Delhi District Court
State vs . Rameshwar Dayal on 7 April, 2015
SC No.07/02/2013
FIR No.346/2012
PS.Palam Village
State Vs. Rameshwar Dayal
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE01, DWARKA COURTS, NEW DELHI
In the matter of:
SC No. :
07/02/2013
FIR No. :
346/2012
Police Station :
Palam Village
Under Section :
6 read with Section 5 (L)
of Protection of Children
from Sexual Offences
Act, 2012 and 342/506 of
Indian Penal Code, 1860.
Case received by way of : 13.03.2013
assignment
Reserved for Judgment on : 26.03.2015
Judgment announced on : 07.04.2015
State
Versus
Rameshwar Dayal
S/o Chotte Lal
R/o H.No.B114, Mangla Puri
PhaseII, Palam
New Delhi.
Permanent Address: Village & Post Office Bighota
PS.Tehla, Tehsil Rajgarh
District Alwar (Rajasthan) Accused
JUDGMENT
1. The prosecution story in brief is that on 19.12.2012, Complainant/Child victim alongwith his father had gone SC NO.07/02/13 1/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal to Police Station Palam Village where he got recorded his statement against the accused. [The name of child victim is being withheld to protect his identity u/s 33(7) of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act).]
2. In his complaint Ex.PW1/A, Child victim had stated that when he was studying in 6th class, accused was staying as a tenant in front of his house, who used to meet him daily in Pakora Park, Nasirpur. Child victim had stated that accused used to talk to him sweetly and used to make him drink pepsi and used to give him money. Child victim had stated that in one day in December, 2010, accused took him to his tenanted room and bolted the door from inside and made him lie on the cot and forcibly removed his underwear and pant. Child victim had stated that when he raised alarm, accused forcibly gave him Rs.30 and threatened him. Child victim had stated that then accused removed his pyjama and inserted his penis in his anus, he felt pain but due to fear, he did not disclose this fact at his house. Child victim had stated that accused used to blackmail him again and again by saying that he will disclose this fact to SC NO.07/02/13 2/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal his friends in school and on the pretext of threat, he committed the abovesaid act on him thirty times at his tenanted room. Child victim had stated that accused had committed this act lastly on 05.12.2012. Child victim had further stated that due to abovementioned act, his attendance in the school went short and due to fear, he ran away from his house. Child victim had stated that when he returned from home from his village, he disclosed the entire facts to his father, who took him to police station.
3. On the basis of complaint of Child victim, FIR No. 346/12, PS Palam village was registered and the matter was taken up for investigation. During the course of investigation, statement of child victim and other witnesses under section 161 Cr.P.C was recorded.
4. After completion of investigation, accused was charge sheeted for the offences u/s 377/341/506 IPC and u/s 4 of POCSO Act, 2012 and chargesheet was directly filed before this court. After taking cognizance, accused was summoned and copy of chargesheet was supplied to him.
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5. After hearing the arguments and perusing the statement of child victim and the allegations, the court came to the conclusion that offences under sections 342/506 IPC and under section 6 of POCSO Act are prima facie made out and therefore, accused was charged for the offences under sections 342 IPC (wrongly mentioned by mistake as 341 IPC in the charge)/506 IPC and under section 6 of POCSO Act to which he pleaded not guilty and claimed trial. Thereafter, the matter was posted for prosecution evidence.
6. Prosecution has examined in all 12 witnesses.
7. PW1 is the Complainant/Child victim. PW1 reiterated the facts as stated by him in his complaint Ex.PW1/A. In addition to that, PW1 proved his statement under section 164 Cr.P.C. Ex.PW1/B. PW1 correctly identified the accused present before the court as the same person who had committed anal intercourse with him many times.
8. In his cross examination by accused, PW1 deposed that he used to go alongwith his friends in the Pakora Park.
SC NO.07/02/13 4/41SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal PW1 Child victim was confronted with his statement Ex.PW1/A where it was not recorded that accused was staying one street away from his house. PW1 Child victim was further confronted with his statement Ex.PW1/B where it was not recorded that accused had taken him to his room, made him lie on the cot and had removed his pant and underwear. PW1 Child victim denied that accused had not taken him to his room in the morning as he had gone to school at that point of time. PW1 deposed that the room of accused was bolted and was on the back side of the premises, therefore, it is quite possible that neighbours might not had heard his noise. PW1 Child victim admitted that he bled when accused had sexually assaulted in December, 2010. PW1 Child victim deposed that he did not sustain any injury when he resisted accused in December 2010 prior to being sexually assaulted. PW1 Child victim further deposed that he faced difficulty in walking when he was sexually assaulted in December, 2010. PW1 Child victim deposed that his parents did not make any inquiry regarding his walk as he did not tell them about the incident. PW1 denied that since he did not tell his parents regarding the bleeding and his irregular walking, SC NO.07/02/13 5/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal hence, no incident took place. PW1 Child victim further deposed that the deposition made by him regarding he being sexually assaulted thirty times is not the exact figure but the rough estimation by him. PW1 deposed that he had not visited the house of accused prior to the incident of December, 2010. PW1 deposed that he came to know at the time of second incident that the person, who was residing on the ground floor was landlord of accused. PW1 denied that accused did not commit any wrong act with him. PW1 further denied that a quarrel had taken place with accused by him and his father. PW1 deposed the address of accused as B114, Mangla Puri, PhaseII, Palam, New Delhi110045. PW1 deposed that he was not aware regarding the address of accused at the time of giving the complaint Ex.PW1/A . PW1 voluntarily deposed that accused had changed his address after the first incident of December, 2010.
9. PW1 deposed that his statement Ex.PW1/A stating that accused was wearing pyjama is the correct statement. PW1 voluntarily deposed that it was by mistake that he told to the Magistrate that accused was wearing a pant. PW1 deposed that accused had changed his address SC NO.07/02/13 6/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal after 05.12.2012. PW1 deposed that accused lastly committed sexual act on him on 05.12.2012 at the new address. PW1 denied that no such incidents took place therefore, he do not remember the exact date of each incident. PW1 deposed that he did not make any complaint in writing or in oral to anybody when accused had sexually assaulted him on several occasions. PW1 deposed that he told his parents about the sexual assault committed by accused when he returned from the house of his maternal uncle on 19.12.2012. PW1 denied that his statement under section 164 Cr.P.C.was false statement. PW1 further denied that he has falsely implicated accused at the instance of his father.
10.PW 2 SI Ved Prakash is the duty officer. PW2 has deposed that on 19.12.2012, he was working as duty officer from 4.00 p.m.to 12 mid night. PW2 proved the recording of FIR No. 346/12 through computer operator Ex.PW2/A.
11.In his cross examination, PW2 denied that he was not on duty on 19.12.2012.
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12.PW3 is the father of child victim. PW3 deposed that on 15.12.2012, child victim had gone to his school for appearing in 12th class examination but he did not return to his house till evening and thereafter at about 7.00p.m, he alongwith one person went to the police to make a complaint in this regard but on that day his complaint was not registered. PW3 deposed that on 16.12.2012, in the morning, he again went to the police station to lodge a missing report of child victim. PW3 deposed that police officials made inquires from him and from the school. PW3 further deposed that on 18.12.2012, he received a telephonic call from the maternal uncle of child victim from his village Jaunpur, UP, who told that the child victim is in their house. PW3 deposed that thereafter he had a talk with child victim on the telephone, who told him that accused had sexually assaulted him and due to fear of accused he had run away to his village. PW3 deposed that child victim also told him that even the tuition fees was taken away by the accused. PW3 deposed that after receiving the aforesaid call, on the same day, he went to police station Palam village and told the entire facts to the police officials but they asked him to produce the child SC NO.07/02/13 8/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal victim for recording his statement. PW3 deposed that when on 19.12.2012, child victim reached Delhi, he was taken to P.S Palam, where his statement was recorded in the evening already exhibited as Ex PW1/A and thereafter case was registered and child victim was medically examined in the night in DDU Hospital. PW3 deposed that accused was arrested in his presence on 19.12.2012. PW3 proved the arrest memo of accused Ex.PW3/A. PW3 deposed that thereafter on 20.12.2012, he accompanied the child victim for recording of his statement under section 164 Cr.P.C.before the ld.Magistrate.
13.In his cross examination by accused, PW3 deposed that he is staying in Delhi since 1984 at the same address. PW3 deposed that the date of birth of the child victim is 09.11.1995. PW3 deposed that on the date of incident, child victim had alone gone to the school. PW3 deposed that no statement of maternal uncle of child victim was recorded by the police. PW3 denied that he has deposed falsely and no incident took place with the child victim. PW3 deposed that in his presence, statement of child victim was recorded by the police. PW3 deposed that SC NO.07/02/13 9/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal 1520 persons had accompanied him alongwith the child victim to the police station. PW3 deposed that no statement of public persons was recorded. PW3 denied that said public persons were present when the statement of child victim was recorded in the police station. PW3 deposed that the statement made by him to the police U/s 161 Cr.P.C and whatever he has deposed in the court are correct. PW3 denied that he is deposing falsely as to falsely implicate accused in the present case.
14.PW4 Dr.Ramesh Kumar, SR from DDU Hospital has deposed that on 20.12.2012, he was on emergency duty from 9.00 p.m.of 19.12.2012 till 09.00 a.m.of 20.12.2012. PW4 proved the MLC of accused vide Ex.PW4/A.
15.In his cross examination by accused, PW3 deposed that he cannot identify the undergarments of accused which were seized by him after his medical examination.
16.PW5 Sh.Dev Raj is the Computer Operator of Shiv Vani Model Senior Secondary School, Mahavir Enclave, Palam Road, New Delhi. PW5 proved the entry with regard to SC NO.07/02/13 10/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal admission of child victim in the year 2001 at serial no.96 in the admission register of 2001 vide Ex.PW5/A, the photocopy of the admission form of child victim Ex.PW5/B, the attested photocopy of birth certificate of child victim Ex.PW5/C and attested photocopy of school leaving certificate Ex.PW5/D. PW5 deposed that as per above mentioned record i.e.birth certificate and admission register of 2001, the date of birth of child victim is 09.11.1995.
17.PW6 Dr.Manjeet from DDU Hospital has deposed that on 19.12.2012, he was posted as Senior Resident and on that day, child victim aged about 17 years was brought by W/SI Ramwati to DDU Hospital for his medical examination. PW6 proved the MLC of child victim vide Ex.PW6/A. PW6 deposed that he referred the child victim to surgery department.
18.In his cross examination, PW6 deposed that medical history regarding sexual assault was told by W/SI Ramwati to him. PW6 further deposed that he has mentioned the age of child victim as 17 years on the basis of request form given by W/SI Ramwati.
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19.PW7 Dr.Nikesh Gopalrao Khobragade has deposed that on 20.12.2012, he was posted at DDU Hospital as Senior Resident and on that day, he examined patient Sandeep. PW7 proved the portion X to X on MLC Ex.PW6/A.
20.In his cross examination by accused, PW7 admitted that in case of anal penetration, injuries are bound to be present in the perianal region if the person is not habitual. PW7 deposed that in the present case, patient was not habitual to anal sex. PW7 admitted that during medical examination of the victim, he did not find any signs of anal intercourse. PW7 deposed that he was assisted by junior doctor at the time of medical examination of the patient.
21.On court questioning, PW7 admitted that if a patient had injuries during the course of anal sex on 05.12.2012 then the injuries will heal on the date of examination i.e. 20.12.2012.
22.PW8 Head Constable Brij Mohan proved the deposition of three sealed pullandas alongwith two sample seals SC NO.07/02/13 12/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal handed over to him by MHCM in FSL, Rohini on 28.12.2012 on the direction of SHO. PW8 deposed that he handed over the acknowledgement to the MHCM. PW8 further deposed that so long as case property remained in his possession,the same was not tempered with.
23.PW9 Head Constable Sunder Lal deposed that on 15.12.2012, one DD regarding missing of one boy child victim was handed over to him and thereafter, he flashed the said message. PW9 deposed that on 19.12.2012 at about 7.30 pm, the missing boy alongwith his father came to police station and he made inquiry from child victim and his father. PW9 deposed that thereafter, he produced the child victim alongwith his father before SHO and on the directions of SHO, he alongwith W SI Ramwati took the child victim and his father to their house and on reaching there, W SI Ramwati recorded the statement of child victim. PW9 deposed that W SI Ramwati prepared rukka and handed over the same to him for getting the case registered. PW9 deposed that after registration of the case, he returned to the house of child victim alongwith copy of FIR and rukka and SC NO.07/02/13 13/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal handed over the same to W SI Ramwati. PW9 further deposed that child victim led them from his house to the house of accused and father of the child victim also accompanied them. PW9 deposed that at that time, accused was present at his house. PW9 proved the arrest memo and personal search of accused vide documents already Ex.PW3/A and Ex.PW3/B. PW9 deposed that from there, he took accused to the hospital for his medical examination where he was medically examined. PW9 deposed that after medical examination, doctor handed over him two sealed pullandas which he handed over to W SI Ramwati. PW9 proved the seizing of said pullandas by W SI Ramwati vide seizue memo Ex. PW9/A.
24.In his cross examination by accused, PW9 deposed that accused was arrested in the presence of complainant, his son and 0203 neighbours. PW9 deposed that IO had requested neighbours of the accused to join investigation but they refused. PW9 deposed that on 19.12.2012, Duty Officer had made entry regarding recovery of child victim and he had also made a call on 100 no. in this regard. PW9 deposed that IO had SC NO.07/02/13 14/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal recorded statement of father of the child victim in his presence. PW9 deposed that he had only received DD No. 41A regarding missing of child victim by DO. PW9 denied that no DD No. 41A was received by him on 15.12.2012. PW9 deposed that no lady was present at the time of arrest of accused. PW9 denied that at the time of arrest of accused, other persons were also present over there. PW9 deposed that in his presence, statements of uncle of child victim (Mama) and mother of child victim were not recorded by the IO.
25.PW10 WSI Ramwati is the investigation officer of the present case. PW10 deposed that on 19.12.2012 at around 5.00 p.m.on receipt of DD No. 37A, she alongwith HC Sunder Lal reached at B199, Phase II, Mangla Puri, Palam Colony, New Delhi where complainant/child victim alongwith his father met them. PW10 proved the recording of statement of child victim vide Ex.PW1/A. PW10 deposed that after registration of FIR, HC Sunder Lal handed over to her copy of FIR and original rukka. PW10 deposed that child victim was sent to DDU hospital through HC Sunder Lal for his medical examination. PW10 also proved the seizure memo SC NO.07/02/13 15/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal Ex.PW10/B vide which two sealed pullandas were taken into possession by her after medical examination of child victim. PW10 deposed that she alongwith HC Sunder Lal and child victim went in the search of accused Rameshwar and reached to his house i.e. B114, Mangla Puri, Phase - II, Palam Colony, New Delhi where accused was not present. PW10 deposed that owner of the house namely, Anita Verma met them and she told her that accused is friend of her son. PW10 deposed that she recorded the statement of Anita Verma and from the house of Anita Verma, they went to the house no. B77, Mangla Puri, Palam Colony, New Delhi where accused was found. PW10 deposed that at the instance of child victim, she apprehended accused and interrogated. PW10 proved the preparation of site plan vide Ex.PW10/C. PW10 deposed that accused was sent to DDU Hospital for his medical examination through HC Sunder Lal. PW10 further deposed that during investigation, child victim was produced before the Ld. MM and his statement was recorded u/s 164 Cr.PC. PW10 deposed that during investigation, the documents pertaining to the age of child victim were obtained from school.
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26.Despite grant of opportunity, PW10 was not cross examination by accused.
27.PW11 Sh.Hari Narain is the registered owner of house no. B77, Mangla Puri, PhaseII, New Delhi. PW11 deposed that accused was residing as a tenant in a room on the second floor of the abovementioned premises number for the last two years prior to the incident. PW11 deposed that accused is his distance relative. PW11 deposed that accused used to take tuition classes and child victim, who is his neighbour, used to come to the room of accused.
28.Despite grant of opportunity, PW11 was not cross examined by accused.
29.PW12 Sh.Amit Arora, Secretary, DLSA, Rohini District Court, New Delhi has deposed that on 21.12.2012, he was posted as Metropolitan Magistrate, Dwarka Courts. PW12 proved the recording of statement of child victim under section 164 Cr.P.C.by him vide document already Ex.PW1/B. PW12 proved the certificate issued by him SC NO.07/02/13 17/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal vide Ex.PW12/A.
30.After closure of prosecution evidence, entire incriminating evidence was put to accused under section 313 Cr.P.C. In his statement under section 313 Cr.P.C., accused admitted that at the time of incident i.e. 19.12.2012, he was living in the neighbourhood of child victim as tenant. Accused stated that he never took the child victim to his room. Accused further stated that he did not commit any wrong act with the child victim at any point of time. Accused further stated that on 13.12.2012 at about 1.30 p.m. he was returning to his duty after having lunch from his house when he had seen 2 3 boys sitting on the Sagarpur bus stop in school uniform with their school bags and he knew one of the boys as brother of Vishal, who was known to him. Thereafter, he apprised Vishal regarding his younger brother not attending the school. Accused stated that on 14.12.2012, all the three boys with father of child victim had come to his house to protest that since he (accused) made a complaint, they were beaten up by their family members. Accused stated that one of the boys was the child victim. Accused further stated that he had told the SC NO.07/02/13 18/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal father of child victim that he can verify the fact of child victim being absent from the concerned school and thereafter, he went for his work. Accused stated that on 14.12.2012, he was called up by the police station on the allegation that he had kidnapped the child victim and after inquiring, he was left and again was summoned to the police station on the next day. Accused stated that on 19.12.2012, he was falsely implicated. Accused stated that he is innocent and this is a false case.
31.Accused denied to lead defence evidence. Thereafter, the matter was posted for final arguments.
32.I have heard Sh.Aditya Kumar, Ld.Addl.PP for state and Sh.S.B.Upadhyay, counsel for accused. I have carefully perused the material available on record.
33.In the present case, accused has been charged of having committed penetrative sexual assault on the person of male child victim aged 17 years during the period from December, 2010 till 05.12.2012 for around 30 times under section 6 of POCSO Act. Secondly, accused has been charged under section 342 IPC for having wrongly SC NO.07/02/13 19/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal confined the child victim in his room. Lastly, accused has been charged for having threatened the child victim under section 506 IPC.
34.The onus to prove the aforesaid charges was upon the prosecution. As far as Section 6 of POCSO Act is concerned, prosecution is first required to prove that any kind of penetrative sexual assault as defined in Section 3 of POCSO Act has been committed and to bring the penetrative sexual assault under section 6 of POCSO Act, it has to be shown that penetrative sexual assault was aggravating in nature as per section 5 of the POCSO Act.
35.In the present case, the relevant section is Section 5 (L) of POCSO Act which provides that "whoever commits penetrative sexual assault on the child more than once or repeatedly", commits aggravated penetrative sexual assault punishable under section 6 of POCSO Act.
36.Further, as per definition of "Penetrative Sexual Assault" provided in Section 3(a) of POCSO Act, a person is said to commit penetrative sexual assault if he SC NO.07/02/13 20/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person.
37.To bring a case under the POCSO Act, it has to be proved by the prosecution that the alleged penetrative sexual assault was done with a child. Further, as per Section 2
(d) of the POCSO Act, "child" means any person below the age of eighteen years.
38.In the present case, PW1 Child victim is a child as it is proved on record by PW5 Sh.Dev Raj of Shiv Vani Model Senior Secondary School, Mahavir Enclave, Palam Road, New Delhi that PW1 Child victim was admitted in school in the first standard in the year 2001 and child victim had provided his birth certificate at the time of admission which records his date of birth as 09.11.1995. PW5 had also produced certified copy of birth certificate Ex.PW5/C which shows the date of birth of child victim as 09.11.1995. Therefore, evidence of PW5 and birth certificate Ex.PW5/C proves that child victim was 17 years old in the month of December, 2012 and hence, was a child as per Section 3(d) of the POCSO Act.
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39.The next fact which is required to be proved by the prosecution is that accused had committed penetrative sexual assault on the person of child victim.
40.In order to prove the same, prosecution has examined PW1 Child victim, who has deposed on oath that the first time accused had committed penetrative sexual assault was in his rented room in December, 2010 when accused after bolting the door from inside, had forcibly inserted his penis into the anus of the child victim after removing the clothes of child victim and of himself. PW1 child victim in his cross examination has deposed that he bled when accused sexually assaulted him in December, 2010 and also faced difficulty in walking. The bleeding and the difficulty in walking are signs of the person being sodomized and is duly corroborated by the 23rd Edition of Modi's Medical Jurisprudence and Toxicology Editors (K Mathiharan and Amrit K. Patnaik) wherein on page 954 it was observed that " the signs that can be discovered on a passive agent (victim) who is not accustomed to sodomy include abrasions on the skin near the anus with pain in walking and on defecation, SC NO.07/02/13 22/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal as well as during examination."
41.The fact that child victim used to go to the rented room of accused has been duly proved by evidence of PW11 Hari Narain, who is the landlord of the rented room where accused was staying. PW1 Child victim has also deposed that he knew accused being his neighbour. The said fact has been duly admitted by accused while being examined under section 313 Cr.P.C. It is deposed to by the child victim that between December, 2010 and 05.12.2012, accused had committed the act of penetrative sexual assault around 30 times and lastly, it was committed on 05.12.2012. It was also deposed to by the child victim that accused used to make the child victim bunk his school due to which his attendance fell short and, therefore, he had run away from his house to U.P. The fact of PW1 Child victim running away from his house on 15.12.2012 is duly corroborated by the evidence of his father PW3 and PW9 HC Sunder Lal, who had flashed the message regarding missing of child victim on 15.12.2012.
42.The entire deposition of PW1 Child victim before this SC NO.07/02/13 23/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal court has remained consistent right from the initial complaint given to the police on 19.12.2012 Ex.PW1/A and the statement under section 164 Cr.P.C. given before the Ld.Magistrate Ex.PW1/B. Nothing material was brought out in the cross examination of PW1 Child victim to create a doubt in the testimony of child victim or to impeach the credibility of PW1 Child victim.
43.The contention of the counsel for accused was that there is a contradiction in the testimony of PW1 Child victim as to what clothes accused was wearing when he allegedly committed penetrative sexual assault in the month of December, 2010. It was submitted that in the police complaint Ex.PW1/A, child victim had stated that accused was wearing pyjama whereas before ld.Magistrate in his statement under section 164 Cr.P.C.Ex.PW1/B, it was stated by him that he was wearing a pant. In the light of this contradiction, testimony of PW1 Child victim cannot be believed.
44.The said contention of the counsel for accused is not acceptable as PW1 Child victim clarified in his cross examination that by mistake, he had stated before the SC NO.07/02/13 24/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal ld.Magistrate in his statement under section 164 Cr.P.C.Ex.PW1/B that accused was wearing a pant whereas the fact was that he was wearing a pyjama.
45.Even otherwise, this minor discrepancy regarding the clothes which accused was wearing in December, 2010, is not of much relevance and can be easily ignored as child victim has remained consistent with regard to material particulars like place of incident, the manner in which the act was committed by accused and the date and year of incident.
46.Secondly, it was contended by the counsel for accused that as per evidence of PW7 Dr.Nikesh, he did not observe any kind of injuries on the perianal region of PW1 Child victim which also makes the evidence of PW1 Child victim doubtful. It was submitted that as per deposition of PW7 Dr.Nikesh, injuries were bound to be present in the perianal region of a person if that person is not habitual. It is further submitted that as per evidence of PW7 Dr.Nikesh, PW1 Child victim was not habitual of anal sex but PW7 Dr.Nikesh did not observe any kind of external injury, abrasion, bruises or SC NO.07/02/13 25/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal tenderness on the anal region of PW1 Child victim. Even the anal/ rectal swab which were taken and were sent to the FSL for comparison with the blood sample of accused, remained inconclusive as neither semen was detected nor any blood was detected which could be compared with the blood sample of accused. Accordingly, it was submitted that evidence of child victim is not corroborated by the medical evidence or by the FSL report. Hence, the evidence of PW1 Child victim cannot be believed.
47.The said contention of counsel for accused is not acceptable as in the present case, evidence of PW1 Child victim establishes the fact on record that he was last sexually assaulted on 05.12.2012. Further, as per evidence of PW7 Dr.Nikesh, the medical examination of child victim was conducted on 20.12.2012 i.e.after around 15 days of the commission of last sexual assault.
48.Further, PW7 Dr.Nikesh during his cross examination, on court questioning had admitted that if the child victim had injuries due to anal sex on 05.12.2012, same might have been healed on the date of his examination SC NO.07/02/13 26/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal i.e. 20.12.2012. The fast healing of injuries occurring due to anal intercourse is duly corroborated by the 23rd Edition of Modi's Medical Jurisprudence and Toxicology Editors (K Mathiharan and Amrit K. Patnaik) wherein on page 955, it suggest that "Abrasions on the skin near the anus with pain in walking and on defecation, as well as during examination. These injuries are extensive and well defined in cases where there is a great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence, lesions will be most marked in children, while they may be almost absent in adults when there is no resistance to the anal coitus. These injuries, if slight, heal very rapidly in two or three days." Therefore, absence of injuries on the person of PW1 Child victim on the date of his examination i.e. 20.12.2012 does not erode credibility of PW1 Child victim as injuries would have healed on 20.12.2012.
49.Similarly, the FSL report dated 19.08.2014 which could not detect the semen or blood of accused in the anal/rectal swab of child victim also does not affect the credibility of PW1 Child victim for the same reason that SC NO.07/02/13 27/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal anal/rectal swab were taken of the PW1 Child victim on 20.12.2012 i.e.after 15 days of the last sexual assault and due to this long gap, in collection of anal/rectal swab of child victim, semen/blood of accused was not detected by the FSL, Rohini, Delhi.
50.Further, it is settled principle of law that if ocular evidence is pitted against medical evidence then primacy has to be given to ocular evidence if it is reliable and trustworthy unless medical evidence makes the ocular evidence highly improbable. [Reference in this regard is placed on (i) State of Haryana v. Bhagirath & Ors., (1999) 5 SCC 96; (ii) Thaman Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 380; and (iii) Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484].
51.In the present case, since ocular evidence of PW1 Child victim is consistent and trustworthy, there is no reason to disbelieve the same even though medical evidence of PW7 Dr.Nikesh is not corroborating the anal penetration committed by accused on the person of PW1 Child victim. Further, the reason for absence of medical SC NO.07/02/13 28/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal evidence with regard to sexual act has been provided by PW7 Dr.Nikesh in his cross examination wherein he has admitted that injuries would heal if PW1 Child victim is examined after 15 days of the anal sexual act. Therefore, in the present case, medical evidence of PW7 Dr.Nikesh does not in any way negate the anal sexual act nor it can be said that anal sexual act was highly improbable in the facts of the present case. Therefore, ocular evidence of PW1 Child victim which remains consistent and trustworthy, has to be given primacy.
52.Lastly, it was contended by the counsel for accused that in the present case, first alleged act took place in December, 2010 and last took place on 05.12.2012 and FIR has been got registered on 19.12.2012 i.e.after a long delay which has not been properly explained by the prosecution and hence, possibility of concoction and false implication of accused cannot be ruled out in the light of specific defence of accused that he has been falsely implicated in the present case due to quarrel which had taken place between accused and father of child victim.
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53.The said contention of the counsel for accused regarding nonexplanation of delay in lodging the present case is not acceptable as prosecution has been able to explain the delay in lodging of this case.
54.The explanation of delay has been provided in evidence of PW1 Child victim. PW1 Child victim has deposed on oath that when he was firstly sexually assaulted by accused in December, 2010, accused had threatened that he will disclose about the sexual act to the school friends of child victim and under the garb of said threat, accused had committed penetrative sexual assault on PW1 Child victim on number of occasions. The said threat given by accused of disclosing the sexual act committed by him with PW1 Child victim to his school friends would have had impact on the mind of child victim and out of fear of being disgraced amongst his school friends, child victim would have continued to suffer at the hands of accused. It has also come in the evidence of PW1 Child victim that accused used to force him to bunk his school due to which his attendance fell short in the school and on account of both reasons i.e. threat of accused and short attendance, he had run away from his house after SC NO.07/02/13 30/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal committal of last sexual act with him by accused on 05.12.2012.
55.The fact of child victim running away from his house on 05.12.2012 is duly proved by PW3 Father of child victim and PW9 HC Sunder Lal.
56.A child victim, who is subjected to sexual assault, on number of occasions and is under constant threat of accused, will be traumatized and will not disclose the aforesaid facts till such time he could avoid the same. The child victim disclosed the sexual acts of accused when he ran away from the house due to his short attendance in the school.
57.The above explanation provided by PW1 Child victim of late reporting of the sexual act of accused, in the opinion of this court, is convincing and believable and no malafide or concoction can be attributed to PW1 Child victim or his father PW3. Hence, delay in reporting of this case has been properly explained and is not fatal to the prosecution case.
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58.In the light of evidence of PW1 Child victim, which is consistent and trustworthy, this court can presume under section 29 of POCSO Act that accused had indeed committed anal penetrative sexual assault on the person of PW1 Child victim, on number of occasions between December, 2010 till 05.12.2012. The said presumption is rebuttable and it was for the accused to have rebutted the same.
59.Accused in his defence had only suggested to PW1 Child victim that due to quarrel between him and his father, he was falsely implicated. However, accused did not lead any evidence as to what was the reason for the quarrel between him and father of child victim nor any previous enmity was proved on record by accused. Further, accused while being examined under section 313 Cr.P.C., had taken a contradictory defence for his false implication. While being examined under section 313 Cr.P.C.,accused had stated that on 13.12.2012 when he was returning to his duty then he observed 23 boys sitting at the Sagarpur bus stop in school uniform with their school bags and he had informed about the same to Vishal, the brother of one of the boys and thereafter SC NO.07/02/13 32/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal on 14.12.2012, all the three boys with the father of child victim had come to his house and he(accused) had told the father of child victim that he can verify the absence of child victim from the school records.
60.This defence was taken up by accused for the first time while being examined under section 313 Cr.P.C. and can be ignored being an after thought. Even otherwise, said defence is in contradiction to the defence taken up by accused during the cross examination of PW1 Child victim and hence, is required to be disbelieved. Further, no evidence was led by accused in support of his defence regarding either there being any quarrel between him and father of child victim or he apprising Vishal regarding his brother being seen alongwith child victim bunking school as said Vishal has also not been examined by accused in his defence.
61.Therefore, accused has miserably failed to rebut presumption under section 29 of POCSO Act that he had not committed the anal penetrative sexual assault upon the person of child victim, on number of occasions.
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62.In the light of above discussion, since it is proved on record beyond reasonable doubt that accused had committed penetrative sexual assault on number of occasions between December, 2010 till 05.12.2012 on the child victim, the act of accused falls under the category of aggravated penetrative sexual assault as per Section 5(L) of POCSO Act which is punishable under section 6 of POCSO Act. Accordingly, accused is convicted for the offence under section 6 read with Section 5 (L) of POCSO Act.
63.It has also come in the evidence of PW1 Child victim that accused had committed the anal penetrative sexual assault after bolting door of his tenanted room from inside. This act of accused amounts to wrongful confinement and accused accordingly, is convicted for the offence under section 342 IPC.
64.As far as Section 506 IPC is concerned, offence of criminal intimidation is defined in Section 503 of IPC. Section 503 IPC provides that "whosoever threatens another with any injury to his person, reputation or property with the intention to cause alarm to that SC NO.07/02/13 34/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal person or to cause that person to do any act which he is not legally bound to do, he is said to commit the act of criminal intimidation."
65.In the present case, as per evidence of PW1 Child victim, accused had threatened to injure his reputation amongst his school friends by threatening that he will disclose about the sexual acts of child victim to his school friends. This act of accused in threatening to injure the reputation of child victim amongst his school friends amounts to criminal intimidation and further, the act of accused in making the child victim to do the act of anal penetration which he was not legally bound to do, on the threat of injuring his reputation, also amounts to criminal intimidation. Accordingly, accused is convicted for the offence under section 506(i) IPC.
66.Put up on 10.04.2015 at 2.00 p.m. for arguments on the point of sentence.
Announced in the open court (Vikas Dhull) Dated: 07.04.2015 ASJ01/Dwarka Courts New Delhi SC NO.07/02/13 35/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS JUDGE01, DWARKA COURTS, NEW DELHI SC NO.: 07/02/2013 In the matter of : State Versus Rameshwar Dayal S/o Chotte Lal R/o H.No.B114, Mangla Puri PhaseII, Palam New Delhi.
Permanent Address: Village & Post Office Bighota PS.Tehla, Tehsil Rajgarh District Alwar (Rajasthan) ... Convict 10.04.2015 ORDER ON SENTENCE Pr: Sh.Aditya Kumar, Ld.Addl.PP for state.
Convict in person with counsel Sh.S.B.Upadhyaya. Arguments on the point of sentence heard today. Ld.Counsel for convict makes a prayer for taking a lenient view. In support of his prayer for lenient view, it is SC NO.07/02/13 36/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal submitted by Ld.counsel that convict is a married man aged 42 years having a daughter and his family is dependent upon him. It is further submitted that convict is the only earning member in the family and if he is sent to jail then his family consisting of wife and daughter would starve. It is further submitted that convict has remained in custody for around 18 months. It is further submitted that that this is the first offence of the convict and therefore he deserves to be treated leniently. Accordingly, a prayer for taking a lenient view is made.
Ld. Addl.PP for state although admits that convict is a first time offender but still lenient view cannot be taken as statutory minimum punishment under section 6 of POCSO Act is 10 years. It is further submitted that crime against children in the society are on the rise and to send a strong message to the society, convict deserves to be dealt strictly to provide a deterrent and accordingly, he has made a prayer for imposing maximum sentence upon the convict.
I have considered the rival submissions made by the Ld.APP and of counsel for convict. Convict has been found guilty under section 6 read with Section 5 (L) of POCSO Act and under sections 342/506 IPC for having committed anal sexual act with the child victim aged 17 years on number of SC NO.07/02/13 37/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal occasions by wrongly confining the child victim in his tenanted room by bolting the door from inside and of having threatened to injure his reputation amongst his school friends by threatening that he will disclose about the sexual acts of child victim to his school friends.
A child is vulnerable of being taken advantage of to be abused physically due to tenderness of age and due to immaturity to understand the consequences of the wrongful act. The convict took advantage of this fact and sexually abused the child victim by offering money and food articles and by threatening to malign the child victim amongst his school friends. The aggravating factor against the convict is that he was the neighbour of the child victim and trust reposed in a neighbour was shattered by him by sexually assaulting the child victim over a period of around 02 years. The conduct of the convict has caused injuries to the mind,body and soul of the child victim. It has also resulted in affecting the studies of child victim as convict used to make the child victim bunk his school due to which he could not take his school examination and ran away from his house. The incidents of child abuse are on the rise in the society and it is generally seen that in most cases, offenders are people who are relatives of the child or persons known to the child.
SC NO.07/02/13 38/41SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal Therefore, to send a strong message to the society, the child abusers have to be dealt with strictly.
The mitigating factor in favour of convict is that he is the first time offender and has a family to take care of.
On balancing the mitigating and aggravating factors, it is apparent that aggravating factors far outweighs the mitigating factor. The offence under section 6 of POCSO Act carries minimum sentence of 10 years which can be extended upto to life imprisonment.
In the facts of the present case, the interest of justice will be met if convict is sentenced to minimum imprisonment provided in Section 6 of POCSO Act. Accordingly, convict is sentenced to 10 years rigorous imprisonment and fine of Rs. 25,000/ under section 6 of POCSO Act. In default of payment of fine, convict to undergo six months simple imprisonment. Out of the fine amount, if realized, Rs. 15,000/ shall be given to child victim as compensation for the physical and mental trauma suffered by child victim.
The convict is further sentenced to one year simple imprisonment each under section 342/506(i) IPC.
All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. be also given to the convict.
Although this court is conscious of the fact that no SC NO.07/02/13 39/41 SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal amount of money can wipe away the physical and mental trauma suffered by the child victim for a period of two years due to being subjected to sexual assault by the convict but by providing compensation, some relief can be provided to the child victim in overcoming the trauma. Therefore, this court while exercising its power under section 33(8) of POCSO Act, hereby grants compensation, in addition to punishment provided hereinabove, to the tune of Rs.1.5 lacs to the child victim for physical and mental trauma suffered by him.
The Secretary, Delhi Legal Services Authority, Dwarka Courts is directed to pay Rs.1.5 lacs to the child victim by crediting the compensation amount into the bank account of the child victim after verifying the bank account and the identity of the child victim from the IO. In case, child victim is not maintaining any bank account then IO will ensure that same is opened in any Nationalized bank in the name of child victim. The child victim will be at liberty to utilize the compensation amount in the manner he likes as he is more than 18 years of age as of today.
A copy of this order be sent to the Secretary, Delhi Legal Services Authority, Dwarka Courts for compliance and to the child victim through IO for information regarding grant of compensation.
SC NO.07/02/13 40/41SC No.07/02/2013 FIR No.346/2012 PS.Palam Village State Vs. Rameshwar Dayal 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 court (Vikas Dhull) Dated: 10.04.2015 ASJ01/Dwarka Courts New Delhi SC NO.07/02/13 41/41