Delhi District Court
State vs . Narender on 29 November, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.62/2013)
Unique ID case No. 02404R0156392013
State Vs. Narender
FIR No. : 90/2013
U/s : 9 punishable u/s.10 of POCSO Act
r/w Sec. 5 punishable u/s. 6 of POCSO Act, 2012
and u/s.506 IPC
P.S. : Begum Pur
State Vs. Narender
s/o Sh. Rajbir Singh
r/o H.No. 2217, Gandhi Enclave,
Som Bazar Road, Jain Nagar,
Delhi.
Date of institution of case 23.05.2013
Date on which, judgment has been reserved 27.11.2013
Date of pronouncement of judgment - 27.11.2013
JUDGMENT:
1 The present case relates to a child S, who was victim of repeated penetrative sexual assault by her own father. The last such incident is stated to have occurred on 15.03.2013, when the mother of the victim child, (name of the victim child is mentioned in the charge sheet and the charge, SC No. 62/13 State Vs. Narender Page No. 1 of 20 2 however the same has not been mentioned in the judgment to protect the identity of the victim child), a minor girl aged about 11 years, had gone for visit to her relatives house and the victim child and her siblings were alone in the house with their father / accused. The accused is alleged to have committed penetrative sexual assault on the victim child at night, when her other two siblings were asleep. The victim child told about acts of her father / accused to her mother on 17.03.2013 and thereafter the matter was reported to the police. The case has been registered on complaint made by the victim child S and on the same day, accused was also arrested. During the course of investigation, the victim child as well as accused were got medically examined. IO recorded statement of witnesses. After completing investigations, charge sheet was prepared and filed in the Court. 2 Upon committal of this case to the court of Sessions, charges for the offence under Sections 9 punishable u/s. 10 of POCSO Act, 2012 r/w Section 5 punishable u/s. 6 of POCSO Act, 2012 and u/s.506 of IPC was framed against the accused Narender. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3 In order to prove its case prosecution has examined 13 witnesses : SC No. 62/13 State Vs. Narender Page No. 2 of 20 3 4 PW1, HC Dharmender, is the duty officer, who had recorded the case FIR in the present case. He proved the endorsement made by him on rukka as Ex.PW1 and the computerized copy of FIR as Ex.PW1/B. 5 The PW2, Anuradha is member of NGO Nav Sristi and she had gone to PS Begumpur on 17.03.2013, on receiving call from the duty officer, to counsel the prosecutrix and her mother and had also accompanied them to hospital for medical examination of the prosecutrix and deposed regarding the same.
6 The PW3, Mrs. Krishna Dabas, is the Principal from Nagar Nigam Prathmik Pratibha Vidhyalaya, wherein prosecutrix was admitted in First Class on the basis of admission form and affidavit submitted by her mother Smt. Sangeeta. The PW3 proved copy of the admission form and affidavit as Ex.Pw3/A and Ex.PW3/B respectively by producing the original record. She also proved the certificate issued by school, wherein date of birth of prosecutrix was mentioned as 28.12.2001, as Ex.PW3/C and photocopy of the relevant entry in the school admission register as Ex.PW3/D. 7 The PW4, S is the victim child while PW5 Smt. Sangeeta is the mother of the child S and their testimonies would be discussed at length in the following paragraphs.
SC No. 62/13 State Vs. Narender Page No. 3 of 20 4 8 The PW6, Dr. Bina, was posted at SGM Hospital as CMO on 17.03.2013 and had medically examined the victim child S, prepared her MLC Ex.PW6/A and referred her to Gynecology Department for further examination and management and deposed regarding the same. 9 On the same day, she also examined accused vide MLC Ex.PW6/B and gave opinion regarding the sexual potency of the accused and deposed that in her opinion 'there was nothing to suggest that accused was not capable of performing the act of sexual intercourse'. 10 The PW13 Dr. Parminder was deputed in place of Dr. Aditi, who had conducted gynecological examination of the victim child. She proved the observations made by Dr. Aditi on MLC Ex.PW6/A, of the victim child, wherein Dr. Aditi had observed that 'on examination, no sign of external injury were found on the body and hymen was found torn and that there was old hymenal healed tear present.' She also proved the medical examination report for sexual assault victims, in respect of the victim child, prepared by Dr. Aditi as Ex.PW13/A by identifying handwriting and signatures of Dr. Aditi thereupon.
11 The PW7, HC Ram Kumar, was posted as MHCM at PS Begumpur at the relevant time. He produced the original register No.19 and SC No. 62/13 State Vs. Narender Page No. 4 of 20 5 proved the relevant entries of deposit of the exhibits of the case at the PS and sending them to FSL Rohini as Ex.PW7/A to Ex.PW7/D. 12 The PW8, ASI Chhaju Ram is the initial IO of the case. He deposed that on 17.03.2013 he was posted on emergency duty at PS Begumpur and that on that day at about 2:30 PM, on receipt of call that "father had attempted to commit wrong act with his daughter", PW8 along with HC Mangal went to the place of incident i.e. the residence of the prosecutrix where he met victim child S and her mother Smt. Sangeeta, who told him that father of victim child S had committed wrong act with her and that he passed on this information to duty officer with request to send a lady officer and that after sometime W/SI Manju came there along with L/Ct. Rekha and Ct. Sudesh and PW8 produced victim child S and her mother before her.
13 The PW9, Sh. Dharmender Singh, learned MM, had conducted proceedings u/s 164 Cr.P.C. He proved application moved before him for recording the statement of victim child as Ex. PW9/A ; statement of the victim child u/s 164 Cr.P.C as Ex. PW9/B, certificate appended to the statement as Ex. PW9/C and the application of IO for supply of copies as Ex. PW9/D. 14 The PW12, W/SI Manju, is the investigating officer of the case SC No. 62/13 State Vs. Narender Page No. 5 of 20 6 and she deposed that on 17.03.2013, an information was received by her regarding commission of an offence of rape and under POCSO Act from PS Begumpur and that on the basis of the same, she reached at PS Begumpur where she made her arrival entry in DD register and thereafter left for the spot at Som Bazaar Road, Jain Nagar, Delhi, with Ct. Suresh and L/Ct. Rekha at 2517, Gandhi Enclave, where ASI Chajju Ram and HC Mangal Singh met them and that Smt. Sangeeta and her daughter i.e. prosecutrix also met them. The PW12 further deposed that she made inquiries from them and recorded the statement of prosecutrix Ex.PW4/A and on the basis of said statement, she made endorsement Ex.PW12/A and prepared rukka and handed over the same to Ct. Suresh for getting the case FIR registered at PS. The PW12 then deposed that she along with L/Ct. Rekha, prosecutrix and her mother Smt. Sangeeta went to SGM Hospital for medical examination of the prosecutrix and that NGO Anuradha reached the hospital and counseled the prosecutrix as well as her mother and that thereafter the prosecutrix was got medically examined vide her MLC Ex.PW6/A. The PW12 further deposed that Ct. Suresh came back from PS with copy of FIR and original rukka and handed them over to her. L/Ct. Rekha also handed over the exhibits, which were given to her by the concerned doctor who had conducted the medical examination of the prosecutrix, and the same were taken into possession by PW12 vide seizure memo Ex.PW5/A. The PW12 then deposed that they left for the spot where she prepared site plan Ex.PW5/B at the instance of prosecutrix as well as her mother and that since SC No. 62/13 State Vs. Narender Page No. 6 of 20 7 the accused was also present at his home, she arrested him on the identification of prosecutrix and her mother vide his arrest memo Ex.PW5/C and that thereafter he was personally searched vide personal search memo Ex.PW5/D and that accused made his disclosure statement vide Ex.PW5/E and that thereafter accused was sent to SGM Hospital in the custody of Ct. Suresh for his medical examination and after medical examination of the accused, Ct. Suresh handed over two sealed pullandas and one sample seal of SGM H to PW12 which was taken into possession by her vide seizure memo Ex.PW10/A. Lastly the accused was taken to PS and put in the lock up.
15 The PW12 further deposed that on 18.03.2013, she went to the Nigam Prathmik Kanya Vidhyalaya, Rajiv Nagar, First Shift, Delhi, and met the Principal Smt. Krishna Dabas and obtained certificate Ex.PW12/B regarding the age proof of the prosecutrix.
16 The PW12 then deposed that on the same day i.e. 18.03.2013, accused and prosecutrix were produced before the concerned Court and the accused was remanded to JC and that she moved an application Ex.PW9/A for recording of statement of prosecutrix u/s.164 CrPC but the Court timing was over by that time and the said application could be moved only on 19.03.2013 and that the statement of the prosecutrix Ex.PW9/B was recorded on 19.03.2013 and that she moved an application Ex.PW9/D for SC No. 62/13 State Vs. Narender Page No. 7 of 20 8 supply of copy of statement of prosecutrix. The PW12 then deposed that she got the exhibits deposited with the FSL Rohini, Delhi and recorded the statement of concerned witnesses and that on completion of investigation, prepared the charge sheet and filed the same in the Court through SHO. During her crossexamination, PW12 denied that she had not investigated the case properly.
17 The PW10 Ct. Suresh had joined investigations with the IO on 17.03.2013 and had gone to the residence of victim child and from there he had brought the rukka, prepared by the IO, to PS, got case FIR registered and taken copy of the FIR and original rukka to the IO at SGM Hospital. He had also joined the investigations wherein the prosecutrix had pointed out the place of incident to the IO and the subsequent proceedings wherein accused was arrested at the instance of the victim child. He proved the arrest and personal search memos of the accused as Ex.PW5/C and Ex.PW5/D respectively and his disclosure statement as Ex.PW5/E. He also deposed about getting medical examination of accused conducted and having signed as witness on the seizure memo of the exhibits i.e. Ex.PW10/A. 18 The PW11, L/Ct. Rekha had joined the investigations of the case with the IO on 17.03.2013 and was also present at the time of the medical examination of the victim child. She proved her signatures on Ex.PW5/A i.e. the seizure memo vide which exhibits taken from the SC No. 62/13 State Vs. Narender Page No. 8 of 20 9 prosecutrix were seized by the IO.
19 After closing the prosecution evidence, the statement of accused u/s.313 CrPC recorded wherein accused termed all the incriminating evidence against him to be incorrect and stated that he had been falsely implicated in the case by the victim child, her mother and the NGO officials. He did not lead any evidence in his defence.
20 Arguments have been addressed by learned Additional PP as well as learned amicus curie.
21 Learned Additional PP has submitted that from the testimony of the prosecutrix and the other witnesses examined by it, prosecution has succeeded in proving its case against the accused beyond reasonable doubt. On the other hand, learned amicus curie for accused has filed written submissions on behalf of accused and prayed that in view of the tutoring reflected from the testimony of the victim child and discrepancy in statements of prosecution witnesses, accused be acquitted of charged offences. 22 I have heard learned Additional PP and also perused the record as well as written submissions filed on behalf of accused. 23 In the present case, the victim child is stated to be aged about SC No. 62/13 State Vs. Narender Page No. 9 of 20 10 11 years at the time of incident. In order to prove that victim was aged about 11 years at the time of incident, prosecution has produced record from the school wherein victim child was admitted in first class and also examined the concerned Head Master / Principal as PW3. From the record produced by PW3 it stands established that the date of birth of the victim child is 28.12.2001. The date of commission of offence is 15.03.2013 and when the age of victim child is computed from the date of birth mentioned in the record produced by PW3, her age comes to be 11 years, 2 months and 15 days. Thus from the testimony of PW3 and record produced by her, the prosecution has succeeded in proving that the victim child was aged about 11 years at the time of incident.
24 The next issue which arises for consideration is whether the accused, who is real father of the victim child, had committed penetrative sexual assault upon her. In order to substantiate charges against the accused, prosecution has examined the victim child as PW4. The statement of victim child was recorded in camera proceedings during which Welfare Officer from Special Juvenile Police Unit, Outer District, was permitted to remain present as a support person. Some preliminary questions were put to the victim child by the Court to satisfy itself that the victim child was capable of understanding questions and answering them reasonably and she also understood the sanctity of speaking truth. After being so satisfied the statement of victim child was recorded in question answer form. The victim SC No. 62/13 State Vs. Narender Page No. 10 of 20 11 child initially hesitated in deposing about the incident and started crying bitterly. As recorded in the proceedings she had to be consoled by the Welfare Officer, who was present as the support person. The victim child deposed as under : "Q. Kya hua tha ?
Ans. Kuch nahi.
Q. Police me shikayat kyu kari ?
Ans. Papa sharab pite the aur mummy ko marte the.
Q. Papa sharab peekar apko bhi kuch kehte the ?
Ans. Nahi.
Q. Papa ne apke sath aisa koi kaam kiya jo apko
bura laga ho ?
Ans. Nahi.
Q. apne kaha tha ki sach bolna achi baat hai toh
beta jo bhi baat hai, sach sach batao ?
At this stage, the witness has made a sideways
gesture with her head which implies No.
Q. Dekho beta apne police aunty se bat kari thi
aur pehle court me bhi aunty se baat kari thi, aaj kyu nahi bata rahe ?
Ans. Papa ko chudana hai.
Q. beta papa ko chudana hai, woh toh achhi baat SC No. 62/13 State Vs. Narender Page No. 11 of 20 12 hai par aap sach sach batao."
At this stage, the victim S started crying bitterly and after being consoled by the Welfare Officer, she further deposed as under : "Q. Beta kya hua tha ?
Ans. Papa sharab pikar aaye the. Mummy Badarpur mausi ke pass gayi thi. Mein so rahi thi. Chote bhai behein bhi so rahe the. Papa ne jameen par gadda dala tha. Unhone mujhe niche khich liya. Meri kachhi uttari aur apni ungali meri toiletwali jagah me dali. Aage wali jagah se ungali dali. Unhone kaha tu to badi ho gayi hai, mujhe toh pata nahi chala. Papa ne apni pant uttar di aur apni toiletwali jagah mere hath me de di. Uske baad me toilet chali gayi.
Q. Aaj aap kiske sath aaye ho ?
Ans. Mummy, mausi aur dadi ke sath.
Q. Kya apne police aunty ko yeh sab bataya tha,
joh apne aaj bataya hai?
Ans. Ha bataya tha.
The witness has been shown her statement recorded by IO and identifies her signatures at point "A". The said statement is now exhibited as Ex.PW4/A."
SC No. 62/13 State Vs. Narender Page No. 12 of 20 13 At this stage, witness started weeping again and asked 'Papa chut Jayenge'. She was again consoled by the Welfare Officer. 25 Only question put to the victim child during her cross examination was whether she had been tutored to depose in the Court to which she responded by saying 'Nahi sach bol rahi hu'. 26 The testimony of the victim child duly supports the testimony of victim child qua the allegations of sexual assault. As per MLC Ex.PW6/A of the victim child, though no external injuries were found on the body of child S, her hymen was found torn and there was an old hymenal healed tear present. It is noteworthy that victim child report the matter to her mother after about two days of the incident and thus the finding in her MLC of old hymenal healed tear. The testimony of victim child S is also corroborated partly by testimony of her mother, to whom she had narrated about the incident further first time.
27 The PW5, Smt. Sangeeta, the mother of the victim child, and deposed that the prosecutrix was her eldest child and that on 15.03.2013, she had gone to Badarpur, with her elder sister, to see her ailing soninlaw at Badarpur and came back from there on 16.03.2013 and that on her coming back to home, she found that her daughter i.e. the prosecutrix was quiet and SC No. 62/13 State Vs. Narender Page No. 13 of 20 14 was in a state of shock. She further deposed that she made inquiries from prosecutrix repeatedly and thereafter she told PW5 that her father, who was under the influence of liquor at night, had spoken to her some wrong words. The PW5 further deposed that after hearing this from her daughter out of anger, she called the police by dialing number 100 and that police reached at her house and took the accused to PS where statement of her daughter was recorded by the police in her presence and prosecutrix told whatever had happened with her to the police.
28 During the crossexamination by learned amicus curie. The PW5 deposed that on earlier occasions also she had gone away from her home for 1 / 2 days leaving behind the children with the accused. She admitted that on none of the earlier occasions, accused misbehaved with any of the children and that prosecutrix had never made any complaint against the accused regarding any misconduct.
29 Learned Amicus Curie has contended that the victim child is prone to tutoring and that is why in the first instance she failed to state anything against her father / accused and started crying bitterly. This contention of learned Amicus Curie is apparently without any substance for it is to be remembered that the present case pertains to penetrative sexual assault on a victim child aged about 11 years, who at that time was physically, financially and psychologically dependent upon accused, who is SC No. 62/13 State Vs. Narender Page No. 14 of 20 15 her father. Further the mother of child S was also financially dependent on her husband i.e. the accused. In these circumstances, there would naturally be immense pressure from the family itself, upon victim child S, to exonerate accused of all the allegations. It is, in fact, a practice in cases of incest to conceal the incident rather than to report it for the fear of financial deprivation and defamation of the family honour even though at the risk of the victim in the family. From the testimony of PW4, victim child S, it is apparent that she too tried to conceal the illegal act of her father / accused before she actually narrated the incident before the Court. The trauma and plight of the victim child S is clearly brought out from her testimony and it is seen that at least twice, while recording her testimony, she started crying bitterly. The only reason why victim child S hesitated in deposing about the incident in the first instance is clearly reflected in her testimony wherein she stated "Papa ko chutana hai" (I want my father to be released). However, when she deposed subsequently she clearly narrated about the manner in which the accused committed penetrative sexual assault upon her. The testimony of child S / PW4 is found to be clear, cogent and reliable.
30 It is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, SC No. 62/13 State Vs. Narender Page No. 15 of 20 16 " A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
31 In case of Pancchi Vs. State of U.P., AIR 1998 SC 2726, it was further held : "It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be SC No. 62/13 State Vs. Narender Page No. 16 of 20 17 swayed by what others tell them and this a child witness is easy prey to tutoring."
32 The next contention raised by learned amicus curie is that PW5 Smt. Sangeeta, mother of the victim child S, has not supported the version put forth by the victim as she has stated that victim child S had only told her that her father had spoken wrong words to her at night under influence of liquor, and that after hearing the same, out of anger, she called the police. He has also stated that PW5 has admitted during her crossexamination that accused had never misbehaved with any of the children, in her absence, earlier and that child S too had never made any complaint against accused regarding any misconduct prior to the incident reported on 17.03.2013. This contention of learned amicus curie can also not be sustained for obvious reasons viz the financial dependence of PW5 Smt. Sangeeta on accused for her own maintenance and for maintenance of their children. The social stigma attached to the incident is also one of the apparent reason for PW5 changed her stand during her deposition before the Court. She has otherwise admitted in her examination in chief that statement of child S was recorded by the police in her presence and at that time child S had told whatever had happened with her to the police thereby affirming that whatever was stated by victim S in her complaint Ex.PW4/A, wherein she had for the first time made a written complaint against the acts of sexual abuse by accused / her father, were correct. Thus the fact that PW5 Smt. Sangeeta SC No. 62/13 State Vs. Narender Page No. 17 of 20 18 has not fully supported the testimony of victim child S does not entitle accused to be absolved of charges against him.
33 Another contention raised by learned amicus curie is that the present case is an outcome of matrimonial disputes between the accused and PW5 Smt. Sangeeta. However, it is seen that nothing has been brought on record by the defence to show that the matrimonial relations between accused and PW5 Smt. Sangeeta were strained to such an extent as would have necessitated her to incite victim S to file a complaint of such a serious nature against her own father. From the testimony of the witnesses examined by the prosecution, it rather appears that accused and PW5 Smt. Sangeeta were having normal matrimonial relations and were living together with their children, without any acrimony or dispute, till accused crossed the "Laxman Rekha" to sexually abuse his own daughter i.e. victim child S. 34 There is no hard and fact rule that the conviction cannot be based on sole testimony of the victim / injured. The testimony of prosecutrix in the present case clearly bring out the traumatic experience she suffered at the hands of the accused. Even otherwise in the case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. In the said case it has been held that : SC No. 62/13 State Vs. Narender Page No. 18 of 20 19 "The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence. It must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
35 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved the guilt of the accused Narender on record, beyond the reasonable doubts. Accordingly, I hold guilty accused Narender for the offences u/s. Section 5 punishable u/s. 6 of POCSO Act, 2012. As regards the allegations of SC No. 62/13 State Vs. Narender Page No. 19 of 20 20 aggravated sexual assault and criminal intimidation / threats are concerned, the prosecution could not established that accused had touched breast of child S and had further threatened to kill child S in case she disclosed about the incident to anyone. Accused is convicted accordingly.
(Announced in the open Court ) (Illa Rawat)
(Today on 27.11.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 62/13 State Vs. Narender Page No. 20 of 20
21
FIR No.90/13
P.S. Begumpur
22.11.2013
Present : Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Rajnish Kumar Antil, learned Amicus Curie.
Statement of accused u/s.313 CrPC recorded.
Be listed for final arguments on 25.11.2013.
ASJ (N/W) : 01
Rohini Courts : Delhi
22.11.2013
25.11.2013
Present : Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Rajnish Kumar Antil, learned Amicus Curie.
Arguments heard.
Be listed for remaining arguments, if any, otherwise for judgment on 27.11.2013.
ASJ (N/W) : 01
Rohini Courts : Delhi
25.11.2013
27.11.2013
Present : Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Rajnish Kumar Antil, learned Amicus Curie.
SC No. 62/13 State Vs. Narender Page No. 21 of 20 22
Remaining arguments heard.
Vide separate judgment announced today in the open Court, accused Narender has been convicted u/s. Section 5 punishable u/s. 6 of POCSO Act, 2012.
Be listed for arguments on the point of sentence on 28.11.2013.
ASJ (N/W) : 01
Rohini Courts : Delhi
27.11.2013
28.11.2013
Present : Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Rajnish Kumar Antil, learned Amicus Curie.
Arguments on the point of sentence heard.
Be listed for orders on the point of sentence on 29.11.2013.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 28.11.2013 SC No. 62/13 State Vs. Narender Page No. 22 of 20 23 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 62/13) Unique ID case No. 02404R0156392013 State Vs. Narender FIR No. : 90/13 U/s : 376/506 and & Section 6 of POCSO Act P.S. : Begum Pur State Vs. Narender S/o Rajbir Singh 29.11.2013 Present : Ld. Addl. PP for the State.
Convict produced from J.C with ld. Amicus Curie Sh. Rajnish Kumar Antil ORDER ON THE POINT OF SENTENCE In the present case, the convict - Narender has been convicted u/s 5 POCSO Act punishable u/s 6 of POCSO Act.
SC No. 62/13 State Vs. Narender Page No. 23 of 20 24
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Amicus curie for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict committed aggravated penetrative sexual assault upon his own daughter S, a minor girl aged about eleven years by touching her breast and inserting his finger in the vagina of the victim child 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. Amicus curie that the convictNarender is a middle aged man aged about 40 years and is married and that he is having wife and two more children, besides the victim child, and that there is no one look after them, in his absence. It is further submitted that convict belongs to a low strata of society and is first time offender and that he has already remained in custody for a period of about nine months since his arrest and during the trial of the present case and he prays that a lenient view may be taken in this case and he be given a chance of rehabilitation and be released on probation. SC No. 62/13 State Vs. Narender Page No. 24 of 20 25
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Amicus curie and have carefully gone through the record of the case.
5. In the present case, the convict Narender has been convicted for committing the offence of aggravated penetrative sexual assault punishable u/s- 6 of POCSO Act. It has been brought out from the record that the convict, who is the father of the victim child, himself committed penetrative sexual assault upon her. At the time of incident, the victim child was aged about 11 years. She and her siblings were left in care and custody of convict, who is their father, by their mother, who had gone to visit a relative. The victim was sexually abused within four walls of her own house by her own father, who had showed no respect for chastity of his daughter, despite the fact that he was her father and child trusted him for her security and protection.
6. In a case titled as State vs. Gurmit, (1996) 2 SCC 384, it has been held that a rapist not only violates the victim's privacy and personal integrity but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault. It is SC No. 62/13 State Vs. Narender Page No. 25 of 20 26 often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not yet swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature.
7. In a case titled as 'Dinesh v. State (2006) 3 SCC 771', it has been observed by the Hon'ble Supreme court has observed that "sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a crime against basis human right and is violative of the victim's basic human right.
8. Considering the aforesaid facts and circumstances, I do not find that it is a fit case for any leniency and I hereby sentence convict Narender to undergo rigorous imprisonment for 10 (ten) years, for having committed offences punishable u/s 6 of POCSO Act. I further impose a fine of Rs. 5,000/ on convict, in default of payment of fine to further undergo simple imprisonment for three month, for the offence SC No. 62/13 State Vs. Narender Page No. 26 of 20 27 punishable, u/s 6 of POCSO Act.
Benefit u/s 428 Cr.PC be also given to the convict.
9. 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.
10. 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 SC No. 62/13 State Vs. Narender Page No. 27 of 20 28 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 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 SC No. 62/13 State Vs. Narender Page No. 28 of 20 29 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 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 SC No. 62/13 State Vs. Narender Page No. 29 of 20 30 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."
11. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 1,00,000/ (Rs. One lac only) to the 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.
12. A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi, Chief Secretary, GNCT of Delhi, Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi, for SC No. 62/13 State Vs. Narender Page No. 30 of 20 31 information and necessary action under intimation to this Court.
13. 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.
14. 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 29.11.2013) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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