Delhi District Court
Sc No: 58854/16 State vs . Vinay on 23 February, 2017
SC No: 58854/16 State Vs. Vinay
IN THE COURT OF SH. GAUTAM MANAN, ASJ-01
NORTH, ROHINI, NEW DELHI
In the matter of:
S. C. No. 58854/16
FIR No. 806/15
Police Station Adarsh Nagar
Under Section 354/354A/451 IPC &
10 POCSO Act
State
Versus
Vinay
S/o Sh. Laxman Prasad
R/o N - 9/A-96, Lal Bagh,
Azadpur, Delhi ..... Accused
Date of institution 02.02.2016
Judgment reserved on 07.02.2017
Judgment Pronounced on 23.02.2017
Decision Convicted
Judgment 1 of 13
SC No: 58854/16 State Vs. Vinay
JUDGMENT
1. Accused is facing trial in the present case of sexually assaulting victim "A", a girl aged about 9 years.
2. FIR in question was registered on the statement of victim who alleged that on 04.12.2015, she was studying in her house and her siblings were playing outside. At that time accused Vinay came inside her house and started forcibly kissing her and touching all over her body. When victim raised an alarm, accused ran away from there. In the evening when her mother came from her job then victim narrated the entire incident to her. Mother of victim reported the matter to Police at 100. Police came and recorded her statement.
3. Accused was arrested and charge-sheeted. Charge for the offence punishable U/s 354/354A/451 IPC and U/s 10 POCSO Act was framed against accused. Accused pleaded not guilty and claimed trial.
Judgment 2 of 13 SC No: 58854/16 State Vs. Vinay 4. Prosecution examined 8 witnesses. PW Name of witness Nature of Documents proved witness 1 Victim A Victim Narrated the incident & supported prosecution case. She proved her complaint as Ex. PW1/A and statement recorded U/s 164 Cr.P.C. as Ex. PW1/B. 2 P Mother of Narrated the incident & supported Victim prosecution case. Proved arrest of accused as per memo Ex. PW2/A. 3 Ms. Santosh School Principal Date of birth of victim as 07.01.2006 as per admission record as Ex. PW3/A to E. 4 HC Virender Police DD Ex. PW4/A, FIR Ex.PW4/B, Nagar Endorsement on Rukka Ex. PW4/C and Certificate u/s 65B Ex. PW4/D. 5 Constable Amit Police Arrest & personal Search of accused vide memo Ex. PW2/A& Ex. PW5/A and Disclosure Statement Ex. PW5/B. 6 Dr. Deepak Doctor Medical examination of accused Kumar vide MLC as Ex. PW6/A 7 Dr. Inderpal Doctor Medical examination of accused Yadav vide MLC Ex. PW7/A 8 SI Renu Investigating Tehrir as Ex. PW8/A, Site Plan Officer Ex. PW8/B, Arrested accused and got recorded statement of victim U/s 164 Cr.P.C Judgment 3 of 13 SC No: 58854/16 State Vs. Vinay
5. On conclusion of prosecution evidence, statement of accused was recorded U/s 313 Cr.P.C. wherein accused stated that he took a loan of Rs. 5,000/- from father of victim but he could not repay the loan. Thereafter, father of victim started asking for Rs. 10,000/- from him which he could not pay and thus, he was falsely implicated by the parents of victim in this case.
6. It has been submitted on behalf of the accused that there are material contradictions in the testimony of victim and moreover, the mother of the victim admitted during course of her cross-examination that accused himself called at 100 number which shows the false implication of the accused in the present case. It is stated that there is no medical evidence on record to substantiate the allegations of victim and thus the accused is entitled to be acquitted in the present case.
Judgment 4 of 13
SC No: 58854/16 State Vs. Vinay
7. On the other hand, Ld. Addl. PP submits that victim in all her statements has narrated the role of accused in sexually assaulting her. It is further stated that mother of the victim has duly corroborated her version and their testimonies are reliable and trustworthy and hence, accused is liable to be convicted.
8. I have heard the rival contentions and have gone through the material on record.
9. Age of victim: Before dwelling upon incident of sexual assault, let us find out what was age of victim at the time of incident. School record of victim as Ex. PW3/A to D shows her date of birth as 07.01.2006. Certificate issued by Registrar Birth and Death, Ex. PW3/E also shows the date of birth of the victim as 07.01.2006. This goes to show that on the date of incident (04.12.2015), victim was about 9 years of age and thus she was a "Child" within the meaning given under POCSO Act.
Judgment 5 of 13
SC No: 58854/16 State Vs. Vinay
10. Version of victim: After her initial complaint, statement of victim Ex. PW1/B was also recorded u/s 164 Cr.P.C. and its English translation reads as under :-
"Yesterday evening at about 4:00 p.m., I was doing my homework in my house and my siblings were playing outside. At that time Vinay came and started kissing me. He started pressing my body and doing obscene talks. He started calling me in his room but I did not go. He threatened me that if I will tell the incident to anybody, then he would kill me. I raised alarm upon which he ran away. At about 5:00 p.m. my Mother came and I narrated the incident to her. Then my Mother called at 100."
11. Thereafter, the testimony of victim was recorded which reads as under :-
"I know accused as he use to live in out locality and I noticed him often in our gali. I do not remember the specific month but it was fourth day of month in year, 2015. On that day, my Mother has gone to her work and my siblings were playing outside. At about 4:00 p.m., I was doing my homework in my house. The door of our house was close but not bolted (bhida ke band tha). Accused entered my house. He was calling me in our neighboring house which is under construction. Thereafter, accused forcibly kissed me and started touching my body inappropriately, he also pressed my breast. I tried to free myself by biting on Judgment 6 of 13 SC No: 58854/16 State Vs. Vinay his hand. Accused threatened me that he will kill me in case I disclose the incident to anybody. And accused fled from there. When my mother came back from work, I narrated the incident to her. My Mother called Police."
12. It has been submitted on behalf of accused that during course of her cross-examination victim deposed that at the time when accused was pressing her breasts she tried to get herself free by biting on the hand of accused. However, the MLC of accused does not indicate any such injury caused by the bite.
13. It has been further submitted that DD No. 25A as Ex. PW4/A has recorded that, "Ek Ladke Ne Ched Chad Ki Hai. Veh Zabardasti Ghar Mei Ghusne Ki Koshish Kar Raha Hai." It has been submitted as per this DD, the name of the accused has not mentioned despite the fact that both the victim and her mother claims to be acquainted with the accused and this makes the testimony of both victim and her mother doubtful and not worthy of any credit.
Judgment 7 of 13
SC No: 58854/16 State Vs. Vinay
14. True that MLC of accused does not indicate any kind of bite injury on the hand of accused but the facts of the case shows that accused was arrested on 15.01.2016 i.e. about 40 days after the incident. Therefore, if at all any bite mark would have appeared on the hand of accused after being bitten by victim, same would have been subsided by the time he was arrested. Therefore, non presence of any bite mark on the hand of accused does not dent the version of victim in any manner.
15. While appreciating the contention of the accused that the DD no. 25A as Ex. PW4/A does not bear the name of the offender. It has to be kept in mind that the said DD was registered only in respect of the information of harassing a girl. Entire incident or the name of offender is not necessarily to be mentioned in such kind of calls. Victim in her initial complaint narrated the entire incident and specifically named the accused as offender. Therefore, the absence of name of accused on Ex. PW4/A does not create any doubt over the version given by the victim.
Judgment 8 of 13
SC No: 58854/16 State Vs. Vinay
16. It has to kept in mind that victim was merely 9 years old girl when the incident happen and description of the act as given by her is accurate and is narrated with understanding of a 9 year old child. Nothing material could be elicited in the cross- examination to suspect the version given by her. Material facts deposed by her in her examination-in-chief remained unchallenged in the cross-examination. No reason has been attributed to her as to why she would falsely allege that accused committed sexual assault on her.
17. As stated above, on perusal of various statements made by victim at different stages of the investigation/trial, it transpires that her version is consistent throughout. In all her statements, she has implicated the accused with certainty and has attributed a specific role to him. Victim has duly identified the accused as culprit and no valid reasons exist to disbelieve her testimony.
Judgment 9 of 13
SC No: 58854/16 State Vs. Vinay
18. Testimony of other material witnesses: Testimony of PW2 (mother of victim) has been attacked by the defense on ground of hearsay evidence and also that PW2 admits that accused was trying to forcefully enter her house and if it was such a scenario then it was not possible for the accused to have entered the house of victim and assaulted her.
19. After going through the testimony of PW2 it becomes evident that she corroborated the version of victim by deposing that on the date of incident when she returned from her job at about 5 pm, victim informed her that accused after entering their house forcibly kissed victim and touched her body in inappropriate manner. On noticing accused in the gali at about 7 pm, she tried to confront him but accused was adamant and after snatching a mobile from a person he tried to dial 100 after which PW2 called at 100 and in the meantime accused fled away from the spot.
Judgment 10 of 13
SC No: 58854/16 State Vs. Vinay
20. Version put forth by PW2 is not at the time of incident but afterward when she noticed the accused in the gali and went to confront him. Therefore, the argument that at that time accused was trying to enter the house of victim does not hold good rather when the accused was confronted, he ran away from the spot. PW2 explained that accused was trying to make a call to the police to create a defence for himself and not otherwise.
21. Chain of events as unfurled in matter finds corroboration from the testimony of mother of victim. It stands established fact that victim narrated the incident to her mother and when mother of victim confronted the accused, accused was adamant and thereafter, matter was reported to police.
22. Defence of accused: Accused has submitted that he took a loan of Rs. 5,000/- from father of victim but he could not repay the loan. Thereafter, father of victim started asking for Rs.
Judgment 11 of 13
SC No: 58854/16 State Vs. Vinay
10,000/- from him which he could not pay and thus, he was falsely implicated by the parents of victim in this case. Accused did not lead any evidence to prove his defence nor there is document on record to establish any kind of monetary transaction between accused and father of victim. It is evident that except for the aforesaid stray question, there is no positive evidence on record led by the accused to prove the any dispute and the same being basis of his false implication in the matter. It is noteworthy that the burden of proving his defence upon the accused under POCSO Act is very heavy and he has not been able to discharge the said burden. Therefore, the accused has miserably failed in proving his defence to dent the case of prosecution. Hence, the accused has not been able to raise any substantial defence to dent the case of prosecution.
23. Conclusion: From discussions, it emerges that:
i) Prosecution has been able to establish that on the date of incident victim was a 9 year old girl.
ii) Accused committed sexual assault on her in her house Judgment 12 of 13 SC No: 58854/16 State Vs. Vinay
iii) Testimony of victim is found to be truthful and consistent in material particulars.
iv) Mother of victim corroborated version of victim.
v) Incident was promptly reported to police.
vi) Accused failed to establish any defence.
24. In the light of aforesaid discussions, accused stands convicted for the offence punishable under Section 10 POCSO Act and U/s 354/354A/451 IPC.
Matter be listed for hearing arguments on quantum of sentence for 27.02.2017.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
23.02.2017
Judgment 13 of 13