Delhi District Court
Fir No. 542/13 State vs Bheem Page No. 1 Of 22 on 8 January, 2018
IN THE COURT OF POORAN CHAND, ADDITIONAL SESSIONS JUDGE01, (DESIGNATED SPECIAL COURT UNDER THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012) EAST DISTRICT, KARKARDOOMA COURTS, DELHI Sessions Case No. 304/2016 FIR No. 542/13 Police Station : Kalyan Puri Under Section : 367/376/452 IPC Section 4 & 8 of POCSO Act State .....Complainant Versus Bheem ....Accused R/o House No. 15/114, Kalyan Puri, Delhi Date of Institution : 01.11.2013 Date of Reserving Order : 03.01.2018 Date of Decision : 06.01.2018 J U D G M E N T 1.
The accused has been put to trial on the allegations that on 12.09.13 at 3.00 a.m at House No. 15/114, 2nd Floor, Kalyan Puri, FIR No. 542/13 State Vs Bheem Page No. 1 of 22 Delhi, the accused committed house trespas by entering into the house of Bali and committed aggravated penetrative sexual assault on victim aged 11 years by inserting his finger in her vagina and was thus charged for the offences punishable u/s 452 IPC & u/s 6 of POCSO Act.
2. Brief facts as per the case of the prosecution are that on receipt of DD No. 27A dated 12.09.2013, WSI Veena alongwith ASI Om Prakash reached at the spot where she met the victim and her sister (names withheld to conceal the identity of the victim). They complained that victim has been subjected to sexual harassment. Thereafter, they alongwith the victim and her sister went to LBS hospital where medical examination of the victim was conducted. MLC of the victim child was obtained and statement of the victim child was recorded wherein she stated that on 11.09.13 while she was sleeping in the room on the floor with her sister and her father was sleeping on the bed with her brother. At about 3.00 a.m, someone kissed her and victim woke up and saw accused Bhim who was residing as a tenant on the second floor there and who had pulled FIR No. 542/13 State Vs Bheem Page No. 2 of 22 down her knicker and inserted his finger inside her vagina. Accused Bhim ran away from there. The victim got scared and did not narrate the incident to anybody.
3. On the basis of statement/complaint of victim child, FIR was registered u/s 376/452/354 IPC & section 4 & 8 of POCSO Act. Thereafter, IO recorded the statement of victim and prepared site plan at the instance of victim and also got recorded the statement of victim u/s 164 Cr.P.C., verified the date of birth of victim etc.
4. After completion of the due formalities, the chargesheet was filed in the Court.
5. Vide order dated 18.02.14, the accused was charged for the offence punishable under section 452 IPC & u/s 6 of POCSO Act to which he pleaded not guilty and claimed trial and the matter was listed for prosecution evidence.
6. To prove its case, prosecution has examined as many as 16 witnesses.
7. PW1 is the Principal, GG SSS Kalyan Puri, Delhi. She produced the original admission register and proved the entry at serial FIR No. 542/13 State Vs Bheem Page No. 3 of 22 No. 6272 in the admission register as Ex.PW1/A as well as admission form as Ex.PW1/B. She also proved the SLC certificate issued by the school as Ex.PW1/C. As per record date of birth victim is 20.10.2001.
8. PW2 HC Yatvir Singh is the Duty Officer who recorded the present FIR Ex.PW2/A on basis of the rukka produced by ASI Om Prakash, sent by IO WSI Veena. He made endorsement on the rukka Ex.PW2/B and sent the FIR and rukka back to the spot.
9. PW3 is the bua of the victim child. She deposed that on 12.09.13, in the day time, victim came to her home and told her that accused Bheem who was residing at the second floor of the same building in which the victim was residing, had come to her room on the intervening nigh of 11/12.09.13 at about 3.00 am and he had kissed her on her cheeks while she was sleeping on the floor of the room and thereafter she woke up and she also told that accused had inserted his finger into her vagina and thereafter, he ran away. Thereafter, she took the victim alongwith her son in law Surender went to the house of accused. Surender called the police. The police came there and took the victim and her daughter to LBS hospital FIR No. 542/13 State Vs Bheem Page No. 4 of 22 where she was medically examined and her statement was recorded by the police.
10. PW4 Surender is the son in law of the bua of the victim child. He deposed that on 12.09.13, he had gone to the house of his mother in law PW3 where victim had come and told her mother in law on the intervening night of 11/12.09.13, she was sleeping in her room at the floor and accused Bheem who was residing at the second floor of the said building had come there at about 3.00 am and had kissed her on her cheeks and when she woke up, accused removed her panty and insterted his finger into her vagina and thereafter, he ran away. Thereafter, he alongwith the victim and his mother in law went to the house of accused. He made a call to the police at 100 no. The police came there and took the victim accompanied by his wife to LBS hospital where she was medically examined and statement of the victim was recorded by the police.
11. PW5 is the victim child. She deposed that her mother is not alive and her father is working as a stone labourer. She has two brothers and one sister. She further deposed that on 11.09.2013 at FIR No. 542/13 State Vs Bheem Page No. 5 of 22 about 3.00 a.m, she was sleeping in her room. She was sleeping on the floor with her sister and her father was sleeping on the bed with her brother. At about 3.00 a.m, accused who used to live as a tenant in the same premises at 2nd floor, came there and kissed on her lips. Thereafter, accused pulled down her nicker and she woke up. Thereafter, accused put his finger in her vagina. She got scared and got up. Accused ran away from there. She did not tell about this incident to her father as she was scared that her father would quarrel with accused. She further deposed that on the next day from school, she reached at her Bua's house who used to live in Trilok Puri and she told her everything. Her Bua came to her house with her. Her Bua called her son in law, who called poilce at 100 number. Police came to her house and took her to P.S. Her father and her sister also accompanied her. Police enquired about the incident from her and recorded her statemnet which is Ex.PW5/A. Thereafter, she was taken to LBS hospital where her medical examination was conducted. Thereafter, police brought the victim to her house where site plan was prepared at her instance. She was produced in the Court where her FIR No. 542/13 State Vs Bheem Page No. 6 of 22 statement was recorded by Judge. She identified her signature on her statement recorded u/s 164 Cr.P.C as Ex.PW5/B.
12. PW6 is the cousin (sister) of the victim who had accompanied her to LBS Hospital. She deposed that statement of victim was recorded in the hospital and thereafter, site plan was prepared at the instance of victim.
13. PW7 Dharam Pal is the owner of the premises and was residing at ground floor. He deposed that accused Bheem had resided at second floor with his jija namely Ashok for few days. He further deposed that at the first floor victim resided with her parents. After the incident, he got his premises vacated from both tenants.
14. PW8 is ASI Om Prakash. He deposed that on 12.09.13, he accompanied the IO WSI Veena to the spot i.e 15/114, Kalyan Puri on the basis of DD No. 27A. They had taken the victim and her sister to LBS Hospital for medical examination. After medical examination, IO recorded the statement of victim. IO prepared rukka and gave it to him for registration of FIR. He took the rukka and got the FIR registered, handed over a copy of FIR and original rukka to IO. He has further FIR No. 542/13 State Vs Bheem Page No. 7 of 22 proved the arrest memo as Ex.PW8/A and personal search memo of accused as Ex.PW8/B.
15. PW9 is IO SI Veena. She deposed that on 12.09.2013, on receiving DD No. 27A, she alongwith ASI Om Prakash reached at the spot i.e 15/114, Kalyan Puri where they met the victim child and her sister (names withheld to conceal the identity of the victim). They complained that victim has been subjected to penetrative sexual assault. Thereafter, they took the victim to LBS hospital where medical examination of the victim was conducted. Doctor gave her exhibits which were taken into possession vide memo Ex.PW9/A. She recorded statement of victim, prepared rukka which is Ex.PW9/B and got the FIR registered through ASI Om Prakash. She prepared site plan at the instance of victim Ex.PW9/C. Disclosure statemnet made by the accused is Ex.PW9/D. Accused pointed out the place of incident vide pointing out memo Ex.PW9/E. Accused was taken to LBS hospital where his medical examination was conducted. Blood sample of the accused was taken which was seized vide memo Ex.PW9/F. On 19.09.13, victim was produced before Ld MM and her FIR No. 542/13 State Vs Bheem Page No. 8 of 22 statement u/s 164 Cr.P.C was got recorded. On 03.10.13, exhibits were sent to FSL. She prepared the chargesheet and filed it in the Court.
16. PW10 ASI Sukhpal Singh is the MHC(M) who deposed that on 12.09.13, PW9 IO WSI Veena deposited three pullandas in sealed condition and two sample seals of LBS hospital KP in the Malkhana which were entered in the register vide entry at serial no. 4290 which is Ex.PW10/A. He further deposed that on 03.10.13, on the instructions of IO, he had sent the three pullandas and two sample seals of the case to FSL through Ct. Ashok Kumar vide RC No. 310/21/13 Ex.PW10/B. After deposing the case property, Ct. Ashok Kumar brought back the receipt of the receiving vide Ex.PW10/C.
17. PW11 is Dr. Chitra Janu, LNJP Hospital who deposed that on 12.09.13, he examined the victim and prepared MLC Ex.PW11/A.
18. PW12 is W HC Abha who was the duty officer on 12.09.13. He deposed that he recorded DD No. 27A in the Roznamcha and inquiry of the same was marked to ASI Om Prakash. He proved the same as Ex.PW12/A.
19. PW13 is Ct. Suresh Chand. He deposed that on 12.09.13, he FIR No. 542/13 State Vs Bheem Page No. 9 of 22 joined the investigation of this case with SI Veena. He alongwith SI Veena had taken accused Bheem for his medical examination.
20. PW14 is W/Ct. Poonam. She deposed that on 12.09.13, she was working as operator at CPCR, PHQ, New Delhi. She deposed that a call was received at 15.17.56 hours regarding wrong having been committed with a minor girl aged 10 years and the boy being apprehended at the spot. She filled the PCR form with respect to this call and same has been proved as Ex.PW14/A.
21. PW15 ASI Suresh Kumar. He has deposed on the similar lines as that of PW14. He further proved the information recorded by him as Ex.PW15/A.
22. PW16 Ct.Ashok is the witness who deposited and thereafter brought back the exhibits from FSL and deposited with MHC(M). He deposed that case property remained intact till it remained in his possession and no tampering was done with case property.
23. After completion of prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded wherein he stated that he has been falsely implicated in the present case because a quarrel took place between FIR No. 542/13 State Vs Bheem Page No. 10 of 22 his brother in law and father of the victim on the issue of water supply about two months prior to registration of case. Accused did not lead any evidence in his defence.
REASONS AND DECISION
24. I have heard the arguments made by learned Additional Public Prosecutor and learned Defence Counsel and have perused the case file.
25. It is argued by the learned defence counsel that there are improvements made by the victim in her complaint, statement u/s 164 Cr.P.C as well as statement made before the Court which cast a doubt on the credibility of her version, the benefit of which must go to the accused.
26. It is further argued that no public witness except the owner of the premises where the incident occurred has been made witness which creates a doubt on the story of the prosecution.
27. Another argument raised by Ld. Defence Counsel is that no incriminating has come in the FSL report which further creates a doubt on the story of the prosecution.
FIR No. 542/13 State Vs Bheem Page No. 11 of 22
28. It is also argued that the accused has been falsely implicated in the present case as there was a quarrel over water dispute between the father of the victim and brother in law of accused two months prior to the incident.
29. It is also argued that the victim did not raise alarm or inform her father who was also sleeping in the same room but only informed about the incident on the next day to her bua ji. This version of the victim also spells serious doubt on the story of the prosecution.
30. It is also argued that the site plan does not bear the signatures of the victim though it is alleged to have been prepared by the IO at her instance which also goes against the prosecution.
31. It is also argued that there is delay in lodging of FIR. The incident occurred at 3.00 a.m on 11.09.2013 whereas FIR was registered on 12.09.2013 at 07.05 pm.
32. It is further argued that there are contradictions in the deposition of PW8 and PW9. While in his examination in chief, PW8 ASI Om Prakash has deposed that IO prepared site plan at the instance of victim, however, in his crossexamination, he stated that the site plan FIR No. 542/13 State Vs Bheem Page No. 12 of 22 was not prepared in his presence. Similarly, PW9 IO SI Veena in her crossexamination failed to tell about the persons who were present at the time of arrest of accused.
33. Further, the witnesses have deposed contrary to their earlier statements and improved their case during the trial. In view of these contradictions, accused is liable to be acquitted.
34. Per contra, it is argued by the learned Additional Public Prosecutor that the testimony of the victim child has been duly corroborated by the other prosecution witnesses.
35. As regards the argument of defence that the victim child did not inform her father but to her bua on the next date despite the fact that her father was sleeping in the same room is concerned, it is submitted that mother of victim is no more and further she has deposed in her statement before the court that her father was drunk that night and if she had informed him about the incident, he would have quarreled with the accused. It is understandable that a girl who does not have mother and the fact that her sister is younger to her, she chose to inform her Bua about the incident on the next date. The conduct of the FIR No. 542/13 State Vs Bheem Page No. 13 of 22 victim child in not informing her father but informing her bua is quiet natural as any other girl child would have behaved in this manner.
36. To counter the argument of defence that nothing incriminating has come in the FSL report, it is argued by Ld. Addl. PP for State that present case is the case of fingering and not the case of penetrative sexual assault and hence, the FSL report is not of much relevance in this case and the testimony of the victim is sufficient to convict the accused.
37. As regards the argument of defence that site plan does not bear the signature of victim is concerned, it is not necessary for IO to obtain signature of the victim on the site plan.
38. It is also argued on behalf of State that the testimonies of PW3 and PW4 have remained unchallenged and unrebutted as they were not put to crossexamination by the accused.
39. It is further argued that though in his statement u/s 313 Cr.P.C accused has taken the main plea of defence that because of quarrel over water supply between jija of accused and the father of the victim, accused has been falsely implicated, however, in the cross FIR No. 542/13 State Vs Bheem Page No. 14 of 22 examination of PW5, a suggestion has been put to the victim by the accused that the complaint was lodged at the instance of her Bua ji. However, it is not the story of the accused that there was any enmity between the bua ji of the victim and the accused. In other words, the accused has himself changed his main plea of defence casting doubt on his own story of false implication.
40. In view of the deposition of prosecution witnesses, the case of the prosecution stands duly proved and hence, accused is liable to be punished.
41. I have considered the rival submissions and carefully perused the testimonies of all the witnesses and the entire record.
42. Accused has been charged for offences punishable u/s 452 IPC and section 6 of POCSO Act.
43. Though it is the settled principle of law that the prosecution is required to prove its case beyond reasonable doubt, however, in a case under POCSO Act, it is not the similar situation as under section 29 of the POCSO Act, a mandatory presumption for certain offence is to be drawn against the accused in a prosecution for certain offences. FIR No. 542/13 State Vs Bheem Page No. 15 of 22 Section 29 of POCSO Act reads as under:
"29. Presumption as to certain offencesWhere a person is prosecuted for committing or abetting or attempting to commit any offence u/s 3,5,7 and Section 9 of this Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."
44. Similarly, Section 30 of POCSO Act mandates for drawing a presumption of the existence of culpable mental state of the accused where culpable mental state is required on the part of the accused.
45. The conjoint reading of section 29 and 30 of POCSO Act makes it obligatory upon the Court to draw a presumption regarding commission of an offence, unless the contrary is proved, the onus to prove the contrary undoubtedly shifts upon the accused.
46. The victim child is the only witness to the occurrence and there is no other eye witness though her father and her siblings were also present but were asleep. In her deposition before the Court, the victim (PW5) has categorically deposed that on on 11.09.2013 at about 3.00 FIR No. 542/13 State Vs Bheem Page No. 16 of 22 a.m, she was sleeping in her room. She was sleeping on the floor with her sister and her father was sleeping on the bed with her brother. At about 3.00 a.m, accused who used to live as a tenant in the same premises at 2nd floor, came there and kissed on her lips. Thereafter, accused pulled down her nicker and she woke up. Thereafter, accused put his finger in her vagina. She got scared and got up. Accused ran away from there. She did not tell about this incident to her father as she was scared that her father would quarrel with accused. She further deposed that on the next day from school, she reached at her Bua's house who used to live in Trilok Puri and she told her everything about the incident.
47. The argument of defence that there is improvement in her testimony as she once told that she was alone in her room at the time of incident, however, in the next breath, she has stated that her father was also present in the room who was in drunk condition.
48. It is quiet understandable that a minor child cannot be expected to come out with exact details. Her background and the trauma a child faces after the incident has to be taken into consideration while FIR No. 542/13 State Vs Bheem Page No. 17 of 22 appreciating the testimony. Even during her crossexamination, her testimony has remained intact and nothing averse to her testimony had come except the improvements as pointed above. Her testimony in the court has remained consistent with her statement u/s 164 Cr.P.C.
49. As regards the argument of accused that nothing incriminating has come in the FSL, I am in agreement with the argument of State that present in the case of penetrative sexual assault but a case where accused put his finger into the vagina of the victim. Hence, the result of FSL would not be of much relevant. This court is of the considered opinion that the lack of medical evidence cannot be a sole ground for acquittal the accused. It is the settled principle of criminal law jurisprudence that the testimonies of all the witnesses should be read harmoniously and if they corroborate each other, their testimonies should be given more weightage rather than giving benefit of doubt on the ground of lack of medical evidence.
50. In Gaya Prasad Pal vs. State 235 (2016) DLT 264 (DB), Hon'ble High Court of Delhi has held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such FIR No. 542/13 State Vs Bheem Page No. 18 of 22 cases with utmost sensitivity. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The statement of the prosecutrix is more reliable than that of any injured witness as she is not an accomplice. Thus a conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence.
51. In the present case, the victim child in his statement u/s 164 Cr.P.C as well as in the Court has clearly narrated the entire incident and the defence has failed to impeach his testimony and this Court is of the considered opinion that the testimony of the victim child can be safely relied as same has been found duly corroborated by other prosecution witnesses.
52. Further, the defence has miserably failed to prove the plea of false implication on the ground of water dispute as no evidence in this regard has been put forth by the defence. Rather, the accused has on the one side has taken plea of false implication by the father of the victim as there was quarrel over water dispute between father of FIR No. 542/13 State Vs Bheem Page No. 19 of 22 victim and jija of accused, whereas in crossexamination of PW5 (victim), a suggestion has been put to her that she has lodged false complaint at the instance of her Bua. In other words, the accused has taken two defences both are completely unsupported by any cogent evidence which creates a serious doubt on the defence of the accused and hence, cannot be relied at all.
53. So far as the argument of defence with regard to delay in lodging of FIR is concerned, the victim (PW5) has deposed that on the next date, she narrated the entire incident to her bua and thereafter a call was made to the police and thereafter, they went to PS and FIR was registered and as such, there is no delay in lodging of FIR. The argument of defence on this point is completely misconceived and same is accordingly rejected.
54. There are minor contradictions in the testimonies of PW8 and PW9 as pointed out by the defence.
55. In the case of State of Punjab Vs. Gurmit Singh AIR 1996 SCC 1393, the Hon'ble Supreme Court of India has held that the courts should examine the broader probabiliites of a case and not get FIR No. 542/13 State Vs Bheem Page No. 20 of 22 swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature to throw out an otherwise reliable prosecution case. If evidence of a prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. Hence, in view of the law laid down by Hon'ble Supreme Court of India, the minor contradictions are not of much relevant if the evidence of prosecutrix/victim inspires confidence. In the present case, the victim child has categorically deposed about the incident and has stood the test of crossexamination and same is safely relied without looking into the minor contradictions.
56. In view of the testimonies of the victim child and the corroborative testimonies of prosecution witnesses as discussed above and the fact that victim was aged below 12 years at the time when the incident took place, the present case falls within the definition of Aggravated penetrative sexual assault as provided u/s 5 (m) of the POCSO Act. Hence, this Court is of the considered opinion that the ingredients of section 452 IPC and section 6 of POCSO Act duly FIR No. 542/13 State Vs Bheem Page No. 21 of 22 stand satisfied.
57. Considering the entire facts and circumstances, this court is of the considered opinion that prosecution has been able to bring home the guilt of the accused beyond reasonable doubt. Hence, accused is held guilty and convicted for offences punishable under section 452 IPC and section 6 of POCSO Act. Let he be heard on sentence.
Announced in Open Court (Pooran Chand)
th
On 06 January, 2018. ASJ01 cum Presiding Officer Special Court, East, Karkardoma Courts, Delhi FIR No. 542/13 State Vs Bheem Page No. 22 of 22