distt./Delhi
St. Vs. Bhagwat Singh, FIR No. 430/13, PS Madhu Vihar 27 of pages 27