Delhi District Court
Sc No. 57/13 : Fir No. 66/13 : Ps Aman Vihar ... vs Vikash Sharma @ Vikki on 16 February, 2017
SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 57/13)
Unique Identification No.: 02404R0195662013
State V/s Vikash Sharma @ Vikki
FIR No. : 66/13
U/s : 506/376 (2) (f) & (i) IPC
& Sec. 3, 4, 5 & 6 of POCSO Act
P.S. : Aman Vihar
State V/s Vikash Sharma @ Vikki
S/o Sh. Satya Prakash Sharma
R/o House no. E42, Sharma Enclave,
Mubarakpur Dabas, Delhi.
Date of institution of case : 14.05.2013
Date of arguments : 14.02.2017
Date of pronouncement of judgment : 15.02.2017
J U D G M E N T :
1.The accused in the matter is the father of child victim, aged about 4½ years, Page 1 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki girl child (hereinafter referred to as "child victim"). On 14.02.2013, the mother of child victim had taken her to Ambedkar Hospital, at about 9.25 PM and got her medical examination conducted after an information to this effect was made to PS Aman Vihar, vide DD No.40A, pursuant whereto WASI Asha Devi went to the hospital alongwith SI Ravinder Solanki, W/Ct.Geeta and Ct.Tarsem, where she found child victim alongwith her mother. W/ASI Asha Devi collected the MLC of child victim, who was found lying admitted there. She recorded the statement of the mother of child victim to the effect that on 14.02.2013 at about 3.00 PM, she had gone to her mother's house with both her daughters, there, the child victim complained of pain at her lower abdominal area as well as the vagina. On her asking repeatedly about the cause of pain, the child victim told her that in the night the accused used to insert his finger or some other object in her vagina for the last about six months. She further told that the accused had criminally intimidated her not to disclose about it to anybody. On the basis of the aforesaid statement, the case FIR in the matter was recorded.
On 15.02.2013, the child victim was again examined at the hospital. This time, her internal gynecological examination was conducted under anesthesia, wherein redness was found present over her labia majora as well as fourechettee, nibbing marks were found present on her right thigh and her hymen was found torn. Site plan of the place of incident was prepared. The accused was arrested and his medical examination was conducted at SGM Hospital. Exhibits of the child victim as well as accused were deposited in the Mal khana and later on, same Page 2 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki were sent to FSL, Rohini. The statements of child victim and her mother were got recorded U/S 164 CrPC. After conclusion of the investigation the charge sheet in the matter was filed.
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 19.07.2013, charge u/s 5 of POCSO Act 2012 (hereinafter referred to as the "Act"), punishable u/s 6 of Act and u/s 506 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 17 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 her mother, on account of matrimonial discord between them. Accused examined DW1 Smt. Sunita, to prove the reason of his matrimonial discord.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Ms. Mamta Khatri, learned defence counsel, for the accused and perused the entire material on record. 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 :
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(a) Child victim and her mother
(b) Witness regarding age of the child victim
(c) Medical & Forensic Evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation
(a) Child victim and her mother
5. Child victim, in the present case was examined as PW4 and the relevant portion of her testimony is as under : "xxx Q. Aap ke aur bhai behein hai ?
Ans. Ha. Choti behein hai Kaku.
Q. Kya hua tha ?
Ans. Papa ched chad karte the.
Q. Kaise karte the ?
Ans. Nakhun (nail) tod kar.
Q. Kiska nakhun todte the ?
Ans. Apna.
Q. Nakhun tod kar kya karte the ?
Ans. Toilet wali jagah par ched chad karte the.
Q. kiski toiletwali jagah par ched chad karte the ?
Ans. Meri.
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SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki
Q. Aur kya karte the ?
Ans. Mummy ko marte the, mummy ki tang mod di
thi. Papa ne hi mara aur mummy ko papa hi hospital le
gaye.
Q. P kiske sath soti thi ? (word P has been
substituted in place of name of child victim)
Ans. Papa ke sath.
Q. Papa aur bhi kuch kehte the ?
Ans. Kehte the ki mummy ko batayegi toh mein tujhe
mar dunga.
Q. Papa ne pehle bhi kabhi apko mara hai ?
Ans. Nahi. Papa mujhe hi pyar karte the, mujhe hi
ghumane le jate the, meri behein ko ghumane nahi
le jate the, ab pyar nahi karte.
xxx"
During crossexamination by learned defence counsel, she stated as under : "xxx Q. Aaj apko mummy ne bataya hai ki aaj kya batana hai ?
Ans. Ha. Mummy ne kaha jo puche woh bata dena.
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SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki
Q. Apne jo papa ke nakhun todkar ched chad wali
bat kahi, woh apko mummy ne bataya hai yah aap
khudse bata rahe ho ?
Ans. Ha, mummy ne bataya tha. Again said,
khudse bata rahi hu.
Q. Apke mummy papa ki ladai hoti thi ?
Ans. Ha.
Q. Kya papa ke alawa bhi apse kisi ne ched chad
kari hai ?
Ans. Nahi.
Q. Kya aap mummy se darte ho ?
Ans. Nahi.
Q. Kya aap mummy se dar kar bol rahe ho ki papa
ne ched chad kari ?
Ans. Nahi.
xxx"
6. PW14 Smt. Rupa @ Arti, mother of the child victim, deposed that on 14.02.2013 at about 3:00 PM, she had reached at the house of her mother at Vijay Vihar with her both daughters and at about 6:00 PM, child victim complained to her about pain in stomach as well as private part and thereafter, she got the said Page 6 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki area washed with Dettol, due to which she complained more pain and started crying. She further deposed that after seeing such condition of child victim, she inquired from her very politely and repeatedly as to what had happened and on her repeated inquiry, child victim told her that accused used to insert his finger in her private part and sometimes used to put some sharp object (chubhne wali cheez) and that the accused had been doing such thing with her for a long time ( bahut dino se). She further deposed that on her further asking, as to why she had not told this fact to her earlier, child victim told her that accused had threatened to kill her, in case she told the incident to anyone. She further deposed that after hearing this, she immediately took child victim to BSA hospital, as she was continuously crying with pain and at BSA, medical examination of the child victim was conducted under anesthesia vide MLC Ex. PW8/A and official of hospital informed the police, after which police reached at the hospital. She further deposed about making a statement/complaint Ex. PW14/A to the police and about preparation of the site plan Ex. PW14/B of the place of incident by the police at her instance. She further deposed that police had also made inquiry from child victim and at that time, she was little annoyed due to pain. She further deposed about arrest and personal search of the accused vide memos Ex. PW13/A and Ex. PW13/B and about recording of her statement as well as statement of child victim by learned Magistrate.
She further deposed that child victim used to complain her since last six months prior to 14.02.13, about pain, but she never thought of such conduct of the Page 7 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki accused, which could have been the reason of pain of her daughter and she used to apply cream etc on her private part thinking the said pain to be on account of minor infection. She further deposed that child victim used to sleep with accused, but lately, she used to ask her to sleep with her as she did not want to sleep with accused (papa).
She further deposed that accused had extra marital affair with many ladies and one married lady working in his office and when she came to know about affair of accused from his friends, she objected to it, due to which accused started giving her beatings mercilessly and thereafter, she lodged a complaint in CAW cell and proved the copy of her complaint as Ex. PW14/C, which was taken into possession by the IO vide seizure memo Ex. PW13/D. She further deposed that at CAW cell, she had withdrawn her said complaint as the accused had compromised with her. She further deposed about handing over the copy of birth certificate Ex. PW14/E of child victim to the IO and about its seizure by the IO vide seizure memo Ex. PW13/C. During crossexamination by learned defence counsel, she denied that on that day, she had come to court with her paramour Navdeep @Deepu or she had been residing at H.No.C66, Vijay Vihar, PhI, owned by Sh. Munna Prasad, with said Navdeep @ Deepu for the last three months as husband and wife or that prior to three months, she had lived with Navdeep @ Deepu at H.No. M14, Sharma Colony, Sunday Market. She stated that she was residing with her mother at C75, PhaseI, Vijay Vihar, Delhi. She further stated that she had not obtained Page 8 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki divorce from the accused and that no divorce petition was pending. She denied that when she was residing with accused, Navdeep used to visit her. She volunteered to state that in fact Navdeep was friend of accused and accused use to call him at the said address. She denied that she had developed intimate relation with Navdeep gradually or he had started coming at her house in the absence of accused because of her affair with him. She further stated that she used to call Navdeep through her mobile phone, but had never sent any SMS to him. She denied that on coming to know about her affair with Navdeep, accused started quarreling with him. She volunteered to state that Navdeep had told her about the illicit relationship of accused with many ladies, due to which she had quarreled with the accused and accused use to abuse her by saying "Navdeep tera yaar lagta hai kya?" She further denied that out of frustration and anger due to her relation with Navdeep, accused used to abuse her and give beatings or that due to the said beatings, she decided to take revenge from the accused or hatched a conspiracy with Navdeep or in furtherance of said conspiracy, she first filed a complaint against the accused at CAW cell or that when there was no fruitful outcome, she filed a case under Domestic Violance Act against the widow mother of the accused or thereafter, falsely implicated the accused in this case. She volunteered to state that she had filed complaint with CAW cell as well as compliant under D.V. Act, but the same were not out of revenge, but were based on true facts. She further stated that she did not have any quarrel with the accused, 34 days prior to the incident, over Navdeep. She denied that on receiving information of said quarrel, Page 9 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki her parents came to her matrimonial home to pacify the matter or that on that day, she did not go with her parents or that on the next day i.e 14.02.13, she had gone to her parental house with her younger daughter only or that accused had insisted that she should take both her daughters with her. She volunteered to state that accused had insisted her not to take children with her to her parental house. She denied that in order to have a hurdle free life with Navdeep, she had falsely implicated the accused in the present case by using child victim as a tool or injuries on the private parts of child victim, were because of regular use of dettol by her. She denied that the injuries on private parts of child victim were inflicted by Navdeep.
She admitted that she had given a telephonic call to the accused on day, when child victim was admitted in the hospital for the examination and that the accused as well as his mother reached the hospital at about 9:00
- 9:30 PM on receiving said information and that accused was detained by the police as soon as he reached at the hospital.
She denied that thereafter, she, her father and Navdeep remained in touch with the family of accused and raised a demand of Rs.10 lacs from them or that they had several meetings in this connection with the family of the accused. She further denied that Navdeep @ Deepu had been accompanying her to different places including the court or she, Navdeep and her parents had tutored child victim against accused. She further denied that contents mentioned in the FIR and in her statement u/s 164 CrPC were got recorded by her on the advice of Page 10 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki Navdeep in order to keep the accused away from her or that she did not allow the IO to make query from the child victim to know the true facts.
(b) Evidence with regard to age of the child victim
7. The prosecution has examined PW9 Sh. Mukesh Kumar, Record Keeper, MCD Office, Sector5, Rohini, Delhi, who produced the birth record regarding date of birth of the Child Victim and deposed that as per the Birth Report Form Ex. PW9/A and birth certificate Ex. PW9/B, Child Victim was born on 18.08.2006 at B.S.A Hospital and after receiving information online, same was entered in the computerized roll of birth, in the MCD office.
(c) Medical and Forensic evidence
8. PW7 Dr. Dheeraj Gupta, deposed that on 14.2.2013, child victim was referred to Radiology Department by CMO, with the alleged history of sexual assault and was advised xrays of abdomen and pelvis region to rule out presence of any foreign body and on 15.02.2013, he had examined the Xray plate of the child victim and gave his opinion that no foreign body was seen and no gas was found under diaphragm. He proved the requisition slip received from CMO as Ex. PW7/A and his opinion given on the back side thereof as Ex. PW7/B.
9. PW8 Dr. Anupam Kumari, SR, Gynae, BSA Hospital, Delhi, proved the Page 11 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki MLC of the child victim as Ex. PW8/A by identifying the handwriting and signatures of Dr. Stuti Modi, who had actually examined the child victim and deposed that as per the MLC, child victim was admitted in the gynae department for her internal medical examination under anesthesia on 15.02.13 and on examination it was found that no injury marks were there over upper part of the body ; Breast were found normal ; P/A was soft and Nibbing marks were present over her right thigh. In reply to a court question, she deposed as under : "xxx Court Question: Can the "Nibbing Marks" observed by you on the victim child could be caused by broken nail?
Answer: It is possible.
xxx"
She further deposed that as per the MLC Ex. PW8/A, on local examination discharge was present and redness was present over the labiaminora both side extending upto posterior fourechette ; No fresh/old bleeding seen ; Induration (stiffness with hardness) was found present over para urethral region and vaginal wall. Hymen was found torn and its edges were red and indurated ; Only a single finger (little) could be inserted. She further deposed about taking the samples as well as clothes of child victim and about handing over the same to accompanying police official, after sealing. She further deposed that as per the MLC, Xray of whole abdomen and pelvis was advised to rule out any foreign body and thereafter Page 12 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki the child victim was kept under observation.
During crossexamination, she could not tell the age of injury as to how old it was at the time of examination and stated that child victim was not examined by her. She further stated that Nibbing Marks mentioned in the MLC could not have been caused by nib or pointed sharp object and according to her, the doctor who gave the opinion "grievious injury" at point X on MLC must have observed so on the basis of injuries mentioned on the MLC itself and the age of the child victim.
10. PW17, Ms. Seema Nain, Senior Scientific Officer, FSL, Rohini, had examined the exhibits of the present case and proved her detailed biological report as Ex. PW17/A and deposed regarding the same.
(c) Evidence of Formal witnesses
11. PW1 HC Mahesh Kumar was lying posted as duty officer in PS Aman Vihar at the relevant time and he proved the endorsement made by him on rukka as Ex. PW1/A and computerized copy of FIR as Ex. PW1/B.
12. PW2, SI Janak Raj, was lying posted as duty officer in PS Aman Vihar at the relevant time and he proved the attested copy of DD no. 40A as Ex. PW2/A, recorded by him regarding admission of child victim in Dr. B.S.A Hospital. He further deposed that inquiry of said DD was entrusted to SI Ravinder Solanki and Page 13 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki subsequently W/ASI Asha Devi and W/Ct. Geeta were sent to BSA hospital and SHO was also informed about the same.
13. PW3 Smt. Shashi Sharma, NGO counselor, deposed that on 19.02.2013, after receipt of a call from PW16, ASI Asha Devi, she had reached at PS Aman Vihar, where complainant and child victim met her and on inquiry Smt. Roopa told her that her husband i.e. accused, had committed wrong act with child victim. She further deposed that she tried to make inquiry from the child victim, but she did not tell anything to her and thereafter, she counseled the child victim and her mother.
During crossexamination by learned defence counsel, she stated that she had counseled the child victim for half an hour, but could not elicit any answer from her and whatever was told to her about the case, was told to her by the mother of the child victim.
14. PW5, Ms. Meenu Kaushik, ld. M.M, in her evidence proved statement of child victim as Ex. PW5/B, recorded by her under Section 164 Cr.P.C on 17.04.2013.
During crossexamination by learned defence counsel, she stated that she had recorded the statement of child victim in the presence of her mother and before recording her statement, she satisfied herself that child was not under fear and was not tutored, by putting her appropriate preliminary questions.
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15. PW6, Sh. Sandeep Gupta, ld. M.M, in his evidence proved statement of complainant as Ex. PW6/B, recorded by him under Section 164 Cr.P.C on 18.02.2013.
16. PW10, HC Surendra Singh was working as MHCM at PS Sultan Puri at the relevant period and he proved the entries made by him in register no. 19 and 21 as Ex. PW10/A to Ex. PW10/C, which were made by him at the time of deposit of case property with him and at the time of sending the same to FSL Rohini and deposed regarding the same. He further deposed that on 23.09.2013, two envelops duly sealed seal of FSL and FSL result were received in the Malkhana and said result was handed over to PW16 W/SI Asha Devi.
17. PW11 W/Ct. Geeta had joined the investigation of the present case with PW16 ASI Asha Devi on 15.02.2013 and got the child victim medically examined at BSA Hospital and deposed that IO had seized the exhibits of the child victim in her presence vide memo Ex. PW11/A.
18. PW12 Ct. Praveen, had taken the exhibits of the present case to FSL Rohini, vide RC no. 41/21/13 and deposited the same there and deposed regarding the same. He also proved the acknowledgment receipt of FSL and copy of RC as Ex. PW12/A and Ex. PW12/B respectively.
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19. PW15 Ct. Baljeet Singh had joined the investigation of the present case with IO on 15.02.2013 and got the accused medically examined at SGM Hospital and deposed that IO had seized the exhibits of the accused in his presence vide memo Ex. PW15/A.
(e) Evidence of police officials of investigation
20. PW16 ASI Asha Devi, IO of the case, deposed that on 14.02.2013, after entrustment of DD No.40A, Ex.PW2/A, she, PW13 Ct. Tarshem, SI Ravinder Solanki and PW11 W/Ct. Geeta had gone to BSA Hospital, where complainant and child victim met her and thereafter, she got the child victim medically examined in the gynecology department vide MLC No.88/13, Ex.PW8/A and as the child victim was lying admitted in the hospital for her treatment, she recorded the statement Ex. PW14/A of Smt. Roopa @ Arti, mother of the child victim and on the basis of said statement, she made her endorsement, prepared rukka Ex. PW1/A and got the case FIR registered through PW13 Ct. Tarsem. She further deposed that she had tried to talk to the child victim, but at that time, she was very irritated and scared and was not leaving her mother at all. She further deposed about seizure of exhibits of the child victim vide seizure memo Ex. PW11/A, about preparation of site plan Ex PW14/A, about deposit of exhibits in the Mal khana, about arrest of accused at the instance of complainant vide arrest memo Ex. PW13/A and about his personal search vide memo Ex. PW13/B. She Page 16 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki further deposed about getting the medical examination of the accused conducted vide MLC Ex. PX, through PW15 Ct. Baljeet and about seizure of the exhibits of the accused vide memo Ex. PW15/A. She further deposed about getting the statement Ex. PW6/B of the complainant recorded u/s 164 Cr.P.C, vide her application Ex. PW6/A, about getting the child victim and her mother counseled by the CWC on her application Ex. PW16/B, about collecting the birth certificate Ex. PW14/E of child victim from her mother, about getting it verified from the concerned SubRegistrar Office and about its seizure vide seizure memo Ex. PW 13/C. She further deposed that the complainant also produced photocopy of her complaint Ex. PW14/C to ACP, CAW Cell, Rohini Delhi, and her compromise deed Ex. PW14/D and she seized the same vide seizure memo Ex. PW13/D. She further deposed about getting the exhibit of the present case sent to FSL, Rohini, about getting recorded the statement Ex. PW5/B of child victim u/s 164 CrPC, vide application Ex. PW5/A moved by W/SI Neeraj and about collecting the copy thereof by her vide application Ex. PW5/D. She further deposed about recording of the statement of the witnesses and about filing of the charge sheet in the court after completion of investigation. She further deposed that later on, she had collected the FSL result Ex. PW16/C and placed the same on judicial file.
During crossexamination by learned defence counsel, she stated that when she had reached at the hospital, the accused was not lying detained by Duty Constable and till that time, child victim had already been admitted and was under the process of medical examination. She further stated that statement of Page 17 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki complainant was recorded by her in the hospital and there might be some minor contradictions between the statement of complainant, which was made at the time of lodging of FIR and in her statement u/s.164 CrPC. She admitted that the complainant had stated in her statement Ex.PW6/B regarding the dispute between her and her husband. She further admitted that child victim had stated in her statement before learned MM u/s. 164 CrPC that accused did not use to give money to her mother. She denied that she had tutored the complainant as well as the child victim before recording of their statement u/s.164 CrPC or that she did not investigate the facts that accused was having illicit relationship with other women in his office. She further denied that she had not investigated the present case in a proper and fair manner or had falsely implicated the accused in the present case at the instance of complainant.
21. PW13 Ct. Tarsem, had joined the investigation of the present case with PW 16 ASI Asha Devi on 14.02.2013 and deposed on the lines of PW16 about investigation carried out by her. He further deposed that after preparation of rukka, IO had handed it over to him and he went to PS, got the case FIR registered and on his return, he handed over copy of FIR and original rukka to PW16. He further deposed about preparation of site plan by the IO, about arrest and personal search of the accused, about seizure of copy of age proof of the child victim and about seizure of photocopy of the compromise deed by the IO Page 18 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki During crossexamination by learned defence counsel, he had stated that he had reached PS from the hospital with rukka within half an hour and the FIR was registered at about 12:15 AM (midnight) and thereafter he had returned back at hospital at about 1:00 AM with original rukka and copy of FIR.
Arguments advanced at bar
22. Ld. Addl. PP for the State has very vehemently argued that the child victim is consistent with regard to the place, time and manner of commission of sexual assault upon her by the accused. It is further argued that the medical evidence corroborates the version of child victim. In the end, it is argued that the mother of child victim has also corroborated the version of child victim and as such, conviction of the accused in the matter for the charged offences has been prayed for.
23. Per contra, the ld. defence counsel has very vehemently argued that the accused has been falsely implicated in the matter at the instance of her mother, who had strained relationship with him, the medical evidence is created one and that the mother of child victim has made huge improvements in her various statements.
24. The learned defence counsel has substantiated her argument with regard to Page 19 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki the false implication of the accused with the further argument that the attempt to record statement of the child victim by the police at the earliest available opportunity,i.e from 14.02.2013 till 17.04.2013 did not yield any result as she could not make any statement. During this period, on 19.02.2013, counsellor Ms.Shashi Sharma from NGO Naari Baal Vikas Sanstha (PW3) also could not elicit any information from the child victim. She has referred to the evidence of PW3 in this regard, who categorically stated that the child victim could not make her statement despite counselling.
25. It is further argued that the mother of child victim PW14 was in illicit relationship with one Navdeep @ Deepu, to the annoyance of accused because of which the constant quarrels used to take place between them. In this regard, reference has been made to the evidence of DW1, particularly the photographs Mark A to Mark F. It is further argued that the statement of the child victim U/s 164 Cr.P.C, i.e Ex.PW5/B was recorded after more than two months of recording of FIR makes it apparent that only after ensuring the due tutoring of child victim, her aforesaid statement was recorded. In the end, it is argued that PW14 had made huge improvements in her statement recorded U/s 164 Cr.P.C,i.e Ex.PW6/B and in her evidence recorded in court.
26. I have given thoughtful consideration to the arguments on this aspect.
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27. This has to be born in mind that the present case is under Protection of Children from Sexual Offences Act and this act was enacted with the objective that the children of tender age are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in condition of freedom and dignity. The aims and object of the act further consider it imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical emotional, intellectual and social development of the child. The preamble of the Act reads as under : 'An act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.'
28. Therefore, the act is a special act, which has been enacted bearing in mind the child psychology as well as the latent sexual abuse of children in the society as well as family, which is apparent from the provisions of Section 29 and 30 thereof, which are reproduced as under :
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or Page 21 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki attempted to commit the offence, as the case may be, unless the contrary is proved.
30. Presumption of culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
29. In the light of the aim and objects of the Act and the specific provisions like Section 29 and 30 of the Act, reproduced hereinabove, the presumption of innocence of the accused as is available to him under ordinary criminal jurisprudence is not available, in child abuse jurisprudence and the presumption, if any, available under the Act is to be considered strictly in accordance with the provisions of the Act and not under the ordinary criminal jurisprudence.
30. The defence which has been taken by the accused in the matter is that the cause of quarrel between him and PW14 was her illicit relation with one Navdeep Page 22 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki @ Deepu. DW1 has stated about it and has also identified photographs Mark A to Mark F, showing PW14 and said Navdeep @ Deepu in somewhat intimate positions. On the contrary, the allegations of PW14 against the accused are that he was in illicit relation with other women, including the one in his office. Both have levelled allegations of infidelity against each other. This Court cannot loose sight of the fact that the subject matter of this litigation is as to whether sexual assault upon the child victim was committed by the accused or not and not as to whether the accused and PW14 are persons of easy virtues. Even if the accused has accused PW14 of being infidel that does not give him a right to commit sexual assault upon the child victim.
31. It is 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 Page 23 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki 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."
32. 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 Page 24 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki 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"
33. The learned defence counsel has very vehemently argued that no explicit reliance can be placed upon the testimony of child victim in this case, as she was thoroughly tutored by PW14 and her paramour Navdeep @ Deepu before recording of Ex.PW5/B and her evidence in court. It is further argued that convicting the accused solely on the basis of tutored testimony of child victim will do violence with the life and personal liberty of the accused. It is further argued that PW14 is not worthy of any credence for she having made huge improvements in Ex.PW6/B and her evidence, with the sole object to ensure that the accused remains in jail for whole of his life, so that she could have free and uninterrupted unholy union with her paramour Navdeep @ Deepu. It is next argued that the injuries upon the private part of the child victim, as shown in MLC Ex.PW8/A are manufactured one and this process was done by PW14 and her paramour between 3.00 PM to 9.25 PM on 14.02.2013.
34. I have carefully gone through Ex.PW14/A, Ex.PW6/B and the evidence of PW14 and I do agree with the contention of learned defence counsel that she has Page 25 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki made huge improvements at every stage, but I cannot loose sight of the fact that it is a general tendency among the warring spouses that they level wild and exaggerated allegations against each other with a view to prove their contentions as truthful and that of the other side as baseless. I also to some extent agree that some of the portions of Ex.PW5/B do show that the child victim had spoken the language of PW14 therein. As far as the argument of the learned defence counsel that the accused has been falsely implicated in the matter because the child victim could not make any statement from 14.02.2013 till 17.04.2013 is concerned, it is worth noticing that child victim is a child of tender age who presumably does not have much knowledge about her bodily integrity, bodily anatomy or bodily autonomy. At this age, her entire world is her parents and knowledge gained at home. Till the time, she had not disclosed about the repeated sexual assault to her mother, she was presumably under the criminal intimidation of the accused, however, telling her mother about it might have been as per her, the internal family affair. However, when she was taken to the Police Station by her mother and matter was reported, she might have got scared because of the atmosphere at PS. It cannot be ruled out that when she was taken to the hospital and made to undergo her internal gynecological examination, she might have got further scared and as such, might not have been able to communicate with the outsiders like doctor, police officer or NGO counselor. It can also not be ruled out that in her own mind having little understanding about the mundane affairs, she might have thought it inappropriate to talk about the misdemeanor of her own father even if she had suffered pain of it.
Page 26 of 38SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki Thinking it from the spectacle of a four year old child, lying placed under such circumstances where a very very personal family issue had gone into public domain and so many outsiders had been constantly staring at her with probing eyes and asking questions to her with regard to her parents which she might not be comfortable with and divulging information of any sort to them would have been nightmarish. The children of this age live in the world of their own and their limited thinking power, limited expressing power, limited power of comprehension and communication, they are not expected to be vocal in the presence of outsiders. Therefore, nothing much can be inferred about this period of hiatus between 14.02.2013 to 17.04.2013. It is further worth noticing that the atmosphere in which she was asked to speak about the incident by either the IO or the NGO counselor was not very congenial for her to do so. It is also obviously expected that I.O and NGO people, who remain associated with the police do not exhibit professional approach towards the child victim and their way of making inquiry from it is traditional and it becomes scary and nightmarish for a child, whereas the atmosphere in which the inquiry is made from the child victim in her chamber by a lady judge is far more congenial for the child. It is quite possible that the learned Judge was able to elicit information about the incident from the child victim after making her extremely comfortable when she was there with her and her mother.
35. Even in the Court, before proceeding to record the evidence of child victim, the learned Special Judge, the learned Addl. PP and specially trained welfare Page 27 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki officer from SJPU, the child is made comfortable. She is offered toffees, chocolates, toys, crayon colours, papersheet etc., and the evidence is recorded after duly satisfying itself that the child has attained the comfort zone, which makes the child to divulge facts within her specific knowledge. This court is conscious of the fact that the children of this age live in the makebelieve world, they are gullible as well as pliable. Keeping all these parameters in mind, I have considered the evidence of child victim recorded in this matter. I do not know how far it is relevant, but I cannot resist myself from observing about the two drawings made by the child victim during the process of recording of her evidence, in first drawing she has depicted a child with expressions of joy and in another she has shown two fruits, one in light yellow colour and another in crimson colour, thereby expressing that she was joyful at one point of time, but now she is angry as depicted in crimson colour. The entire tenor of the evidence of child victim is that her father,i.e, the accused used to love her a lot at one point of time as is being depicted in first picture, however, later on something happened which made her angry, as depicted in second picture. Both these pictures are part of record as Ex.P1 (Colly). She has categorically deposed about the accused having done "chedchaad" with her at her private part and had intimidated her in case she reported about it to PW
14. The learned Prosecutor did not get word "chedchaad" clarified from the child and as such, the court will have to assume the literal meaning thereof. Now, let us proceed to analyse the medical and forensic evidence in the matter.
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36. In MLC Ex.PW8/A, in the column of alleged history, PW14 had expressed her doubt as to what had happened with the child victim and whether she had been sexually assaulted, as communicated to her by the child victim. The internal examination goes on like this.
Xxxx No injury marks over the upper half of the body.
Breast: NAD (no abnormality detected).
P/A: Soft.
Nibbing Mark: Present over right thigh.
L/E: Discharge present (mucoid) Redness present over the libea majora, both side extending upto posterior fourechette No fresh/old bleeding seen.
Induration present over para uretheral region and vaginal wall. Hymen torn, edges red, indurated, only a single finger (little) can be inserted.
Samples taken.
xxxxxx
37. The FSL result which is Ex. PW16/C categorically shows that no semen or mucous was found in the exhibits of child victim. PW8 Dr.Anupam Kumari is of Page 29 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki limited help to this Court to understand the medical evidence. She stated in answer to a court question that the nibbing marks could be possible due to a broken nail. She neither stated nor was she asked as to on what basis the aforesaid injuries were adjudged as "grievous", then she could be discounted as she was not the one who had examined the child. Therefore, analysis of injuries has to be done on the basis of common knowledge. It is worth noticing that PW14 in her evidence had stated that after noticing the injuries, she had washed the same with dettol. It is not clear whether it was with concentrated solution thereof or she had diluted it with water. Be that as it may, the nibbing marks have been explained by PW8, however, the presence of mucoid discharge and the significance thereof has not been explained. It is common knowledge that mucoid discharge in children of such a tender age could be possible on account of chronic infection or it could be semen present over there after ejaculation. Ex.PW16/C rules out the possibility of this being semen. The second possibility, however, remains. It is also common knowledge that if the private part of a child is constantly hobnobbed then it may develop infection, leading to mucoid discharge. As regards, the redness and induration present over libea majora and fourchette, the same is at the most external part of the private part.
38. As regards the tearing of hymen, it is again common knowledge that it can happen on account of various other reasons other than penetration of finger in it.
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39. If the aforesaid injuries are considered in the light of facts and circumstances, then the smoke screen about it gets little cleared off and it leads to the facts which appear quite probable that on account of constant hobnobbing of the exterior part of the private part of child victim by the accused (as alleged by the child victim),she might have developed chronic infection which led to mucoid discharge and then PW14 mopping that area off with dettol inflammation leading to redness and induration might have taken place.
40. This court is conscious of the settled proposition of law that the court does not have to discard that part of evidence of a witness which is believable and has a corroboration on record from independent and material source. Court has to separate the chaff out of the grain.
41. Therefore, the possibility of PW14 manufacturing the injuries upon the child victim is negligibly small and why would even a lady of easy virtues stoop to this level that to take revenge from her husband she would do such a nasty thing with a small child which has the tendency to attach stigma to the child for whole of her life and portray her in bad light. This would be presuming and believing too much and this court would definitely not believe the same.
42. Now, from the aforesaid analysis the final picture which emerges is that the accused had committed repeated sexual assault upon the child ("chedchaad" in the Page 31 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki words of child victim). The age of the child victim has not been disputed by the defence. The accused accordingly stands convicted in the matter for offence punishable U/s 10 of the Act as well as Section 506 IPC. Let he be heard on the point of sentence on 16.02.2017.
43. Let the convict be heard on the point of sentence on 16.02.2017.
Announced in the open Court (Vinod Yadav)
on 15.02.2017 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki
IN THE COURT OF VINOD YADAV:ADDL. SESSIONS JUDGE01
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 57/13)
Unique Identification No.: 02404R0195662013
State V/s Vikash Sharma @ Vikki
FIR No. : 66/13
U/s : 506/376 (2) (f) & (i) IPC
& Sec. 3, 4, 5 & 6 of POCSO Act
P.S. : Aman Vihar
State
V/s
Vikash Sharma @ Vikki
S/o Sh. Satya Prakash Sharma
R/o House no. E42, Sharma Enclave,
Mubarakpur Dabas, Delhi.
....Convict
16.02.2017
ORDER ON SENTENCE
Pr: Ld.Addl.PP for state.
Convict produced from J.C with Ms. Mamta Khatri, Adv.
Page 33 of 38SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki ORDER ON THE POINT OF SENTENCE In the present case, the convict - Vikash Sharma @ Vikki has been convicted for offence punishable u/s 506 IPC and 10 of POCSO Act.
I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and learned defence counsel, for the convict.
2. The learned Addl. PP has very vehemently argued that convict had committed repeated sexual assault upon her daughter, who was a girl aged about 41/2 years and tarnished the relationship between a father and daughter and further he also criminally intimidated her to kill, in case, she disclosed about his acts to her mother, and that in view of the serious nature of offences, the convict does not deserve any leniency and she prays that maximum sentence prescribed under Section 506 IPC and Sec. 10 of the Act, be awarded to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned defence counsel has argued that convict is aged about 30 years and is having the responsibility of her old aged mother. She further submits that convict is a first time offender having clean antecedents and he has remained in Jail for a period of more than four years, during trial of the case. She prays that in view of the aforesaid facts and 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 Page 34 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki 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. It stands proved that the convict had committed repeated sexual assault upon her own daughter i.e. child victim, and thereafter, threatened her of dire consequences. However, considering that convict is first time offender having no previous criminal record, I take a lenient view and I hereby award the following sentence to him :
(i) For offence u/s 10 of POCSO Act, the convict is sentenced to rigorous imprisonment for a period of 5 (five) years, along with a fine of Rs. 5,000/, in default of payment of fine, to further undergo simple imprisonment for a period of one month.
(ii) For offence u/s 506 IPC, he is sentenced to rigorous imprisonment of three years along with a fine of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one week.
Both these sentences shall run concurrently.
Benefit u/s 428 Cr.PC be also given 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 35 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki 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 respect and a balance view of life with full appreciation and Page 36 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki 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."
7. Therefore, in order to provide Restorative and Compensatory Justice to the victim Page 37 of 38 SC No. 57/13 : FIR No. 66/13 : PS Aman Vihar : State V/s Vikash Sharma @ Vikki girls, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation of Rs. 50,000/ (Rs. Fifty thousand only) to the child victim. The said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
8. 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.
File be consigned to record room.
(Announced in the open ) (Vinod Yadav)
(Court on 16.02.2017) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
Page 38 of 38