Delhi District Court
State vs Kalicharan @ Kalka Prasad on 8 October, 2016
IN THE COURT OF SH. SANJAY SHARMA-I
ADDL. SESSIONS JUDGE - 01 (NORTH-EAST)
KARKARDOOMA COURTS : DELHI
SC No.44279/2015
FIR No.150/2013
PS Karawal Nagar
Under Section 6 POCSO Act
State Versus Kalicharan @ Kalka Prasad
S/o Late Sh. Mewa Ram, R/o House No. B-140,
Ambika Vihar, Karawal Nagar, Delhi.
Date of institution of case : 03.06.2013
Date on which judgment reserved : 04.10.2016
Date of judgment pronounced : 07.10.2016
JUDGMENT:
1. On 13.03.2013, on receipt of DD No.14-A, ASI Yogesh Tyagi alongwith Ct. Rohtash reached at H.No. 140, B block, Gali No.3, Ambika Vihar, Karawal Nagar, Delhi, where he came to know that the victim and her mother had already been taken to the GTB Hospital by the PCR officials. Accordingly, he reached the hospital where he collected the MLC and exhibits of the victim from the doctor. Meanwhile, W-SI Monika reached the hospital. She met the mother of the victim, namely, Smt. Premlata and recorded her statement. In the said statement, she alleged that the accused, the uncle of her landlord, was found by her in the latrine on the first floor of the house where she was residing on rent, with the vicitm in his lap and his penis into her mouth. On seeing the complainant, the accused left the vicitm and fled away. She lifted the vicitm, gave her bath and changed her clothes, which were handed over to the police on the same day. She then informed her sister, residing nearby who in turn informed the police.
2. On the basis of above statement, the present case was registered for the SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 1 of 12 offence punishable under Section 376 IPC. The accused was arrested and after completion of investigation, the chargesheet was filed before the Court against accused Kalicharan @ Kalka Prasad for the offences punishable under Sections 376(1) IPC and 4 POCSO Act.
3. Vide order dated 03.12.2013, on hearing arguments on charge and considering the material on recored, Ld. Predecessor framed the charge against the accused for the offence punishable under Section 6 of the POCSO Act, to which the accused pleaded not guilty and claimed trial.
4. During the trial, prosecution examined twelve witnesses in order to bring home the guilt of the accused. PW-1 Smt. Prem Lata was the mother of the victim, who deposed about the incident.
5. PW-2 HC Ramesh Kumar was the duty officer. He had recorded DD No.14- A and registered the FIR vide DD No.23-A. He proved the copies of said DDs vide Ex.PW2/A and Ex.PW2/B respectively. He also proved the copy of the FIR as Ex.PW2/C, his endorsement on the rukka as Ex.PW2/D and certificate under Section 65-B Evidence Act as Ex.PW2/E.
6. PW-3 Ct. Amit Kumar had taken the accused to GTB Hospital for his medical examination and got him medically examined there, collected the exhibits of the accused, brought them to the PS and handed over the same to the IO.
7. PW-4 ASI Yogesh Tyagi deposed about his receiving DD entry No.14-A, reaching to the spot and then to the hospital. He also deposed regarding appointment of a lady police official as the IO in the case; recording the statement of the mother of the victim by W-SI Monika; preparation of the rukka and taking it to the PS by him, registration of the FIR and thereafter, handing over the copy of the FIR and original rukka to the IO and also regarding the search, apprehension and arrest of the accused.
SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 2 of 12
8. Meanwhile, on 22.09.2015, minor witness namely Suraj was also produced before the Court in the CWCR but he was discharged unexamined as he was about 7 years old at that time and the incident had taken place about two years ago and he was not even clear in his memory about the incident.
9. PW-5 HC Chander Bhan was the MHC(M). He deposed about the depositing of the exhibits in the malkhana by the IO and sending them to the FSL. PW-6 Ct. Raj Veer had deposited the exhibits of the case in the FSL.
10. PW-7 HC Rambir Singh was the Incharge of PCR van No. Baker 20. He received the information regarding an incident of wrong act with a girl and reached the spot. He took the victim and her mother to the GTB Hospital and got the victim admitted there.
11. PW-8 Smt. Krishana was the younger sister of the victim's mother. She was told by the victim's about the incident and she had called the PCR. PW-9 Dr. Parmeshwar Ram had proved the MLC of the accused as Ex.PW9/A. PW-10 Dr. Sruti Bhaskaran proved the MLC of the vicitm as Ex.PW10/A.
12. PW-11 W-SI Monika was the main IO of the case. She deposed about receiving the investigation of this case; recording the statement of the victim's mother by her and collection, preparation and seizure of various documents during the investigation by her. PW-12 SI Nazma, a part IO, who had just filed the chargesheet.
13. Statement of the accused was recorded under Section 313 CrPC wherein all the entire incriminating evidence put to him which he denied and pleaded his innocence. He claimed that he has been falsely implicated at the behest of the mother of the victim as she had not paid him the rent on being demanded by him and that she did not use to pay the rent of the room on time.
14. In order to prove his innocence, the accused examined three witnesses in his SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 3 of 12 defence i.e DW-1 Prem Shankar, nephew of the accused. He deposed that he had asked the accused to collect the rent from the mother of the vicitm but she made false allegations against him and falsely implicated him in this case. DW-2 Smt. Janki was the wife of DW-1. She made similar statement like him. DW-3 Khem Chand was the neighbour of the accused. He deposed that about three years ago, the accused had gone to the victim's mother to collect the rent but a quarrel took place between them.
15. I have heard Sh. Sukhbeer Singh, Ld. Addl. PP for the State and Sh. Visvav Kamal, Ld. Counsel for the accused and gone through the record.
16. In the instant case, the vicitm was about two years of age at the time of alleged incident and therefore, there was no possibility of her statement being recorded either under Section 161 or 164 of CrPC. Similarly, there was another witness cited by the prosecution namely Suraj, who was the grandson of the accused. However, he too was about five years of age at the time of alleged incident and was a witness to it. His statement under Section 161 CrPC had been recorded but when he appeared in the witness box, he could not depose anything as his memory had faded by that time. Accordingly, he was discharged unexamined. Thus the only witness to the alleged incident was the complainant herself.
17. The complainant was examined in this case as PW-1 and she deposed that earlier she was residing in the house of the accused and at that time her husband was working in a hotel at Kalkaji. She next deposed that on 13.03.2013 at about 07.30am, she was preparing tea while the victim was playing outside the room. When the vicitm did not come inside the room for about 10-15 minutes, she went for her search and in the process searched her in the street and then went to the terrace, where she found the accused sitting in the toilet who was naked below the waist and was holding the victim on his thigh, making her to lick his penis by inserting it into her mouth. She further deposed that tears were coming out of the SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 4 of 12 eyes of the victim and struggling to free herself (chhatpata rahi thee). She also deposed that the grandson of the accused was also seeing this (referring to the child witness Suraj) and that he had informed about the presence of the victim inside the toilet. She further deposed that on seeing her, the accused left the victim down an fled away from there. She picked her up from the toilet and called her husband who came over there. Thereafter, she gave bath to the victim and changed her clothes because they had become dirty. She then informed her younger sister about the incident by visiting her house, who was residing after a gap of 2-3 streets. Her sister then called the PCR, police arrived and took the victim and her mother to the hospital where victim was medically examined. She proved her statement as Ex.PW1/A on which the present case was registered. She also proved the seizure memo of the frock of the victim as Ex.PW1/B and her birth certificate as Ex.PW1/C.
18. This witness was cross-examined at length by the Ld. Defence Counsel wherein, she deposed that the accused is the uncle of her landlord Shankar. A defence was put to her that she did not use to pay rent on time and therefore, the accused was falsely implicated for not paying the rent. She denied this defence, which was put to her in the form of suggestion. She also disclosed in the cross- examination that the toilet and bathroom in the house on the first floor were not having doors and only jute bags were used as doors. She was confronted with certain photographs of the place of the incident, which she admitted. From these photographs it can be seen that there were no doors on the latrine and bathroom constructed on the terrace of the house, lending corroboration to the deposition of the complainant in this respect.
19. In her further cross-examination, she deposed that she had approached her sister, who has been examined as PW-8 at about 10.30am. She could not depose the names of her neighbours who were residing nearby at that time. She also SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 5 of 12 deposed that the terrace of the said house was vacant and was higher than that of the other neighbours and as such, they could not have seen what was happening on the terrace of her house. That was the only cross-examination of the complainant and the main witness of this case, which shows that the defence has been unable to impeach the credibility of the witness regarding the alleged incident. The discrepancy in the time when she had informed her sister, is too minor and has to be ignored. Even otherwise, it is a matter of record that the call to the PCR was made at about 11.25am. It is relevant to mention here that the information given to the PCR was also to the effect that wrong act has been done with a two year old child. The PCR form on record, Ex.PW12/A also mentions this very fact and thus has corroborated the version of the complainant.
20. The IO in her deposition deposed that she had recorded the statement of this witness namely Suraj, which is on record. This fact was never challenged in her cross-examination nor any suggestion to the contrary was given. Thus the statement of the said witness under Section 161 CrPC can be referred to. It has been recorded in question-answer form. On being asked from this witness what happened today morning, the witness replied "the accused took the vicitm upstairs for defecating where he had also gone for the same purpose and he had taken off his clothes and was doing something into the mouth of the victim, who was crying". He then deposed that aunty came and took away the vicitm and also fought with the accused, who ran away. Thus, he has corroborated the version of the complainant incriminating the accused.
21. It was argued by the Ld. Counsel that the complainant deposed about the presence of her husband both in her complaint as well as in her deposition before the Court. However, her husband has neither been cited as a witness by the prosecution nor has been examined in the Court. In my opinion, this lacuna or even a deliberate attempt in not citing her husband as a witness would not in any manner SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 6 of 12 diminish the evidentiary value of PW-1 and would not bely the entire prosecution case. It is noteworthy that no question was put to the IO in the cross-examination, as to why the husband of the complainant was not examined or cited as a witness and in the absence of any such question or suggestion to the contrary, no adverse view can be taken by the Court for the lapse or otherwise in not examining the husband of the complainant as a witness.
22. The next important piece of evidence is the medical examination of the victim and the accused. The MLC of the vicitm was proved by PW-10. She deposed that there was no sign of any injury on the person of the victim in the local examination and there was no bleeding or secretion seen around lips and mouth of the victim. There is no allegation that the victim was beaten or any injury was caused to her. She was a very small child of about two years of age and even if the accused had forcibly inserted his penis into her mouth, there was no possibility of any injury having been caused to the child as the penis is built up of soft tissues. It has also been deposed by the complainant/PW-1 that she had given bath to the victim after the incident and as such, there was no possibility of any secretion or bleeding having been noticed by the doctor around the lips or mouth of the vicitm. It is very common that while giving bath to the child, his or her mouth is also cleaned from water from inside. Hence, it is not extraordinary to note absence of any injury or secretion on or around the lips or mouth.
23. The accused was also medically examined and his MLC has been proved by PW-9. It is has been opined by the doctor that he was capable of performing sexual intercourse and this finding has not been challenged in the cross-examination. It has further been observed by the doctor that as per the MLC, smegma was not present. The incident took place at about 7.30am. The accused allegedly had fled away from the place of incident and he was arrested on the same date at about 7.50pm, as per arrest memo Ex.PW4/B. There is nothing on record to suggest that SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 7 of 12 in between this period, he had taken bath or cleansed himself since he was hiding from the police and the complainant. It is also not the case of the accused, as taken in the defence, that he had taken bath or cleansed himself. It is well known that absence of smegma is suggestive of resent intercourse. It is also so in case of oral sexual activity by a male. Thus, this fact has again corroborated the allegation made by the complainant.
24. The clothes of the victim which she was wearing at the time of incident were sent for FSL examination alongwith the blood sample of the accused. As per the report received from the FSL, no semen was detected on the clothes of the victim or on her oral swab. The DNA profiling also did not find or reveal any male DNA on the clothes (frock) of the victim. Though, this report favours the accused apparently but in my opinion, it is of no use to the accused. Firstly, there is nothing on record to suggest that the accused had ejaculated at the time of incident. The complainant deposed that the clothes of the victim had become dirty but it has not been deposed by her as to for what reasons, whether because of the seminal discharge of the accused or otherwise due to dirt etc. Secondly, as deposed by PW- 1, she had given bath to the victim after the incident and therefore, there was little or no possibility of any traces of semen, if any discharge by the accused, having been found in her oral swab sample. Hence, the FSL result is of no help to the accused. On the contrary, his MLC coupled with the testimony of the complainant points out towards the guilty of the accused.
25. The defence taken by the accused was that the complainant had not been paying rent and when the accused demanded the same, he was falsely implicated in this case. This defence is not palpable for different reasons. Firstly, the accused was admittedly not the landlord of the complainant but the real landlord was Prem Shankar and even as per the case of the accused, he was only sent to collect the rent on behalf of the real landlord and therefore, there was no occasion for him to SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 8 of 12 be falsely implicated in this case. Furthermore, the incident took place at about 7.30am, which was no time for any person to have demanded rent. The husband of the complainant was present in the house and in case rent had to be demanded, it was to be demanded from him, who was the sole bread earner of the family as deposed by PW-1 and PW-8.
26. The testimony of the three defence witnesses also do not inspire confidence. It was deposed by DW-1 and DW-2 that the accused was their real uncle and the complainant was tenant under them. On 13.03.2013, both claimed to have asked the accused to collect the rent from the complainant but she made false acquisition against the accused that the accused committed rape upon the victim. Both DW-1 and DW-2 are husband and wife. They both cannot be the owners/landlord nor they both could have asked the accused to collect the rent. In their cross-examination, by the Ld. Addl. PP, they admitted that they had not informed the police ever about the facts deposed by them in writing nor the accused was ever authorized by them in writing to collect the rent. There was no whisper in the deposition of these witnesses about the period for which the rent was due or even the due amount. Hence, they appear to be only interested witnesses.
27. DW-3, a neighbour of the accused simply deposed that the complainant was a tenant under Prem Shankar in a portion of his house and about three years ago, the accused had gone to collect the rent from the complainant but a quarrel took place between them. His testimony is totally vague as he could not depose what was the issue on which the quarrel took place and why. He also did not inform the police at any time about the facts deposed by him, as admitted by him in the cross- examination. He also appears to be an interested witness. It is also to be noted that all these three defence witnesses deposed that complainant was a tenant under Prem Shankar and in case anyone had to be falsely implicated on account of demand of rent, it was the landlord not the uncle. Hence, the defence led by the SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 9 of 12 accused cannot be accepted.
28. It is clear from the above discussion that the testimony of the main witness PW-1 could not be challenged or shaken in the cross-examination and she had maintained her version given in the complaint Ex.PW1/A and in her testimony before the Court. Her version has found corroboration from the medical and other circumstantial evidence. The defence taken by the accused of false implication has not been accepted. Thus, in my opinion, the prosecution has been able to prove it case against the accused beyond reasonable doubt. It has been proved that accused Kalicharan @ Kalka Prasad had inserted his penis into the mouth of the victim, a minor girl, aged about two years and has, therefore, committed an offence punishable under Section 6 of the POCSO Act and accordingly, he is held guilty and convicted for the said offence.
29. Put up for arguments/order on the quantum of sentence as per the schedule mentioned in the ordersheet.
PRONOUNCED IN OPEN COURT ON 7th day of October 2016 (Sanjay Sharma-I) Addl. Sessions Judge-01 (NE) Karkardooma Courts, Delhi SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 10 of 12 IN THE COURT OF SH. SANJAY SHARMA-I ADDL. SESSIONS JUDGE - 01 (NORTH-EAST) KARKARDOOMA COURTS : DELHI SC No.44279/2015 FIR No.150/2013 PS Karawal Nagar Under Section 6 POCSO Act State Versus Kalicharan @ Kalka Prasad S/o Late Sh. Mewa Ram, R/o House No. B-140, Ambika Vihar, Karawal Nagar, Delhi.
Order on sentence :
1. Vide judgment dated 07.10.2016, convict Kalicharan @ Kalka was held guilty and convicted for the offences punishable under Section 6 of the POCSO Act.
2. I have heard Ld. Addl. PP (substitute) for the State and Ld. Counsel for the convict.
3. It was submitted by the Ld. Addl. PP that maximum punishment should be awarded to the convict since he has been found guilty of committing aggravated penetrative sexual assault upon the victim, a minor girl aged about 2 years. He submitted that in case severe punishment is not inflicted upon the convict, a wrong message would go to the society that such criminals can escape with simple imprisonment.
4. On the other hand, Ld. Counsel for the convict submitted that he is aged more than 60 years. He has no family and is taken care of by his nephew and others. It is further submitted that the convict is working in a private factory and earning only Rs.5000/- to 6000/- per month and has no other source of income. It is also submitted that the convict is not wanted in any other case and is a first time offender and as such, has prayed for a SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 11 of 12 lenient view.
5. I have considered the mitigating and the aggravating circumstances as presented before me.
6. Accordingly, it is directed that convict Kalicharan @ Kalka Prasad be sentenced to undergo rigorous imprisonment for a period of 10 years and a fine of Rs.2000/- for the offence punishable under Section 6 of POCSO Act. In case of non-payment of fine, the convict shall undergo simple imprisonment for fifteen days. Benefit of Section 428 CrPC is also extended to the convict who remained in custody during trial for a period of about 5 months and 8 days.
7. The victim is also entitled to compensation under Section 357-A of the CrPC. The convict has been asked if he can pay any compensation but he submits that he has no money even to pay the fine and that he is a very poor person and therefore, unable to pay any compensation. This court is satisfied regarding the financial status of the convict as submitted by him.
In view thereof, It is directed that a suitable compensation be paid to the victim under the Victim Compensation Act through DLSA and a copy of this order be sent to the Ld. Secretary, DLSA, North-East District for compliance.
A copy of the judgment and this order be also given to the convict free of cost.
PRONOUNCED IN OPEN COURT ON 8th day of October 2016 (Sanjay Sharma-I) Addl. Sessions Judge-01 (NE) Karkardooma Courts, Delhi SC No. 44279/2015 FIR No. 150/2013 PS Karawal Nagar page 12 of 12