Delhi District Court
State vs Ghasita Khan, S/O. Iddu Khan, R/O on 1 November, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : NORTH EAST / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0032942013
Sessions Case No. 36/2013
Assigned to Sessions. 25.02.2013
Arguments heard on 25.10.2013
Date of Judgment 30.10.2013
FIR No. 407/2012
State Vs Ghasita Khan, S/o. Iddu Khan, R/o
C30/4, Gali No.7, Jyoti Colony,
Shahdara, Delhi.
Police Station Shahdara
Under Section 354/509 IPC & u/s 8 of POCSO Act'2012.
JUDGEMENT
1. Unfolded story of prosecution is that on 20.12.2012 a DD No.73B was recorded at police station Shahdara regarding eve teasing with a girl on a shop at C84, Jyoti Colony, Gali No.7, Delhi. On receipt of DD No.73B, S.I. Kishan Singh along with Ct. Surender had reached at the spot i.e. Gali No.07, Jyoti Colony, near the house number C84 where complainant Smt. Kamlesh, mother of victim had met him and S.I. Kishan Singh had recorded her statement and put his endorsement Ex.PW6/A on her statement and got the FIR No.407/2012 Ex.PW5/B u/s 354/509 IPC was registered. During the course of investigation, police had arrested accused Ghasita Khan and Station House Officer of Police Station Shahdara had filed a challan vide SC No.36/2013 State v. Ghasita Khan 1/22 FIR No.407/2012 dated 05.01.2012 u/s 354/509 IPC for the prosecution of accused Aabid in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment. CHARGE:
2. On the basis of material available on record this court vide order dated 18.05.2013 framed charges against accused Ghasita Khan for the offence punishable u/s 354/509 IPC & u/s 8 of POCSO Act, 2012 to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
3. In order to prove its case prosecution has examined 06 witnesses namely PW1 Smt. Kamlesh, grand mother of victim, PW2 Ct. Surender, PW3 Victim, PW4 W/Ct. Ritu Yadav, PW5 HC Suresh Kumar and PW6 SI Kishan Singh.
4. PW1 Smt. Kamlesh, grand mother of victim is a material witness being complainant. This witness stated that on 20.12.2012, at about 8:00 p.m. she was watching T.V. in his room and at that time, mother of victim had asked her to bring Maggi from the SC No.36/2013 State v. Ghasita Khan 2/22 shop of the accused, present in the court (witness pointed out towards the accused Ghasita Khan). This witness further stated that the shop of accused was situated in front of his house and when the victim had gone to the shop of the accused, the accused had asked the victim that he would give her more goods like toffee etc. This witness further stated that accused had removed his clothes and asked the victim to pull his private part and at this, victim had started crying and the accused had caught hold the victim and asked her not to say anything to her family members and the victim had come to house while weeping and on asking her as to why she was weeping, the victim had stated her abovesaid facts.
5. This witness has further deposed that she became angry on the wrong acts of the accused and rushed towards his shop but that time the accused had closed his shop and had gone upstairs. This witness had called up the police at 100 number and police had come and taken the accused to police station. This witness has proved her statement Ex.PW1/A which she had made before police.
6. This witness was cross examined by ld. APP for the State. In her cross examination by ld. APP for the State, this witness admits that she had given the age of proof of the victim to police and police had seized the copy of the birth certificate of victim vide seizure memo Ex.PW1/B and date of birth of victim is 22.02.2003. This witness further admits that police had arrested the accused at her instance vide arrest memo Ex.PW1/C and personal search was conducted vide memo Ex.PW1/D. This witness has proved copy of birth certificate of victim vide Mark X. SC No.36/2013 State v. Ghasita Khan 3/22
7. In her cross examination by Sh. Manish Bhadauria, Ld. counsel for accused, this witness stated that on the day of incident, she was watching T.V. in her room and mother of victim had asked her to bring Maggi from the shop of accused. This fact was confronted with statement Ex.PW1/A.
8. This witness stated that she had also stated to police in her statement that victim had started crying and the accused had caught hold the victim and asked her not to tell anything to her family members and that victim had come to house while weeping and that she had asked her as to why she was weeping. This fact was confronted with statement Ex.PW1/A wherein it is not so recorded, however, fact of weeping of victim is mentioned in aforesaid statement.
9. This witness stated that she had also stated to police in her statement that she had become angry on the wrong act of the accused and rushed towards his shop but by that time accused had closed his shop and had gone upstairs. Neighbouring people had gathered and accused had not come down. This fact was confronted with statement Ex.PW1/A wherein it is not so recorded.
10.This witness had denied to the suggestion that she had been operating any committee or that members of committee were present at her house on the day of incident regarding the committee.
11.This witness had denied to the suggestion that police had not recorded statement of any person except her because no incident had happened or that due to this reason no SC No.36/2013 State v. Ghasita Khan 4/22 public person came forward to support his case or that accused had been implicated in the present case due to demand of amount of committee from her by the accused or that in order to escape from the liability from the payment of committee she had implicated accused in the present case.
12.This witness had denied to the suggestion that there had occurred a quarrel between her and the accused in the year 2012 on the issue of drycleaning of clothes. This witness had further denied to the suggestion that she is leader of Samajvadi Party in her area or that by political influence she had got registered the present case against the accused.
13.PW2 Ct. Surender. This witness, on 20.12.2012 was posted at police station Shahdara and on that day, PCR call was received in the police station and thereafter, he along with I.O. went to Jyoti Colony, Shahdara and I.O. had recorded statement of complainant in this case and handed over him the rukka for registration of the case. This witness had got the present case registered at police station and came back along with FIR and rukka and handed over the same to the I.O.
14.This witness was cross examined by ld. APP for the State as he was not disclosing the complete facts of the case. In his cross examination by ld. APP for the State, this witness admits arrest memo Ex.PW1/C, personal search memo Ex.PW1/D and disclosure statement Ex.PW2/A of accused.
SC No.36/2013 State v. Ghasita Khan 5/22
15.In his cross examination by Sh. Manish Bhadauria, Ld. counsel for accused, this witness stated that he had not made any DD entry before proceedings to the spot and accused was arrested at the spot inside his house and at the time of arrest and personal search of the accused, I.O. and himself were present there. This witness had denied to the suggestion that he had not joined the investigation of this case at any point of time or that he had not gone to the spot or that no proceedings were conducted by the I.O. in his presence.
16.PW3 Prosecutrix is a material witness. This witness has been examined by this court after ascertaining her knowledge and capacity of understanding by putting some questions and after getting reply on being satisfied that this child witness can understand questions and reply the same.
17.This witness, after seeing the accused, submits that accused known to her being her neighbour. This witness stated that on 12.12.2012, at about 8:00 p.m., she had gone to the shop of accused to buy a Maggi. This witness has further deposed that accused had become nude and asked her to catch his penis and that he would give her two packets of Maggi and she had started crying and tried to run away but accused caught hold her hand and instructed her not to tell any person about the incident. Thereafter, she returned back to her house and narrated the facts to her grand mother and her grand mother had called the police and police had enquired her about the incident.
SC No.36/2013 State v. Ghasita Khan 6/22
18.On putting a leading question by ld. APP for the State withe the permission of court, this witness submits that correct date of incident was 20.12.2012 and not 12.12.2012.
19.In his cross examination by Sh. Manish Bhadauria, Ld. counsel for the accused, this witness stated that she had told the police in her statement that she had gone to the shop of the accused to buy a Maggi. This fact confronted with statement Ex.PW3/DA where the word of Maggi was not mentioned. She stated that she had not told the police in her statement that accused had caught hold her hand and instructed her not to tell any person about the incident.
20.This witness had denied to the suggestion that earlier quarrel had taken place between her family and family of the accused regarding dry cleaning clothes or that thereafter, accused and her grand mother had been running a committee or that present incident is the result of that committee or that her grand mother had lodged false complaint against the accused on the issue of payment of amount of committee to the accused or that no incident had happened with her by the accused.
21.PW4 W/Ct. Ritu Yadav. This witness has proved DD No.73B vide Ex.PW4/A.
22.PW5 HC Suresh Kumar was duty officer on 20.12.2012, he proved FIR Ex.PW5/B and endorsement on rukka Ex.PW5/A. SC No.36/2013 State v. Ghasita Khan 7/22
23.PW6 SI Kishan Singh is a material witness being I.O. This witness stated that on 20.12.2012, he was posted at police station Shahdara as S.I. and on that day, at about 9:15 p.m., DD No.73B Ex.PW4/A was marked to him for action and he along with Ct. Surender had gone to gali No.7, Jyoti Colony, near House No.C84 and there complainant namely Smt. Kamlesh had met him and gave her statement Ex.PW1/A. This witness had attested the statement and put his endorsement Ex.PW6/A on her statement and got the present case registered through Ct. Surender.
24.During the course of investigation, this witness had prepared site plan Ex.PW1/E at the instance of the complainant. This witness had seized the copy of birth certificate of the victim Ex.PW1/F vide seizure memo Ex.PW1/B.
25.During the course of investigation, this witness had interrogated the accused Ghasita Khan and arrested him vide memo Ex.PW1/C and conducted his personal search vide memo Ex.PW1/D. This witness had also recorded the disclosure statement of the accused vide Ex.PW2/A. The accused was brought to police station and there, he was released on police bail on furnishing the bail bond Ex.PW6/D. This witness had correctly identified the accused. After completion of the investigation, this witness had filed the challan in the court.
26.In his cross examination by Sh. Manish Bhadauria, Ld. counsel for accused, this witness stated that he had not made a separate DD entry regarding his departure to the spot. This witness admits that he had not made any public person as witness and he had not served any notice on those public persons who had refused to give their SC No.36/2013 State v. Ghasita Khan 8/22 statement. This witness further stated that woman constable and himself and the victim were only present when he had recorded the statement of the victim.
27.This witness admits that the spot is situated in a residential area but he cannot say if it was thickly populated or not. This witness admits that the house of the accused and the complainant are situated in front of each other. This witness STATMENT OF ACCUSED U/S 313 CR.P.C.:
28.After prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded where accused Ghasita Khan had denied all allegations, evidence and circumstances put to him. In statement u/s 313 Cr. P.C. accused Ghasita Khan deposed that he is innocent and falsely implicated in the present case at the behest of PW1 and in fact, he was a member of committee run by PW1 Smt. Kamlesh. Accused further claimed that on 05.06.2012, this committee was started for the amount of Rs. 1,05,000/ and on 05.12.2012 he had taken the committee at the loss of Rs.25,000/ and it was assured by PW1 that amount of Rs.74,666/ would be paid by her to him on or before 10.12.2013 but same was not paid till 19.12.2012 despite repeated demands and on 19.12.2012, there occurred an altercation between him and PW1 on the issue of payment and he had threatened PW1 that he will lodge a complaint against her in police station and on this PW1 had threatened him that she would implicate him in a false case and present case is the result of threat of PW1. Accused has preferred to lead D.E. Sh. Lal Mohammad was examined as DW1. SC No.36/2013 State v. Ghasita Khan 9/22
29.DW1 Sh. Lal Mohammad has brought copy of his AADHAR card and the copy of the ration card for his identification and same were tendered on record vide Ex.DW1/A and Ex.DW1/B.
30.This witness has deposed that on 20.12.2012, he had come at the shop of son of accused to get iron his shirt and trouser at about 7:45/8:00 p.m. and at that time he had not noticed any quarrel or incident and he had remained at the shop of the son of accused for about 1520 minutes.
31.In his cross examination by ld. Substitute APP for the State, this witness stated that accused is known to him for the last 25 years being his neighbour. This witness admits that he had talking terms with the accused and also having visiting terms of the family of the accused. This witness further stated that accused runs a small general store and accused is a retired person from DTC about 1012 years back. This witness had never gone to concerned police station to support the accused and he had never made any communication to any authority regarding innocence of the accused as he had no time for the accused. This witness had denied to the suggestion that he had not deliberately approached to the senior police officials as well as the SHO of concerned police station as he know that fact that accused Ghasita Khan was rightly implicated by the police. Thereafter, D.E. was closed and case was fixed for final arguments.
SC No.36/2013 State v. Ghasita Khan 10/22 ARGUMENTS
32.Ld. APP for State, submitted that there is charge against the accused Ghasita Khan for offence u/s 354/509 IPC & u/s 8 of POCSO Act,2012.
33.Ld. APP for the State further submitted that there are two material witnesses i.e. PWs Victim and Smt. Kamlesh, grandmother of victim.
34.Ld. APP submitted that trial not vitiated due to non complying the provision of POCSO Act.
35.Ld. APP for State relies upon the statement of victim wherein the prosecutrix has stated that accused had outraged her modesty. Further, Ld. APP for the State rely his case on the statement of PW1 Smt. Kamlesh, grand mother of prosecutrix. Ld. APP for the State submits that since the statement of prosecutrix and statement of PW1 Smt. Kamlesh support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 354/509 IPC & 8 of POCSO Act'2012 as the statement of prosecutrix before the court is sufficient to convict the accused for offence charged as prosecution has proved its case beyond reasonable doubt.
36.On the other hand, ld. counsel for accused argued and submitted that accused is a senior citizen and is a retired DTC employee and there is a false allegation against accused and accused has been falsely implicated in the present case. SC No.36/2013 State v. Ghasita Khan 11/22
37.Ld. counsel submitted that as per prosecution story, on 20.12.2012 at 9:10 p.m. one telephonic message received by PCR that "C84, Jyoti Colony, Gali No.7 Mere Sath Dukan Mai Cherkhani Ki Hai", this message was flashed by mobile number 9256063765 belong to Smt. Kamlesh aged about 57 years and on this information DD No.73B dated 20.12.2012 was recorded at police station Shahdara, Delhi and on this information S.I. Kishan Singh with Ct. Surender reached at the spot and recorded statements of Smt. Kamlesh who lodged FIR No.407/2012 and stated that at about 8:00 p.m. her granddaughter/victim aged about 9 years was sent to the shop of Ghasita Khan to take some items after five minutes, she returned weeping and stated that old shopkeeper put off his lungi and asked her to touch his penis.
38.Ld. counsel further submitted that as per the provision of POCSO Act'2012 u/s 24 Procedure for recording the statement of the child shall be recorded by a woman police officer not below the rank of S.I. But surprisingly in the entire investigation no lady police office of any rank was involved in the investigation to make physical examination or recording statement which is a serious lacks as on such incident happened and the same is false and concocted, hence no lady officer was called or listed in the list of witnesses in the court file or investigation.
39.Ld. counsel further submitted that the area is thickly populated having various shops adjacent to the place of alleged incident no one was involved as a independent public witness of the incident.
SC No.36/2013 State v. Ghasita Khan 12/22
40.Ld. counsel further submitted that FIR was lodged on the hearsay statement and is not believable as she herself informed to the police to be eve teased later on after 1 hour 10 minutes turned her statement and stated that her granddaughter was misbehaved which is on record vide DD No.73A and FIR No.407/2012.
41.Ld. counsel further submitted that PW2 Ct. Surender who remained with the I.O. since beginning to end and the alleged incident took place at 08:00 p.m. as per the FIR and first telephonic message was given to the PCR on 9:10 p.m. while PW2 Ct. Surender stated in cross examination that he left the police station at about 7:00/7:15 p.m. after receiving the above noted information which is unbelievable and his entire statement is full of doubt and he never went to the spot which is clear by the statement itself.
42.Ld. counsel further submitted that the prominent case property that was lungi was not taken by the I.O. as case property and the accused never used to bear lungi and even any description of the lungi is not mentioned by the I.O.
43.Ld. counsel further submitted that victim herself stated in her cross examination that the counter of the shop was stalled just outside the shop and it is correct that there was a dry cleaning tailor shop adjacent of the accused but no public person was made witness and it is very difficult to enter into the shop while the counter was installed outside the shop which reflects great doubt on the entire prosecution story. SC No.36/2013 State v. Ghasita Khan 13/22
44.Ld. counsel further submitted that victim who herself stated that the showcase was installed outside the shop and many shops were opened and many persons were present at the time of incident but unfortunately I.O. has not involved any person as independent witness in the investigation but the reality is that no such incident ever taken place it was a quarrel for committee and subsequently to lodge this false FIR.
45.Ld. counsel further submitted that parents of victim not examined by the I.O. Only grandmother (complainant) has been examined.
46.Ld. counsel further submitted that PW1 in her complaint stated that she had sent the victim to bring some goods from the shop of Ghasita Khan whereas in her deposition before the court, she states that mother of victim had sent the victim to shop of accused to bring Maggi.
47.Ld. counsel further submits that as per PW1 accused had asked the victim that he would give her more goods like toffee etc. whereas victim has deposed in her testimony that accused had asked her that he would give her two packets of Maggi.
48.On these grounds, ld. counsel for accused has prayed for acquittal of accused from the charges.
PERUSAL OF RECORD:
49.Arguments heard. Record perused. On perusal of record it is revealed that on 20.12.2012 a DD No.73B was recorded at police station regarding eve teasing and SC No.36/2013 State v. Ghasita Khan 14/22 this DD was assigned to SI Kishan Singh and thereupon he along with Ct. Surender had gone to Gali No.07, Jyoti Colony, near the house number C84 where Smt. Kamlesh had met him.
50.It is further revealed that PW SI Kishan Singh had recorded the statement of complainant Smt. Kamlesh, Ex.PW1/A and put his endorsement Ex.PW6/A on her statement and got the present case registered vide FIR Ex.PW5/A.
51.It is further revealed that SI Kishan Singh had prepared the site plan Ex.PW1/E at the instance of Smt. Kamlesh.
52.It is further revealed that during the course of investigation, accused was interrogated and arrested by SI Kishan Singh vide memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D.
53.It is further revealed that accused had also made a disclosure statement Ex.PW2/A before SI Kishan Singh.
54.On perusal of record, it is further revealed that on putting leading question by ld. APP for the State with the permission of court, PW3 admits that correct date of incident was 20.12.2012 and not 12.12.2012.
55.Before reaching at any conclusion let the relevant sections i.e. 354/509 IPC & u/s 8 of POCSO Act, 2012 be reproduced, which are as under : SC No.36/2013 State v. Ghasita Khan 15/22 Section 354 IPC "Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
Section 509 IPC:
Word, gesture or act intended to insult the modesty of a woman. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word of sound shall be heard, or that such gesture of object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine or with both.
8 POCSO Act,2012:
Punishment for sexual assault. Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
56.Since the present case was registered on the statement of complainant Smt. Kamlesh, Ex.PW1/A who is the grandmother of victim. PW1 has deposed in her testimony that on 20.12.2012, at about 8:00 p.m. she was watching T.V. in her room and at that time, mother of victim had asked victim to bring Maggi from the shop and victim had reached at the shop of accused, present in the court (witness pointed out towards the accused Ghasita Khan). PW1 further stated that the shop of accused was situated in front of her house and when the victim had gone to the shop of the accused, the accused had asked the victim that he would give her more goods like toffee etc. and SC No.36/2013 State v. Ghasita Khan 16/22 accused had removed his clothes and asked the victim to pull his private part and at this, victim had started crying and the accused had caught hold the victim and asked her not to say anything to her family members and the victim had come to house while weeping and on asking her as to why she was weeping, the victim had narrated her abovesaid facts. PW1 further deposed that she became angry on the wrong acts of the accused and rushed towards his shop but that time the accused had closed his shop and had gone upstairs. This witness had called up the police at 100 number and police had come and taken the accused to police station. This witness has proved her statement Ex.PW1/A which she had made before police.
57.PW2 Ct. Surender had accompanied I.O. to the spot and he had taken the rukka to the police station and got the present case registered at police station. This witness was cross examined by ld. APP for the State. In his cross examination by ld. APP for the State, this witness admits that I.O. had arrested the accused namely Ghasita Khan in this case vide memo Ex.PW1/C and his personal search was conducted vide personal search memo Ex.PW1/D. This witness has also proved disclosure statement of accused vide Ex.PW2/A.
58.PW3 Victim. This witness has been examined by this court after ascertaining her knowledge and capacity of understanding by putting some questions and after getting reply on being satisfied that this child witness can understand questions and reply the same. PW3 has deposed in her testimony that on 12.12.2012, at about 8:00 p.m., she had gone to the shop of accused to buy a Maggi. PW3 further has further deposed in her testimony that accused had become nude and asked her to catch his SC No.36/2013 State v. Ghasita Khan 17/22 penis and that he would give her two packets of Maggi and she had started crying and tried to run away but accused caught hold her hand and instructed her not to tell any person about the incident. Thereafter, she returned back to her house and narrated the facts to her grand mother and her grand mother had called the police and police had enquired her about the incident.
59.PW4 W/Ct. Ritu Yadav has proved DD No.73B vide Ex.PW4/A. PW5 HC Suresh Kumar is duty officer who has proved FIR Ex.PW5/B and endorsement on rukka vide Ex.PW5/A.
60.PW6 SI Kishan Singh is I.O. of the present case. This witness had recorded statement of Smt. Kamlesh vide Ex.PW1/A and got the present case registered through Ct. Surender. This witness had prepared site plan Ex.PW1/E at the instance of the complainant and this witness had seized the copy of birth certificate of victim vide Ex.PW1/F vide seizure memo Ex.PW1/B. This witness has arrested accused vide arrest memo Ex.PW1/C and conducted his personal search vide memo Ex.PW1/D. PW6 had also recorded the disclosure statement of accused vide Ex.PW2/A and after completion of the investigation, PW6 had filed the challan in the Court.
61.From the testimony of victim it had also come on record that accused had threatened her not to disclose the fact of incident to anyone. Testimony of prosecturix had been made voluntarily. Hence, her testimony inspired the confidence of this court. SC No.36/2013 State v. Ghasita Khan 18/22
62.Ld. counsel for accused in his arguments has contended that PW1 in her complaint stated that she had sent the victim to bring some goods from the shop of Ghasita Khan whereas in her deposition before the court, she states that mother of victim had sent the victim to shop of accused to bring Maggi. Contention of ld. counsel for accused was that accused had been implicated in the false case on the issue of committee as he had submitted that complainant was running a committee in which accused was also a member and accused was entitled for amount of committee to which complainant was not willing to pay the amount of committee and just in order to escape from the liablility present false case has been registered against accused. In support of his contention, ld. counsel for accused has examined defence witness Sh. Lal Mohammad who had been examined as DW1. In his testimony this witenss had stated that on 20.12.2012 he had come at the shop of son of accused to get iron his shirt and trouser at about 7:45 p.m. or 8:00 p.m. and at that time he had not noticed any quarrel or incident. He remained at the shop of son of accused for about 1520 minutes. This witness was cross examined by ld. Substitute APP for the State, in his cross examination this witness stated that accused had been known to her last about 20 years. This witness had also admitted the he had talking terms and also having visiting terms with the family of accused. This witenss further stated that on 20.12.2012 he had left his house for his office at about 8:00 a.m. and returned back at 7:00 p.m. and he had come at the shop of son of accused to collect the iron clothes and he had come to know that accused had been arrested on 20.12.2012 and he had never gone to police station nor made any communication regarding innocence of accused but this witness had not uttered any word regarding running of committee by the complainant. Moreover, he states that he had not noticed any incident at the shop SC No.36/2013 State v. Ghasita Khan 19/22 of accused. Conduct of this witness appears to be very unnatural. Since this witness had come at the shop of accused to collect his iron clothes at about 7:45 p.m. or 8:00 p.m. and he remained there for about 1520 minutes whereas the case of prosecution is that accused had become nude and asked the victim to touch his private parts and further stated that he would give goods when he pull his private parts and he had also put his hands on the shoulder of the victim. Since testimony of DW1 found no place on the point of relevance as this is not the witness of incident nor the witness of alleged committee being run by the complainant.
63.From the close scrutiny of testimony of complainant and victim, this court do not find any major discrepancy rather there is no reason to disbelieve the testimony of the victim and no reason has been explained by the accused as to why he has been implicated in this case. Moreover, DW1 has not supported the case of accused.
64.Since it has come in evidence accused had been neighbour of victim and also is retired from government service. It is expected from such persons that they would take care more of children whenever they take notice of any such children but in the present case accused has shown his insensitiveness towards the children and had also encashed the opportunity of misuse and sexual harrassment of minor girl child. The act of accused cannot be said to be justified in any manner and any discrepancy, if any in the testimony of complainant or victim are of minor nature and benefit of the same cannot be given to the accused.
SC No.36/2013 State v. Ghasita Khan 20/22
65.Further, non compliance of provision of POCSO Act'2012 by the I.O., proceedings in the present cannot be said to be vitiated. Further contention of ld. counsel for accused that victim had stated that she had gone to shop of accused to collect Meggi and that complainant had stated that mother of victim had asked victim to bring Maggi from the shop of accused whereas complainant in her complaint Ex.PW1/A had stated that she had sent the victim to bring some goods. It does not make any difference either victim had gone to bring Maggi or other goods at the instance of her mother. Moreover, it proves that victim was very much present at the shop of accused at the relevant time and inference can be drawn that accused had done the wrong acts as explained by the victim.
66.It is equally settled that if testimony of child witness is a voluntarily expression and is an accurate impression of the same, no corroboration of testimony is required. Hon'ble Apex Court in judgment '(1993) 2 Supreme Court Cases - State of Himachal Pradesh Vs Raghubir Singh' where it has held that :
"There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity. In the present case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record......"
67.From the close scrutiny of testimony of the victim, no circumstance has been explained by ld. counsel for accused which may create doubt in the testimony of victim. Since a victim of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (In short "the SC No.36/2013 State v. Ghasita Khan 21/22 Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence.
68.After considering the fact and circumstances of the case and relying on the testimony of victim, this court comes to the conclusion that prosecution has proved its case against accused Ghasita Khan beyond reasonable doubt for the offence u/s 8 of POCSO Act, 2012. Accordingly, this court held guilty accused Ghasita Khan for the offence u/s 8 of POCSO Act,2012.
PRONOUNCED IN THE OPEN COURT ON THIS 30.10.2013.
(RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.36/2013 State v. Ghasita Khan 22/22 IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA COURTS: DELHI.
FIR No. 407/2012
State Vs Ghasita Khan, S/o. Iddu Khan, R/o C30/4, Gali
No.7, Jyoti Colony, Shahdara, Delhi.
Police Station Shahdara
Convicted under u/s 8 of POCSO Act'2012.
Section
ORDER ON THE POINT OF SENTENCE
01.11.2013
Pre: Ld. APP for the State.
Convict is on bail.
Sh. Manish Bhadauria, Ld. counsel for convict.
Ld. APP for State submits that since prosecution has proved the case against the convict Ghasita Khan under section 8 of POCSO Act'2012. Hence, the convict must be sentenced according to provisions of law teach a lesson to how to live in a civilized society. On this ground he has prayed for maximum sentence to the convict.
On other hand, Ld. counsel for convict submits that convict is a senior citizen and a retired govt. officials and there is no previous criminal antecedents against him. Ld. counsel for convict further submits that he is facing trial since 2012 and he has learnt a lesson that how to live in a civilized society. Ld. counsel for convict further submits that convict would not repeat such type of offence in future and he will live peacefully in the society. Ld. counsel for convict has requested for lenient view. SC No.36/2013 State v. Ghasita Khan 23/22
Ld. counsel for convict had moved an application under section 4 of Probation for releasing the convict on probation on the ground that the convict has liabilities of his family and convict undertakes to keep/maintain good behaviour and conduct during the probation period. Copy supplied. Report from probation officer, North East District was sought.
Probation Officer, North East District was directed to submit his report in response to the application of convict. Probation Officer filed his report, report perused, wherein it has been submitted that convict is a senior citizen of about 75 years old and he is leading independent social life with his family. It is further stated that he studied upto 10th class from Meerut, U.P. and he had left the study due to family problem and after leaving school, he had been employed in DTC department as a conductor since 1958 and retired from that service in 1993. Convict is having one daughter and three sons. Convict belongs from healthy social background and he is in old age and he did not have any criminal background and he is leading independent social life and bonafide too. It is recommended that benefit of probation may be considered. As per report, age of accused Ghasita Khan is about 75 years and no criminal background except the present case.
In view of submission of Ld. counsel for convict and perusal of report of Probation officer, application of convict is hereby allowed. Accordingly, convict be released on probation for a period of three years for offence u/s 8 of POCSO Act'2012 on his furnishing probation bond in sum of Rs.25,000/ with one surety. SC No.36/2013 State v. Ghasita Khan 24/22
Accordingly, convict be released on probation for a period of three years for offence u/s 8 of POCSO Act'2012. Orders accordingly. Copy of this order be given dasti to ld. counsel for convict as prayed.
File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 01.11.2013.
(RAMESH KUMAR - II) ASJ01/N.E. KKD COURTS/DELHI.
SC No.36/2013 State v. Ghasita Khan 25/22 SC No.36/2013 State v. Ghasita Khan 26/22 IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA COURTS: DELHI.
FIR No. 407/2012
State Vs Ghasita Khan, S/o. Iddu Khan, R/o C30/4, Gali
No.7, Jyoti Colony, Shahdara, Delhi.
Police Station Shahdara
Convicted under u/s 8 of POCSO Act'2012.
Section
ORDER ON THE POINT OF SENTENCE
01.11.2013
Pre: Ld. APP for the State.
Convict is on bail.
Sh. Manish Bhadauria, Ld. counsel for convict.
Ld. APP for State submits that since prosecution has proved the case against the convict Ghasita Khan under section 8 of POCSO Act'2012. Hence, the convict must be sentenced according to provisions of law teach a lesson to how to live in a civilized society. On this ground he has prayed for maximum sentence to the convict.
On other hand, Ld. counsel for convict submits that convict is a senior citizen and a retired govt. officials and there is no previous criminal antecedents against him. Ld. counsel for convict further submits that he is facing trial since 2012 and he has learnt a lesson that how to live in a civilized society. Ld. counsel for convict further submits that convicts would not repeat such type of offence in future and he will live peacefully in the society. Ld. counsel for convict has requested for lenient view.
Ld. counsel for convict had moved an application under section 4 of Probation SC No.36/2013 State v. Ghasita Khan 27/22 for releasing the convict on probation on the ground that the convict have liabilities of his family and convict undertake to keep/maintain good behaviour and conduct during the probation period. Copy supplied. Report from probation officer, North East District was sought.
Probation Officer, North East District was directed to submit his report in response to the application of convict. Probation Officer filed his report, report perused, wherein it has been submitted that convict is a senior citizen of about 75 years old and he is leading independent social life with his family. It is further stated that he studied upto 10th class from Meerut, U.P. and he had left the study due to family problem and after leaving school, he had been employed in DTC department as a conductor since 1958 and retired from that service in 1993. Convict is having one daughter and three sons. Convict belongs from healthy social background and he is in old age and he did not have any criminal background and he is leading independent social life and bonafide too. It is recommended that benefit of probation may be considered. As per report, age of accused Ghasita Khan is about 75 years and no criminal background except the present case.
In view of submission of Ld. counsel for convict and perusal of report of Probation officer, application of convict is hereby allowed. Accordingly, convict be released on probation for a period of three years for offence u/s 8 of POCSO Act'2012 on his furnishing probation bond in sum of Rs.10,000/ with one surety.
Accordingly, convict be released on probation for a period of two years for offence u/s 8 of POCSO Act'2012. Orders accordingly. Copy of this order be given dasti to ld. counsel for convict as prayed.
File be consigned to record room.
SC No.36/2013 State v. Ghasita Khan 28/22 PRONOUNCED IN THE OPEN COURT ON THIS 01.11.2013.
(RAMESH KUMAR - II) ASJ01/N.E. KKD COURTS/DELHI.
SC No.36/2013 State v. Ghasita Khan 29/22