Delhi District Court
State vs Manoj Kumar Yadav on 3 April, 2018
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No. 184/2015)
State V/s Manoj Kumar Yadav
FIR No. : 632/15
U/s : 354/354B IPC
& Sec. 10 of POCSO Act
P.S. : Kanjhawala
State V/s Manoj Kumar Yadav
S/o Sh. Laxmi
R/o Balaji Enclave,
Near Petrol Pump,
Punjab Khor, Delhi.
Date of institution of case : 21.11.2015
Date of arguments : 02.04.2018
Date of pronouncement of judgment : 03.04.2018
J U D G M E N T :
1.The facts of the case as borne out from the record are that on 13.09.2015, after entrustment of DD no. 69B, ASI Suresh reached at the Page 1 of 18 informed place, where victim R (hereinafter referred to as 'child victim) and her mother met and on preliminary inquiry, they told him that on 12.09.2015, at about 45 pm, their neighbour Manoj Kumar caught hold of victim R from behind, kissed her and tore her wearing salwar. Thereafter, ASI Suresh got the child victim medically examined at SGM Hospital, got her counseled through NGO counselor and recorded her statement to the effect that on 12.09.2015, at about 5.00 pm, when she was washing utensils in the house, accused came there and asked her to fetch the water, but she refused and suddenly, accused came in the bathroom after scaling the wall and caught hold of her from behind, bit her on the cheek, kissed her and thereafter, he tore her wearing salwar, attempted to remove her underwear and tried to commit wrong act with her and thereafter, he lied upon her and gave Rs. 500/ to her and told not to disclose about it to her parents. She somehow saved herself and went to a neighbour lady and when her mother returned, she disclosed about the incident to her and thereafter, police was informed.
On the basis of the aforesaid statement of child victim, present case FIR was registered and further investigation was handed over to SI Anita. Site plan of the place of incident was prepared. The tearing clothes of the victim were seized. Accused was apprehended and arrested in the matter. The statement of child victim U/S 164 CrPC was got recorded. Documents regarding the date of birth of birth of victim were collected and thereafter, on completion of investigation, charge sheet was prepared and filed before this court.
Page 2 of 182. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. Arguments on the point of charge were heard and on 07.01.2016, charges u/s 9 (m) of POCSO Act 2012 (hereinafter referred to as the "Act"), punishable u/s 10 of Act read with Section 18 of POCSO Act, alternatively u/s 376 (2) (f) (i) r/w Sec. 511 IPC/354 IPC r/w 354B/511 IPC and u/s 11 (vi) of POCSO Act punishable u/s 12 of POCSO Act 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 10 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 case by the child victim at the instance of her mother and one person Dharamvir because of a monetary dispute. Accused earlier wished to lead evidence in his defence, but later on, he closed his defence evidence without examining any one.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Ms. Usha Rani, ld. LAC, for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
5. PW1 ASI Tasveer Singh, was posted as duty officer in PS Kanjhawala at Page 3 of 18 the relevant time and he proved the computerized copy of FIR as Ex. PW1/A, endorsement made by him on rukka as Ex. PW1/B and certificate u/s 65B of Evidence Act as Ex. PW1/C. There is no cross examination of this witness.
6. PW2, Sh. Yashpal Singh Dabas, Retd. Principal, MC Primary CoEd School, Villate Tatesar, Delhi, has produced on record the documents with regard to the date of birth of child victim, maintained by the school in due course, inter alia stating the date of birth of child victim to be 02.08.2005. He has proved the relevant documents in this regard as Ex. PW2/A to Ex. PW2/C. During crossexamination by learned defence counsel, PW2 termed it correct that at the time of admission of child victim in their school, no birth certificate issued by MCD or any other statutory authority was furnished. He further termed it correct that school did not make any independent inquiry about the date of birth of child victim.
7. PW3, Ms. Sushil Bala Dagar, ld. M.M, in her evidence proved statement of child victim as Ex. PW3/B, recorded by her under Section 164 Cr.P.C on 14.09.2015.
There is no cross examination of this witness.
8. Child victim, in the present case was examined as PW4 and the relevant Page 4 of 18 portion of her testimony is as under : "...Q. Beta batao kya hua tha?
Ans Nove mahine ki 12 taarikh ko pichhale saal (12.09.2015) main apne shaam ko 5 baje apne ghar main bartan dho rahi thi to hamare bagal main rehne wale Manoj Kumar Yadav mere paas aye aur bole ki paani bhar lo. Maine paani bharne se mana kar diay aur main fir bartan dhone lagi.
Q. Beta fir kya hua?
Ans. To fir wo peechhe se diwar kud kar aaye aur mujhe
peechhe se daab liya.
Q Beta fir usne kya kiya?
Ans. Usne mera gaal chaba liya aur meri chummi bhi le raha tha.
Q. Beta fir kya hua?
Ans. Mera salwar aage se faad diya aur meri kachhi ( underwear) utarne laga. Us samay usne mujhe daba rakkha tha. Wo mujhe 500 rupey de raha tha aur bol rahe the ki apne mummypapa ko mat batana. Main apne aap ko usse chhuda kar bhag gai aur pados main rehne wali ek aunty ke paas aa gai. Maine unko sab baat bata di to wo mujh se boli ki apne mummypapa ke aane per sab baat bata dena. Meri mummy shaam ko jab khaiton ( fields) se wapis aai to maine unhe sab Page 5 of 18 bata diya. Meri mummy ne sab baatain sun kar Manoj Kumar ko puccha ki meri beti ke sath aisa kyon kiya to unhone talwar nikal li aur wo maabehno ki galiyan bakne laga.
Q. Beta fir kya hua?
Ans. Unhone talwar se apni auto per waar kiya jis se uska kaanch ( glass) toot gaya aur unki ungli per khoon nikal aaya. Police ke aane per unhone mere mummypapa ka jhootha naam le diya ki mere mummypapa ne unki gaadi ko toda hain aur unhe chot pahuchai hain aur unke 5000 rupey bhi le liye hai. Policewale apni gadi main unhi ko betha kar apne sath le gaye . Kisi padosi ne police ko bula liya aur fir police ne mujhe se puchhtachh ki. Police ne mere bayan (Ex. PW4/A) likhe jis per maine angootha lagaya tha....
Main ek baar pehle bhi court main bayan (Ex. PW3/B) dene aai thi.
Q. Beta fir kya hua?
Ans. Police mujhe hospital le kar gai thi jahan per doctor ne mera jaanch ( medical examination) kiya tha.
Q. Beta aapke fate hue kapdon ka kya hua?
Ans. Wo police ne le liya tha.
Accused Manoj Kr. Yadav aaj court main hazir hai aur
peechhe baitha hai
Page 6 of 18
xxx"
During crossexamination by learned Amicus Curie, she stated as under : "xxx Hamare aur accused ke kamre ke agal bagal main bahut saare kirayedaar rehte hain. Ye kehna galat hain ki accused us samay apni patni ke sath rehta tha. Dharamvir Singh hamari colony ka pradhan hain. Mere mummypapa kabhi kabhi Dharamvir ke khaiton main bhi kaam karte the. Vol. Jahan kaam milta tha wahin kar lete the. Meri mummy ghatnawale din shaam ko 7 baje aai thi. Hum shaam ko thane gaye the aur waha 1 baj gaya tha. Jab accused talwarbazi kar raha tha to colony ke bahut saare log wahan ikatha ho gaye the. Ye kehna galat hain ki accused ne mere sath galat kaam karne ki koshish nahi ki thi aur main apne mummypapa ke kehne per aaj court main jhootha bayan de rahi hu. Ye kehana galat hain ki accused mere liye toffee lata tha. Ye kehna galat hain ki accused ne mere mummypapa ko 5000 rupey udhar de rakkhe the aur jab wo un paiso ka takaza karta tha to mere papa aur accused main ladai hoti thi. Ye kehna galat hain ki mere papa ne Dharambir uncle to is baare main bataya Page 7 of 18 to unhone accused ko jhootha fasane ki salha di. Ye kehan galat hain ki Dharambir uncle aur apne papa ke kehne per maine accused ko is case main jhootha fasaya hain.
xxx"
9. PW5 Smt. Bhanumati, a neighbour of the child victim, deposed that in the summer season of last year (2015), on one day, at about 5.00/6.00 pm, she had come back after taking her daughter from the tuition and when she was sitting on the cot outside her room, when the daughter of Jamuna i.e. child victim came and informed her that, "humko uncle chhed rahe hain". She further deposed that after some time, police reached and during inquiry, child victim had informed the police that she had informed about the incident to her, but police had not made inquiry and not recorded her statement in the present case.
As the witness did not deposed as per her statement recorded u/s 161 Cr.P.C, she was crossexamined by ld. Addl. PP and during the crossexamination, she had stated that she had narrated the entire facts to the police which were told to her by the child victim. However, she denied having stated to the police that incident had taken police on 12.09.2015 or that on her return, child victim came to her while weeping and informed her about the incident. She further denied having stated to the police that the child victim had told her that accused had caught hold of her ( daab diya tha) and he was chewing her cheeks and kissing her ( uske gaalon ko chaba raha tha aur uski chummi le raha tha) or that the accused had torn her salwar Page 8 of 18 and was removing her underwear or that she made the girl to calm down or that when her mother came back from her work at about 7 p.m. she had narrated the entire story to her, who called the police. She admitted that accused was the same person, with whom mother of the child victim was quarreling and about whom the daughter of Jamuna (child victim) had told her.
There is no material crossexamination of this witness.
10. PW6 Mausi (maternal aunt) of the child victim deposed that on 12.09.2015, when she along with mother of the child victim returned from their place of work, the child victim informed them while weeping that when she was cleaning utensils, accused (who was residing in the adjacent house) came from behind, caught hold of her, chewed her cheeks, kissed her and also torn her salwar and underwear. She further deposed that on her advice, the mother of the child victim confronted the accused about his acts with the child victim, on which, accused got infuriated and took out one sword from his auto rickshaw, which was parked outside the gate of his room and he threatened them to kill, in case they raise any alarm or made any complaint to the police and because of fear created by the accused, they all had to hide themselves. She further deposed that after some time, police reached there and on seeing the police coming, the accused had hit the glass of his auto rickshaw with the said sword, due to which one piece of glass caused injury in one of his hands.
During crossexamination, she denied the suggestion that on the date of Page 9 of 18 incident, she and mother of child victim had not gone to work in a same field.
11. PW7 Dr. Khushboo, SR (Obs. & Gynae), proved the MLC of the child victim as Ex. PW7/A by identifying the handwriting and signatures of Dr. Ashmina Rekhi, who had examined the child victim and deposed that as per the MLC, mother of the victim refused for victim's internal gynecological examination.
There is no material cross examination of this witness.
12. PW8 mother of the child victim deposed that on 12.09.2015, after her return home at about 7.00 pm, her daughter/child victim had informed her while weeping that "accused ne uska gaal chabaya, uska chuma liya". Child victim further informed that accused had also torn her salwar and was removing her underwear and had offered Rs. 500/ to her for not disclosing about this incident to any one and that she had told this incident initially to one of her neighbour Bhanu. She further deposed that after coming to know about this, she went to the room of accused and confronted him about his acts with child victim, on which accused started quarreling with her and in the meanwhile, someone had called the police at 100 number and on seeing the police, accused had hit a sword type weapon on his autorickshaw, due to which, its glass had broken and accused sustained injuries on his hand. She further deposed that accused had leveled false allegations on her about snatching of Rs. 5,000/ from him. She further deposed about the proceedings conducted by the police, about medical examination of the child Page 10 of 18 victim, about pointing out the place of incident to the police by her and child victim and about preparation of site plan Ex. PW8/A. She further deposed that she had produced torn salwar and shirt of child victim, which were kept by the police and seized vide seizure memo Ex. PW8/B. She also identified the torn clothes of the child victim as Ex. P1.
During crossexamination, she admitted that a number of tenants used to reside at or around her room. However, she denied that she used to draw water from the pump of accused or she had taken a loan of Rs. 5,000/ from the accused. She further denied the suggestion that the accused had come to demand his money back, which she did not want to return and as such, a quarrel had taken place and thereafter, she got him falsely implicated in this case or that she had broken the autorickshaw of the accused. She further denied that under the guidance of Dharamvir, she herself torn the clothes of chlid victim and got the accused falsely implicated in the present case.
13. PW9 ASI Suresh is the initial IO of the case and he deposed that on 12.09.2015, after entrustment of DD no. 69B Ex. PW9/A regarding mis behaviour with a minor girl, he along with Ct. Naveen reached at the spot, where he had called W/Ct. Kiran and at the spot, child victim and her parents were found present. He further deposed that after making preliminary inquiry at the spot, he got the child victim medically examined at SGM Hospital vide MLC Ex. PW7/A and then after getting the child counseled through NGO counselor, he Page 11 of 18 recorded the statement Ex. PW4/A of child victim and on the basis of said statement, he made his endorsement, prepared rukka Ex. PW1/B and got the case FIR registered and after registration of the case FIR, further investigation was handed over to PW10 W/SI Anita and he handed over the case file to W/SI Anita.
During crossexamination, he stated that when he reached the spot at about 7.40 pm, a number of persons were lying gathered at the spot. He denied the suggestion that in the initial part of the investigation itself, he had come to know that a false complaint against the accused had been made in the matter by the parents of child victim in connivance with one Dharambir, Pradhan of the colony.
14. PW10 SI Anita, is the subsequent IO of the case and she deposed that on 13.09.2015, after registration of the FIR, further investigation was handed over to her and during investigation, she made inquiry from the child victim, prepared site plan Ex. PW8/A at the instance of the child victim as well as of her mother of the place of incident and seized the torn clothes of the child victim after sealing the same into a pullanda with the seal of AK, vide seizure memo Ex. PW8/B. She further deposed about arrest and personal search of the accused vide arrest memo Ex. PW10/A and personal search memo Ex. PW10/B, about recording of disclosure statement Ex. PW10/C of the accused, about pointing out of the place of incident by the accused vide memo Ex. PW10/D, about medical examination of the accused vide MLC Ex. PW10/E, about depositing the exhibit in the Mal Khana, about getting the statement of the child victim recorded u/s 164 Cr.P.C vide Page 12 of 18 application Ex. PW3/A and collecting the copy thereof vide application Ex. PW 3/D. She further deposed about collecting the documents Ex. PW2/A to Ex. PW 2/D, about recording the statements of the neighbours of the child victim, about getting the autorickshaw of the accused photographewd vide photograpes Mark X, Y and Z and about filing of the charge sheet on completion of investigation. She also identified the torn clothes of the victim as Ex. P1.
During crossexamination, she stated that the spot was a thickly populated place. She denied that she had tutored the child victim before getting her statement recorded u/s 164 Cr.P.C or the accused had been falsely implicated in the matter by the parents of child victim under the guidance of Dharamvir Pradhan.
15. The Ld. Addl. P P for the State has very vehemently argued that in the present case, the accused committed aggravated sexual assault upon a minor girl aged about 10 years and the child victim has been consistent throughout the investigation and trial with regard to the act of the accused and her testimony finds fully corroboration with the evidence of her mother as well as from the medical evidence. It is further argued that the accused has failed to prove his defence in the matter and as such the conviction of the accused for the charged offence has been prayed for.
16. Per contra, the Ld. Amicus Curiae, Ms. Usha Rani, ld. LAC has very vehemently argued that there are material contradiction and improvements in the Page 13 of 18 testimony of the child victim and as such, her testimony cannot be believed. She further argued that child victim is a child of tender age and is easily pliable by her parents and the accused has been falsely implicated in this case by the mother of the child victim by using the child as a pawn in order to avoid herself to pay the loan amount of Rs. 5,000/, which she had taken from the accused. It is further argued that the sole independent witness i.e. PW5 Smt. Bhanumati did not support the version of the child, which itself shows the false implication of the accused. It is next argued that the place of incident was situated in a thickly populated area and no such alleged incident was possible and the conviction of the accused cannot be based solely on the uncorroborated testimony of child victim and as such, it is prayed that he be acquitted of the charged offence.
17. I have considered the arguments advanced at bar and carefully gone through the entire record.
18. As far as the age of the victim child is concerned, PW2 has proved her date of birth as 02.08.2005. The school recorded this date of birth on the basis of affidavit furnished by the father of the victim in 2012 and this is the first attended school of the victim child where she was admitted in classI. There is no reason to disbelieve the date of birth of the victim given by her father at the time of her admission in the year 2012. It cannot be presumed that her father gave a wrong date of birth in 2012. Only because no birth certificate of MCD was furnished at Page 14 of 18 the time of admission is no reason to disbelieve the date of birth of the victim given in her first attended school. The prosecution as such has duly proved that victim was born on 02.08.2005 and was less than 12 years of age on the date of incident in 2015.
19. Coming to the incident, there is no delay in making police complaint. The alleged incident occurred around 5.00p.m. on 12.09.2015 when victim child was alone at her residence. Her mother returned from her job at around 7.00p.m. The victim informed her mother immediately and PCR call was made by her mother at about 7.39p.m. The delay of two hours occurred because the victim child of 10 years of age was alone at her residence when the incident occurred. Further, the victim in her statement recorded u/s 164 Cr.P.C. has specifically stated about the act committed by the accused upon her. She has stated that at about 5.00p.m., the accused came to her residence asked her to fill water and immediately he jumped the boundary and held her from back and bite her cheek and torn her salwar and tried to remove her underwear and also offered her Rs.500/ and then she somehow rescued her. When she told about this fact to her mother, her mother confronted the accused and he brought one sword and started abusing. He also broke the windscreen of his TSR to falsely implicate the parents of the victim. Police came and arrested him. In the court also, she narrated the incident and there is no improvement or contradiction to disbelieve her version. Despite her tender age, she has recollected the entire incident and has duly identified the accused.
Page 15 of 18So far as the arguments of nonjoining independent witness in the present case is concerned, it is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify by the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, "xxx A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
20. Further, prosecution case that accused bite the victim on her cheek is supported by the MLC of the victim. The doctor found a bite mark on the cheek of the victim with mild swelling which shows that accused bite the victim child during Page 16 of 18 his attempt to sexually assault her. The arguments of the defence counsel that public witness PW5 did not support the prosecution case is no help of the accused as this witness has supported the prosecution case to the effect that the victim child came to her at around 5.00/6.00p.m. and informed her that "humko uncle chhed rahe hain". This witness thought thereafter turned hostile about the detailed act of the accused but supported the prosecution case to the effect that the victim lodged the complaint with her and accused is the same person with whom mother of the victim was quarreling at around 7.00p.m. These two facts support and corroborate the prosecution case that accused committed some wrong act with the victim and victim complained about this to an independent witness PW5 and thereafter the mother of the victim confronted the accused which resulted in quarrel and police was called.
21. It cannot be ignored that there is presumption of law against the accused once the prosecution proves the commission of offence. The defence of the accused that he has been falsely implicated by the mother of the victim in connivance with her landlord Dharamvir has not been proved by him. Accused is required to lead cogent evidence to rebut the presumption of law u/s 29 of the Act against him. He has failed to rebut the said presumption. There is no dispute to the law that conviction can be based on the sole testimony of reliable witness. The prosecution has proved that accused had attempted to commit the offence punishable u/s 10 read with Section 9(m) of the POCSO Act punishable u/s 18 of the POCSO Act.
Page 17 of 18Accused is as such is convicted for this offence. Since accused has been convicted u/s 18 of POCSO Act, he is not separately convicted for offence punishable u/s 376(2)(f)(i) read with 511 IPC and 354 read with 354B/511 IPC.
22. As far as charges for the offence punishable u/s 12 of POCSO Act read with Section 11(vi) of the POCSO Act are concerned, the prosecution has failed to prove that the accused sexually harassed the victim as defined u/s 11 of the POCSO Act. The necessary ingredients of sexual harassment are not made out against the accused. As per prosecution accused offered Rs.500/ to the victim after attempt of sexual assault. The same does not fall in the definition of sexual assault as contemplated u/s 11(vi) of the POCSO Act. The accused is acquitted for the charges u/s 12 of the POCSO Act. He is only convicted for attempt to cause aggravated sexual assault u/s 10 of POCSO Act read with section 18 of the POCSO Act.
23. Let the convict be heard on the point of sentence on 05.04.2018.
Announced in the open Court (Amit Kumar)
on 03.04.2018 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
Page 18 of 18