Delhi District Court
Sc No: 198/13 State vs . Udhav on 23 December, 2015
SC No: 198/13 State Vs. Udhav
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 198/13
FIR No. 162/13
Police Station Jahangir Puri
Under Section 376 2(I) IPC & 6 POCSO
ID No. 02404R0-241752013
State
Versus
Udhav
S/o Sh. RS Mishra,
R/o R-177, Laxmi Nagar,
Delhi ......Accused
Date of institution 30.08.2013
Judgment reserved on 17.12.2015
Judgment Pronounced on 22.12.2015
Decision Convicted
Judgment 1 of 27
SC No: 198/13 State Vs. Udhav
JUDGMENT
1. FIR in question was registered on the written complaint of the aunt of the victim who alleged that on 20.05.2013, there was marriage function of her sister Nisha in a tent installed in the park, EE Block. At about 12.30 AM her niece victim 'M' was dancing of DJ Floor and from there she went missing. As soon as her family members started looking for the victim, victim came from behind the tent in frightened condition and disclosed that a person gagged her mouth and took her behind the tent. Victim disclosed that the said person started to insert his finger into her urinating part. As victim felt pain, she screamed and the said person ran away. Complainant then narrated the incident to uncle(Chacha) of the victim and they both brought victim to identify the culprit. As the victim pointed out the accused, he tried to escape but complainant raised an alarm and some unknown boys standing outside the tent caught hold of the accused. When those boys came to know about the incident they gave beatings to the accused. Somebody called the police and the matter was reported to police.
Judgment 2 of 27 SC No: 198/13 State Vs. Udhav
2. Victim was medically examined and her statement U/s 164 Cr.P.C. was also got recorded. At the instance of the complainant, accused was arrested. Charge for the offence punishable U/s 6 POCSO (Protection of Children from Sexual Offences), Act 2012 alternatively S.376 (2)(i) IPC was framed against the accused on 28.01.2014 to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 19 witnesses.
4. PW1 Kaushal Kumar proved date of birth of the victim as 16.08.2006 per her School Record as Ex PW1/A and a date of birth certificate issued by the MCD as Ex PW1/C.
5. PW2 is victim. She testified that she went to marriage of her bua with her family members where a man gagged her mouth and took her behind tent. There he inserted his finger in her private part. Her uncle came there and saved her. She identified the accused as an offender and proved her statement recorded by the police as Ex PW2/A. Judgment 3 of 27 SC No: 198/13 State Vs. Udhav
6. PW3 father of the victim deposed, that victim was playing inside the tent and he was busy in looking after the arrangements in the marriage function of his sister. In the meantime, he got to know that victim was molested. In his presence, victim pointed out towards the accused as the person who sexually assaulted her.
7. PW4 uncle of the victim deposed that he was attending the marriage of his sister Nisha. He was busy and was looking after the affairs of the marriage. At about 12.30 a.m. (night) victim came running in the tent and she appeared to be very perturbed. She came along with his sister Rama Bharti. Victim told that someone tried to rape her. She pointed out towards the accused who was present in the tent and in the meantime, accused tried to run away from the tent. They raised alarm and the public apprehended the said boy outside the tent in the gali. Thereafter, they went to the police station.
Judgment 4 of 27 SC No: 198/13 State Vs. Udhav
8. PW5 Dr. Neeraj Chaudhary, proved the MLC of the victim as Ex. PW5/A and deposed that a abrasion over right cheek of the victim was noticed on her local examination.
9. PW6 Dr. Smita Pathak, examined the victim and deposed that hymen of the victim was found torn and inflammation was seen on her labia majora as per her findings given on MLC of the victim as Ex. PW5/A .
10. PW7 HC Sunil Dutt proved the FIR in question and his endorsement over Rukka as Ex. PW7/A & B.
11. PW8 Ct Ram Bhateri along with Ct. Sunil went to the place of occurrence on receipt of a call at about 02:15am. Ct. Sunil took the custody of accused. Thereafter, she took victim & her bua to BJRM Hospital for the medical examination of the victim. She collected the MLC & exhibits from the doctor and handed over to the IO vide memo Ex. PW8/A. In her presence, IO recorded statement of the complainant Judgment 5 of 27 SC No: 198/13 State Vs. Udhav and prepared rukka which was handed over to her for registration of FIR. She got FIR registered and went to the spot with copy of FIR.
12. PW9 is aunt of the victim and complainant. She deposed on the lines of the compliant and proved the arrest of accused vide memo Ex PW9/A.
13. PW10 Ct. Aaresh deposited the exhibits with FSL.
14. PW10 Ct Sunil also disposed on the lines of the PW9.
15. PW11 Sh. Manish Khurana, Ld. ASCJ proved the proceedings recorded the u/s 164 Cr.PC as Ex. PW11/A.
16. PW12 SI Vinod reached the spot on receipt of DD 8A.
17. PW13 HC Jaipal proved the deposit of the case property with the Malkhana and sending it to FSL vide entries Ex. PW13/A-C. Judgment 6 of 27 SC No: 198/13 State Vs. Udhav
18. PW14 Ct Sunil Dev reached the spot on receipt of the DD No. 8A. He proved the arrest, personal search and disclosure statement of the accused vide Ex. PW9/A, Ex PW14/A & Ex PW14/ B and pointing out memo prepared at the instance of the accused as Ex. PW14/D. He also proved the seizure of exhibits of accused after his medical examination vide memo Ex PW14/C.
19. PW15 Dr. Deepak also deposed in respect of MLC of the victim as Ex. PW5/A.
20. PW16 Inspector Kamal Duggal is the investigating Officer. She recorded the statement of the complainant and prepared the rukka as Ex.PW16/A. She prepared site plan of the place of the occurrence at the instance of the victim as Ex.PW16/B. She arrested the accused and also collected the blood samples. She got recorded the statement of victim U/s 164 Cr.P.C.
Judgment 7 of 27 SC No: 198/13 State Vs. Udhav
21. PW17 Ct Vikas recorded DD 8A regarding a wrong act committed on a girl proved on record as Ex PW17/A.
22. PW18 SI Sangeeta, filed the charge-sheet after obtaining the marriage photographs Ex PW18/A-1 & A-2 and age proof of the victim.
23. PW19 Dr. Kappu, deposed that as per the observations of Dr Smita Pathak hymen of the victim was found torn and inflammation was seen on her labia majora as mentioned on MLC of the victim as Ex. PW5/A .
24. Report of the FSL was taken on record as Ex F-1.
25. On conclusion of the prosecution evidence, the statement of accused was recorded U/s 313 Cr.P.C. wherein the accused stated that merely on suspicion he has been implicated in the case. Accused preferred not to lead DE.
Judgment 8 of 27 SC No: 198/13 State Vs. Udhav
26. Ld. Defence Counsel has argued that the prosecution has miserably failed to prove its case. It is submitted that the delay in lodging of FIR has not been explained. TIP of the accused was not conducted to establish the identity of the accused despite the fact that the victim did not see the face of man who committed the alleged sexual assault on her. It is stated that there is inconsistency in the statement of the victim as well as her relatives in respect of the incident. It is also argued that the medical & FSL report does not implicate the accused and therefore, the accused is entitled to be acquitted.
27. Per contra, it has been submitted on behalf of the State that the testimony of the victim is trustworthy and reliable and the same clearly establishes the guilt of the accused. It is stated that the victim has duly identified the accused as the person who sexually assaulted her and the testimony of her father and her aunt corroborates her version. It is stated that the medical evidence brought on record indicates sexual assault on the victim and hence, the prosecution case has been proved against the accused beyond any reasonable doubt.
Judgment 9 of 27 SC No: 198/13 State Vs. Udhav
28. I have heard the Ld. Addl. PP for the State and Ld. Defence Counsel. I have also gone through the entire record.
29. Before adverting to the rival contentions, let us first consider the age of the victim at the time of incident.
30. Age of the Victim: Accused has been charged for the offence punishable U/s 6 POCSO Act. Thus, the first ingredient to be to find out is that whether the victim was a child less than 12 years on the date of incident. Date of birth of the victim is proved on record as 16.08.2006 as per documents Ex PW1/A-C, that goes to show that she was about 6 years old on the date of incident. Defence has not disputed the age of the victim in any manner nor anything has been produced on record to dispute the age of victim. Thus, in the light of the evidence led, the age of the victim is found to be around 6 years on the date of commission of offence.
Judgment 10 of 27 SC No: 198/13 State Vs. Udhav
31. Delay in FIR: First line of attack of the defence is in respect of the delay in registering of the FIR. It has been contended on behalf of the accused that as per the prosecution case the incident occurred at about 12:30 midnight whereas the FIR in question was got registered at about 05:15 am. It has been argued that no explanation is forthcoming from the prosecution witnesses that as to why there was delay in registration of FIR and this delay casts a shadow over the case of prosecution.
32. After going through the record, it is evident that the incident took place at about 12:30 midnight and the accused person was apprehended by the public persons. Matter was reported to the police and police took the victim for her medical examination. Time of arrival of the victim for medical examination is mentioned on MLC Ex PW5/A is 3:00 am. Thereafter, statement of the complainant was recorded. Testimonies of witnesses shows that there is no delay on the part of the complainant to report the matter to the police and whatever time was spent in between was taken to complete the formalities and for medical examination of the Judgment 11 of 27 SC No: 198/13 State Vs. Udhav victim. Delay in recording of FIR, in these facts cannot be termed as unexplained or inordinate and the same does not dent the case of prosecution in any manner.
33. Testimony of victim: Testimony of victim has been attacked by the defence by arguing that her testimony does not find support from the deposition of her father, uncle & bua (PW3, 4 & 9). It has been submitted that PW9 (bua of victim) deposed that she saw the victim coming from behind the tent and upon asking the victim, victim told her that one person inside the tent had inserted his finger in her private part whereas the victim and her father deposed that the victim after coming from behind the tent had met his chacha and not PW9. On the basis of aforesaid contradiction it has been argued that the testimony of the witnesses as to the incident could not be relied upon.
Judgment 12 of 27 SC No: 198/13 State Vs. Udhav
34. In order to appreciate the argument, it would be appropriate to reproduce the testimony of victim:
"I had gone to attend the marriage of my bua namely N...... My all family members were present in the said wedding. In the marriage, one man gagged my mouth and took me behind the tent. There he inserted his one finger into my urinating part. I raised alarm. My uncle namely M came there when he heard my voice and saved me. "
35. Victim is aged about 6 years and she has described the entire incident which happened with her. Deposition of the victim made in the Court is no different then the statement given by her to the Ld. MM recorded u/s 164 Cr.P.C and proved on record as Ex. PW2/A. Wherein she stated :-
"Yesterday night was marriage of my Bua. In the marriage function one person whose name I do not know, caught hold & gagged me and took me behind the tent. There he started inserting his finger in my urinating part. He inserted one finger in my urinating part. I raised alarm. Then listening my scream some one came there. That person saw us, I do not know name of that person. Seeing that person, offender got Judgment 13 of 27 SC No: 198/13 State Vs. Udhav frightened and left me. I ran from there and went to my Chacha M and narrated incident to him. After returning home, I disclosed entire incident to my Bua R...... When I disclosed the incident to my Chacha then my father and Chacha caught the offender who was trying to escape and beat him. That person was taken to police station and police apprehended him."
36. No doubt that PW9 in her deposition claimed that the victim told her about the incident and PW4 (Chacha of victim) also testified that he noticed the victim was coming along with PW4 but this contradiction in the testimony of witnesses cannot be termed as material contradiction so much so to discard the testimony of the victim specially when the victim has narrated the entire incident firstly to the Doctor, then to Ld. MM and thereafter in her testimony before Court. After going through the testimony of the victim, I find that her testimony is reliable and truthful and merely the anomaly about the person to whom she first disclose the incident does not discredit her testimony.
Judgment 14 of 27 SC No: 198/13 State Vs. Udhav
37. Defence has pointed out that in her cross examination the victim has testified that she was not able to notice the face of the man when he gagged her and took her behind the tent. On the basis of this deposition it has been argued that the victim was herself not able to notice the face of the man who gagged her and took her and the prosecution did not conduct any TIP Proceedings, therefore, the identification of the accused by the victim in the Court cannot be believed. In this regard, the defence has relied upon case titled as Ashok Narang Vs. State, 2012 II AD (Delhi) 481 wherein the Hon'ble High Court of Delhi in a case where the accused was not known to the prosecutrix prior to the incident and no TIP was conducted by prosecution acquitted the accused.
38. Victim in her deposition correctly identified the accused and the facts of the case demonstrates that the accused was apprehended from the spot on pointing out of the victim as the person who sexually assaulted her. It is not a case where the accused committed an offence and thereafter managed to escape and was caught later on rather in the Judgment 15 of 27 SC No: 198/13 State Vs. Udhav present case the accused was apprehended at the spot. No doubt the victim testified that she was not able to notice the face of the man when he gagged her and took her behind the tent but that doesn't mean that victim had no opportunity to see the accused while the accused was inserting his finger in private part of victim. In these facts, where the accused was apprehended from the spot and handed over to the police by the relatives of victim absence of TIP Proceedings would not affect the case of prosecution in any manner. Thus, there is no reason to doubt the identification of the accused by the victim.
39. Victim has narrated the act of accused in her version given to Doctor as well as recorded u/s 164 Cr.P.C. She also deposed on similar lines before the Court and despite her cross-examination, the defence has not been to dent her deposition on any material aspect. In these facts, testimony of the victim is found reliable, truthful and worthy of credit.
Judgment 16 of 27
SC No: 198/13 State Vs. Udhav
40. Medical & Forensic Evidence: It has been argued on
behalf of the accused that although the hymen of the victim was found torn as observed in her MLC Ex PW5/A but the same cannot be considered as freshly torn as no bleeding occurred. It is submitted that had it would be a case of sexual assault then the bleeding must have been occurred. In support of this argument Ld. Counsel for accused has relied upon a case titled as State of Madhya Pradesh Vs. Keshar Singh Crl. A. No. 2244 of 2009 decided by Hon'ble Apex Court on 03.07.2015 wherein the Hon'ble Court relied upon the following testimony of the Doctor:
"......... that when she touched hymen of prosecutrix, no fresh blood oozed out. This may be contrasted to the fact that allegedly, the medical examination of the prosecutrix was conducted 12 hours of the alleged incident of rape. Had that been so, the prosecutrix must have bleeded fresh during the medical examination but that did not happen...."
41. On the basis of the above findings, it has been argued that since there was no bleeding therefore, the incident of sexual assault stands not proved.
Judgment 17 of 27 SC No: 198/13 State Vs. Udhav
42. In her testimony, PW19 Dr. R. Kappu, categorically opined that it is not necessary that the bleeding would take place in case the hymen is torn after fingering in the vaginal part for 2-3 minutes. Allegations made by the victim are only in respect of fingering on her private part and it may not lead to any bleeding as deposed by the Doctor. Thus, the act attributed to the accused is quite different to the act discussed in the judgment relied upon by Ld Defense Counsel.
43. Lastly, the defense has argued that the FSL Report Ex. F-1 does not indicate any kind of sexual assault on the victim as semen could not be detected on the exhibits taken from body of victim or her clothes. It is also argued that in absence of any forensic evidence accused cannot be held guilty. In this regard, accused has relied upon case titled as Sukru Gouda Vs. State of Orissa, 2004 Crl.L.J 1566, State Vs Rashid, Crl L.P. No. 51/2015 & State Vs Mullah Muzib, Crl L.P. No.62/2015 wherein in the absence of medical & forensic evidence, Hon'ble High Court upheld the acquittal of the accused.
Judgment 18 of 27 SC No: 198/13 State Vs. Udhav
44. On perusal of the judgments, it can be noticed that Hon'ble High Court has upheld the acquittal of the accused not merely in the absence of forensic & medical evidence but also after considering the material contradictions in the testimony of material witnesses. The facts of present case demonstrate, that the act described by the victim is insertion of a finger by the accused in her private part and as per her testimony when the accused inserted his finger in her vagina she felt pain and screamed. Accused then immediately left her. Thus, it is not the case where the prosecution alleges any ejaculation at the spot or on clothes of the victim, thus, in these facts absence of any forensic evidence does not have any material bearing on the case.
45. None the less, MLC of victim is proved on record as Ex. PW5/A. On the MLC it is mentioned that "patient says that he inserted his finger in her underpants for approx. 2-3 minutes and closed Judgment 19 of 27 SC No: 198/13 State Vs. Udhav her mouth". As per the observations, an abrasion over right cheek of the victim was there, extremely tenderness present, labia majora inflamed and the hymen of victim was found torn. All the observations on the MLC are indicative of the penetrative sexual assault. So, it becomes evident that the medical evidence corroborates the version of the victim that she was sexually assaulted.
46. Conclusion: From the discussions herein above, it emerges that:
i) Testimony of victim establishes that she was sexually assaulted by the accused.
ii) Victim has duly identified the accused as an assaulter.
iii) Medical evidence corroborates penetrative sexual assault on the victim.
iv) PW3,4 & 9 corroborated chain of events.
v) Accused failed to establish any defence.
Judgment 20 of 27
SC No: 198/13 State Vs. Udhav
47. Accordingly, it is held that the testimony of the victim is trustworthy and reliable in respect of the incident of sexual assault on her by the accused. Allegations also found corroboration from the deposition of the complainant and medical evidence. Allegations against the accused of sexually committing penetrative sexual assault on a 6 year old child stands proved. Thus, the accused stands convicted for the offence punishable U/s 6 POCSO Act and U/s 376(2)(i) IPC.
Matter be listed for hearing arguments on quantum of sentence for 23.12.2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELH
22.12.2015
Judgment 21 of 27
SC No: 198/13 State Vs. Udhav
IN THE COURT OF SH. GAUTAM MANAN,
ASJ-01, NORTH, ROHINI
In the matter of:-
S. C. No. 198/13
FIR No. 162/13
Police Station Jahangir Puri
Under Section 376 2(I) IPC & 6 POCSO
ID No. 02404R0-241752013
State
Versus
Udhav
S/o Sh. RS Mishra,
R/o R-177, Laxmi Nagar,
Delhi ......Convict
ORDER ON SENTENCE
1. Accused Udhav has been convicted U/s 6 POCSO Act as well as U/s 376 (2)(i) IPC. I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and Ld. Counsel for the convict.
Judgment 22 of 27 SC No: 198/13 State Vs. Udhav
2. Learned Addl. PP has very vehemently argued that the offence committed by the convict in this matter is of highly derogatory in nature. The child victim was subjected to sexual assault by the convict. It is further argued that the incestuous crimes in our society are presently on rise, which substantially hamper the mental and physical development of children. POCSO was enacted by the Parliament bearing in mind that the offenders under the said Act shall be dealt with with heavy hand, therefore, stringent punishment has been provided for in the said Act. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 6 of the Act in the matter, so that the same may act as deterrent for other impending offenders.
3. Per contra, the learned defence counsel has submitted that convict is a young man aged about 24 years. He has already undergone about 30 months imprisonment as under-trial in this case, during which period, his conduct was never questioned by the Jail authorities. In the end, it is submitted that the convict is the first time offender as Judgment 23 of 27 SC No: 198/13 State Vs. Udhav such benefit of Probation of Offender's Act be granted to the convict.
4. I have given thoughtful consideration to the arguments advanced by Bar by both the sides and to the facts and circumstances of the case in totality.
5. In my considered opinion, the nature of offence committed by the convict does not demand that he be released on probation. Although, the convict has been sentenced U/s 376 (2)(i) IPC as well, I proceed to pass sentence against the accused U/s 6 POCSO Act.
6. Keeping in view of the overall circumstances of the case, Interest of justice would be met, if the convict is sentenced to Rigorous Imprisonment for a period of 10 years along with fine of Rs. 5,000/-, in default SI for a period of 1 month for the offence punishable u/s 6 POCSO Act. Benefit of Section 428 Cr.P.C is accorded to the convict.
Judgment 24 of 27 SC No: 198/13 State Vs. Udhav
7. Compensation: 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.
8. 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 legislation, 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. Section 33(8) POCSO Act, also mandates that in addition to the punishment to the accused, the victim be granted compensation for physical and mental trauma caused to him and for the rehabilitation of the victim.
Judgment 25 of 27 SC No: 198/13 State Vs. Udhav
9. Therefore, in order to provide Restorative and Compensatory Justice to the victim, Rs. 2,00,000/- (Rs. Two lac only) is granted to the victim as compensation. Learned Secretary, D.S.L.S.A, North District, New Delhi shall ensure that the said amount is given to the parents of the victim within one month on receipt of this order and shall further ensure that the said amount is disbursed in such a manner that the same be used for welfare and rehabilitation of the victim.
10. A copy of this order along with the particulars of the victim be sent to learned Secretary, D.L.S.A, North District., Rohini Courts, Delhi for necessary compliance.
11. Convict is informed of his right to prefer an appeal against this judgment. He has been apprised that if he cannot afford to engage an Advocate, he can approach the Legal Aid Cell, Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 34-37, Lawyer Chamber Block, High Court of Delhi.
Judgment 26 of 27 SC No: 198/13 State Vs. Udhav
12. A copy of judgment and copy of order on sentence be supplied free of cost to convict.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
23.12.2015
Judgment 27 of 27