Delhi District Court
State vs Ajay Kumar -:: Page 10 Of 10 ::- on 19 March, 2018
-:: 10 ::-
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 56642/2016.
Old Sessions Case Number : 104/2013.
State
versus
Mr.Ajay Kumar
Son of late Mr.Mohar Singh,
Resident of D-150 Laxmi Park,
Nangloi, Delhi.
First Information Report Number : 13/2013.
Police Station Nihal Vihar
Under sections 354 and 509 of the Indian Penal Code
and 11, 12 of the Protection of Children from Sexual Offences Act, 2012.
Date of filing of the charge sheet : 18.04.2013
Arguments concluded on : 12.03.2018.
Date of judgment : 19.03.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Accused on bail with counsel, Mr. Divakar Sharma.
**********************************************************
Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar,
Under sections 354 and 506 of the Indian Penal Code
& 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
JUDGMENT
1. Mr. Ajay Kumar, the accused, has been charge sheeted by Police Station Nihal Vihar for the offences under sections 354 and 506 of the Indian Penal Code (hereinafter referred to as the IPC) and under sections 11 and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Ajay Kumar has been prosecuted on the allegations that on 13.01.2013 at about 09:30 pm, in front of the house of the prosecutrix (address mentioned in file and withheld to protect the identity of the prosecutrix), he had pulled the hair of the prosecutrix (who is a minor girl aged about 17 years) with sexual intent.
3. The name, age and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Predecessor on 18.04.2013.
CHARGE
5. After hearing arguments, charge for offences under section 12 of the POCSO Act was framed against accused Mr.Ajay Kumar vide order Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
dated 02.08.2013 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as 07 witness i.e. SI Jai Parkash, the Duty Officer of the present case, who had lodged the FIR of the present case, as PW1; the prosecutrix, Ms.X, as PW2; ASI Anil Dut, the first Investigation Officer, as PW3; Ct. Diwan, the witness of investigation, as PW4; Ct.Manjeet, the DD writer, as PW5; Ct. Bahadur, witness of arrest of accused, as PW6; and ASI Rekha the second investigation officer of the present case, as PW7.
7. The accused and his counsel have preferred not to cross examine PWs 1 and 5 due to which their testimonies remain uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
8. In his statement under section 313 of the Cr.P.C., recorded on 07.11.2017, the accused has controverted and rebutted the entire evidence against him submitting that he has been falsely implicated in the present case. There was a quarrel between the parents of the prosecutrix and his family as the paternal uncle (Chacha) of the Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
prosecutrix was constructing a house and the dispute has arisen over construction of a wall. Her Chacha wanted that his family should let him do as per his wishes and for this reason, the present case was made projecting the prosecutrix as a victim. He has further submitted that he is innocent and he has not committed any offence.
ARGUMENTS
9. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
10.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under section 12 of the POCSO Act submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
11.The counsel for the accused has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is a delay in lodging of the FIR which remains unexplained. There are several contradictions in the different statements of the prosecutrix. There was no sexual intent in the commission of the alleged offence.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
12.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
13.Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS.
14.The prosecution case unveils with the information being made on 13.01.2013 at about 09:40 pm on wireless, recorded by Ct. Manjeet (PW5), vide DD No. 51 A (Ex.PW5/A) regarding 'Chhed-Chhad' with a girl. the prosecutrix (PW2) informed her Chachi (wife of paternal Uncle/Chacha) about the incident. Her Chacha informed on 100 number. Police came and recorded her statement (Ex.PW2/A). The prosecutrix (PW2) handed over the photocopy of her mark sheet of class X examination (Ex.PW2/B) to the Investigation Officer which was seized vide seizure memo (Ex.PW2/C). SI Jai Parkash (PW1), Duty Officer registered FIR No.13/13 (Ex.PW1/A) and also made endorsement on rukka (Ex.PW1/C). SI Jai Parkash (PW1) also issued certificate under section 65 B of the Evidence Act (Ex.PW1/B). IO/ASI Rekha (PW7) had received a telephone call from duty officer at Police station Nihal Vihar and she was instructed to reach at the spot as a call was received regarding molestation of a Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
girl. IO/ASI Rekha (PW7) prepared the site plan (Ex.PW7/A) at the instance of the prosecutrix. IO/ASI Rekha (PW7) reached at the spot and met with ASI Anil Dutt (PW3). Prosecutrix (Ms.X) was also present at the spot and in the meantime Ct. Diwan (PW4) reached at the spot with copy of FIR and original rukka as Tehrir had already been sent by ASI Anil Dutt. The prosecutrix (PW3) had levelled the allegations of molestation against the accused. Search for the accused was made but he could not be found at that time. Then, IO/ASI Rekha (PW7) along with ASI Anil Dutt (PW3) and Ct. Diwan (PW4) returned to the PS. On the next day, IO/ASI Rekha (PW7) along with Ct. Bahadur (PW6) went to the house of the accused situated in Nangloi and near the house of the prosecutrix (PW3). The accused was found present outside his house. Accused was identified by the prosecutrix. Accused was arrested vide arrest memo (Ex.PW6/A) and his personal search was taken vide personal search memo (Ex.PW6/B). Medical examination of accused was conducted in SGM hospital vide MLCs 1125 and 828. Accused was produced in the Court on next day and remanded to JC. IO/ASI Rekha Rani (PW7) recorded the statements of PWs-ASI Anil Dutt (PW3), Ct. Diwan (PW4) and Ct. Bahadur (PW6) and other prosecution witnesses and after completing the investigation, the charge sheet was filed.
15.It can be seen from the evidence of the prosecutrix that on the date of the offence i.e. 13.01.2013, she was aged less than 18 years as her Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
date of birth is 01.06.1996. She has deposed that "On 13.01.2013 at about 09.30 am, I was standing at the back side door of my house. Accused Ajay present in the Court today (correctly identified) who lives in the back side of our house has pulled my hair (CHUTIA KHINCH LI). He went ahead. He was carrying a mobile phone with him. He was trying to give his mobile to me. I threw the same on the road." In her cross examination on behalf of the accused, she has deposed that "I along with my Chachi was standing near the gate of my house..... My chachi called the accused after he has pulled my hair and then the accused tried to hand over the mobile to me which I threw. It was the first attempt of the accused of pulling my hair and prior to it, he has not done any such act with me. At that time, accused was on foot. I do not know why the accused has pulled my hair. Accused immediately left me after pulling my hair and has not touched any body."
16.Although the prosecutrix (PW2) has deposed that "I had not stated to the police that the accused had tried to hand over the mobile to me." but the same is not relevant as the accused has been charged for the offence under section 12 of the POCSO Act for having pulled the hair of the prosecutrix with sexual intent.
17.It is clear on perusal of the evidence of the prosecutrix (PW2) that the accused had come near her and had pulled her hair (chutia khinch li). He was trying to give his mobile to her. The facts that the accused Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
was trying to give his mobile to the prosecutrix and had pulled her hair indicate the sexual intent involved in the commission of the offence. In the cross-examination of the prosecutrix nothing material for the accused has come forth as it is clear that when the offence committed, the prosecutrix was with her paternal aunt/Chachi and they were standing near the gate of their house when the accused had come there and had pulled the hair of the prosecutrix and tried to handover his mobile to her, which she had thrown. The criminal role of the accused has been clearly elaborated by the prosecutrix (PW2) in her deposition before the Court and nothing has been shown by the accused in her lengthy cross examination which could indicate that he has not committed any offence.
18.As regards the age of the prosecutrix being less than 18 years at the time of commission of the offence, the record shows that the accused has not disputed the age of the prosecutrix. He has not controverted the school certificate of the prosecutrix (Ex.PW2/B) which was seized by Investigation Officer ASI Rekha (PW7) vide seizure memo (Ex.PW2/C). therefore, it is clear that the prosecutrix was less than 18 years at the time of commission of the offence.
19.The evidence of other prosecution witnesses proves the registration of DD No. 51A (Ex.PW5/A), the registration of the FIR (Ex.PW1/A), arrest of the accused and the investigation conducted by the two Investigation Officers ASI Anil Dutt and ASI Rekha (PWs Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
3 and 7 respectively) along with Ct.Diwan and Ct.Bahadur (PWs 4 and 6 respectively).
20.It is clear from the evidence of the prosecution especially the evidence of the prosecutrix (PW2) that the accused, with sexual intent, pulled her hair and tried to give his mobile to her and has caused her sexual harassment.
21.Accordingly, in view of the consistent and corroborative evidence led by the prosecution especially Ms.X, the prosecutrix (PW2) as well as the witnesses of investigation, the conscience of this Court is satisfied that the accused has committed the offence punishable under section 12 of the POCSO Act. It is clear that on 13.01.2013 at about 09:30 pm, in front of the house of the prosecutrix, the accused had pulled the hair of the prosecutrix (who is a minor girl aged about 17 years) with sexual intent.
22.In view of the evidence led by the prosecution and as the prosecution has been able to successfully bring home the charge against the accused Mr.Ajay Kumar as well as the fact that the accused has not been able to rebut the presumption of guilt, accused Mr.Ajay Kumar is hereby convicted for having committed the offence under section 12 of the POCSO Act. Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-
-:: 10 ::-
23.Let the convict be heard on the point of sentence.
Digitally signed by NIVEDITA ANIL SHARMANIVEDITA ANIL SHARMA Date: 2018.04.05 15:52:54 +0530 Announced in the open Court on (NIVEDITA ANIL SHARMA) this 19th day of March , 2018. Additional Sessions Judge-01, West, Special Court Under The POCSO Act, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 104 of 2013..
FIR No.13/2013, Police Station Nihal Vihar, Under sections 354 and 506 of the Indian Penal Code & 11 and 12 Protection of Children from Sexual Offences.
State versus Ajay Kumar -:: Page 10 of 10 ::-