Delhi District Court
Jcl 'N' vs The State on 16 December, 2017
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSIONS JUDGE+1/ SPECIAL JUDGE
(POCSO), SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI
Criminal Appeal No. 78/17
FIR No. 1348/15
Under Section 377/506/34
Police Station Seemapuri
In the matter of :
1. JCL 'N'
2. JCL 'K'
3. JCL 'S'
...........Appellants
VERSUS
The State
(Govt. of NCT of Delhi)
.............. Respondent
Date of Institution : 10.08.2017
Date of transfer to this court : 10.08.2017
Date of reserving Order : 13.12.2017
Date of pronouncement Order : 16.12.2017
ORDER
16-12-2017
1. This appeal is preferred against the judgment of Juvenile Justice Board-III dated 14.07.2017 and order dated 17.07.2017 whereby the appellant JCLs 'N' & 'K' were found to be involved for commission of offences punishable under Section 506(I)/34 IPC and 6 POCSO Act and JCL 'S' is also found to be involved for the commission of offences CA No. 78/17 Page no. 1 of 7 punishable under Section 506(I)/34, 506(II) IPC and 6 POCSO Act and vide order dated 17.07.2017 all three JCLs were directed to be kept in Special Home for a period of three months.
2. Notice of the appeal was given to the State. Record of Ld. Trial Court also summoned and received.
3. I have heard Sh. R.C. Raghav, Ld. Counsel for appellant/ accused and Sh. S. K. Tripathi, Ld. Addl. PP for State. I have also gone through the record.
4. In brief, relevant facts are that the appellants/JCLs were sent for inquiry before Juvenile Justice Board-II after filing of PIR alleging therein that on 23.09.2015 on receipt of DD no. 72B ASI Heera Lal recorded statement of complainant aged about 13 years regarding unnatural sexual intercourse and penetrative sexual assault upon him by the JCLs and JCLs were sent to Juvenile Justice Board and vide its order dated 12.01.2016 gave notice to appellants/JCLs for offences punishable under Section 6 of POCSO Act and 506(I)/34 and 506(II) IPC in which JCLs admitted their involvements. The inquiry was conducted and during the course of inquiry, the complainant/PW-1, father of complainant/PW-2, SI Monu Chauhan/PW-3 who conducted the investigation, ASI Heera Lal/PW-4 who recorded the statement of victim and got the FIR registered were examined. PW-5 Dr. Saurabh Uniya who examined the JCL 'S' and JCL 'K' and opined that there CA No. 78/17 Page no. 2 of 7 is nothing to suggest that they are incapable of performing sexual intercourse. PW-6 Dr. Nadeem examined JCL 'N' and similarly opined. PW-7 Dr. Madhusudan Verma had examined the victim and he did not notice fresh visible external injuries and referred the child for surgery. PW-8 Dr. Abhay Kumar, Senior Resident in the Department of Surgery examined the victim and inter-alia found that there was small healing abrasion at 6 O'Clock position. Statement of JCLs were recorded. JCL 'N' and JCL 'K' denied the prosecution evidence. However, JCL 'S' admitted the galatkaam and stated that complainant used to ask him to do so.
5. It is also pertinent to mention that Juvenile Justice Board earlier disposed off the case without recording the statement of doctors and thereafter, the conviction was set aside with direction to record the statement of doctors and thereafter, statement of doctors was recorded and hence, further supplementary statement of JCLs were also recorded. On conclusion of inquiry vide judgment dated 14.07.2017, JCL 'N' and 'K' were found to be involved in commission of offences punishable under Section 506(I)/34 IPC and and 6 POCSO Act and JCL 'S' was found to be involved in commission of offences punishable under Section 506(I)/34, 506(II) IPC and 6 POCSO Act and vide order dated 17.07.2017 JCLs were directed to undergo/keep in Special Home for a period of three months. Hence, the present appeal.
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6. The judgment of Juvenile Justice Board is assailed on the ground that order of Ld. Trial Court is cryptic and disposed off the matter without discussing the points referred in appeal. There is inordinate delay in reporting the matter. Appellants are the students and can be reformed and rehabilitated without sending them to Protective Home. There is no criminal history of the appellants. Further, material witnesses teacher and mother has not been examined.
7. The PW victim stated that he was studying in 6 th standard and from June 2015, his friends used to take him to Deer Park which was near to his school. They were appellants. Appellant 'A' was rusticated from the school since the bidi was found in his bag. They used to do galatkaam with him. The galatkaam means they made him to smoke bidi and cigarette in the said park and after that they used to take him to some jala in the park which is made up from stone and there used to do galatkaam with him over there. In the said jala, they used to remove his pant and after that they used to put their private part from where they urinate into his anus. JCL 'A' threatened him that if he disclosed this fact to anyone they would kill him and also circulated MMS to his uncle (Chacha). They did this act with him for about 10-15 times. First of all, he narrated the entire incident to his teach and thereafter, his teacher told the said facts to his mother and his teacher scolded the JCLs.
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8. PW-2 father of the victim stated that on 23.09.2015 at about 06:00 to 06:30 p.m. his son came from school and he was perplexed and frightened and on seeing his condition, he asked from his son what had happened to which he replied that JCLs used to forcibly made him to have bidi, cigarette and other intoxicating substance. Further his son told him that those three boys used to take him to nearby Deer Park and do wrong act with him i.e. kapde khol kar galat kam kiya karte the. He dialed 100 number and called the police.
9. The doctor who examined the victim found heeling abrasion at 06 O'Clock position in perineal region which corroborates the version of victim.
10. In cross-examination of victim child, he stated that JCLs used to take him to Deer Park while he was coming from his school to his home, sometime during lunch hours and after school hours. JCLs used to take him to Deer Park by foot. He objected to JCL against galatkaam but they threatened him that if he object they would kill him and also told to his chacha. Inside the jala there is some area which is enclosed with stone and no public person used to come at that place and also JCLs one by one used to do galatkaam with him and no person would see them while doing galatkaam with him. It is stated that he did not object to the same since they had threatened him. On one occasion when JCLs made him to smoke bidi and cigarette, he did raise his voice and upon CA No. 78/17 Page no. 5 of 7 listening his voice, one uncle came and scolded them and he told to the uncle about the bidi and cigarette and not about the galatkaam. He stated that there is no previous enmity between his family members and family of of JCLs. PW-2 father of victim was also cross-examined. He stated that he came to know about one month prior regarding bad habits of JCLs and when he went to complain regarding this to their home some arguments exchanged between him and their parents. It is stated that JCLs are resided in their neighbourhood. He also stated that teacher of his son had informed him about the incident.
11. As regards in submission, that neither the teacher nor the mother has been examined, there is delay in recording the FIR and making the complaint, the victim in this case is a child aged about 13 years who was going to school where the JCLs were also studying. Therefore, such small child would not disclosed this fact immediately. Therefore, delay in recording the FIR or making the complaint in such cases can not be termed to be fatal. The testimony of child victim finds corroboration from the medical evidence. There is no apparent reason as to why the child would name three JCLs having committed the act with him. The merely case that the teacher and mother has not been examined does not in any manner bring down the credibility of victim child whose version is corroborated by the medical evidence as well as by PW-2 whom he informed. Therefore, I find that there is CA No. 78/17 Page no. 6 of 7 no merit in the contention of appellants.
12. As regards of the reformation in Special Home, the present incident is of the year 2015 and much time has elapsed. Therefore, sending the JCLs at this stage to Special Home may not serve any purpose. However, Juvenile Justice Board shall prepare a reformation plan of JCLs to keep them in watch for a period of two years with input and intervention at regular interval. The appeal is accordingly, disposed off.
13. Copy of the order be sent to Ld. Trial Court, Juvenile Justice Board.
14. Appeal file be consigned to record room. Announced in the open court today i.e. 16-12-2017 (GURDEEP SINGH) ASJ-1+SPL. JUDGE (POCSO) SHAHDARA/KKD/DELHI/16-12-2017 CA No. 78/17 Page no. 7 of 7