Delhi District Court
Sc No.: 53/2013: Fir No.48/2013: Ps: ... vs Kailash Page 1 Of 18 on 16 February, 2015
SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 1 of 18
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No.53/2013)
State V/s Kailash
FIR No. : 48/2013
U/s : 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012
P.S. : Ashok Vihar
State Vs. Kailash,
S/o Shri Ayodhya Parsad,
R/o Jhuggi No.C64, SS Nagar, WPIA,
Ashok Vihar, Delhi.
Date of institution of case : 03.05.2013
Date of arguments : 10.02.2015
Date of pronouncement of judgment : 16.02.2015
J U D G M E N T:
BRIEF FACTS OF THE CASE:
The prosecution case, as borne out from the record is that on 10.02.2013, at about 9.00 PM, when the complainant Smt.Gudia, W/o Shri Vinod was present at her jhuggi bearing No.C405, Shahid Sukhdev Nagar, WPIA, Ashok Vihar, Delhi and was taking rest, the child victim M, aged about seven years (whose identity is not being disclosed in view of the provisions of Section 33 (7) of POCSO Act, 2012), being daughter of her U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 2 of 18
Nanad, who was staying with her, came weeping and told her that accused Kailash had forcibly taken her to his jhuggi, where he disrobed her and thereafter got himself also disrobed and tried to commit penetrative sexual assault upon her. After hearing this, complainant Smt.Gudia immediately called up her fatherinlaw, who resided nearby and communicated him the aforesaid facts, who in turn called the police. The said call was recorded as DD No.31 in PS Ashok Vihar. After reducing the same into writing, a copy thereof was handed over to SI Ved Prakash, who alongwith W/HC Sumitra and Ct.Babu reached at the spot. At the spot, it transpired that the case involved sexual assault upon a female child victim and as such, SI Ved Prakash informed the PS and sought sending of a lady police officer as well as somebody from a child welfare NGO. The said information was recorded in PS Ashok Vihar as DD No.34 at about 11.45 PM, pursuant whereto W/SI Rajesh reached at the spot. In the meantime, SI Ved Prakash caught hold of the accused, who resided in a nearby jhuggi. W/SI Rajesh recorded the statement of complainant Smt.Gudia in the presence of a counsellor of an NGO. She got sent the child victim M to Babu Jagjivan Ram Hospital (in short BJRM Hospital) alongwith W/HC Sumitra and complainant and also got sent the accused to the aforesaid hospital alongwith Ct.Babu and got them medically examined. She prepared rukka and got the case FIR in the matter registered. Thereafter, the accused was arrested. She further got recorded the statement of child victim M U/s 164 Cr.P.C as well as got her counselled in CWC. The blood sample of accused was also got taken to get DNA profile U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 3 of 18 drawn therefrom, so as to match it with the alleged traces of semen found upon the undergarments of child victim M. She got the exhibits sent to FSL, prepared chargesheet in the matter and obtained result of FSL.
COURT PROCEEDINGS:
2. After filing of the chargesheet in the matter, copy thereof alongwith documents was supplied to the accused and after hearing arguments on the point of charge, vide order dated 18.07.2013, charges U/s 10 of POCSO Act, 2012 r/w Section 376(2)/511 IPC as well as 506 IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 16 witnesses, whereafter the PE in the matter was closed and statement of accused U/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the matter at the instance of complainant Smt.Gudia. In his defence, he claimed that six months prior to the alleged incident in this case, he had a quarrel with Smt.Gudia on the issue of water, which was amicably settled between them in the PS and he was implicated in the present case by the complainant by using vulnerable person like child victim M to her advantage. However, he did not lead any defence evidence in the case.
U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 4 of 18
4. I have heard arguments advanced at bar by the Ld.Addl. PP for the State and Shri Akhilesh Kumar Pandey, advocate, learned counsel for the accused and perused the entire material on record.
EVIDENCE RECORDED IN THE MATTER:
5. The evidence recorded in the matter can be broadly categorized as under:
(a) Evidence of child victim/witness, neighbourers and her family members;
(b) Medical Evidence;
(c) Formal Evidence, i.e evidence of Ld.Metropolitan Magistrate,
who recorded statement U/s 164 Cr.P.C of the child victim M and;
(d) Evidence of police officials during investigation.
6. It is relevant to note here that the defence has not questioned the age of child victim M to be 7 years at the time of incident. Now, let us have a brief analysis of the evidence recorded in the matter.
7. Evidence of child victim/witness, neighbourers and her family members:
The first witness in this category is complainant, Smt.Gudia, who has been examined as PW3 by the prosecution. She is the pivot of the prosecution case, as the prosecution in this matter was launched on the basis of her statement Ex.PW3/A recorded in the matter, based upon which rukka Ex.PW1/A was prepared by the IO and case FIR Ex.PW1/B in the matter was U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 5 of 18 recorded. She categorically deposed in her evidence, recorded in the court that child victim M had communicated to her about the accused having taken her to his jhuggi and made an attempt to commit penetrative sexual assault upon her. She called up her fatherinlaw, who after hearing the facts from her called up the police. Thereafter, she alongwith Lady Constable went to BJRM hospital where the medical examination of child victim M was conducted by Dr.Deepak Chugh vide MLC Ex.PW3/B. Since the child victim M had not complained to her about the penetrative sexual assault, she did not permit the internal gynaecological examination of child victim M. She also handed over the panty (kachhi) of child victim M to the police, purportedly containing the semen stains of the accused. This witness was thoroughly crossexamined by the defence, but no dent in the veracity of her evidence could be made out. She was grilled on the point that she had not been taking proper care of child victim M and had purposely brought her from her parents' place to engage her for taking care of her small kids. She was also suggested that she had been inimically disposed towards the accused on account of a previous litigation between them, which took place about 5/6 months prior to the incident in this case. She categorically denied all the said suggestions.
8. PW5, child A (whose identity is not being disclosed in view of the explanation appended to Section 33 (7) of POCSO Act, 2012), aged about 13 years is an independent witness of the locality, who in her evidence has stated that on the date of incident she and child victim M had gone to her U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 6 of 18 house to watch TV. There, the accused called child victim M by offering her eggs to eat. He took her to his house and bolted the door from inside. Thereafter, this witness peeped inside the room through centreline of doors of the room where the accused had taken child victim M and saw that the accused had taken out the payjami and underwear of child victim M. Thereafter, her mother had called out her and as such, she could not see what else was done with the child victim M by the accused. She was also cross examined by the defence, but she stood to her guns. She denied the suggestion that she had deposed at the instance of PW3 Smt.Gudia.
9. PW6, Shri Ganga Ram, the maternal grandfather of child victim M in his evidence has also supported the prosecution case in all material particulars in as much as he deposed before the court that on the date of incident at about 9.30 PM, he received a call from PW3 Smt.Gudia, his daughterinlaw. He immediately rushed to the house of PW3, where he was communicated about the child victim M having been molested by the accused. Thereafter, he called the police. He was thoroughly crossexamined by the defence. He denied the suggestion of a quarrel between the accused and husband of PW3 about six months prior to the incident and on that account the relations between PW3 and accused being strained. He, however, admitted that child victim M was brought by him to Delhi from the village, as she was mentally weak. He further stated that he got the child victim M examined at hospital, where doctors told him that the mental condition of the U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 7 of 18 child would improve gradually with the passage of time. He denied the suggestion that since child victim M was of feeble mind, she had been used as a tool by him to falsely implicate the accused in this case.
10. PW8, child victim M in her evidence has stated as under:
xxxxx Q. Kya hua tha ?
Ans. Kailash ne pehle bhi kara raha.
Q. Kya kiya tha ?
Ans. Hum Arti ke kamre me akadbakad khel rahe the.
Q. Phir kya hua ?
Ans. Maine mausi ko kaha ki mamy bula rahi hai.
Q. Apki mausi kaun hai ?
Ans. Arti.
Q. Phir kya hua ?
Ans. Nau (Nai) Kailash hath pakad kar kichat raha.
Q. Phir kya hua ?
Ans. Hath pakad kar kichkar andar le gaya.
Q. Andar kaha le gaya ?
Ans. Apne ghar me le gaya.
Q. Phir kya hua ?
Ans. Maine kaha mamy bula rahi hai toh kaha ki chalo anda khilaye du.
Q. Phir kya hua ?
Ans. Usne anda diya maine nali me phek diya.
Q. Phir kya hua ?
Ans. Usne pucha ki khai liye maine jhuth bol diya ki khai liye.
Q. Phir kya hua ?
Ans. Maine anda phek kar sabun se hath do liye.
Q. Phir kya hua ?
Ans. Usne phir ghar me khich liya.
Q. Phir kya hua ?
Ans. Usne meri kachhi kholi, maine kaha kachhi kyu khol U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 8 of 18
rahe ho toh usne kaha ki tumahare sath khel raha hu, tin thapar (slaps) bhi mare.
Q. Aur kya kiya ?
Ans. Usne apna pant khol diya toh maine pucha kya kar rahe ho, usne kaha ki khel raha hu.
Q. Phir kya hua ?
Ans. Maine kaha ki mein mamy se bata dungi usne kaha ki jaan se mar dunga. Usne chaku dikhaya, maine chaku chin liya aur phek diya.
Q. Phir kya hua ?
Ans. Usne phir andar khicha aur apni 'nony' yaha par dali (witness has pointed at her private parts by touching).
Q. Phir kya hua ?
Ans. Hame khoon bahat raha (I was bleeding).
Q. Phir kya hua ?
Ans. Mujhe dard ho raha tha, maine mamy ko awaz di, mamy ne pucha ki kya ho gaya toh maine mamy ko bata diya.
Q. Phir kya hua ?
Ans. Mamy ne nana ko phone kar diya.
Q. Phir kya hua ?
Ans. Mamy ne kaha ro nahi sahi ho jayega.
Q. Phir kya hua ?
Ans. Tiyal (medicine) lagayi.
Q. Phir kya hua ?
Ans. Nana aagaye aur nana aur mama ne nau (accused Kailash) ko mara, maine pehle mar diya tha.
Q. Phir kya hua ?
Ans. Phir chowki me police ko phone kar diya.
Q. Phir kya hua ?
Ans. Police ne pucha kaha aana hai toh nana ne bataya ki mandir ke paas ghar hai waha aa jao.
Q. Phir kya hua ?
Ans. Phir police aayi aur pakad kar le gayi.
Q. Phir kya hua ?
Ans. Didi madam ne chup karaya aur 11 toffee bhi di.
Q. kya aap hospital bhi gaye the ?
Ans. Ha. Ussi din gayi thi mamy aur nana ke sath. U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 9 of 18
Q. kya aap nau Kailash ko pehchan sakte ho ?
Ans. Ha.
At this stage, the glass pane of the window in the chamber has been opened. The window is overlooking the corridor outside the court room where accused is present in police custody. There are other persons i.e. advocates, litigants, etc. also present in the Corridor. The witness has looked through the window at the accused and has pointed towards a person with white baniyan (T shirt), who is in police custody, and states that he is the same person who had taken her to his room and removed her kachhi and put his nony in her (witness has correctly identified the accused Kailash) on the day of incident.
Court Observation : it has been observed that while identifying the accused, witness has hidden her face with her hands. On being asked, she states that "akhe dikha raha tha, maine kaha muh udhar kar".
xxxxx In her crossexamination, she denied the suggestion that she had deposed in the matter on the basis of her tutoring done by PW3.
11. Medical Evidence:
PW4, Dr.Deepak Chugh has proved the MLC of accused, prepared by Dr.Gagan on the basis of identifying his signatures on Ex.PW4/A as well as of the child victim M, prepared by Dr.Gagan as Ex.PW3/B on the basis of identifying his signatures. He has also proved the MLC of accused dated 11.02.2013, prepared by Dr.Roshan, JR, under the supervision of Dr.Kamakshi Narula, Medical Officer, whereby the blood sample of the U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 10 of 18 accused was taken in gauze piece, EDTA tube to generate DNA profile therefrom. From the statement of PW3, appearing on MLC of child victim M, he deposed that PW3 had not accorded permission for the internal gynaecological examination of child victim M.
12. Formal evidence:
In this category, comes the evidence of PW14 Ms.Vandana, who at the relevant time was posted as Metropolitan Magistrate in Rohini District Court Complex. She has proved the statement of child victim M, recorded by her U/s 164 Cr.P.C as Ex.PW14/B.
13. Evidence of police officials during investigation:
PW1, ASI Sripal was posted as Duty Officer in PS Ashok Vihar at the relevant time and he has proved on record the endoresment made by him upon rukka as Ex.PW1/A and case FIR as Ex.PW1/B.
14. PW2, Ct.Shiv Kumar was posted as DD Writer on 10.02.2013 at PS Ashok Vihar and he has proved DD No.31PP, recorded by him as Ex.PW2/A and DD No.34 PP as Ex.PW2/B.
15. PW7 Ct.Om Prakash took the accused to BJRM hospital in the intervening night of 10/11.02.2013 for medical examination and got his MLC prepared.
U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 11 of 18
16. PW9 W/HC Sumitra in her evidence has stated that on receipt of DD No.31 (Ex.PW2/A), she alongwith SI Ved Prakash and Ct.Babu had reached at the spot. There she made enquiries from PW3 and child victim M (PW8) till the time the IO of the case PW16 W/SI Rajesh reached at the spot, pursuant to recording of DD No.34, i.e Ex.PW2/B. Thereafter, on the asking of IO W/SI Rajesh, she took the child victim M to BJRM hospital for her medical examination.
17. PW10, Ct.Roop Lal in his evidence has stated that on 18.02.2012, he had deposited the three sealed pulandas and two sample seals to FSL Rohini vide RC No.77/21/12 and till the time the case property remained in his possession, same was not tampered with.
18. PW11, HC Ravinder Kumar was posted as MHC(M) at PS Ashok Vihar at the relevant time and he has proved the factum of deposit of three sealed pulandas and two sample seals in Malkhana by W/SI Rajesh. The relevant entries made by him in Register No.19 in this regard has been proved as Ex.PW11/A (OSR). He further stated that on 18.02.2013, he had handed over the said pulandas to Ct.Roop Lal for being depositing the same in FSL, Rohini vide RC No.77/21/22. He further deposed that till the time case property remained in his possession, same was not tampered with. U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 12 of 18
19. PW12, Ct.Ravi Kant in his evidence has stated that on 18.02.2013 he was on duty at BJRM hospital as Duty Constable he got the medical examination of accused conducted through the concerned doctor. He further stated that two pulandas and blood sample of accused was taken possession of by IO in his presence vide Seizure Memo Ex.PW12/A.
20. PW13, SI Ved Prakash in his evidence has stated that in the intervening night of 10/11.02.2013, at about 10.45 PM, on receipt of DD No. 31, he alongwith Ct.Babu Lal and W/HC Sumitra reached at the spot where he met PW3 and child victim M. He further stated that upon enquiry from them, W/SI Rajesh was called from the PS, who recorded the statement of PW3 and child victim was sent to BJRM hospital for her medical examination. Accused was also got medically examined and thereafter arrested vide memo Ex.PW3/E, his personal search conducted vide memo Ex.PW3/F and thereafter his disclosure statement recorded vide memo Ex.PW3/G. He further stated that on the pointing out of accused, pointing out memo Ex.PW3/H was prepared. This witness was thoroughly grilled in the crossexamination by the learned defence counsel, however, nothing against the prosecution case could be elicited from him. He stated in his cross examination that at the time of arrest of accused, no public person was present at the spot it being odd night hours.
U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 13 of 18
21. PW15, Ct.Babu Lal, who had gone to the spot alongwith PW13 pursuant to receipt of DD No.31 has deposed on the lines of PW13. He further stated that after preparation of rukka by the IO, he got the present case FIR registered from PS and the accused was arrested and his personal search was conducted in his presence. The defence could not make any dent in his evidence during crossexamination.
22. PW16,WSI Rajesh in her evidence has stated that on 10.02.2013, on receipt of information from SI Ved Prakash, she reached at the spot, i.e Jhuggi No.405, SS Nagar, WIPA, Delhi, where she met SI Ved Prakash, Ct.Babu Lal, one Smt.Gudiya and victim child. She further stated that in the meantime, W/HC Sumitra had also reached at the spot. She recorded the statement of Smt.Gudiya (PW3) as Ex.PW3/A, called the NGO and got the victim child medically examined. She further stated that thereafter she prepared rukka Ex.PW1/A and got the present case FIR registered through Ct.Babu Lal, prepared site plan Ex.PW3/C at the instance of accused and child victim. She further stated that thereafter accused was arrested, his personal search conducted, his disclosure statement recorded and at his instance pointing out memo prepared vide memos Ex.PW3/E to Ex.PW3/H respectively. She further stated that on 11.02.2013 she got recorded the statement U/s 164 Cr.P.C of child victim M vide Ex.PW14/B and seized the undergarment of child victim vide Ex.PW3/D. She further stated that on 12.02.2013, she got the child victim counselled before CWC and on U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 14 of 18 13.02.2013 blood sample of accused were taken possession of vide Ex.PW12/A and after completion of investigation chargesheet in the matter was filed by her. She further stated that later on she collected the FSL result and filed the same in court. She correctly identified the accused in court and also identified the underwear worn by child victim M at the time of incident as Ex.P1 on the basis that she had seized the same. She in her cross examination stated that although some public persons were present at the spot, but none came forward to join the investigation. She denied the suggestion of defence that she had not investigated the present case properly and in a fair manner.
23. This is all as far as evidence in the matter is concerned.
24. The Ld.Addl. PP has very vehemently argued that through the cogent and trustworthy testimony of PW3, PW5 and PW6, child victim M, i.e PW8, Ld.Metropolitan Magistrate (PW14), prosecution has been able to bring home the guilt of the accused for committing offence for which he stands charged in the matter. It is further argued that the accused has not been able to substantiate the defence taken by him in the matter and he has failed to lead any defence evidence in this matter. Per contra, the learned defence counsel has argued that the child victim M, i.e PW8 is not a trustworthy witness as in all her three statements, she has made material improvements purportedly on the tutoring of PW3 and as such, the U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 15 of 18 conviction in the matter cannot be based upon the tutored testimony of child victim M, even in the teeth of provisions of Section 29 & 30 of the POCSO Act, 2012. The learned defence counsel has taken me through the statement of child victim M recorded U/s 161 Cr.P.C, her statement recorded U/s 164 Cr.P.C, i.e Ex.PW14/B and her testimony recorded by this court. In her statement recorded U/s 164 Cr.P.C, she had introduced some facts with regard to the accused having inflicted three slaps to her, he having told her that she had been playing with him as well as with regard to he having shown knife to her.
25. I have gone through the statement of child victim M recorded by the IO U/s 161 Cr.P.C as well as her statement recorded U/s 164 Cr.P.C and considered the same in juxtaposition with each other as well as with her evidence recorded in the court. As regards the sexual assault, testimony of child witness is consistent, however, she has made some improvements here and there which are not material, particularly when she is consistent in her deposition with regard to sexual assault.
26. If the testimony of child witness inspires confidence, then the conviction can be based solely upon it. In this regard, I would like to refer to the case reported as, "AIR 2010 SC 3071", titled as, "State of UP V/s Krishan Master", wherein the Hon'ble Supreme Court has been pleased to hold as under: U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 16 of 18
xxxxx "There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."
xxxxx (underlining is mine)
27. The next argument of learned defence counsel that the child victim M (PW8) and child witness A (PW5) having deposed at the instance of PW3 is not substantiated from the record as the ground of tutoring of the aforesaid two child witnesses mentioned by the learned defence counsel is that even prior to the date of incident a quarrel had taken place between the accused and PW3. The said matter was reported to the police and an U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 17 of 18 amicable settlement therein had taken place. The defence has not placed on record any documentary evidence in this regard, therefore, the defence of the accused in this regard has remained unsubstantiated.
28. As far as the next argument of learned defence counsel that the FSL evidence Ex.PX has not corroborated the version of child victim M (PW8) is concerned, it is to be noted that the report Ex.PX is within the realm of opinion, as contemplated under Section 45 of Indian Evidence Act and the opinion is always a corroborative piece of evidence and it cannot take the place of substantive evidence. The substantive evidence in the matter is the evidence of child victim M, which duly finds corroboration from the evidence of child witness A (PW5), PW3 as well as PW6. PW3 and PW6 may be the witnesses who have deposed on the basis of information received by them from child victim M, but their deposition is of the time which is contemporaneous with the time of commission of sexual assault upon child victim M by accused so as to form part of same transaction and as such, the same is believable.
29. The learned defence counsel has next argued that the prosecution case cannot be believed as PW3 did not accord consent for the internal gynaecological examination of child victim M and as such, it could not be proved that the child victim M was subjected to sexual assault. I do not find substance in this argument as there is justification for the PW3 not to accord U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted" SC No.: 53/2013: FIR No.48/2013: PS: Ashok Vihar: State V/s Kailash Page 18 of 18 permission to the doctor to have the internal gynaecological examination of child victim M because she is a female child of tender age and the process of internal gynaecological examination would have entailed pain to the child and in any case, the child victim M did not tell her that penetrative sexual assault had taken place upon her. Therefore, not according permission by PW3 to the doctor to have internal gynaecological examination of child victim M is not fatal to the case of prosecution. In the end, the learned defence counsel made a feeble attempt to argue that the conduct of PW3 in not taking proper care of child victim M despite knowing the fact that she is of feeble mind goes counter to the prosecution case. This argument carries no weight in the eyes of law, particularly in the teeth of provisions of POCSO Act, 2012, as even if a child of feeble mind is not being treated properly by her guardian, that does not give right to somebody to inflict sexual assault upon the said child. Therefore, from the material on record, prosecution has been able to prove the charges U/s 10 of POCSO Act, 2012 against the accused. The accused accordingly stands convicted for offence punishable U/s 10 of POCSO Act.
30. Let he be heard on the point of sentence on 19.02.2015.
Announced in the open Court (Vinod Yadav)
on 16.02.2015 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
U/s 376 (2)(f)/511/506 IPC r/w Section 10 POCSO Act, 2012: "Convicted"