Delhi District Court
State vs . Mukesh on 29 January, 2018
State vs. Mukesh
IN THE COURT OF SH PRITAM SINGH: ASJ-04/
DWARKA COURT: NEW DELHI
Sessions Case No. 440313/2016
State vs. Mukesh
FIR No. : 24/2015
Police Station : Jafar Pur Kalan
Under Sections : 366/328/323/506 (II) IPC and section 6 r/w
Section 5(l) & 12 of POCSO Act
Date of presentation of charge sheet : 17.03.2015
Date on which judgment was reserved : 12.01.2018
Date on which judgment was pronounced : 29.01.2018
JUDGMENT:
1. In brief, the case of the prosecution is that on 01.02.2015 at about 9.00 AM a DD No. 8A P.S. Jafar Pur Kalan, New Delhi was received and IO/SI Manju went to the place of incident i.e. Bus Stand, Gao Daurala, New Delhi. The complainant/child victim (identity of child victim withheld) was found there whose statement/complaint was recorded wherein she stated that she was 16½ years old and studied in 11th class in a government school at Rawta Village, New Delhi. A boy namely Mukesh s/o late Sh. Ram Singh also studied in 12 th class in the same school and he was following the child victim for about 4-5 FIR No. 24/15 P.S. J.P. Kalan 1 of 30 State vs. Mukesh months. There was a bus stand near her village, where an old broken house was situated and the child victim used to go to said old broken house to relieve. About 3-4 months ago the accused had taken her after influencing her to the said old house and took her photos and also made video of wrong act in his mobile. The accused used to say to the child victim that he wanted to marry her but when she denied the accused threatened to defame her and also to kill her parents. The accused also forcibly raped the child victim 4-5 times in the last 3- 4 months in the said old broken house after inhaling her some intoxicating substance. Further the accused raped the child victim on 27.12.2014 and 31.01.2015. On 31.01.2015, the accused beat the child victim due to which she got injured and the accused also forcibly raped her after inhaling her some intoxicating substance. On the statement of the child victim, the present case was registered.
2. During the investigation, the statement under section 164 Cr.P.C. of the child victim was recorded. The medical examination of the child victim and accused was conducted. The sealed pullandas of clothes and blood samples etc. of the child victim and accused were sent to FSL for the examination. The mobile phone of the accused was also seized and sent to FSL for its examination. The statement u/s 161 Cr.P.C of the witnesses were recorded. The accused was arrested and sent to jail.
FIR No. 24/15 P.S. J.P. Kalan 2 of 30
State vs. Mukesh
3. After completion of the investigation, the charge-sheet under section 376/328/323/506 IPC and Section 6 & 14 of POCSO Act was filed against the accused. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr.P.C. On 10.04.2015 charge for offence under section 366/328/323/506 (II) IPC and section 6 r/w section 5(l) of POCSO Act and Section 12 of POCSO Act was framed against the accused. The accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove the charge against the accused examined HC Naresh Kumar as PW-1, child witness was examined as PW-2, Dr. S. Das, Medical Officer and Dr. Rohita, Sr. Resident from RTRM Hospital were examined as PW-3 and PW-4 respectively. Mother of child victim was examined as PW-5, father of child victim as PW-6, HC Shri Bhagwan as PW-7, ASI Sudesh as PW-8, Sh. Baljeet Singh was examined as PW-9, ASI Prabhu Daya as PW-10, W/SI Manju as PW-11, Dr. A.S. Yadav, CMO from RTRM Hospital examined as PW-12 and Mr. V. Laxmi Narsimha, Asstt. Director (Physics) from FSL, Rohini as PW-13.
5. The following documents were relied upon by the prosecution during its evidence, as under:
(i) Photocopy of entry of eight sealed pullandas Ex.PW-1/A (OSR) and two sample seals
(ii) Photocopy of depositing of pullandas in FSL, Ex.PW-1/B (OSR) FIR No. 24/15 P.S. J.P. Kalan 3 of 30 State vs. Mukesh Rohini, vide RC no. 19/21/15
(iii) Photocopy of acknowledgement Ex.PW-1/C (OSR)
(iv) Photocopy of depositing of pullanda Ex.PW-1/D (OSR) containing mobile phone in FSL, Rohini, vide RC no. 21/21/15
(v) Photocopy of acknowledgement Ex.PW-1/E (OSR)
(vi) Statement/complaint of child victim Ex.PW-2/A
(vii) MLC of child victim Ex.PW-2/B
(viii) Statement u/s 164 Cr.P.C of child victim Ex.PW-2/C
(ix) Photocopy of original register containing Ex.PW-7/A (OSR) call record
(x) Photocopy of information register A Ex.PW-7/B (OSR) at serial no. 11
(xi) Site plan Ex.PW-8/A
(xii) Seizure memo of samples/exhibits of child victim Ex.PW-8/B
(xiii) Arrest memo of accused Ex.PW-8/C
(xiv) Personal search of accused Ex.PW-8/D
(xv) Seizure memo of samples/exhibits of the accused Ex.PW-8/E (xvi) Seizure memo of mobile of the accused Ex.PW-8/F (xvii) FSL result Ex.PW-8/G and Ex.PW-8/H (xviii) CD provided by FSL Ex.PW-8/I (xix) Photocopy of relevant entry of Ex.PW-9/A (OSR) admission register FIR No. 24/15 P.S. J.P. Kalan 4 of 30 State vs. Mukesh (xx) Affidavit with regard to the age of child Ex.PW-9/B (OSR) victim (xxi) MLC of accused Ex.PW-12/A
6. The statement of accused persons under section 313 Cr.P.C. was recorded on 04.01.2017. Thereafter, PW-13, V. Laxmi Narsimha, Assistant Director (Physics) FSL, Rohini was examined on 04.01.2018 in respect of FSL report under which the mobile phone of the accused person was examined at FSL, Rohini, New Delhi. Therefore, statement of accused under section 313 Cr.P.C was again recorded on 04.01.2018. All the incriminating evidence were put to the accused but he replied that he did not know anything and he was wrongly impleaded in the case.
7. The accused led his defence evidence. Sh. Bansi Lal, who used to put/run a rehri of fruit chart at Dorala Bus Stand, was examined as DW-1.
8. Final arguments heard. Record perused and considered.
9. Ld. Additional Public Prosecutor submitted that from the deposition of prosecution witnesses and the documents particularly from the FSL result in respect of mobile phone of the accused, the case of the prosecution is dully proved that the accused had committed offence under section 6 read with Section 5 (l) POCSO Act and Section 366/328/506 (II) IPC.
FIR No. 24/15 P.S. J.P. Kalan 5 of 30
State vs. Mukesh
10. Ld. counsel for the accused submitted that the deposition of PW-2 is full of contradictions, therefore, the same cannot be relied upon. Ld. counsel for the accused further submitted that in the MLC of the child victim there is no history of external injury and the doctor had also not opined that the child victim was raped. Ld. counsel further submitted that the child victim in her statement under section 164 Cr.P.C stated that she was raped on 31.01.2015 only and it further showed that the child victim made improvements while deposing in the court. Ld. counsel further argued that as per the charge-sheet the police received a call of quarrel and a DD entry was made in respect of quarrel near Bus stand, Daurala Village. Ld. counsel further argued that in fact a quarrel occurred between the family of child victim and family of the accused over the issue of drainage and the family of child victim was alleging that the family of accused used to throw cow dung in drain which entered into the house of the child victim due to overflow. Ld. counsel for the accused further argued that DW-1 was present when the police arrived at the spot on 01.02.2015 and he witnesses that a quarrel took place between the families of child victim and of the accused. Ld. counsel further submitted that there were various major contradictions in the deposition of PW-1, PW-2 and PW-3. Ld. counsel further submitted that mother of the accused had registered a case against the uncle of the child victim, therefore, in order to file a counter case the family of child victim had filed the present false case and falsely implicated the accused. Ld. FIR No. 24/15 P.S. J.P. Kalan 6 of 30 State vs. Mukesh counsel further submitted that the prosecution failed to prove its case beyond reasonable doubts, therefore, accused may kindly be acquitted.
11. The charges under section 6 and 12 of POCSO Act was also framed against the accused. Therefore, it is necessary to ascertain whether the child victim was below the age of 18 years on the date of incident. It is well established law that to ascertain the age of the child victim, the Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 is applicable. Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules 2007 provides as under:
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
12. The prosecution has relied upon the first attended school record of the child victim in order to prove the age of the child victim. The prosecution has FIR No. 24/15 P.S. J.P. Kalan 7 of 30 State vs. Mukesh examined PW-9 Sh. Baljeet Singh, who is Incharge in the school of the child victim. PW-9 deposed that as per the school record the child victim was admitted in their school on 16.04.2012 vide serial no. 540 in class-I. The date of birth of child victim is 19.03.1998. PW-9 further deposed that at the time of admission of child victim, her father had filed affidavit with regard to her age. The entry in admission register of the child victim Ex.PW-9/A and the affidavit with regard to age of the child victim Ex.PW-9/B. PW-9 deposed in his cross- examination that the affidavit in respect of age of child victim was not attested by any gazetted officer. From the school admission register Ex.PW-9/A it is established that the date of birth of the child victim as per her first school attended is 19.03.1998. The incident took place on 27.12.2014 and again on 31.01.2015. Thus, the child victim was 16 years, 9 months and 9 days on the date of first incident i.e. 27.12.2014.
13. The case in hand is covered by Rule 12 (3) (a) (ii) of Juvenile Justice (Care and Protection of Children) Rules 2007. The question that the affidavit which as filed by the father of child victim at the time of her admission was not attested by any gazetted officer does not make difference. Hence, it is established that the child victim was less than 18 years of age at the time of alleged incidents.
FIR No. 24/15 P.S. J.P. Kalan 8 of 30
State vs. Mukesh
14. Now the question arises whether the accused is guilty of committing the offence under section 6 r/w section 5(l) of the POCSO Act and section 12 of the POCSO Act?
Section 5(l) of POCSO Act read as under: (l) whoever commits penetrative sexual assault on the child more than once or repeatedly.
Section 6. Punishment for aggravated penetrative sexual assault - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but with may extend to imprisonment for life and shall also be liable to fine.
Section 11. Sexual harassment - A person is said to commit sexual harassment upon a child when such person with sexual intent, -
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction FIR No. 24/15 P.S. J.P. Kalan 9 of 30 State vs. Mukesh through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purpose or gives gratification therefor.
Section 12. Punishment for sexual harassment - Whoever, commits sexual harassment upon a child shall be punished with imprisonment of ether description for a term which extend to three years and shall also be liable to fine.
15. PW-1, HC Naresh Kumar deposed that on 01.02.2015 WASI Sudesh handed over him eight sealed pullandas and two sample seals for depositing in the malkhana and he deposited the same and made entry to this effect in register no. 19 at serial no. 1142/15 Ex.PW-1/A. PW-1 further deposed that on 19.02.2015, on the direction of SHO, he handed over seven sealed pullandas and two sample seal to WASI Sudesh for depositing the same to FSL, Rohini vide RC no. 19/21/15, the copy of same is Ex.PW-1/B. PW-1 further deposed that after depositing the abovesaid pullandas, WASI Sudesh handed over him acknowledgement of the acceptance on the same day, the copy of same is Ex.PW-1/C. PW-1 further deposed on 24.02.2015, on the direction of SHO, he handed over one sealed pullanda containing mobile phone to WASI Sudesh for depositing the same to FSL, Rohini vide RC no. 21/21/15, the copy of same is FIR No. 24/15 P.S. J.P. Kalan 10 of 30 State vs. Mukesh Ex.PW-1/D. After depositing abovesaid pullanda, WASI Suedesh handed him acknowledgement of the case acceptance on the same day. Copy of acknowledgement is Ex.PW-1/E. PW-1 further deposed that so long as the case property remained in his possession, the same was not tempered with.
16. PW-2, child victim deposed that she knew the accused prior to the incident being her neighbor and he was also studying in the same school at the time of incident, where she was studying. Accused Mukesh used to stalk her while going and returning from her school. Accused Mukesh had used to take her forcibly to a vacant house situated near the bus stop, where she used to deboard from the bus while returning from the school and after inhaling her intoxicating substance, accused used to rape her forcibly and on one occasion he had also prepared a video clip in his mobile while committing rape upon her. Accused Mukesh had threatened her that if she disclosed these facts to anyone, he would kill her parents and her brother and he would circulate the same video clip in the vicinity. PW-2 further deposed that on 27.12.2014 and 31.01.2015 at about 2.30 PM, when she deboarded from the bus at Bus stop near Dorala Boarder, accused Mukesh who was traveling in the same bus deboarded at the said bus stop and he had forcibly taken her in the said broken house and after administering her intoxicating substance, accused forcibly raped her. On 31.01.2015 before committing rape accused had beaten her. PW-2 further FIR No. 24/15 P.S. J.P. Kalan 11 of 30 State vs. Mukesh deposed that on 31.01.2015, on seeing the injury marks on her face, her mother made enquiries from her as to what happened with her, thereafter, she apprised the entire facts to her mother. On the next day, i.e. 01.02.2015, her family member called the police by dialing 100 number. After some time, police reached at her house and made enquiries from her and recorded her statement Ex.PW-2/A bearing her signature at point A and B. PW-2 further deposed that the police took her to RTRM Hospital accompanied by her mother for her medical examination, where she was medically examined vide MLC Ex.PW-2/B bearing her signature at point A. PW-2 has also correctly identified the accused in the court, when he was shown to her through a curtain in such a way that the accused could not see her.
17. PW-2 deposed in her cross-examination that her date of birth is 14.06.1998 and at the time of incident she was studying in 11 th class. PW-2 admitted the suggestion that one of her family member had made a call at 100 number to the effect that a quarrel had taken place at Village Daurala, Bus stand at about 8.35 AM. At the time of quarrel many public persons including her mother, father, uncle and aunt and mother of accused and his other family member were present. PW-2 further deposed that she did not remember whether her statement was recorded at her house or in the police station. PW-2 denied the suggestion that the quarrel had taken place between her family and FIR No. 24/15 P.S. J.P. Kalan 12 of 30 State vs. Mukesh the family of accused over the issue of cleaning of drainage. PW-2 denied the suggestion that she liked accused and she used to talk to him on telephone. PW- 2 admitted the suggestion that no wrong act was done by the accused on the day, when the quarrel had taken place. PW-2 further deposed that she had told to the police and also in her statement u/s 164 Cr.P.C that after deboarding from the bus at the Dorala Bus stand, accused had forcibly taken her to the abundant house, where after making her inhale intoxicating substance, he had raped her. However, when PW-2 was confronted with her statement to the police Ex.PW- 2/A and her statement u/s 164 Cr.P.C. Ex.PW-2/C, it was not so recorded in the said statement. PW-2 further deposed that she had told to Ld. MM in her statement u/s 164 Ex.PW-2/C that about 4-5 months prior to the incident accused had taken her to an abundant room, where he had committed rape upon her. However, when confronted with her statement Ex.PW-2/C, it was not so recorded. PW-2 further deposed that she had not shown place of incident to the police but her family member had shown the place of incident to the police. PW-2 admitted that on 27.12.2014 a quarrel had taken place between her uncle (Tau) and mother of accused and a case was registered against her uncle on the allegation of molestation leveled by mother of the accused. PW-2 denied the suggestion that due to lodging of the case by mother of the accused against her uncle, she had falsely implicated the accused. PW-2 denied the suggestion that accused had not committed any wrong act upon her.
FIR No. 24/15 P.S. J.P. Kalan 13 of 30
State vs. Mukesh
18. PW-3, Dr. S. Das deposed that on 01.02.2015, one girl aged about 16 years was brought to the hospital by one lady Ct. Sushila for her medical examination and he examined the girl and prepared the MLC Ex.PW-2/B bearing his signature at point B. PW-3 further deposed that after vitals examination, the patient was referred to OBS and Gynae department for her further examination.
19. PW-4, Dr. Rohita deposed that on 01.02.2015, one girl aged about 16 years was referred to Department of OBS and Gynae by medical officer for further examination and she examined the girl and prepared the report at point X to X on Ex.PW-2/B bearing her signature at point B. PW-4 further deposed that after examination, she collected the sample mentioned on record after sealing the same handed over to IO. PW-4 deposed in her cross-examination that hymen can be torn due to physical activity like running, jumping and cycling etc apart from sexual intercourse.
20. PW-5 mother of child victim deposed that on 30.01.2015, child victim had gone out in the evening for toilet. When she came back, there was sign of injury on her face. PW-5 further deposed that she asked child victim what had happened but she did not speak for sometime. On being repeatedly asked, she started crying and told her that accused Mukesh had forcibly raped her. She further told her that accused was talking her for last 5-6 months and he had FIR No. 24/15 P.S. J.P. Kalan 14 of 30 State vs. Mukesh prepared a video clip of doing wrong thing with her and was blackmailing her. PW-5 further deposed that child victim further told her that accused further threatened her to kill her parents and brother, if she disclosed anything. PW-5 in her cross-examination deposed that they had called the police on 31.01.2015. Police came to their house within half an hour, but she did not remember whether police recorded her statement at her house or not. The police had taken to child victim to RTRM hospital within half an hour of arriving at their house and they stayed at hospital till evening on 31.01.2015. PW-5 admitted the suggestion that accused and his mother were running a dairy. PW-5 further admitted that mother of accused had registered a case against her brother-in-law (Jeth), Rajender. PW-5 further deposed that she had stated to the police in her statement that child victim had told her that accused Mukesh had raped her on 31.01.2015 but today (day of recording of her deposition in the court), she had wrongly stated the date 30.01.2015.
21. PW-6 father of child victim deposed that on 31.01.2015, he had gone for work to Makrola Village. His wife rang him at 5.45 PM and called him back. PW-6 further deposed when he came back his wife and his daughter (child victim) told him that accused Mukesh had raped child victim. PW-6 further deposed that accused had taken the child victim to a dilapidated room near the place where villagers go for toilet etc and she was raped there. PW-6 further FIR No. 24/15 P.S. J.P. Kalan 15 of 30 State vs. Mukesh deposed on the next day morning they called the police on telephone and the police came to their house. They were taken to police station and the report was written and child victim was taken to hospital. PW-6 deposed in his cross- examination that he reached his house at about 6.00 PM but did not inform the police on 31.01.2015. PW-6 further deposed that they had informed the police on 01.02.2015 but he had not personally informed the police, his family member had informed the police with his consent.
22. PW-7, ASI Sudesh deposed that he was duty officer on 01.02.2015 and at about 8.35 AM a call had been received by him regarding a quarrel in Rawta Village, he had reduced the said call in writing at Serial no. 8 in register A. The said call was assigned to ASI Prabhu Dayal. PW-7 further deposed that ASI Prabhu Dayal informed SHO regarding the wrong act done with the child victim. At about 9.00 AM SHO had sent SI Manju at the spot and she had recorded the said information at Serial no. 11 in register A. At about 11.30 AM a rukka was sent by SI Manju for registration of the case through Ct. Ashok and he had registered the case.
23. PW-8 ASI Sudesh deposed that on 01.02.2015 at about 11.30 AM SHO directed him to reach at the spot i.e. Bus stand Village Daurala, where child victim alongwith her mother and Ct. Ashok and SI Manju were present. Ct. Ashok had handed over a copy of FIR and rukka. PW-8 further deposed that FIR No. 24/15 P.S. J.P. Kalan 16 of 30 State vs. Mukesh he made enquiry from the child victim. At the instance of child victim, he prepared the site plan Ex.PW-8/A. From the spot, he alongwith Ct. Sushila took the child victim accompanied by her mother to RTRM Hospital for her medical, where the child victim was medically examined. After medical examination, the doctor had handed over him the exhibits, which was taken into possession vide seizure memo Ex.PW-8/B. Thereafter, they brought the child victim and her mother to their house. PW-8 further deposed they went in search of the accused and on reaching his house, he was found. At the instance of mother of child victim, accused was arrested vide arrest memo Ex.PW-8/C and personal search of accused was conducted vide memo Ex.PW-8/D. From there accused was taken to hospital for his medical, the accused was medically examined and the doctor handed over him the exhibits of accused which were taken into possession vide memo Ex.PW-8/E. One mobile phone of accused was also recovered from the possession of accused before making his arrest and same was seized vide seizure memo Ex.PW-8/F. PW-8 further deposed that the exhibits were deposited in FSL, Rohini.
24. PW-10 ASI Prabhu Dayal deposed that on 01.02.2015 at about 8.30 AM, on receipt of DD No. 8A, he alongwith Ct. Ashok went to village Daurala and reached near Primary School, where he found a lot of public person and the child victim. He came to know that the matter was of rape of a girl. PW-10 FIR No. 24/15 P.S. J.P. Kalan 17 of 30 State vs. Mukesh further deposed that he immediately informed the SHO about the same and thereafter SI Manju alongwith staff had come there. He handed over the child victim to SI Manju.
25. PW-11 SI Manju deposed that on 01.02.2015 at about 8.40 AM, SHO had directed her to reach Primary School, Daurala Village and he had also informed about the facts of the case. Thereafter, she alongwith Ct. Sushila reached there in a private vehicle where SI Prabhu Dayal and Ct. Ashok were present alongwith child victim and her mother. PW-11 further deposed that she made enquiry from child victim and recorded her statement Ex.PW-2/A. Thereafter, she prepared rukka Ex.PW-11/A and gave it to Ct. Ashok to get the case registered. PW-11 further deposed that from the spot, she had taken the child victim accompanied by her mother to RTRM hospital for her medical examination. The child victim was medically examined and in the meantime SI Sudesh reached there alongwtih copy of FIR and original Rukka as the investigation of the case was entrusted to her. Thereafter, she handed over the child victim to SI Sudesh and left the hospital.
26. PW-12, Dr. A.S. Yadav deposed on 01.02.2015, one person namely Mukesh aged about 19 years was brought by Ct. Ashok to RTRM hospital for his medical examination. He examined him and prepared MLC Ex.PW-2/A, thereafter he referred the patient to SR Surgery for potency test. PW-12 further FIR No. 24/15 P.S. J.P. Kalan 18 of 30 State vs. Mukesh deposed that as per record the patient was examined by SR Surgery, who prepared his report from portion X to X on Ex.PW-12/A.
27. PW-13 V. Laxmi Narsimha, Assistant Director, FSL deposed that FSL report dated 22.07.2015 Ex.PW-8/G was prepared by him and bearing his signature at point A. The CD which was sent to the IO after retrieving data from the mobile phone/memory card submitted to FSL in respect of present case, was run in the court computer today and it contained four obscene video clips bearing no. VIDEO 0017.mp4, VIDEO 0018.mp4, VIDEO 0019.mp4 and VIDEO 0028.mp4. PW-13 further deposed that at the time of examination of data retrieved from mobile phone/ memory card in respect of the concerned video clips there was no indication in the identified video showed on the basis of frame by frame examination.
28. DW-1 Sh. Bansi Lal deposed that he used to place a rehri of fruit chart at Daurala bus stand on 01.02.2015 at about 8.00 AM, he alongwith his rehri was present there. One PCR van had reached there in front of the house of accused. On seeing the police official, he also reached there. DW-1 further deposed that child victim alongwith her parents were quarreling with the mother of accused over the issue of drainage. Father of the child victim spoke to the police official in his presence that accused person used to throw cow dung in the drain which sometimes entered in their house after being overflow. The PCR FIR No. 24/15 P.S. J.P. Kalan 19 of 30 State vs. Mukesh official had taken both the parties with them and he returned to his rehri. DW-1 deposed in his cross-examination that he did not have any documentary proof that he used to place his fruit rehri at Daurala Bus stand. DW-1 admitted the suggestion that after the arrest of the accused the case had come to his knowledge. DW-1 further admitted that after the arrest of the accused he never approached to the police in respect of the case. DW-1 further deposed that he never stated at any platform that the family of the accused and family of the child victim used to quarrel over the issue of flowing cow dung in the drain. DW-1 further admitted that he had come to the court to depose at the instance of the brother of the accused.
29. As per FSL report dated 26.10.2016 of biological examination of the samples of the child victim no semen was detected on the exhibits/samples of child victim, therefore, DNA examination of the samples of accused was not conducted. In the absence of corroboration from the FSL report of biological examination of the samples of the child victim, the case of the prosecution totally depends on the deposition of child victim and FSL, CD containing video clips retrieved from the mobile phone of the accused. PW-1, child victim deposed that on 27.12.2014 and 31.01.2015 at about 2.30 PM when she deboarded from Bus stand at Daurala, accused Mukesh who was also traveling in the same bus deboarded at Bus stand and forcibly took her in the vacant FIR No. 24/15 P.S. J.P. Kalan 20 of 30 State vs. Mukesh house and after administering her intoxicated substance forcibly raped her. PW- 2 further deposed that on 31.01.2015 before committing rape accused had beaten her. On the other hand, PW-2, child victim stated in her complaint to the police Ex.PW-2/A that on 27.12.2014 in the evening accused took her to the room and after making inhale her some intoxicating substance raped her. Child victim further stated in her statement Ex.PW-2/A that on 31.01.2015 at about 5.30 PM when she had gone toilet in the said dilapidated room, the accused asked her to marry her and when she denied the accused beat her and after making inhale her some intoxicating substance raped her. PW-2 stated in her statement under section 164 Cr.P.C. Ex.PW-2/C that the accused had raped her on 31.01.2015. There are contradictions in the deposition of PW-2, what she had stated to the police in her statement Ex.PW-2/A and what she had stated in her statement under section 164 Cr.P.C., Ex.PW-2/C. PW-2 in her deposition before the court deposed that at about 2.30 PM when she deboarded from the bus stand at Daurala Bus stand, accused took her forcibly to the vacant room but in her statement/complaint Ex.PW-2/A, she stated that on 27.12.2014 in the evening accused had raped her and on 31.01.2015 when she had gone for toilet in the said broken house at about 5.30 PM, accused raped her. The above contradictions in the deposition of PW-2 are material in nature. However, the deposition of PW-2 that the accused had raped her on 27.12.2014 and also prepared her video while doing the wrong act with her is corroborated by the FIR No. 24/15 P.S. J.P. Kalan 21 of 30 State vs. Mukesh FSL report dated 22.07.2015 Ex.PW-8/G and FSL, CD Ex.PW-8/I prepared by V. Lakshi Narasimha (PW-13). The FSL report Ex.PW-8/G and FSL, CD Ex.PW-8/I are in respect of the video clips found in the mobile phone of the accused. There are four video clips bearing no. VIDEO 0017.mp4, VIDEO 0018.mp4, VIDEO 0019.mp4 and VIDEO 0028.mp4, pertaining to the case in hand, which were retrieved from the mobile phone/memory card of the accused. In video bearing no. VIDEO 0017.mp4, VIDEO 0018.mp4, VIDEO 0019.mp4, the face of the child victim is visible and video no. VIDEO 0019.mp4 is having obscene material showing the child victim's private parts. In video no. VIDEO 0028.mp4 the face of the child victim is not visible but this video is the most obscene one in which the accused was making sexual intercourse with a girl. Though in video no. VIDEO 0028.mp4 the face of the child victim is not visible but it was made on 27.12.2014 at 14:16:44 hours (2:16 PM) and also at the same place i.e. broken/dilapidated house in which the child victim claimed that the accused had raped her.
30. There is an old saying that a witness can lie but not a document. This saying is squarely applicable to the case in hand. Though, there are contradictions in the deposition of PW-2, child victim regarding the time when the accused had taken her to the broken/dilapidated room, however, the video clips which were retrieved from the mobile phone of the accused proved that the FIR No. 24/15 P.S. J.P. Kalan 22 of 30 State vs. Mukesh accused had not only made obscene video of the child victim but also made illegal sexual relation with her on 27.12.2014 at 2:16 PM. The genuineness and authenticity of video clip bearing no. VIDEO 0017.mp4, VIDEO 0018.mp4, VIDEO 0019.mp4 and VIDEO 0028.mp4, are proved by PW-13 vide his report Ex.PW-8/G. From the deposition of PW-1 it is also proved that the samples were deposited in sealed condition with the FSL, Rohini and no tempering was done in the mobile phone of the accused. After seeing the abovesaid four video clips the doubt which has been raised from the contradiction in the deposition of PW-2, child victim are removed and it is established without doubt that the accused had not only made obscene video of the child victim but also made sexual relations with the child victim. In the video clips, the child victim appears normal and on the asking of accused she had shown her private parts though initially she had resisted. However, as the child victim is less than of 18 years of age, therefore, her consent is immaterial. The deposition of DW-1, Bansi Lal is not of any help to the accused because DW-1 merely deposed that a quarrel took place between the family of the child victim and family of the accused on 01.02.2015. DW-1 did not know more than that. The deposition of DW-1 is also not reliable because he admitted that after arrest of the accused, he never approached to the police in respect of the case. DW-1 further admitted that the factum of the case came to his knowledge after the arrest of the accused.
FIR No. 24/15 P.S. J.P. Kalan 23 of 30
State vs. Mukesh
31. The contention raised by Ld. counsel for the accused that the deposition of child victim is full of contradiction, therefore, cannot be relied upon has no substance. The video clips fully corroborated the deposition of child victim that the accused had made sexual relation with her and also made video in his mobile of the wrong act. Ld. counsel for accused further argued that as per the MLC of the child victim Ex.PW-2/B there was no history of external injury and no rape was opined by the doctor. This contention has no substance because as per the video clip no. VIDEO 0028.mp4, the accused had made sexual intercourse with the child victim on 27.12.2014 and when once it is proved that the accused had made sexual intercourse with the child victim, therefore, there is no reason to discard the testimony of the child victim that the accused had made sexual relation with her on 31.01.2015 also. Ld. counsel for the accused further argued that the child victim stated in her statement u/s 164 Cr.P.C. that the accused had raped her only on 31.01.2015 but she made improvement while deposing in the court that the accused had made sexual relation with her on 27.12.2014 also, therefore, the deposition of PW-2 was not trustworthy. I do not find any substance in this contention because in the statement of the child victim Ex.PW-2/A, on the basis of which the present case was registered, the child victim had categorically stated that the accused had raped her on 27.12.2014 and also on 31.01.2015. Child victim during her evidence in the court deposed that she was raped by the accused on 27.12.2014 FIR No. 24/15 P.S. J.P. Kalan 24 of 30 State vs. Mukesh and also on 31.01.2015. Just on the ground that the child victim did not state in her statement under section 164 Cr.P.C. Ex.PW-2/C that she was raped on 27.12.2014 also does not make the deposition of PW-2 untrustworthy. Ld. counsel further argued that the child victim admitted that the accused had not done any wrong act on the day when incident occurred, therefore, it is established that the accused had not raped her on 31.01.2015. This contention is devoid of merit. The quarrel occurred on 01.02.2015 and on that day no untoward incident happened. However, the child victim categorically deposed that she was raped on 31.01.2015 and in the absence of any counter material/evidence, the deposition of child victim can not be ignored.
32. Ld. counsel for the accused further submitted that there are contradictions in the deposition of PW-5, mother of child victim and PW-6, father of child victim. As per the prosecution case, PW-5, mother of the child victim and PW-6, father of the child victim were not present at the time of alleged incidents. According to the prosecution, the child victim first told about the incident to her mother on 31.01.2015 and when her father came home they narrated the incident to PW-6, father of child victim on the same day. Therefore, the minor contradiction in the deposition of PW-5 and PW-6 does not go to the root of the case. It has been held in U.P. Vs. M.K. Anthony AIR 1985 SC 48, that minor discrepancies not going to the root of the matter would not permit FIR No. 24/15 P.S. J.P. Kalan 25 of 30 State vs. Mukesh rejection of evidence. Every honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ from individuals. In Fakira Vs. State AIR 1976 SC 915, it has been held minor discrepancies guarantee that the witnesses are not tutored. In Om Prakash vs. State of U.P. (2006) SC 2214, it was observed by the Hon'ble Supreme Court "The court while dealing with such cases (sexual offences) should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of prosecutrix, which are not of fatal nature to throw out an otherwise reliable prosecution case."
33. In view of the above discussions it is proved beyond reasonable doubt that the accused had made sexual relations with the child victim on 27.12.2014 and on 31.01.2015 and accordingly the charges under section 6 read with Section 5 (l) are proved against the accused. It is also proved beyond reasonable doubt that the accused had made obscene video of the child victim in his mobile phone and thus, the accused made the child victim to exhibit her private parts to be seen by the accused and accordingly the charge under section 12 r/w Section 11 (ii) of the POCSO Act.
34. Whether the accused is guilty of committing the offence punishable under section 366/323/328/506 IPC?
FIR No. 24/15 P.S. J.P. Kalan 26 of 30
State vs. Mukesh
Section 366 IPC: Kidnapping, abducting or inducing woman to compel her marriage etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
Section 328. Causing hurt by means of poison, etc. with intent to commit an offence - Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to case hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a terms which may extend to ten years, and shall also be liable to fine.
Section 323. Punishment for voluntarily causing hurt - Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be FIR No. 24/15 P.S. J.P. Kalan 27 of 30 State vs. Mukesh punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 506. Punishment for criminal intimidation - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc. - And if the treat be to cause death or grievous hurt, or to cause the destruction of any property by fire, imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both.
35. PW-2, child victim deposed that accused used to forcibly take her to a vacant broken house near bus stand and after making her inhale her some intoxicating substance raped her. PW-2 further deposed that on 31.01.2015 the accused gave her beatings. PW-2 further deposed that the accused threatened her to kill her parents and her brother and he would circulate the video clips in the vicinity. The child victim was more than 16 years old on the date of incidents and studying in 11th class. From the video clips prepared by the accused of the child victim it cannot be said that she was forcibly taken by the FIR No. 24/15 P.S. J.P. Kalan 28 of 30 State vs. Mukesh accused to the said vacant broken house. Therefore, the case of the prosecution that the child victim was kidnapped by the accused from the lawful custody of her parents in order to have illicit intercourse with her is highly improbable. Child victim was conscious about her action when she went alongwith the accused to the vacant broken house. In S. Varadrajan vs. State of Madras, AIR 1965 SC 942 the Hon'ble Supreme Court held "Where facts indicate that the girl left her father's protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out." The ruling S. Varadrajan vs. State of Madras is applicable to the facts of the case in respect of charge of kidnapping of the child victim. From the facial expression of the child victim seen in the video clips it cannot be said that she was kidnapped. To prove the case under section 366 IPC, first kidnapping has to be proved, when kidnapping is not proved, the charge of kidnapping in order to compel a woman to have illicit relation cannot be proved.
36. Similarly, the case of the prosecution that accused had made the child victim to inhale some intoxicating substance due to which the child victim became semi-unconscious is also not proved. In the three video clips in which the face of the child victim is visible, she appeared completely conscious and aware what was going on. During the investigation, IO had also not recovered FIR No. 24/15 P.S. J.P. Kalan 29 of 30 State vs. Mukesh any intoxicating substance from the possession of the accused which was allegedly used by him to make the child victim unconscious. So far as, the case of the prosecution that child victim was beaten by the accused on 31.01.2015, has also no substance because in the MLC of the child victim Ex.PW-2/B, there is no history of beating nor the nature of the injury sustained by the child victim is mentioned. Therefore, the case of the prosecution that child victim was beaten by the accused and she sustained simple injury could not be proved. Considering all these aspects and material on record I am of the considered view that the prosecution failed to establish the charge under section 366/328/323/506 IPC.
37. In view of the above discussions, the accused Mukesh is found guilty and convicted for offence under section 6 r/w 5 (l) of POCSO Act and section 12 of POCSO Act. However, the accused is acquitted from the charge of offence under section 366/328/323/506 (II) IPC.
Pronounced in the open court (Pritam Singh)
on 29.01.2018 ASJ-04/Dwarka Courts
New Delhi
FIR No. 24/15 P.S. J.P. Kalan 30 of 30