Delhi District Court
State vs . Ashok Kumar on 21 August, 2014
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 28/13)
Unique ID case No. 02404R0025202013
State Vs. Ashok Kumar
FIR No. : 374/12
U/s : 376 (2) (f) IPC
& 4/5(M)/6 POCSO Act 2012
P.S. : North Rohini
State Vs. Ashok Kumar
S/o Sh. Dinesh Podaar
R/o A68, Village Naharpur,
Sector07, Rohini,
Delhi.
Date of institution of case 18.03.2013
Date on which, judgment has been reserved 07.08.2014
Date of pronouncement of judgment : 07.08.2014
JUDGMENT:
1. Briefly stated the case of the prosecution is that a call of quarrel was received at Police Station North Rohini, pursuant to which, SI Sachin proceeded to Nahar Pur Village along with Ct. Surender. On reaching the spot i.e. A68, Nahar Pur Village, Sector07, Rohini, he met Smt. Rajani Devi, grandmother (dadi) of victim P, S.C. No. 28/13 : State vs. Ashok Kumar : Page 1 of 28 aged about 7 years, and was informed by her that accused Ashok had committed rape upon the minor child P. She gave her complaint Ex. PW3/A, wherein she stated that she was working as maid servant in houses and that she had five grand daughters, all of whom remained at home. She further deposed that on 23.10.2012, at about 2.00 pm, when she returned back from her work, she heard cries of her grand daughter P and that the said cries were coming from the room in front of her tenanted room and that when she peeped inside the room from a window, she saw accused Ashok, who was residing in said room, in naked condition. She further stated that accused had removed all the clothes of her grand daughter P and was lying upon her in a naked condition and was attempting to rape her and that on seeing this, she (Rajni Devi) raised alarm. The accused wore his clothes and ran away from there, after unbolting the door. The mother of victim P returned back at about 8.00 pm, whereupon, Smt. Rajni Devi informed her about the incident and thereafter, the police was called. Complainant prayed that action be taken against the accused.
Pursuant to complaint Ex. PW3/A, present case was registered against the accused. During the course of investigations, IO took the victim child P for her medical examination and also seized the exhibits taken from her by the concerned doctor. On 24.10.2012, accused was arrested in the present case. He too was got medically examined and exhibits collected from him by the concerned doctor were also seized by the IO. On 15.01.2013, IO got recorded the statement of victim P u/s 164 Cr.P.C and thereafter, produced her before concerned CWC, from where, she was handed over in custody of her mother. After completing the investigations, the charge sheet was prepared and was filed in the court.
S.C. No. 28/13 : State vs. Ashok Kumar : Page 2 of 28
2. Upon committal of this case to the court of Sessions, charges for the offence under Sections 376 (2) (f) IPC r/w Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POSCO Act), were framed against the accused Ashok Kumar, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 4 In support of its case, prosecution has examined 15 witnesses. Victim child and other public witnesses
5. The PW4, is the victim child P, who was aged about 7 years, when she appeared to depose before the court. Keeping the tender age of the child in the mind, her statement was recorded in camera proceedings in the chamber annexed to the court room, in presence of support person from DCWA as well as counsel for the accused. The victim was provided colours and white papers to keep her occupied and when, she was comfortable, certain preliminary questions were put to her to ascertain her capability to understand the importance of speaking truth and also her capacity to understand the questions put to her and to answer them reasonably. After being so satisfied with her capacity and capability, her statement was recorded in questionanswer form, without oath, wherein, she deposed as under : Q. Kya hua tha ?
Ans. Sardi me mummy hame kanjak khilane le gayi thi.
Q. Phir kya hua ?
Ans. Phir ghar me chhod kar, mummy kaam par chali gayi.
S.C. No. 28/13 : State vs. Ashok Kumar : Page 3 of 28
Q. Phir kya hua ?
Ans. Mummy TV chalakar chali gayi bola koi bhi aaye gate mat kholna.
Q. Phir kya hua ?
Ans Woh aaya.
Q. Kaun aaya ?
Ans. Ashok.
Q. Ashok kaun hai ?
Ans. Woh waha rehta hai, mera ghar yaha hai, uska iyaha (witness has pointed towards two ends by making gestures of straight line to depict that on one end, she has her room and on the other room of the accused).
Q. Phir kya hua ?
Ans. Ek behein ko gutka dukan lane ke liye bheja.
Q. Phir kya hua ?
Ans. Priyanka aur Taniya mere do chhoti behein dukan par chali gayi. Meri ek chhoti behein mere sath thi.
Q. Aap ki badi behein kaha thi ?
Ans. Woh khana daine gayi thi.
Q. Phir kya hua ?
Ans. Mera hath pakad kar, godi me utha kar, woh kamare me le gaya.
Q. Phir kya hua ?
Ans. Bistar par paad diya (the witness has used term 'paad diya' to express that accused had made her lie down on bed).
S.C. No. 28/13 : State vs. Ashok Kumar : Page 4 of 28
Q. Phir kya hua ?
Ans. Mere chhadi uttar di aur apni bhi chhadi uttar di.
Q. Phir kya hua ?
Ans. Mere deh par chhad gaya. Apni shushu meri shushu me dal di. Mein chilayi, phir niche dadi baat kar rahi thi, meri awaz suni, dadi uppar aayi.
Q. Phir kya hua ?
Ans. Dadi dhakka mar kar gate kholdi aur usse do thapad mare.
Q. Kisko thapad mare ?
Ans. Ashok ko.
Q. Phir kya hua ?
Ans. Mummy sham ko aayi, maine aur dadi ne mummy ko sab bata diya.
Q. Ashok kaha tha ?
Ans. Apne ghar me.
Q. Phir kya hua ?
Ans. Mummy ne phone kara, Nancy aayi.
Q. Nancy kaun hai ?
Ans. Meri Bua ki beti hai.
Q. Phir kya hua ?
Ans. Nancy ne police ko phone kiya.
Q. Phir kya hua ?
Ans. Police aayi.
Q. Phir kya hua ?
Ans. Usko jail me bandh kar diya.
S.C. No. 28/13 : State vs. Ashok Kumar : Page 5 of 28
Q. Phir kya hua ?
Ans. Mujhe doctor ke mummy le gayi.
Q. Aur kaun gaya tha ?
Ans. Meri Bua.
Q. Policewali aunty bhi gayi thi ?
Ans. Woh bahar khadi thi.
Q. Aur kya ?
Ans. Aur kuch nahi.
Q. Aap pehle bhi court me aaye the ?
Ans. Ha.
Q. Phir kya kara tha ?
Ans. Jo hua tha, bataya tha.
Q. Kya aap apna naam likhte ho ?
Ans. Nahi aata hai.
The PW4 was crossexamined by learned defence counsel and in the said crossexamination, she deposed as under : Q. aapko 'shushu' shubd kisne bolna bataya ?
Ans. Kisi ne nahi, mujhe pata hai.
Q. aapko kisi ne bataya ki aaj kya bolna hai ?
Ans. Nahi.
Q. Aapke mummy papa ka aur Ashok ka kabhi jhagada hua
hai ?
Ans. Ha.
Q. Kyu ?
S.C. No. 28/13 : State vs. Ashok Kumar : Page 6 of 28
Ans. Kude ke liye, woh kuda chhitra (throws) deta hai. Bottle
wottle phek deta hai.
Q. Kya jhagade ki wajah se aapko aaj aisa bolne ko kaha hai ?
Ans. Nahi. Mummy papa ne kuch nahi kaha.
Q. Jab dadi ne Ashok ko thapad mare aur aapko le aaye, tab
Ashok kaha tha ?
Ans. Woh kamare me tha, jab woh khana bana raha tha tab police le gayi.
Q. Police kab aayi thi ?
Ans. Ussi din aayi thi.
Q. Aapke sath aaisa kuch nahi hua aur jhagade ki wajah se aap
Ashok ka naam le rahe ho ?
Ans. Nahi.
6. The PW2, Nirmala, is the mother of the victim. She deposed that she was residing at village Nahar Pur, with her family and that her motherinlaw Rajni Devi was also residing with them and that victim P was her second born child. She further deposed that last year (year prior to the year, witness appeared to depose before this court), her children had gone to take Kanjak from houses, (on Kanjak falling before dushara) and that at about 12:00 Noon, she (PW2) settled down all her children including the prosecutrix in the house to watch T.V., and left for work after instructing her children, not to open the door for anyone and to stay in the room. She also deposed that at that time, her husband had gone to village for some work, while her motherinlaw was at home as it was a holiday for her. The PW2, then deposed that on her return, at 7:00 PM, victim told her that accused Ashok, S.C. No. 28/13 : State vs. Ashok Kumar : Page 7 of 28 who was residing in room in front of their room, had knocked at the door and told her younger sister (third daughter of PW2) to bring Gutka for him and that when her third daughter had gone to buy Gutka, accused took prosecutrix to his room and removed her underwear and tried to put his 'Shushu' in her 'Shushu' and that he was not able to do so. She then stated that her daughter further told her that on hearing her cries/noise, her dadi (motherinlaw of PW2) went and opened the door of room of accused and gave him 3 - 4 slaps. The PW2 further stated that on her return, her motherinlaw told her to do as she wished and that thereafter, she (PW2) made a call at 100 number. The PW2 further deposed about the arrival of the police, medical examination of her daughter at Ambedkar Hospital and about apprehension of the accused in morning at about 7:00 AM. She identified the black coloured long underwear of her daughter, which her daughter was wearing at the time of incident, as Ex. P1.
During crossexamination, the PW2 stated that she made a call to police at about 9:00 PM and that at the time of her return from her place of work at about 7.00 pm, accused Ashok Kumar was at home and that the accused was arrested in her presence on the same day at 9:00 PM on her pointing out. She further clarified that on the day of incident, her daughter was not wearing an underwear, but was wearing a small paijami. The PW2 denied that accused had been falsely implicated in the case due to petty quarrel over throwing of garbage.
7. The PW3, Rajni Devi, is the grand mother of the victim child P as well as the an eyewitness/complainant in the present case. She deposed that on the day of Kanjak [the witness clarified that on next day Ravan was to be burnt (Dussehra) ] of last year, she had not gone for work and was sitting downstairs and that her son S.C. No. 28/13 : State vs. Ashok Kumar : Page 8 of 28 had gone to village as her husband was ill and that her daughterinlaw/PW2 had gone for work and that all the children were watching T.V. in the room after 12:00 Noon. She further deposed that at that time, accused was staying in a room in front of the room, in which she was residing with her son and daughterinlaw. She further deposed that accused took her grand daughter i.e. prosecutrix, aged about 7 years, in his room and that there he (accused) took off her underwear (chaddi) and also removed his underwear and thereafter, the accused lay down on her. She further deposed that at that time, the prosecutrix was crying and on hearing her cries, she went to peep from a window inside the room of the accused and saw that the accused was lying on the prosecutrix and was trying to do something and that she gave gave two slaps to the accused.
In reply to a court question, "What was the accused trying to do with the prosecutrix", the PW3 deposed that "Wo apni chaddi khol rakha tha aur use andar dalne ki kaushish kar raha tha. Mere chanta marne ke bad Ashok ne kapre pehan liye. Usko mane andar hi band kar diya. Rat ko jab meri bahu vapas aai to mane use sab baat bata diya."
The PW3 further deposed about giving of a call at 100 number by her daughterinlaw/PW2 and about the arrival of the police and medical examination of the victim child and about recording of her statement (statement of PW3) at police chowki. She further identified her thumb impression on the complaint Ex. PW3/A. The PW3 further deposed about preparation of the site plan by the police at her pointing out and about arrest and personal search of the accused and proved the arrest memo of accused as Ex. PW3/B. During crossexamination, the PW3 deposed that on the day of the incident, she had not gone for her work. She further stated that she had not S.C. No. 28/13 : State vs. Ashok Kumar : Page 9 of 28 stated to the police in her complaint Ex. PW3/A, that she had gone for work on the day of the incident or that she had returned back at about 2 PM. The witness was confronted from her complaint, where was so recorded. The witness volunteered to state that she was sitting downstairs and had come upstairs to her room at about 2 PM. She further stated that there were other tenants also in the building and on the floor, on which she was having her room, but none was present at the time of the incident as they had all gone for work. She further stated that at the time of incident, children of other tenants were not present as they had gone for Kanjaka to different kothis and that she was not watching TV. She further stated that victim child/prosecutrix was not taken by the accused in her presence, however, she volunteered to state that she went there on hearing cries of the victim.
The PW3 further deposed that since police did not ask from her as to what the accused was actually doing with the prosecutrix, so she did not explain to the police about the facts which were explained by her in the court during her examinationinchief.
8. The PW7, Sh. Surjeet, is the landlord of the house, where the prosecutrix and her family and the accused were residing as tenants and he deposed that he used to let out the rooms in H. No. A68 to various tenants. He further deposed that accused Ashok Kumar as well as Ramesh Paswanfather of the victim were his tenants. He further deposed that during autumn break before the Dushera festival, grandmother/PW3 of prosecutrix came to him in the evening time and told him that accused Ashok had committed rape upon her grand daughter i.e. prosecutrix by taking off her clothes as well his clothes and that on hearing this, he went to the room of accused, but he was not present there at that time. S.C. No. 28/13 : State vs. Ashok Kumar : Page 10 of 28
During crossexamination, the PW7 deposed that the house no. A68 was constructed upto three storey and that there were nine rooms in the said house at the time of incident i.e. three rooms on ground floor, four rooms on first floor and two rooms on second floor. He further stated that almost all the tenants were having their families and that family members of the tenants used to remain in their respective rooms during day time. He further stated that since it was Dushera season, he could not state, if the family members of other tenants were there in their rooms or not at the time of incident. The witness termed it correct that two muslim families were residing in the two rooms on top floor, as on the day of incident, and further stated that he was not sure, if the said two muslim families were also present in their respective rooms at the time of incident. He further stated that he had gone to his shop in the morning on that particular day and remained at his shop till evening. He further stated that he was told by the grandmother of the prosecutrix that she saw the accused and her grand daughter in naked condition. He further stated that sometimes, quarrel used to take place between the tenants on the issue of throwing garbage and water. The witness denied that few days prior to the incident a quarrel had taken place between the accused and Smt. Rajni Devi and Nirmala on the issue of throwing of garbage in front of their room. Doctor witnesses :
9. The PW8, Dr. Brijesh Patel, had conducted general examination of the accused on 24.10.2012, vide MLC Ex. PW8/A and thereafter, referred him to S.R Surgery and Forenstic Medicine for further management and deposed regarding the S.C. No. 28/13 : State vs. Ashok Kumar : Page 11 of 28 same. He also proved the MLC of the prosecutrix as Ex. PW8/B by identifying the handwriting and signatures of Dr. Deepti Bhalla, the then J.R, who had examined the patient/victim child and further referred her to SR Gynae.
10. The PW9, Dr. Neeti Chaturvedi, proved the MLC of the prosecutrix as Ex. PW9/A, by identifying the handwriting and signatures of Dr. Akansha, SR Gynae, who had examined the patient/victim child. She further submitted that as per the MLC, no sign of external injuries were found on the body and that hymen of the patient was found intact.
During crossexamination, the PW9 stated that If a person of 35 years committed forceful rape upon a 7 years old girl child, the injuries like redness, tenderness, inflammation, bruises and cuts etc can occur on the genitals of the victim. She further stated that as per the MLC the concerned/examining doctor had observed at point X and encircled and that " ?? sexual molestation by somebody" . She further stated that as hymen of the victim was intact, no per vaginal examination could be done. She further stated that the exact diagnosis about the nature of the act could be given only after perusal of FSL result and that apparently from the MLC, penetrative sexual assault was not made out, but molestation could be of different types and that exact diagnosis could be given only after examining the FSL result.
11. The PW10, Dr. Prashant Saxena, proved the observations given by Dr. Rahul Gautam on MLC Ex. PW8/A of accused, by identifying the handwriting and signatures of Dr. Rahul Gautam, thereupon.
S.C. No. 28/13 : State vs. Ashok Kumar : Page 12 of 28 Formal witnesses :
12. The PW1, HC Satya Narayan, was posted as the duty officer at PS North Rohini at the relevant time and registered the case FIR in the present case. He proved the computerized copy of FIR as Ex.PW1/A and endorsement made by him on rukka as Ex. PW1/B.
13. The PW5, Ct. Pape Gowda, had taken the exhibits of the present case to FSL, Rohini, vide RC no. 65/21/12 and deposited the same there and deposed regarding the same.
14. The PW6, Ms. Sarita, Welfare Officer, S.J.P.U, had counseled the victim child and her mother and deposed about the same. She proved her detailed report of counselling as Ex.PW6/A.
15. The PW11, HC Rajiv, was posted as MHCM at P.S. North Rohini, at the relevant time. He produced Register No.19 and 21 and proved the relevant entries made by him at the time of deposit of exhibits at Malkhana and sending them to FSL as Ex. PW11/A to Ex.PW11/D, respectively.
16. The PW6, Sh. Manish Khurana, learned MM, Rohini Courts, Delhi, had recorded the statement of victim child/prosecutrix u/s.164 Cr.P.C. He proved the said statement as Ex.PW12/B. The applications filed by the IO for recording of statement u/s.164 Cr.P.C and supply of copy of said statement, filed by IO, were proved as Ex. PW12/A and Ex. PW12/D respectively, while the certificate given by PW12 was proved as Ex.PW12/C. S.C. No. 28/13 : State vs. Ashok Kumar : Page 13 of 28 IO and other police officer :
17. The PW14, SI Sachin, is the investigating officer of the case and he deposed that on 23.10.2012, on receipt of DD No.42A, Ex.PW14/A, regarding a quarrel at Saini Choppal, near Gobbarwali Gali, Naharpur, Sector7, Rohini, he along with Ct. Surender reached the spot i.e. A68, Naharpur Village, Sector7, Rohini, where PW3 Smt. Rajni Devi and her granddaughter i.e. victim child P met him and that after coming to know that the matter pertained to sexual assault on a female child, he called PW13 W/HC Pushpa from PS and when PW13 W/HC Pushpa reached at the spot, he made inquiries from Smt. Rajni Devi and recorded her statement Ex.PW3/A in presence of PW13 and that the mother of the victim child also reached there, from her work, during the said inquiry. He further deposed about getting the medical examination of the victim child conducted from the BSA Hospital, through PW13 Ct. Pushpa, vide vide MLCs Ex.PW8/B (prepared in casualty) and Ex.PW9/A (prepared by SR Gynecologist). He then stated that after examination of the victim child, PW13 W/HC Pushpa handed over pullandas containing the samples and clothes of the victim child to him, which he took into possession vide seizure memo Ex.PW13/A. He further stated about getting the case FIR registered, on the statement of PW3, through Ct. Surender and about preparation of the site plan Ex. PW14/B, at the instance of Smt. Rajni Devi. He further stated that thereafter, efforts were made to search accused Ashok Kumar, who had fled away from the spot after the incident.
The PW14 further deposed that on the night of 23/24.10.2012 at about 5/5.30 a.m., PW3 Rajni Devi came in the PS and informed him (PW14) that the accused was in his room and was sleeping and that thereafter, he immediately went there with Ct. Surender and apprehended the accused from his room, situated S.C. No. 28/13 : State vs. Ashok Kumar : Page 14 of 28 in H.No.A68, Naharpur Village, Sec7, Rohini, Delhi. The witness further deposed about arrest and personal search of the accused and the disclosure statement made by him and proved his arrest memo as Ex. PW3/B, personal search memo as Ex. PW14/C and disclosure statement as Ex. PW14/D. He further deposed about medical examination of the accused vide MLC Ex.PW8/A and about seizure of exhibits, taken from the accused, vide memo Ex.PW14/E. He further deposed about the deposit of exhibits in the Mal Khana and about sending the exhibits to FSL through Ct. Pape Gowda.
During crossexamination, the PW14 stated that when he reached the spot, he met prosecutrix and her mother, but he corrected himself by saying that he also met grandmother of the prosecutrix and two/three other persons. He further deposed that the building, in which the incident took place was a two storied building i.e. it was having ground floor, first floor and the second floor. He further stated that there were other tenants in the building, but some of the rooms were found locked, while two tenants were amongst the 2/3 persons, who had collected at the spot. The witness showed his lack of knowledge, if there were two Muslim families residing on the top of the floor of the building and if the said families were present in their respective rooms at the time of the incident. He stated that he had recorded the statements of witnesses as narrated to him and did not write the said statements of his own. He termed it correct that Rajni Devi told him that on the day of incident also she had gone for her work as maid servant and that Rajni Devi had told him that accused had fled away from the place of occurrence after the incident. He further stated that he mentioned the date of preparation of the documents/ memos as and when the same were prepared. The Ex.PW14/C and Ex.PW13/A i.e. the personal search memo of the accused and seizure memo of exhibits of the S.C. No. 28/13 : State vs. Ashok Kumar : Page 15 of 28 victim child, were put to the witness and after seeing the same, the witness termed it correct that these memos did not find mention of the date on which they were prepared. He further stated that Rajni Devi and Ct. Surender had signed arrest memo of accused on the same date and day. He denied that he had arrested accused on 23.10.2012.
18. The PW3 HC Pushpa had joined the investigations of the present with with PW14 SI Sachin and deposed regarding the same.
19. The PW15, W/SI Rekha, is the subsequent investigating officer in the present case and deposed that on entrustment of the investigation of the present case on 15.01.2013, she perused the case file and found that the statement of the victim child had not been recorded and that thereafter went to the house of victim child at A68, Village Naharpur, Sector7, Rohini, Delhi and made inquiries from the victim child and recorded her statement u/s.161 Cr.P.C on 15.01.2013. She further deposed about getting the statement Ex. PW12/B of the victim child recorded u/s 164 Cr.P.C vide her application Ex.PW12/A. She then deposed about taking the victim child and her mother to CWC at Asha Kiran, Avantika, for counseling vide her application Ex.PW15/A. The PW15 further deposed about getting the bone age test of victim child conducted at Dr. B.S.A Hospital, vide order Ex. PW15/B of CWC and placing the report of the same Ex.PW15/D, on record, vide her application Ex.PW15/C. She further deposed that 16.01.2013, she produced the victim child before Ms. Sarita, Welfare Officer, SJPU (Outer District) for counseling and collected her report Ex.PW6/A. She lastly deposed about collecting the FSL result Ex.PX and placing it on record.
S.C. No. 28/13 : State vs. Ashok Kumar : Page 16 of 28
During her crossexamination, PW15 denied that victim P had given statement on tutoring by her mother and grandmother.
20. After closing of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the allegations of the prosecution and stated that he was innocent and that a quarrel had taken place between him and that parents of victim, on the issue of throwing of the garbage and that due to this reason, he was falsely implicated in this case by the grand mother as well as mother of the prosecutrix and that he had nothing to do with the present offence. The accused declined to lead evidence in his defence.
21. Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State.
22. Learned Additional PP has contended that in the present case, in view of the statement of the PW2 Smt. Nirmala Devi, PW3 Smt. Rajni Devi and PW4 victim child P, prosecution has proved its case beyond reasonable doubt against the accused and has accordingly prayed that accused be convicted for the charged offence.
23. Learned counsel for the accused on the other hand has contended that prosecution has miserably failed to prove its case against the accused and that accused is innocent and has been falsely implicated in the present case by the parents of the prosecutrix. He further stated that no such alleged offence was ever S.C. No. 28/13 : State vs. Ashok Kumar : Page 17 of 28 committed by the accused and that the entire prosecution case is based on tutored statement of the prosecutrix and false and incorrect statement of her family members. He further submitted that there are material contradictions in the testimonies of the prosecution witnesses, which makes the entire story of the prosecutrix highly improbable and unbelievable and that even the MLC of the prosecutrix does not support the case of the prosecutrix and if at only a case of outraging the modesty of victim is made out against the accused. It is also contended that provisions of POCSO Act are not applicable in the present case. It is thus prayed that the accused be acquitted of the charged offence.
24. I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for accused Ashok Kumar and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
25. In the present case, accused is alleged to have committed rape upon the prosecutrix P, a minor girl aged about 7 years. As far as the age of the prosecutrix/victim child is concerned, the same is not disputed. Even otherwise, the prosecution has filed report of medical board Ex. PW15/D dated 16.01.2013 on record, wherein, the age of the victim has been opined to be more than 9, but less than 11 years. No manipulation, addition or alteration could be pointed out in the said report and thus the prosecution has succeeded in proving that victim P was aged about 7 years at the time of commission of offence.
26. The next issue which arises for consideration is whether accused Ashok S.C. No. 28/13 : State vs. Ashok Kumar : Page 18 of 28 Kumar had committed rape upon the victim child P as has been alleged by the prosecution. The incident in the present case is stated to have taken place at about 2.00 pm on 23.10.2012. The matter was reported to the police at about 8.24 PM, on the same day, as is reflected from Ex. PW14/A i.e. DD no. 42A, and the case FIR was registered at 11.40 pm on 23.10.2012. It appears from the record that investigations of the case were initially marked to PW14 SI Sachin and were handed over to a lady officer namely PW15 W/SI Rekha, only on 15.01.2013 and thereafter, PW15 W/SI Rekha recorded the statement of victim P u/s 161 Cr.P.C., in questionanswer form, wherein in the relevant portion of her statement, victim stated as under : Q.1. Apka kaya naam hai ?
Ans. Mera naam P hai.
Q.2. Apke matapita ka kaya naam hai ?
Ans. Meri maa ka naam Nirmla Devi hai, aur mere papa ka naam Ramesh hai.
Q.3. Aap konsi class me padhte ho ?
Ans. Main school nahi jaati.
Q.4. Tumahre papa kaya kaam karte hai ?
Ans. Rickshaw chalate hai.
Q. 5. Kaya tumhari maa bhi kaam karti hai ?
Ans. Haan, kothiyo me kaam karti hai.
Q.6. Aap kitne bhaibehan ho ?
Ans. Hum panch behne hai, bhai nahi hai.
Q.7. Apke saath 221/2 mahine pahle kaya hua tha ?
Ans. Main apne ghar par akeli thi. Mere pados me rehne wala S.C. No. 28/13 : State vs. Ashok Kumar : Page 19 of 28 ladka Ashok mujhe uthakar apne kamre par le gaya tha. Wahan usne kamra band kar liya tha, va light bhi band kar di thi, phir usne apne va mere kapde utare, aur apne susu mere susu me dal diya. Mujhe dard hone laga, to main chilane lagi. Phir dadi aa gai, aur dadi ne dhaka mar kar darwaja khol diya. Meri dadi ne Ashok ko thappad mara, aur mujhe apne saath le gai.
Q.8. Uske baad kaya hua ?
Ans. Raat ko jab meri mummy ghar aai, to meri dadi ne Mummy ko saari baat batai, to meri mummy ne police ko phone kiya.."
27. The victim was produced for her statement u/s 164 Cr.P.C, before the ld. M.M, on the same day, pursuant to which, her statement Ex. PW12/B was recorded, wherein, she deposed as under : "Mukhe tarikh yaad nahi hai, par teenchar mahine pehle, main dukan se gajak lekar use khakar apne ghar par aai thi. Phir mujhe uthakar mere pados me rehne wala ladka jiska naam Ashok hai, le gaya. Vo mujhe uthakar apne kamre par le gaya. Phir usne andar se kamra band kar diya, aur phir light bhi band kar di. Phir usne mere kapde utare aur apne kapde utare, aur apne susu mere su su me dal diya. Usne mere saath galat kaam kiya. Phir meri dadi wahan aa gai, aur dhaka maar kar darwaja khol diya. Phir dadi ne Ashok ko thapad mara, aur mujhe wahan se nikal kar apne saath ghar le gai. Kamre ke makan malik ne bhi Ashok ko chamata mara, wo bhi wahan aa gaya tha. Jab wo mere saath galat kaam kar raha tha, to uska pani bhi nikla tha, aur main chilla rahi thi. S.C. No. 28/13 : State vs. Ashok Kumar : Page 20 of 28 Dadi ne meri chillane ki awaj bhi suni thi. Uske baad dadi ne police ko phone kar diya. Phir police Ashok ko pakadkar le gai."
28. The victim appeared to depose before this court on 16.07.2013 and was examined as PW4. The relevant portion of the testimony of victim P has already been reproduced at length hereinabove.
29. From the statement of victim P u/s 161 Cr.P.C dated 15.01.2013, her statement u/s 164 Cr.P.C dated 15.01.2013 i.e. Ex. PW12/B and her testimony before this court as PW4, it is seen that victim has been consistent in her said statements that on the day of the incident, victim P was alone at her house with her younger siblings and that on that day, accused, who was their neighbour, residing in a room opposite to the room, where victim and her family were residing, came to the room of the victim and sent away the younger sisters of the victim P on pretext of buying Gutkha, while he himself carried the victim P in his lap to his room, where he pushed her on the bed "bistar par paad diya" and removed her underwear and that accused further removed his own underwear and climbed over the victim and tried to put his susu into her susu.
30. Through, the victim P was crossexamined at length by the learned defence counsel, but she withstood the test of crossexamination. No manipulation or tutoring could be brought out from the detailed crossexamination of the victim P by the learned Amicus Curie. Though, it was suggested that accused had been falsely implicated over a petty issue of throwing of garbage etc., no specific instance of an aggravated quarrel on this issue, was put to the witnesses for the court to draw a S.C. No. 28/13 : State vs. Ashok Kumar : Page 21 of 28 conclusion that it may have led to false implication of the accused by the family of the victim and for the victim to depose against the accused, in the manner she did, before the court. In this regard, I am supported by the judgment passed by Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, wherein it was held that that : "There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."
30. In the present case, not only does the testimony of victim child/PW4 inspire confidence, but even other her testimony is duly corroborated by that of PW3 Smt. Rajni Devi, grand mother of victim child, whose timely arrival at the spot, prevented S.C. No. 28/13 : State vs. Ashok Kumar : Page 22 of 28 the victim child from being subjected to further harm. I find no reason as to why a child of such tender age as the prosecutrix would implicate an innocent person for an offence which was undisputedly committed with her. No plausible justification has come forth from accused, why such a vulnerable child would nurture enmity or grudge or ill will against him. Rather, in the present case, the victim child has explained how accused took her to him room, removed her clothes as well as his clothes and attempted to commit rape upon her. The testimony of prosecutrix clearly bring out the traumatic experience she suffered at the hands of the accused. Even otherwise in the case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get 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 the prosecutrix inspires confidence. It must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases S.C. No. 28/13 : State vs. Ashok Kumar : Page 23 of 28 involving sexual molestations."
31. Ld. Counsel for the accused submitted that allegedly, the offence was committed on 23.10.2012, but the statement of the victim child was recorded u/s 161 Cr.P.C only on 15.01.2013 and as such, there is considerable delay in recording of the statement of the victim child, which itself shows malafide intention on the part of the Investigating agency. He thus prayed that accused is entitled to benefit of this lapse on the part of IO and be acquitted. The contention raised by learned defence counsel is not sustainable as this is only a lapse on the part of the IO and benefit in this regard cannot be given to the accused. The mandate of judicial decisions is that the omissions and serious lapses on the part of Investigating Officer would not effect the prosecution unless some prejudice is shown to have been caused to the accused. In case of Karnel Singh Vs. State of MP (1995) 5 SCC 518 conviction of accused U/S 376 IPC was challenged before Hon'ble Supreme Court and one of the grounds of challenge was defective investigations. The Investigating Officer of the case had not only failed to record statement of two material witnesses but had also drawn up a defective seizure memo. It was held in this case that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. In the present case also, the cogent and reliable testimony of the victim P and her grand mother Smt. Rajni Devi cannot be thrown out merely on the ground that there was a delay by the IO in recording the statement of the victim P. S.C. No. 28/13 : State vs. Ashok Kumar : Page 24 of 28
32. Moreover, it is clearly brought out from the record that earlier the investigations of the present case was marked to a male officer i.e. PW14 SI Sachin and as soon as it was assigned to a lady Investigating Officer i.e. PW15 W/SI Rekha on 15.01.2013, she recorded the statement of the victim child P u/s 161 Cr.P.C and also produced the victim P before ld. M.M for her statement u/s 164 Cr.P.C without any further delay. Rather, in the present case, by assigning the initial inquiry and subsequent investigations, after registration of the FIR to a male police officer, the investigating agency has shown utter disregard to guidelines issued by the Hon'ble High Court of Delhi in (i) W.P. (Crl.) No. 930/2007, Court on its own motion vs. State & Anr. (ii) Writ Petition (Crl.) no. 1242/2003, Mahender Singh Chhabra vs. State of N.C.T of Delhi & Ors., and (iii) Crl. Appeal No. 121/2008, Virender s/o Meelal vs. State of N.C.T of Delhi, where victim of sexual offence is a minor child. It is pertinent to note that pursuant to the guidelines issued by Hon'ble Delhi High Court in above mentioned cases, the Commissioner of Police, Delhi also issued standing order no. 303/2010 dated 25.10.2010, wherein it is clearly mentioned that as soon as, a complaint of rape/sexual assault is received, the duty officer shall call lady police official/officer present in the police station, for further inquiry/investigation and all proceedings thereafter, as far as possible, are preferably to be carried out by a lady police officer. There is no explanation why the initial inquiry and subsequent proceedings, after registration of the FIR, were marked to a male officer, who even lacked sensitivity to get the statement of victim recorded u/s 164 Cr.P.C. However, as already observed hereinabove, this is a lapse on the part of the Investigating Agency, for which, accused is not entitled to be given benefit of.
S.C. No. 28/13 : State vs. Ashok Kumar : Page 25 of 28
33. Ld. Counsel for the accused has further contended that there are several contradictions in the prosecution case. Firstly, it is not clear whether on the day of the incident, complainant/PW3 Smt. Rajni Devi had gone for the work or if it was an off day for her. Secondly, it is contended that there is a doubt whether the accused was locked in his room by PW3 Smt. Rajni Devi and he was arrested on 23.10.2012 or if he had escaped from the spot and was arrested on 24.10.2012 at about 5/5.30 a.m., on his return to his room. Thirdly, it is stated that it is not clear as to who had made the call to the police and whether, it was the mother of the victim P, who gave a call to the police, after she returned back from the work or someone else, since the IO claims that mother of victim P had come to the spot while he was recording the statement of Smt. Rajni Devi. No doubt, the minor discrepancies pointed out by the learned counsel for the accused, are evident from the face of record, however, they by themselves are not sufficient to disbelieve the victim P, who despite her tender age, could elaborate upon the acts of the accused. In the case of Shivaji Sahebrao Bobade Vs. State of Maharastra AIR 1973, SC 2622, Supreme Court observed "while scanning the evidence of various witnesses, we have to inform ourselves that variations on the fringes, discrepancies in details, contradictions in narrations and embellishment in unessential parts cannot militate against the veracity of the core of the testimony provided there is impress of truth and conformity to probability in the substantial fabric of testimony delivered." Similarly, in Arjun Vs. State of Rajasthan, AIR 1994, SC 2507 it has been held that minor omissions and contradictions with regard to details of assault should be ignored. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. I am further supported in my view by judgment in case titled as Vimal Suresh Kamble Vs. Chaluverapinake S.C. No. 28/13 : State vs. Ashok Kumar : Page 26 of 28 Apal S.P. & Anr., AIR 2003 SC 818 and Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
34. The learned counsel for the accused has further contended that if at all, only an attempt to commit rape is made out against the accused, since the MLC of the victim does not reflect any injury. On the other hand, ld. Addl. PP has contended that victim has categorically stated in her statement that "Mere chaddi uttar di aur apni bhi chhadi uttar di, mere deh par chhad gaya. Apni shushu meri shushu me dal di". After perusing the MLC of the victim as well as the FSL result on record, I find considerable force in submissions made by learned counsel for accused that only an offence of attempt to rape stands proved against the accused. In this regard, the testimony of PW3 Smt. Rajni Devi, grandmother/eye witness to the incident is very relevant. She has stated in her complaint Ex. PW3/A as well as her deposition as PW3 that accused was attempting to commit rape with victim P. (wo apni chaddi khol rakha tha aur use andar dalne ki kaushish kar raha tha) It is understandable that the victim child P was unable to comprehend the exact extent of act of penetration committed by the accused, due to her tender age and thus, she stated that "Mere chaddi uttar di aur apni bhi chhadi uttar di, mere deh par chhad gaya. Apni shushu meri shushu me dal di.".
35. Lastly, the learned counsel for the accused had contended that provisions of POCSO Act are not applicable in the present case, since the offence in the present case had taken place on 23.10.2012, whereas the POCSO Act came into force w.e.f. 14.11.2012 and hence, the offence under the POCSO Act can not come into force with retrospective effect. I find considerable force in the submissions made by S.C. No. 28/13 : State vs. Ashok Kumar : Page 27 of 28 learned defence counsel and I am of the opinion that the provisions of POCSO Act would not be applicable in the present case, since the offence in the present case was committed prior to coming into force of the POCSO Act.
36. The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved its case against the accused Ashok Kumar beyond reasonable doubt and I, therefore, hold the accused Ashok Kumar guilty for the offences u/s. 376 (2) (f) IPC read with Section 511 IPC and he is convicted accordingly for said offences.
Let the convict be heard on the point of sentence.
(Announced in the open Court ) (Illa Rawat)
(Today on 07.08.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 28/13 : State vs. Ashok Kumar : Page 28 of 28
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 28/13)
Unique ID case No. 02404R0025202013
State Vs. Ashok Kumar
FIR No. : 374/12
U/s : 376 (2) (f) IPC
& 4/5(M)/6 POCSO Act 2012
P.S. : North Rohini
State Vs. Ashok Kumar
S/o Sh. Dinesh Podaar
21.8.2014
Present : Ld. Addl. PP for the State.
Convict produced from J.C with counsel
ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Ashok Kumar has been convicted u/s 376 (2) (f) IPC r/w Sec. 511 IPC.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Defence counsel for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict attempted to rape a minor child aged about seven years, and in view of the serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence prescribed by the law may be imposed upon the convict. S.C. No. 28/13 : State vs. Ashok Kumar : Page 29 of 28
3. On the other hand, it has been submitted by the Ld. Defence counsel that the convict Ashok Kumar is a middle aged man and is married and is having a wife and two minor school going sons, aged about 13 and 10 years old, to support and that he is the sole bread earner of the family. It is further submitted that convict is having clean antecedents and belongs to a low strata of society and is first time offender and that he has been in custody since last about 22 months and he prays that a lenient view may be taken in this case and he be given a chance of rehabilitation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. defence counsel and have carefully gone through the record of the case.
5. In the present case, the convict Ashok Kumar has been convicted for committing the offence punishable u/s- 376 (2) (f) IPC r/w Section 511. The convict, being neighbour of victim (they were staying in rooms opposite to each other in same building) was apparently keeping a watch over the victim and on the first available opportunity, when he found victim child alone in her room with her younger siblings, sent away to younger sibling of victim child on pretext of bringing gutka and carried the helpless 7 year old victim child to his room, where he attempted to commit rape upon her. The offence was committed by the convict in the noon time. Had it not been for the vigilant grandmother of the victim child, who on hearing the cries/noise of her granddaughter, immediately reached at the place of incident, the convict could have succeeded in ravishing the minor child to satisfy his lust. The act of convict is not only gruesome, but has had far fetched and S.C. No. 28/13 : State vs. Ashok Kumar : Page 30 of 28 irreparable consequences on the psychology of the victim child and thus, no leniency is called for in the matter. I hereby sentence convict Ashok Kumar to undergo rigorous imprisonment of 7 (seven) years for having committed offences punishable u/s 376 (2) (f) IPC r/w Section 511 IPC. I further impose a fine of Rs. 5,000/ on convict, in default of payment of fine to further undergo simple imprisonment for six month, for the offence punishable, u/s 376 (2) (f) IPC r/w Section 511 IPC.
Benefit u/s 428 Cr.PC be also given to the convict.
6. Coming now to the aspect of compensation to the victim, who is a minor girl, the Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
7. Even otherwise, the concept of welfare and well being of children is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national S.C. No. 28/13 : State vs. Ashok Kumar : Page 31 of 28 asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire selfconfidence and selfrespect and a balance view of life with full appreciation and realization of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 S.C. No. 28/13 : State vs. Ashok Kumar : Page 32 of 28 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goaloriented perambulatory introduction."
8. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 50,000/ (Rs. Fifty thousand only) to the victim child. The said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi. It is further directed that compensation amount, which is kept in secured form of FDR, shall not be released to any one, until the child attains the age of S.C. No. 28/13 : State vs. Ashok Kumar : Page 33 of 28 majority. In the event, the money is required for welfare of the child prior to child attaining the age of majority, the parents and/or guardian of the child may approach the court for released of the amount by moving appropriate application, in this regard. Consequently, the concerned bank, which issues the FDR, in the name of the child, shall not release the FDR amount to any one, till the child attains the age of majority, except by the order of this court.
9. A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi, Chief Secretary, GNCT of Delhi, Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi, for information and necessary action under intimation to this Court.
10. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 21.08.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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