Delhi District Court
State vs . Ram Singh on 23 December, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 42/13)
Unique ID case No. 02404R0146122013
State Vs. Ram Singh
FIR No. : 43/13
U/s : 342/376/511 IPC and
6 & 10 of POCSO Act
P.S. : Shalimar Bagh
State Vs. Ram Singh
s/o Sh. Bir Singh
r/o Jhuggie No. 437, Ayurvedic
Hospital, Som Bazar Road,
Haider Pur, Delhi
Permanent Address :
Village - Lalpur, P.O. Banke
P.S. Bhagwan Pur, Anchal
Bheri, Distt. Banke, Nepal Ganj
Road, Nepal.
Date of institution of case 20.04.2013
Date on which, judgment has been reserved20.12.2014
Date of pronouncement of Judgment : 22.12.2014
JUDGMENT:
1. Briefly stated that the case of the prosecution is that victim R, a child aged about 21/2 years was residing in a jhuggie at Haiderpur with her parents and a six month old younger brother. On the day of the incident, mother of the victim was SC No. 42/13 : State Vs. Ram Singh : Page Nos. 1 of 22 2 giving oil massage to the younger brother of the victim. At that time, accused came there and called out for the victim R. The victim went along with the accused while playing. After about five minutes, Smt. Reena Devi, mother of the victim called out for her, on which, accused Ram Singh, told her that victim R would be returning shortly. Without waiting any further, Smt. Reena went to the jhuggie of the accused and entered it after pushing open the door of the jhuggie, which was closed, but not bolted from inside. After entering the jhuggie of accused, Smt. Reena saw that accused had removed clothes of her daughter R and had also removed clothes from lower part of his body and had made the victim R lie down on the ground and was touching his penis with the private parts of the victim. On seeing this, Smt. Reena started scolding the accused, who got scared and started apologizing for his acts. Smt. Reena gave a call to her husband and taking advantage of her preoccupation, accused attempted to run away from there. Smt. Reena raised alarm, hearing which, people from neighbourhood also collected there. In the meantime, husband of Smt. Reena also reached there and gave a call at 100 number, which was forwarded to PS Shalimar Bagh and was reduced to writing vide DD no. 9A, which was assigned to W/SI Durga Kapri. When, the IO reached the spot with L/Ct. Manju, she found victim present there along with her parents. Smt. Reena, mother of the victim, gave her complaint Ex. PW11/A, pursuant to which, present case was registered against the accused. During the course of investigations, victim as well as the accused were got medically examined at BJRM Hospital. The mother of victim, however, refused for collection of samples from the child. The victim was produced for her statement u/s 164 Cr.P.C on 31.01.2013, however, ld. M.M declined to record the statement of the victim in view of the tender age of the victim child. After SC No. 42/13 : State Vs. Ram Singh : Page Nos. 2 of 22 3 completing investigation, IO prepared the charge sheet and filed the same in this court.
2. After hearing arguments on the point of charge, on the basis of the material on record, a charge for committing the offences u/s 342 IPC and u/s 10 of of the Protection of Children from Sexual Offences Act (hereinafter referred to as "POCSO Act) read with Section 376 (2) (f)/511 IPC were framed against the accused. The accused pleaded not guilty to the charges framed against him and claimed trial.
3. In order to prove its case, the prosecution has examined thirteen witnesses i.e. PW1 to PW13.
Victim and her family members :
4. The PW10, is the victim child S, aged about 4 years. Keeping the tender age of the child in the mind, her statement was recorded in camera proceedings, in presence of Ms. Sarita, Welfare officer from Special Juvenile Police Unit (support person). The undersigned also sat in the court room (not on dias), next to the witness, to make the witness comfortable. The victim was provided colours and white papers to keep her occupied and when, she was comfortable, certain preliminary questions were put to her to ascertain her ability to comprehend the importance of speaking truth and also her capacity to understand the questions put to her and to answer them reasonably. After being so satisfied with her capacity and capability, her statement was recorded in questionanswer form, but without oath considering SC No. 42/13 : State Vs. Ram Singh : Page Nos. 3 of 22 4 the tender age of the child. In the relevant portion of her testimony, the victim S deposed as under : Q. Beta batao kya hua tha ?
Ans. Kuch nahi hua.
Q. Beta Nepali ne apke sath kya kiya tha ?
Ans. Nanga karke niche sulla diya tha.
Q. Niche kaha par sulaya tha ?
Ans. Yaha par (the witness pointed with her hand at the
floor).
Q. Uss samay Nepali kya kar raha tha ?
Ans. Woh nange hokar, mujhe pakad kar so raha tha.
Q. Aur bhi kuch kiya tha usne ?
Ans. Nahi.
Q. Beta batao apko kisne chudaya tha ?
Ans. Phir mummy ne mujhe le liya tha.
Q. Beta aap Nepali ko pehchan sakte ho?
Ans. Ha.
The witness identified the accused as 'Nepali'.
During crossexamination by learned L.A.C, the witness deposed as under : Q. Beta apko Nepali ki shakal theek se yaad nahi hai na ?
Ans. Yaad hai yehi Nepali hai.
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 4 of 22
5
Q. Beta yeh batao ki aap aaj jo bhi bata rahe ho woh apki
mummy ne bataya tha ?
Ans. Nahi apne aap se bol rahi hu.
5. The PW11, Smt. Reena is the mother of the victim child and she deposed that at the time of incident, she was residing with her husband and two children including the victim R, in a tenanted jhuggi near Ayurvedic Hospital, Haiderpur. She further deposed that on the intervening night of 25/26.01.2013, her husband was away on night duty at the Steel Plant at Wazirpur Industrial Area from 9:00 PM to 9:00 AM (next day) and that in the morning of 26.01.2013 at about 8:30 AM, she (PW11) was giving oil massage to her six months old son. She further deposed that at that time, her daughter R was playing in the jhuggi and that accused also came there with 3 - 4 toffees in his hand. She further deposed that her daughter R, who was 2 ½ years old at that time, went with accused to his jhuggie, which was adjacent to the jhuggie of PW11 and that after about, 3/4 minutes, the PW11 called for her daughter R by her name, so that she (victim R) could help her (PW11) by handing over clothes of her son, which were lying near the place where PW11 was giving oil massage to her son, and that she (victim R) did not give any reply and instead accused Ram Singh told her (PW11) from his jhuggi that 'R... abhi aa rahi hai' and that hearing the reply of the accused, she (PW11) got suspicious as to why accused was replying to her instead of her daughter R and immediately rushed to the jhuggi of accused and pushed open the door of the jhuggi, which was closed, however, not bolted from inside and saw that her daughter R was lying naked on an old blanket on the floor and that the accused SC No. 42/13 : State Vs. Ram Singh : Page Nos. 5 of 22 6 was also without clothes and was lying upon her daughter and was touching his penis on the private part of her daughter. The PW11 further deposed that on seeing this, she screamed a loud and asked the accused as to what he was doing with her daughter R and that accused stood up immediately, wore his clothes and tried to flee away from his jhuggie and that PW11 pushed him (accused) inside the jhuggie and raised alarm. She also deposed that accused apologized to her with folded hands, but she (PW11) asked him to remain there, till her husband arrived and that hearing raised voice of PW11, public persons also gathered there and started giving beatings to accused and that PW11 also called her husband on his mobile phone and that when he reached there, he (husband of PW11) gave a call to the police at 100 number and when the police came, statement of PW11 was recorded. The PW11 identified her thumb impression on complaint Ex.PW11/A. The PW11 further deposed about the medical examination of her daughter vide MLC Ex. PW4/A and about arrest of the accused. She proved the arrest memo of the accused as Ex.PW8/A. She further deposed about handing over the MCD Birth Certificate Ex.PW1/B of her daughter R to the police and it being seized vide seizure memo Ex.PW11/B. The PW11 then deposed about pointing out the jhuggie of the accused to the IO, pursuant to which, site plan was prepared and further deposed about the site of occurrence being photographed and videographed by the police.
During her crossexamination by learned LAC, certain improvements were brought out in the testimony of PW11, over and above, the facts stated by her in her complaint Ex. PW11/A, inasmuch as the PW11 had not stated in her complaint Ex. PW11/A that at the time when her daughter R was playing in the SC No. 42/13 : State Vs. Ram Singh : Page Nos. 6 of 22 7 jhuggi, accused Ram Singh came from somewhere with 3 - 4 toffees in his hand. She had also not stated in her complaint Ex.PW11/A that she had called her daughter by her name, so that she could help her (PW11) in getting the clothes of her son, which were lying near the place, where PW11 was giving oil massage to her son. During her further crossexamination PW11 stated that she made her daughter R wear her clothes after bringing her out of the jhuggi of accused. She further termed it correct that she had neither handed over the clothes of her daughter R to the police, nor were the said clothes asked for, by the police, from her. The PW11 also stated that about 200 - 250 people collected at the spot after the incident, but she was unable to tell the exact number of people and explained that it was so as she was busy in taking care of her children. Though, PW11 could not remember the exact number of papers, on which, her thumb impression were taken, she stated that whatever she had told to the police was noted on the paper and the same was read out to her at her house before she put her thumb impression on it and that police had even asked her, what she wanted and that she had told the police that 'humari ladki ke sath kiya hai toh aur kissi ladki ke sath bhi kar sakta hai, mujhe insaf chahiye'. The PW11 denied that her husband used to have frequent quarrels with the accused or that they were having inimical relations or that due to this reason accused had been falsely implicated in the present case. She also denied that she wanted accused Ram Singh to vacate his jhuggi so that she (PW11) could take the same also on rent.
6. The PW9 Sh. Sunil is the father of the victim child and he deposed that in January, 2013, he was residing at at Haiderpur, Delhi, with his family comprising of SC No. 42/13 : State Vs. Ram Singh : Page Nos. 7 of 22 8 his wife and two children including the victim child. He further deposed that on the night intervening 25/26.01.2013, he was performing night shift from 9:00 PM to 9:00 AM (next day) in a Steel plant at Wazirpur Industrial Area and that at about 8:30/8:45 AM, on receipt of a call from his wife that his (PW9's) daughter had been sexually assaulted by Nepali i.e. accused Ram Singh, he immediately rushed back to home and found that public persons had given beatings to the accused. He further deposed that he was informed by his wife that accused had made his (PW9's) daughter R lie down on the floor of his jhuggi after removing her clothes and that accused was lying upon her without his clothes and that his wife entered in the jhuggi of accused and saved his daughter. The PW9 further deposed that on hearing this, he called the police at 100 number and that the police reached there and recorded the statement of his wife. He further deposed that at that time, his daughter R was 2 ½ years old. He further deposed about medical examination of his daughter, about writing work done by the police and about photography and videography of the jhuggi of accused. The witness proved the five photographs of the place of incident as Ex.PW2/B1 to Ex.PW2/B5.
During crossexamination, the PW9 stated that he generally used to leave for his work at about 8.00 am and that at the time of incident, his daughter was not studying in the school. He further stated that he reached at the spot at about 9.45 am and that the police reached within 15 minutes of his calling at 100 number. He further deposed that when he reached the spot, 1020 persons were present there and that the accused was not beaten in his presence. He denied that he was having inimical terms with the accused or that he use to have frequent quarrels with him or that due to this reason, he had falsely implicated the accused in the present case.
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 8 of 22 9 He further denied that he wanted accused Ram Singh to vacate his jhuggi, so that he could take the same also on rent. He volunteered to state that the room under his tenancy was sufficiently big for his requirements and that he did not need another room. The PW9 denied that his signatures were taken on blank papers by the police.
7. The PW7, Sh. Chander Pal, is the owner of the jhuggie No.429 situated at Som Bazar Road near Ayurvedic Hospital, Shalimar Bagh, wherein, the accused used to reside. He deposed that the said jhuggie was a double storied jhuggie with two small rooms on ground floor and two rooms on the first floor and that all the four rooms were let out by him to different tenants namely Puran, Chotte, Moti Lal, Sunil Kumar and Ram Singh (accused in the present case). The PW7 further deposed that he did not get police verification done of said tenants as they were already known to him and had been living in his house since last 4 - 5 years. He further deposed that police came to him in connection with investigation of the present case and asked for the documents regarding the ownership of said jhuggi and that he produced photocopy of his voter Icard Ex.PW7/B, which was seized by the IO vide seizure memo Ex.PW7/A. The witness identified the accused, in the court.
Doctor witnesses :
8. The PW4 Dr. Vaibhav, proved the MLC of the victim child as Ex. PW4/A by identifying the signatures and handwriting of Dr.Gagan JR and Dr. Manas Dubey CMO and stated that after general examination the victim child was SC No. 42/13 : State Vs. Ram Singh : Page Nos. 9 of 22 10 referred to gynecology department for further examination and management.
The PW4 also proved the MLC of the accused as Ex. PW4/B by identifying the signatures and handwriting of Dr. Bishwanath JR and Dr. Seema and stated that after general examination, the patient was referred to Surgery Department, where, he was examined by Dr. Chhitiz Sr Surgery, who gave opinion regarding the potency of the accused.
9. The PW5, Dr. Sachin, had conducted the general medical examination of accused Ram Singh vide MLC Ex. PW5/A and found three injuries i.e. swelling and tenderness over right hand ; abrasion at proximal phylanx of little finger size 1x1 cm/dorsum of right hand and tenderness over second metacarple of right hand. He also stated that patient found finger movements very painful.
10. The PW6, Dr. Latika, proved the handwriting and signatures of Dr. Seema, the then SR, Gynae, who had conducted the gynecological examination of the victim vide MLC Ex. PW4/A and stated that on examination, Dr. Seema found that hymen of the patient was intact.
Witness qua the age of the victim child A
11. The PW1, Sh. Mukesh Kumar, produced the summoned record from the Office of Sub Registrar, North Zone, North Delhi Municipal Corporation, Rohini, Delhi. pertaining to child (child R) born to Smt. Reena and Sh. Sunil r/o Jhuggi No. 420, in front of AV Hospital, Haiderpur, Delhi. He further deposed that as per record, SC No. 42/13 : State Vs. Ram Singh : Page Nos. 10 of 22 11 the birth of the child took place at Haiderpur Maternity Center on 04.07.2010 at 4:20 AM. The witness proved the copy of form sent to the office of SubRegistrar by Dr. Kavita, CMO of Maternity Center, Haiderpur, containing the details of the birth of a female child as Ex.PW1/A and deposed that on the basis of the said form, the name of the child was registered in the office of Registrar u/s. 17 of Registration of Birth and Death Act. The witness also proved the verified (verified by Sh. Raman Vij, Sub Registrar) birth certificate of the victim R as Ex.PW1/B. The witness further deposed that the concerned hospital had got registered the entry of birth of child online which was mentioned in Ex.PW1/B also in the column of registration number, at point "X" and the printout i.e. Ex.PW1/C, of the same received in their office. Investigating Officer and other police witnesses :
12. The PW13, Ins. Durga Kapri, is the main investigating officer of the present case and she deposed that on 26.01.2013, on entrustment of DD No.9A i.e. Ex.PW13/A, she along with PW12 Ct. Manju reached at the spot i.e. first floor of jhuggi No.437, Som Bazar Road, near Ayurvedic Hospital, Haiderpur, Delhi, where she met PW11 Smt. Reena, PW10/her daughter R, and PW9 / husband Sunil of Smt. Reena and that at that time, accused Ram Singh, who had been beaten and detained by the public persons, was also produced before her. She further deposed that she got the accused sent to PS in the custody of PW8 Ct. Suresh and thereafter, recorded the statement Ex. PW11/A of Smt. Reena and that the said statement was also signed from PW9. She further deposed that she along with PW12 L/Ct. Manju took the victim and her mother to BJRM Hospital, where victim R was medically examined vide MLC Ex.PW4/A. The witness further deposed that SC No. 42/13 : State Vs. Ram Singh : Page Nos. 11 of 22 12 thereafter she made her endorsement Ex.PW13/B, prepared rukka Ex.PW3/B and got the case registered at PS. The PW13 further deposed that then, she again went to the place of incident along with the victim, her parents and L/Ct. Manju and at the instance of complainant Smt. Reena, she prepared site plan, Ex.PW13/C, of the place of occurrence. The witness further deposed about arrest and personal search of accused and recording of disclosure statement of the accused and proved his arrest memo as Ex.PW8/A, personal search memo as Ex. PW8/B and disclosure statement as Ex. PW8/C. She further deposed about pointing out of the place of incident by the accused vide pointing out memo Ex.PW8/D. She then deposed that she got the scene of incident photographed and videographed through a private photographer and photographs of the said place were proved as Ex.PW2/B1 to Ex.PW2/B5 and the CD of the videography as as Ex.PW2/C. She further deposed about taking into possession the said photographs and CD vide seizure memo Ex.PW2/A and about medical examination of the accused vide MLC Ex.PW4/B. The PW13 further deposed about producing the victim chid on 31.01.2013 before the Court with her request for recording of her statement u/s.164 CrPC vide her application Ex.PW13/D and stated that the statement of victim could not be recorded as per the observation of learned MM that victim was not able to give rational answer as recorded on application Ex.PW13/D. The witness further deposed about obtaining the ownership proof Ex.PW7/A from Sh. Chander Pal, owner of jhuggi No.437, J.J. Colony, Haiderpur, where accused was residing and about seizure of the same vide seizure memo Ex.PW7/B. The witness clarified that as per the Voter I Card of Sh. Chander Pal, his jhuggi number was 429, which was SC No. 42/13 : State Vs. Ram Singh : Page Nos. 12 of 22 13 wrongly told to her by the complainant at the initial stage and in fact the complainant and other tenants of the house did not know the exact number of the said jhuggi. The witness further deposed that on 09.03.2013, complainant came to PS and handed over the photocopy of the MCD birth certificate Ex. PW1/B of her daughter R to her and that she seized the said certificate vide seizure memo Ex.PW11/B and that she got the certificate Ex.PW1/B verified from the office of Sub Registrar Birth and Death.
During crossexamination by learned Legal aid counsel, the PW13 deposed that she along with Ct. Manju reached at the spot at about 10:00 - 10:30 AM and remained there for about half an hour and that at that time, there were 40 - 50 public persons gathered there. She further stated that she did not serve any written notice to any public persons who refused to join the investigations. She further stated that she had called NGO member from Sampurna for counseling of the victim child. The witness denied that there was a dispute between the complainant and the accused over the jhuggi or that the said point was not investigated by her.
13. The PW12, L/Ct. Manju, had joined the investigations of the present case with PW13 Ins. Durga Kapri on 26.01.2013 and deposed on the same lines as of PW13.
14. The PW8, Ct. Suresh, had also joined the investigations of the present case with PW13 Ins. Durga Kapri on 26.01.2013 and deposed on the same lines as of PW13.
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 13 of 22 14
15. The PW2, Sh. Narender Kumar, is the private photographer, who took five photographs of the room constructed on first floor at jhuggi no.437, near Ayurvedic Hospital , Som Bazar Road, Haiderpur Delhi, from inside and outside from different angles, on 26.01.2013 and also prepared video clip of the same, at the instance of IO SI Durga Kapri and deposed regarding the same. He further deposed that on 19.02.2013, IO came to his shop and that he handed over five photographs and one CD containing two video clips and five still photograph to the IO, who took them into possession vide memo Ex.PW2/A. The witness proved the said photographs as PW2/B1 to B5 and the CD as Ex.PW2/C.
16. After closing of prosecution evidence, statement of accused Ram Singh was recorded u/s 313 Cr.P.C, wherein the accused denied the allegations of the prosecution and stated that he is innocent and had been falsely implicated in the case by the parents of the victim child as the parents of the victim used to fight with him and wanted him to vacate his jhuggie/room, so that they could take the same and on his refusal to vacate the same, he was falsely implicated in the present case. He further deposed that he had not made any disclosure statement and that the police obtained his signatures forcibly on some blank papers and on some printed proformas and that those papers were later on converted into various memos against him. The accused declined to lead evidence in his defence. .17. Arguments have been addressed by learned legal aid counsel for the accused as well as learned Additional PP for the State.
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 14 of 22
15
18.. Learned Additional PP has contended that accused has wrongfully
confined the victim child R, a minor girl aged about 21/2 years, in his room of jhuggie no. 437, Ayurvedic Hospital, Haiderpur, Delhi and further attempted to commit rape under her and in view of the statement of PW10 victim R,her mother PW11 Smt. Meena and other witnesses, the prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused be convicted u/s. 342 IPC as well as u/s 10 of POCSO Act and 506 IPC.
19. On the other hand, ld. Legal Aid Counsel for the accused has contended that prosecution has miserably failed to prove its case against the accused. It is also contended that the MLC of the victim does not support the allegations of the prosecution and that no public witness has been put forth by the prosecution in support of its case, which brings out the falsity of the prosecution case. It is also contended that after the matter was reported to the police and PCR officials visited the spot and that in the PCR Form, it has been reported "galat kaam wali koi baat nahi hai". It is contended that the present case has been filed as an after thought by the parents of the victim, who wanted the accused to vacate his jhuggie, so that they could take the same on rent, and it is accordingly prayed that accused be acquitted of the charges leveled against him.
20. I have heard the arguments put forward by ld. Addl. PP as well as learned legal aid counsel for the accused and have carefully gone through the SC No. 42/13 : State Vs. Ram Singh : Page Nos. 15 of 22 16 record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
21. The accused is alleged to have wrongfully confined the victim child R in the room of his jhuggie and further attempted to commit penetrative sexual assault upon the victim R, a minor girl aged about 21/2 years.
22. The first issue which arises for consideration is that whether the victim R was a "minor" as on the date of commission of the offence. In the present case, the age of the victim child R has not been disputed by the learned legal aid counsel. Even otherwise, in order to prove that the victim was less than 18 years of age as on the date of offence, the prosecution has examined PW1 Sh. Mukesh Kumar, from the office of SubRegistrar, who produced the record pertaining to the birth of the victim R. According to PW1, child R was born at Haiderpur Maternity Center on 04.07.2010, at 4.20 am and information regarding the same was given to the office of SubRegistrar, by Dr. Kavita, CMO of the maternity center, vide Form Ex. PW1/A. The PW1 proved the copy of the verified birth certificate of the victim as Ex. PW1/B and print out of the online registration by the concerned hospital regarding the birth of the child as Ex. PW1/C. No tampering or manipulation was seen in record produced by PW1. Thus, from the record produced by PW1, prosecution has succeeded in proving that victim 'R' was a child aged about 21/2 years at the time of commission of offence.
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 16 of 22 17
23. The next issue, which arises for consideration is whether, accused had wrongfully confined the victim R and had further committed sexual assault upon her. In order to prove, the allegations of wrongful confinement and sexual assault, the prosecution has examined the victim child R as PW10. The relevant portion of testimony of PW10 has already been reproduced in foregoing paragraphs. From the testimony of PW10, it clearly stands established that on the day of the incident, accused came to the jhuggie of the victim and took victim R with him to his jhuggie, while the mother of the victim was giving oil massage to the younger brother of the victim R, and at this jhuggie, accused not only wrongfully confined the victim R, but also removed her clothes as well as his own clothes, made the victim R lie down on the floor and sexually assaulted her. Despite her tender age, victim R has clearly expressed the manner, in which, she was sexually assaulted by the accused,by stating as under : Q. Beta Nepali ne apke sath kya kiya tha ?
Ans. Nanga karke niche sulla diya tha.
Q. Niche kaha par sulaya tha ?
Ans. Yaha par (the witness has pointed with her hand at the
floor).
Q. Uss samay Nepali kya kar raha tha ?
Ans. Woh nange hokar, mujhe pakad kar so raha tha
24. The testimony of the victim R is duly supported by testimony of her mother/PW11 Smt. Reena, who had reached the jhuggie of the accused within five minutes and had seen accused lying upon victim R, after having removed her SC No. 42/13 : State Vs. Ram Singh : Page Nos. 17 of 22 18 clothes as well as his own clothes. In the relevant portion of her testimony, PW11 Smt. Reena, has deposed as under : ".... I opened the door of the jhuggi of the accused which was closed, however, not bolted from inside. I saw that my daughter R was lying naked on an old blanket on the floor and accused was also not having any clothes on him and was touching his penis on the private part of my daughter while lying upon her....."
It is perhaps due to timely intervention of PW11 Smt. Reena that the victim R escaped from further physical harm at the hands of the accused.
25. Learned legal aid counsel for the accused has contended that testimonies of PW9 Sh. Sunil and PW11 Smt. Reena, cannot be relied upon as they are parents/close relatives of the victim and hence interested witnesses. In this regard in the case titled as "Maranadu and Anr. Vs. State by Inspector of Police, Tamil Nadu" (cited as 2008 V AD (Cr.) (S.C.) 327), it has been laid down by the Hon'ble Supreme Court of India that:
"Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not SC No. 42/13 : State Vs. Ram Singh : Page Nos. 18 of 22 19 that a relation would not conceal actual culprit and make allegations against an innocent person"
26. It is also contended by the learned counsel for the accused that there are material discrepancies in the testimonies of the victim child, his mother Smt. Reena and his father/PW9. After careful perusal of the testimonies of these witnesses, it is seen that the discrepancies pointed out are only of minor nature and are not of such magnitude as would demolish the case of the prosecution. Even otherwise, it has been held that as "Sukhdev Yadav and others Vs. State of Bihar" (reported as JT2001(7) - SC597), it has been laid down by the Hon'ble Supreme Court of India that: "The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence. It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment sometimes, there would be a deliberate attempt to offer the same. Sometime, the witnesses in their over anxiety to do better from the witness box details out an exaggerated account."
Same is my view regarding modification reflected from crossexamination SC No. 42/13 : State Vs. Ram Singh : Page Nos. 19 of 22 20 of PW11 Smt. Reena. In fact the alleged modification are more of a nature of clarifications of factual situation which existed at the time of th eincident.
27. Lastly, it has been contended that the MLC of the victim does not reveal any injury to body parts and/or private parts and hence, the prosecution has failed to prove that accused had sexually assaulted the victim child. The contention of learned LAC cannot be sustained for the simple reason that only the charge for aggravated sexual assault (touching the vaginal region of victim child of less than 12 years with sexual intent) and not charge for penetrative sexual assault has been framed against the accused and in these circumstances, absence of injuries on the body and/or vaginal region of the victim R, is not a prerequisite for the prosecution to prove its case against the accused.
28. The only defence taken by the accused is that parents of the victim wanted accused to vacate his jhuggie, so that they could take the same on rent and that the accused has been falsely implicated in the case to achieve this end. 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 exactly when asked about the same in the future. In case SC No. 42/13 : State Vs. Ram Singh : Page Nos. 20 of 22 21 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."
29. In the present case, not only does the testimony of victim child/PW10 inspires confidence, but even other her testimony is duly corroborated by that of PW11 Smt. Reena, mother of victim child. I find no reason as to why a child of such tender age as the victim R would implicate an innocent person for an offence which was undisputedly committed with her. No plausible justification has come forth from accused, why such a vulnerable child would nurture enmity or grudge or ill will against him.
30. In the nutshell of the foregoing discussion, I am of the opinion that from the testimony of victim and other witnesses examined by the prosecution, the prosecution has successfully proved the guilt of the accused Ram Singh on record, beyond the reasonable doubts. Accordingly, I hold accused Ram Singh guilty for SC No. 42/13 : State Vs. Ram Singh : Page Nos. 21 of 22 22 the offence u/s 342 IPC and u/s 9 (m) of POCSO Act punishable u/s. 10 of POCSO Act and he is convicted accordingly.
(Announced in the open Court ) (Illa Rawat) (Today on 22.12.2014) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi SC No. 42/13 : State Vs. Ram Singh : Page Nos. 22 of 22 23 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 42/13) Unique ID case No. 02404R0146122013 State Vs. Ram Singh FIR No. : 43/13 U/s : 342/376/511 IPC and 6 & 10 of POCSO Act P.S. : Shalimar Bagh State Vs. Ram Singh s/o Sh. Bir Singh 23.12.2014 Present : Ld. Addl. PP for the State. Convict produced from J.C with ld. LAC ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Ram Singh has been convicted u/s 9
(m) POCSO Act punishable u/s 10 of POCSO Act and u/s 342 IPC.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Legal Aid counsel for the convict.
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 23 of 22 24
2. It has been submitted by the Ld. Addl. PP that in the present case, convict wrongfully confined the victim child R in the room of his jhuggie and further attempted to commit penetrative sexual assault upon the victim R, a minor girl aged about 21/2 years, by removing her underwear and by making her (victim R) lie down on the floor of his jhuggi and by lying upon her without his clothes and touching his penis in private parts of the victim child R, and in view of the serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence prescribed under law may be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. Legai Aid counsel that the convict Ram Singh, is an old person aged about 55 years and is having a family comprising of six children i.e. two daughters and four sons and that one of his daughter is married, while the youngest son is around 13 years and that all his family members are residing in Nepal. It is further submitted that convict belongs to a low strata of society and used to work as a rickpuller and is first time offender having clean antecedents and that he has already remained in custody for a period of about two years since his arrest and during the trial of the present case and it is prayed that a lenient view may be taken in this case and convict be given a chance of rehabilitation and be released on probation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Legal Aid counsel and have carefully gone through the record of the case.
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 24 of 22
25
5. In the present case, the convict Ram Singh has been convicted for
committing the offence of aggravated sexual assault, u/s 9 (m) of POCSO Act, punishable u/s 10 of POCSO Act and u/s 342 IPC. At the time of incident, the victim child was aged about 21/2 years and was residing with her parents and younger brother aged about 6 months in a jhuggie near the jhuggie of the convict. On the day of the incident, the convict came to the jhuggie of the victim child and when he saw that mother of the victim was busy in giving oil massage to six months old younger brother of the victim child, he took the victim R with him to his jhuggie and sexually assaulted her. It was only a matter of chance that the mother of the victim R required help of victim R in handing over clothes of her younger son (brother of the victim R) to her that she called out for victim R and when her call was responded by the convict, instead of victim R, her suspicion was aroused and she rushed to the jhuggie of the convict and saw convict sexually assaulting her daughter R. Had it not been for timely intervention of the mother of victim R, the victim R would have certainly suffered graver harm at the hands of the convict. The act of convict has have had a far fetched and irreparable consequences on the life of a minor girl child R and her family and thus, no leniency is called for in the matter. I hereby sentence convict Ram Singh to undergo rigorous imprisonment of seven years along with a fine to the tune of Rs. 5,000/, in default of payment of fine, to further undergo simple imprisonment for three months, for the offence punishable u/s 10 of POCSO Act. I, further, sentence convict Ram Singh to undergo rigorous imprisonment for 1 (one) year, for having committed offence punishable u/s 342 IPC.
Both these sentences shall run concurrently.
Benefit u/s 428 Cr.PC be also given to the convict. IPC. .
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 25 of 22 26
6. 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.
7. 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 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 SC No. 42/13 : State Vs. Ram Singh : Page Nos. 26 of 22 27 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 selfconfidence 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 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 SC No. 42/13 : State Vs. Ram Singh : Page Nos. 27 of 22 28 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."
8. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation to the tune of Rs. 1,00,000/ (Rs. One lac only) to the victim child. 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.
9. A copy of this order be sent to learned Secretary, D.L.S.A, North West Distt., Rohini Courts, Delhi and Director, Department of Woman and Child Development, GNCT of Delhi, for information and necessary action under intimation to this Court.
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 28 of 22 29
10. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
11. 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 23.12.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
SC No. 42/13 : State Vs. Ram Singh : Page Nos. 29 of 22