Delhi District Court
Fir No. 430/2015 : State vs Santu Prakash @ Santosh : Ps Bharat Nagar on 20 April, 2018
FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No.160/15)
State Vs. Santu Prakash @ Santosh
FIR No. : 430/2015
U/s : 363/342 IPC
& Sec. 8/12 of POCSO Act.
P.S. : Bharat Nagar
State Vs. Santu Prakash @ Santosh
S/o Sh. Rampal
R/o H. No. 105, Sawan Park Extn.
Ashok Vihar, PhaseIII rd,
Delhi.
Permanent Address
Village Haider Pur,
PS and POShahbad,
Distt. Hardoi, UP.
Date of institution of case : 12.10.2015
Date of arguments : 20.04.2018
Date of pronouncement of judgment : 20.04.2018
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FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar
J U D G M E N T :
1.Brief facts of the prosecution case are that DD no. 32A dated 09.08.2015 was recorded on a PCR call regarding wrong act with two boys, aged about 5 years and 7 years. The IO reached the spot where two boys RA and RO, both aged about 7 years met the IO along with their mothers and since the incident was in respect of minor children, lady police officer was called. The second IO reached the spot and after initial inquiry, both the child victims were brought to BJRM hospital for their medical examination and NGO counselor was also called for counseling the child. The statement of the victim RA, aged about 7 years was recorded in the presence of his mother and victim RO and his mother who stated that he is living with his parents in jhuggi and his friend RO is living in the adjoining jhuggi and they both were playing outside their jhuggies and meantime one uncle asked him and his friend RO to eat chowmin in his room in the factory near the temple. There that uncle asked him "meri shu shu karne wali ko apne mooh main daal" and "kahne lage ki apni nikkar uttar." I did not remove my nikkar then Page 2 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar that uncle asked RO "mera shu shu karne wali jagah ko apne haath main pakad" Ro refused it then that uncle gave Rs.10/ to them and asked them to get a 'shikhar' (tobacco) and from the remaining Rs.5/ to eat toffees. They both came out of the room and he informed his mother who informed his paternal uncle (chacha) who called the PCR. On his statement, this FIR was recorded and thereafter, IO along with the victim reached the spot and prepared the site plan and searched for accused who was absconding. On the next day, the owner of that factory where accused was working met the IO and told that accused is known to him for the last 1516 years and is working with him since 2008 and he called the IO and got the accused arrested. Accused was formally arrested and he was medically examined. Samples were seized and sent to FSL. The statement of the victims were got recorded u/s 164 Cr.P.C. Their date of birth proof were collected and after completion of investigation, chargesheet was filed. Copy supplied.
2. Charges for the offences punishable u/s 363/342 IPC and punishable u/s 6 of the POCSO Act read with Section 5(m) and U/s 12 of the POCSO Page 3 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar Act read with 11(vi) POCSO Act were framed against the accused on 19.10.2015, who pleaded not guilty and claimed trial.
3. To bring home the guilt, the prosecution has examined as many as 14 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. wherein he chose to lead DE and examined one defence witness. He took the plea that he has been falsely implicated in the case as the victim children used to pluck flowers and destroy the plants outside the factory where he was working and he had also some dispute with his employer on salary issue and his employer connived with the mother of the victims and he has been falsely implicated in this case.
4. PW1 is the witness from school of RO who produced the date of birth proof of the victim RO. The victim RO was born on 30.09.2009 vide affidavit submitted by his mother Ex.PW1/A along with the MCD birth certificate Ex.PW1/B. There is no cross examination.
Page 4 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar PW2 is the witness from school of RA who produced the date of birth proof of the victim RA. The victim RA was born on 28.04.2008 vide affidavit submitted by his mother Ex.PW2/A along with the MCD birth certificate Ex.PW2/B. There is no cross examination.
PW3 is the Duty Officer who has proved on record the FIR Ex.PW3/A and endorsement on rukka Ex.PW3/B. There is no material cross examination.
PW4 is the mother of the victim RA and stated that on 09.08.2015 at about 7.30p.m., her son RA was playing with his friend RO outside the jhuggi. At about 7.45/8.00p.m., her son came and told her "ek uncle mere saath gandi baat kar rahe the". On inquiry, he told that the said uncle lives and works in a nearby factory and he called him and his friend in the factory to give them chowmin and there he asked him to take the male organ of that uncle in his mouth and also asked him to put off his nikkar. That uncle asked his friend RO to hold his male organ in his hand. He further told that he gave them Rs.10/ to purchase tobacco for Rs.5/ and eat toffees of Rs.5/ and he also told that he threw that Rs. 10/ note and came back. She Page 5 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar told this fact to her brother in law (dever) who immediately took her and her son to the said factory. After some time, the friend of her son along with his mother also reached the factory but accused was not there. Her brotherin law (dever) called PCR at 100 number. Police came and after some inquiry took her son and his friend to BJRM hospital. Both the children were medically examined and police made some inquiry from them and prepared some paper and thereafter, brought the children to factory where site plan was prepared. Police also recorded statement of her son Ex.PW4/A in her presence. It has been suggested to the witenss in her cross examination that accused has been falsely implicated in this case as he used to scold them for breaking branches of the tree near the factory. The witness denied all the suggestions. She also denied that her son used to ask for money from the accused for purchasing toffees and when accused refused, he has been falsely involved in this case.
PW5 the duty officer who recorded DD no. 32A on the PCR call Ex.PW5/A. There is no material cross examination. Page 6 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar PW6 is the employer of accused who stated that on 09.08.2015, his factory was closed being Sunday and at about 6.00/6.30p.m., he received a call from some neighbour residing around his factory that something has happened at the factory. He reached the factory and found police present there but accused was not there. He came to know that accused had sexually assaulted two children in the factory. In the night, he received a call from the accused and he asked him to come to the factory tomorrow. On 10.08.2015, accused came to the factory at about 9.00a.m. and he informed the police who came and arrested the accused. In his brief cross examination, he denied the suggestion that the accused has been falsely implicated in this case by misusing the child victims as accused was asking for raise in his salary.
PW7 is the paternal uncle (chacha) of the victim RA who made the PCR call and he supported the prosecution story. In his brief cross examination, he denied the suggestion that accused used to offer chowmin, burger etc to his nephew even prior to the incident and when the accused suddenly stopped offering these items, he has been falsely implicated. Page 7 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar PW8 is the victim RO whose testimony is reproduced as under : "Q. Beta batao kya hua tha?
Ans. Ek baar shaam ko hum Rahul ke sath bahar khel rahe the. Ek aadmi aaya aur hume chowmin ke bahane apne ghar ke andar le gaya. Fir us aadmi ne Rahul ke poti wali jagahn per apni susu wali jagahn laga di aur baad main hume apnasusu karne wala hamare hath main pakda diya. Us aadmi ne mujhe paise bhi diye the aur bole cheez le aana. Humne toffee le kar faik di thi. Humne ye saari baataine phele bhi police aunty ko batai thi. Police hume chowki per le kar gai thi aur hospital main bhi le kar gai thi.
Q. Beta kya aap use aadmi to pehchan sakte ho?
Court observation: At this stage the witness has turned back and has correctly identified the accused through the design of wooden partition by pointing his finger towards the accused." Page 8 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar During crossexamination, PW8 stated as under : Ghatna ke din se pehle us aadmi ne hume kabhi bhi nahi bulaya tha. Jab wo uncle hamare sath gandi harkat kar rahe the to hum roye bhi the aur shor bhi machaya tha.
Uncle ne hume koi chowmin nahi khilaya. Humne un uncle ko tambakoo laa kar de diya tha per toffee faik di thi. Jab uncle gandi harkat kar rahe the to R @ J bhi roya tha. Ye kehna galat hain ki main aur R @ J un uncle se pehle bhi toffee aur chowmin mangte the aur wo hume de dete the. Ye kehna galat hain ki maine aur R @ J ne factory ke bahar laga hua paudha tod diya tha. Wo uncle hume ek factory main le kar gaye the jahan wo rehte the. Ye kehna galat hain ki us factory ke malik bhi hume toffee dete the. Ye kehna galat hain ki humne apni mummy ke kehne pe police ko un uncle ke baare main jhoothi baat batai thi. Ye kehna galat hain ki un uncle ne hamare sath gandi baat nahi kari thi. Ye kehna galat hain ki maine aaj court main Page 9 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar jhoothi baat batai hain.
PW9 is the mother of the victim RO and supported the prosecution case that on 09.08.2015 at about 7.30 p.m. her son was playing with his friend RA near their jhuggi and after some time, her son came back weeping in a perplexed condition and informed that one uncle committed gandi baat with him and his friend RA. He further told that he took them in his house on the pretext of giving chowmin which is in a factory and there he removed his pant and their nikkars and asked his friend RA to put his private part in his mouth and he also touched his private part to the anal area of RA and also asked her son RO to hold his private part in his hand and they both started weeping. The accused gave them Rs.10/ to purchase tobacco and toffee. They both purchased tobacco and toffee and came back to the accused and handed over tobacco to the accused and threw toffee on him and came back. She along with her son went to the said factory where RA with his mother and chacha were already present but accused was not found. The chacha of RA called the police and one lady police official also Page 10 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar reached there and they were taken to government hospital at Jahangir Puri. Statement of children were recorded after counseling and police thereafter prepared site plan at the instance of victim children. In her cross examination, she denied the suggestion that the landlord of the accused wanted to evict him from his factory and he offered Rs.1 lakh to them for this purpose and they involved their children to falsely implicate the accused. She also denied the suggestion that she and mother of victim RA have received Rs.1 lakh from landlord of the accused.
PW10 is the doctor who identified the signatures of Dr. Puru who examined both the victims vide MLCs Ex.PW10/A and Ex.PW10/B. There is no cross examination.
PW11 is the Ld. M.M. who recorded the statement of both the victims u/s 164 Cr.P.C. as Ex.PW11/B and Ex.PW11/D and gave his certificate Ex.PW11/C and Ex.PW11/E. There is no cross examination.
PW12 is the IO who after receiving DD no. 32A reached the spot and made inquiry from victim children in the presence of their mother and recorded the joint statement of both the victims Ex.PW4/A. She also got the Page 11 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar victims medically examined after their counseling. There is nothing relevant in the cross examination to doubt fair investigation. She denied all the suggestion of false implication of the accused.
PW13 is the victim child RA, whose testimony is reproduced hereunder : Q. Beta batao kya hua tha?
Ans. R aur Main tha aur hum khel rahe the. Us samay shaam ka time tha.
Q. Beta kahan khel rahe the?
Ans Mummy ki factory ke udhar khel rahe the.
Q. Beta fir kya hua?
Ans. Wo aadmi aaya, mujhe aur R ko chowmin khilane ke liye apne ghar factory main le gaya.
Q. Beta fir kya hua?
Ans. Usne apna susu yahan lagaya ( the child has
specifically pointed out towards his anal area) aur fir apna su su mere muh main daal diya.
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FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar
Q. Beta aur kya kiya?
Ans. Fir usne R ko apna susu uske hath main pakda
diya.
Q. Beta fir kya hua?
Ans. Fir hum rone lage. Us aadmi ne hume Rs.10/ diye aur bola ki paanch rupey ka mere liye tobacco le aao aur apne liye toffee le aao.
Q. Beta fir kya hua?
Ans. Humne paanch rupey ka tobacco aur paanch rupey ki toffee khareedi aur us aadmi ko dene gaye to fir usne hamare sath ganda kaam karne laga aur hum hum tobacco aur toffee faik kar wahan se bhaag kar aa gaye.
Q. Beta fir kya hua?
Ans. Fir maine apni mummy ko aur R ne apni mummy ko
sab bata diya.
Q Beta fir mummy ne kya kiya?
Ans. Fir mummy ne factory main use dekhne gai to wo Page 13 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar bahar se kundi laga kar bhaag gaya.
Q. Beta fir kya hua?
Ans. Fir papa ne police bula li. Fir police ne hum se sab kuchh puchha aur fir police ne bola ki gaadi main baith kar chalo.
Q. Fir police ne kya kiya?
Ans. Police hume hospital le kar gai thi aur fir gaadi main beetha kar court main bhi le kar aai thi.
Q. Kya aapne court main sab kuchh bataya tha?
Ans. Haan.
Q. Beta kya aap un uncle ko pehchan sakte ho jinhone
aapke sath ganda kaam kiya tha?
Court observation: At this stage the child has
correctly identified the accused through the design of wooden partition.
Court observation: After seeing the accused the child
has turned white and has started exhibiting the
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FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar
expressions of fear and disgust .
XXX XXX XXX by Sh. B.K. Singh, Ld. counsel for the
accused.
Hum aaram se tobacco aur toffee lene chale gaye
the. Us aadmi ne ghatna ke din se pehle kabhi tobacco aur toffee nahi mangwaya tha. Maine police wali aunty to wo jaghan deekha di thi jahan wo uncle hume chowmin lene ke bahane se le kar gaye the. Hospital main mujh se ek aur anuty ne jo policewali nahi thi puchhtaachh ki thi. Ye kehna galat hain ke apni mummy ke kehne per jhooth bol kar un uncle ko fasaya tha. Vol. mere sath unhone aisa kiya tha....
Ye kehna galat hain ki maine aaj adalat main jhootha bayan diya hain.
PW14 is the second IO who joined the investigation on 10.08.2015 and prepared the site plan Ex.PW14/A and arrested the accused vide arrest Page 15 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar memo Ex.PW14/B and conducted his personal search Ex.PW14/C and got the accused medically examined vide MLC Ex.PW14/D. She also collected the age proof of the victims and filed the chargesheet.
5. Accused examined one defence witness who was from his native village and he stated that on 09.08.2015 between 6.30 to 7.00p.m. he was passing through factory of the accused and his scooter got punctured and he saw two small boys plucking flowers from outside the factory of the accused. Accused scolded them and thereafter he left. After 1015 days, he came to know that accused has gone to his native village. In the cross examination, he admitted that he had good cordial relation with the accused and he cannot tell any other day prior to 09.08.2015 or thereafter when he passed through the factory of the accused. He further failed to tell the directions of the factory of the accused, the storey constructed in that factory, number of plants outside that factory and what flowers were plucked by those boys.
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6. It has been argued for the accused that there was some money dispute between the accused and his employer and further the accused used to scold the victim children as and when they used to pluck the flowers outside his factory and as such, he has been falsely involved in this case. It is also argued that the MLC does not show any injury on the relevant body part of the victim RA and even the FSL result does not support the prosecution case and the entire story is cooked up and prosecution could not prove the case beyond reasonable doubt.
7. Ld. Addl. PP on the other hand, has argued that both the victims are throughout consistent in their testimonies and have duly identified the accused and as such, there is no reason to disbelieve them. It is stated that medical evidence is only corroborative and otherwise also, the act of putting penis in the mouth of the victim RA and in the hand of the other victim RO is sufficient to constitute the offence of sexual assault under the POCSO Act.
8. I have heard the submissions and have perused the record. Page 17 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar
9. As far as, the date of birth of both the victims is concerned, the same is not in dispute by the accused as accused did not crossexamine PW1 and PW2, who proved the date of birth of the victims. Otherwise also PW1 proved on the record the admission form, the affidavit given by the mother of the victim RO and his MCD birth certificate to show that he was born on 30.03.2009. He was only 6 years and 4 months of age on the date of incident i.e. 09.08.2015. Further PW2 has proved that the victim RA was born on 28.04.2008 and he was seven years and three months old on the date of incident. Prosecution has proved beyond reasonable doubt that both the victim children were below 12 years as on 09.08.2015.
10. Coming to the main incident, both the victims have specifically stated that accused took them to his room in the factory on the pretext of offering them chowmin. When they went to his room, he asked victim RA to take the penis of the accused in his mouth and also asked him to remove his nikkar. Thereafter, he asked victim RO to hold the penis of the accused in his hand. Page 18 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar The victims are consistent in their complaint as well as in their statements u/s 164 Cr.P.C. They have specifically stated that the accused put his penis in the mouth of victim RA and thereafter, asked victim RO to hold the penis in his hand and victim RO hold it. There are only minor variations in their testimonies, which can be ignored considering their tender age and the gap in the date of incident and the date of deposition in the court. The alleged incident happened on 09.08.2015, whereas the victim RO aged 7 years at the time of his deposition was examined on 24.02.2016 and the victim RA is 8 years was examined on 25.02.2016. The minor variations as to whether they took Rs. 10/ offered by the accused or not or thereafter, purchased tobacco and toffees as asked by the accused or they threw Rs. 10/ currency note at the accused and refused to purchase the toffes are immaterial. Even in their deposition in the court, the victims have categorically narrated the act of the accused that the accused first touched his penis in the anus of the victim RA and thereafter, put his penis in the mouth of victim RA and thereafter, put his penis in the hand of victim RO. Despite their tender age and crossexamination, both the victims withstood Page 19 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar their testimonies and are reliable witnesses. They immediately informed about the incident to their respective mothers and the police was immediately called and there was no delay in lodging the FIR. The accused was duly arrested on the next day from the same factory, where the alleged incident occurred. There is no reason to doubt the testimony of both the mothers, the chacha of victim RA and the employer of the accused, who have duly supported the prosecution case. Only because in the MLC, there is no injury on the relevant body part of the victim RA is not ground to give any benefit to the accused, since, the victim have stated that accused touched his penis at the anus of the victim RA and thereafter, he put his penis in the mouth of victim RA. In these circumstances, it can be possible that victim RA may not suffer any injury, but absence of any injury is no reason to disbelieve the statements of both the victims, who are consistent and reliable.
11. Further there is a presumption u/s 29 of the Act that the accused has committed this offence, unless contrary is proved. The accused has given Page 20 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar various suggestions in the crossexamination of the prosecution witnesses regarding his false implication like his dispute with his employer on the ground of salary, his eviction by his landlord, his scolding the victims for plucking flowers outside the factory and his act of refusing to give them toffees etc.. He has raised various grounds in the crossexamiantion of different witnesses, but failed to prove any.
12. DW1 is not a reliable witness, since, he only remembers the date of 09.08.2015, when he visited the factory of the accused and does not remember, even the directions of the factory, storeys constructed in the factory and the number of plants existing outside the factory. He appears to be an interested witness and does not help or prove the defence of the accused.
13. The prosecution has been able to prove that the accused enticed the victims to his factory where he was residing on the pretext of offering chowmin and thereby committed offence punishable u/s 363 IPC. The Page 21 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar accused is convicted for this offence.
14. As far as offence u/s 342 IPC is concerned, the ingredients of this offence have not been proved as none of the prosecution witnesses stated that accused prevented the victim from proceeding beyond certain limits. The witnesses did not say anything in this regard and prosecution has failed to prove the commission of offence u/s 342 IPC.
15. As far as the offence punishable u/s 6 r/w Section 5 (m) of POCSO Act is concerned, admittedly, prosecution has proved that both the victims were below 12 years of age. It has also been proved beyond reasonable doubt that the accused put his penis into the mouth of victim RA and also put his penis in the hand of victim RO. The prosecution has proved that offence of aggravated penetrative sexual assault as per definition u/s 3 (a) of Penetrative Sexual Assault making it punishable u/s 6 of POCSO Act because of age of both the victims, which is below 12 years. The prosecution, as such, has proved that the accused has committed Page 22 of 23 FIR No. 430/2015 : State V/s Santu Prakash @ Santosh : PS Bharat Nagar punishable u/s 6 of POCSO Act.
16. Now coming to the offence punishable u/s 12 of 11 (vi) of the POCSO Act, the prosecution has failed to prove that the accsued gave any gratification to the victim for pornographic purposes as defined u/s 11 (vi) of the POCSO Act. As per prosecution case, the accused gave Rs. 10 to the victims to purchase tobacco for the accused and toffees for the victim and this act does not fall in the definition of sexual harassment u/s 11 of the POCSO Act. The accused as such, is acquitted for the offence punishable u/s 12 of the POCSO Act.
17. Let the convict be heard on the point of sentence.
(Announced in the open ) (Amit Kumar)
(Court on 20.04.2018) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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