Delhi District Court
State vs . Ashok Kumar on 26 September, 2013
State Vs. Ashok Kumar
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 112/13
ID No. : 02401R0262482013
FIR No. 131/13
Police Station : DBG Road
Under Section : 354D IPC
r/w Section 12 POCSO Act.
State
Versus
Ashok Kumar
S/o Jag Dev Mehra
R/o Village Sanpatha,
Post-Thadi (Sidap)
PS Nadania,
Distt. Madhubani, Bihar.
.........Accused
Date of Institution : 24.05.2013
Date of judgment reserved : 12.09.2013
Date of judgment : 24.09.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Pankaj Sharma, Advocate, Amicus Curiae for the
accused.
SC No. 112/13 Page 1 of 12
State Vs. Ashok Kumar
J U D G M E N T:-
1. Briefly stated facts of prosecution case are that on April 23. 2013, complainant aged about 12 years (since she is the victim of sexual assault, her identity is withheld and hereinafter she is referred to as victim/complainant) had got recorded her statement (Ex.PW2/A) to ASI Pushpa alleging that she studied in 7th standard in Government Girls Senior Secondary School and she used to go to school along with her friend (PW3) and sometimes they used to take rickshaw to go to school. It was alleged that one day they hired a rickshaw of accused for their school and since then the said rickshaw puller i.e. accused used to follow them and asked them to sit in their rickshaw and stated that he would leave them at the school. It was alleged that the accused used to see them with bad intention and he was following them for the last 4-5 days. Accordingly, complainant asked her friend PW3 that they should make complaint to her mother. It was alleged that on April 23, 2013, victim and her friend left from their house to their school and when they reached near Shani Mandir, accused met them there. When they hired another rickshaw for their school, accused followed them in his rickshaw and started abusing the complainant in filthy language and also stated that he would give them chocolate. It was alleged that accused had blocked their passage by putting his rickshaw in front of their rickshaw. When their rickshaw puller scolded him, accused went away. It was alleged that when they were coming back from the school in a cycle rickshaw, accused again followed them till Shani Mandir and threatened the complainant. Accordingly, complainant narrated the incident to her parents. Thereafter, her parents apprehended the rickshaw puller near Braham Kumari Ashram where he was sleeping in his rickshaw. It was alleged that at that time accused was under the influence of liquor. Police was called. Public persons had beaten the accused. On the SC No. 112/13 Page 2 of 12 State Vs. Ashok Kumar statement of victim, an FIR for the offence punishable under Section 354D IPC read with Section 12 of Protection of Children from Sexual Offences Act was registered.
2. During investigation, documents relating to the date of birth of victim were collected. As per school record, her date of birth is May, 02, 2000. Her statement under Section 164 Cr. P.C. was also recorded.
3. After completing investigation, challan was filed against the accused Ashok Kumar for the offence punishable under Section 354D IPC read with Section 12 of Protection of Children From Sexual Offences Act.
4. After complying with the provisions of Section 207 Cr. P.C., a charge for the offence punishable under Section 354D IPC read with Section 12 of Protection of Children From Sexual Offences, Act was framed against the accused to which accused pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 6 witnesses:-
PW1 Mr. 'X', father of victim ( in order to withhold the identity of victim, the identity of PW1 is also withheld) PW2 Victim PW3 Ms. 'Y', friend of victim ( in order conceal the identity of victim, her identity is also withheld) PW4 SI Rakesh Kumar, first investigating officer PW5 HC Brijpal Singh, duty officer, proved the FIR SC No. 112/13 Page 3 of 12 State Vs. Ashok Kumar PW6 ASI Pushpa, investigating officer
6. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied all the incriminating evidence led by the prosecution. He submitted that when victim and her friend hired his rickshaw, he was under the influence of liquor but he was not plying the rickshaw in a Zig-Zag manner. He denied that he followed the victims and submitted that he used to go to school in afternoon to take passengers. It was submitted that he had never misbehaved with victims at any point of time. But he refused to lead any evidence in his defence.
7. Learned counsel appearing for the accused vehemently contended that no reliance can be placed on the statement of PW2 and PW3 as there are material contradictions between their deposition. It was submitted that accused is a rickshaw puller by professions and on April 23, 2013 PW2 had hired rickshaw for her school and when accused dropped PW2 and PW3 at their school, PW2 asked him to come at the end of school and when accused reached there, victim did not hire his rickshaw rather she hired another rickshaw, consequently, on the said point some hot words were exchanged with the victim. It was submitted that accused had never abused the victim in any manner and this fact is proved from the testimony of PW3, who admitted in her deposition that accused had never abused her. It was submitted that during investigation, investigating officer failed to join any independent witness despite the fact that numerous persons were present. It was argued that accused has been falsely implicated in this case.
8. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that the testimony of PW2 and PW3 are trustworthy SC No. 112/13 Page 4 of 12 State Vs. Ashok Kumar and there is no reason to disbelieve their testimony. It was contended that from the testimony of PW2 and PW3, it is established that accused used to follow them despite the fact that they refused to hire his rickshaw and accused had not only followed them but also abused them in filthy language. It was submitted that the presumption is also in favour of the prosecution, thus there is no reason to disbelieve the testimony of witnesses.
9. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
10. Though prosecution has examined as many as 6 witnesses, yet prosecution case is based on the deposition of PW2 and PW3. The deposition of the rest of the witnesses are not relevant to prove the complicity of accused as the alleged incident had not taken place in their presence. PW2 in her deposition categorically deposed that she along with her friend PW3 used to go to school in a cycle rickshaw and one day they had hired the cycle rickshaw of accused Ashok but on that day he plied the rickshaw under the influence of liquor. She further deposed that since then rickshaw puller started following them while they used to go to school and come back. She further testified that while following them, accused used to laugh after seeing them and also used to say sit in his rickshaw. PW2 categorically deposed that on April 23, 2013, she along with PW3 was going to her school in another cycle rickshaw and when they reached near Shani Mandir, accused was standing there and he stopped his rickshaw in front of their rickshaw and abused PW2 and stated that he would kidnap her, consequently, the rickshaw puller asked the accused to leave the passage, thereafter accused went away. She further deposed that while SC No. 112/13 Page 5 of 12 State Vs. Ashok Kumar she along with PW3 was coming back from her school, accused again chased them up to Shani Mandir. The testimony of PW2 is corroborated by PW3 on all material points.
11. No doubt there are some contradictions between the testimony of PW2 and PW3 as PW2 deposed that accused was plying rickshaw under the influence of liquor whereas PW3 deposed that he was plying rickshaw in a Zig-Zag manner. Similarly, PW2 also made improvements in her deposition by deposing that accused was under the influence of liquor and he stated that he would kidnap PW2 whereas these facts are not mentioned in the her complaint (Ex.PW2/A). But to my mind the said improvements are not substantial in nature, thus the same do not affect the core of prosecution case, hence the said improvements and contradictions are not fatal to the prosecution case in any manner.
12. During her cross-examination PW2 admitted that when accused dropped them at their school she asked the accused to come at 2 PM but deposed that she did not remember whether accused reached the school or not. PW3 also deposed that accused had abused them as they did not hire his rickshaw. She further testified that accused abused them for 2-3 days as they did not hire his rickshaw.
13. Assuming for the sake of arguments that accused reached the school at 2 PM at the asking of PW2 and both the victims did not hire his rickshaw but it does not give any justification to the accused to abuse them or to follow them on subsequent days. From the testimony of PW2 and PW3, it is clear that on April 23, 2013, accused also followed them while going school as well as while returning from the school. It is further clear that accused also abused them. No doubt, PW3 deposed that accused SC No. 112/13 Page 6 of 12 State Vs. Ashok Kumar abused only to PW2 and not to her but accused has no business to abuse PW2 also. PW3 clarified that accused abused "behan ki lodi ko kidnap karunga"
14. From the testimony of PW2 and PW3, it is also clear that on April 23, 2013, they made a complaint to PW1 i.e. father of the victim (PW2) and thereafter, he went in search of accused along with PW2 and apprehended him near Sidhi Pura, Shani Mandir and informed the police. Accordingly, police apprehended him.
15. During trial, age victim is not disputed by counsel for the accused. On August 12, 2013, counsel for accused made a submission before the Court that he will not raise any kind of dispute about the age of both the victims and submitted that there is no need to examine the principal of the school to prove the age of both the victims. In view of his submission, learned Additional Public Prosecutor dropped the witnesses relating to the age of victims. PW2 disclosed her age as 13 years. Similarly, PW3 disclosed her age as 15 years old. Thus, it is clear that the victims were below 18 years old at the time of alleged incident.
16. From the deposition of PW2 and P3, it is established beyond the shadow of all reasonable doubts that when they refused the accused to hire his rickshaw, he started following them while they were going to school and coming back and he also followed them on April 23, 2013 and even prior to that. Since accused followed them despite the fact that both the victims had clearly refused him to hire his rickshaw, accused has committed the offence of stalking as defined under Section 354D IPC as well as under
Section 11 (iv) of Protection of Children from Sexual Offences Act.SC No. 112/13 Page 7 of 12
State Vs. Ashok Kumar
17. Moreover, under Section 30 of Protection of Children from Sexual Offences Act presumption is in favour of prosecution and Section 30 is read as under:
Presumption of culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
(emphasis supplied)
18. To attract the provisions of Section 12 of Protection of Children from Sexual Offences Act sexual intent is required on the part of the offender. But in terms of Section 30 of the Act, presumption is in favour of prosecution. No doubt, the said presumption is rebutable but accused has to rebut the presumption beyond the reasonable doubt. But in the instant case, accused has failed to adduce any evidence in support of his plea that he had no sexual intent while following the victims and abusing in filthy language or that only hot words were exchanged when victim refused to hire his rickshaw despite promise. In the absence of any cogent evidence defence version does not inspire any confidence.
SC No. 112/13 Page 8 of 1219. Similarly, from the testimony of both the witnesses it is also clear that accused had abused PW2 in filthy language, thus accused is also liable for the offence under Section 11 (i) of Protection of Children from Sexual Offences Act, which is punishable under Section 12 of the Act.
20. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused Ashok Kumar for the offence punishable under Section 354D IPC and Section 11 (i) and 12 (iv) of Protection of Children from Sexual Offence Act, which are punishable under Section 12 of the Act, thus, I hereby hold him guilty thereunder.
Announced in the open court On 24th September, 2013. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
SC No. 112/13 Page 9 of 12State Vs. Ashok Kumar IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 112/13 ID No. : 02401R0262482013 FIR No. 131/13 Police Station : DBG Road Under Section : 354D IPC r/w Section 12 POCSO Act.
State Versus Ashok Kumar S/o Jag Dev Mehra R/o Village Sanpatha, Post-Thadi (Sidap) PS Nadania, Distt. Madhubani, Bihar.
.........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Pankaj Sharma, Advocate, Amicus Curiae for the convict.
ORDER ON THE POINT OF SENTENCE:-
1. Vide separate judgment dated September 24, 2013, accused was held guilty for the offence punishable under Section 354D IPC read with Section 12 of POCSO Act.SC No. 112/13 Page 10 of 12
2. Learned counsel appearing for convict requests for a lenient view on the ground that accused is a rickshaw puller by profession and he is the sole bread earner of his family and old parents are also dependent upon him. It is submitted that accused is in custody since April 23, 2013, thus request is made that he be released for the period already undergone.
3. Per contra, learned Additional Public Prosecutor requests for maximum punishment on the ground that he was following the victims and abused them in filthy language.
4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. As already held that accused was found guilty for the offence punishable under Section 354D IPC read with Section 12 of POCSO Act. It is also undisputed fact that convict is a rickshaw puller by profession and he also used to carry passengers including school children to their school. It is also surfaced during trial that PW2 asked the accused to reach school in the afternoon but victims did not hire his rickshaw, thus the possibility that due to the said conduct of victims, convict started following them and abused them cannot be ruled out. No doubt, it was not a justifiable ground for the accused either to follow the victims or abused them, but it is one of the mitigating factors to determine the quantum of sentence. Similarly, there is nothing on record which may show that accused has any criminal antecedent, this is another mitigating factor in favour of the accused. Besides that it is evident that convict belongs to low strata of society.
8. Considering the above and facts and circumstances of the SC No. 112/13 Page 11 of 12 State Vs. Ashok Kumar case, I am of the view that it is not a fit case where maximum punishment should be awarded as requested by the learned Additional Public Prosecutor.
9. In the light of the above discussion, I am of the opinion that convict deserves a lenient view, thus, I hereby sentence the convict Ashok Kumar for a period of six months rigorous imprisonment and a fine of ` 500/- in default for seven days further simple imprisonment for the offence punishable under Section 354D IPC and also sentence him rigorous imprisonment for six months and a fine of ` 200/- in default simple imprisonment for two days for the offence punishable under Section of 12 of POCSO Act. Both sentences shall run concurrently. Benefit of Section 428 Cr. P.C. be given to the convict.
10. Copy of judgment along with the order on the point of the sentence be given to the convict free of cost.
11. File be consigned to record room.
Announced in the open court On 26th September, 2013. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
SC No. 112/13 Page 12 of 12