Delhi District Court
State vs Raman Kumar on 20 July, 2015
SC No. 26/2/13
FIR No.142/13
PS.Dabri
State VS.Raman Kumar
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE01, DWARKA COURTS, NEW DELHI
In the matter of :
SC No. : 26/2/2013
FIR No. : 142/2013
Police Station : Dabri
Case ID No. : 02405R0122782013
Under Section : Under section 10 read
with Section 9 (m) of
The Protection of
Children from Sexual
Offences Act, 2012.
Fresh charge sheet : 10.05.2013
filed on
Reserved for : 08.07.2015
judgment on
Judgment : 17.07.2015
announced on
State
Versus
Raman Kumar
S/o Tilak Raj
R/o AB 25 Shalimar Bagh
New Delhi. ... Accused
SC NO.26/2/2013 1/38
SC No. 26/2/13
FIR No.142/13
PS.Dabri
State VS.Raman Kumar
JUDGMENT
1. The prosecution story in brief is that on receipt of DD No.36A, SI Beena inquired accused, who was brought by the complainant i.e.father of child victim and thereafter handed over him to Constable Ratan. Thereafter, SI Beena had gone to the complainant's home where she recorded the statement of child victim. [The names of child victim and her father are being withheld to protect their identity U/s 33(7) of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act).
2. In her complaint Ex.PW1/A, child victim had stated that when she had gone to her back side gali to bring something, she found an old man standing there, who called her. Child victim had stated that when she went to him, he caught her from her waist and told her to ask her mother to shave her long pubic hair. Child victim had stated that accused told her that he has photograph of her mother taking bath and will show her. Child victim had stated that thereafter accused told her to move forward as one rehriwala was standing nearby and SC NO.26/2/2013 2/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar thereafter touched her organ of urination. Child victim had stated that somehow, she managed to escape and came to the confectionery shop. Child victim had further stated that accused was watching her and thereafter, he left. Child victim had stated that after purchasing the material, she returned to her house from the alternate way to avoid accused and disclosed the entire facts to her mother, who in turn told to her father. Child victim had stated that thereafter, her father took a stick (danda) and accompanied her in search of accused but they failed to trace him near the spot. Child victim had stated that during search, when they reached bus stand, she found one person sitting facing downwards and told her father that he is the person, who had committed wrong act with her. Child victim had stated that thereafter, accused started running but his father caught hold of him, who told him that he has not done anything. Child victim had stated that thereafter police reached there.
3. On the basis of complaint of child victim, FIR No. 142/2013, PS Dabri was registered under section 354A/509 IPC and under section 10 POCSO Act and thereafter, the matter was taken up for investigation.
SC NO.26/2/2013 3/38SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar
4. During the course of investigation, SI Beena prepared the site plan at the instance of complainant/father of child victim and recorded statement of witnesses under section 161 Cr.P.C.
5. After completion of investigation, since the matter pertained to POCSO Act, therefore, charge sheet was filed directly before this court. After taking cognizance of the offence, accused was summoned and on his appearance, copy of charge sheet and documents were supplied to him. Thereafter, arguments on the point of charge were heard and based upon the material on record, charge against accused was framed for the offence under section 10 read with Section 9 (m) of POCSO Act to which accused pleaded not guilty and claimed trial. Thereafter, the matter was posted for prosecution evidence.
6. The prosecution has examined in all 09 witnesses.
7. PW1 is the Child victim. Child victim has reiterated the facts mentioned by her in her complaint Ex.PW1/A. PW1 SC NO.26/2/2013 4/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar Child victim proved her statement under section 164 Cr.P.C. vide Ex.PW1/B. PW1 correctly identified the accused before this court, who had committed wrong act with her.
8. In her cross examination by counsel for accused, PW1 deposed that the incident had taken place on 11.03.2013 at about 1.00 p.m.and on that day, her school was closed due to holiday. PW1 deposed that it took about five minutes from her house to reach confectionery shop. PW1 deposed that accused met her prior to reaching the shop. PW1 deposed that she did not tell anything to the shopkeeper. PW1 deposed that the place where accused met her is not visible from the shop. PW1 admitted that some persons were sitting in the street but they were not known to her. PW1 deposed that her father was at his house on that day. PW1 denied that her mother accompanied her father in search of accused. PW1 deposed that her father did not tell her as to what she has to depose before the court. PW1 deposed that police was not called and it reached on its own. PW1 deposed that her mausa ji was already standing at the place where accused was apprehended by her father. PW1 SC NO.26/2/2013 5/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar deposed that accused was apprehended from a street behind the bus stand. PW1 deposed that her father did not disclose to the neighbours regarding the incident which took place with her. PW1 further deposed that when they left their house in search of accused, they did not inform the police. PW1 deposed that when she reached at her house with her mausa ji, one lady police officer came to her house and recorded her statement in her own handwriting at her house when none other than her and lady police official was present. PW1 denied that she told her mother that nothing had happened with her. PW1 admitted that her mother's statement was not recorded by the police in her presence. PW1 denied that nothing was happened with her or accused did not misbehave with her at any point of time or that she is deposing falsely at the instance of her parents as well as IO. PW1 further denied that she is deposing falsely at the instance of her father, who has enmity with accused. PW1 denied that she had identified the accused at the instance of other child victim, who was present in the police station. PW1 deposed that she did not sign the statement recorded by the police. PW1 deposed that the lady police officer did not read over her statement SC NO.26/2/2013 6/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar Ex.PW1/A to her, however, police had recorded whatever was told by her.
9. PW2 Constable Amit has deposed that he was working as Record Munshi with MHCR at PS Shalimar Bagh. PW2 proved the previous involvement report of accused Raman Kumar vide Ex.PW2/A.
10.PW3 is the mother of child victim. PW3 deposed that on 12.03.2013 at about 3.004.00 p.m., her daughter child victim had gone to fetch eatable items from a nearby shop. PW3 deposed that when her daughter/child victim returned to house, she was weeping and on being enquired, she told her that one old man had met her, who had misbehaved with her and touched her private part. PW3 deposed that thereafter she apprised the entire facts to her husband, who was present at the house. PW3 deposed that her husband and her daughter child victim left the house in search of accused and some neighbours also accompanied her husband in search of accused. PW3 deposed that after about one hour, she came to know from neighbours that accused had been apprehended. PW3 deposed that she alongwith some SC NO.26/2/2013 7/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar neighbours went to police station where her husband and accused were present. PW3 correctly identified the accused as the very same person, who was apprehended by her husband at the instance of her daughter child victim.
11.PW4 is the father of child victim. PW4 deposed that in the month of March, 2013 at about 2.00 -2.30 p.m., he was present at his house. PW4 deposed that his wife told him that his daughter child victim had gone to fetch some eatables and when she returned, she told that one old person had misbehaved with her. PW4 deposed that thereafter, he alongwith his daughter child victim went in search of accused. PW4 deposed that when he alongwith his daughter child victim were returning to their house and reached in front of DTC bus stop at Dwarka Puri, Vijay Enclave, Dabri, New Delhi, accused was present there and on seeing us, accused tried to escape from the spot. PW4 deposed that he chased him and with the help of some public persons, he apprehended accused at some distance. PW4 deposed that some police officials also reached there and he apprised the facts to them, who took them to police SC NO.26/2/2013 8/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar station. PW4 deposed that he sent back her daughter through one neighbour to his house. PW4 proved the arrest of accused vide Ex.PW4/A.
12.In his cross examination by counsel for accused, PW4 deposed that on 12.03.2013 at about 2.002.30 p.m., his daughter child victim went to purchase some eatables and she returned after five minutes. PW4 deposed that he does not remember whether his daughter child victim had gone to school on 12.03.2013. PW4 admitted that her daughter child victim did not tell anything to him about the said incident. PW4 deposed that he did not share this incident with the neighbours on that day. PW4 further deposed that no other person except his daughter child victim had accompanied him in search of accused. PW4 deposed that he apprehended the accused with the help of 78 public persons at about 2.40 p.m. PW4 deposed that two beat police officials who were on duty in that area, reached there. PW4 denied that accused was not apprehended at bus stop. PW4 denied that his daughter child victim had not apprised to her mother that accused had misbehaved with her. PW4 denied that accused has been falsely implicated in SC NO.26/2/2013 9/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar this case. PW4 deposed that accused was arrested in his presence at about 3.003.15 p.m. PW4 denied that his wife accompanied him in search of accused. PW4 further denied that he is deposing falsely at the instance of IO.
13.PW5 Constable Rattan Lal deposed that on 12.03.2013, he was posted at PS Dabri and on that day, at around 5.00/6.00 p.m., W/SI Beena handed over the custody of accused to him and she herself went to the house of child victim for recording her statement. PW5 deposed that after registration of case, investigation was entrusted to SI Bhagwan, who at around 8.30 p.m.after making inquiries from accused, arrested him. PW5 deposed that from PS Dabri, he alongwith one constable took accused to DDU Hospital for his medical examination.
14.In his cross examination, PW5 deposed that W/SI Beena was accompanied with complainant i.e.father of child victim. PW5 denied that he is deposing falsely at the instance of IO. PW5 denied that W/SI Beena did not hand over the custody of accused to him at PS Dabri. PW5 further denied that he is an interested witness. PW5 SC NO.26/2/2013 10/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar denied that W/SI Beena was not accompanied with complainant i.e.father of child victim.
15.PW6 ASI Ramesh Kumar is the duty officer of the present case. PW6 deposed that on 12.03.2013, his duty hours were from 4.00 p.m.to 12 midnight. PW6 proved the registration of FIR vide Ex.PW6/A.
16.In his cross examination by counsel for accused, PW6 admitted that contents of tehrir have been converted into FIR. PW6 denied that he had lodged FIR No.142/13 on 12.03.2013 on the basis of complaint of 12.03.2012. PW6 deposed that he did not join the investigation of the present case. PW6 further denied that FIR was registered after one year of the incident at the instance of IO.
17.PW7 Ms.Renu Mann is the SubRegistrar from Birth and Death, Najafgarh Zone, MCD, New Delhi. PW7 proved the date of birth of child victim as 02.03.2005 vide birth certificate Ex.PW7/A.
18.PW8 SI Bhagwan Singh is the investigating officer of the present case. PW8 reiterated the facts stated by him in SC NO.26/2/2013 11/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar the chargesheet prepared by him.
19.In his cross examination by counsel for accused, PW8 deposed that he arrested accused at about 8.00 p.m. PW8 admitted that disclosure statement Ex.PW8/A bears his signature dated 12.03.2012. PW8 voluntarily deposed that the date was wrongly mentioned by mistake. PW8 voluntarily deposed that the year was wrongly mentioned by mistake in the arrest memo Ex.PW4/A of accused and, therefore, the same was corrected. PW8 was confronted with the statement dated 12.03.2013 of the father of child victim Ex.PW8/D1 wherein the date of offence is mentioned as 12.03.2012. PW8 denied that incident as per FIR is of 12.03.2012. PW8 admitted that in Ex.PW1/A W/SI Beena had signed the endorsement as dated 12.03.2012. PW8 was further confronted with Ex.PW8/A where date of 12.03.2012 has been recorded. PW8 voluntarily deposed that the date has been recorded by mistake. PW8 denied that he did not carry out any investigation on 12.03.2013. PW8 denied that he is deposing falsely at the instance of father and other relatives of child victim. PW8 denied that incident is dated 12.03.2012. PW8 further denied that the FIR of the SC NO.26/2/2013 12/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar present case has been prepared after one year of the alleged incident.
20.PW9 W/SI Beena deposed that on 12.03.2013, she was posted as SubInspector. PW9 deposed that on that day, at around 4.45 p.m., father of child victim had brought accused to the police station and told her that accused had misbehaved with his daughter child victim aged about 08 years. PW9 deposed that DD No.36A was made in this regard and the same was marked to her, who thereafter handed over accused to one Constable Rattan in the police station. PW9 deposed that in the meantime, mother of child victim also reached the police station and thereafter, from the police station, she alongwith mother of child victim went to the house of child victim where child victim aged 08 years met her. PW9 deposed that she made inquiries from child victim in presence of her mother. PW9 deposed that after registration of case, the investigation was marked to SI Bhagwan.
21.In his cross examination by counsel for accused, PW9 admitted that the date 12.03.2012 mentioned on tehrir SC NO.26/2/2013 13/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar Ex.PW1/A has been written by mistake instead of 2013, 2012 was written. PW9 deposed that she had recorded the statement of child victim only on 12.03.2013. PW9 denied that she had recorded the statement of child victim on 12.03.2012. PW9 denied that incident is of 12.03.2012 and since accused was running in custody in some other case and to solve this case, he was falsely implicated. PW9 denied that he is deposing falsely at the instance of IO and father of child victim.
22.After closure of prosecution evidence, entire incriminating evidence was put to accused u/s 313 Cr.P.C. Accused stated that it is a false case. Accused further stated that he is innocent and has been falsely implicated in the present case. Accused denied to lead defence evidence.
23.Thereafter, the matter was posted for final arguments.
24.I have heard Sh.Aditya Kumar, Ld.Addl.PP for state and Sh.B.Mishra, Ld.counsel for accused. I have also carefully perused the material available on record.
SC NO.26/2/2013 14/38SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar
25. It was contended by the counsel for accused that in the present case, accused has been falsely implicated as the alleged incident is of 12.03.2012 and since accused was apprehended in FIR No. 47/13, PS Dabri, therefore, to solve the alleged incident of 12.03.2012, accused was falsely implicated in the present case. It was submitted, in support of his submission, that in the complaint Ex.PW1/A, endorsement made by IO is of 12.03.2012, the disclosure statement of accused Ex.PW8/A also records the date of 12.03.2012, the personal search memo and arrest memo of accused Ex.PW4/B and Ex.PW4/A respectively also records the date of 12.03.2012 and even the child victim in her statement under section 164 Cr.P.C. Ex.PW1/B has given the date of incident as 12.03.2012 and statement of father of child victim recorded under section 161 Cr.P.C. Ex.PW8/D1 also mentions that the incident is of 12.03.2012. It was submitted that in order to cover the inordinate delay, the incident is shown to be that of 12.03.2013 and accused has been falsely implicated in the present case.
26.It was also submitted that there is a contradiction in the testimony of PW1 Child victim, PW3 Mother of child SC NO.26/2/2013 15/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar victim and PW4 Father of child victim regarding the time of incident as it has come in the cross examination of PW1 Child victim that incident is of 11.3.2013 at about 1.00 p.m. whereas PW3 Mother of child victim had stated that incident took place on 12.03.2013 at about 3.00--4.00 p.m. whereas PW4 Father of child victim had deposed that incident took place at around 2.002.30 p.m. It was also submitted by the counsel for accused that although PW4 Father of child victim has deposed in his chief that he had apprehended accused with the help of public persons but no public person has been examined in this case to lend credence to his testimony which makes his testimony unreliable regarding the apprehension of accused on 12.03.2013.
27.Lastly, it was submitted that even the age of child victim has not been proved in this case as PW7 Ms.Renu Mann, who had brought the birth certificate of child victim Ex.PW7/A, has admitted that no certificate under section 65B of the Indian Evidence Act had been filed on record. Therefore, certificate Ex.PW7/A is not admissible and if that is ignored, there is no material on record to show that child victim was of 08 years of age at the time of SC NO.26/2/2013 16/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar incident. Accordingly, a prayer was made to acquit the accused under section 10 of POCSO Act.
28.On the other hand, ld.Addl.PP for state has submitted that incident took place on 12.03.2012 as FIR has been registered on the said date and the mentioning of 12.03.2012 on endorsement made by IO on the complaint, the disclosure statement of accused Ex.PW8/A, personal search memo and arrest memo of accused Ex.PW4/B and Ex.PW4/A respectively, is due to bonafide mistake which has been duly admitted by PW8 SI Bhagwan Singh and PW9 W/SI Beena.
29.Ld.Addl.PP further submitted that there is no evidence on record to show that accused was custody in FIR No. 47/13, PS Dabri and to solve the incident of 12.03.2013, accused was falsely implicated in the present case. Ld.Addl.PP further submitted that the birth certificate in original was produced by PW7 Ms.Renu Mann on record and in her evidence, it has not come on record that she has obtained the copy of the same from computer. Therefore, there was no requirement of certificate under section 65B of the Indian Evidence Act, 1872 and hence, SC NO.26/2/2013 17/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar birth certificate Ex.PW7/A is admissible regarding the age of child victim.
30.Lastly, it was submitted that the alleged contradiction with regard to time of incident in the testimony of PW1 Child victim, PW3 Mother of child victim and PW4 Father of child victim, is of no consequence as minor contradictions in the testimony of witnesses are bound to occur when their evidence is being recorded after 11/2 years of the incident.
31.Ld.Addl.PP further submitted that evidence of child victim remains consistent right from the lodging of FIR till her evidence before this court which is duly corroborated by her parents i.e. PW3 and PW4 and there was no reason for the child victim to falsely implicate the accused. Accordingly, it was submitted that prosecution has proved its case beyond reasonable doubt and a prayer was made to convict the accused under section 10 of POCSO Act.
32.I have considered the rival submissions made by respective counsels and have carefully perused the SC NO.26/2/2013 18/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar record.
33.The contentions raised by the defence counsel shall be dealt with by me at the appropriate stage.
34.In the present case, accused has been charged under section 10 of POCSO Act for having committed aggravated sexual assault on 12.03.2013 at around 4.00 p.m. on the person of child victim aged 08 years by touching her waist and vagina.
35.Section 7 of POCSO Act defines "Sexual Assault"
wherein it has been provided that "whoever, with sexual intent touches the vagina, penis, anus or breast of child or makes the child touch the vagina, penis, anus or breast of such person or any person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
36.Section 9 of POCSO Act defines " Aggravated Sexual Assault. Further, as per Section 9 (m) of POCSO Act, Sexual Assault becomes aggravated one when child victim, who has been assaulted is less than 12 years of SC NO.26/2/2013 19/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar age and punishment for the said offence has been prescribed in Section 10 of POCSO Act.
37.Now, let us see whether in the present case, offence of aggravated sexual assault under section 10 of POCSO Act has been proved or not?
38.The material witness of the prosecution is child victim aged 08 years who has deposed on oath that on 12.03.2013 at around 4.00 p.m., when she had gone to buy chips from the confectionery shop, accused met her and called her by saying "GudiaGudia" and when she went near him, he embraced her with his hands from her waist and started talking to her in filthy language. PW1 Child victim deposed that accused told her that he had seen her mother while taking bath and she had very long pubic hair and also asked her (child victim) to ask her mother to shave them off. Accused has further told PW1 Child victim that he is also having photograph of her mother while taking bath and will show the same to her tomorrow. Child victim further deposed that accused thereafter, had touched her organ of urination.
SC NO.26/2/2013 20/38SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar
39.The presence of accused on the spot is duly corroborated by accused himself as during cross examination of PW1, accused suggested that he called PW1 by referring to her as "gudiagudia" and said fact was admitted by PW1.
40.The said testimony of PW1 Child victim has remained consistent as aforementioned facts were stated by child victim before the police in her complaint Ex.PW1/A and also before the Ld.Magistrate under section 164 Cr.P.C. Ex.PW1/B.
41.The consistency of PW1 Child victim makes her testimony reliable and trustworthy and there is no reason to doubt her testimony.
42.Nothing material was brought out in the cross examination of child victim to create a doubt in her testimony.
43.The testimony of PW1 Child victim regarding apprehension of accused from the bus stand alongwith her father has been duly corroborated by her SC NO.26/2/2013 21/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar mother/PW3, who has deposed on oath that when child victim returned to her house, she told her about the incident, who thereafter had told to her father, who alongwith child victim had gone in search of accused.
44.Further, PW4 father of child victim had deposed that when he went in search of accused alongwith her daughter child victim then they found accused sitting in front of DTC Bus stop and on seeing them, he tried to run away but he was apprehended by him alongwith some public persons. Therefore, testimony of all material witnesses is also consistent with regard to manner in which accused was apprehended and the place from where accused was apprehended.
45.From the above discussion, it is proved on record that accused had talked to child victim about the pubic hair of her mother and had also touched child victim from her waist and had her private part.
46.As per Section 7 of POCSO Act, the act of touching the vagina or any other part of the body has to be done with sexual intent.
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47.The Sexual Intent of accused can be gathered from the fact that accused had talked to child victim regarding the pubic hair of her mother and also from the act of touching the waist and organ of urination of child victim.
48.Further, there is also a presumption under section 30 of POCSO Act that such act was done by accused with sexual intention and it was for the accused to have proved that he had no sexual intention when he talked to child victim and touched her waist and organ of urination. However, no evidence has been led on record by accused to rebut presumption under section 30 of the POCSO Act that he had no sexual intention while committing the sexual assault.
49.The next fact which was required to be proved by the prosecution was the age of child victim. As per evidence of PW7 Ms.Renu Mann, age of child victim as per the MCD record was 02.03.2005 and she also proved the birth certificate Ex.PW7/A.
50.The birth certificate Ex.PW7/A is admissible in evidence SC NO.26/2/2013 23/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar as it was produced in original and it has not come in the evidence of PW7 Ms.Renu Mann that she was producing the computerized record of birth certificate. Therefore, since certificate Ex.PW7/A was not the computerized record and was produced in original, therefore, there was no requirement of producing certificate under section 65 of the Indian Evidence Act, 1872 to make the certificate Ex.PW7/A admissible. Accordingly, the contention of the counsel for accused regarding the inadmissibility of certificate Ex.PW7/A is rejected.
51.The other fact which proves the age of child victim is her unrebutted testimony that she was 08 years of age at the time of her testimony before this court on 23.10.2013 which was not challenged during her cross examination. No suggestion was given by defence counsel that child victim was not 08 years of age but was more than that. This admission also proves that child victim was around 08 years of age which is duly corroborated by certificate Ex.PW7/A that child victim was 08 years of age.
52.Lastly, there is a presumption under section 29 of POCSO Act that if any offence is committed under SC NO.26/2/2013 24/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar section 7 of POCSO Act then it shall be presumed to have been committed by accused unless it is proved to the contrary.
53.Said presumption has also not been rebutted to the contrary by accused as accused has not brought any plausible defence either in the evidence or while being examined under section 313 Cr.P.C. as to why he was being falsely implicated by child victim when he was not previously known to her.
54.In the light of above discussion, offence of "Aggravated Sexual Assault" as per Section 9 (m) of POCSO Act has been proved on record.
55.Now, I shall deal with the contentions raised by defence counsel doubting the prosecution's case.
56.The first contention of the counsel for accused that the alleged incident is of 12.03.2012 is not acceptable as although it is true that on various documents i.e. Endorsement made by IO on the complaint, disclosure statement of accused, personal search memo and arrest SC NO.26/2/2013 25/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar memo of accused, the date mentioned is 12.03.2012 but the same has been explained by PW8 SI Bhagwan Singh and PW9 W/SI Beena that it was by mistake that the date was mentioned as 12.03.2012 instead of 12.03.2013.
57.Wrong mentioning of date is duly proved by the testimony of PW1 Child victim, PW3 Mother of child victim and PW4 Father of child victim, who have all deposed that incident is of 12.03.2013. Further, FIR Ex.PW6/A has been registered on 12.03.2013 and accused has been apprehended on 12.03.2013. There is no documentary evidence brought on record by the defence counsel to show that incident is of 12.03.2012 except for the date of 12.03.2012 wrongly mentioned by PW9 W/SI Beena on the complaint Ex.PW1/A.
58.Since in the complaint Ex.PW1/A, PW9 W/SI Beena has wrongly mentioned the date as 12.03.2012, the possibility of same mistake being repeated in the FIR and other documents i.e. PW4/A, PW4/B and Ex.PW8/D1 cannot be ruled out. It is also quite possible that even child victim might have deposed about the wrong date in her statement Ex.PW1/B. Therefore, wrong SC NO.26/2/2013 26/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar mentioning of date as 12.03.2012 in various documents do not establish that the incident is of 12.03.2012 as evidence which has come on record shows that incident took place on 12.03.2013.
59.Further, even in the cross examination of PW1 Child victim, no suggestion was given by accused that incident was of 12.03.2012 and child victim is deposing falsely that the incident is of 12.03.2013 and even the attention of child victim was not drawn to her statement under section 164 Cr.P.C.Ex.PW1/B wherein she had stated the date of incident as 12.03.2012.
60.If attention of witness was not drawn to her statement under section 164 Cr.P.C.Ex.PW1/B then counsel for accused cannot take the benefit of wrong mentioning of date of 12.03.2012 in Ex.PW1/B. I am fortified in my reasoning by the judgment of the Hon'ble High Court of Delhi delivered in Bilal Ahmed Vs. State, 2011 (1) JCC (Narcotics) 27 wherein in paras 13 and 14, it was held as follows: Para 13:".....In view of the settled legal principle that if the testimony of the witness has SC NO.26/2/2013 27/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar to be discredited, the relevant fact should be put to him so that he gets the chance to offer the explanation, this objection is unsustainable as the relevant documents i.e.the report has not been put to the witness. In State of U.P. Vs.Nahar Singh, 1998 (3) SCC 561, it was held:
"13. It may be noted here that part of the statement of PW1 was not cross examined by the accused. In the absence of cross examination on the explanation of delay, the evidence of PW1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
(1) to test his veracity. (2) to discover who he is and what is his position in life; or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly SC NO.26/2/2013 28/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
Para 14:The oft quoted observation of Lord Herschell, L.C.in Browne Vs. Dunn, (1893) 6. The Reports 67 clearly elucidates the principle underlying those provisions. It reads thus:
" I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do it such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound SC NO.26/2/2013 29/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar whilst he is in the box, to give an opportunity of making any explanation which is open to him, and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses. This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing".
61.The other contention of counsel for accused was that there is a contradiction regarding the time of alleged incident in the testimony of PW1, PW3 and PW4 which makes their testimonies unreliable.
62.This contention of the counsel for accused is not acceptable as minor contradictions are bound to occur in the testimony of witnesses and such minor contradictions which do not go to the root of the prosecution case can easily be ignored. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in State of Uttar Pradesh Vs. SC NO.26/2/2013 30/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar Naresh and Ors., (2011) 4 SCC 324 wherein it was observed in para 30 as under:
30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e.go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of witness liable to be discredited. (Vide State Vs. Saravanan, (2008) 17 SCC 587, Arumugam Vs. State ( 2008) 15 SCC 590, Mahendra Pratap SC NO.26/2/2013 31/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar Singh Vs. State of UP, (2009) 11 SCC 334 and Sunil Kumar Sambhudayal Gupta (Dr.) Vs. State of Maharashtra, (2010) 13 SCC.
63.The other contention of the counsel for accused was that accused was lodged in FIR No. 47/13, PS Dabri and therefore, just to solve this case, he has been falsely implicated.
64.This contention of the counsel for accused is not acceptable as no evidence has been led on record to show that accused was running in custody in FIR No. 47/13, PS Dabri and he was falsely implicated in this case and he was not arrested in the manner and from the place as deposed to by PW1, PW3 and PW4.
65.Lastly, the contention of counsel for accused was that public persons, who had apprehended accused were not examined by prosecution. Therefore, apprehension of accused is not proved, is not acceptable as witnesses to the apprehension of accused was PW1 Child victim and PW4 Father of child victim, who have been examined and duly proved the apprehension of accused from the bus stand.
SC NO.26/2/2013 32/38SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar
66.The nonexamination of public persons is not fatal to the prosecution case as it is the quality of witness and not the quantity which is relevant.
67.If the factum of apprehension of accused inspires confidence from the testimony of PW1 and PW4 then it is of no consequence if other public persons, who were instrumental in apprehension of accused, were not examined. Therefore, nonexamination of public persons do not affect the prosecution case regarding the place and manner of apprehension of accused.
68.In the light of above discussion, evidence led on record by prosecution i.e. evidence of PW1 Child victim and PW4 Father of child victim inspires confidence and is trustworthy that accused had sexually assaulted child victim aged 08 years by touching her waist and vagina with sexual intent. Accordingly, accused is convicted for the offence under section 10 read with Section 9 (m) of POCSO Act.
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69.Put up on 20.07.2015 at 2.00 p.m. for arguments on the point of sentence.
Announced in the open court (Vikas Dhull)
Dated: 17.07.2015 ASJ01/Dwarka
New Delhi
SC NO.26/2/2013 34/38
SC No. 26/2/13
FIR No.142/13
PS.Dabri
State VS.Raman Kumar
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS JUDGE01, DWARKA COURTS, NEW DELHI SC NO.: 26/2/13 In the matter of : State Versus Raman Kumar S/o Tilak Raj R/o AB 25 Shalimar Bagh New Delhi.
... Convict 20.07.2015 ORDER ON SENTENCE Pr: Sh.Aditya Kumar, Ld.Addl.PP for state.
Convict produced from JC with counsel Sh.Bhalendu Mishra.
Arguments on the point of sentence heard and record perused.
Counsel for convict has submitted that convict is running in custody since 12.03.2013. It is further submitted that convict is aged 55 years and he has to maintain his old age SC NO.26/2/2013 35/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar parents. It is further submitted that offence under section 10 of POCSO Act carries maximum imprisonment for seven years with fine and since the convict is a first time offender, accordingly, it is prayed that a lenient view be taken by releasing the convict on probation of good conduct so that he gets a chance for reformation.
On the other hand, Ld.Addl.PP for state has submitted that convict has been found guilty for the offence under section 10 POCSO Act which is punishable with minimum imprisonment of five years with fine under section 10 of POCSO Act and such kind of offences are on the rise in the society and to provide a deterrent, maximum sentence should be imposed on the convict. Ld.Addl.PP for state has opposed the plea of probation on the ground that convict has been found guilty of heinous offence under section 10 of POCSO Act which carries minimum sentence of five years and, therefore, having regard to the gravity of the offence and to the fact that offences against girl child are on the rise in the society, the benefit of probation be not extended to the convict so as to provide a deterrent to the society.
I have considered the rival submissions made by the Ld.APP and of counsel for convict. Convict has been found guilty under section 10 of POCSO Act for sexually assaulting SC NO.26/2/2013 36/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar the child victim aged 08 by touching her waist and vagina with sexual intent. It is an admitted case that this is first offence of the convict u/s 10 of POCSO Act which is punishable with maximum imprisonment for seven years with fine.
The mitigating circumstance in favour of convict is that he is the first time offender and his age of 55 years.
The aggravating circumstance against convict is that he had sexually assaulted the girl child aged 08 years by touching her waist and vagina with sexual intent. The other circumstance is that number of cases of girl child abuse are on rise in the society. In the present case, convict has been found guilty of offence under section 10 of POCSO Act dealing with the offences against child victim. Therefore, I am not inclined to exercise discretionary relief of probation in favour of convict.
On balancing the mitigating and aggravating circumstances, it is apparent that aggravating circumstances far outweighs the mitigating circumstances. The offence under section 10 of POCSO Act carries maximum sentence of seven years imprisonment and fine. Therefore, interest of justice will be met if convict is sentenced to minimum punishment of 05 years rigorous imprisonment and fine of SC NO.26/2/2013 37/38 SC No. 26/2/13 FIR No.142/13 PS.Dabri State VS.Raman Kumar Rs.10,000/. Out of fine of Rs.10,000/, Rs.7,000/ shall be given as compensation to the child victim for the sexual assault being committed upon her. In case of default in payment of fine, convict shall further undergo three months simple imprisonment.
Fine not paid.
Benefit of section 428 Cr.P.C.be given to the convict. A copy of judgment and copy of order on sentence be supplied free of cost to convict against receipt.
File be consigned to record room.
Announced in the open court (Vikas Dhull) Dated: 20.07.2015 ASJ01/Dwarka Courts New Delhi SC NO.26/2/2013 38/38