Delhi District Court
Sc No: 58130/16 State vs . Sunil on 30 January, 2017
SC No: 58130/16 State Vs. Sunil
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 58130/16
FIR No. 263/14
Police Station Bhalaswa Dairy
Under Section 341/354A/363/323
IPC and & 12 POCSO
Act.
State
Versus
Sunil
S/o Sh. Mahender Singh
R/o House No. 188,
Dheer Pur, Delhi. ......Accused
Date of institution 21/07/2014
Judgment reserved on 24/01/2017
Judgment Pronounced on 30/01/2017
Decision Convicted
Judgment 1 of 14
SC No: 58130/16 State Vs. Sunil
JUDGMENT
1. Accused is facing trial in present case on allegations of restraining victim 'M' a girl aged about 11 years, sexually harassing her and exhibiting obscene pictures to her from his mobile phone.
2. FIR in question was registered on the complaint of victim, who alleged that on 22.05.2014, at about 5:50 p.m., when she was returning to her home after fetching water from a place near Cremation Ground, accused who was smelling liquor took her in an isolated place. Accused took out a mobile phone from his pocket and forcibly started showing obscene videos to the victim. When she tried to run away accused caught hold of her hand. Victim pinched him and managed to escape from there. After reaching home, she narrated entire incident to her mother. Her mother sent her elder brother with victim to look for accused. Accused was found and victim pointed out towards accused upon which her brother apprehended him. In the meantime, public Judgment 2 of 14 SC No: 58130/16 State Vs. Sunil persons gathered at the spot who gave beatings to accused. Somebody called at 100. Police arrived at spot and recorded statement of victim.
3. Accused was arrested and charge-sheeted. Charge for offence punishable under Section 341/354A IPC & 12 POCSO (Protection of Children from Sexual Offences) Act, 2012 and under Section 66E IT Act was framed against accused. Accused pleaded not guilty and claimed trial.
4. Prosecution examined 5 witnesses.
5. PW1 victim deposed on lines of her complaint. She proved her statement Ex PW1/A recorded by police. Victim deposed that accused was arrested by police in her presence vide memo Ex PW1/B. She proved her statement recorded by Ld MM under 164 Cr.P.C as Ex PW1/C. Judgment 3 of 14 SC No: 58130/16 State Vs. Sunil
6. PW2 mother of victim deposed that on the day of incident, victim alongwith her elder brother (PW4) went near Shamshan Ghat for fetching water. Her son reached home prior to victim. Victim reached home in frightened condition. Victim told her that a person met her on the way and he caught hold of her hand and took her to an isolated gali. There he showed indecent videos to victim on his mobile. She sent victim along with her son to search culprit. After sometime, she along with her husband (PW3) also went in search of accused. When they reached near Shamshan Ghat, they saw that accused was quarreling with her son and many public persons were gathered there and beating accused. Police reached at the spot. Accused disclosed his name as Sunil.
7. PW3 father of victim also deposed on similar lines as to apprehension of accused and handing him over to police.
Judgment 4 of 14
SC No: 58130/16 State Vs. Sunil
8. PW4 (brother of victim) deposed that he along with victim went near Shamshan Ghat for fetching water. He reached back home a little earlier to victim. When victim reached home, she was frightened. Victim disclosed that a person met her on the way and he caught hold of her hand and took her in an isolated gali. There he showed indecent videos to her in his mobile. He was sent by his mother along with victim to look for culprit. When they reached near Shamshan Ghat, they saw that accused was present and victim pointed out towards him. He caught hold of accused and confronted him about his act. Accused was drunk at that time and started abusing him. Public persons gathered there and started beating accused. In the meantime, his parents also reached at the spot. Matter was reported to police. Police reached at the spot and accused was handed over to the police.
Judgment 5 of 14
SC No: 58130/16 State Vs. Sunil
9. PW5 SI Vidya Rawat, Investigating Officer deposed that on receipt of DD No. 25A (Ex PX-2) she reached spot and recorded statement of victim, on the basis of which she prepared tehrir as Ex PW5/A. At instance of victim she prepared site plan as Ex PW5/B. She arrested accused and took his personal search vide memo Ex PW1/B & Ex PX-3. She seized mobile phone (Ex P-1) from accused vide memo as Ex PW5/C. She got transferred data of mobile phone to a DVD as Ex P-2. IO got recorded statement of victim u/s 164 Cr.P.C.
10. Accused gave a statement wherein he admitted the FIR in question as Ex. PX-1, DD No.25A as Ex. PX-2 and his arrest & personal search memo, statement of victim recorded u/s 164 Cr.P.C and certificate issued by School Principal of the victim as Ex PX-4. In view of the same the concerned Duty Officer, and other witnesses were not summoned for examination. Remaining witnesses were examined as PW1-5 and their testimonies have already been discussed as above.
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SC No: 58130/16 State Vs. Sunil
11. In his statement recorded u/s 313 Cr.P.C., accused admitted that a Nokia mobile phone Ex P-1 was recovered from his possession in which 13 porn videos were found. Accused took a defence that it was meant for private viewing and on the date of incident he was watching a video, victim came near her and ran away and he did not know why he was implicated in the case.
12. Age of victim: Before dwelling upon incident in question, let us find out what was the age of victim at the time of incident. Prosecution has relied upon School record in respect of date of birth of victim as Ex. PX-4 as per which date of birth of victim is 01.07.2003. It goes to show that at the time of incident (22.05.2014), victim was about 11 years old. Defence has not disputed the age of the victim in any manner. As such it is held that at the time of incident, victim was a "Child" within the meaning given under POCSO Act.
Judgment 7 of 14
SC No: 58130/16 State Vs. Sunil
13. Testimony of victim: After the initial statement of victim, her statement Ex. PW1/C was recorded u/s 164 Cr.P.C. and its English translation reads as under :-
".... Yesterday evening at about 5:00 p.m., I was going towards my house after fetching water. On the way, one person restrained me. I felt that he might be asking way from me. I stopped. He showed obscene thing to me from his phone. He showed in his phone that one girl was sucking penis of one man in her mouth. He caught hold of my hand. I pinched his hand and ran towards my house. After reaching home I narrated entire incident to my mother. My mother told me to call my brother. I went and called my brother. My both brothers came and I told my brothers about the incident. Then my both brothers came with me and searched that man. He was near the street. Then I told my brother that he is the same person. My brother asked that man that what he said to me. He denied. He caught hold of neck of my brother then my brother slapped him and stated to him that he is much elder to my sister who is much younger, then why he had done so. Public came there. All of them beaten him. My parents came. My father said do not beat this man and we will get him arrested. Somebody called at 100. Police came and inquired from me. I narrated the entire incident. Then Police took that man with them.
Q. What else?
Ans. I have not seen that person before.
Q. Do you want to say anything else?
Ans. No.
Judgment 8 of 14
SC No: 58130/16 State Vs. Sunil
14. Deposition of victim reads as under:
On 22.05.2014 at about 5:30 pm, I along with my elder brother went to fetch water Samta Vihar. After fetching water my brother went away with gallon filled with water on his bicycle and I was coming on foot carrying a small gallon. When I reached at some distance ahead cremation ground, one person who was standing there called me. He pulled my hand and took me to a nearby isolated street and showed indecent video clip to me on his mobile. It was very repulsive video showing one girl having penis of one man in her mouth. I tried to run away from there and he caught hold of my hand. I pinched him on his hand and managed to run away from there. I rushed to my house and narrated the whole incident to my mother. My mother send me along with my elder brother R to apprehend the accused. I took my brother to the same place and saw that the accused was present at some distance. I told my brother and pointed towards the accused ( Witness correctly identified the accused through wooden partition). My brother apprehended the accused. Today I do not remember the name of the accused. People gathered at the spot and someone from public called at 100 number from the mobile of the accused. They had also seen the indecent clip on his mobile , by that time, my mother also reached there. Police reached at the spot and inquired from me.
Judgment 9 of 14
SC No: 58130/16 State Vs. Sunil
15. In all her statements victim gave graphic detail that where accused met her, took her in an isolated gali and shown obscene videos to her which she found repulsive. Victim also gave description of the video while deposing that video was showing one girl having penis of one man in her mouth. On scanning the entire statement of the child victim, it reveals that nothing material could be elicited in the cross-examination to suspect the version given by her. Material facts deposed by her in her examination-in-chief remained unchallenged in the cross- examination. No ulterior motive was attributed to the child witness for implicating him.
16. As stated above, on perusal of various statements made by witness at different stages of trial, it transpires that her version is consistent throughout. In all her statements, she has implicated the accused with certainty and has attributed a specific role to him. Victim has duly identified the accused as culprit and no valid reasons exist to disbelieve her testimony.
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SC No: 58130/16 State Vs. Sunil
17. Testimony of other material witnesses: Brother of the victim has been examined by the prosecution as PW4. He deposed that the victim when came back home she was frightened and victim disclosed that the accused took her in an isolated gali and shown indecent videos to her in his mobile. He went with his sister and his sister pointed out towards the accused. He caught hold the hand of accused and confronted him about his act upon which accused started abusing him and thereafter many public persons gathered at the spot. In his cross-examination PW4 deposed that prior to the incident no altercation between him and accused took place and he denied the suggestion that accused was riding on motorcycle which hit against him.
18. PW2 & 3 parents of victim also deposed on the similar lines and testified that the victim disclosed to her that accused after taking her in an isolated place, shown indecent videos to her in his mobile phone after which brother of victim was sent to search for the culprit.
Judgment 11 of 14
SC No: 58130/16 State Vs. Sunil
19. In his statement recorded u/s 313 Cr.P.C., the accused admitted that at the spot a Nokia mobile phone was recovered from his possession in which 13 porn videos were found. Accused took a defence that it was meant for private viewing.
20. Once the accused admitted that mobile which was recovered from his possession was having obscene videos, then the accused was bound to explain as to how the victim came to know that the mobile of the accused was having obscene videos.
21. Victim in her deposition has made specific allegations that the accused had shown her obscene videos from his mobile phone and the mobile phone of the accused was seized by the IO vide seizure memo Ex. PW5/C and this mobile phone was found to be having 13 videos containing porn films. Accused in his statement recorded U/s 313 Cr.P.C. admits that while he was Judgment 12 of 14 SC No: 58130/16 State Vs. Sunil watching video, victim did come near him. Accused does not deny that the obscene video was not seen by the victim within his knowledge. Victim categorically deposed that after seeing the videos she felt that it was obscene and she found it very repulsive. Victim also testified that she saw the accused for the first time on the day of incident. Therefore, her testimony reflects that she was not having any previous ill-will or enmity against the accused, so to falsely implicate him.
22. Thus, the evidence of prosecution witnesses establishes that the accused not only restrained the victim but he is guilty of showing obscene video to her. However, there is nothing on record to prove that accused intentionally transmitted images of private part of victim on his mobile, as such, the charge for the offence punishable U/s 66E Information & Technology Act, cannot be sustained against the accused.
Judgment 13 of 14
SC No: 58130/16 State Vs. Sunil
23. Conclusion: From discussions, it emerges that:
i) Prosecution has been able to establish that on the date of incident victim was a "child".
ii) Accused took victim in an isolated street and showed obscene video (pornography) to her.
iii)When victim tried to go, accused restrained her.
iv)Testimony of victim is found to be truthful and consistent in material particulars.
v) Parents and brother of victim also corroborates her version.
vi) Accused admits that mobile seized from him contained obscene videos.
24. In the light of aforesaid discussions, accused stands convicted for offence punishable under Section 341/354A IPC & 12 POCSO Act.
Announced in the open court on 30th day of January, 2017.
(GAUTAM MANAN) ASJ-01:NORTH:ROHINI:DELHI 30.01.2017.
Judgment 14 of 14