Delhi District Court
State vs . Naresh on 24 April, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 93/13)
Unique ID case No. 02404R0179302013
State Vs. Naresh
FIR No. : 209/13
U/s : 354A/354D/365/511 IPC
& 12 POCSO Act
P.S. : Vijay Vihar
State Vs. Naresh
s/o Sh. Mahender Singh
r/o E134, Vijay Vihar,
PhaseII, Delhi.
Date of institution of case 15.07.2012
Date on which, judgment has been reserved 19.04.2014
Date of pronouncement of judgment - 21.04.2014
JUDGMENT:
1. Briefly stated that case of the prosecution is that on 21.04.2013, victim K, aged about 8 years went to a shop near her house to bring some eatables for breakfast. When, she was returning back to her house, the accused Naresh, caught hold of her hand and forced her to see obscene film on his mobile phone. He also removed his SC No. 93/13 : State Vs. Naresh : Page Nos. 1 of 25 2 pant and started dragging her with him. The victim K raised alarm, hearing which, two passersby came there and rescued her. The victim K rushed back to her house and narrated about the incident to her mother Smt. Kavita, who asked her as to who the said person was and then, it transpired that accused had followed her to her house. The mother of victim K rushed out of the house and saw accused in a state of undressed. She apprehended the accused with the help of Suraj, their neighbour. Sh. Ashok, the father of victim K, also rushed out hearing noises and he snatched the mobile phone from the hand of the accused. Sh. Ashok also informed the police. The information given by Sh. Ashok was reduced to writing vide DD no. 25B i.e. Ex. PW11/A, which was handed over to PW11 SI Gajender, who proceeded to the spot along with a constable Ashok. In the meantime, accused managed to run away from the spot. He, however, returned back to take his mobile phone from Sh. Ashok. The accused was apprehended by SI Gajender and Ct. Ashok, who had reached the spot by then.
The PW11, SI Gajender recorded statement of Sh. Ashok vide Ex. PW6/A. He also apprehended the accused and seized his mobile phone and thereafter, sent him for medical examination in custody of Ct. Ashok. The PW11 SI Gajender got the victim counseled through NGO, prepared rukka on the statement of the complainant Sh. Ashok and got the FIR of the case registered through Ct. Ashok. After receiving copy of FIR, the accused was arrested. During the course of investigations, IO collected the age proof of victim K, and also got her statement recorded u/s 164 Cr.P.C. After completing the investigations, he prepared the charge sheet and filed the same in the court.
2. Upon committal of this case to the court of Sessions, charges for the offence under Sections 363 read with 511 IPC, u/s 341/354/354A and 11 (i) and (iii) POCSO Act SC No. 93/13 : State Vs. Naresh : Page Nos. 2 of 25 3 were framed against the accused, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, the prosecution has examined 11 witnesses. Victim child and other public witnesses :
4. The PW1, is the victim K, aged about 8 years. Despite her tender age, victim K deposed with clarity about the manner in which, accused waylaid her, showed her obscene film on his mobile phone and when, she was saved from his clutches by passersby and was going to her house, she was again followed by the accused, in a state of undress to her house. She also stated that she informed about the incident to her mother and that the accused was apprehended outside their house by her mother and other persons.
5. The PW5, Smt. Kavita is the mother of the victim. She deposed that on 21.04.2013, a Sunday, she had asked her daughter K, aged about 8 years, at about 9.15/9.30 am, to bring bread and butter for breakfast from a nearby shop. She further deposed that after about 5/10 minutes, K returned back home in a perplexed state and started weeping bitterly while holding her (PW5) tightly. When, PW5 inquired from K, she told her while weeping that one person had forcibly caught hold of her hand and dragged her to one side and showed her obscene movies (GandiGandi film) on his mobile phone and that he also opened zip of his pant and removed it. On hearing this, PW5 got scared and came out of the house to see as to who the said person was and she saw the accused, who was duly identified by PW5 in the court, standing near her SC No. 93/13 : State Vs. Naresh : Page Nos. 3 of 25 4 house, in a state of undressed i.e. with his pant and underwear pulled down. The PW5 further deposed that her daughter K had also followed her outside her house at that time and she got scared at the sight of the accused and told PW5 that he was the same person, who had dragged her by her hand and showed her obscene movie on his mobile phone and thereafter, she (victim K) rushed back inside the house and also narrated about the incident to her father. The PW5 then deposed that as she was looking at the accused, he came towards her, on which, PW5 raised alarm and started giving him beatings. One of their neighbours Suraj also came to the spot and asked accused to go away from there, but the accused kept standing in the same position. The husband of PW5 also came out of the house, on which accused started pulling him and Suraj. The PW5 deposed that her husband snatched the mobile phone of the accused and also informed the police at 100 number, but in the meantime, the accused ran away from there. After some time, the accused came back to take his mobile phone from the husband of PW5 and managed to snatch it from him, but in the meantime, police also reached the spot and apprehended the accused.
During her crossexamination, the PW5 was asked to give details of her other family members and she stated that she had two daughters, including the prosecutrix, and one son and that her family consisted of her children, husband and motherinlaw and that on the second floor of the house, her brotherinlaw was residing with his family and that all the family members were present in the house, when prosecutrix came back to it after the incident. She also stated that she was the first one to be informed about the incident by K and thereafter, K informed her father. The PW5 could not tell as to how many papers were signed by her at the spot and stated that since, K was in a state of shock, she was busy looking after her. The PW5 denied that SC No. 93/13 : State Vs. Naresh : Page Nos. 4 of 25 5 accused had been falsely implicated in the case due to previous animosity.
6. The PW6 Sh. Ashok is the father of the victim K and he deposed on the lines of PW5 regarding the incident. In addition to what had been stated by PW5, Sh. Ashok stated that K also told him that accused had teased her on earlier occasions as well, but she did not tell about it as she was scared and that while K was telling about the incident to him, he heard the noise coming from outside his house and saw that his wife and their neighbour Suraj had caught hold of accused, who was wearing a Tshirt, but his pant and underwear had been pulled down by him at that time. The PW6 then deposed about the manner, in which, he had snatched mobile phone from accused and informed the police and about accused running away from the spot, only to return back after some time to take back his mobile phone. He also stated that accused had managed to snatch his mobile phone from him (PW6), but was apprehended by the police, which reached the spot. He proved the seizure memo of the mobile phone of the accused as Ex. PW6/A, the complaint was proved as Ex. PW6/B and the arrest memo of the accused was proved as Ex. PW6/C. The PW6 identified the accused as well as his mobile phone i.e. Ex. P1.
During his crossexamination, the PW6 stated that he had not filed any complaint against the accused on earlier occasion(s), when the accused had teased his daughter. He volunteered to state that he did not know as to who was the person, who had been teasing his daughter earlier than the date of the complaint. The PW6 denied that mobile Ex. P1 did not belong to the accused or that the same had been planted upon him. He also denied that accused had been falsely implicated in the case due to previous animosity.
SC No. 93/13 : State Vs. Naresh : Page Nos. 5 of 25 6
7. The PW7 Suraj is the neighbour of victim K and her family and had helped in apprehending the accused at the spot. He deposed that on 21.04.2013 at about 9.30 am, he heard noise outside his house and when he came out of his house, he saw public persons beating accused Naresh. He further deposed that he went inside his house and when he came back again, he saw that mobile phone of the accused had been taken away by Sh. Ashok, father of victim K, and that at that time pant of accused had been pulled down and that public was asking Sh. Ashok to leave the accused. The PW7 further deposed that in the meantime, accused ran away from the spot and that Sh. Ashok gave a call to the police and that after some time, accused again came to the spot and snatched the mobile phone from Sh. Ashok, but was apprehended by the police, which reached the spot and also recovered and took possession of the mobile phone belonging to the accused.
During his crossexamination, PW7 denied that he was not present at the spot or that due to this reason, his signatures did not appear on the seizure memo of the mobile phone i.e. Ex. PW6/A. Witnesses qua age of the prosecutrix/victim child
8. The PW3, Ms. Chanchal Malhotra, produced the original record from school wherein the prosecutrix was admitted in KG class on the basis of admission form and MCD Birth Certificate submitted by the mother of the child. As per record produced by PW3 the date of birth of prosecutrix K was 31.07.2005. The PW3 proved the photocopy of the admission form as Ex.PW3/A, copy of birth certificate as Ex. PW3/B, copy of vaccination card as Ex. PW3/C, photocopy of the relevant entry of admission register as SC No. 93/13 : State Vs. Naresh : Page Nos. 6 of 25 7 Ex.PW3/D and original certificate issued by the School as Ex. PW3/E. Formal witnesses
9. The PW8 W/Ct. Anita, was working as DD writter at PS Vijay Vihar at the relevant time and she deposed that on 21.04.2013, at about 10.08 am, she received an information from wireless operator of the police station that "at House no. 191, Vijay ViharII, Som Bazar Road, one person, who used to show indecent films on mobile phone to the daughter of caller, kept detained" and that she reduced the said information into writing vide DD no. 25B. She proved copy of said DD as Ex. PW8/A and further deposed that she informed PW11 SI Gajender through telephone about the same.
10. The PW10, HC Dharam Singh, was working as Duty Officer at PS Vijay Vihar at the relevant time. He deposed about registration of FIR, of the present case and proved the computer generated copy of FIR as Ex.PW10/A, endorsement made by him on rukka as Ex.PW10/B and copy of DD no. 14A as Ex. PW10/C.
11. The PW2, Sh. Sumedh Kumar Sethi, ld. M.M, Rohini Courts, Delhi, had recorded the statement of prosecutrix u/s.164 Cr.P.C. He proved the said statement as Ex.PW1/A ; the application for recording of statement u/s.164 Cr.P.C and application for supply of copy of said statement, filed by IO, as Ex. PW2/A and Ex. PW2/C respectively. The certificate given by PW2 on the said statement was proved as Ex.PW2/B.
12. The PW9, Ms. Nazma Khan, an NGO official, had counseled the prosecutrix SC No. 93/13 : State Vs. Naresh : Page Nos. 7 of 25 8 as well as her parents on 21.04.2013 and deposed about the same. She further stated that in her presence, statement of the victim child was recorded.
13. The PW4, Ms. Kamla Lekhwani, Chair Person of CWC, had counseled the prosecutrix as well as her parents on 22.04.2013 and handed over prosecutrix in custody of her parents and deposed about the same. She proved her report as Ex. PW4/A in this regard.
Investigating Officers & other police witnesses to investigation
14. The PW11, SI Gajender Singh is the investigating officer of the present case. He deposed that on 21.04.2013, at about 10.08 AM, DD No.25B i.e. Ex. PW11/A, regarding showing of obscene movies by one person on his mobile phone to the daughter of caller, was entrusted to him and that on receipt of the said DD, he along with Ct. Ashok left for the spot i.e. I91, Vijay Vihar, Som Bazar Road, where many public persons were found gathered. He further submitted that at the spot, PW6 Ashok Kumar met him and got his statement Ex. PW6/A recorded and that one persons having injuries, with his pant removed, was produced before him and that on formal search of the accused, one mobile phone of make 'Wings' of white colour was recovered from the pocket of his shirt, which was opened and was found containing obscene films. The PW11 further deposed about getting the accused medically examined through Ct. Ashok at BSA Hospital and about counseling of the prosecutrix and her parents. He further deposed about preparation of rukka Ex. PW11/B on the basis of statement of complainant and getting the case FIR of the present case SC No. 93/13 : State Vs. Naresh : Page Nos. 8 of 25 9 registered and about recording of the statements of the witnesses He further deposed about seizing and sealing of the mobile phone recovered from the possession of accused, vide seizure memo Ex.PW6/A and about arrest of the accused vide arrest memo Ex. PW6/C. The PW11 further deposed about recording of the statement Ex. PW11/C of prosecutrix K, aged about 8 years, in the presence of NGO Nazma Khan and about collection of the age proof Ex. PW3/E of prosecutrix K from her school. The witness further deposed about getting the statement of prosecutrix K Ex. PW2/B recorded u/s.164 Cr.P.C and proved the applications moved by him for recording of statement of prosecutrix as Ex. PW2/A and for supply supply copy of her statement as Ex. PW2/C respectively. The witness identified the accused as well as the mobile phone Ex. P1 recovered from his possession.
During crossexamination, PW11 termed it correct that he had not sent the mobile phone for the scientific verification to ascertain, if it contained any obscene material or not.
15. After closing of prosecution evidence, statement of accused Naresh was recorded u/s 313 Cr.P.C, wherein he denied the allegations of the prosecution and stated that he is innocent and had been falsely implicated in this case at the instance of the parents of the prosecutrix. He further stated that nothing was recovered from his possession and that he has nothing to do with the offence of the present case. The accused declined to lead evidence in his defence.
16. Arguments have been addressed by Sh. Subham Asri, learned Amicus Curie for the accused as well as learned Additional PP for the State. SC No. 93/13 : State Vs. Naresh : Page Nos. 9 of 25 10
17. Learned Additional PP has contended that the prosecutrix and other material witness i.e. PW5 Smt. Kavita, PW6 Sh. Ashok and PW7 Suraj have fully supported the case of the prosecution and hence prosecution has succeeded in proving its case against the accused, beyond reasonable doubt. It is stated that in view of the testimony of the prosecutrix, no other evidence is required and it is accordingly prayed that accused be convicted for the charged offence.
18. On the other hand, learned Amicus Curie for accused has contended that accused is innocent and has nothing to do with offence committed upon the victim child in the present case and that he has falsely been implicated in the present case. It is also stated that there is delay in registration of the FIR and that prosecutrix was tutored by her parents, when she appeared to depose in the court and that she gave her statement as PW1 under the influence of her parents. He further stated that the mobile phone, on which, the accused is alleged to have shown the indecent films to the child victim, was not sent to the FSL and as such, it can not be concluded that there were any indecent films in the said mobile phone. He further submitted that there are several contradictions in the testimonies of the witnesses, which are fatal to the case of the prosecution and thus prayed that accused be acquitted of all the charges in the present case.
19. I have heard the arguments put forward by ld. Addl. PP and learned Amicus Curie for the accused 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.
SC No. 93/13 : State Vs. Naresh : Page Nos. 10 of 25 11
20. In the present case, the incident is to have taken place at about 21.04.2013 at about 9.30 am. The first information regarding the incident was given at the concerned PS by call made by PW6 Sh. Ashok, father of victim K and was reduced to writing vide Ex. PW11/A i.e. DD no. 25B dated 21.04.2013 at 10.08 am. Thereafter, the police proceeded to the spot, recorded the statement of the father of the victim K, vide Ex. PW6/B and the case was registered at 12.45 pm, on basis of complaint Ex. PW6/B, which was dispatched by the IO from the spot at 12.30 pm. Thus, there is no delay in registration of the FIR.
21. The IO did not record the statement of victim u/s 161 Cr.P.C. However, the victim was produced before ld. M.M on 22.04.2013 for her statement u/s 164 Cr.P.C i.e. Ex. PW1/A, wherein she deposed as under : "Yesterday, in the morning had gone to the market for buying paneer. When I was coming back home, one man caught hold of me. He was wearing a Tshirt and Pyjama. He started showing me disgusting pictures on his phone. I started shouting. Hearing me, two uncles came and started scolding the man. When he let go of my hand, I ran home. The man followed me to my home. I called my mother and told her about the man. My parents and family members came out and saw the man standing naked near my house. My parents beat the man up and snatched his phone. The man ran away. My father called 100 and police came. I went home with my mother. Later I was called to the police station and I came to know that the man has been caught. I was very SC No. 93/13 : State Vs. Naresh : Page Nos. 11 of 25 12 scared at the time of incident. Today, I have come here with my mother."
22. At the time of filing of charge sheet, the IO again omitted to mention the name of the victim child K in the list of witnesses filed along with the charge sheet. However, a request in this regard was made by ld. Addl. PP on 26.08.2013 and considering that the examination of the victim child was necessary for just adjudication of the case and even otherwise, her statement had already been recorded u/s 164 Cr.P.C, by ld. MM and the victim child was apparently competent to narrate the incident, in which, she had suffered trauma, due to the acts of the accused, the victim K was summoned to depose as a witness before the court vide order dated 26.08.2013 and she was examined as PW1 on 08.11.2013.
23. Keeping the tender age of the victim child in the mind, her statement was recorded in camera proceedings in the chamber annexed to the court room, in presence of her mother Smt. Kavita. 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 and in the relevant portion of her statement, the victim deposed as under : Q. Kya hua tha ?
Ans. Hum Nashta lene ja rahe the. Papa ne mangaya tha. Woh
admi hamara hath pakad kar khich kar le ja raha tha.
SC No. 93/13 : State Vs. Naresh : Page Nos. 12 of 25
13
Q. Phir kya hua ?
Ans. Woh gandi gandi picture dikha raha tha.
Q. Kis chij par ?
Ans. Phone par.
Q. Apka gandi picture se kya matalab hai ?
Ans. Kapde nahi pehan rakhe the usme.
Q. Phir kya hua ?
Ans. Maine shor machaya, do uncle aaye.
Q. Phir kya hua ?
Ans. Unn uncle ne danta, mein hath chudakar ghar bhag aayi.
Q. Phir kya hua ?
Ans. Maine mummy ko bataya. Woh mera picha karte karte
ghar tak aaya.
Q. Phir kya hua ?
Ans. Sabne usse pakad kar bahut mara. Papa ne uska phone
cheen liya. Phir papa ne mujhko andar kamare me bhej diya.
Q. Kya aap uss admi ko pechan sakte ho ?
Ans. Ha.
The PW1 also identified the accused from the glass pane of the window in the chamber. The witness also identified her signatures on the statement u/s 164 Cr.P.C as Ex.PW1/A.
24. During crossexamination, the PW1 deposed that : SC No. 93/13 : State Vs. Naresh : Page Nos. 13 of 25 14 Q. Kya aap bata sakte ho ki accused ne uss samay kya pehna hua tha ?
Ans. Kale rang ki pant aur safed Tshirt.
Q. Kya accused ne apko danta yah mara tha ?
Ans. Nahi.
25. From the above detailed statement of victim K and her statement u/s 164 Cr.P.C Ex. PW2/B, it is seen that victim child K is consistent in her version that accused tried to kidnapped her, wrongfully retrained her from proceedings to her house and sexually harassed her by showing her indecent films on his phone and further exhibited part of his body i.e. his private parts and genital area with intention that it be seen by the child. The testimony of PW1 is duly corroborated by testimony of her mother, who has also deposed that victim K had told her (PW5) that accused forcibly caught hold of her hand and dragged her to one side and thereafter, he had shown her obscene movies (gandi gandi film) on his mobile phone. The PW1 further told her mother (PW5) that the accused had also opened the zip of his pant and removed his pant also. The PW5 also stated that on hearing this, when she came out of her house, she found accused standing near her house and at that time, the accused was not wearing his pant and that his pant as well as underwear were pulled down his legs. The PW5 specifically stated that due to this incident, her daughter remained under trauma for more than one month and that she (PW1) hesitated in going out alone from the house since the time of the incident. The testimony of PW1 victim child K and PW5 SC No. 93/13 : State Vs. Naresh : Page Nos. 14 of 25 15 Smt. Kavita is further corroborated by testimony of PW6, Sh. Ashok, father of the victim and PW7 Sh. Suraj, a neighbour and an eye witness, both of whom had seen accused, who had followed victim K to her house, exposing himself indecently publically. Rather, it appears that the accused refused to go away from that place and went away briefly, when he saw PW6 Ashok making call to police, but returned back to take his mobile phone from PW6 Ashok and in fact, he had managed to snatch his mobile phone back and would have escaped from the spot, but for the timely arrival of PW11 SI Gajender and Ct. Ashok at the spot, who apprehended him and also recovered mobile phone from his possession.
26. Learned Amicus Curie has contended that the mobile phone alleged to have been seized from the possession of the accused, was not sent to the FSL for examination and as such, it cannot be concluded that there was any obscene/incident film in the said mobile phone. He further submitted that benefit in this regard be given to the accused and he be acquitted. However, the cogent and reliable testimony of victim K cannot be discarded only on the ground that the seized phone was not sent to the FSL. The victim child K during her deposition as PW1 specifically stated that accused had shown her obscene films (woh gandi gandi pictures dikha raha tha) and that persons in said pictures were naked (kapde nahi pehan rakhe the usme). Further, the PW11 SI Gajender Singh, who arrested the accused and seized the said phone, also stated that on formal search of the accused, one mobile phone make "Wings" of white colour was colour was recovered from the pocket of his shirt and that the said phone was found containing obscene film. Further, nonsending the said mobile phone to FSL was a lacuna on the part of investigating officer and no benefit in this regard can be given to SC No. 93/13 : State Vs. Naresh : Page Nos. 15 of 25 16 the accused. in this regard, I am fortified by a judgment titled as Karnel Singh Vs. State of MP (1995) 5 SCC 518, wherein conviction of accused U/S 376 IPC was challenged before Hon'ble Supreme Court and one of the grounds of challenge was defective investigations. It was held in the said 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.
27. Learned Amicus Curie further pointed out some contradictions in the testimony of the witnesses i.e. PW1, PW5, PW6 and PW7. The contradictions pointed out by learned Amicus Curie are only of trivial nature. Merely because there are omissions, contradictions or discrepancies in some or all the prosecution witnesses, it does not mean that the entire evidence of prosecution should be discarded. It is only after exercising care and caution and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvement, the court comes to the conclusion that what can be accepted implicates the accused, it will convict them. The dictum "falsus in uno falsus in omnibus" is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate, exaggeration, embroideries or embellishment. In the case of State of UP Vs. Krishna Master & Ors. 2010 Crl. LJ 3889, Hon'ble Supreme Court held that minor discrepancies not touching the core of the case cannot be ground for rejection of evidence in entirety. The Hon'ble Supreme Court further held that deficiencies, drawbacks and infirmities in evidence need to be evaluated to find out whether they go SC No. 93/13 : State Vs. Naresh : Page Nos. 16 of 25 17 against general tenor of evidence. It was further held that the discrepancies are normal due to errors of observation, mental disposition, shock and horror at the time of incident and unless they go to the roof of the matter, such discrepancies do not make evidence unreliable.
Even otherwise as already observed hereinabove, the victim has clearly identified the accused, when she appeared to depose before the court, and gave detailed account of acts committed by him on the day of the incident. On the other hand, accused has not given any plausible explanation for his alleged false implication in the present case. Only defence taken by him is that he has been falsely implicated in the present case due to previous animosity. This bald defence has not been elaborated upon by the accused by giving any reason for the alleged inimical relations between him and the parents of the victim child. It is noteworthy that the factum of said inimical relations and reason thereof were within special knowledge of the accused and hence, it was his responsibility to prove that there existed such reasons, which motivated the parents of victim child K, to tutor victim K and have a false case registered against the accused. In a case of Rajkumar vs. State of M.P, 2014 III AD (S.C.) 257, Hon'ble Supreme Court relied upon the earlier judgments in (i) Prithipal Singh & Ors. vs. State of Punjab & Anr., (2012), 1 SCC 10 and (ii) State of W.B. vs. Mir Mohammad Omar, AIR 2000 SC 2988, and held that : ".... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused, beyond reasonable doubt. But the SC No. 93/13 : State Vs. Naresh : Page Nos. 17 of 25 18 section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
In the present case also, accused has failed to discharge the burden of proving inimical relations between him and the parents of the accused.
28. The nutshell of foregoing discussion is that I am of the considered opinion that in view of the testimony of PW1, PW5, PW6 and PW7, the prosecution has succeeded in proving that accused attempted to kidnap the victim child K by dragging her by holding her hand, wrongfully restrained her from proceedings to her house and sexually harassed her by showing her indecent films on his phone and further exhibited part of his body i.e. his private parts and genital area with intention that it be seen by the child and as such, I hold guilty accused Naresh for the offences punishable u/s 363 r/w 511 IPC and 341 IPC and 11 (i) and (iii) of POCSO Act punishable u/s 12 of POCSO Act 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 21.04.2014) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi SC No. 93/13 : State Vs. Naresh : Page Nos. 18 of 25 19 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 93/13) Unique ID case No. 02404R0179302013 State Vs. Naresh FIR No. : 209/13 U/s : 354A/354D/365/511 IPC & 12 POCSO Act P.S. : Vijay Vihar State Vs. Naresh s/o Sh. Mahender Singh 24.04.2014 Present : Ld. Addl. PP for the State. Convict in person with ld. Amicus Curie. ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Naresh has been convicted u/s 363 r/w 511 IPC and 341 IPC and 11 (i) and (iii) of POCSO Act punishable u/s 12 of POCSO Act.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Amicus Curie for the convict.
SC No. 93/13 : State Vs. Naresh : Page Nos. 19 of 25 20
2. It has been submitted by the Ld. Addl. PP that in the present case, convict Naresh attempted to kidnap the victim child K by dragging her by holding her hand, wrongfully restrained her and sexually harassed her by showing obscene/indecent film to her on his mobile phone 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 convicts.
3. On the other hand, it has been submitted by the Ld. Amicus curie that the convict Naresh is a young man aged about 34 years and is unmarried. He further submitted that convict is having old aged mother and there is no one look after her. He further submitted that the convict is illiterate and was working in a shoe factory prior to his arrest in the present case and as such a lenient view may be taken in this case and he be given a chance of rehabilitation by releasing him on probation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Amicus Curie and have carefully gone through the record of the case.
5. In the present case, the convict Naresh has been convicted for committing the offence punishable u/s 363 r/w 511 IPC and 341 IPC and 11 (i) and (iii) of POCSO Act punishable u/s 12 of POCSO Act for dragging the victim child K by holding her hand, wrongfully retraining her from proceedings to her house and sexually harassing her by showing her indecent films on his phone. He further exhibited parts of his body i.e. his private parts and genital area with intention that it be seen by the child. It is SC No. 93/13 : State Vs. Naresh : Page Nos. 20 of 25 21 relevant to mention that the convict persisted with his illegal acts for quite some time on the day of the incident. He initially dragged the victim child, showed her obscene films on his mobile and also opened the zip of his pant, at which point of time, victim K raised alarm and was rescued by two passersby from the clutches of the victim. The convict however, followed victim K to her house in a state of undress and when, PW5 Smt. Kavita saw him, outside the house and was duly identified by victim K, he came towards her menacingly. At that time, convict was apprehended by PW5 Smt. Kavita with the help of neighbour/PW7 Suraj and thereafter, PW6 Sh. Ashok, father of the victim also came there. The indecent exposure of his body by the convict was not only seen by the victim, but also by her parents and a neighbour namely Suraj. The PW5 Smt. Kavita and PW6 Sh. Ashok, parents of the victim child K, specifically stated that due to this incident, their daughter remained under trauma for more than one month and that she still hesitates in venturing out alone from the house since the time of the incident. Keeping in view the serious allegations against the accused, he is not entitled to a lenient view by taking plea that he being the sole earning member, is required to discharge his responsibility towards his mother. In my opinion, convict is not entitled to any leniency. I hereby award sentence the convict Naresh as under
(i) For the offence u/s 363 IPC r/w 511 IPC, the convict Naresh is sentenced to Rigorous Imprisonment for a period of three years along with a fine of Rs. 1,000/(Rs. One thousand only), in default of payment of fine, to undergo S.I for one month.
(ii) For the offence u/s 341 IPC, the convict Naresh is sentenced to Rigorous Imprisonment for a period of one month along with a fine of Rs. 500/(Rs. Five hundred only), in default of payment of fine, to undergo S.I SC No. 93/13 : State Vs. Naresh : Page Nos. 21 of 25 22 for fifteen days.
(iii) For the offence u/s 12 of POCSO Act, the convict Naresh is sentenced to Rigorous Imprisonment for a period of three years along with a fine of Rs. 1,000/(Rs. One thousand only), in default of payment of fine, to undergo S.I for one month.
All the sentences shall run concurrently.
6. The convict has been in custody since 21.04.2013 continuously. Benefit u/s 428 Cr.PC be also given to the convict for the period already undergone by him during trial, as per rule.
7. 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.
8. 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 SC No. 93/13 : State Vs. Naresh : Page Nos. 22 of 25 23 emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national 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 SC No. 93/13 : State Vs. Naresh : Page Nos. 23 of 25 24 for children and Article 24 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."
9. 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 prosecutrix/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 SC No. 93/13 : State Vs. Naresh : Page Nos. 24 of 25 25 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.
10. 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.
11. The convict is informed that he has a right to prefer an appeal against this judgment.
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 24.04.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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