Delhi District Court
State vs . Rohit Saini on 30 July, 2014
State Vs. Rohit Saini
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 183/13
ID No. : 02401R0556822013
FIR No. : 375/13
Police Station : Sarai Rohilla
Under Section : 376/511/506 IPC & Section
10/6/18 POCSO Act
State
Versus
Rohit Saini
S/o Jai Singh
R/o 180/2,
Gali No. 2, Padam Nagar, Delhi
.........Accused
Date of Institution : 29.10.2013
Date of judgment reserved : 16.07.2014
Date of judgment : 24.07.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Basant Gupta, Advocate, counsel for the accused
JUDGMENT :-
1. Briefly stated facts of prosecution case are that on August 27, 2013 at about 3.35 PM an intimation was received from wireless operator SC No. 183/13 Page 1 of 17 State Vs. Rohit Saini that one boy had been apprehended while making an attempt to commit rape upon a girl aged about 5-6 years old at gali No. 7 near State Bank of India, Padam Nagar, Sarai Rohilla. Said information was recorded vide DD No. 24A (Ex. PW5/A) and assigned to SI Benketesh (PW5) who left for the place of occurrence along with constable Shokeen. After reaching the spot, it was revealed that PCR van had already taken the accused to Hindu Rao Hospital. It was also revealed that it was a case of sexual assault, accordingly, PW5 made a request for female officer, accordingly, SI Amla Minz (PW7) reached there. From the spot, PW7 reached the hospital along with complainant, where complainant identified the accused and got recorded her statement Ex. PW1/A to PW7.
(i) Complainant (since complainant is grandmother of victim of sexual assaulted child, in order to conceal the identity of victim, her identity is withheld and hereinafter she is referred to as complainant or grandmother of victim) in her statement (Ex. PW1/A) alleged that on August 27, 2013 at about 3:15 PM when she was going to receive her grand-
daughter (victim) from the point where her school van used to drop her, her neighbour named Rekha (PW3) told her that one boy had taken the victim (grand-daughter) to the house of rationwala, consequently, she entered the house of rationwala and found that accused Rohit had already taken off his nicker and he had also removed the nicker of her grand-daughter (victim) and victim was in his lap. It was alleged that at that time accused was caressing her vagina by one hand and gagged her mouth by another hand, consequently, she raised an alarm. It was alleged that after hearing hue and cry, public persons gathered there and they apprehended the accused and gave beating to him. In the meantime, someone informed the police. It was alleged that since no rape had taken place, she refused for internal medical examination of the victim. On her statement, PW7 got registered SC No. 183/13 Page 2 of 17 State Vs. Rohit Saini an FIR for the offence punishable under Section 376/511 IPC read with Section 8 of Protection of Children from Sexual Offence Act (in short POCSO Act).
(ii). During investigation, investigating officer arrested the accused Rohit Saini. The clothes of accused were seized from the spot at the pointing out of accused. Documents relating to the age of victim and accused were collected and it was revealed that the date of birth of victim was August 12, 2006, thus she was minor at the time of alleged incident whereas accused was found major. During investigation, statement of victim under Section 164 Code of Criminal Procedure (in short Cr. P.C.) was also got recorded.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 376/511/506 IPC read with Section 10 and 6 read with 18 of POCSO Act.
3. After complying with the provisions of Section 207 Cr. P.C., a charge for the offence punishable under Section 376/511/506 IPC and Section 6 read with Section 18 of POCSO Act and Section 10 of POCSO Act were framed against the accused to which accused pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following ten witnesses:-
PW1 Complainant
PW2 Victim
PW3 Smt. Rekha, neighbour of PW1
SC No. 183/13 Page 3 of 17
State Vs. Rohit Saini
PW4 HC Hari Chander, duty officer
PW5 SI Benketesh, formal witness
PW6 Const. Shokeen, joined the investigation along
with investigating officer
PW7 SI Amla Minz, investigating officer
PW8 Dr. Anubha Aggarwa, proved the MLC of
accused
PW9 Dr. Abhiseikh Pachauri, proved the MLC of
accused
PW10 Shyam Sunder, independent witness,
turned hostile
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied each and every incriminating evidence led by prosecution and submitted that some quarrel had taken place with some local boys in which he had sustained injury, consequently, he was taken to Hindu Rao hospital. It was submitted that no incriminating material was recovered from him and he has been falsely implicated in this case. However, he refused to lead evidence in his defence.
6. Learned counsel appearing for the accused contended that the prosecution case is based on the testimony of PW1 & PW2 but no reliance can be placed on their deposition as there are material contradictions between their deposition. It was submitted that as per the testimony of PW1, accused was found caressing the vagina of victim whereas PW2 did not depose so. It was further contended that even no reliance can be placed on the testimony of PW2 as there is a contradiction between her statement made under Section 164 Cr. P.C and the deposition made before SC No. 183/13 Page 4 of 17 State Vs. Rohit Saini the Court. It was further contended that PW1 deposed that victim was in the lap of accused whereas PW2 denied the same and categorically deposed that she was sitting on the stairs. It was further submitted that no reliance can be placed on the recovery of alleged underwear as there is no evidence to show that alleged underwear belonged to the accused. It was urged that there are also contradictions about the place of arrest among the testimony of witnesses examined by prosecution. It was further contended that since no incident had taken place, PW1 refused to undergo medical examination of the victim, hence, no reliance can be placed on their testimony.
7. Per contra, learned Additional Public Prosecutor refuted the said contentions by sagaciously arguing that though the evidence led by prosecution is not sufficient to prove the guilt of accused for the offence punishable under Section 376 IPC read with Section 511 IPC and Section 6 read with Section 18 of POCSO Act, yet that there are sufficient evidence to prove the guilt of accused for the offence punishable under Section 10 of the POCSO Act and under Section 506 IPC. It was further contended that the contradictions pointed out by learned counsel are not material to disbelieve the entire prosecution case. It was further argued that from the testimony of PW1 & PW2, it is established beyond doubt that accused had taken the victim to the house of rationwala where he had not only removed his underwear but also removed the underwear of victim, thus there is no reason to disbelieve their testimony.
8. I have heard rival submissions advanced by learned counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
SC No. 183/13 Page 5 of 17State Vs. Rohit Saini
9. Though learned Additional Public Prosecutor fairly conceded that the evidence led by prosecution is not sufficient to bring home the guilt of accused for the offence punishable under Section 376/511 IPC and Section 6 read with Section 18 of the POCSO Act, yet I deem it appropriate to analyse the prosecution evidence in this regard.
10. No doubt, PW1 in her examination-in-chief deposed that when she entered the house of rationwala and went upstairs, she saw that accused had already removed his half pant and he had also removed the underwear of her grand-daughter (victim) and victim was in his lap and accused was caressing her shu-shu (vagina), but her testimony is not corroborated by PW2 as she categorically deposed that when accused removed her underwear, she was sitting on stairs. She further deposed that accused did nothing except removing her underwear and gagging her mouth. She further clarified that she was sitting on the stairs and not in the lap of accused. She also testified that accused did not caress her vagina as deposed by PW1. Since, the victim did not depose that accused had caressed her vagina or accused made her to sit in his lap, I am of the opinion that no reliance can be placed on the testimony of PW1 to that extent.
(i) Further, there are some material to indicate that investigating officer SI Amla Minz had manipulated or fabricated the record. As per record, accused was produced before the Court on 10.09.2013 for extension of judicial remand. At that time Court had noticed that there was another statement of complainant i.e. PW1 on which the investigating officer had started to make an endorsement but left it on the way. The said statement was marked by the Court as Mark 'D'. Perusal of the said statement and the statement Ex. PW1/A reveals that there are substantial SC No. 183/13 Page 6 of 17 State Vs. Rohit Saini variations between both the statements. In Ex. PW1/A complainant had made specific allegations that when she reached there, accused was caressing her vagina whereas this allegation was missing in the statement marked 'D. This shows that the FIR was registered after due deliberation and consultation and in order to make the offence more grave and heinous, investigating officer probably had added the allegations of caressing of vagina and the fact that victim was in the lap of accused whereas in her first statement, complainant did not state so. Needless to say being the investigating officer, it was the paramount duty of PW7 to investigate the matter without any fear and favour. But it appears that she had manipulated the record by inserting some new facts in the subsequent complaint Ex. PW1/A, thus the conduct of PW7 cannot be appreciated in any manner. Since, PW2 is an innocent girl of tender age, she could not understand the fabrication done by PW7 and her grandmother and due to that reason, she had not supported their version. Rather, she deposed what had happened in actual.
(ii) In the light of above discussion, I also fully agree with learned Additional Public Prosecutor that evidence led by prosecution is not sufficient to bring home the guilt of accused for the offence punishable under Section 376 IPC read with Section 511 IPC and Section 6 read with Section 18 of POCSO Act.
11. Now coming to the next question as to whether there are sufficient evidence to prove the guilt of accused for the offence punishable under Section 10 of POCSO Act and other offences or not.
12. From the testimony of PW2 & PW3, it is clear that accused was the person who met with the victim at the point where school van used SC No. 183/13 Page 7 of 17 State Vs. Rohit Saini to drop the victim and took the victim to the house of rationwala. PW2 in her examination-in-chief deposed that on that day her grandmother did not meet her when she came back from the school and further deposed that rather one boy met there who told her that her friend Nicky was calling her, consequently, she accompanied the said boy and the said boy took her in a house. She further clarified that the said boy had taken her at the stairs of first floor of the said house. During the cross-examination of PW2, a suggestion was put to the witness that accused met the victim when she was going alone towards her house and after seeing her alone accused made inquiry from her; where was her dadi, however, the said suggestion was categorically denied. By putting this suggestion, accused admitted not only his presence but also admitted that he met with the victim.
(i) The testimony of PW2 is fully corroborated from the testimony of PW3 who deposed that she was standing outside in the balcony of her house at second floor and saw that accused was talking with the victim and thereafter he took the victim to the house of rationwala. She further deposed that she knew the victim and her grandmother. Since PW3 knew the victim and her grandmother previously, it can not be said that PW3 had any confusion in the identification of PW2. PW3 further deposed that when victim was taken to the house of rationwala, her grandmother also came there, consequently, she told her that victim was taken by a boy and pointed out towards the house. Consequently, PW1 went upstairs to the said house. PW3 also identified the accused. Though PW3 was cross- examined, yet nothing could be extracted during her cross-examination which may cause any dent in her testimony to the above extent.
13. PW1 also corroborated the testimony of PW3 to the extent that when she reached near State Bank of India, Padam Nagar to receive SC No. 183/13 Page 8 of 17 State Vs. Rohit Saini her grand daughter, she found that school van had already left. She further deposed that at that time, her neighbour Rekha (PW3) told her that one body had entered the house of rationwala along with victim, accordingly she also went there.
14. Thus, from the testimony of PW1, PW2 and PW3, it is established beyond all reasonable doubts that accused met with the victim and took her to the house of rationwala. From the testimony of PW2 it is also established beyond doubt that accused took the victim by enticing her that she was being called by her friend Niki. On the said enticement, victim accompanied the accused.
15. No doubt, there is inconsistency between the testimony of PW1 and PW2 as PW1 deposed that when she entered the house she saw that victim was in the lap of accused and accused was caressing the vagina of victim whereas victim did not depose so. However, victim categorically deposed that accused had removed her underwear and at that time he was sitting on the stairs and accused had also gagged her mouth. From the testimony of PW1 and PW2, it can safely be culled out that accused had touched the victim with sexual intent and in order to satisfy his lust, he had also removed her underwear. Though PW2 was cross-examined, but during her cross-examination nothing came out which may cause any dent in her deposition to the extent that accused had not removed her underwear or that he had not gagged her mouth.
16. From the above, it becomes clear the act of accused squarely falls within the definition of 'sexual assault' as defined under Section 7 of the Act. Since victim was just 7 years old at the time of alleged incident, the act of accused becomes aggravated sexual assault as defined under SC No. 183/13 Page 9 of 17 State Vs. Rohit Saini Section 9 of the Act which is punishable under Section 10 of the Act.
17. PW2 further deposed that when accused gagged her mouth and removed her underwear, accused also threatened her not to raise alarm otherwise he would kill her. Thus, it is also established that accused had criminally intimidated the victim.
18. No doubt, there is some variations in the deposition of PW2 and her statement made under Section 164 Cr. P.C but it is well settled law that the statement made under Section 164 Cr. P.C is not substantial piece of evidence, rather the statement made before the Court is substantial piece of evidence. At the most, the statement under Section 164 Cr. P.C can be used for the purpose of contradiction or corroboration but during the cross-examination, witness was not confronted with her previous statement. In other words, no opportunity was given to the victim to explain about the variations between her previous statement and the deposition made in the Court. Further to my mind, the variation between the statement of victim under Section 164 Cr. P.C and before the Court is irrelevant to prove the guilt of accused for the offence punishable under Section 10 of the POCSO Act. On the contrary, statement made under Section 164 Cr. P. C corroborates the testimony of victim that accused had taken away the victim on the pretext that she was being called by her friend Niki and on the said pretext accused took her in a house where in the stairs accused removed her underwear; gagged her mouth and also threatened her. Thus, I do not find any reason to disbelieve the entire testimony of victim mere on the ground that there is some insignificant variations in her deposition from her previous statement made under Section 164 Cr. P. C. SC No. 183/13 Page 10 of 17 State Vs. Rohit Saini
19. Now coming to the contentions relating the seizure of underwear and half pant of the accused.
20. Prosecution has set up a case that at the pointing out of accused, one underwear and one pyjama was recovered from the place of occurrence. However, perusal of the testimony of witnesses examined by prosecution reveals that there are not sufficient cogent evidence to prove this fact. As per seizure memo Ex. PW6/A, one red and black colour trouser and one coca colour underwear were recovered at the pointing out of accused and same were seized by SI Amla Minz. It is admitted case of prosecution that the said clothes were seized when accused led the police party to the place of occurrence from hospital. But the said version of prosecution does not inspire any confidence. It is admitted case of prosecution that initially the call was attended by PW5 along with constable Shokeen and thereafter, PW7 SI Amla Minz reached there. PW7 in her cross-examination deposed that she left for hospital at about 5 PM. Admittedly, police have received the intimation of this incident at about 3.35 PM and thereafter, police officials reached the spot. From the testimony of PW5 and PW7 it is clear that initially PCR van reached there, thereafter, local police reached there. PW7 in her cross-examined testified that she left from the spot at about 5 PM for the hospital. It means that PW7 remained at the spot for about one hour. It is quite unbelievable that during the said one hour, the police officials would not inspect the place of occurrence. If they had inspected the place of occurrence, then the said clothes, if any, must have been noticed by PW5 and PW7 but this fact is not mentioned anywhere. It is admitted case of prosecution that the rukka was sent from hospital but there is no reference of about the said clothes in the rukka. Further, as per the seizure memo Ex. PW6/A accused was wearing pyjama, which is contrary to the version of complainant who in her statement Ex.
SC No. 183/13 Page 11 of 17State Vs. Rohit Saini PW1/A alleged that accused was wearing half pant. If accused was wearing half pant, it is quite unbelievable that he would also be wearing pyjama over the half pant. Further, PW1 in her deposition deposed that when she reached the spot she saw that accused had already removed his underwear and half pant. Thus, as per testimony of PW1 accused was naked. Simultaneously, PW1 also deposed that when she raised alarm, public gathered there and they apprehended the accused and gave beating to him. Does it mean that accused was running while fully naked? Moreover, investigating officer did not deem it appropriate to examine any person who allegedly apprehended or gave beating to the accused. Though as per prosecution version, PCR van also reached there but investigating officer did not deem it appropriate to make an inquiry from them to ascertain whether accused was fully naked at that time or not. Though prosecution has examined PW1 and PW3 but they did not state that accused was fully naked when he was apprehended by public persons. Further, PW2 demolishes the prosecution version that accused was naked as PW2 did not depose that accused either removed his underwear or half pant. If accused was wearing half pant as deposed by PW1, it is unlikelihood that he would also be wearing pyjama.
21. Further none of the witnesses identify the clothes allegedly shown to be recovered at the pointing out of accused. Neither PW1 nor PW2 or PW3 deposed that the said clothes were belonged to the accused. In other words there is no sufficient cogent evidence to establish that the alleged recovered clothes belonged to the accused. In the absence of any cogent evidence, no reliance can be placed on the said piece of evidence.
22. As already discussed that the testimony of PW1 to the extent that accused was caressing her vagina does not inspire any confidence as SC No. 183/13 Page 12 of 17 State Vs. Rohit Saini victim in her testimony categorically deposed that accused had removed her underwear only and at that time she was sitting on the stairs and not in his lap. Victim also clarified that accused did nothing except removing her underwear and gagging her mouth.
23. Though under Section 29 of Protection of Children From Sexual offences Act, presumption lies in favour of prosecution, yet in the instant case prosecution has established beyond all reasonable doubts that accused had taken the victim to the house of rationwala and thereafter, he had sexually assaulted the victim as defined under Section 7 of the POCSO Act. Since victim was below 12 years of age, the act of accused amounts 'aggravated sexual assault' as defined under Section 9 of the Act which is punishable under Section 10 of the POCSO Act. Under section 29 of the Act, onus is upon the accused to disprove the prosecution case. But during trial accused failed to adduce any evidence or bring any fact on record during the cross examination of prosecution witnesses which may disprove the prosecution case. In these circumstances, I do not find any reason to disbelieve the prosecution case.
24. Since, PW2 in her deposition categorically deposed that accused had taken her on the pretext that her friend Niki was calling her, thus, it is established that accused had enticed her to take her from the lawful custody of her guardian, thus the act of accused from taking her to the house of rationwala amounts kidnapping as defined under Section 361 IPC which is punishable under Section 363 IPC. No doubt, no separate charge has been framed for the offence punishable under Section 363 IPC, but with the aid Section 221 of Cr. P. C, conviction can be recorded in the absence of charge.
SC No. 183/13 Page 13 of 17State Vs. Rohit Saini
25. Further from the testimony of PW2 it is established that accused had threatened the victim to kill her if she would raise any alarm, thus accused is also liable for the offence criminal intimidation punishable under Section 506-Part I of IPC.
26. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt of accused beyond the shadow of all reasonable doubts for the offence punishable under Section 10 of POCSO Act and under Section 363/506- Part I of IPC, thus, I hereby hold the accused Rohit Saini guilty thereunder.
Announced in the open Court
on this 24th day of July,2014 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI/sv
SC No. 183/13 Page 14 of 17
State Vs. Rohit Saini
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 183/13 ID No. : 02401R0556822013 FIR No. : 375/13 Police Station : Sarai Rohilla Under Section : 376/511/506 IPC & Section 10/6/18 POCSO Act State Versus Rohit Saini S/o Jai Singh R/o 180/2, Gali No. 2, Padam Nagar, Delhi .........Convict Present: Sh. G. S. Guraya, Substitute Additional Public Prosecutor for the State Sh. Yatender Kumar, Advocate, amicus curiae for the convict ORDER ON THE POINT OF SENTENCE : -
1. Vide separate judgment dated July 24, 2014 accused Rohit Saini had been held guilty for the offence punishable under Section 363/506 Part I of Indian Penal Code and under Section 10 of Protection of Children from Sexual Offences Act, 2012.SC No. 183/13 Page 15 of 17
State Vs. Rohit Saini
2. Learned counsel appearing for the convict prays for a lenient view on the ground that convict is a young boy aged about 21 years having no criminal antecedents. It is further submitted that victim herself admitted that convict had not touched her vagina and the Court has also discarded the prosecution case that accused had caressed her vagina. In view of the above-said mitigating factors, learned defence counsel requests to release the convict on probation of good conduct.
3. Per contra, learned Additional Public Prosecutor for the State opposes the said prayer and urges that maximum sentence be awarded as convict had sexually assaulted an innocent girl aged about 7 years.
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. As already held that prosecution has failed to prove that convict was caressing vagina of the victim as alleged in the charge-sheet. It is also undisputed fact that convict is a young boy aged about 21 years and prosecution has also failed to show that convict has any criminal antecedent. No doubt the above extenuating factors are relevant to determine the quantum of sentence in an ordinary criminal case. But under POCSO Act, no discretion has been given to the Court to award less sentence than minimum sentence as provided under the Act. Thus, this Court has no option except to award at least minimum sentence as provided under the Act. Since, minimum sentence is provided for the offence punishable under Section 10 of the POCSO Act, I am of the view convict is not entitled for the benevolent provisions of Probation of Offenders Act. However, in the light of above mitigating factors, I am of the SC No. 183/13 Page 16 of 17 State Vs. Rohit Saini view that convict does not deserve maximum sentence as prayed by learned Additional Public Prosecutor.
6. In the light of foregoing discussion, I hereby sentence the convict Rohit Saini rigorous imprisonment for a period of five years and a fine of ` 1000/- in default simple imprisonment for 15 days for the offence punishable under Section 10 of Protection of Children from Sexual Offences Act, 2012. No separate sentence is being passed for the offence punishable under Section 363 IPC. However, convict Rohit Saini is also sentenced rigorous imprisonment for a period of six months for the offence punishable under Section 506 Part I of IPC. Both the sentences shall run concurrently. Benefit of Section 428 Cr. P. C be given to the convict.
7. Copy of judgment along with order on the point of sentence be given to the convict free of cost.
8. File be consigned to record room.
Announced in the open Court
on this 30th day of July,2014 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI/sv
SC No. 183/13 Page 17 of 17