Delhi District Court
State vs Rajender on 23 April, 2018
IN THE COURT OF
SH. BALWANT RAI BANSAL, ADDITIONAL SESSIONS
JUDGE01, SPECIAL COURT (POCSO), SOUTH, NEW DELHI
CISSC No.6895/16
FIR No. 188/13
PS : Ambedkar Nagar
In the matter of:
State
versus
Rajender
S/o Sh. Subhash Kashyap
R/o House No. K237,
Dakshinpuri, New Delhi
........... Accused
Date of Institution : 14.08.2013
Date of Reserving judgment : Not reserved
Date of pronouncement : 23.04.2018
JUDGMENT
1. Accused Rajender in the present case has been charged and faced trial for commission of offences punishable under sections CISSC No. 6895/16 "State v. Rajender." Page No. 1 of 25 323 / 377 of the Indian Penal Code (in short "IPC") and sections 6 / 10 /12 of the Protection of Children from Sexual Offences Act 2012 (in short "POCSO Act"), on the allegations that he committed aggravated penetrative sexual assault and carnal intercourse against the order of nature with a minor boy, namely, 'A' (real name withheld in order to conceal his identity) (hereinafter referred to as "the victim") age about 10 years by inserting his penis into the anus of the victim forcefully and also sexually assaulted the victim by putting his penis in the hand of the victim and touching his penis with the buttock and anus of the victim on several occasions. There are also allegations against the accused that he also showed pornographic videos to the victim on his mobile phone and also gave beatings to the victim.
2. The State machinery came into force on receipt of DD No. 8A by ASI Bijender Singh through Ct. Sachin, pursuant to which, ASI Bijender along with Ct. Pitamber went to the spot i.e. house of complainant/victim (address withheld in order to conceal the identity and is mentioned at Serial No. 01 in the list of witnesses attached with CISSC No. 6895/16 "State v. Rajender." Page No. 2 of 25 the chargesheet) where the father of the victim, namely, 'DP' (name withheld in order to conceal the identity and full particulars are mentioned at Serial No. 02 in the list of witnesses attached with the chargesheet) met them along with the victim child and he told that his neighbour Rajender (the accused) had committed wrongful act with his victim son 'A'. Thereafter, the victim was taken to AIIMS Hospital where he was medically examined. After medical examination, NGO official was called pursuant to which one Mr. Usman from Butterfly NGO came to the police station and in the presence of father of the victim and NGO official, statement of the victim was recorded. In his statement, the victim Master 'A' has stated that, "He is residing along with his family members at Dakshinpuri, New Delhi and is studying in 4th Class. He is having one brother and elder sister. In the month of Holi, Rajender took him to a room situated under his house, switched off the light and started showing him obscene video on his mobile phone and asked him to remove his pant and when he refused to do so, Rajender forcibly removed his CISSC No. 6895/16 "State v. Rajender." Page No. 3 of 25 pant and started doing wrongful act from behind. Thereafter, when the lanter was installed in his house, Rajender again removed his pant and Rajender also removed his own pant and inserted his penis into the anus of the victim. Again, when the white wash work was going on in the house of the victim, Rajender took the victim to his house and made the victim to catch hold of his penis and asked the victim to fondle it and thereafter, Rajender after removing the pant of the victim inserted his penis into the anus of the victim. When the victim felt pain and asked Rajender not to do so, Rajender said to the victim that he would not insert his penis into his anus and would only touch the same and asked the victim not to disclose the said incident to anyone otherwise he would give beatings to him".
3. On the basis of aforesaid statement of the victim, the FIR in question u/s 377/511 of IPC and section 7 of POCSO Act was registered against the accused and investigation was commenced. During investigation, accused was interrogated and arrested in the present case. Statement of the victim u/s 164 Cr.P.C. was got CISSC No. 6895/16 "State v. Rajender." Page No. 4 of 25 recorded. Exhibits collected were sent to FSL Rohini for analysis. After completion of investigation, challan u/s 377/511 of IPC & 7 of POCSO Act was prepared and filed before the court on 14.08.2013.
4. Vide order dated 12.12.2013, charge was framed against the accused for commission of offences punishable under sections 377/511 of the IPC and section 7 of the POCSO Act, and the same was read over and explained to the accused, to which, he pleaded not guilty and claimed trial.
5. In support of its case, the Prosecution has examined 11 witnesses to prove its case, including the victim as PW1.
6. PW1 the victim Master 'A' is the crucial witness of the prosecution on whose statement, the present FIR was registered. His testimony shall be critically evaluated in the later part of the judgment.
7. PW2 is 'D' (the father of the victim) who deposed that he was on duty around one year ago and when he came back, his CISSC No. 6895/16 "State v. Rajender." Page No. 5 of 25 children told him that accused Rajender was threatening his son 'A' and was showing some dirty movies to his son on his mobile phone. He further deposed that accused also slapped his son and a quarrel took place. He further deposed that he visited the PS and the statement of his son Ex.PW2/A was recorded and the case was registered. He also admitted his signatures on Ex.PW2/B but he stated that he is not aware what is written on it as his signatures were obtained in PS.
8. PW2 'D' (the father of the victim) was crossexamined by the Ld. Prosecutor as he was resiling from his previous statement and in his crossexamination by Ld. Prosecutor, he denied the case of the prosecution.
9. PW3 ASI Mahipal Sharma is the Duty Officer who recorded the present FIR on the basis of rukka prepared by ASI Bijender Singh, copy of which is Ex.PW3/A.
10. PW4 is Dr. Manjul Bijarnia, Junior Resident deputed by Medical Superintendent, AIIMS to depose on behalf of Dr. Rajesh CISSC No. 6895/16 "State v. Rajender." Page No. 6 of 25 Kumar, Dr. Akhilesh Raj and Dr. Krishna who conducted the medical examination of the victim and of the accused and prepared the MLCs in the present case. He deposed that he has worked with the aforesaid doctors and can identify their handwriting and signatures. He has proved the MLC No. 008 dated 05.05.2013 of the victim Master 'A' prepared by Dr. Rakesh Kumar as Ex.PW4/A, MLC No. 010 dated 05.05.2013 of accused prepared by Dr. Akhilesh Raj as Ex.PW4/B and MLC No. 82 dated 05.05.2013 of the victim Master 'A' prepared by Dr. Krishna Kumar as Ex. PW4/C.
11. PW5 Ct. Pitamber deposed that on 05.05.2013, pursuant to DD No. 8A, he accompanied the IO to the house of the complainant, who told that his son was sodomoized by Rajender, his neighbour in the month of Holi and thereafter he along with the IO took the victim to AIIMS Hospital where the victim was medically examined and exhibits along with the sample seal were handed over to the IO by the doctor.
CISSC No. 6895/16 "State v. Rajender." Page No. 7 of 25
12. PW6 is Mohd. Usman, the NGO Official from NGO Butterflies who was brought by the police and in whose presence, statement of the victim child was recorded.
13. PW7 Ct. Abodh accompanied the IO along with victim and his father to the house of the accused on 05.05.2013 from where the accused was arrested in the present case. He deposed that after arrest, personal search of the accused was conducted vide memo Ex.PW7/A and thereafter the accused was taken to the hospital where he was medically examined and the exhibits of the accused handed over by the doctor were seized by the IO vide seizure memo Ex.PW7/B.
14. PW8 is Ct. Supreet Yadav who took the exhibits pertaining to the present case from Maalkhana of the PS on 22.05.2013 vide Road Certificate Ex. PW8/A and deposited the same with FSL, Rohini vide acknowledgement Ex. PW8/B.
15. PW9 Sh. Sunil Beniwal, Ld. ACMM, Karkardooma CISSC No. 6895/16 "State v. Rajender." Page No. 8 of 25 Courts, had recorded the statement of the victim u/s 164 Cr.P.C on 06.05.2013 when he was posted as Metropolitan Magistrate in South District, Saket, New Delhi. He has deposed that on 06.05.2013, an application for recording the statement of victim u/s 164 Cr.P.C. Ex.PW9/A was marked to him by Ld. MM, South vide order dated 06.05.2016 Ex.PW9/B. Accordingly, he recorded the statement of the victim u/s 164 Cr.P.C. after being satisfied that victim wanted to make statement voluntarily and without any pressure. The record of the proceedings u/s 164 Cr.P.C. regarding recording the statement of victim is Ex.PW9/C, the statement of the victim dated 06.05.2013 is Ex.PW9/D and the certificate issued by Ld. MM regarding the correctness of the proceedings is Ex.PW9/E.
16. PW10 is Retd. Sub Inspector Bijender Singh, who on the intervening night of 04.05.2013 and 05.05.2013, when he was posted as ASI at PS Ambekdar Nagar, on the receipt of DD No. 8A from Ct. Sachin went to the victim's house where father of the victim told about CISSC No. 6895/16 "State v. Rajender." Page No. 9 of 25 the act of sodomy by the accused upon the victim. He deposed that he took the victim to the AIIMS Hospital where he was medically examined and he collected exhibits in sealed condition and seized the same vide seizure memo Ex.PW10/A. He after returning to the police station from the hospital recorded the statement of the victim in the presence of his father and NGO official and made endorsement on the same vide Ex.PW10/B and case was registered. He deposed that after registration of case, the investigation was marked to SI Randhir.
17. PW11 SI Randhir Kumar is the investigating officer (IO) of the case. On 05.05.2013, he received the investigation of the present case and SI Bijender handed over all the documents pertaining to the present case to him. He deposed that after receipt of case file, he along with Ct. Amod and the victim reached at the house of accused where, at the instance of the victim, he prepared the site plan Ex.PW11/A and thereafter arrested the accused and recorded the statement of witnesses. He further deposed that exhibits were CISSC No. 6895/16 "State v. Rajender." Page No. 10 of 25 deposited in the Maalkhana and accused was produced before the court concerned from where he was remanded to judicial custody. He further deposed that on 06.05.2013, he got recorded the statement of the victim u/ s164 Cr.P.C and on 22.05.2013 exhibits were sent to FSL Rohini through Ct. Supreet vide RC Ex. PW11/B. He further deposed that during investigation, he collected the progress report of victim A which is Ex PW11/C as per which, date of birth of the victim is 27.10.2002. After completion of investigation, he prepared the charge sheet and filed the same in the court.
18. The prosecution evidence was closed vide order dated 15.03.2018 and the case was fixed for recording of the statement of the accused under section 313 of Cr.P.C.
19. It is pertinent to mention here that on 16.04.2018 when the matter was fixed for recording the statement of the accused u/s 313 Cr.P.C, it was observed by this court that perusal of complaint made by the victim revealed that there were specific allegations against the accused that he committed carnal intercourse against the victim who CISSC No. 6895/16 "State v. Rajender." Page No. 11 of 25 was a male child aged 10 years on several occasions and also showed him pornographic videos on his mobile phone besides giving beatings to him and therefore accused is liable to be charged for the commission of the offences punishable under sections 377/323 of the IPC and sections 6/10/12 of the POCSO Act and charge is required to be altered. Accordingly, charge was altered vide order dated 16.04.2018 and accused was charged for the commission of the offences punishable under sections 377/323 of the IPC and sections 6/10/12 of the POCSO Act vide order dated 16.04.2018. Same was read over and explained to the accused to which he pleaded not guilty and claimed trial. Consequent to the alteration of the charge, opportunity was given to the prosecution as well as to the accused to lead evidence or to recall any witness, however, both sides submitted that they did not want to lead any evidence or recall any witness pursuant to alteration of charge. Accordingly, prosecution evidence was closed and accused Rajender was examined under section 313 of Cr.P.C. and his statement was recorded.
CISSC No. 6895/16 "State v. Rajender." Page No. 12 of 25
20. During his examination under section 313 of Cr.P.C., the accused Rajender denied the correctness of the incriminating evidence appearing against him during the prosecution evidence and stated that he is innocent and has been falsely implicated. He further stated that he had done plumbing work in the house of the victim and he was demanding his labour charges from the father of the victim and in order to avoid the same, the father of the victim got him falsely implicated through his son.
21. Mr. Inder Kumar, Ld. Special Public Prosecutor for the State has drawn my attention through the testimonies of the prosecution witnesses examined by the prosecution and the documents exhibited during the examination of the prosecution witnesses, and submitted that there is sufficient material on record to convict the accused for the commission of the offence punishable under section 323/377 of IPC and 6/10/12 of POCSO Act.
22. On the other hand, Ld. Counsel for the accused has submitted that the accused has not committed any offence as alleged CISSC No. 6895/16 "State v. Rajender." Page No. 13 of 25 against him and he has been falsely implicated in this case by the victim at the behest of her father. He further argued that the prosecution has not been able to prove the guilt of the accused and therefore, the accused is liable to be acquitted.
23. I have considered the submissions made by the Ld. Special Public Prosecutor and Ld. Counsel for the accused and have gone through the record of the case carefully.
24. The first point for determination is: What was the age of the victim on the day of the incident?
25. The prosecution has claimed the age of the victim to be 10 years at the time of commission of offence in the year 2013. In this regard, the prosecution has relied upon the progress report of 2 nd Class of the victim which is Ex. PW11/C collected by the IO during investigation, which shows the date of birth of the victim as 27.10.2002. The accused has not disputed the said document and the fact that victim was minor at the time of commission of offence. In CISSC No. 6895/16 "State v. Rajender." Page No. 14 of 25 view of same, it stands proved that at the time of commission of offence in the year 2013, the victim was below the age of 18 years and was a child as defined u/s 2 (d) of POCSO Act.
26. The second point for determination is: Whether the accused has committed carnal intercourse against the order of nature and penetrative sexual assault upon the victim or sexually harassed the victim or voluntarily caused hurt to the victim by giving him beatings.
27. The criminal law was set into motion on the statement made by the victim which is Ex.PW2/A, wherein the victim has alleged that the accused had committed wrongful act with him after removing his pant and inserting his penis into his (the victim) anus on three occasions in the year 2013. The victim has also alleged that accused Rajender had also shown him dirty movies on his mobile phone.
28. However, the victim when appeared in the witness box as CISSC No. 6895/16 "State v. Rajender." Page No. 15 of 25 PW1, did not support his version made in the statement Ex.PW2/A. He deposed that he knew accused Rajender as he used to reside in their neighbourhood and Rajender used to slap him and also used to show him dirty movies on his mobile phone and Rajender did not do anything else. He further deposed that in those dirty movies, girls and boys used to do dirty/bad things with each other and he told this thing to his sister who told to his mother and his mother told to his father. Thereafter, his father called the police and he told these facts to police. He further deposed that he told to the police that accused Rajender removed his trouser but he did not do anything.
29. In his crossexamination by Ld. Defence Counsel, PW1 the victim admitted that he told in the court on earlier occasion that accused only removed his trouser and did not do anything. He further admitted that he did not depose as per the directions of other persons. He further admitted that accused only gave him beatings and did not do any other wrong act. He further admitted that he made a statement against the accused out of annoyance.
CISSC No. 6895/16 "State v. Rajender." Page No. 16 of 25
30. From the aforesaid testimony of PW1 the victim who is the star and material witness of the prosecution, it is apparent that he has not supported the prosecution case regarding sexual assault and sexual harassment by the accused. Though he stated that accused removed his trouser but he categorically stated that the accused did not do anything wrong with him which fact he reiterated in his cross examination. He also admitted in his crossexamination that out of annoyance, he made a statement against the accused as accused gave him beatings.
31. It is also to be noted that before appearing in the witness box as a witness, in his statement recorded u/s 164 Cr.P.C also, the victim has not leveled any allegation against the accused of penetrative sexual assault or sexual harassment. He told to the Magistrate that Rajender used to beat him. On the day of Holi, Rajender called him but he did not go to him. On the next day, Rajender gave him beatings and also removed his pant but Rajender did not commit any wrongful act with him and out of anger he told his CISSC No. 6895/16 "State v. Rajender." Page No. 17 of 25 sister that Rajender had committed wrongful act with him.
32. Another material witness examined by the prosecution is PW2 'D' (father of the victim) who in his examinationinchief has deposed that he was told by his children that accused was threatening his victim son and was showing some dirty movies on his mobile phone and he also slapped his son and a quarrel took place. Though he admitted his signatures on Ex. PW2/B which is the arrest memo of accused but he denied having known the contents of the same.
33. PW2 (the father of the victim) was crossexamined by the Ld. Prosecutor as he was resiling from his earlier statement and in his crossexamination by Ld. Prosecutor, he admitted that his son told the facts given in Ex. PW2/A which were recorded by the police. Voluntarily, he stated that his son was under fear and doctor told him that nothing wrong was done with the child. He further admitted that he was not present at the time when any wrong act was done with his son by the accused. He further admitted that since he was not present at the time of incident, therefore he is not able to tell as to what CISSC No. 6895/16 "State v. Rajender." Page No. 18 of 25 actually was done by accused Rajender with his son. He admitted that his son A told about the acts done by accused as mentioned in Ex. PW2/A and he subsequently told about the same in his statement made to the police. Voluntarily, he stated that he concluded by the medical examination of his son that nothing wrong was done by the accused. He denied the suggestion that he has taken money from the accused and thus has forgiven the accused and that is why he is not deposing against him, although he did all the wrong acts as mentioned in Ex. PW2/A by his son.
34. In his crossexamination by Ld. Defence Counsel, PW2 categorically admitted that police did not record the correct facts which were stated by his son and further that accused Rajender only slapped his son and due to anger, his son stated other facts to the police. He further admitted that his son told him before going to PS that accused only slapped him. He stated that since quarrel with accused took place, therefore, some allegations were made against him in the PS. He admitted that police recorded wrongly that some wrong CISSC No. 6895/16 "State v. Rajender." Page No. 19 of 25 act was done by accused with his son by removing his trouser and he was aware about this fact before the medical examination of his son. He further stated that he has not entered into any compromise with accused nor he has taken any money from him.
35. The aforesaid testimony of PW2 shows that he has also not supported the case of the prosecution regarding penetrative sexual assault or carnal intercourse and sexual harassment committed by the accused with the victim as per the case of the prosecution. He categorically stated in his crossexamination by Ld. Prosecutor that he was not present at the time of incident and therefore he is not able to tell as to what actually was done by accused Rajender with his son. Though he admitted that his son gave statement Ex. PW2/A to the police wherein his son has levelled the allegation of carnal intercourse/penetrative sexual assault against the accused but he stated that his son gave the said statement under fear. He also stated that after the medical examination of his son, he concluded that nothing wrong was done with his child. In his crossexamination by CISSC No. 6895/16 "State v. Rajender." Page No. 20 of 25 Ld. Defence Counsel also, he categorically stated that accused only slapped his son and due to anger his son stated other facts to the police which fact was also told by his son to him before going to the police station.
36. The aforesaid testimony of PW2 that he came to know after medical examination of his son that his son was not subjected to any penetrative sexual assault or carnal intercourse by the accused is corroborated by PW4 Dr. Manjul Bijarnia who appeared on behalf of the doctor who medically examined the victim and proved the MLC of the victim on record as Ex. PW4/A. PW4 categorically stated in his crossexamination that as per MLC Ex. PW4/A, it was opined that there is no sign suggestive of insertion of penis or penis like object and there is no sign suggestive of any type of sexual assault. Thus, the medical evidence produced on record by the prosecution also does not support its case regarding penetrative sexual assault upon the victim by the accused.
37. Similarly, FSL result placed on record by the prosecution CISSC No. 6895/16 "State v. Rajender." Page No. 21 of 25 too does not indicate towards the guilt of the accused. In the FSL report placed on record, nothing has come against the accused to link him with the commission of offence of penetrative sexual assault or carnal intercourse with the victim as alleged by the prosecution.
38. PW10 SI Bijender (Retd). who recorded the statement of the victim Ex. PW2/A on the basis of which present FIR was registered stated in his crossexamination that the victim had told him that he was sexually assaulted by the accused thrice, firstly at the time of Holi of 2013 and secondly when some construction was going on in his house and thirdly after some days of the second incident by the accused but he admitted that the victim or his father never complained of any such incidents prior to the call on the night of 04.05.2013.
39. The remaining witnesses examined by the prosecution are only formal witnesses and none of them is an eye witness to the commission of offence to prove the guilt of the accused and from their testimonies, no incriminating evidence has come on record against the accused.
CISSC No. 6895/16 "State v. Rajender." Page No. 22 of 25
40. On the other hand, the defence of the accused has been that he had done some plumbing work in the house of victim and when he demanded his labour charges from the father of the victim, the victim's father got him falsely implicated in the present case through the victim.
41. The defence of the accused is substantiated from the testimony of PW2 'D' (father of the victim) who categorically stated in his crossexamination that since a quarrel took place with the accused, therefore some allegations were made against him in the police station.
42. In the overall facts and circumstances of the case and keeping in view the testimony of PW1 (the victim) and PW2 (the father of the victim), the prosecution has miserably failed to prove the guilt of the accused that he repeatedly committed aggravated penetrative sexual assault and had carnal intercourse against the order of nature with the victim by inserting his penis into the anus of the victim or that the accused committed aggravated sexual assault against CISSC No. 6895/16 "State v. Rajender." Page No. 23 of 25 the victim by putting his penis in the hand of the victim with sexual intent or that the accused has ever sexually harassed the victim. Hence, in the absence of any such incriminating evidence against the accused Rajender, he is not found guilty of committing the offence punishable under section 377 of IPC and sections 6/10/12 of POCSO Act as charged against him. Accordingly, accused Rajender is acquitted of the said offences.
43. However, from the testimony of PW1 (the victim), it is established that accused used to give beatings to him by slapping him as he categorically admitted in his crossexamination that accused only gave him beatings and did not do any other wrong act. As per the testimony of PW2 (the father of the victim) also, it is proved that accused used to slap his son. Thus, keeping in view the aforesaid testimony of PW1 and PW2, the prosecution has succeeded to prove its case that the accused used to give beatings to the victim and hence he is found guilty for commission of offence punishable u/s 323 of CISSC No. 6895/16 "State v. Rajender." Page No. 24 of 25 the IPC and he is accordingly convicted for the said offence.
44. Let the accused be heard on the quantum of sentence.
Pronounced in the open Court (Balwant Rai Bansal) on 23rd April 2018. ASJ01/Special Court (POCSO) South District:Saket Courts:
New Delhi CISSC No. 6895/16 "State v. Rajender." Page No. 25 of 25