Delhi District Court
Sc No. 58899/16 State vs . Chavi Ram on 6 January, 2018
SC No. 58899/16 State Vs. Chavi Ram
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No.58899/16)
Unique Identification No. 02404R0042982015
FIR No. 1054/14
Police Station Mukherjee Nagar
Under Section 354 IPC
& 8 POCSO Act
State V/s Chavi Ram
S/o Goli Ram
R/o H.No. 56, Dhakka Village,
Delhi09.
Permanent Address :
Village Rasulpur, P.S. Tehsil
P.O. Fathabad,
District Agra, UP.
......Accused
Date of institution of case 03.01.2015
Date of arguments 07.12.2017 &
06.01.2018
Judgment Pronounced on 06.01.2018
Decision Convicted
Judgment : FIR No. 1054/14 page 1 of 22
SC No. 58899/16 State Vs. Chavi Ram
J U D G M E N T
1.The accused Chavi Ram is facing trial in the present case on allegations of having used criminal force upon the victim P (identity withheld), aged about 9 years, in order to outrage her modesty and having sexually assaulted her.
2. The facts in brief, which are borne out from the record are that on 25.09.2014 at about 5.30 PM, the victim P alongwith her mother / complainant Smt. A (identity withheld) was present in the weekly market, at Burari Road, opposite Radio Colony, Mukherjee Nagar, Delhi. Accused Chavi Ram, who was also present in the said weekly market at that time, inappropriately touched the said victim child on her breast and molested her, on which the victim child immediately informed her mother and pointed out towards the accused. Accused Chavi Ram started running and he was chased by the mother of the victim and with the help of public persons, he was apprehended. Someone informed the police, who arrived at the spot, from where the victim, her mother as well as the accused were taken to PS, where the mother of the victim made a written complaint, addressed to the SHO, about molestation of her minor daughter P, aged about 9 years, at the hands of the accused, and praying for legal action. Investigation of the case was handed over to IO SI Raj Bala, who on the basis of the complaint, prepared the Tehrir, and got the case FIR registered, u/s 354 IPC and 8 POCSO Act. IO went to the spot, prepared the site plan and made inquiries from the public persons present in the weekly market. She also went to the house of the victim, where she made inquiries from the victim and recorded her statement u/s Judgment : FIR No. 1054/14 page 2 of 22 SC No. 58899/16 State Vs. Chavi Ram 161 CrPC.
3. The accused, who was sitting in the PS, was arrested vide his appropriate arrest memo and his personal search was conducted vide his appropriate personal search memo. Accused was got medically examined at BJRM Hospital, where his MLC was prepared and thereafter he was put in the lockup, and was produced before the concerned court on the next day, from where he was sent to JC. On the next day, the victim child alongwith her mother were produced before the concerned court of Ld. MM, for recording of statement of the victim u/s 164 CrPC. On an appropriate application moved by the IO, Ld. MM recorded the statement of the victim u/s 164 CrPC, and a copy thereof was obtained by the IO by moving another appropriate application. The age proof of the victim in the form of her school record was obtained from the school of the victim. The statements of the witnesses were recorded and after completion of investigation, the chargesheet was filed in the court by the IO.
4. On appearance in the court, the accused was supplied with the copies, and after hearing the counsel for the accused and Ld. Addl. P.P. for the State, since prima facie case was made out, the accused was charged for the offence u/s 354 IPC and u/s 8 POCSO Act, on 18.02.2015 by the Ld. Predecessor of this court, to which he pleaded not guilty and claimed trial. Subsequently, since as per the allegations, the offence of sexual assault was committed upon the victim child, who was below 12 years of age at the time of incident, and the offence was committed in its aggravated form and thus covered u/s 10 POCSO Act Judgment : FIR No. 1054/14 page 3 of 22 SC No. 58899/16 State Vs. Chavi Ram and not u/s 8 POCSO Act, vide order dated 06.01.2018, the charge was amended and an amended charge for the offence punishable u/s 354 IPC and for the offence punishable u/s 10 POCSO Act was framed. Accused pleaded not guilty to the amended charge also. Ld. Addl. P.P. for the State stated that after framing of the amended charge, no other witness was required to be examined and that he wishes to adopt the same examination and cross examination of the witnesses already examined. Similarly, Ld. Counsel for the accused stated that after the framing of amended charge, no witness is required to be cross examined afresh, and that he wishes to adopt the same examination and cross examination of the witnesses already examined, nor any modification in his statement u/s 313 CrPC is required, nor any defence witness is to be examined.
5. To substantiate its case, the prosecution examined ten witnesses in all, out of which PW 4, PW 5, PW 6, PW 7 and PW 9 are formal witnesses, PW 3, PW 8 and PW 10 are witnesses of investigation, while the PW 1 and PW 2 are the material witnesses, being the victim herself and her mother respectively.
FORMAL WITNESSES
6. PW 4 Sh. Rajnish Grover, Office Assistant, Rosary Senior Secondary School, Radio Colony, Kingsway Camp, Delhi, brought on record the school record of the victim and deposed that as per the Admission Register, the child P was admitted in the said school on 23.03.2009, and as per record, her date of birth is 18.10.2004, and the relevant portion of the said register was proved on record as Ex. PW4/A. Judgment : FIR No. 1054/14 page 4 of 22 SC No. 58899/16 State Vs. Chavi Ram The certificate issued by Accountant on behalf of the Principal of the said school, certifying the date of birth of the student / victim being 18.10.2004, was proved on record as Ex. PW4/B. Certified copy of the Admission Form and certified copy of the birth certificate submitted by the parents of the child P at the time of her admission, were proved on record as Ex. PW4/C and Ex. PW 4/D respectively.
7. PW 5 HC S.R. Sanjay, No. 97 NW, PS Mukherjee Nagar, Delhi deposed that on 25.09.2014, while posted as Duty Officer at PS Mukherjee Nagar, at about 8.45 PM, on receipt of a rukka from WSI Raj Bala, he got the instant case FIR registered and handed over the copy of the FIR and original rukka to Ct. Ramdas for handing over to WSI Raj Bala, and proved on record the copy of the FIR as Ex. PW5/A, his endorsement on the rukka as Ex. PW5/B, and the certificate u/s 65 B Indian Evidence Act issued by him as Ex. PW 5/C.
8. PW 6 Dr. R.S. Mishra, CMO, BJRM Hospital, Delhi was deputed by the MS of the said hospital, to depose on behalf of Dr. Rishav Shekhar, who had worked with PW 6. PW 6 stated that he had seen Dr. Rishav Shekhar writing and signing during the course of his duties. He further deposed that Dr. Rishav Shekhar had medically examined the accused vide MLC Ex. PW 6/A and has given his observation at point X to X1 in his handwriting, on the said MLC.
9. PW 7 Ct. Ram Dass, No. 2230/NW, PS Bhalswa Dairy deposed that on 25.09.2014, while posted at PS Mukherjee Nagar, on the Judgment : FIR No. 1054/14 page 5 of 22 SC No. 58899/16 State Vs. Chavi Ram instructions of Duty Officer, he took the original rukka and copy of FIR to the house of the complainant at Nanak Enclave, and handed over the same to IO SI Raj Bala.
10. PW 9 Ms. Shilpi Jain, MM, Tis Hazari Court, Delhi deposed that on 11.10.2014, on an application being assigned to her, she recoded the statement of the victim P u/s 164 Cr.P.C Ex. PW1/A, and identified her signature on the same at point B. Vide order dated 11.10.2014 Ex. PW9/A, she allowed for supply of a copy of the statement of the victim u/s 164 Cr.P.C., to the IO.
WITNESS OF INVESTIGATION
11. PW 3 Ct. Praveen, No. 2588/NW, PS Mukherjee Nagar deposed that on 25.09.2014 at about 8.40 PM, he joined the investigation of this case alongwith the IO and reached at the spot, where accused was found in police custody. IO prepared the site plan at the instance of the complainant. He further deposed that thereafter they went to the house of the complainant, where IO recorded the statement of the victim, and returned to the PS. He further deposed that the IO arrested the accused vide arrest memo Ex. PW 3/A and his personal search was conducted vide personal search memo Ex. PW 3/B. He further deposed that he took the accused to BJRM Hospital for his medical examination.
In his crossexamination by the Ld. Counsel for the accused, PW3 admitted it to be correct that the place of incident was a public place and many public persons were present there.
Judgment : FIR No. 1054/14 page 6 of 22 SC No. 58899/16 State Vs. Chavi Ram
12. PW 8 HC Deepak, No. 274/NW, PS Mukherjee Nagar deposed that on 25.09.2014, while deputed on patrolling duty in the area of Radio Colony, at about 5.30 PM, he saw a mob gathered there and on inquiry, it was revealed to him that one person (accused) had misbehaved with a girl, aged about 9 years, by touching her on her breast. He further deposed that he took the complainant (mother of the victim) and the accused to PS and produced them before SI Raj Bala, where mother of the victim made a written complaint against the accused in writing. At about 1010.30 PM, IO arrested the accused and conducted his personal search vide arrest memo already Ex. PW 3/A and personal search memo Ex. PW 3/B respectively.
In his crossexamination by the Ld. Counsel for the accused, PW8 admitted it to be correct that he signed the arrest memo and personal search memo at the PS.
13. PW 10 IO Inspector Raj Bala, No. D 1451, ATO South Rohini, deposed on the lines of PW 3 and PW 8 in respect of the investigation conducted in this case. She further deposed that on the basis of the complaint of the complainant, she prepared the Tehrir Ex. PW 10/A and got the case registered. She alongwith Ct. Parveen and the complainant visited the spot and prepared the site plan Ex. PW 10/B at the instance of the complainant. She arrested the accused and conducted his personal search vide arrest memo already Ex. PW3/A and personal search memo Ex. PW 3/B respectively. She further deposed that on 26.09.2014, accused was produced before the concerned court, from where he was Judgment : FIR No. 1054/14 page 7 of 22 SC No. 58899/16 State Vs. Chavi Ram sent to JC. On 01.10.2014, she produced the victim before the Ld. MM for recording of her statement u/s 164 Cr.P.C..
In her crossexamination by the Ld. Counsel for the accused, PW10 admitted it to be correct that the place of incident is a very crowded place and that no public person was joined in the investigation.
MATERIAL WITNESSES
14. The prosecution, to substantiate its case, examined the victim P as PW 1. After conducting preliminary examination of the victim by putting certain questions to her to assess the competency of victim child to give rational answers, on being satisfied, the statement of the victim was recorded, wherein she deposed as under :
"I do not remember the date of incident. On the day of incident, during evening time, I was roaming in Thursday Market along with my sister and mother, a person came and touched my breast. Then I told my mother. My mother chased that man and she was able to caught hold of that person. After that, the matter was reported to the police. I will not be able to identify that person. At this stage, the Ld. APP has pointed out towards the accused, however the witness is able to identify the accused as a culprit (Correctly identified). My statement was also recorded by Court of Magistrate. At this stage, an envelope is opened sealed with the seal of SJ and a statement U/s 164 Cr.P.C. is taken out. The Judgment : FIR No. 1054/14 page 8 of 22 SC No. 58899/16 State Vs. Chavi Ram witness has been shown the statement and she identifies her signatures at point A and the same is Ex. PW1/A. At this stage, Ld. Addl. PP seeks permission of the Court to put some leading questions.
Heard. Allowed.
It is correct that the incident happened on 25.09.2014.."
15. In her crossexamination by the Ld. Counsel for the accused, the victim / PW 1 deposed as under :
"It is correct that the Thursday Market was a crowded place and many public persons were present on the road. It is incorrect to suggest that the accused did not touch me in any inappropriate manner. It is incorrect to suggest that the actual person who committed the offence managed to ran away or that the accused has been falsely implicated in the present case. I have not met any police official today in the Court. "
16. The mother of the victim entered the witness box as PW 2 and deposed as under :
"I have three daughters and victim P is my eldest daughter. She is aged about 10 years. On 25.09.2014, at about 05:30 pm I went to Thursday Market opposite Radio Colony, Burari Road, Mukherjee Nagar, Delhi along with my three daughters including the victim. While we were walking my daughter P told me that a person came and touched her Judgment : FIR No. 1054/14 page 9 of 22 SC No. 58899/16 State Vs. Chavi Ram breast. I asked my daughter as to who has done the wrong act and my daughter pointed out towards the accused (Accused present in the Court today, correctly identified). On her pointing out, the accused tried to escape, however, some public persons caught hold of the accused. The police was called by somebody at the spot. I made a written complaint to the police which is bearing my signatures at point A and the same is Ex. PW2/A. The accused who was apprehended by the public persons was handed over to the police. Later on my statement was recorded by the Ld. MM which is bearing my signatures at point A and the same is Ex. PW2/B."
17. In her crossexamination by the Ld. Counsel for the accused, the mother of the victim / PW 2 deposed as under :
"It is correct that the place of occurrence was thickly populated place and was crowded due to Thursday Market. It is correct that there was heavy movement of public. It is incorrect to suggest that the actual person who committed the offence managed to ran away or that the accused has been falsely implicated in the present case. Vol. When my daughter pointed out towards the accused, the accused started running or that when I started chasing him, he started running faster. After 10 minutes of the incident the police arrived at the spot. The police officials were making inquiry from the public persons who Judgment : FIR No. 1054/14 page 10 of 22 SC No. 58899/16 State Vs. Chavi Ram overpowered the accused. I do not know whether the police officials recorded statement of any public person. My statement was recorded in the Police Station. The complaint Ex. PW2/A is in my handwriting. It is incorrect to suggest that the accused has bee falsely implicated at the instance of the police officials or that for this reason no public person has been made as witness."
18. After close of PE, the statement of the accused was recorded u/s 313 CrPC wherein he denied the prosecution case in its entirety, and pleaded his innocence. He further stated that he had not assaulted the victim and has been falsely implicated in this case due to confusion, as he had also gone to the market to buy vegetables, and it was very crowded place. He was buying vegetables, when suddenly police official came and apprehended him.
19. I have heard Ms. Neeta Gupta, Ld. Addl. PP for the State on 07.12.2017, Sh. Virender Karta, Ld. Substitute Addl. PP for the State on 06.01.2018, and Sh. Lalit Pahwa, Ld. Counsel for the accused. Ld. Addl. P.P. for the State has contended that the accused has been arrested at the spot on the pointing out of the victim child herself, after he tried to run away and escape, but was chased by the victim's mother and thereafter was apprehended by the public persons and was later taken into custody by the police, who reached at the spot. It is also contended that the victim as well as her mother have supported the prosecution case on all material particulars and have identified the accused to be the culprit and Judgment : FIR No. 1054/14 page 11 of 22 SC No. 58899/16 State Vs. Chavi Ram the accused has not raised any plausible defence. It is prayed that the accused be convicted for the offences, he has been charged with.
20. Per Contra, Sh. Lalit Pahwa, Ld. Counsel for the accused has contended that the accused has been falsely implicated in this case. It is submitted by the Ld. Counsel for the accused that the accused did not have any previous acquaintance either with the victim or her family and that the occurrence took place in a crowded weekly Bazar, and that he was apprehended under misconception. It is contended that no public person has been joined in the investigation deliberately by the police, knowing that false implication of accused would not be substantiated by the public persons, if joined in the investigation. Acquittal of accused is prayed for.
21. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law.
Age of the victim
22. To ascertain the age of the victim, the prosecution has examined PW 4 Sh. Rajnish Grover, Office Assistant, Rosary Senior Secondary School, Kingsway Camp, Delhi, who brought on record the school record of the victim comprising of admission & withdrawal register maintained in the school, as per which, victim / student P was got admitted in the said school on 23.03.2009, and her date of birth is 18.10.2004, and the Judgment : FIR No. 1054/14 page 12 of 22 SC No. 58899/16 State Vs. Chavi Ram certified copy of relevant entry was proved on record as Ex. PW4/A. On the basis of the record, a certificate was also issued by the Accountant of the said school on behalf of the Principal, which is Ex. PW 4/B to the effect that the date of birth of the child / victim P was 18.10.2004. Apart from that, the certified copy of the admission form, which was filled by the parents of the student / victim and the copy of the birth certificate submitted by the parents of the victim at the time of her admission, were also brought on record as Ex. PW4/D and Ex. PW 4/E, which also show the date of birth of the victim as 18.10.2004. The said date of birth of the victim has not been disputed by the accused, as none of the assertions made by the said witness were controverted.
23. Further more, the victim herself in her testimony as PW 1 has stated her date of birth to be 18.10.2014 and in her testimony as PW 2, the mother of the victim has deposed that the age of her daughter / victim P is about 10 years. No suggestion controverting the said depositions of victim (PW1)and her mother (PW2), has been put forth to the said witnesses. The date of birth of the victim is, therefore, accepted to be 18.10.2004, and as such on the date of alleged incident i.e. 25.09.2014, she was aged about 10 years, and hence she is a "Child" within the meaning given under section 2 (d) of the POCSO Act.
OFFENCE U/S 354 IPC & U/s 8 POCSO Act.
24. The accused has been charged for the offence punishable u/s 354 IPC and u/s 8 POCSO Act (for the offence as defined in section 7 Judgment : FIR No. 1054/14 page 13 of 22 SC No. 58899/16 State Vs. Chavi Ram POCSO Act), and for ready reference, both the said sections are being reproduced herein below :
Section 354. Assault or Criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
Section 7 POCSO Act. Sexual Assault. Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent, which involves physical contact without penetration is said to commit sexual assault.
25. The offence of sexual assault gets its aggravated form and falls within the ambit of 'Aggravated Sexual Assault', if the said offence is committed against a child below 12 years of age, as defined in section 9
(m) POCSO Act.
Material witnesses
26. The prosecution examined two material witnesses i.e. victim as Judgment : FIR No. 1054/14 page 14 of 22 SC No. 58899/16 State Vs. Chavi Ram PW 1 and her mother as PW 2. Both PW 1 and PW 2 have categorically deposed about the inculpatory role of the accused in sexually assaulting the victim child by touching on her breast, with an intention to outrage her modesty. PW 2, mother of the victim, proved her written complaint Ex. PW2/A made by her to the police. The said complaint, if scrutinized, reveals that the complainant has complained that on date of occurrence at about 5.30 PM, when she was buying things in the market, Chavi Ram came and molested her daughter P, aged about 9 years. The substance of the complaint against the accused, has been condensed by the complainant, in one word i.e. 'molested'. The word 'molestation' has not been described in the IPC and POCSO Act. However, as per Medical Wikipedia, the term molestation includes "the crime of sexual acts with children up to the age of 18, including touching of private parts, exposure of genitalia, taking of pornographic picture, rape, inducement of sexual acts with the molester or with other children and variations of these acts by pedophiles. Molestation also applies to incest by a relative with a minor family member, and any unwanted sexual acts with adults short of rape.
27. In the statement of the victim, recorded u/s 161 CrPC by the IO, the victim has elucidated upon the said word, by stating that the offender had touched on her breast. In her statement u/s 164 CrPC, before the Ld. MM also, the victim has stated that in the weekly bazar, where she has gone with her mother, the offender touched her on her body, thus disturbing her and that the said offender started running away, when she was telling the incident to her mother, but the offender was caught hold by the public in the market and was thereafter handed over to the police.
Judgment : FIR No. 1054/14 page 15 of 22 SC No. 58899/16 State Vs. Chavi Ram
In the court, the victim child emphatically deposed that while she was in the weekly market, the offender came and touched her breast, and thereafter when she was telling her mother, the offender started running but was chased by her mother and was caught by the public persons. Mother of the victim has categorically deposed about her daughter having been touched by the offender on her breast and when her daughter was telling her about the said wrong act and was pointing towards the accused, he tried to escape but was caught by the public persons. The accused has been identified by the mother the victim emphatically and convincingly. The victim, though initially stated that she would not be able to identify the offender, but when the Ld. Addl. P.P. for the State pointed out towards the accused, she identified the accused to be the culprit.
28. The testimony of both the victim as well as her mother is very convincing, with not even a single dent in it. It is the admitted case of the accused that he did not have any previous acquaintance with the victim or her mother, and this is the stand of both the material witnesses in this case. Obviously for this reason, the victim child did not know the name of the accused and was apprehensive whether she would be able to identify the accused or not, and therefore stated so, in the court, during the course of her testimony. Further, the accused has been apprehended and arrested from the spot itself and it is not a case of mistaken identity, that would place the identification of the accused by the victim, that too after prompting from the Ld. Addl. P.P. for the State on shaky grounds.
29. The accused has raised a defence, during the course of cross Judgment : FIR No. 1054/14 page 16 of 22 SC No. 58899/16 State Vs. Chavi Ram examination of the mother of the victim i.e. PW 2 that the actual offender managed to escape and that he was falsely implicated in this case, a suggestion which was denied vehemently by PW 2. Similar was the suggestion, which was given to the victim, but she also denied that the actual offender had run away or that the accused had been falsely implicated. In his statement u/s 313 CrPC, the stand of the accused was that he has been falsely implicated in this case, due to some confusion and that he did not assault the victim but was buying vegetables in the market, when he was apprehended by the police personnels. From the said suggestions and his own defence, which has been raised by the accused, he has not disputed his presence in the weekly bazar on the date and time alleged by the victim and his proximity to the victim or atleast the place where the mother of the victim was doing some purchasing, is also not disputed. In the testimony of PW 1 and PW 2, it is the consistent assertion of the mother and daughter that the moment the accused touched the victim on her breast, she started narrating the incident to her mother and pointed out towards the accused, and on seeing that he was being pointed out by the child, the accused started running in order to escape. Not a single suggestion has been given by the accused during the crossexamination of either PW 1 or PW 2 that he did not run from the spot on being pointed out by the victim. Even in his statement u/s 313 Cr.P.C., when this factum was put to him, he merely stated that 'it is incorrect' but did not specifically deny that he did not start running away from the spot on being pointed out by the victim, to her mother.
30. The accused did not have any acquaintance with the victim and Judgment : FIR No. 1054/14 page 17 of 22 SC No. 58899/16 State Vs. Chavi Ram her family, and therefore no motive for a false implication of the accused at their hands, can be attributed. This being the case, and if the accused was innocent and had not touched the victim on her breast inappropriately with sexual intent, in order to outrage her modesty and to disturb her, what was the reason for him to start running. It is only a guilty man and the guilt, which is predominant over a person, which brings about a reflex action to flee from the spot, in order to escape the repercussions. This appears to be the case in the instant matter, where taking the advantage of the Bazar being a crowded one, such an abominable act came to be done intentionally, with a sexual intent, by the accused. The accused, after sexually assaulting the victim child, started running away, was chased by the mother of the accused and was caught by the public persons, and was thereafter arrested at the spot itself.
31. Accused has given a suggestion to PW 1 and PW 2 that actual offender managed to run away from the spot, thereby admitting that such an assault did take place and in that event, had there been someone else, who had done the wrong, some other person would also have been running in the market, but this is obviously not the case and it was only the accused who started running in order to escape the repercussions. Therefore, the material witnesses come across to be absolutely trustworthy witnesses, who have supported the prosecution case on all material particulars.
Witnesses of investigation
32. It is clear that the accused was apprehended in the market place, at the spot of occurrence itself, having been chased and caught by the Judgment : FIR No. 1054/14 page 18 of 22 SC No. 58899/16 State Vs. Chavi Ram public at large. From the market place, the complainant alongwith the victim and accused were brought to the police station by the police, where a written complaint was given by the mother of the victim, on the basis of which, the case FIR was registered and further investigation was carried out.
33. Ld. Counsel for the accused has raised a contention that no public person was joined in the investigation deliberately by the IO. Such a suggestion was also given on behalf of the accused during the cross examination of IO / PW 10, which was admitted by the IO to be correct that no public person was joined in the investigation and that no notice was also served upon the public persons, who refused to join the investigation. From the answer of the suggestion itself, an explanation came to the fore that though the public persons were asked to join the investigation but they all refused. It is to be kept in mind that public at large, is always reluctant to be a part of the investigation of any criminal offence, shying away from getting entangled in criminal cases. However, the victim joined by her mother are two witnesses, who are extraneous to the Investigating Agency and there is no reason to disbelieve or doubt their testimony, especially when, admittedly, there was no previous acquaintance between the accused and the said material witnesses, totally erasing the element of any untoward motive of false implication of the accused. Material witnesses having deposed clearly, cogently and consistently about the occurrence and their testimony being not shattered on any ground, whatsoever, by the accused, the nonjoining of the public witnesses in the investigation of the case, becomes inconsequential.
Judgment : FIR No. 1054/14 page 19 of 22
SC No. 58899/16 State Vs. Chavi Ram
Defence of the Accused
34. The accused has raised the defence that he has been falsely implicated in this case, though the real offender managed to escape. However, he was unable to explain as to why he did not tell this fact to the IO and why he started running from the spot, when the victim child was telling her mother, about the wrong act having been committed upon her. Further more, as already discussed above, there was no other person, except the accused, who started running on being pointed out by the victim child.
35. Touching on the breast or any other private part of a girl / woman by anyone with sexual intent, infringes the privacy of the victim and causes her to be distressed. Such infringement or sexual assault with an intention to outrage the modesty of a girl / woman, is contemplated as an offence punishable u/s 354 IPC, and also u/s 10 POCSO Act. It is not the defence of the accused that the touch was accidental, but he only chose to deny that he ever touched the victim, which is not believable. From the testimony of the victim, which was corroborated on all material particulars by PW 2, it is clear that the accused with sexual intent, taking advantage of a crowded market place, willfully touched the victim child and thereafter tried to run away, and the mensria behind this act, is writ large that the accused did the said act intentionally with sexual intent, to derive back handed sexual pleasure.
36. In view of my discussions above, it emerges that ;
(i) on the day of incident i.e. 15.09.2014, the victim was about 10
Judgment : FIR No. 1054/14 page 20 of 22
SC No. 58899/16 State Vs. Chavi Ram
years of age;
(ii) on the date of incident the accused was present in the same
market, where the victim alongwith her mother was also present,
(iii) Testimony of the victim (PW1) and her mother (PW2) is reliable and trustworthy,
(iv) The witnesses of investigation have corroborated the chain of events and complaint to the police is a prompt one.
(v) that the accused, with sexual intent, touched the victim on her breast, in order to outrage her modesty and sexually assault her.
(vi) that accused started to flee when he saw the victim pointing out to him, to her mother.
(vii) that accused was chased and caught by victim's mother with the help of public persons.
(viii) Accused failed to establish his defence.
37. Conclusion : In the light of my discussion above, the testimony of prosecution witnesses are found to be trustworthy and reliable, and the prosecution has succeeded in proving that the accused had committed Aggravated Sexual Assault upon the victim, aged around 10 years (below the age of 12 years) on the date of incident i.e. 25.09.2014, by touching on her breast with sexual intent and therefore the accused is liable to be convicted for an offence of aggravated sexual assault as described u/s 9 (m) of the POCSO Act, and punishable U/s 10 of POCSO Act and for the offence punishable u/s 354 IPC.
38. Accordingly, the accused is convicted for the offences punishable Judgment : FIR No. 1054/14 page 21 of 22 SC No. 58899/16 State Vs. Chavi Ram U/s 10 of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and u/s 354 IPC.
39. Matter be listed for arguments on the quantum of sentence on 08.01.2018.
Announced in the open court
today i.e. on 06.01.2018 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 06.01.2018
Judgment : FIR No. 1054/14 page 22 of 22