Delhi District Court
Fir No. 249/13 : State vs Shankar @ Ram Shankar : Ps Shalimar Bagh on 11 April, 2018
FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No.16/2014)
State Vs. Shankar @ Ram Shankar
FIR No. : 249/2013
U/s : 354 IPC & 8 of POCSO Act
P.S. : Shalimar Bagh
State Vs. Shankar @ Ram Shankar
S/o Sh. Girraw
R/o Jhuggi No. 9, Lohiya Camp,
Haiderpur, Delhi.
Date of institution of case : 13.01.2014
Date of arguments : 11.04.2018
Date of pronouncement of judgment : 11.04.2018
J U D G M E N T :
1.Brief facts of the prosecution case are that on 10.07.2013, the complainant along his victim daughter P came to PS where the victim P Page 1 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh gave her statement that she is 12 years old and is a student of class VIIIth. Today at about 7.00p.m., her mother brought her to the jhuggi of accused at Lohiya camp, Haiderpur for treatment of her backache through 'Jhada'. The accused sent her mother to bring lemons for her treatment and when the mother left, the accused touched the breast of the victim. The victim immediately ran out of the jhuggi and informed her mother. On her complaint, the present FIR was registered and victim was taken to the jhuggi where at her instance, site plan was prepared and accused was arrested. Thereafter statement of victim u/s 164 Cr.P.C. was recorded where she reiterated her statement given to the police. IO thereafter obtained the date of birth proof of the victim from her school and her age was found to be above 12 years on the date of incident. After completion of investigation, chargesheet was filed. Copy supplied.
2. Charges punishable u/s 8 of the POCSO Act and in the alternate 354 IPC were framed against the accused who pleaded not guilty and claimed trial.
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3. To bring home the guilt, the prosecution has examined as many as 7 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. wherein he chose not to lead DE and took the plea that he has been falsely implicated in the case. The complainant and the victim reached his house after 7.30p.m. and he refused to treat the victim as he used to give 'jhada' only till 7.00p.m. and on his refusal, he has been falsely implicated in this case.
4. PW1 is the photographer who videographed the statement of the victim as recorded by the police. Later on, his statement was discarded by my Ld. Predecessor on 06.09.2017 as the CD of the said videography was not available.
PW2 the Ld. M.M. who recorded the statement of victim u/s 164 Cr.P.C. Ex.PW2/B and gave her certificate Ex.PW2/C. PW3 is the Principal of the first attended school of the victim child where victim was admitted in class 1 st on 07.07.2006 on the basis of affidavit given by her father mentioning the date of birth of the victim as Page 3 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh 30.05.2001. The admission form and the affidavit of the father were produced in original and proved as Ex.PW3/A and Ex.PW3/B and the relevant entry in the admission register as Ex.PW3/C. This witness was briefly cross examined where she admitted that father of the victim did not submit any birth certificate nor school made any independent inquiry for verification of the date of birth of the victim.
PW4 is the victim herself whose testimony is reproduced herein for the sake of brevity: "I have been residing at the address mentioned against my name in the list of witnesses with my family which consists of myself, my parents, my two elder sisters and one elder brother. I am the youngest child of my parents and studying in class 11th in a Govt. school.
On 10.07.2013 at about 7 or 7:30 p.m. I was having severe backache and my mother had taken me to the house accused Shanker, present in the court today ( correctly identified by the witness through the design of wooden partition) for getting my treatment of backache through magic spell ( jhada lagwana le gai thi) . The house of accused was situated at Lohia Page 4 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh Camp, Haider Pur, Delhi. Accused had sent my mother to bring some lemon for the purpose of said treatment and my mother had gone out of his house. I was sitting alone with the accused in the room when he suddenly inserted his hand in my shirt and started pressing my breast. I took out his hand and ran out of the house and went towards my mother. I had narrated the entire incident to my mother, who had further told to my father on phone. My father had called the police at 100 number. In fact my father had reached there with the police. Police had taken away the accused with them. The police officials had sent me to a lady police who had recorded my statement.
At this stage the witness has been shown the statement/ complaint from the judicial file, on which she identifies her signatures at point A. The said statement is now Ex. PW 4/A. I had shown the place of incident to the police.
Earlier also I had come to the court where my statement was recorded by one lady Judge in her chamber.
At this stage, the said statement / proceedings U/S 164 Cr.P.C. has Page 5 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh been shown to this witness on which she identifies her signatures on one page at point A. The said statement is already Ex. PW 2/B. I was also produced by the police at CWC, Kingsway Camp, where I was counselled.
XXX XXX XXX by Sh. Aseem Bhardwaj, Ld. Counsel for the accused.
I had met the police officials in this case for about 67 times. My mother had gone for religious pursuits ( pooja path) to the accused on two occasions prior to the date of incident. Lohiya camp is an exclusively jhuggi area. I do not know that the toilet and bathroom in the jhuggi of accused was on outer side, however there was only one room in his jhuggi. It is wrong to suggest that at that time other patients of accused were also lying lined up outside his jhuggi. It is wrong to suggest that the accused, his wife, his children and the family of the brother of accused had been residing with him in the said jhuggi and they were also present at the jhuggi at that time. It is wrong to suggest that at that time some labourers were working at the jhuggi of the accused and dust and badarpur was lying outside the jhuggi. Vol. The said work was going on in another jhuggi at Page 6 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh some distance.
I had signed Ex. PW4/A on the date of incident itself at PS. It is wrong to suggest that Ex. PW4/ A was blank when I had affixed my signatures thereupon along with some other blank papers. I had signed one or two other papers as well. It is wrong to suggest that the accused used to do 'Jhada' only till 7 p.m. and as we had got late he had refused to treat me and as such my mother had got annoyed and she subsequently got him falsely implicated in this case by using me and misusing the provision of POCSO Act. It is wrong to suggest that the accused had not committed any kind of sexual assault upon me as I had refused for my medical examination. It is wrong to suggest that the police officials had made preliminary inquiries from the residents of neighbouring jhuggies and they all had denied the incident. It is wrong to suggest that I have deposed falsely."
PW5 is the mother of the victim who supported the prosecution case and stated that on 10 July about three years ago, she along with her Page 7 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh daughter came to Lohiya camp for treatment of back pain of victim through magic spell (jhada) from accused Shankar who was considered an expert in this field. She reached there at around 7.00p.m. and accused asked her to bring lemon. She went out of his house and within five minutes her daughter met her running out of the accused house and told her that accused had done chhedchhad with her. She told that accused pressed her breast by putting his hand in her shirt. She immediately called her husband who came with the police. Police took them to police and where one lady police made inquiry from her daughter and accused was arrested. In her cross examination, she stated that she knew accused 89 years prior to the date of incident and had gone once to him before the incident. She denied the suggestion that there were other patients also lined up outside the jhuggi of the accused or accused refused to treat her daughter as it was already 7.00p.m. and because of that he has been falsely implicated in this case.
PW6 is the father of the victim who stated that on 10.07.2013 at about 7.00/7.15p.m. his wife called him on his mobile and informed that accused Shankar had committed cheed chhad with her daughter when she Page 8 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh brought her for treatment through 'jhada' from accused, he reached the spot with police from where they were brought to PS. He was briefly cross examined and there is nothing relevant in the cross examination to disbelieve his testimony.
PW7 is the IO who proved on record the rukka Ex.PW7/A, the FIR Ex.PW7/B, the site plan Ex.PW7/C and MLC of accused Ex.PW7/D. There is nothing relevant in the cross examination to doubt the fair investigation.
5. It has been argued for the accused that the time of reporting the incident in the rukka has been mentioned with different ink and manipulation cannot be ruled out and further there is only one room in the jhuggi and there is no likelihood of accused committing this act as he was living with his family and other patients were also present at the time of alleged incident and IO did not make inquiry from them qua alleged incident and as such the prosecution has failed to proved the case. It is argued that the locality where the jhuggi of the accused situated is densely populated and it is not possible that no neighbour heard about the incident or saw the victim running out of Page 9 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh the jhuggi of the accused and in the absence of any independent witness, the testimony of the victim who was not medically examined cannot be relied upon.
On the other hand, Ld. APP has argued that victim is consistent throughout in her statement, the FIR was lodged immediately, the accused was arrested from the spot and conviction can be held on the sole testimony of reliable witness and prosecution has proved the offence beyond reasonable doubt.
6. I have heard the submission and perused the record.
7. As far as the age of the victim is concerned, the same is not in dispute as father of the victim gave his affidavit on the basis of which the date of birth of the victim child was recorded in her school on 07.07.2006 as 30.05.2001. It cannot be presumed that father mentioned a wrong date deliberately to have any future benefit. School is not supposed to conduct any independent inquiry to ascertain the date of birth of the victim as Page 10 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh suggested in the cross examination to PW3. Affidavit of the father of the victim given at the time of school admission regarding her date of birth cannot be disbelieved and as such prosecution has proved the date of birth of the victim as 30.05.2001 and she was hardly 12 years on the date of incident i.e. 10.07.2013.
8. Coming to the main act, the victim is consistent throughout in her all the statements recorded by the police Ex.PW4/A, recorded by Ld. M.M. u/s 164 Cr.P.C. Ex.PW2/B and statement given in the court about the act of the accused well as sequence of events. She all along stated that her mother brought her for treatment to the accused who asked the mother to bring lemons and when the mother went out from the jhuggi to bring the lemon the accused pressed her breast by putting his hand in her clothes. She immediately took out his hand and ran away towards her mother and informed about the incident to her and mother called her father who brought the police. There is no delay in lodging the FIR and accused was arrested from the spot. Only because no public witness was joined in the Page 11 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh investigation is no ground to disbelieve the complainant or to hold that the prosecution could not prove the case. If the testimony of victim is trustworthy and reliable, the accused can be convicted on the sole testimony of reliable witness.
In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
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Otherwise also the defence of the accused that he was falsely implicated since he refused to treat the victim after 7.00p.m. is not plausible more so, in view of the presumption u/s 29 of the POCSO Act against him. The Ld. Defence counsel in the cross examination of the victim and her mother has suggested that there was que of patients outside his jhuggi and he refused to treat the victim as it is already 7.00p.m. This suggestion itself falsify the case of the accused since if there was a que of patients outside his jhuggi for treatment that he was giving treatment to his other patients even after 7.00p.m. yet he declined the same to the victim on this ground and she falsely implicated him. His defence of false implication is not plausible. There is no reason as to why the victim will falsely involve the accused more so, when her testimony is trustworthy and duly supported by her mother and to some extent by her father. The arguments that she was not medically examined does not hold any ground as there was no need for medical examination since the case is of pressing the breast and for that no medical corroboration is required. The prosecution has proved the offence Page 13 of 14 FIR No. 249/13 : State V/s Shankar @ Ram Shankar : PS Shalimar Bagh punishable u/s 8 as defined u/s 7 of POCSOA Act beyond reasonable doubt. Accused is convicted for the offence punishable u/s 8 of the POCSO Act. Since accused has been convicted u/s 8 of POCSO Act, he is not separately convicted for the offence punishable u/s 354 IPC.
(Announced in the open ) (Amit Kumar)
(Court on 11.04.2018) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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