Delhi District Court
State vs . Abdul Razzak on 18 March, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 30/13)
Unique ID case No. 02404R0055292013
State Vs. Abdul Razzak
FIR No. : 40/13
U/s : 376/511 IPC
P.S. : Vijay Vihar
State Vs. Abdul Razzak
s/o Chander Pal
r/o E1415, Jahangir Puri,
Delhi
Date of institution of case 20.03.2013
Date on which, judgment has been reserved 12.03.2014
Date of pronouncement of judgment - 12.03.2014
JUDGMENT:
1. Briefly stated that case of the prosecution is that on 20.01.2013, at about 6.30 am, accused Abdul Razzak attempted to commit rape upon victim N, aged about 9 years, at his room/house bearing no. D441, Sector01, Avantika, Rohini. At the time of incident, both the parents of the victim had gone for their respective work and the victim herself had gone to fill water, when she met accused on the way. The accused offered her toffee and thereafter, he offered her money and when she refused for both of them, he carried her to his room. One person namely Laxmi Narain Chawla, who was residing SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 1 of 29 2 in vicinity, saw accused carrying the victim child to his room and on suspicion, he went to the room of accused and rang bell. At that time, accused had already removed the clothes of the victim as well as his pant and had made the victim child sit in his lap. As per the case of the prosecution, due to timely intervention of said Laxmi Narain Chawla, graver harm to the victim could be averted. The victim child N ran away to her home. The police was informed and when police officials reached the spot, the accused was handed over to them.
During the course of investigation, the accused as well as victim were got medically examined and the samples collected from them by the respective doctors, were seized by the IO. The statement of victim was also got recorded u/s 164 Cr.P.C. The IO recorded statements of the witnesses and after completing the investigation, charge sheet was prepared and filed in the court.
2. Upon committal of this case to the court of Sessions, charges for the offence under Sections 376/511 IPC r/w Section 9 (m) of POCSO Act punishable u/s 10 of POCSO Act were framed against the accused, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, the prosecution has examined 18 witnesses. Public witnesses and victim child :
4. The PW5 Jaipal Singh, produced record from school wherein the prosecutrix was admitted in the first class on the basis of admission form submitted by SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 2 of 29 3 Smt. Sunita, mother of the child. As per record produced by PW5 the date of birth of prosecutrix T was 01.08.2006. The PW5 produced the original record and proved the photocopy of the admission form as Ex.PW5/A ; photocopy of the relevant entry of admission register as Ex.PW5/B and original certificate issued by school as Ex. PW5/C.
5. The PW3, N is the victim child, who despite her tender age, could testify regarding the acts committed by the accused, for which, he was charged.
6. The PW6, Sh. Laxmi Narain Chawla is an independent eye witness in the case who corroborated the testimony of the victim. He deposed that on 20.01.2013 at about 6:00/6:30 pm, he was standing on the first floor of his house and saw a person (accused) roaming here and there in the gali. He further deposed that after a few minutes, when he looked again, he noticed that when accused satisfied himself that there was nobody in the gali, he brought a girl, aged about 6 - 7 years there, on the pretext of giving her water from the room, and thereafter he called her inside the room and bolted the room from inside. The PW6 then deposed that he went to his neighbours' room and told him that someone had entered the room next to his room, but since said neighbour was hard of hearing, he did not do anything. The PW6 deposed that thereafter, he himself went and rang the bell of the room, in which, accused had taken the little girl and in the meantime, he also peeped through the window and saw accused pulling up his pant. The girl, he (accused) had taken to his room, was seen standing on second/third step of the stairs, which were inside the room. The PW6 further deposed that at that time, the said girl was wearing her skirt only and that SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 3 of 29 4 paijami, which she was wearing earlier was not there and that thereafter, he (PW6) made a call at 100 number. The PW6 deposed that the accused opened the door, on which the girl immediately ran away from there and that there were three filled canes of water lying inside the room, next to the door, at that time. The PW6 further deposed that when police came, he handed over the accused to the police and thereafter, he went in search of the girl and called her parents.
During his crossexamination, the PW6 deposed that he did not know either the prosecutrix or the accused prior to the incident. He also deposed that his house was surrounded by other houses. He further stated that he had told the police that accused was seen roaming around here and there by him and was further seen taking the prosecutrix inside the room thereafter, but stated that he did not know, why the police had not recorded these facts in his statement. He further stated that he had pointed out three water canes lying next inside the room of the accused to the police, but the same was also not recorded in his statement by the police. The PW6 could not recall, if the prosecutrix was carrying her paijami in her hand or was wearing the same, while running away from the room of the accused
7. The PW7, Smt. Sunita Devi, is the mother of the victim child. She deposed that in the Hindi month of Maagh, on 20th day of the year (the year 2013), when she appeared to depose), it was very cold. At about 6:00/6:30 pm, her daughter had come back to the house while crying and on inquiry, she told PW7 that one uncle had taken her in a room, on the pretext of giving water to her, as her daughter had gone to fetch the water from the public tap and that her daughter further told her that he (said uncle) took out her kachhi (underwear) and also took out his pant and asked her daughter to sit SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 4 of 29 5 in his lap and that in the meanwhile, bell of the said room was rang and one Chawla uncle came, due to which her daughter immediately came out of the house and ran away and came to her. The PW7 further deposed that when she was going, with her daughter, towards that house in search of accused, on the way, Chawla uncle met her and told her that her daughter had been saved by him by the grace of God. She further deposed that the accused was apprehended by Chawla uncle and the other public persons, on the pointing out by her daughter. She further deposed about arrival of police at the spot, recording of her statement Ex. PW7/A ; preparation of site plan Ex. PW7/B by the police at her instance ; medical examination of her daughter vide MLC Ex. PW7/C and seizure of wearing skirt, underwear and paijami of her daughter vide seizure memo Ex.PW7/D. She also stated that she could sign but not so fluently and clarified that If someone insisted that she should sign a paper, then only, she could sign. Generally she used to put her thumb impression on documents. She had signed on the admission form of her daughter as the teachers had forced her to sign, but on the day of incident, she had put her thumb impression on her complaint as she was too nervous and perplexed and that she was afraid that she might not sign properly. The witness also identified the skirt, underwear and paijami of prosecutrix and stated that they were the same clothes, which the prosecutrix was wearing at the time of incident, as Ex. P1 (colly).
During crossexamination, the PW7 stated that the prosecutrix used to go to fetch water daily and that the place from where she used to fetch water was at quite some distance from their house and it used to take her at least 20 - 30 minutes to fetch water. She further stated that on the day of incident also, her daughter had gone with the other children of neighbourhood to fetch water but she got left behind from those SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 5 of 29 6 children while coming back to home and that on her (PW7) asking, those children told her that she (her daughter) was filling water and that her daughter came back home alone after the incident and that thereafter, she went with her (victim child 'N') to the place of incident. The witness further stated that accused used to come to take tea from her husband's tea stall and that her daughter also used to go to her husband's tea stall, sometimes when their jhuggi was locked as she (PW7) used to keep the key of their jhuggi with her husband at his stall. The PW7 showed her lack of knowledge, if the statement of children from neighbourhood, who accompanied her daughter to fetch water, was recorded by the police or not.
Doctor witnesses
8. The PW13, Dr. Suneet Kaur Malhotra, S.R, Gynecologist deposed that on 20.01.2013, at about 11.30 pm, victim child N, aged about 8 years was brought by PW18 W/SI Satosh Kumar for gynecological examination, but patient's mother refused for gynecological examination of the child despite her explaining consequences and that she recorded the statement of the mother of the victim child and obtained her thumb impression. She proved the MLC as Ex. PW7/A.
9. The PW2, Dr. Brijesh Patel, had conducted general medical examination of the accused, vide MLC Ex. PW2/A and had referred him to the department of forensic medicine for further examination and management and deposed regarding the same.
10. The PW1 Dr. Vijay Dhankar was deputed to depose in place of Dr. Faizan Khalid Shah, who examined the accused, vide MLC/clinical examination no. 04/13 and SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 6 of 29 7 proved the same as Ex. PW1/A. He further deposed that after examination of accused, Dr. Faizan Khalid opined that there was nothing to suggest that "person (accused) is incapable of performing sexual intercourse.
Police witnesses :
11. The PW14, Ct. Narender, was working as DD writer in PS Vijay Vihar on 20.01.2013 and he deposed that on that day, he received an information through wireless operator that "at D442, Sector1, Avantika, near Malik Property Dealer, Vijay Vihar, one person had attempted to commit rape upon a minor girl namely N" and that on receipt of said information, he recorded DD no. 69B, attested copy of which was proved as Ex. PW14/A and informed PW16 HC Sunil, about it.
12. The PW16, HC Sunil Kumar, deposed that on 20.01.2013, at about 6.50 pm, on receipt of a call that at "D442, Sector01, Avantika, ek admi ek bachi ke saath galat kaam karne ki koshish kar raha hai", he along with PW9 Ct. Kuldeep reached at the informed place, where PW3 i.e. child victim N. ; PW7 her mother and PW6/neighbour Laxmi Narain Chawla met them and that accused Abdul Razzak was also handed over to them by the other neighbours, who were present at the spot. He further stated that at the said place, they came to know that the place of incident was D441 and not D442 and that this information was passed on to duty officer. He further deposed that on this information, PW17 W/SI Santosh along with PW2 Lady Ct. Nisha reached at the spot at around 8.00 pm and that he handed over the accused to PW17 W/SI Santosh and also produced the victim child N and her mother before IO W/SI Santosh. The PW16 further deposed about recording of the statement of the mother SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 7 of 29 8 of the victim by PW18 W/SI Santosh, preparation of rukka by W/SI Santosh and thereafter her (PW18) getting the FIR of the present case registered through PW9 Ct. Kuldeep, by sending rukka to PS. He further deposed that thereafter PW18 W/SI Santosh arrested the accused vide arrest memo Ex. PW16/A and conducted the personal search of the accused vide memo Ex. PW16/B and also recorded his disclosure statement Ex. PW16/C and prepared pointing out memo Ex. PW16/D of place of incident at pointing out of accused.
During crossexamination, PW16 stated that he and PW9 Ct. Kuldeep had reached at the spot at about 7.15 pm on motorcycle and that at that time, 10/15/20 public persons were already present at the spot. He further stated that PW18 W/SI Santosh did writing work outside the house no. D441442, while sitting on the pavement, under the street light and that all the memos were prepared by the IO in her own handwriting.
13. The PW9, Ct. Kuldeep had joined the investigations of the present case initially with PW16 HC Sunil and thereafter, with PW18 W/SI Santosh on 20.01.2013 and had taken the rukka to the PS and got the FIR of the present case registered and deposed about the same.
The witness was crossexamined by the ld. Addl. PP on some material points, during which, he termed it correct that when he reached the spot with PW16 HC Sunil, they had met prosecutrix, her mother Sunita and Sh. Laxmi Narain and that when IO came to the spot, W/Ct. Nisha also came with her.
During his crossexamination by learned Amicus Curie, PW9 stated that when he reached the spot at about 6.40 pm, on a motorcycle with PW16, many public SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 8 of 29 9 persons were present there. He further stated that rukka was prepared at the spot by the IO while sitting on a chair outside the house.
14. The PW18 W/SI Santosh is the main investigating officer of the case and she deposed that On 20.01.2013, on receipt of information about DD No.69B regarding attempt to rape on a minor girl, aged about 7 years, by a person near Malik Property Dealer, Vijay Vihar, at House No.D442, Sector1, Avantika, from duty officer of PS Vijay Vihar, she reached the spot, where PW16 HC Sunil, PW9 Ct. Kuldeep and PW7 complainant Smt. Sunita Devi met her and the victim child, who was aged 8 years was also present there besides one public witness/PW6 Sh. Laxmi Narayan Chawla. The said public person Laxmi Narain Chawla and PW7 Smt. Sunita produced accused Abdul Razzak, before PW18 W/SI Santosh, The PW18 further stated that PW11 Smt. Nazma, NGO from Nav Sristi, also reached there and after getting the victim child and her mother counseled from PW11, she (IO) recorded her statement Ex. PW7/A, made her endorsement on the back side of the said statement, prepared rukka Ex.PW18/A and handed it over to PW9 Ct. Kuldeep for registration of the case. She further deposed about preparation of site plan Ex. PW7/B at the instance of complainant. She also deposed about arrest and personal search of the accused and about recording the disclosure statement of the accused and identified her signatures on the arrest memo Ex.PW16/A, personal search memo Ex.PW16/B and disclosure statement Ex.PW16/C. The witness also deposed about pointing out of the place of incident by the accused vide memo Ex.PW16/D. The PW18 further deposed about medical examination of the victim child vide MLC Ex. PW7/C, and stated that the mother of the victim child had refused for her internal examination and that the examining SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 9 of 29 10 doctor had handed over one skirt, one underwear and one paijami of the victim child, which she was wearing at the time of incident, to her and that the same were sealed in a pullanda duly sealed with the seal of 'SK' and were seized by her vide seizure memo Ex.PW7/C. She further deposed about getting medical examination of the accused conducted through PW15 Ct. Surender Dev vide MLC Ex.PW2/A and obtaining the opinion Ex. PW1/A regarding the potency of the accused. She further deposed about collection of the age proof of the child from Jay Pee Public School, Sector4, Rohini, vide her application Ex.PW18/C and proved the certificate issued by the Principal of said school as Ex.PW5/C. She further stated about getting the statement Ex. PW4/B of the victim child u/s 164 Cr.P.C recorded vide her application Ex.PW4/A and obtaining the copy of the said statement vide her application Ex.PW4/D. The witness identified the clothes of the victim child i.e. skirt, underwear and paijami, as Ex.P1 (colly).
During crossexamination, PW18 stated that she had reached the spot at about 7:30 PM and that she had not examined the other children/girls, who had gone with the victim child for fetching the water. She further stated that the rukka was sent at about 9:05 PM.
15. The PW12 Ct. Nisha, had joined the investigations of the present case with PW18 W/SI Santosh Kumari on 20.01.2013 and deposed regarding the same.
16. The PW15 Ct. Surender, had joined the investigations of the present case with PW18 W/SI Santosh Kumar and got the accused medically examined at Dr. B.S.A hospital and deposed regarding the same.
SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 10 of 29 11
17. The PW17 W/SI Sunita is also one of the investigating officer of the case. She deposed that on 28.01.2013, further investigations of the present case was entrusted to her and that during the said investigation, she deposited the exhibits of the present case with FSL Rohini and collected the ownership proof/documents Ex.PW17/A of property No. D/441, Sector1, Rohini, Delhi, from its owner Smt. Wazifa Khatoon. She further deposed that during investigation, she was informed by Smt. Wazifa Khatoon that accused Abdul Razzak was working in her factory near Budh Vihar side and sometimes, he used to go to property No.D/441, Sector1, Rohini, Delhi, to clean the said house. The PW17 further deposed that she had collected the FSL result Ex. PX and PY and placed the same on the judicial file vide her application Ex.PW17/B. Formal witnesses :
18. The PW8, HC Chander Mohan, was posted as Duty Officer at P.S. Vijay Vihar on 20.01.2013 and he deposed about registration of FIR, of the present case, on receipt of rukka from W/SI Santosh Kumar. He proved the endorsement made by him on rukka as Ex.PW8/B and the computer generated copy of FIR as Ex.PW8/A.
19. The PW10 HC Rakesh Kumar, was posted as MHCM at P.S. Vijay Vihar at the relevant time. He produced Register No.19 and 21 and proved the relevant entries made by him at the time of deposit of exhibits at Malkhana and while sending them to FSL as Ex. PW10/A to Ex. PW10/D, respectively.
20. The PW4 Sh. Chanderjit Singh, learned MM, Rohini Courts, Delhi, had recorded the statement of prosecutrix u/s.164 Cr.P.C. He proved the said statement as SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 11 of 29 12 Ex.PW4/B ; the application for recording of statement u/s.164 Cr.P.C and supply of copy of said statement, filed by IO, as Ex. PW4/A and Ex. PW4/D respectively. The certificate given by PW4 on the said statement was proved as Ex.PW4/C.
21. The PW11, Ms. Nazma Khan, an NGO official, had counseled the prosecutrix as well as her mother on 20.01.2013 and deposed about the same. She further stated that in her presence, statement Ex. PW7/A of the mother of the prosecutrix/victim was recorded. She specifically stated that at the time of counseling, the child was very scared and under shock.
22. After closing of prosecution evidence, statement of accused Abdul Razzak was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been falsely implicated in this case by the mother of the victim child as well as Mr. Chawla. The accused declined to lead evidence in his defence.
23. Arguments have been addressed by learned Amicus Curie Smt. Sadhana Bhatia, for the accused as well as learned Additional PP for the State.
24. Learned Additional PP has contended that victim child and other material witnesses i.e. PW6 Sh. Laxmi Narain Chawla and PW7 Smt. Sunita Devi have fully supported the case of the prosecution and that prosecution has succeeded in proving its case against the accused beyond reasonable doubt by examining the said witnesses. It is stated that in view of the testimony of the prosecutrix, no other evidence is required and has accordingly prayed that accused Abdul Razzak be convicted for the charged SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 12 of 29 13 offence.
25. On the other hand, learned counsel for accused has contended that accused is innocent and has nothing to do with offence committed upon the prosecutrix in the present case. It is also stated that the prosecutrix was tutored by PW6 Chawla uncle and PW7 her mother and that she deposed under the influence of said uncle and her mother and thus accused is entitled to be acquitted of all the charges in the present case and it is prayed accordingly.
26. I have heard the arguments put forward by ld. Addl. PP and learned Amicus Curie for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
27. In the present case, the accused is alleged to have attempted to commit rape upon the victim child N, aged about 8 years. In order to prove the age of the prosecutrix/victim child, the prosecution has examined PW5 Sh. Jaipal Singh, who produced record of first class wherein prosecutrix was admitted on the basis of admission form Ex.PW5/A submitted by the mother of the prosecutrix. In the said document, the date of birth of the prosecutrix has been mentioned as '01.08.2006'. The date of the incident in the present case is 20.01.2013 and as such, after calculation, age of the victim comes to be around 6 years and 5 months at the time of incident. No addition, alteration or manipulation could be pointed out in the record produce by PW5. Thus, from the testimony of PW5, the prosecution has succeeded in proving that the SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 13 of 29 14 child N was aged about 6 years and 5 months, at the time of incident.
28. The next question which arises for consideration, is whether the accused had attempted to commit rape upon the victim child. The incident in the present case is stated to have taken place at about 6.30 pm on 20.01.2013 and was reported to the police at about 6.50 pm, vide DD no. 69B i.e. Ex. PW14/A. The statement of victim child was recorded by PW18 W/SI Santosh on 20.01.2013 itself in questionanswer form and in the relevant portion of her statement, the victim N stated as under "Q. No. 6. Aaj Apke saath kaya hua ?
Ans. Aaj sham ke samay karib 6.00 baje pani bharne gai thi. Ek admi ne pani bharne ke liye bula liya va pahli manjil par kamre me le gaya aur apni pant khol li va meri kachi utar di va god me bitha liya, va apna su su meri pishab wali dalne laga. Isi dauran darwaje ki ganti baj gai. Jo uncle ne apni pant pahan li, va maine apni kachi pahan li, va jaise hi ganti bajane wale uncle ne darwaja khola, main bhagkar apni mummy ke pass chali gai aur sari baat batai, va thodi der baad, apni mummy ke saath usi jagah par aai, jahan par mere saath mere saath gatna hui thi, Jis uncle ne ganti bajai thi, ne us uncle ko pakad rakha tha, jisne mujhe godi me bithaya tha."
29. The victim was produced for her statement u/s 164 Cr.P.C before ld. M.M on 21.01.2013 and thereafter, her statement Ex. PW4/B was recorded, wherein, she deposed as under : "Kal sham ko 4 baje, main paani bharne ja rahi thi. To usne muj se SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 14 of 29 15 kaha ki mere saath pani lene chalo, aur mujhe apne ghar le gaya. Mere papa chai ki dukan karte hai, aur vo vahan dukan par aata hai, isiliye main use pahchanti hoon. Ghar ke andar ja kar usne darwaja band kar liya. Usne mere kapde uttar diye aur apne kapde bhi uttar diye. Usne muje god me bitha liya. Tab bahar se darwaja khatkhataya. Vo darwaja kholne gaya, to main wahan se bhag gai. "
30. The victim child was examined before the court as PW3. Keeping the tender age of the victim child in the mind, her statement was recorded in camera proceedings in the chamber annexed to the court room, in presence of support person from DCWA. The victim was provided colours and white papers to keep her occupied and when, she was comfortable, certain preliminary questions were put to her to ascertain her capability to understand the importance of speaking truth and also her capacity to understand the questions put to her and to answer them reasonably. After being so satisfied with her capacity and capability, her statement was recorded in questionanswer form, without oath and in the relevant portion of her statement, the victim deposed as under : Q. Kya hua tha ?
Ans. Me pani bharne ja rahi thi. Ek uncle mil gaye, unhone kaha ki toffee legi, maine kaha nahi. Unhone kaha paise legi, maine kaha nahi.
Q. Phir kya hua ? Ans. Phir unhone godh me utha liya. SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 15 of 29 16 Q. Phir kya hua ? Ans. Kamre me le gaye. Q. Kaha le gaye ? Ans. Chawla uncle ka ek room khali tha, uss me le gaya. Q. Phir kya hua ? Ans. Usne apni pant uttar di aur meri pant bhi uttar di aur godh me bitha liya. Q. Phir kya hua ? Ans. Apna susu meri susu me mila raha tha. Q. Phir kya hua ? Ans. Chawla uncle aaye, bell bajayi, mein bhagh kar mummy ke paas chali gayi. Q. Phir kya hua ? Ans. Phir Chawla uncle ne phone karke police ko bulla liya. Q. Phir kya hua ? Ans. Papa mummy ko bulaya. Maine mummy ko sab baat batadi. Q. Phir kya hua ? Ans. Police chowki gaye, phir hospital gaye, phir court gaye. Q. kya aap pehle bhi court aaye ho ? Ans. Ha. Waha par ek uncle ko sab kuch bataya tha. Q. Kya aap un uncle ko pehle se jante the jo aapko ghodh me utha kar le gaye the ? Ans. Ha, pehle mere papa chai ki dukan lagate the, woh chai peene aate the. SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 16 of 29 17 Q. Kya woh uncle aaj court me aaye hai ? Ans. Ha. Woh bahar bethe hai. 31, During her crossexamination, the victim child deposed as under : Q. Kya apne police uncle ko sab bata diya tha jo aaj bataya hai ? Ans. Ha. Q. Aap pani lene kab gaye the ? Ans. Sham ko. Q. Chawla uncle ke ghar ke pas aur bhi ghar hai ? Ans. Ha. Q. Jab uncle aapko apni ghodh me le gaye tab aur bhi log the ? Ans. Nahi. Q. Aapne uss din kya kya pehna tha ? Ans. Pant aur kachhi dono. Q. Apke papa ki aur uncle ki kabhi ladai hui thi ? Ans. Nahi, woh jab bhi chai pite the paise de kar jate the. Q. Kya apko pata hai ki apke papa ne kabhi uncle se paise liye the ? Ans. Nahi. Papa sirf chai ke paise lete the. Q. Aaj jo aap bata rahe ho woh apko kissi ne bataya hai ? Ans. Nahi mein bhuli nahi thi. Q. Kya Aap aaj jhuth bol rahe ho, uncle ne kuch nahi kiya tha ? Ans. Nahi, uncle ne kiya tha. SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 17 of 29 18
32. From the above mentioned statements of the victim child i.e. her statement u/s 161 Cr.P.C dated 20.01.2103, her statement u/s 164 Cr.P.C dated 21.01.2013 and her deposition in the court dated 26.07.2013, it is seen that the victim child has been consistent in her version about the manner, in which, the accused had taken her away on pretext of giving her water and thereafter, sexually assaulted her by removing her pant (payjami) as well as his own pant.
33. The testimony of the victim child is duly corroborated by that of PW6 Sh. Laxmi Narain, who was residing in neighbouring house. The testimony of PW6 has been reproduced in details in foregoing paragraph. From his testimony, it further stands established that on the day of incident, accused had taken the victim child N to his room, on pretext of giving her water, and thereafter, he had removed his pant as well as underwear/payjami of the victim child and tried to commit rape upon her and that these acts of the accused were witnessed by PW6, who looked through window while waiting for the accused to open the door after ringing bell of his room.
34. The testimony of the victim child is also corroborated by that of her mother Smt. Sunita Devi, who was examined as PW7. Although, PW7 was not present at the house, at the time of the incident, she was told about it by the victim N soon after the incident. The PW7 has deposed that on the day of the incident, she returned back home at about 6.00/6.30 pm and at that time, N came to her crying and told her that "....... one uncle had taken her in a room on the pretext of giving water to her as my daughter had gone to fetch the water from the public SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 18 of 29 19 tap. ........... that he took out her kachhi (underwear) and also took out his pant and asked my daughter to sit in his lap. In the meanwhile, bell of the said room was rang and one Chawla uncle came, due to which my daughter immediately came out of the house and ran away and came to me...."
35. Although, it is contended that the accused has been falsely implicated in the case due to monetary dispute with the father of victim child N, this defence has not been substantiated by the accsued in any manner to take it beyond the stage of bald averment. Even other, there is no explanation as to why, an independent public witness namely Laxmi Narain Chawla, would get involved in an alleged quarrel between the accused and the father of victim N. Admittedly, Sh. Laxmi Narain Chawla was neither acquainted with family of victim N, nor was he having any inimical relations with the accused and thus the plea of false implication taken by the accused does not inspire any confidence.
36. Ld. Amicus curie for the accused has contended that since the mother of the victim has refused for gynecological examination and the FSL result is also negative, the prosecution has failed to prove its case against the accused. The contention raised by ld. Amicus Curie is not sustainable, since in the instant case, the accused has been charged only with sexual assault/attempt to rape and not penetrative sexual assault/rape.
37. The next contention raised by learned Amicus Curie is that the testimony of SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 19 of 29 20 victim child N cannot be relied upon as children are prone to tutoring and in the present case also, N was tutored by her mother and father. In this regard there is no hard and fast rule that the conviction cannot be based on sole testimony of the victim / injured. The testimony of prosecutrix in the present case clearly bring out the traumatic experience she suffered at the hands of the accused. It is noteworthy that PW11 Ms. Nazma Khan, who counseled the victim N and her mother, after the incident, has stated that at the time of counseling, the victim child was very scared and under shock. Even otherwise in the case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that : "The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence. It must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 20 of 29 21
38. Further, in this regard it has been held by Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, that : "There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."
39. Even otherwise, in the present case, the testimony of the prosecutrix is duly corroborated by the testimony of an independent witness/PW6 Sh. Laxmi Narain Chawla, who himself witnessed the incident and it is due to his active intervention, the victim child was saved from further mishap.
SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 21 of 29 22
40. The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved that the accused attempted to commit rape upon the victim child N, a minor girl aged about 8 years and as such the prosecution has succeeded in proving the guilt of the accused Abdul Razaak on the face of record, beyond the reasonable doubts. Accordingly, I hold guilty accused Abdul Razaak for the offences u/s. 9 (m) of POCSO Act punishable u/s 10 of POCSO Act and he is convicted accordingly.
Let the convict be heard on the point of sentence.
(Announced in the open Court ) (Illa Rawat) (Today on 12.03.2014) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 22 of 29 23 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 30/13) Unique ID case No. 02404R0055292013 State Vs. Abdul Razzak FIR No. : 40/13 U/s : 376/511 IPC P.S. : Vijay Vihar State Vs. Abdul Razzak s/o Chander Pal 18.03.2014 Present : Ld. Substitute Addl. PP for the State. Convict produced from J.C with ld. Amicus Curie ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Abdul Razzak has been convicted u/s 9
(m) POCSO Act punishable u/s 10 of POCSO Act.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Amicus curie for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict committed sexual assault upon the victim child N, a minor girl aged about 8 years, by SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 23 of 29 24 removing her pant as well as his pant and by making her to sit in his lap and in view of the serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence prescribed under law may be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. Amicus curie that the convictAbdul Razzak is an old aged person of 62 years of age and is having old aged mother, wife and five children i.e. four married girls and one son aged about 17/18 years to look after and that his family is living in village Mujjarfarpur, Vaishali, Bihar. It is further submitted that convict belongs to a low strata of society and used to work as labour in a bag factory and is first time offender having clean antecedents and that that he has already remained in custody for a period of about more than one year since his arrest and during the trial of the present case and she prays that a lenient view may be taken in this case and he be given a chance of rehabilitation and be released on probation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Amicus curie and have carefully gone through the record of the case.
5. In the present case, the convict Abdul Razzak has been convicted for committing the offence of aggravated sexual assault, u/s 9 (m) of POCSO Act, punishable u/s 10 of POCSO Act. At the time of incident, the victim child was aged about 6 years 5 months. At the time of incident, both the parents of the victim child were working and the victim child herself was discharging the responsibility of fetching water from tap for the household. The convict appears to have been observing the SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 24 of 29 25 movements of the victim child N and her family for some time as he used to go to shop of father of the victim child N to have tea. On the day of the incident, the mother of the victim child had gone for her work. The victim child N had gone to fetch water, as usual, with the other children of the locality. The convict met the victim child on the way and offered to give her water and in this manner, he enticed the victim child to accompany him to his room in house no. D441, Avanatika, Sector01, Rohini, Delhi. There, he locked the room from inside and committed sexual assault upon her. He would have ravished victim N, but for timely intervention by PW6 Sh. Laxmi Narain Chawla, who was residing in house no. D442, Sector01, Avantika, Rohini, Delhi, and had been keeping a watch on suspicious movements of the convict for some time.
6. In a case titled as 'Dinesh v. State (2006) 3 SCC 771', it has been observed by the Hon'ble Supreme court has observed that "sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a crime against basis human right and is violative of the victim's basic human right.
7. Considering the aforesaid facts and circumstances, though, no lenient view is called for, considering that the convict is stated to be aged about 62 years at present, the same is considered as a mitigating circumstance to take a lenient view in the matter. I, hereby, sentence convict Abdul Razzak to undergo rigorous imprisonment for 5 (five) years, for having committed offences punishable u/s 10 of POCSO Act. I further impose a fine of Rs. 1,000/ on convict, in default of payment of fine to further undergo simple imprisonment for one month, for the offence punishable, u/s 10 of POCSO Act.
Benefit u/s 428 Cr.PC be also given to the convict.
SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 25 of 29 26
8. Coming now to the aspect of compensation to the victim, who is a minor girl, 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 trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
9. 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 SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 26 of 29 27 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 selfrespect and a balance view of life with full appreciation and realization of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 27 of 29 28 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."
10. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 1,00,000/ (Rs. One lac only) to the victim child. It is directed that the said amount be deposited in the form of a FDR in the name of the victim child N, to be paid to her on attaining the age of majority/18 years, after which, 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. It is further directed that compensation amount, which is kept in secured form of FDR, shall not be released to any one, until the child attains the age of majority. In the event, the money is required for welfare of the child prior to child attaining the age of majority, the guardian of the child may approach the court for release of the amount by moving appropriate application, in this regard. Consequently, the concerned bank, which issues the FDR, in the name of the child, shall not release the FDR amount to any one, till the child attains the age of majority, except by the order of this court.
11. A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi, Chief Secretary, GNCT of Delhi, Principal Secretary (Social Welfare), SC No. 30/13 State Vs. Abdul Razzak : Page Nos. 28 of 29 29 GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi, for information and necessary action under intimation to this Court.
12. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that 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.
13. Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 18.03.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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