Delhi District Court
Sc No. 133/15 : Fir No. 485/14 : Ps I.P. ... vs Akhtar Ahmed on 1 May, 2017
SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 133/15)
Unique Identification No.: 02404R0325932015
State V/s Akhtar Ahmed
FIR No. : 485/14
U/s : 376 IPC
& Sec. 6 of POCSO Act
P.S. : I.P. Estate
State V/s Akhtar Ahmed
S/o Mohd. Nizamuddin
R/o H. No. B3/88, Agar Nagar,
Prem NagarIII, Kirari, Suleman
Nagar, Delhi.
Date of institution of case : 03.09.2014
Date of arguments : 25.04.2017
Date of pronouncement of judgment : 25.04.2017
J U D G M E N T :
1.The facts of the case as borne out from the record are that on 11.11.2014, at about 3.10 PM, an information was received at PS IP Estate through Page 1 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed PCR, with regard to recovery of an abandoned girl child, aged about 7 years, from a bus. The said information was recorded as DD No.20A and the same was entrusted for inquiry to SI Mohit Malik, who went to the place mentioned in the said DD along with Ct. Narender and found the aforesaid girl (hereinafter referred to as the "child victim"). Thereafter, on the directions of SHO, PS IP Estate, WSI Vishambhari also went to the spot. She called a counselor by the name of Pearl Massey at the spot, got the child victim counseled from her and recorded her statement, wherein she stated that her father was a drug addict and her mother had expired. After the death of her mother, her father had abandoned her and her other siblings. She was brought to Delhi by her aunt (bua, sister of her father). After sometime, her aunt left her at the place of another woman, who used to make her to work of filling of lime (chuna bharna). She further disclosed that when she had been staying at the house of her aunt, her uncle (fufa, husband of bua) namely Akhtar (accused in this case) used to inappropriately touch her private part. The son of the woman with whom her bua had left her took her to a bus and left her there.
Thereafter, the child victim was taken to LNJP Hospital, where her medical examination was conducted, wherein in her internal gynecological examination her hymen, though appeared intact, but found to be patulous (slightly wide), thereby giving an indication of she having been subjected to sexual assault.
On the basis of aforesaid statement and medical examination, the case FIR in the matter was recorded and investigation was entrusted to SI Vishambri, Page 2 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed who produced the child victim before CWC on 12.11.2014, from where she was ordered to be lodged at SOS Udyan, a short stay home for destitute children. CWC directed DCPU to get the child victim counseled thoroughly and recording of her statement U/s 164 Cr.P.C. Accordingly, the statement of child victim U/s 164 Cr.P.C was recorded.
On the further directions of CWC, the child victim was kept in institutional care at Children Home by the name of Udyan. She was regularly counseled there by support person by the name of Ms.Ujma Parveen from HAQ Centre for Child Rights. The said support person through her sustained efforts could elicit information from the child victim about the locality where her bua had been residing and as such, the police arrested the accused in the matter on 04.06.2016. The documents with regard to the age of the child victim were collected. As the case FIR was registered at PS I.P. Estate and investigation was conducted by the police officials of PS I.P.Estate, after completion of investigation, charge sheet was filed in the Central District. However, during investigation, it transpired that the offence complained in the matter had been committed within the jurisdiction of Outer District and as such, on the direction of the concerned court at Central District, charge sheet was filed before this court through PS Aman Vihar.
2. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. Arguments on the point of charge were heard and on 06.10.2015, charge u/s 5 (m) (l) and (p) of POCSO Act 2012 (hereinafter referred to as the Page 3 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed "Act"), punishable u/s 6 of Act was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charge against the accused, prosecution examined as many as 11 witnesses, whereafter the PE in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the child victim at the instance of police. Accused did not lead any evidence in his defence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Sh. Shubham Asri, ld. Amicus Curie, for the accused, Shri Chander Suman Kumar, advocate for the child victim and perused the entire material including the written arguments filed by Sh. Chandra Suman Kumar. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories :
(a) Child victim and Public witness
(b) Witness regarding age of the child victim
(c) Medical Evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation
(a) Child victim and Public witness
5. Child victim, in the present case was examined as PW2 and the relevant Page 4 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed portion of her testimony is as under : "xxx Q: Beta kyaa hua tha?
A: Meri mummy ki gaon mein death ho gayi thi aur
uske baad hum sab behan bhai apni Bua ke ghar aa
gaye thay.
Q: Beta aapki Bua ka ghar kahan hai?
A: Meri do Bua hai ek gaon mein rehti hai aur ek
yahaan par rehti hai. (while stating so, witness has referred to Village Mubarak Pur Dabas).
Q: Beta tumhare baki bhai behan kahan rehte hai?
A: Mere baki behan bhai meri gaon wali Bua ke
ghar rehte thay aur mujhe meri yahaan wali Bua apne ghar le aayi thi.
Q: Beta yahaan tumhari Bua ke ghar pe aur kaun
kaun rehta tha?
A: Meri Bua aur Fufa aur unke bachche kahin aur
rehte thay. Meri Bua aur Fufa dono kaam par jaate thay aur mai ghar mein akeli rehti thi. Fufa do baje khana khane aate thay aur Bua saat baje aati thi.
Q: Beta phir kyaa hua?
A: Ek din mere Fufa do baje khana khane aaye to
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SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed
maine apne Fufa se chiz khane ke liye paanch rupees mange to unhone kaha ke pahle khana de de. Maine unko khana de diya aur maine bhi khana kha liya. Uske baad jab mai chawal ka patila dusre kamre mei rakhne gayi to Fufa ne mujhe pakda aur mere kapde utaar diye aur ungli se meri beech wali jagah ko touch karne lage.
Q: Beta beech wali jagah se aapka kyaa matlab hai?
A: Yahaan par. (while stating so, the child has
pointed out towards her vaginal area.)
Q: Beta phir kyaa hua?
A: Uske baad Fufa ne apne kapde bhi utaare aur
apni beech wali jagah ko mujhe touch karne ke liye
bola. Jab woh mere beech wali jagah ko touch kar
rahe thay to mujhe bahut dard ho raha tha. Uske
baad Fufa ne mujhe chhod diya.
Q: Beta kyaa aapne apni Bua ko is ghatna ke baare
mei bataya tha?
A: Nahin kyunki Fufa mujhe mana karte thay aur
darate thay.
Q: Beta fir aapne Bua ko kab bataya?
A: Aisa Fufa ne mere saath bahut baar kiya. Ek baar
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Bua ne dekh liya tha to Bua aur Fufa ki bahut jor se
ladaai hui. Fir Bua ne kaha ki tere Fufa jhooth nahin bolenge kyunki Fufa Bua ke saamne mana kar rahe thay ki maine aisa kuchh nahin kiya. Fir Bua ne muhhe gaon bhej diya aur jab mai gaon se vapas aayi, tab bhi mere saath Fufa ne aisa kiya.
Q: Beta phir kyaa hua?
A: Bua ne mujhse kaha ki kyaa Asma didi ke ghar
par reh legi aur maine kah diya ki mai reh loongi. Uske baad Bua mujhe Asma didi ke ghar chhod aayi. Mai wahah par Aasma didi ke ghar par rehti thi aur unke bachche sambhalti thi aur ghar ka kaam karti thi.
Q: Beta phir kyaa hua?
A: Ek din mai apni Bua se milne aayi thi aur unhone mujhe das rupees ki daal lane ke liye kaha to mai wahan se bhaag gayi aur ek bus mai baith gayi. Uske baad ticket wale uncle ne mujhse puchha ki kahan jaana hai to maine unse kaha ki mujhe ghar nahin pata aur uske baad ticket wale uncle ne police ko bula liya.
Q: Beta phir kyaa hua?
A: Police ne mujhse puchha par maine saari baat
nahin batayi thi.
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SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed
Q: Beta aapne saari baat kyun nahin batayi?
A: Kyunki us time mujhe bahut darr lag raha tha.
Q: Beta Police aapko kahin lekar gayi thi?
A: Police mujhe hospital bhi lekar gayi thi. (While
stating so, the witness has referred to her medical
examination, which was conducted at LNJP Hospital).
Q: Beta kyaa aap pehle bhi kabhi court mei apne
bayaan dene aaye ho?
A: Haan. (Vol. Maine Judge Sahab ke samne apne
bayaan mei yeh bataya tha ki auntie mujhe bus mei
bithakar chhod kar chali gayi thi jo ki galat tha.) Q: Beta aapne aisa galat bayaan kyun diya?
A: Kyunki mujhe darr lag raha tha ki mujhe police
wale Bua ke ghar ya Asma didi ke ghar vapas na bhej
de.
Q: Beta police ne aur kyaa kiya tha?
A: Pehle police ne mera ghar dhundne ki koshish ki
thi par mai bata nahin payi. Ek din mai police ke saath ghar pahunch bhi gayi thi par mai wahan se dubara vapas aa gayi kyunki mai wahan rehna nahin chahti thi.
Fir police mujhe Gole Market mei mujhe lekar gayi Page 8 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed wahan mai thode din rahi uske baad wahan mam ne mujhse kaha ki aap Katyayani Balika Ashram mei raho aur khub padho likho.
Q: Kyaa aap apne Fufa ko pehchaan sakte ho?
A: Haan. (The witness has correctly identified the
accused from the design of the wooden partition by pointing towards him).
xxx"
During crossexamination by learned defence counsel, she stated as under : "xxx Q: Beta aapka gaon kahan hai?
A: Nahin pata.
Q: Beta aapki mummy ki death ke baad aap apne
gaon wali Bua ke paas apne bhai behno ke saath rahe
thay?
A: Haan. Bahut din tak.
Q: Beta yeh kehna to thik hai ke aap kabhi apni
gaon wali Bua ke paas rehte thay aur kabhi apni yahaan wali Bua ke pass rehte thay aur aate jaate rehte thay?
A: Haan yeh sahi hai.
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Q: Beta kyaa yeh sahi hai ke aap jab aapki gaon
wali Bua ke paas aap rehte thay aur woh apko kisi
kaam ke liye kehti thi toh aap unhe bina bataye ghar se bhag jate thay?
A: Yeh kehna galat hai.
Q: Beta jab aap gaon wali Bua ke paas rehti thi to
kyaa school padhne jaati thi aur aap apna homework time se nahin karti thi aur teacher se aapko daant padti thi?
A: Yeh dono baat thik hai.
Q: Beta aur is baat ki shikayat wahan teacher ne
aapki gaon wali Bua ko ki thi. Kyaa yeh baat sahi hai?
A: Haan yeh sahi hai.
Q: Beta kyaa yeh baat sahi hai ke in upar wali
baaton ke karan aapko aapki gaon wali Bua ne yahaan wali Bua ke paas bhej diya tha?
A: Haan yeh sahi hai.
Q: Beta yahaan wali Bua ne bhi aapka dakhila
school mein kara diya tha kya yeh baat sahi hai?
A: Haan yeh baat sahi hai.
Q: Beta kyaa yeh baat sahi hai ke yahaan par bhi
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SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed
aapki upar likhi saari shikayatein rehti thi?
A: Haan yeh baat sahi hai.
Q: Beta kyaa yeh baat sahi hai ke is wajah se aapke
Fufa aur Bua aapko kehte thay ke school ka kaam
achchhe se karo?
A: Haan yeh baat sahi hai.
Q: Beta kyaa yeh baat sahi hai ki yahaan par bhi aap
apne Bua aur Fufa ko bina bataye ghar se chale jaate thay?
A: Haan yeh sahi hai.
Q: Beta yeh baat to sahi hai ke aapke Bua aur Fufa
ka daantna aapko pasand nahin tha?
A: Yeh baat sahi hai.
Q: Beta yeh baat to sahi hai ke aapko aapke Fufa kai
baar school lekar gaye thay taaki aap achchhe se
padhe?
Meri badi behan ka naam Roshni hain. Wo
mujhse bahut badi hain. Mera ek bhai Roshni didi se bada hain aur do mujhe se chhote hain. Main apne behan bhaiyon ko accused ki harkaton ke baare main nahi bata pai. Vol. Kyonki wo gaon main rehte hain. Mere bhai aur behan mere fufa ( accused) ke ghar Page 11 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed nahi aate the. Main apni mummy ki death ke ek dam baad apne fufa ke ghar aa gai thi. Ye kehna galat hain ki mere fufa mere sath akele us ghar main kabhi nahi rahi. Vol. Wo jab 2 baje dopahar main khana khane aate the to us samay main akele hoti thi. Main accused to Fufa Ji keh kar pukarati thi. Ye kehna galat hain ke main unhe Nana ji kehti thi. Ye kehna galat hain ki maine accused ko is case main police ke kehne per jhootha fasaya hai.
xxx"
6. PW10 Sh. Sandeep Kataria, deposed that on 11.11.2014, he was on duty at bus route no 949, which used to ply from Tikri border to Ambedkar stadium and on that day, after reaching at Ambedkar Terminal, all the passengers had got down from the bus except the child victim, aged about 57 years and on inquiry, she told him that her fufa i.e. accused used to beat her and due to this reason, she had left the home. He further deposed that child victim also told her name as C and that she had boarded the bus from Nangloi. He further deposed that after coming to know about this, he called the police at 100 number and handed over the custody of child victim to them.
During crossexamination by learned Amicus Curie, he could not recollect the style and the colour of the clothes worn by the child victim. He Page 12 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed denied that just to save himself from any unforeseen problem, he took the complaint of the child victim to be truth and called the police.
(b) Evidence with regard to age of the prosecutrix
7. The prosecution has examined PW1 Ms. Puja, Teacher, Nigam Pratibha Girls School, Mubarak Pur DabasI, Delhi, who produced the school record regarding date of birth of the child victim and deposed that as per the school record, she was admitted in the school in 1 st class, on the basis of admission form Ex. PW1/A and affidavit Ex. PW1/B of her bua and her date of birth was entered in the school record as 02.01.2005. She also proved the relevant entry in the admission register as Ex.PW1/C. As per the school record, the child victim was admittedly aged about 8/9 years, as on the date of incident.
(c) Medical evidence
8. PW4 Dr. Shakun, Asstt. Professor, MAM college and Lok Nayak Hospital, deposed that on 11.11.2014, at about 9.30 pm, child victim was brought by counselor of Delhi Women Commission to the Gynae Department, Lok Nayak Hospital and she was also accompanied by one lady constable and on inquiry, she had given history that uncle (Phoopa) i.e. accused used to insert tip of index finger into her vagina. She further deposed that child victim was examined by SR Gynae, under her supervision vide MLC Ex. PW4/A and on examination, Page 13 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed Urethara, fourchette and hymen did not show any fresh injury or scar mark ; hymen appeared intact but patulous. (lax) (it was slightly wide) During crossexamination by learned defence counsel, she stated that patulous (lax) could take place for a number of reasons in a child, such as insertion of foreign object and volunteered to state that sexual assault in the matter could not be ruled out.
9. PW6 Dr. Amit Anand, CMO, Lok Nayak Hospital, had initially examined the child victim vide "Accident & Emergency Department Casualty Card" Ex. PW 6/A and MLC Ex. PW6/B and deposed that after initial examination, he referred child victim to Gynecology Department for further opinion and medical examination.
10. PW7 Dr. Mohit Chauhan, Senior Resident, MAM Hospital, Delhi, had examined the accused and proved his MLC as Ex. PW7/A qua the potency of the accused and deposed regarding the same.
(c) Evidence of Formal witnesses
11. PW3, Ms. Riya Gupta, Ld. M.M, in her evidence proved statement of child victim as Ex. PW3/B, recorded by her under Section 164 Cr.P.C on 13.11.2014.
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12. PW5 HC Rajeev, MHCR of PS I.P. Estate, deposed that on 31.08.2015, on the directions of IO/SI Mohit Malik, he had checked the "Previous Conviction/Involvement Record" of the accused in the computer and found that there was no previous involvement of the accused in any criminal case and he proved the printout of the concerned information as Ex. PW5/A.
13. PW11 Ms. Uzma Parveen, Programme Officer from HAQ, deposed that in the present case, as per the directions of the CWC, she was appointed a support person for counseling the child victim in February 2015 and since then, she had been counseling her in 'Udyan' Shelter Home, Gole Market, Delhi and that during counseling, child victim had disclosed about sexual assault committed upon her by the accused and thereafter, child victim was shifted to 'Katyayni', Home of Destitute girls, near Jhandewalan Metro Station, Delhi. She further deposed that accused was arrested in this case by the police in June, 2015 only after her efforts, when she had provided his address to the police.
(e) Evidence of police officials of investigation
14. PW9 SI Mohit Malik, initial IO of the case, deposed that on 11.11.2014, after entrustment of DD no. 20A Ex. PW9/A, regarding finding of the child victim in abandoned condition near terminal of Ambedkar Stadium, he and Ct.
Page 15 of 34SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed Narender had gone at the said terminal and found Bus no. DL1PC3076 of route no. 949, wherein child victim was there and thereafter, he informed the SHO, who had sent PW8 SI Vishambari at the spot for further inquiry. He further deposed that on 02.06.2015, further investigation of the case was handed over to him and during investigation, he came to know that about the address of accused from Ms. Uzma Parveen, counselor from HAQ and thereafter, on 04.06.2015, he arrested the accused vide arrest memo Ex. PW9/A and conducted his personal search vide memo Ex. PW9/B. He further deposed that after recording the disclosure statement Ex. PW9/C of the accused, his house was searched and during that search, documents regarding identity of the child victim and accused were found and same were seized by him vide seizure memo Ex. PW9/D. He further deposed about getting the medical examination of the accused conducted vide MLC Ex. PW7/A and about seizure of his exhibits vide seizure memo Ex. PW9/E. He further deposed about collecting the documents regarding age of the child victim from her school, about recording the statements of the witnesses and about filing of the charge sheet in the matter, after obtaining order Ex. PW9/F from the DCP.
During crossexamination by learned Amicus Curie, he admitted that in her first MLC Ex. PW6/B, child victim had not mentioned about sexual assault and that investigation of the case was handed over to him from SI Vishambhari and he had filed the charge sheet. He further stated that in Ex. PW4/A, there was history of sexual assault, but when his attention was brought to Ex. PW4/A, same was not found mentioned. He denied that at the time of filing of the charge sheet, there Page 16 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed were two versions of child victim available. He further denied that he filed the charge sheet without application of mind due to pressure from senior police officers. He further denied that due to vested interest of Uzma Parveen, she turned this case into sexual assault case.
15. PW8 SI Vishambhari, Subsequent IO of the case, deposed that on 11.11.2014, after receipt of call regarding DD no. 20A, she and L/Ct. Shakuntla had reached at the spot i.e. Ambedkar Terminal, where SI Mohit Malik, Ct. Narender and child victim met her and after getting the child victim counseled through a counselor from DCW, she recorded her statement Ex. PW8/A, made her endorsement on it, prepared rukka Ex. PW8/B and got the case FIR Ex. PW8/C registered through Ct. Narender. She further deposed about further counseling of the child victim by one counselor, about getting her medical examination conducted vide MLC Ex. PW6/B and Ex. PW4/A and about recording of the statement mark X of the child victim by the said counselor. She further deposed about producing the child victim at CWC, where she was further counseled and was sent to SOS, Udyan, Gol Market. She further deposed about getting the statement of the child victim recorded u/s 164 Cr.P.C vide her application Ex. PW 3/A and about collecting the copy thereof vide application Ex. PW3/D. During crossexamination by learned Amicus Curie, she stated that investigation of this case remained with her till 01.12.2014 Page 17 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed Arguments advanced at bar
16. The learned Addl.PP for the State has very vehemently argued that the age of the child victim has not been seriously disputed by the defence, the child victim has been consistent with regard to the place and manner of commission of sexual assault upon her by the accused despite she being a child of tender age.
17. Per contra, the learned Amicus Curiae has very vehemently argued that no explicit reliance can be placed upon the uncorroborated testimony of child victim, who is not even consistent in her various statements. It is next argued that the medical evidence in the matter is a procured one, as MLC Ex.PW4/A has several material interpolations without the same having been countersigned by either the IO or the doctor. It is further argued that the matter has not been investigated properly and the IO of the case has created false documents and evidence in the matter in connivance with counsellors namely Pearl Massey and Ms.Uzma Parveen. In the alternative, it has been argued that the prosecution has failed to prove penetrative sexual assault against the accused.
18. The learned counsel for the child victim has argued that from a joint reading of Ex.PW3/B and the evidence of the child victim, commission of penetrative sexual assault upon the child victim cannot be ruled out.
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19. I have given thoughtful consideration to the arguments advanced at bar.
20. 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 by 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, "xxx 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."
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21. Further, the Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, has been pleased to hold that : "xxx There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
xxx"
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22. Learned Amicus Curiae argued that the best evidence in the matter came in DD No.20A and the recitals in MLC of child victim Ex.PW6/B, wherein the child victim did not even mention about commission of sexual assault upon her by anybody. This was despite the fact that already the statement of child victim Ex.PW8/A had been recorded, wherein it was stated that accused had committed sexual assault upon her. It is further argued that when before the independent person,i.e the doctor the child victim did not say a word about sexual assault, then the I.Os obtained the services of some lady by the name of Ms.Pearl Massey to make the child victim to level allegations of sexual assault, so that the contents of Ex.PW8/A may be brought in line with the medical evidence and thereafter, the child victim was subjected to further medical examination vide MLC Ex.PW4/A. It is emphasized that the name of Ms.Pearl was introduced/interpolated, recitals were got added from point X1 to X2 on Ex.PW4/A and thereafter the observations of gynaecologist at the bottom of the MLC were obtained, which are general in nature. My attention was also drawn to the observations made by the gynaecologist on the back page of Casualty Card of the child victm, where again interpolation was done by incorporating word "fufa".
23. On the strength of the aforesaid facts, it is argued that the words were put into the mouth of child victim to level allegations of sexual assault against the accused.
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24. I do find unsigned interpolations in document Ex.PW4/A, however, the same appear to me to be bonafide.
25. Both the said MLCs of child victim are in fact part of a single transaction of her medical examination. This Court cannot loose sight of the fact that the child victim was found by the police in an abandoned condition. She is admittedly a child from a broken home where the father who is a drug addict has abandoned his children and mother has expired. Her so called Saviour had committed repeated sexual assault upon her. Thereafter, she was made to stay with a woman at her home who obtained forced labour from her, which she did not like at all. Under these circumstances, she abandoned the house of that woman and started her voyage to an unknown destination oblivious of the consequences thereof, but with one aim i.e. never to return back home. It is evident that before recording Ex.PW8/A, the child victim was made comfortable by the counsellor and the IO, who both were women. However, the doctor to whom she was taken in the hospital was a man and probably she could not muster courage to say anything to him in the recitals of her examination. Even otherwise, a careful scrutiny of Ex.PW6/B,i.e the so called first MLC reveals that the said male doctor had not even made any endeavour to know the history of case from her and he simply recorded "request for medical examination", however, when the child was taken for her gynecological examination later on, which was conducted by a female doctor and this time the child victim was in the company of counsellor from an NGO as Page 22 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed well as lady constable Sneh Lata in plain clothes. It appears that after initial hesitation, the child victim gave specific history to the gynecologist, who thereafter conducted her examination and found patulous hymen. Therefore, the interpolations are found to be insignificant in nature having no bearing whatsoever on the merits of the case, merely on account of them.
26. Now, let us examine as to whether the child victim is a competent witness, whether her evidence is of sterling quality and further whether she is a reliable witness.
27. The first stand of child victim has come on record in Ex.PW8/A,i.e her statement recorded by the IO after getting her counseled through NGO counselor. Her second statement is depicted in the proceedings conducted by CWC. Her next statement is Ex.PW3/B, recorded U/s 164 Cr.P.C and finally her deposition recorded in Court. In all her aforesaid statements coupled with the history given by her in Ex.PW4/B, she has been consistent with regard to the allegations of commissions of sexual assault upon her by the accused. However, she has not specifically stated about commission of penetrative sexual assault. The relevant portion of her testimony has already been set out in the evidence section. In her other statements also, she has merely spoken about the accused having touched her private part, which caused pain to her.
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28. At the time of recording of evidence of child victim, she was given crayon colours and white sheet, so as to keep her busy and focused. She drew a sketch which is in fact a drawing. A close scrutiny of this drawing through the spectacle of a 89 years old child reveals that she has depicted an abandoned house in gloomy colours, a girl carrying some balloons with intermingled threads and a girl's dress lying removed. The plain and simple inference which a person of ordinary prudence, without even having knowledge of facts of this case would make out that the drawing shows a girl child having intermingled relations and the removal of the dress of that child by somebody having created an impression upon her mind and the girl child having distant dream of a house. If the elements of this drawing are considered in the background of facts and circumstances of this case, then commission of sexual assault upon her by somebody in her house after undressing her and the said fact having left impression upon her mind becomes evident.
Therefore, I find the child victim to be a competent witness.
29. Now it will have to be analyzed as to whether there is consistency in her evidence with regard to commission of sexual assault upon her. A close scrutiny of all her statements go on to establish that she was subjected to sexual assault by the accused, but the assault was not penetrative.
30. Learned counsel for child victim appearing on behalf of NGO HAQ, Center for Child Rights, has argued that the child victim has stated that she used to feel Page 24 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed pain during sexual assault and as such, there is presumption that the assault was penetrative. He has referred to evidence of PW4 Dr. Shakun to emphasize the point that the said doctor had stated about the slight wideness of the hymen of the child victim and had further stated that the possibility of sexual assault cannot be ruled out. I do not agree with this argument for the simple reason that the child victim has no where alleged penetrative sexual assault against the accused. Since the punishment under the Act is very stringent, therefore the mode of proof has to be of a very higher degree.
31. I do not find substance in the argument of learned Amicus Curie that the IO of the case, has got prepared false medical document (Ex. PW4/A) in connivance with NGO counselors namely Ms. Pearl Messy and Ms. Uzma Parveen. A careful reading of the entire file reveals that the police was clueless about the address of accused and the child victim at that time was not of much help to them. However, it was on account of the good work done by the aforesaid two counselors that the child victim not only got rehabilitated in an institutional care, but they were able to get the address of accused and passed on the same to the police and the accused was ultimately arrested in the matter.
32. From the aforesaid discussion, it is clearly evident that the prosecution has been able to prove the age of the child victim to be less than 12 years as well as the commission of aggravated sexual assault upon her by the accused.
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33. The accused accordingly, stands convicted for the offence punishable u/s 10 of the Act.
34. Let the convict be heard on the point of sentence on 29.04.2017.
Announced in the open Court (Vinod Yadav)
on 25.04.2017 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI (Sessions Case No. 133/15) Unique Identification No.: 02404R0325932015 State V/s Akhtar Ahmed FIR No. : 485/14 U/s : 376 IPC & Sec. 6 of POCSO Act P.S. : I.P. Estate State V/s Akhtar Ahmed S/o Mohd. Nizamuddin R/o H. No. B3/88, Agar Nagar, Prem NagarIII, Kirari, Suleman Nagar, Delhi.
...Convict
01.05.2017
ORDER ON SENTENCE
Pr: Ld.Addl.PP for state.
Convict produced from J.C with ld. Amicus Curie Sh. Shubham Asri, Adv.Page 27 of 34
SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed Sh. Chander Suman Kumar, ld. Counsel for HAQ, Center for children Ms. Malika, Support person for the child victim.
Smt. Meenu Tiwari, Incharge, Children Home Katyani.
ORDER ON THE POINT OF SENTENCE In the present case, the convict - Akhtar Ahmad has been convicted u/s 10 of POCSO Act, 2012.
I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and learned Amicus Curie, for the convict. I have also heard arguments on the point of compensation from all the stake holders.
2. The learned Addl. PP has very vehemently argued that the sexual assaults upon the minor children are on rise in the society, whereby the mental and physical development of the children get affected substantially. It is specifically emphasized that the child victim in this case was of tender age i.e. aged about 8 years, when she was sexually assaulted by the convict. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 10 of the Act to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned Amicus Curie for the convict has argued that convict is a middle aged man aged about 45 years, having wife and three minor daughters and old aged mother, to support and at the time of alleged incident, he used to do work of beldari in PWD. He further submitted that convict is first time offender having clean Page 28 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed antecedents and he has remained in Jail for a period of around eight months during trial of the case. He prays that in view of the aforesaid circumstances, a lenient view may be taken in sentencing the convict.
4. I have given thoughtful consideration to the arguments advanced by Bar by both the sides and to the facts and circumstances of the case in totality. The offence, for which the convict has been convicted in the matter, is highly derogatory. However, I cannot loose sight of the fact that convict is a middle aged persons having clean antecedents and he is having wife and three daughters and old aged mother to support. Bearing in mind, the facts and circumstances of the case in totality, the interest of justice, would be met, if the convict is accorded minimum sentence prescribed under Sections 10 of POCSO Act, for which, the convict stands convicted as he has been able to make out good mitigating circumstances in his favour. I hereby award rigorous imprisonment for a period of 5 (five) years along with fine of Rs. 10,000/, in default of payment of fine, further SI for a period of 3 months, for the offence u/s 10 of POCSO Act.
Benefit of Section 428 Cr.P.C is accorded to the convict.
5. Coming now to the aspect of compensation to the child victim, 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 Page 29 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
6. Even otherwise, the concept of welfare and well being of children is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the 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 self Page 30 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed respect 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 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."Page 31 of 34
SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed
7. The child victim in this case, has been staying at Children Home Katyani since 11.11.2014. As per the verbal report given by Mrs. Meena Tiwari, Incharge, Katyani, child victim has been doing fine. She is maintaining good health and intellectual level. It has been pointed out that sometime, the child victim expresses her desire to go to her other bua, who stays somewhere in Kolkata. The support person submits that she has contacted the said bua of the child victim, but she has expressed her reluctance in keeping child victim with her. The support person is directed to obtain appropriate directions from CWC in at least making arrangements for meeting the child victim with her bua at Kolkata. It is further communicated that the child victim shall be kept at Katyani only till she attains the age of 16 years and thereafter, she would be shifted to another home for vocational training/higher schooling, if needed. It is also communicated that the said children home is being run from very meager support from the Government and donations, which is highly insufficient.
8. Considering the facts that the child victim needs constant institutional care, she needs to be compensated for her future prospects. All the stake holders are unanimous in one view that the compensation amount shall be substantial, so that the child victim does not feel financial constraints at the time of her establishment in life.
9. As per the schedule appended to Delhi Victims Compensation Scheme 2015, the case of the child victim is covered under entry 9, which has upper limit of compensation Page 32 of 34 SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed as Rs. 2,00,000/. However, there is a note appended to this schedule, which says that in case, the victim is less than 18 years of age, the compensation amount, may be increased by upto 50% more than that.
10. Therefore, in order to provide Restorative and Compensatory Justice to the child victim, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation of Rs. 3,00,000/ (Rs. Three lacs only) to the child victim. The said amount shall be used for her welfare and rehabilitation. The said amount shall be kept in an FDR in the name of child victim till she attains majority, subject to the condition that if during the interregnum, some amount is needed for the benefit of child victim, then the same should be made available to her subject to the orders passed in this regard by CWC.
11. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that if 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.
A copy of judgment and copy of order on sentence be supplied free of cost to convict against receipt.
Page 33 of 34SC No. 133/15 : FIR No. 485/14 : PS I.P. Estate : State V/s Akhtar Ahmed File be consigned to record room.
(Announced in the open ) (Vinod Yadav)
(Court on 01.05.2017) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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