Delhi District Court
State vs . Babloo on 12 May, 2015
State Vs. Babloo
IN THE COURT OF DR. PS MALIK,
ADDL. SESSIONS JUDGE-01, NORTH EAST,
DELHI
Nature of the case Session Trial
SC No. 12/2014
FIR No. 312/2013
Penal Sections Invoked 354-B IPC & 6 POCSO Act
Penal Sections Proved 354-B IPC & 10 POCSO Act
Police Station Sonia Vihar
Computer ID of the case 02402R0020222014
Date of Committal 18.01.2014
Charge framed on 24.02.2014
Arguments heard on 07.05.2015
Date of Orders 12.05.2015
Nature of Order Conviction
State Vs. Babloo
S/o Sh. Lalmanji, R/o H.No. 2/46,
Gali No.11, near Toll Tax, 5th
Pusta, Sonia Vihar, Delhi.
JUDGEMENT
1. This is a final judgment of a case in which the accused was charged and tried for committing an aggravated penetrative sexual assault on the victim but subsequently was found guilty of committing an aggravated sexual assault.
2. On 09.12.2013 one mother informed the police that her daughter a minor girl 6/7 years of age had informed her that the accused was working in an adjoining under construction house. He had taken the victim in a room and laid her on the debris there. He had taken off underwear of the victim and of him also and JUDGEMENT
1|P a g e State Vs. Babloo started rubbing his sexual part on the victim's sexual organ. Thereafter he had given her one rupee and the victim came to her house. Upon this the complainant mother went to the accused alongwith her daughter and the daughter identified the accused there. The mother scolded him and informed the police on which a case under Section 354 IPC & 8/12 POCSO Act was registered.
3. The victim girl was produced before the Ld. MM for her statement and also before the medical officer for her medical examination. The mother of the victim refused to give permission for victim's medical examination. But, the statement of the victim under Section 164 CrPC was recorded by the Ld. MM.
4. On the completion of investigation a chargesheet under Sections 354/354-B IPC & 10/12 POCSO Act was filed before the Court and the Court vide its order dated 24.02.2014 framed a charge against the accused for offences punishable under Sections 354-B IPC & 6 of POCSO Act.
5. The prosecution examined the victim as PW-3 who was studying in class 1 st. She came to the Court and stated that on the date of incident when she was going to the house of her one friend then one boy called her in his room and removed her undergarments. Thereafter, he also removed his undergarments. The victim told the boy that she would raise an alarm. Thereafter the boy set her free. The boy also gave her one rupee. Thereafter the victim told this incident to Sachin Bhaiya who informed it to the mother of the victim. The victim stated that she was brought to the Karkardooma Court where she had stated about the incident and put her thumb impression on papers (the victim is pointing towards her statement under Section 164 CrPC recorded by the Ld. MM). With the permission of the Court the Ld. PP put a leading question to the victim. The victim accepted the suggestion as correct that the accused had rubbed his sexual organ on the sexual part of the victim. She also explained the reason not to disclose it earlier in the Court. She stated that her mother had forborne her from stating this fact before the Court.
JUDGEMENT
2|P a g e State Vs. Babloo
6. Ld. Defence Counsel who had been an Amicus Curiae for the accused in this case had cross-examined her very intelligently. In the cross-examination, the victim stated that one rupee is circular in its shape. She had also stated that she could identify a 10 rupee note but that note is made of paper. The victim stated that there are different currency notes of different denominations of 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. She stated that she had seen only the paper notes of Rs. 5 and
10. She stated that the paper notes of Rs. 6, 7, 8 and 9 are there although she had not seen them. She also stated that for Rs. 3 and 4 there are no paper notes but only coins are there. In her cross examination the victim stated that she had not seen the accused prior to the incident. She stated to have come to the Ld. MM on the next day of incident and she further stated that police had never asked her about the incident.
7. The mother of the victim was examined in the Court as PW-5. She was an illiterate lady who had never been to any Court or police station or public offices prior to coming across the present case. She stated to be having four daughters and one son. Her husband was working in a sweet shop. As per her statement, on 08.12.2013 at about 12:00noon she went to attend a Kirtan in the neighbourhood and returned at about 03/03:30pm. At about 07:00pm on the same day her son had informed her that the person from the adjoining house had taken the victim and thereafter gave the victim one rupee (Bagal Wale Bhaiya Ne Vicitm Ko Ghar Le Gaye Aur Ek Rupayia Diya Tha). She had identified the accused and had further identified him that a day prior to the date of incident he came to the adjoining house which was under construction for watering the construction work. Thereupon this mother enquired from the victim and came to know that when the victim was going to the house of her friend then this adjoining neighbour, the accused had given her one rupee. On further enquiry the victim had told her that accused had taken her inside the room and removed her undergarments and his own undergarments also. He rubbed his male organ against the private parts of the victim by laying her on the debris. The victim also told her that, that person had done some Susu there JUDGEMENT
3|P a g e State Vs. Babloo (the mother of the victim appears to be indicating towards some ejaculation on the part of accused). As per her version she somehow obtained the telephone number of the family of the accused and informed them about the deeds of the accused. After about half an hour the accused and his relatives came to the house of the victim. There the victim had identified the accused again. The police was informed thereupon and the accused was finally apprehended. PW-5, mother of the victim stated during her cross-examination that she was married 13 years back and the victim was her second child. The eldest child is her son who was born after about 9-10 months of the marriage and the victim 5-6 years after his birth. The Ld. Amicus Curiae has pointed out towards her infirmity by confronting her towards statement under Section 161 CrPC that she had told the IO regarding her going to attend a Kirtan in the neighbourhood. She also stated that for last 10-15 days the work of construction was going on in the adjoining house and the owner of that house used to hand over the keys to the mother of the victim after completion of work of construction. On the date of incident she was having key in the morning but the accused Babloo came to her house and took the key from the children. She herself had gone to attend a Kirtan at about 12:00noon. She stated that the accused had returned key to the children after the incident. Thereafter key remained with PW-5 for next 2-3 days. She denied the suggestion of implicating the accused without his any fault.
8. PW-6 was the manager of Sai International School, Sonia Vihar, Delhi. He produced the record of admission of the child in their school. He placed on record a copy of the admission form of the victim and the same was exhibited as Ex.PW6/A which bears signature of this witness at point B. This witness stated that he used to look after the work of principal when the principal was not available for one or the other reason.
9. PW-10 was IO SI Tejwati. She stated that on the day of incident i.e. 08.12.2013, she was posted at PS Sonia Vihar. She received the complaint of the mother of the victim at DD No.22-A on that day and it was marked to her. When the IO reached at the address of victim, the victim was found sleeping on JUDGEMENT
4|P a g e State Vs. Babloo a cot. The NGO was informed but it was not available at that time. Then IO herself tried to extract information of the boy from the victim herself. At about 04:00am on 09.12.2013 victim's father returned home and thereafter the mother of the victim gave her statement to the IO. IO prepared Rukka Ex.PW7/A by signing it at point A and handed over the same to SI Ramesh. SI Ramesh after getting it recorded returned it to the IO alongwith the FIR. Other formalities including taking the victim to the hospital, arresting the accused etc. were completed. The statement of the victim was recorded before the Ld. MM and the same is Ex.PW3/A.
10. Thereafter the statement of the accused under Section 313 CrPC was recorded and when the factum of giving one rupee to the victim was brought to the knowledge of accused he stated that he did not know about it.
11. At last when the accused was asked to state in his defence he stated that a construction work was going on in a house adjacent to the house of the victim's family. On one day while wetting the plaster some water had fallen down in the house of the complainant and this had turned into a quarrel thereafter.
12. As per accused this is a false allegation against him just to wreak a vengeance of the previous day.
13. Ld. Amicus Curiae has argued that the evidence of the victim is highly unreliable because the victim is a child of undeveloped sophistication. He further argued that during the course of cross-examination the victim had stated that there are currency notes of denomination of 1, 2, 3, 4, 5, 6, 6, 7, 8, 9 and
10. She had stated that there are currency notes of Rs. 6, 7, 8 and 9. In response to a question she stated that there were coins of Rs.3 and 4 also.
14. After the submission of the Ld. Amicus Curiae that particular part of cross-
examination is revisited, a perusal of that portion of the cross-examination shows that the victim had stated that there are currency notes in the denomination of Rs. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. But, the victim had stated JUDGEMENT
5|P a g e State Vs. Babloo very specifically that she had seen only the currency notes in the denomination of Rs.5 and 10 only. She stated to have not seen the currency notes of Rs. 6, 7, 8 and 9. She had further stated that there are no currency notes in denomination of Rs.3-4. There are coins in that denomination.
15. This Court is of the view that the cross examination conducted by the Ld. Amicus Curiae Sh. Uday Vir Singh is an elegant piece of imaginative thinking and the answers provided by the victim do not show that she was incapable of giving a true account of events. In fact this cross examination by the Ld. Amicus Curiae has very beautifully mixed the question of her belief and the question of her values to speak truth. When she says that there are currency notes in the denomination of Rs. 6, 7, 8 and 9 she was expressing her beliefs but when she stated that she had not seen the currency notes in the denomination of Rs. 6, 7, 8 and 9 and that she had seen only the currency notes in the denomination of Rs. 5 and 10 only, then it reflected her habit of speaking the truth. She has replied very intelligently and had not allowed the Ld. Amicus Curiae to create a camouflage between her belief (that may not be necessarily true) and her values to speak the truth only. This Court is of the further view that this part of the cross-examination has given her an additional credit of being trustworthy. She was not tempted by her beliefs, rather she was motivated by the true experiences which she had encountered. Despite having a belief in the existence of currency notes in the denomination of Rs. 6, 7, 8 and 9 she had not abandoned her values of speaking truth in favour of her belief and she clearly stated that although such denomination notes were in existence but she had seen only two types of notes i.e. in the denomination of Rs.5 and 10.
16. Her values to speak truth are also reflected from another existence of her statement before the Court. In response to the Ld. PP's leading question she stated that she did not tell a particular fact that the accused had rubbed his male organ against her female organ. When she was asked as to why she did not tell this factum of rubbing earlier she truthfully stated that she was forborne by her mother to state that before the Court. Therefore, this Court is of the view that JUDGEMENT
6|P a g e State Vs. Babloo this child witness is a truthful witness and can safely be relied upon. So far as the, veracity in her statement is concerned, the beliefs of this or that nature are not important for the purpose of disposal of this matter in hand because even the major individuals in real life possess a different account of beliefs and some of them are true while others are false.
17. Ld. Amicus Curiae has also pointed out to one more grey area, as he thinks it to be, of this case. Ld. Amicus Curiae referring to the statement of PW-5, the mother of this victim has pointed out that the mother had gone to attend a Kirtan in the neighbourhood at about 12:00noon; she then came back at about 03:00pm in the afternoon and the girl had not disclosed anything to her.
18. As per prosecution, the first disclosure was made by the victim at about 07:00pm in the evening. The Ld. Amicus Curiae submitted that this kind of delayed disclosure in itself is indicative of a false story.
19. This Court views the scenario differently. A child does not have an impaired faculty of reason and logic. Therefore his responses to his surroundings cannot be measured with the yardsticks as are used to measure the statements of adult witnesses. A child is very susceptive to his environment and before making any disclosure of a sexual assault upon him he wants to get sure that his disclosures would be believed and that he would not be discredited and that his prestige would not be downgraded and that he would not face an eminent danger after the disclosure. Only after being satisfied on all the counts as aforesaid a child makes any disclosure regarding the sexual abuse upon him. The logic and reasons of a child do not proceed at a speed at which the reasons and logic of an adult proceed. If a child finds any hindrance for example if his parents scold him then he is either dissuaded from making disclosure or makes a partial disclosure or makes a distorted disclosure. It is simply because a child is more susceptible to his environment than an adult is. Therefore, if there is a delay on the part of child in making disclosure then that can be understood by having a regard to his appreciation of fact of his surrounding. Before making a disclosure JUDGEMENT
7|P a g e State Vs. Babloo of a sexual abuse incident a child is always very hesitant and full of self-guilt and self-condemnation. The child first of all wants to be assured that if the disclosure is made he would not be placed on blame of such an offence/abuse. In the present case also the victim first of all would have assessed her environment after the arrival of her mother and when her mother observed her to be a bit nervous and suppressed then she prompted the victim to tell the reasons and the victim came out with the entire incident that had happened to her.
20. In view of this Court there is nothing of maligning nature. Everything appears to have been proceeded in a natural way. When the mother of the victim had come to know about the incident, she (the mother of the victim) confirmed it with her own intellectual devices of calling the family members and relatives of the accused and when she became sure about the happening of the incident she called the PCR at number 100. Thereafter the matter was proceeded by the introduction of the police.
21. Ld. Amicus Curiae has argued well, but it has been a constant stand of the victim that the accused had laid her on the debris and thereafter removed her undergarments. Then, he removed his undergarments and he rubbed his male organ against the female organ of the victim. The intention of the accused that it was sexual in nature is clearly established by the victim's statement that he had rubbed his male organ, which is used for the purpose of sex, to the female organ of the victim. This act of the accused is in itself sufficient to show that the accused was having a sexual intent at the time of the alleged act.
22. Victim is the only witness who could depose regarding the offences committed by the accused. In her statement the victim had clearly stated that the accused had removed her clothes and then his own undergarments. In her statement she told that much only. But, Ld. PP had sought permission to put a leading question. On being allowed, Ld. PP suggested the victim and the victim stated it to be correct that the accused took out his male organ and rubbed it on the JUDGEMENT
8|P a g e State Vs. Babloo female organ of the victim. She explained before the Court on being asked, that she had not stated this fact of rubbing earlier because her mother had asked her not to tell this fact to anyone else.
23. Section 354-B IPC reads as follows:
"Assault or use of criminal force to woman with intent to disrobe.- Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine."
24. Section 6 POCSO Act reads as follows:
"Punishment for aggravated penetrative sexual assault- Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."
25. From the aforesaid, Section 354-B IPC requires:
• An assault or use of a criminal force to any woman
• with the intention of disrobing or compelling her to be naked.
26. Section 6 of the POCSO Act requires:
• A penetrative sexual assault on the victim
• When the age of the victim is below 12 years of age (Section 5m
POCSO Act)
27. Penetrative sexual assault is:
• When a person penetrates his penis to any extent into the vagina, mouth,
urethra or anus of a child or makes child to do so with him or any other person.
(These ingredients of the offences are recorded from the various elements constituting the offence keeping in view the facts and circumstances of this case).
28. The victim has specifically stated that the accused had removed her undergarments; thereafter he had removed his undergarments then he caught hold of the victim and tried to shut her mouth. The victim told that she would raise an alarm then the accused set her free. Thereafter the accused gave her one rupee. From these facts, the factum of use of criminal force is apparent from the acts of the accused who had laid the victim on the debris. There has been use of JUDGEMENT
9|P a g e State Vs. Babloo a force for the purpose of committing the assault in view of the Section 351 IPC. The accused appears to have made a gesture by shutting victim's mouth. He further removed her clothes i.e. the undergarments of the victim. Therefore the ingredients of assault under Section 351 IPC is complete which reads as follows:
"Assault.- Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault"
29. The series of the acts of the accused shows that he committed an assault on the victim but in fact this committing of assault on the victim was with the intent to disrobe her or compelling her to be naked. Secondly, an intention to disrobe the victim coupled with an assault on the victim in persuasion of that sexual intent and the particular act of the accused to have disrobed the victim clearly shows that it was an offence punishable under Section 354-B IPC which reads as follows:
"Assault or use of criminal force to woman with intent to disrobe.- Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine."
30. A clarification was sought by the Ld. PP from the victim as to what the accused did after removing the undergarments of the victim and himself. The victim stated that he had taken out his male organ and rubbed it against the vagina of the victim. It was never stated on record that the accused was successful in penetrating the vagina of the victim. In her own language the victim had stated before the Court that the accused had rubbed his private part against the victim's private part.
31. From these facts the offence of penetration under Section 3 or 5 of the POCSO Act is not made out. Therefore the accused cannot be held guilty for the offence punishable under Section 4/6 of the POCSO Act. But, there is an offence of less JUDGEMENT
10|P a g e State Vs. Babloo aggravation and that is the offence of sexual assault that appears to have been made out from the acts of the accused. The offence of sexual assault is a new offence defined by the POCSO Act. It has no relation to the already existing concept of assault given under Section 351 IPC. The new offence does not need the use of a criminal force as it was required in 'Assault'. The sexual assault defined by the POCSO Act has been defined under Section 7 of this Act as follows:
"Sexual Assault - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
32. For an offence committed under Section 7 POCSO Act needs, the accused:
• With sexual intent
• Touches
o The vagina, penis, anus or breast of the child, or • Does any other act with sexual intent which involves physical contact (If this offence of sexual intent is committed)
33. This offence of sexual assault is punishable under Section 8 of the POCSO Act with an imprisonment for a term which shall not be less than three years but which may extend to five years and shall also be liable to a fine. But if this act of sexual assault is committed on a child of age less than 12 years then it is called an aggravated sexual assault [Seciton 9(m) of POCSO Act] and it becomes punishable under Section 10 of this Act.
34. Applying this criterion to the present case the victim is a girl of about 6/7 years of age. Her clothes were removed by the accused (the offence under Section 354-B IPC is complete). This removal of clothes of the victim is clearly indicative of the sexual intent on the part of the accused. This sexual intent is further manifested by his act when he appears to have rubbed his male organ against the female organ of the victim. This rubbing of his male organ by the accused against the female organ of the victim clearly shows that it involved a physical contact between the accused and the victim. JUDGEMENT
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35. Now, offence appears to be having following ingredients completed from the facts of the case:
• The accused was having a sexual intent • He used a criminal force in laying down the victim on the debris and hence committed an assault on the victim.
• He also closed her mouth in order to shut it so that victim could not raise alarm.
• He disrobed the victim in course of doing aforesaid assault.
• He has touched the female organ of the victim by his male organ and at that time the victim was a girl under the age of 12 years.
36. Hence, the ingredients of the offence punishable under Section 354-B IPC and for the offence punishable under Section 10 POCSO Act are complete. From the facts it is proved that the accused has committed the offence punishable under Section 354-B IPC and 10 POCSO Act.
37. Despite the mandate of Section 42 POCSO Act, the Sections 354-B IPC and 7/9 POCSO Act are being alternatively charged but as it appears in the present case they constitute different offences. The concept of assault as it appears in Section 354-B IPC is not required for the offence under Section 7/9 POCSO Act punishable under Sections 8/10 POCSO Act. Therefore Sections 354-B IPC and 10 POCSO Act are not completely congruous. These are two offences with requirement of slightly varying ingredients. In the present case both the offences are made out. Hence, the accused is held guilty under the provisions of law i.e. 354-B IPC and 10 of POCSO Act. He is convicted accordingly.
38. Now, the file be taken up for hearing arguments on sentence in view of Section 235 CrPC, as per schedule given in the ordersheet. Pronounced in the open court on 12.05.2015.
Dr. PS MALIK Addl. Sessions Judge-01 N/E Karkardooma Courts, Delhi JUDGEMENT
12|P a g e State Vs. Babloo IN THE COURT OF SH. SANJAY SHARMA, ADDL. SESSIONS JUDGE-01, NORTH EAST, DELHI Nature of the case Sessions Trial SC No. 12/2014 FIR No. 312/2013 Computer ID of the case 02402R0020222014 Penal Sections invoked 354-B IPC & 6 POCSO Act Penal Sections proved 354-B IPC & 10 POCSO Act Police Station Sonia Vihar Date of Committal 18.01.2014 Charge framed on 24.02.2014 Date of Conviction 12.05.2015 Date of arguments on sentence 29.05.2015 Date of Orders on Sentence 30.05.2015 State Vs. Babloo S/o Sh. Lalmanji, R/o H.No. 2/46, Gali No.11, near Toll Tax, 5th Pusta, Sonia Vihar, Delhi.
Order on Sentence
1. The convict Babloo was held guilty and convicted, by the Ld. Predecessor, for offences punishable under Section 354-B IPC and Section 10 of POCSO Act vide order dated 12.05.2015.
2. Arguments on the point of sentence on behalf of parties heard. JUDGEMENT
13|P a g e State Vs. Babloo
3. Sh. Sukhbeer Singh, Ld. PP submitted that the convict has been involved in a heinous offence against the victim who is a very small child, a minor girl of only 6/7 years of age. He has committed an aggravated sexual assault against the victim. Therefore, he should be granted maximum punishment.
4. On the other hand, Sh. Uday Vir Singh, Ld. Amicus Curiae for the accused submitted that the convict was about 19 years of age at the time of commission of the offence. It has been further submitted that the convict is the first time offender and there is no previous history of his involvement in any criminal act. Furthermore, he is the sole bread earner of the family and labour by profession. He has already suffered incarceration in the present case and therefore it was pleaded that the convict be released on probation.
5. I have considered the rival submissions.
6. Ld. Counsel for the convict adverted to the provisions of Probation of Offenders Act and also relied upon four judgments:
i. Rajender Singh Vs. State 1997 JCC 98.
ii. Sivasamy Vs. Sub Inspector Kinathur Kadavu, Coimbatore 1992 CRI LJ 2041.
iii. Bhadreswar Loying Vs. State 1989 CRI LJ 151 Gohati.
iv. Daulat Ram Vs. State of Haryana AIR 1972 SC 2434.
7. In the Daulat Ram (Supra) it was observed that Section 6 of Probation of Offender Act should be liberally construed so that its operation may be effective and beneficial to the young offenders who are prone more easily to be led astray by the influence of bad company. It was further observed that their stay in jail might well attract them towards a life of crime instead of reforming them. It is for this reason that the mandatory injunction against the imposition of sentence of imprisonment has been embodied in Section 6. Similar view has been taken by the Hon'ble High Courts in the other referred judgments.
8. It is a matter of record that the prosecution has failed to place on record any previous history of conviction or even involvement of the convict in other criminal JUDGEMENT
14|P a g e State Vs. Babloo acts. The age of the convict is also not in dispute. The incident proved against the convict is nothing but an outcome of a pervert mindset which in recent times can be attributed to the media and more particularly to the internet which is available on mobile phones.
9. In my opinion a chance should be given to the convict considering his age and family backgrounds. Accordingly, the plea of the convict is accepted and he is directed to be released on probation of good conduct for a period of two years on his furnishing personal bond in the sum of Rs.25000/- with one surety in the like amount, with direction that in case of any default he shall be called upon to receive the sentence. He is directed to keep peace and be of good behaviour during this period.
10. A probationary officer shall be appointed who shall keep vigil upon the convict and his activities. The convict shall apprise his latest residential address to the probationary officer and shall not leave Delhi without his permission and shall also not change his address without prior intimation to him.
11. A copy of this order be sent to the Probationary Officer attached to the Court who shall furnish his report regarding the conduct and behaviour of the convict after every 6 months to this Court.
A copy of the judgment and the order on sentence be given free of cost to convict. Pronounced in the open court on 30.05.2015.
SANJAY SHARMA-I Addl. Sessions Judge-01 N/E Karkardooma Courts, Delhi JUDGEMENT
15|P a g e