Delhi District Court
Sc No. 57402/16 State vs . Rajvinder Singh on 21 November, 2017
SC No. 57402/16 State Vs. Rajvinder Singh
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No. 57402/16)
Unique Identification No. 02404R0363992014
FIR No. 551/14
Police Station Adarsh Nagar
Under Section 342/363/366/376 IPC
& 6 POCSO Act
State V/s Rajvinder Singh
S/o Gurcharan Singh
R/o 33, TPT Centre
Azadpur, Delhi.
......Accused
Date of institution of case 16.10.2014
Date of arguments 21.11.2017
Judgment Pronounced on 21.11.2017
Decision Convicted
J U D G M E N T
1.The accused Rajvinder Singh is facing trial in the present case on allegations of having kidnapped the victim N (identity withheld), aged about 8 years, confined her in his house and having committed Judgment : FIR No. 551/14 page 1 of 27 SC No. 57402/16 State Vs. Rajvinder Singh aggravated penetrative sexual assault / rape upon her.
2. The facts in brief, which are borne out from the record are that in the year 2014, victim N, aged about 8 years, alongwith her parents and her five siblings, was residing in Azadpur, Delhi and at that time she was studying in class III. On 18.08.2014 at about 1.30 PM, the mother of the victim alongwith her infant son aged about one month, was lying inside her house, while the victim was playing outside the house. The accused Rajvinder Singh (addressed by the victim as Sardar Uncle) took the victim to his jhuggi, bolted the door of the same from inside, put his hand on the mouth of the victim to keep her mum, and thereafter he removed his pant as well as the wearing panty of victim, and inserted his urinary part into the urinary part of the victim. Blood started oozing from the urinary part of the victim and she started crying, and thereafter the accused let her go. The victim rushed to her house and narrated the entire incident to her mother, who checked the undergarments of the victim and found the same blood stained. The victim was brought outside the house by her mother, and on seeing the accused present there, the victim became unconscious, and the accused on seeing the victim and her mother, ran away from the spot. The mother of the victim took the victim to police station and made a complaint, which was reduced into writing vide DD No. 18A. The mother of the victim disclosed the name of the accused to the police. The victim alognwith her mother was taken to BJRM Hospital for medical examination and treatment of the victim. Victim was medically examined and her MLC was prepared at BJRM Hospital. NGO Officials were called in the hospital, and the victim was got counselled. The statement of the victim was recoded, on the basis of which, the instant Judgment : FIR No. 551/14 page 2 of 27 SC No. 57402/16 State Vs. Rajvinder Singh case was registered u/s 342/363/366/376 IPC & 6 POCSO Act.
3. On 19.08.2014, the victim was discharged from the hospital. IO SI Sangeeta alongwith the complainant and victim reached at the spot, from where she seized a cream coloured mattress and a cream coloured bed sheet. The site plan of the spot was also prepared by the IO. On 20.08.2014, the victim was produced before the concerned MM to get her statement u/s 164 CrPC recorded. On an application moved by the IO, concerned MM recoded the statement of the victim u/s 164 CrPC, wherein she narrated that she was taken by the accused to his house, where he removed his pant as well as the clothes of the victim. The victim was also produced before the CWC, and her age proof was collected from MC Primary School, AB Block, Shalimar Bagh, where the victim was studying. On 02.09.2014, at the instance of the complainant / mother of the victim, the accused was arrested vide his appropriate arrest memo and personal search memo. On 03.09.2014, the accused was taken to BJRM Hospital, where his potency test was conducted and it was opined that there is nothing to suggest that the accused is not capable of performing sexual intercourse. The requisite medical samples / exhibits of the accused as well as the victim were collected and sent to FSL for expert opinion. After completion of the investigation, the chargesheet was filed in the court. Subsequently, the FSL result was obtained and filed in the court by the IO.
4. On appearance in the court, the accused was supplied with the copies, and after hearing the counsel for the accused and Ld. Addl. P.P. for the State, since prima facie case was made out, the accused was Judgment : FIR No. 551/14 page 3 of 27 SC No. 57402/16 State Vs. Rajvinder Singh charged for the offence 363/366/342 IPC and u/s 6 POCSO Act, on 14.11.2014 by the Ld. Predecessor of this court, to which he pleaded not guilty and claimed trial. Subsequently, vide order dated 08.11.2017, an additional charge for the offence punishable u/s 376 (2) (i) IPC was framed, as the offence which was allegedly committed by the accused, was covered under two heads simultaneously i.e. u/s 6 POCSO and u/s 376 (2)(i) IPC. Accused pleaded not guilty to the additional charge also. Ld. Addl. P.P. for the State stated that after framing of the additional charge, no other witness is to be examined. Similarly, Ld. Amicus Curiae for the accused stated that after the framing of additional charge, no witness is required to be cross examined afresh, nor any modification in his statement u/s 313 CrPC is required, nor any defence witness is to be examined.
5. To substantiate its case, the prosecution examined nineteen witnesses in all, out of which PW 4, PW 5, PW 6, PW 7, PW 8, PW 9, PW10, PW 11, PW 12, PW 13, PW 14, PW 15 and PW 18 are formal witnesses, PW 16, PW 17, and PW 19 are witnesses of investigation, while the PW 1, PW 2 and PW 3 are the material witnesses, being the victim, her mother and her father respectively.
FORMAL WITNESSES
6. PW 4 ASI Dhirender, being the Duty Officer at PS Adarsh Nagar on 18.08.2014, was the recipient of the information directly from the complainant in the PS, about wrong act having been committed by her neighbour Rajvinder, upon her daughter, and the said information was Judgment : FIR No. 551/14 page 4 of 27 SC No. 57402/16 State Vs. Rajvinder Singh recorded by him as DD No. 18 A, which is Ex. PW 4/A, and thereafter he sent the complainant and her daughter to BJRM Hospital alongwwith SI Vishal and W/Ct. Kamlesh, and informed regarding the incident to SI Sangeeta, SHO and ACP concerned about the incident.
7. PW 5 Retired SI Naresh Pal deposed that on 18.08.2014, while posted as Incharge, of the Crime Team, on receipt of the information, he alongwith Ct. Sachin (photographer), reached the spot i.e. Jhuggi no. 145, TPT Canteen, Azadpur, Delhi. He inspected the spot and lifted a mattress and white coloured bed sheet, which he handed over to the local police and also prepared a report in this regard which is Ex. PW5/A.
8. PW 6 Ms. Sadhika Jalan, MM, Rohini Courts, Delhi deposed that on 20.08.2014, on the application being assigned to her, she recorded the statement of the victim N u/s 164 CrPC, which is Ex. PW 1/A and vide her order on the application Ex. PW 6/A, she allowed for supply of a copy of the statement, to the IO.
9. PW 7 Dr. Neeraj Chaudhary, CMO BJRM Hospital being deputed by the M.S. of the Hospital to depose in respect of MLC NO. 83686 prepared by Dr. Mohit Tiwari, who has since left the services of the hospital and his whereabouts being not known, identified the signatures of Dr. Mohit Tiwari on the said MLC, pertaining to victim N, aged about 8 years, after his observation on the MLC from point X to X1, and proved the MLC, which was already Ex. PW 2/B. Judgment : FIR No. 551/14 page 5 of 27 SC No. 57402/16 State Vs. Rajvinder Singh
10. PW 8 Dr. R. Kappu, MO, BJRM Hospital identified the signatures and handwriting of Dr. Shefali Tyagi and Dr. Poonam, appearing on the MLC of the victim N, bearing MLC No. 83686 already exhibited as Ex. PW2/B, at point C and D and the observation in the handwriting of Dr. Shefali from point Y to Y1 on the said MLC, as he was acquainted with the handwriting and signatures of said doctors, having worked with them during the course of his services, and who have since left the services of the hospital and their whereabouts were not known.
11. PW 9 HC Banwari Lal was posted as MHCM at PS Adarsh Nagar on 18.08.2014, on which day, SI Sangeeta deposited the sealed pullanda pertaining to sexual assault kit of victim N, sealed with the seal of BJRM Hospital alongwith the sample seal, alongwith another pullanda sealed with the seal of SS containing a bed sheet and a mattress, in the malkhana vide entry no. 3676/14 in register no. 19, the copy of which is Ex. PW9/A.
12. He further deposed that on 02.09.2014, SI Sushila Rana deposited the exhibits of the accused duly sealed with the seal of MS BJRM Hospital alongwith the sample seal, and the requisite entry in tis regard was recorded in the Malkhana vide entry no. 3749/14 in register no. 19, copy of which is Ex. PW 9/B. He further deposed that on 27.08.2014, he handed over the two sealed parcels alongwith the sample seals to Ct. Tara Chand for depositing the same in the FSL vide RC No. 89/21/14. He proved the copy of the Road Certificate as Ex. PW9/C (OSR) and the Judgment : FIR No. 551/14 page 6 of 27 SC No. 57402/16 State Vs. Rajvinder Singh acknowledgement receipt issued by the FSL, which was brought and deposited by Ct. Tara Chand, was proved as Ex. PW9/D. He also deposed that till the time the exhibits and parcels remained in his custody, they were not tampered with.
13. PW 10 Ct. Tara Chand deposed that on 27.08.2014, on the directions of HC Banwari Lal (MHCM), he took two sealed pullandas alongwith the sample seals to deposit with the FSL, vide RC No. 89/21/14, deposited the same in the FSL, and handed over the acknowledgement receipt no. 2014/DNA/6365, already Ex. PW9/D with the MHCM and deposed that as long as the parcels / exhibits remained in his custody, they were not tampered with.
14. PW 11 Dr. Gopal Krishna, Medical Officer, BJRM Hospital deposed that on 02.09.2014, a male patient Rajvinder, aged about 40 years, brought to the hospital by Ct. Anil, was examined by Dr. Khaleel Ulla Khan under his supervision. He identified the signatures of Dr. Khan and also the observation made by him on point X to X1 on the MLC no. 84197, which he proved as Ex. PW11/A. Thereafter the patient was referred to Forensic Medicine Department for his potency test.
He further deposed that he was deputed by the MS BJRM Hospital to depose in respect of MLC no. 84651 in respect of the patient Rajvinder, which was prepared by Dr. Manish Kumar, JR, under the supervision of Dr. Prem Singh Bishnoi, as both the said doctors have since left the services of the said hospital and their whereabouts are not known, and he having worked with both the said doctors, was acquainted Judgment : FIR No. 551/14 page 7 of 27 SC No. 57402/16 State Vs. Rajvinder Singh with their handwritings and signatures. He identified the signatures of Dr. Manish Kumar and Dr. Manish on the said MLC, which he proved as Ex. PW 11/B.
15. PW 12 HC Ram Singh while posted as Duty Officer on 18.08.2014 at about 7.15 PM at PS Adarsh Nagar, on receipt of the Rukka from Ct. Nitin sent by SI Sangeeta, got recorded the FIR Ex. PW12/A and also made an endorsement on the Rukka which is Ex. PW12/B.
16. PW 13 W/Ct. Kamlesh deposed that on 18.08.2014, she was present in the PS, when the complainant brought the victim in the PS alleging sexual assault upon her (victim) by their neighbour, and on the directions of the SHO, she took the victim and her mother to BJRM hospital for medical examination of the victim, where SI Raj Bala met them; and after medical examination of the victim, SI Raj Bala seized the exhibits of the victim, which were handed over to her by the doctor.
17. PW 14 Ms. Pooja, teacher from Municipal School, Shalimar Bagh, Delhi produced the admission & withdrawal register maintained in the school, as per which the child N was admitted in the said school in first class on 17.04.2012, vide admission no. 3133 and her date of birth is mentioned as 03.02.2007. The copy of the relevant record was proved by her as Ex. PW14/A, while the certificate issued by the Principal of the school, in respect of the age of the child was proved as Ex. PW14/B, after she identified the signatures of the Principal, having worked with him during the course of her duties.
Judgment : FIR No. 551/14 page 8 of 27
SC No. 57402/16 State Vs. Rajvinder Singh
18. PW 15 SI Vishal deposed that on 18.08.2014, he was posted at PS Adarsh Nagar and on that date complainant came to the PS alongwith her daughter aged 78 years, and reported that her neighbour had committed wrong act with her daughter. On the directions of the SHO, he took the victim to BJRM Hospital for her medical examination, where SI Raj Bala was met and the victim was medically examined in the presence of the IO, whereafter he was relieved from the investigation.
19. PW 18 Inspector Praveen Kumar deposed that he was posted as SHO PS Adarsh Nagar from the year 2013 to January, 2015 and he had issued the certificate u/s 65 B Indian Evidence Act regarding FIR No. 551/14, and proved the said certificate as Ex. PW18/A. WITNESS OF INVESTIGATION
20. PW 16 Ct. Anil deposed that on 02.09.2014, he joined the investigation of this case with IO SI Renu and at about 3.30 PM, they alongwith the complainant, reached at Mukundpur Traffic Signal, where the complainant pointed out towards the accused, who was correctly identified by the witness, and accused was apprehended by him and subsequently arrested by the IO vide arrest memo Ex. PW16/A and his personal search was conducted vide personal search memo Ex. PW16/B. IO recorded the disclosure statement of the accused and then he was taken to BJRM Hospital for his medical examination, where the doctors seized his blood samples and gave the same to him (PW16) and Judgment : FIR No. 551/14 page 9 of 27 SC No. 57402/16 State Vs. Rajvinder Singh he handed over the same to the IO, who seized the same vide seizure memo Ex. PW16/C.
21. PW 17 SI Renu deposed that on 20.08.2014 while posted at PS Adarsh Nagar, she was handed over the investigation of the instant case. She got the statement of the victim recorded u/s 164 CrPC and thereafter on 22.08.2014, the victim child was produced before CWC. On 26.08.2014, she collected the school certificate of the victim and the copy of the admission register, which are already Ex. PW14/B and PW 14/A respectively, as per which, she found the date of birth of the victim to be 03.02.2007. On 02.09.2014, she arrested the accused at the instance of the victim's mother, vide his arrest memo already Ex. PW16/A and personally searched the accused vide personal search memo already Ex. PW 16/B. She interrogated the accused and recorded his disclosure statement Ex. PW17/A and also gave the information of arrest of the accused to his sister. On 03.09.2014, she got the potency test of the accused conducted at BJRM Hospital and after his medical examination, the pullanda containing the blood sample alongwith the sample seal, was handed over to her by the doctor, and she seized the same vide seizure memo Ex. PW16/C. She produced the accused before the Ld. MM, from where he was sent to Judicial Custody. She also made inquiries from the victim and recorded her statement.
The exhibits of the victim and accused had already been deposited with the FSL Rohini, by the previous IO SI Sangeeta, while the FSL result was proved on record by PW 17 as Ex.17/B1. She recorded the statements of the witnesses and filed the chargesheet.
Judgment : FIR No. 551/14 page 10 of 27
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22. PW 19 SI Sangeeta deposed that on 18.08.2014, she was posted at PS Model Town and on that day, DD No. 18A was assigned to her for investigation. She went to BJRM Hospital where she met SI Vishal, W/Ct. Kamlesh, SI Raj Bala, the complainant and her daughter, already having been brought there, for the medical examination of the victim. She called the NGO official for the counselling of the victim and her mother. She recorded the statement of the mother of the victim, which is already Ex. PW2/A, on the basis of which, she prepared the Tehrir Ex. PW19/A. SI Raj Bala handed over the sealed exhibits of the victim to her, which she seized vide seizure memo Ex. PW 19/B. She came to the police station and gave the Tehrir to the Duty Officer for registration of the FIR, whereafter she alongiwth the complainant and other staff went to the place of occurrence and at the instance of the mother of the victim, she prepared the site plan Ex. PW19/C. She also recorded the statement of the father of the victim. She further deposed that the Crime Team had already inspected the spot and had lifted the bed sheet and mattress from the spot, which she seized vide seizure memo Ex. PW19/D. She recorded the statements of the relevant witnesses, while the victim, by that time, was admitted in BJRM Hospital for her treatment and was discharged from hospital on 19.08.2014, whereafter the further investigation was handed over to SI Renu. She identified the case property comprising of bed sheet and mattress, which were proved on record as Ex. P1 and Ex. P2. She proved on record the photographs of the place of occurrence as Ex. P3/A to 3/G. Judgment : FIR No. 551/14 page 11 of 27 SC No. 57402/16 State Vs. Rajvinder Singh MATERIAL WITNESSES
23. The prosecution, to substantiate its case, examined the victim N as PW 1. After conducting preliminary examination of the victim by putting certain questions to her to assess the competency of victim child to give rational answers, on being satisfied, the statement of the victim was recorded, wherein she deposed as under :
"I went to fill up the water in Cane. There I was called by Punjabi Uncle and he hold my hand and pulled me inside his house. Then he bolted the door. Thereafter, he started doing bad talks. Then he pull off his underwear and thereafter my underwear. After that, I tried to run away but he hold my hand and pressed my mouth. Then, he inserted his penis into my private part. I cried out of pain. I felt pain and bleeding due to that wrong act. I managed to escape from there and narrated the incident to my mother. When I come outside the room, Punjabi uncle fled from there. I was taken to the hospital by my mother and police. I also narrated the incident before a Judge earlier.
At this stage, an envelope is opened sealed with the seal of SJ and a statement U/s 164 Cr.P.C. is taken out. The witness has been shown the statement and she identifies her signatures at point A and the same is Ex. PW1/A."
24. In her crossexamination by the Ld. Amicus Curiae for the Judgment : FIR No. 551/14 page 12 of 27 SC No. 57402/16 State Vs. Rajvinder Singh accused, the victim / PW 1 deposed as under :
"The Punjabi uncle was living in our neighborhood. He never had fight with my parents before this incident. It is wrong to suggest that I have been tutored by my parents. It is wrong to suggest that I have deposed before this Hon'ble Court on instance of my parents. It is wrong to suggest that my parents had previous enmity with the accused that is why he has been falsely implicated."
25. The mother of the victim entered the witness box as PW 2 and deposed that victim N is her daughter, and on the day of incident, she was sleeping with her one month old son, when her daughter / victim N came weeping to her and she noticed blood stains on her underwear. She further deposed that her daughter / victim N told her that one Sardar uncle had pulled her inside his room, bolted the room from side and thereafter committed penetrative sexual assault upon her, by opening the zip of his pant and removing the underwear of the victim. PW 2 took the victim outside the house and saw the accused (Sardar) locking his room and fleeing from there. On seeing the said Sardar, the victim fell unconscious. She took the victim to PS, from where she was taken to a hospital at Jahangir Puri. She made a complaint Ex. PW2/A to the police, which bears her signature at point A. She gave her consent for internal medical examination of her daughter, regarding which an endorsement was made at point A under her signature on the MLC of the victim, which is Ex. PW 2/B. Judgment : FIR No. 551/14 page 13 of 27 SC No. 57402/16 State Vs. Rajvinder Singh
26. In her crossexamination by the Ld. Amicus Curiae for the accused, PW 2 deposed that her daughter was discharged from hospital after two days of the incident. She further deposed that the clothes of her daughter were seized by the police in the hospital. She denied the suggestion that due to constant quarrels with the accused, who is her neighbour, the instant case was got lodged.
27. Mr. N, father of the victim, entered the witness box as PW 3 and deposed that on 18.08.2014 at about 2.30 pm, his son informed him about the incident and on reaching home, his wife disclosed him that accused Rajvinder Singh, who was residing in the adjoining jhuggi, had committed sexual assault upon their daughter. The victim, who was unconscious at that time, was taken to PS Adarsh Nagar, from where she was taken to BJRM Hospital, where she was medically examined.
28. In his crossexamination by the Ld. Amicus Curiae for the accused, he denied that no such incident ever took place or that he was not told anything by his wife or that since they had constant quarrels with the accused, he has been falsely implicated in this case.
29. After close of PE, the statement of the accused was recorded u/s 313 CrPC wherein he denied the prosecution case in its entirety, and pleaded his innocence. He further stated that he has been falsely implicated in this case by the mother of victim to extort money. However, he preferred not to lead any defence evidence.
30. I have heard Sh. Sanjay Jindal, Ld. Addl. PP for the State and Ms. Judgment : FIR No. 551/14 page 14 of 27 SC No. 57402/16 State Vs. Rajvinder Singh Vandana Kumar, Ld. Amicus Curiae for the accused. Ld. Addl. PP for State has contended that the victim, despite being a child of tender years, has duly supported the prosecution case and has brought home the culpability of the accused, who has also been identified by her categorically. Her mother, who was examined as PW2, has also corroborated the version of the victim, she being the person to whom the victim had narrated the entire act of the accused, soon after the commission of the offence. There is no delay in lodging of the FIR and medical aid was provided to the victim immediately, and the same has been brought forth in the form of the MLC of the victim, which is not just indicative but corroborative to the testimony of the material witnesses regarding penetrative sexual assault having been committed upon the victim. The blood stained clothes of the victim as well as other exhibits were seized by the doctors concerned and were sent to FSL, and the FSL result, which has been received, is again positive one, supporting the prosecution case and pointing towards the culpability of the accused of having committed penetrative sexual assault / rape upon the victim, who was about 8 years of age at the time of commission of offence. It is prayed that since the prosecution has proved the guilt of the accused beyond a shadow of reasonable doubt, he be convicted for the offences, he has been charged with.
31. Per Contra, Ms. Vandana Kumar, Ld. Amicus Curiae for the accused has contended that the accused has been falsely implicated in this case and that he is neither a previous convict nor a previous offender. A lenient view has been prayed for.
Judgment : FIR No. 551/14 page 15 of 27
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32. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law.
Age of the victim
33. To ascertain the age of the victim child, the prosecution relied upon the school record of the victim, brought on record by PW 14 Ms. Pooja, Teacher from the school, where the victim child N was studying. PW 14 brought on record the admission / withdraw register maintained in the school and deposed that as per school record, child N was admitted in the school, in first class on 17.04.2012 vide admission no. 3133 and her date of birth is 03.02.2007. The certificate issued by the Principal of the said school in respect of the age of the child, was also brought on record as Ex. PW 14/B, as per which the date of birth of the victim is 03.02.2007. The accused has not disputed the said school record and the age of the victim and there is nothing on record to disbelieve the said school record and that the date of birth of the victim child is 03.02.2007. Therefore, it is accepted that the date of birth of the victim child N is 03.02.2007. As such, on the date of alleged incident i.e. 18.08.2014, the victim was aged about 8 years, and hence she is a "Child" within the meaning given under the POCSO Act.
Testimony of the material witnesses
34. There are three material witnesses, who have been examined by the prosecution, being the victim herself as PW 1, her mother and father Judgment : FIR No. 551/14 page 16 of 27 SC No. 57402/16 State Vs. Rajvinder Singh as PW 2 and PW 3 respectively. The testimony of the 8 years old victim N, was very clear, cogent and an emphatic one. Though the date of occurrence was not given by the child, but her testimony was firm that she had gone to fill water, when Punjabi Uncle (accused) caught hold of her hand, pulled her inside his house, bolted the door, started making obscene conversation with her, pulled off his underwear and thereafter the victim's underwear, and when she tried to run away, he pressed her mouth and thereafter inserted his penis into the private part of the victim, due to which she felt pain and started bleeding from her private part. As per the victim, thereafter the accused fled away from the spot, while she came back to her home and narrated the entire incident to her mother. She identified the accused to be the person, who had committed the said act with her. In her crossexamination, she further established the identity of the accused, by stating that accused i.e. Punjabi Uncle was living in their neighbourhood and this factum was not confronted during her cross examination. To a question put to the victim during her cross examination, she categorically stated that the accused never had any quarrel with her parents before this incident, nor had she been tutored by her parents, and denied the false implication of the accused due to any previous enemity.
35. She was corroborated on all material particulars, by her mother, who also stated that on the date of incident in the afternoon, while she was sleeping with her infant son, the victim had come to her, weeping, and disclosed the entire incident done by Sardar uncle and she also found that the underwear of the victim was blood stained. She also deposed the narrative of the victim, made by the victim to her, Judgment : FIR No. 551/14 page 17 of 27 SC No. 57402/16 State Vs. Rajvinder Singh immediately after the incident itself, which in itself is corroborative of the wrong act having been committed upon the victim. She has proved the complaint Ex. PW 2/A made to the police immediately after the incident, and also deposed that the victim was taken to hospital for her medical examination and she gave her consent on the MLC of the victim, for the internal medical examination of the victim, which was proved as Ex. PW2/C. In her crossexamination, on the asking of the Ld. Amicus Curiae, the mother of the victim also stated that the clothes of her daughter including her underwear were seized in the hospital at the instance of the police. Neither the testimony of the victim nor that of her mother have been controverted during their crossexamination, regarding the bleeding from the private part of the victim and her clothes being blood stained. The suggestion regarding any quarrel between the parents of the victim and the accused, was also denied by the mother of the victim.
36. Father of the victim also deposed that he was informed by his wife about the wrong act having been committed upon their daughter, by the accused, who was identified by him in the court. He also denied that they ever had any quarrel with the said accused, who was their neighbour. The testimony of the victim and her parents was cogent and same could not be shattered at all, during their grilling crossexamination conducted by the Ld. Amicus Curiae, as the act of penetrative sexual assault, perse was not disputed. Rather, the only suggestions, which were given, were that the accused had been falsely implicated in this case, implying thereby that if the sexual assault had actually taken place, it was may be done by some other person and not by the accused, who had been Judgment : FIR No. 551/14 page 18 of 27 SC No. 57402/16 State Vs. Rajvinder Singh falsely implicated in this case at the instance of the parents of the victim, which were denied by all the three material witnesses.
Witnesses of investigation.
37. The witnesses of investigation proved the entire chain of investigation, beginning from the lodging of the complaint on 18.08.2014 at about 2.45 PM, regarding the wrong act committed by the neighbourer Rajvinder Singh with the complainant's daughter N, which was reduced into writing as DD No. 18 A, after the registration of which, the complainant alongwith her daughter were sent to BJRM Hospital and the information was given to the concerned ACP and IO. The FIR, which was lodged, has been duly proved as Ex. PW 12/A. PW 5 SI Naresh Pal, being a member of the Crime Team, immediately on receipt of the information, reached at the spot i.e. Jhuggi no. 145, TPT Canteen and after the inspection of the spot, lifted the mattress and a white coloured bedsheet, and prepared his report in this regard as Ex. PW 5/A. Subsequently, the said mattress and bedsheet were sent to FSL for expert analysis, and as per the FSL result, which was received subsequently, showed the presence of semen on the said mattress.
38. The concerned MM, who recorded the statement of the victim u/s 164 CrPC, also made a statement to this effect and also testified about the correctness of the statement of the victim child, as narrated to her by the victim herself. The seizure of the samples and the exhibits, which were collected and sealed by the doctors concerned i.e. PW 6, PW 7, Judgment : FIR No. 551/14 page 19 of 27 SC No. 57402/16 State Vs. Rajvinder Singh PW8 and PW 11, and were handed over to the IO, who seized the same vide appropriate seizure memos, have been duly proved by the IO. Deposit of the said samples with the Malkhana, in duly sealed condition as well as the deposit of the mattress and the bedsheet, which were lifted from the spot at the time of inspection, and the deposit entries in the relevant Malkhana Register No. 19, have been duly proved by PW 9 as Ex. PW 9/A. It is also proved that the said sealed samples / exhibits were sent to FSL vide RC no. 89/21/14 Ex. PW 9/C, with the certification that as long as the said samples remained in the possession of the MHC(M) (PW9), they were not tampered with. Ct. Tara Chand carrier of the said exhibits and the case property to the FSL from MHC(M), also testified as PW 10, completing the chain, by stating that he deposited the sealed samples alongwith the sample seal in the FSL Rohini and also handed over the receipt issued by the FSL Ex. PW 9/D to the MHC(M), and that as long as the case property remained in his possession, it was not tampered with.
39. The arrest of the accused on 02.09.2014 vide his arrest memo and personal search memo and he being taken to the hospital for his medical examination, was proved by PW 16 Ct. Anil and PW 17 IO SI Renu, and they stood on firm ground in their testimony, which could not be shattered during the crossexamination conducted by the Ld. Amicus Curiae. PW 18 also issued a certificate regarding the genuineness of the FIR. Therefore, the FIR was a prompt one and the investigation was a vigilant one, and the entire chain of events during the course of investigation, was proved to the hilt by the witnesses of investigation.
Judgment : FIR No. 551/14 page 20 of 27
SC No. 57402/16 State Vs. Rajvinder Singh
40. The accused has been charged for the offence punishable u/s 363/366/342/376(2)(i) IPC and 6 POCSO Act. For the offence of kidnapping u/s 363 IPC to be brought home, the prosecution had to prove that the victim was enticed out of the lawful guardianship of her parents, without their consent. For the offence u/s 366 IPC to be brought home, the prosecution had to prove that the victim was kidnapped with the knowledge that she may be compelled or knowing it to be likely that she may be forced or seduced to illicit intercourse. For both the said offences to be brought home, the primary ingredient, which had to be proved besides other, was the element of enticement, which means that the child was allured to the spot of occurrence either by making false promises of giving her something to eat or some other gratification, which attracted the victim and she accompanied the accused willingly, though without the consent of her lawful guardians / parents. In the case in hand, the element of enticement is consciously missing. In her statement u/s 164 CrPC before the Ld. MM, however, the version of the victim came with a slight improvement that the Punjabi Uncle had called her and told her to give him some water and when she had gone near him, he had immediately pulled her from her arm, inside the house. However, even this version of the victim cannot be stretched enough to be brought within the ambit of term 'enticement', but rather there was a forcible act on the part of the accused by pulling the victim inside his house while she was passing by, and thereafter confining her in a room. Therefore, the said element of 'enticement' being not present, the offence u/s 363 & u/s 366 IPC could not be brought home against the accused.
41. The accused has also been charged for the offence punishable Judgment : FIR No. 551/14 page 21 of 27 SC No. 57402/16 State Vs. Rajvinder Singh u/s 342 IPC. From the vivid testimony of the victim, which has not been controverted on this score during her crossexamination, it is established that she was pulled by the accused from her arm forcefully into his house, and he bolted the door from inside, thus not allowing her to go outside. The MLC of the victim Ex. PW2/B also finds a mention regarding presence of 'bruises' on the right arm of the victim, which corroborates the testimony of the victim, regarding forcible pulling of the victim by the accused into his house. The child was coming back to her house, but by the said untoward act by the accused, she was restrained and thereafter confined in his house by bolting the door so that she may not be able to leave, and thus the offence u/s 342 IPC is established and proved by the prosecution, against the accused convincingly .
42. The accused has also been charged for the offence punishable u/s 376 (2)(i) IPC and 6 POCSO Act. From the cogent and reliable testimony of the victim, duly supported by her mother, that she was subjected to penetrative sexual assault / rape by the accused, who inserted his penis into her private part, due to which she cried out in pain and started bleeding from her private part. The MLC of the victim finds a mention regarding the presence of bruises on her right arm and dry blood on her perirectal area as well as her underwear, again a factum coming in the testimony of the doctor concerned, who proved the MLC, as well as in the testimony of the victim and her mother, which was not controverted at all. The FSL result, in Biological Examination as well as in DNA Examination, shows the presence of semen on the underwear of the victim and the rectal swab of the victim, which again corroborates the version of the victim that she was forcibly raped / subjected to penetrative Judgment : FIR No. 551/14 page 22 of 27 SC No. 57402/16 State Vs. Rajvinder Singh sexual assault. There is no controversion on behalf of the accused, about the child having been subjected to a penetrative sexual assault. Except for baldly stating that the accused has been falsely implicated, no other proof on behalf of accused came forth in support of his plea. There is nothing on record to doubt the testimony of the victim or her mother . Accordingly, the offence u/s 376 (2)(i) IPC and 6 POCSO Act, are brought home by the prosecution against the accused, without any reasonable doubt.
Medical and forensic Evidence
43. After his arrest, the accused was got medically examined at BJRM Hospital on 02.09.2014 and his blood samples were collected and sealed by the doctors concerned, as is evident from the MLC Ex. PW11/A. After his referral to Forensic Medicine Department, the potency test of the accused was conducted vide MLC Ex. PW 11/B. Potency test report dated 03.09.2014 was subsequently obtained, wherein it is reported that there is nothing to suggest that the accused Rajvinder Singh was incapable of performing sexual intercourse.
44. The victim was also got medically examined on the same day of offence i.e. 18.08.2014, at 2.40 PM at BJRM Hospital and her MLC Ex. PW2/B was prepared. As per the MLC, at the time when the victim N was brought to the hospital with the history of sexual assault by a neighbour, she was found conscious and oriented but on detailed examination, dry blood spots were found on her introitus region and peri Judgment : FIR No. 551/14 page 23 of 27 SC No. 57402/16 State Vs. Rajvinder Singh rectal area and there were bruises over her right arm. All the exhibits / samples of the victim were seized, after her thorough internal medical examination, which was conducted with the consent of the mother of the victim, she was advised medication.
45. The FSL result Ex. PW 17/B1 has also been brought on record by the prosecution, and the FSL result reveals that as per the Biological Examination, blood was detected on various exhibits including Ex. 1a2 i.e. one dirty underwear, Ex. 3a i.e. one bed sheet having dark brown stain and Ex. 3b i.e. one very dirty gadda (mattress) having dark brown stains. The FSL result further reveals that Semen was detected on exhibits I.e Ex. 1a1 i.e. one dirty banian, Ex. 1a2 i.e. one dirty underwear, and Ex. 3b i.e. one very dirty gadda (mattress) having dark brown stains.
46. The conclusion of the DNA Examination of the requisite samples / exhibits, which is mentioned in the FSL result, reads as under :
"The exhibits '1a1', '1a2', '1c', '1h2', '1L1', '1L2', '1L3', '1m2', '1m3', '3a', '3b', were subjected to DNA isolation. DNA was isolated from the source of the exhibits '1a1', '1a2', '1j2', '1L1' and '3b'. Identifier plus STR amplification kit was used for PCR amplification and gene Mapper IDX software was used for DNA profiling (STR analysis) in each of these exhibits."
47. Further the FSL Result in respect of DNA Analysis reads as under :
Judgment : FIR No. 551/14 page 24 of 27
SC No. 57402/16 State Vs. Rajvinder Singh
"DNA Profile of female origin has been generated from the souce of exhibits '1L1' i.e. Blood of victim). However DNA profile of male original has been generated from the source of exhibits '1a1' (baby banian), '1a2' (baby underwear), '1j2' (Rectal swab), and '3b' (gadda) are preserved in this laboratory.
48. Therefore, the medical and forensic evidence brought forth by the prosecution is conclusive of a penetrative sexual assault having been committed upon the victim, by the accused, inclusive of ejaculation of semen, which was detected not just on the Ex. 3B i.e. mattress but also from the rectal swabs taken from the body of the victim, and the said semen being that of the accused, as is evident from the DNA profile and Finger Printing Analysis.
Defence of the accused
49. During the course of trial, the defence which was raised by the accused was a flimsy one that he being the neighbour of the victim, her parents often had quarrels with him, due to which he has been falsely implicated in this case. In his statement u/s 313 CrPC, the accused again claimed that he has been falsely implicated by the victim at the instance of her father, however, he preferred not to lead any defence evidence in the instant case to corroborate his plea of false implication at the hands of the parents of the victim. The defence which was tried to be put up by the accused, was found to be a sham one, as had there been any fights / Judgment : FIR No. 551/14 page 25 of 27 SC No. 57402/16 State Vs. Rajvinder Singh quarrels between the accused and the parents of the victim, surely the same would have been witnessed by other persons in the neighbourhood, the place of their residence being a congested colony. Moreover, no specific quarrel or incident, which would bring about any bad blood flowing between the accused and the family of the victim, was either mentioned or elucidated upon, by the accused, while cross examining the victim and her parents during the course of trial. Therefore, the defence, which has been raised by the accused, is a sham one and does not inspire confidence.
50. In view of my discussions above, it emerges that ;
(i) on the day of incident, the victim was about 8 years of age;
(ii) the accused pulled the victim inside his house, confined him there by bolting the door, in order to sexually assault her;
(iii) the accused committed penetrative sexual assault upon the victim by inserting his penis into her urinary part.
(iv) the witnesses are trustworthy and their testimony is reliable.
(v) and that accused has not been able to raise any defence.
51. Conclusion : In the light of my discussion above, the testimony of prosecution witnesses are found to be trustworthy and reliable, and the prosecution has succeeded in proving that the accused confined the victim in his house, committed Aggravated Penetrative Sexual Assault upon the victim, aged around 8 years, at the time of incident, and thus having committed an offence punishable u/s 342 IPC and an offence of aggravated penetrative sexual assault as described u/s 5 (m) of the POCSO Act, and punishable U/s 6 of POCSO Act and for the Judgment : FIR No. 551/14 page 26 of 27 SC No. 57402/16 State Vs. Rajvinder Singh offence punishable u/s 376 (2)(i) IPC.
52. Accordingly, the accused is convicted for the offences punishable u/s 342 IPC, for the offence U/s 6 of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and u/s 376 (2)(i) IPC.
53. Matter be listed for arguments on the quantum of sentence on 25.11.2017.
Announced in the open court
today i.e. on 21.11.2017 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 21.11.2017
Judgment : FIR No. 551/14 page 27 of 27