Delhi District Court
State vs . Anil @ Kalu @ Thakur on 22 February, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.09/13)
Unique ID case No. 02404R0345742012
State Vs. Anil @ Kalu @ Thakur
FIR No. : 234/2012
U/s : 376/511 IPC
P.S. : Bharat Nagar
State Vs. Anil @ Kalu @ Thakur
s/o Sh. Bhu Dev
r/o Jhuggi Kabir Nagar,
Rani Pratap Bagh, Delhi.
Permanent r/o Village Attena,
District Aligarh, UP.
Date of institution of case 10.12.2012
Date on which, judgment has been reserved 21.02.2014
Date of pronouncement of judgment - 21.02.2014
JUDGMENT:
1 Briefly stated that the case of the prosecution that the accused is the neighbour of victim S. On the day of the incident victim S, aged about five years, was going to the house of her paternal aunt (Bua), at about 1:30 PM, when accused met her SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 1 of 24 2 on the way and kidnapped her on the pretext of taking her to play with rabbit ('khargosh se khelenge'). He took the victim S to his jhuggi where he wrongfully restrained her and attempted to rape her. Since the brother of accused reached there, the accused could not succeed in his nefarious intention and thereafter he made the victim child go away from his jhuggi after giving her one rupee and told her not to tell about the incident to anyone. The victim S went home and when her mother returned back from work, in the afternoon, and was putting victim S to sleep, she narrated about the misdeeds of accused to her mother, who immediately went to confront the accused with what had been told to her by victim S. At that time accused was not found in his jhuggi, however, later on he was apprehended by the mother of the victim S and was given beatings by other public persons present there. The matter was also reported to the police. The case was registered against the accused on complaint made by mother of the victim S and investigations were commenced. During the course of investigations, victim S was taken for medical examination, however, her mother refused for her gynecological examination. The accused was also got medically examined and samples seized from him by the concerned doctor were taken by the IO and were later got sent to FSL. The statement of victim child was got recorded u/s.164 CrPC. After completing the investigation charge sheet was prepared and filed in the Court through SHO concerned. 2 Upon committal of this case to the court of Sessions, charges for the offence under Sections 341/363/354 IPC and u/s. 376/511 IPC were framed against the accused Anil @ Kalu @ Thakur, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 2 of 24 3 3 In order to prove its case, prosecution has examined 17 witnesses. Prosecutrix / victim S and her parents 4 The PW3, victim S, is the prosecutrix in the present case and her testimony shall be discussed at length in the following paragraphs of the judgment. 5 The PW4, Sh. Dhara Singh, is the father of the victim S. He deposed that he was working as a Juice Seller and that his wife was working as a maid servant in houses. He further deposed that on 14.10.2012, he had gone to market for some purchases and that when he came back at about 2:00 - 2:30 PM, he came to know from his wife that accused Anil, who was residing in his neighbourhood jhuggi, had tried to commit a wrong act with his daughter i.e. victim child S, aged about 5 years. The PW4 stated that on hearing this he went in search of accused and apprehended him with the help of other persons from neighbourhood and that accused admitted his guilt after a quarrel and that on hearing this public persons started beating accused. Someone called police and when police came to the spot, accused was handed over to the police. The PW4 further deposed about the medical examination of his daughter i.e. victim child S. He further stated that accused Anil was also known by the name of 'Kalu'.
6 During his crossexamination, the PW4 stated that accused was apprehended by them on their way to his house. He then stated that accused had already been apprehended by his wife with the help of other public persons and when SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 3 of 24 4 he reached home, accused was sitting in his house.
7 The PW14, Smt. Chandani, is the mother of the victim S. She deposed that she was working as a maid servant in different houses in the area of Shakti Nagar and that on 15.10.2012, when she came back from her work at about 1:30 PM, she found that her daughter i.e. victim child S had returned back from the house of her Bua. She further deposed that when she was putting her daughter (victim child S) to sleep, in the afternoon, victim child S told her that she wanted to tell her one thing but asked her (PW4) not to beat her. The PW14 further deposed that she then inquired from victim child S, who told her (PW14) that when she was going to the house of her Bua, Anil Bhaiya (accused) met her and told her that "Khargosh se khelenge" and he took her to his jhuggi and at his jhuggi, accused made the victim child S to lie down on a cot, removed her paijami and opened zip of his pant and he touched his "Susu" on her "Susu" and that in the meantime, brother of accused came to jhuggi and asked victim child S to go to her house. The victim child S further told PW14 that accused had given her one rupee and asked her not to disclose about the incident to her i.e. to PW14. The PW14 further deposed that after hearing this, she went to the jhuggi of accused but accused was not found there and she disclosed about the incident to her neighbourers and on hearing this crowd gathered there and that in the meantime accused also came to that place and was apprehended by the public persons and was beaten by them. The PW14 further deposed about being taken to PS where statement of victim child S as well as PW14 was recorded. She also deposed about being sent to hospital for medical examination of victim child S but stated that due to tender age of her daughter ( victim child S), she had refused for her gynecological examination. The SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 4 of 24 5 PW14 proved her statement as Ex.PW13/A and further deposed that the clothes which victim child S was wearing at the time of incident, were seized by the IO vide memo Ex.PW7/A. The PW14 then deposed about the site plan Ex.PW13/B which was prepared by the IO upon their pointing out. The PW14 also proved the arrest and personal search memos of accused as Ex.PW7/C and Ex.PW7/D respectively and his disclosure statement as Ex.PW7/E. The pointing out memo of the place of incident, prepared at the instance of accused, was proved by him as Ex.PW7/F. The PW14 identified the accused. She also identified the clothes which victim child S was wearing at the time of incident and the same were then exhibited as Ex.P1 (colly). 8 During her crossexamination, the PW14 stated that after hearing the incident from victim child S, she had first of all given call to her husband and thereafter at about 3:00 PM, she went to the jhuggi of accused along with her husband and 2 - 3 other ladies of the locality. She also stated that at that time accused was not present at his jhuggi and so she went to house of her sister in law (Nand) and that there she was informed by one lady that accused had come back and that when she reached near jhuggi of accused, she saw that some ladies were beating him. The PW14 further stated that her statement was recorded by the IO at PS and not at the place of incident. She also explained that she had gone to hospital from PS. The PW14 further stated that she had not washed the clothes which her daughter was wearing at the time of incident before handing them over to the police officials. The PW14 could not give details of the clothes which accused was wearing when she met him. She denied that accused had been falsely implicated in the present case due to previous animosity, he being neighbour in the same locality.
SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 5 of 24 6 Witness qua the age of accused 9 The PW1, Mrs. Chetna, Admission Incharge, Primary Teacher, produced original record from MC Primary School, Rana Pratap BaghII, Delhi7, wherein child / accused Anil Kumar was admitted in first class and proved copy of admission form and affidavit of Smt. Narmada, mother of the accused, as Ex.PW1/A and Ex.PW1/B respectively ; photocopy of the relevant entry in the admission register as Ex.PW1/C and the original certificate of date of birth, issued by the School Principal as Ex.PW1/D. As per record produced by PW1, the date of birth of accused is 27.01.1991. The date of commission of offence in the present case is 15.10.2012 and as per record produced by PW1, the age of accused comes to be about 21 years and 9 months as on the date of commission of offence.
Doctor witnesses 10 The PW5, Dr. Mohit Tiwari, was working as CMO on 15.10.2012 and he deposed that on that day, general examination of patient - victim S was conducted by Dr. Gagan, the then JR, under his supervision, vide MLC Ex.PW5/A and thereafter the patient was referred to gynecology department for internal medical examination. The PW5 identified handwriting and signatures of Dr. Gagan on MLC and proved the same as Ex.PW5/A. 11 The PW16, Dr. Latika, SR Gyne, was deputed in place of Dr. Mamta SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 6 of 24 7 Rahangdale, then SR Gyne, who had examined the victim child S on 15.10.2012. She further deposed that as per noting made by Dr. Mamta on the MLC Ex.PW5/A, the mother of the victim child S had refused for her daughter's internal medical examination. The PW16 identified handwriting and signatures of Dr. Mamta on the MLC of victim child S. 12 The PW9, Dr. Rahul, CMO, was deputed in place of Dr. Javed, then JR Casualty and Dr. Rahul, SR (Surgery), who had examined the accused on 16.10.2012 vide MLC Ex.PW9/A. He deposed that after examining accused, Dr. Rahul opined that "it is not suggestive that he (accused) cannot perform sexual act". The PW9 also elaborated upon the findings of injury on person of accused, as reflected from observation made by Dr. Javed, on MLC Ex.PW9/A. Police Witnesses 13 The PW10, Ct. Vikram Singh, was posted as DD writer at PS Bharat Nagar at the relevant time. He deposed that on 15.10.2012 at about 04:05 PM, an information was received from wireless operator regarding commission of rape by one Anil upon a girl (prosecutrix), aged 5 years, and that PW10 reduced the said information into writing vide DD No.23 PP. He produced the original DD register and proved the true copy of DD No.23 PP as Ex.PW10/A. 14 The PW2, HC Rajpal Chhillar, was posted as duty officer at PS Bharat Nagar at the relevant time. He proved endorsement made by him on the rukka as SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 7 of 24 8 Ex.PW2/A and the computerized copy of FIR as Ex. PW2/B. 15 The PW13, SI Usha, is the IO of the case and she deposed regarding the investigations carried out by her and the documents prepared by her during the course of investigations. She deposed that on reaching the spot i.e. jhuggi at Kabir Nagar, she recorded the statement of PW14 Smt. Chandani and thereafter took the victim child along with her mother for medical examination to BJRM Hospital where mother of the victim child refused for internal medical examination of the victim child S. She further deposed that she made endorsement on complaint of Smt. Chandani and sent it to PS through Ct. Sanjay for registration of case FIR and that thereafter from the hospital, she along with victim child, her mother, her staff and the accused returned back to the spot where she prepared site plan Ex.PW13/B at the instance of Smt. Chandani and the victim child. The PW13 then deposed that PW14 Smt. Chandani produced the clothes of the victim child which she was wearing at the time of incident i.e one frock of cream and black colour and one paijami of purple colour (Falsa colour), and that the same was seized by her (PW13) vide seizure memo Ex.PW7/A. She proved the arrest and personal search memos of accused as Ex.PW7/C and Ex.PW7/D respectively and his disclosure statement as Ex.PW7/E. She then deposed about medical examination of accused at BJRM Hospital. She further deposed that the victim child was produced before concerned CWC from where the custody of victim child was handed over to her mother. The PW13 also stated that she had collected the age proof of the victim child from Nigam Pratibha Vidalaya, Rana Pratap Bagh1. The PW13 proved the FSL result as Ex.PW13/C and also identified the clothes of the victim child as Ex.P1. SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 8 of 24 9 16 The PW7, Ct. Sanjay, had joined investigations of the present case with PW13 W/SI Usha Rani and deposed regarding the same. He proved the seizure memo of the clothes of the victim child, as Ex.PW7/A ; seizure memo of the exhibits taken from the accused during his medical examination, as Ex.PW7/B ; arrest memo of accused as Ex.PW7/C ; personal search memo of accused as Ex.PW7/D ; disclosure statement of accused as Ex.PW7/E and pointing out memo of place of incident as Ex.PW7/F. The PW7 further deposed that on 19.10.2012 he had taken the exhibits of the case and deposited the same at FSL Rohini vide RC No.95/21/12 Ex.PW6/C. 17 The PW8, Ct. Neeraj Kumar, had got medical examination of accused conducted at BJRM Hospital, on the instructions of IO, and deposed regarding the same.
18 The PW17, W/SI Rajesh, is the part investigating officer of the case. She deposed that during investigation, she recorded the statement of Ct. Parvinder, in compliance of the objection raised by the prosecution and thereafter on completion of investigations, charge sheet was prepared and was filed in the Court. 19 The PW11, Ct. Parvinder, is the photographer - member of the Crime Team and had taken photographs of the spot at the instance of the IO. He produced the negatives of photographs which were taken on record and exhibited as Ex.PW11/A11 to Ex.PW11/A5. The original photographs were proved as Ex.PW11/B1 to Ex.PW11/B5.
SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 9 of 24 10 20 The PW12, SI Naresh Pal, was the Incharge of the Crime Team that had visited the spot, inspected it and prepared the inspection report Ex.PW12/A and deposed regarding the same.
21 After closing of prosecution evidence, statement of accused Anil @ Kalu @ Thakur was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been falsely implicated in this case by the victim child S due to previous animosity with her brothers Sunil and Dalip, who used to frequently quarrel with him. The accused declined to lead any evidence in his defence.
22 Arguments have been addressed by learned amicus curie for the accused as well as learned Additional PP for the State.
23 Learned Additional PP has contended that prosecutrix has fully supported the case of the prosecution and that prosecution has succeeded in proving its case against the accused beyond reasonable doubt by examining the material witnesses namely victim child S and her parents. It is stated that in view of the testimony of the prosecutrix no other evidence is required and has accordingly prayed that accused Anil @ Kalu @ Thakur be convicted u/s. 376/511 IPC and in the alternative he be convicted of offence u/s.341/363/354 IPC.
24 On the other hand, learned Amicus Curie for accused has contended that accused has been falsely implicated in the present case and that there are serious lacunaes in the case of the prosecution since the person, who had knocked at the SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 10 of 24 11 jhuggi of the accused, and the lady, who had informed the mother of the victim regarding the presence of accused at his jhuggi, have not been joined as witness. It is further contended that there are contradiction in the testimony of prosecution witnesses qua the time and place of arrest of the accused and the place where the statement of victim and her mother were recorded. It is also contended that no public witness was joined in the investigation by the IO despite their availability and even the person, who had given information regarding the incident could not be traced out by the police which is a serious lacunae in the prosecution case. It is further contended that no photographs of the alleged door of the jhuggi of accused were got taken to establish that a door did exist in the jhuggi of the accused. It is thus contended that the prosecution has failed to prove its case against the accused beyond reasonable doubt and it is prayed that the accused be acquitted of charged offences. 25 I have heard the arguments put forward by ld. Addl. PP as well as 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.
26 In the present case accused, who is neighbour of the victim child S and her family, is alleged to have kidnapped victim child S, aged about 5 years, while she was going to the house of her Bua at about 1:30 PM on 15.10.2012, and thereafter he is stated to have taken her to his jhuggi situated in Halwaiwali Gali, Kabir Nagar, Rana Pratap Bagh, where he not only wrongfully restrained her but criminally assaulted her and used criminal force upon her.
SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 11 of 24 12 27 The incident in the present case is stated to have taken place at about 1:30 PM. The very first information about the incident was given to PS Bharat Nagar at about 4:05 PM by a caller from house No.320, Gali No.8, Kabir Nagar, R.P. Bagh, from mobile phone No.9210089448. The caller informed that "S . . . d/o Desh Raj, age 5 years, ka Anil naam ke ladke ne rape kar diya hai". This information was reduced into writing vide DD No.23 PP i.e. Ex.PW10/A. From perusal of DD No.23 PP i.e. Ex.PW10/A, it is seen that all the relevant information regarding the caller, the victim and the alleged accused was conveyed to the police officials through the said DD within two and a half hours of the incident.
28 It is further the case of the prosecution that when police took up investigation, the mother of the victim gave her complaint Ex.PW13/A to the IO, on the same day, wherein she narrated, what had been conveyed to her by victim S, that while she was going to her Bua's house in the morning, accused Anil s/o Bhu Dev, who was residing in nearby jhuggies and was known to her from before, met victim S and took her to his jhuggi where he removed her paijami and opened chain of his pant and touched her private parts (Peshab ki jagah ko chedane laga) and that thereafter someone knocked at the door on which accused let go of the victim child. 29 The IO recorded statement of victim child S u/s.161 CrPC on 15.10.2012 itself in question answer form. After putting some preliminary questions (Question Nos. 1 to 9) to the victim, the IO asked questions regarding the incident from the victim child, in response to which the victim child deposed as under : SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 12 of 24 13 ". . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . .
Ques. No.10: Aaj app kaha gaye the ?
Ans.: Aaj me khelti rahi.
Ques. No.11 : Aur bhi kahi gaye the aap beta ?
Ans.: Ha, aaj din me Bua ke ja rahi thi.
Ques. No.12 : Aapki Bua kaha rehti Hai ?
Ans.: Bua pados me hi rehti hai.
Ques. No.13 : Beta kya apko Bua ke ghar jate samay raste me koi mila ?
Ans.: Ha, mujhe Anil mila jise me janti hu.
Ques. No.14 : Beta Anil ne apko kuch kaha ?
Ans.: Anil ne mujhe kaha aa jaa Khargosh se khelenge.
Ques. No.15 : Phir kya hua ?
Ans.: Wah mujhe apni jhuggi me le gaya jo kahi thi.
Ques. No.16: Beta phir kya hua ?
Ans.: Usne neri pajaimi uttar di wah apni pant ki chain khol di. Ques. No.17 : Uske baad kya kiya ?
Ans.: Wah mujhse lipat gaya wah meri peshab ki jagah chedne laga. Ussi samay kisi ne darwaja khatkhataya, usne mujhe chod diya, aur me bhagkar apne ghar chali gayi.
Ques. No.18 : Beta apko ghar par kaun milla wah kya hua ?
Ans.: Meri mummy thi jo bed par so rahi thi, mummy ke pass me SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 13 of 24 14 gayi, mummy ne kaha so ja tab maine bataya jo maine apko bataya hai ki mere sath Anil Bhaiya ne gandi baat kari."
30 The victim was produced before learned MM for her statement u/s.164 CrPC i.e. Ex.PW15/B on 16.10.2012 wherein she deposed as under : "me ghar par apni mummy papa ke sath rehti hu. Me pehli kaksha me padati hu. Kal me school nahi gayi ghar par hi khel rahi thi. Dopahar ko me pedal akeli apni Bua ke ghar ja rahi thi. Bua paas me hi rehti hai. Jab me ja rahi thi toh mere Arun bhaiya ka dost Anil mila. Anil ne mujhse kaha ki Khargosh se khelenge phir woh mujhe apni lakdi ki jhuggi me le gaya. Apne ghar me usne meri paijami uttar di aur apni pant ki chain ki khol di. Meri bhi shame shame kar di aur uski bhi shame shame ho gayi. Anil ne mujhe khat par leta diya. Usne meri peshab karnewali jagah ko ungali se cheda. Itne me bahar se koi darwaja peetane laga toh Anil ne mujhe chod diya. Anil ne mujhe kaha ki kissi ko mat bataiyo me tujhe paise dunga, phir me apne ghar chali gayi aur mummy ko sari baat bata di."
31 The statement of victim child S was recorded in Camera Proceeding in the Court on 21.03.2013. Considering the tender age of the victim child S, her mother as well as counsel from DCW were permitted to remain present, during the proceeding, as support persons, with the consent of learned amicus curie for the accused. The victim SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 14 of 24 15 was provided some colours and toys to keep her occupied and after making her comfortable, some preliminary questions were asked from the witness to ascertain whether she was capable of understanding questions and answering them reasonably. After being so satisfied with the capacity and capability of the witness to give statement, her version / deposition was recorded wherein she deposed as under : "Q. Aap batao kaya hua tha ?
Ans. Me apne ghar ja rahi thi, ek ladka mila bola, khargosh se khelenge.
Q. Aap kaha se ghar ja rahi thi?
A. Mein gali se ghar ja rahi thi.
Q. Phir kaya hua?
Ans. Ladke ne mujhe khat par lita diya.
Q. aap ko kaha par khat par litaya ?
Ans. Apne kamare me.
Q. Khir kaya hua?
Ans. Usne Hamari pajami kholi aur apni chain khol di.
Q. Phir kaya hua?
At this stage, the witness was seen hesitating to speak further and was coaxed to speak further. Thereafter she states that "hum apni bua ke ghar ja rahe the, ladka le gaya, usne meri susu me ungli dali, uska chota bhai dopahar ko kanche khel ke aa raha tha, usne bola ki mujhe bole ja apne ghar ja".
SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 15 of 24
16
Q. Fir apne kya kiya ?
Ans. Me apne ghar aa gahi. Mummy mujhe apne pas leta
rahi thi, maine mummy ko sab bata diya.
Q. Aap ne mummy ko bataya tha kisne kiya?
Ans. Ha.
Q. Aap naam jante ho uska ?
Ans. Ha, Anil.
Q. Aur kuch batana chahte ho?
Ans. Bas itni baat hui thi. '
Q. Anil ne aap ko kuch kaha tha?
Ans. Anil ne kaha tha kisi ko mat bataio ek rupaiya diya tha."
During her crossexamination, the witness deposed as under : "Q. Aap ko kaun si chocolate pasand hai ?
Ans. 5 wali.
Q. Kaya naam hai uska ?
Ans. Chocolate.
Q. Aap ko kaun sa khel pasand hai ?
Ans. Doll se khelna pasand hai.
Q. Aap ke paas kitni doll hai?
Ans. ek.
Q. Aap ko aaj savere mummy ne kuch bataya tha ?
SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 16 of 24
17
Ans. Nahi.
Q. Jo apne Anil ke bare me bataya, woh mummy ne
batane ko bola tha ?
Ans. Nahi.
In order to clarify about the identity of the accused from witness a Court question was put to witness which was responded to by witness as under : Court Ques. Aap Anil ko kaise pehchante the ?
Ans. Woh hamare ghar aate the, mere bade bai ke dost
hai."
32 From the abovementioned statement (s) of the victim S i.e. her statement
u/s.161 CrPC (dated 15.10.2012), her statement u/s.164 CrPC, Ex.PW15/B dated (16.10.2012) and her deposition in the Court as PW3 (recorded on 21.03.2013), it is observed that the victim S, despite her tender age of 5 years, has been consistent in her narration of the acts committed by the accused which violated her person and modesty. The fact that there were rabits (Khargosh) in the house of accused stands proved by the prosecution from the testimony of PW11 Ct. Parvender, photographer of the Mobile Crime Team and PW12 SI Naresh Pal, I/C, Mobile Crime Team. In the photographs Ex.PW11/B1, Ex.PW11/B3 and Ex.PW11/B4, a cage with rabbit in it is clearly visible and thus the statement given by the victim child S that accused had taken her with him on the pretext of playing with rabbit (Khargosh Se khelenge) inspires considerable confidence. It is noteworthy that a specific question was put to the SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 17 of 24 18 accused regarding the presence of rabbit in his jhuggi and the report given by PW12 SI Naresh Pal as well as photographs Ex.PW11/B1 to Ex.PW11/B5 , in response to which accused stated as under : "Ques No.12 A : It is further in evidence against you that PW12 SI Naresh Pal deposed that during inspection, he found that there was a wooden cot, one blanket and one cage, in which, one rabbit of white colour were found lying in your jhuggi. What do you have to say?
Ans. It is correct, because that is my house / jhuggi.
Ques. No.13 : It is further in evidence against you that PW11 Ct. Parvinder - photographer of the crime team, took five photographs Ex.PW11/B1 to Ex.PW11/B5 (negative of which are proved as Ex.PW11/A1 to Ex.PW11/A5) of the scene of occurrence and said cage of rabbit and blanket are visible in photographs Ex.PW11/B1 and Ex.PW11/B3, while all the three articles are visible in photograph Ex.Pw11/B4 and Ex.PW11/B5. What do you have to say?
Ans.: I do not know.
33 The accused has thus admitted about presence of a rabbit (Khargosh) in his jhuggi even though he expressed his lack of knowledge about photographs, taken by the police photograph.
SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 18 of 24 19 34 Further the testimony of victim S is duly corroborated that of her mother PW14 Smt. Chandani to whom victim S had narrated the incident, at about 2:00 PM when PW14 was putting victim S to sleep in the afternoon. The PW14 acted immediately thereafter and informed her husband about the incident and thereafter she went after the accused.
35 The learned counsel for accused has contended that the fact that IO failed to join any public witness and further failed to trace out the caller who had given information to the police and also the person who had knocked at the door of the jhuggi of the accused are serious lapses. These lapses, if any, are on the part of the IO and would not effect the clear and cogent testimony of victim S who has withstood the test of time and crossexamination to recapitulate and narrate the incident which appears to have been imprinted on her tender mind. Even otherwise it has been held in the case of Karnel Singh Vs. State of MP (1995) 5 SCC 518, 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. This case involved challenge to conviction of accused u/s.376 IPC and one of the grounds of challenge was defective investigations. 36 The learned amicus curie has also argued about some discrepancies in the testimony of prosecution witnesses. No doubt there are also some discrepancies in the testimony of the prosecution witnesses as to place where the statement of victim S and SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 19 of 24 20 her mother was recorded as well as the time and place of arrest of the accused, however, the said discrepancies are of minor nature and do not affect the cogent and trustworthy testimony of victim S and her parents PW14 Smt. Chandani and PW4 Sh. Dara Singh. Even otherwise it has been held in case of Leela Ram Vs. State of Haryana and Anr. JT 1999 SC 274, that, " . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . there is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirely. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embelishments, there may be, put variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not obliterate an otherwise acceptable evidence . . . . . . . . . . . . . . The Court shall have to bear in mind that different people / witnesses react differently under different situations whereas some become speechless, some start wailing, while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals only. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 20 of 24 21 his reaction and not falling within a set pattern is improductive and a pedantic exercise.
38 In the present case PW4 Sh. Dhara Singh and PW14 Smt. Chandani, are parents of a five year old minor girl, who had been kidnapped, wrongfully confined and criminally assaulted by their neighbour, who also happened to be friend of their son. It is but natural for them to be reeling under shock and struggling to take stock of situation. They are not expected to act with surgical precision and make note of minute details, at that time.
39 It has lastly been contended by the learned amicus curie that victim S being a tender age child of 5 years has been tutored to depose against the accused. It is true that the statement of the child witness is to be scrutinized with great care and caution, yet the testimony of victim child cannot be disbelieved merely on the ground of tender age and possibility of child making up a story, specially when the same is supported by the other material placed on record by the prosecution. In this regard it has been held by Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, that : "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 SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 21 of 24 22 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."
40 In the present case, not only does the testimony of victim child/PW3 inspires confidence, but even otherwise, her testimony is duly corroborated by that of her mother PW14 Smt. Chandani. I find no reason as to why a child of such tender age, would implicate an innocent person for an offence which was undisputedly committed with her. It would be worthwhile to remember that the victim child in the present case was a very vulnerable victim because of her tender age (she is aged 5 years old) and no plausible justification has come forth from accused, why a child of such a small age would nurture an enmity or grudge or ill will against him. The testimony of victim child clearly bring out the traumatic experience she suffered at the hands of the accused.
41 In case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 22 of 24 23 molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence. It must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
42 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved that on the day of incident accused kidnapped victim child S, aged about 5 years, and took her in his jhuggi situated in the Halwaiwali Gali, Kabir Nagar, Rana Pratap Bagh, Delhi, and thereafter wrongfully restrained her and criminal assaulted and used criminal force upon her with intent to outrage her modesty, and as such the guilt of the accused Anil @ Kalu @ Thakur proved on record, beyond the reasonable doubts. Accordingly, I hold guilty accused SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 23 of 24 24 Anil @ Kalu @ Thakur for the offences punishable u/s 341/363/354 IPC. The offence u/s.376/511 IPC, however, does not stand established against the accused. The accused he is convicted accordingly.
(Announced in the open Court ) (Illa Rawat)
(Today on 21.02.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 24 of 24
25
FIR No. 09/2013
P.S. Bharat Nagar
State Vs. Anil @ Kalu @ Thakur
21.02.2014
Present : Ld. Additional PP for the State.
Accused produced from JC with counsel Sh. B.P. Singh, learned Amicus Curie.
Arguments heard.
Judgment shall be passed during the course of the day.
ASJ/NW01
Rohini/Delhi
21.02.2014
At 4:00 PM
Present: Ld. Additional PP for the State.
Accused produced from JC with Amicus Curie.
Vide separate judgment announced today in the open Court, accused Anil @ Kalu @ Thakur has been convicted u/s. 341/363/354 IPC.
Be listed for arguments on the point of sentence on 22.02.2014.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 21.02.2014 SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 25 of 24 26 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 09/2013) Unique ID case No. 02404R0345742012 State Vs. Anil @ Kalu @ Thakur FIR No. : 234/12 U/s : 376/511/363/354/341 IPC P.S. : Bharat Nagar State Vs. Anil @ Kalu @ Thakur S/o Bhudev R/o Jhuggie Kabir Nagar, Halwai Wali Gali, R.P. Bagh, Delhi.
22.02.2014 Present : Ld. Addl. PP for the State.
Convict produced from J.C., with ld. Amicus Curie Sh. B.P. Singh. ORDER ON THE POINT OF SENTENCE In the present case, the convict - Anil @ Kalu @ Thakur has been convicted u/s 363/354/341 IPC.
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.
2. It has been submitted by the Ld. Addl. PP that in view of serious nature of SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 26 of 24 27 offence committed by the convict, he convict does not deserve any leniency and she prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the learned Amicus Curie for the convict submits that the convict Anil @ Kalu @ Thakur is aged about 24 years and is unmarried, having no previous criminal record. He further submitted that convict is illiterate, having old aged parents, two younger sisters aged about 6 and 10 years, respectively and three younger brothers aged about 10, 15 and 18 years. He further submitted that convict being the eldest son of the family, is doing the work on Kharad machine and is helping his parents to meet with the expenses. It is further submitted that convict belongs to a low strata of society and has been in custody for the last about one and a half years. It is further submitted that convict is not a previous convict and is not involved in any other case and he prays that a lenient view may be taken in this case and sentence for the period already undergone by him may be awarded and he be given a chance of rehabilitation.
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 Anil @ Kalu @ Thakur has been convicted for committing the offence punishable u/s- 363/354/341 IPC. It is noteworthy that convict was a neighbour as well as friend of the elder brother of the prosecutrix and was thus, a familiar person, who was easily trusted by the victim child. The convict also had a rabbit with him and like all other small children, the victim child could be promptly SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 27 of 24 28 lured to go to jhuggie of convict for playing with said rabbit (khargosh). Since the convict was a neighbour and a friend of brother of the victim, he could entice her and take the victim with him in broad day light, without raising an iota of doubt regarding his intentions. The convict took victim S with him and thereafter, wrongfully confined her in his jhuggie and thereafter, criminal assaulted and used criminal force upon her with intend to outrage her modesty. Had it not been for a chanced arrival of someone/his younger brother, who knocked on the door of jhuggie, the victim S may have been attended with further irreparable harm. The proximity, which convict was enjoying with the family of victim S, kept him well informed about movement/presence of her other family members and thus, gave him an easy access to the victim child. Keeping in view the serious allegations against the accused, he is not entitled to a lenient view by taking plea that he being the eldest son of his parents and helping hand of his family. In my opinion, convict is not entitled to any leniency. I hereby award sentence the convict Anil @ Kalu @ Thakur as under
(i) For the offence u/s 363 IPC, the convict Anil @ Kalu @ Thakur is sentenced to Rigorous Imprisonment for a period of seven years along with a fine of Rs. 5,000/(Rs. Five thousand only), in default of payment of fine, to undergo S.I for six months.
(ii) For the offence u/s 354 IPC, the convict Anil @ Kalu @ Thakur is sentenced to Rigorous Imprisonment for a period of two years along with a fine of Rs. 2,000/(Rs. Two thousand only), in default of payment of fine, to undergo S.I for three months.
(iii) For the offence u/s 341 IPC, the convict Anil @ Kalu @ Thakur is sentenced to simple Imprisonment for a period of one month along with a SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 28 of 24 29 fine of Rs. 500/(Rs. Five hundred only), in default of payment of fine, to undergo S.I for seven days.
All the sentences shall run concurrently.
6. The convict has been in custody since 15.10.2012 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 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 SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 29 of 24 30 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 self confidence 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 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 SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 30 of 24 31 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. 1,00,000/ (Rs. One lac only) to the prosecutrix. 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 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 SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 31 of 24 32 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 22.02.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
SC No. 09/2013 State Vs. Anil @ Kalu @ Thakur Page Nos. 32 of 24