Delhi District Court
State vs . Pankaj on 20 January, 2015
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 40/14)
Unique ID case No. 02404R0049172014
State Vs. Pankaj
FIR No. : 239/13
U/s : 377 IPC
& 6 POCSO Act 2012
P.S. : Vijay Vihar
State Vs. Pankaj
S/o Jai Parkash
R/o C2/49, Budh Vihar
PhaseI, Delhi.
Date of institution of case 06.02.2014
Date on which, judgment has been reserved 16.01.2015
Date of pronouncement of judgment : 16.01.2015
JUDGMENT:
1. The Investigating Agency was set in motion in the present case, when information regarding wrong act with a minor child aged about 7/8 years, was received at PS Vijay Vihar. The said information was reduced to writing vide DD no. 19A i.e. Ex.PW3/A, which was handed over to SI Virender for inquiry. The SI Virender proceeded to the informed place i.e. S.C. No. 40/14 : State vs. Pankaj : Page 1 of 39 2 C2/49, Budh Vihar, PhaseI, along with his staff and there, he came to know that victim had been taken to B.S.A hospital in a PCR Van. The SI Virender left beat constable Sher Pal for safe custody of the place of incident and proceedings to Dr. B.S.A Hospital along with Ct. M. Laxmaiah and found that victim S, aged about 7/8 years was being medically examined. The accused Pankaj son of Jai Parkash was also found present in the hospital. SI Virender called Ct. Naveen to hospital to take custody of the accused Pankaj, while he himself proceeded to inquire about the incident from Smt. Reena, mother of the victim. After making inquiry from Smt. Reena, SI Virender recorded her statement Ex. PW5/A, wherein Smt. Reena stated that she was a house wife and had three sons and one daughter. Her eldest son S (victim) was aged about 6 years. On 05.05.2013, at about 10.30 am, S came to her crying in pain and told her that one person, who was residing above the factory, had committed wrong act with him. Smt. Reena checked clothes of her son S and found blood stains on his pant. She immediately went to room above the factory and found accused Pankaj, present there. At that time, her son S pointed accused to her and told her that he was the same person, who had committed wrong act with him (victim S). After hearing this, Smt. Reena, began to scold the accused, on which, several public persons collected at the spot and gave beatings to the accused. Someone gave a call at 100 number. Smt. Reena prayed that appropriate action be taken against the accused.
S.C. No. 40/14 : State vs. Pankaj : Page 2 of 39 3
SI Virender collected the MLC of the victim and on basis of observations made therein as well as in view of the complaint made by Smt. Reena, got a case FIR u/s 377 IPC and 4 of POCSO Act registered against the accused. The investigations of the case, after registration of the FIR, were marked to SI Virender only. During the course of investigations, IO got the place of incident inspected by the crime team and also collected the exhibits from the spot. He further prepared the site plan of the said place. The accused was arrested in the present case and was got medically examined for determination of his potency and the exhibits taken from the accused, by the concerned doctor, were also seized by the IO.
On 06.06.2013, the victim was produced before ld. M.M for his statement u/s 164 Cr.P.C. The IO also got the exhibits of the case sent to FSL, Rohini. After completing the investigations, charge sheet was prepared and filed before this court. Later on, the FSL result was also filed before this court.
2. After hearing the arguments, charges for the offence under Section 5 (m) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POSCO Act) punishable u/s 6 of POCSO Act, was framed against the accused Pankaj. An alternate charge u/s 377 IPC is also framed against the accused. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for S.C. No. 40/14 : State vs. Pankaj : Page 3 of 39 4 prosecution evidence.
3. In order to prove its case, the prosecution has examined eighteen witnesses.
Victim child and his family members :
4. The PW6, S is the victim child in the present case and despite his tender age, the victim narrated about the acts of the accused in his detailed testimony before the court.
5. The PW5, Reena is the mother of the victim child. She deposed that her family comprised of her husband and four children and that at the time of incident, she was residing at house no. C2/49, Budh Vihar, PhI, Dellhi. She then deposed that victim S was her eldest son and was aged about 6 years. (at the time, when PW5 appeared to depose before the court). The PW5 further deposed that on 05.05.2013 at about 10.30 am, she was doing house hold work and that at that time, her son S came to her and told her that he was having pain. When PW5 inquired from him as to what had happened, her son S took her to a room above the factory and pointed out towards the accused Pankaj, and told PW5 that accused had done something to him (victim S) from his backside (anal region). The PW5 further deposed that she asked accused Pankaj as to what he had done with her son, but accused Pankaj denied having done anything. The S.C. No. 40/14 : State vs. Pankaj : Page 4 of 39 5 PW5 further deposed that she checked her son's underwear and saw blood on it. Suspecting foul play, she raised alarm, hearing which, public persons collected at the spot and gave beating to the accused. Some one out of the said public persons, informed the police at 100 number and when police came to the spot, PW5 Smt. Reena, her son S and Smt. Leela Devi (mother of PW5) were sent to hospital for medical examination of her son S. The PW5 further deposed that the police recorded her complaint Ex. PW5/A in the hospital and that her son remained under treatment for 23 days, however, he still complained of pain in stomach. The PW5 then deposed about the arrest of the accused by the police and proved his arrest memo as Ex.PW5/B and his personal search memo as Ex. PW5/C. The PW5 also deposed that her son S had pointed out the place of incident to the police in her presence and that name of her son S was mentioned as Shiv Shankar Singh in the school and that her son S was studying in IInd class in a Govt. school in Budh Vihar, PhaseI, at the time of the incident.
During crossexamination by learned defence counsel, the PW5 denied that the accused was her neighbor and that the accused was working in a factory, which was at a distance of one house, from the house where PW5 was then staying as a tenant. She also deposed that she had not known the accused personally, but had only seen him in the area as he was working in the factory near her house. The PW5 further deposed that when her son S told her that he was having pain, she told S.C. No. 40/14 : State vs. Pankaj : Page 5 of 39 6 about it to her mother, who had come to visit PW5 and that she had not told about it to her husband as he had gone for his duty at LBlock, Pitampura, where he was working as a Chowkidar. The PW5 denied that her husband had taken a loan from the accused. She clarified that since, they (PW5 and her husband) did not know accused, question of taking loan from him (accused) did not arise. The PW5 denied that her husband had known accused very well, since prior to the incident. As regards the events, which had taken place prior to her being told about the incident by her son, the PW5 stated that her son S had gone out to play at about 10.00 am and had returned back by 10.30 am and that as soon as, he returned back, he lay down in the house and within 5 minutes thereafter, he told PW5 that he was having pain. The witness explained the condition of victim S at that time by stating that her son was writhing in pain "Phadphda raha tha".
6. The PW9, Smt. Leela Devi, is the grandmother (nani) of the victim child. She deposed that on 05.05.2013, she had gone to meet her daughter PW5 Reena, who was residing at C2/49, Budh Vihar, PhaseI and that victim S, who was aged about 7/8 years, was the eldest born child of her daughter. The PW9 further deposed that she reached house of her daughter at about 10:00 AM and had been talking to her for about 10/15 minutes, when her grandson i.e. victim S came back to house while weeping bitterly and that due to severe pain, her grandson (victim S) fell S.C. No. 40/14 : State vs. Pankaj : Page 6 of 39 7 down on the floor ('patka kha kar gir gaya'). The PW9 further deposed that on inquiry, victim S told them that 'factorywale bhaiya ne mujhe peeche dard kar diya' and that when her daughter/PW5 Reena removed his nicker, they saw blood stains on it. The PW5 stated that she also saw that the anal region of her grandson/victim S was red and swollen. The PW5 then deposed that she and her daughter took victim S to the room of accused Pankaj, who was present in his room and there victim S pointed towards the accused Pankaj and told them that Pankaj bhaiya did wrong act with him and that on hearing this, PW9 got angry and gave 3 - 4 slaps to accused Pankaj. She further deposed that the public persons from the gali also gathered there and gave beatings to the accused and that someone, gave a call to the police. The PW9 further deposed about informing her son Rahul regarding the incident, upon which, Rahul also reached in their gali and that at that time, the accused had been dragged into the gali, by the public persons. The PW9 also deposed about going to the hospital for medical examination of her grandson.
During crossexamination by learned defence counsel, the PW9 stated that she had remained with her daughter and grandson the entire day on the day of incident. The PW9 denied that she was not present at the house of her daughter on 05.05.2013.
Other Public witnesses :
7. The PW14, Sh. Gaurav, is the owner of the factory bearing no. S.C. No. 40/14 : State vs. Pankaj : Page 7 of 39 8 C2/49, Budh Vihar, PhaseI, Delhi, where the incident had taken place and he deposed that accused Pankaj was working in his factory since 9-10 months prior to the date of incident and was residing in an independent room constructed above his factory and that the victim child S was residing with his family 1/2 houses away from his factory, but the portion of house, where they (victim and his family) were residing, was also constructed on plot No.C2/49, Budh Vihar, which was a big plot. He further deposed that during the inquiry made by the Police, he produced the photocopy of fifteen pages of attendance register i.e. Ex.PW14/A1 to Ex.PW14/A15, which were seized by the IO vide seizure memo Ex.PW14/B. During crossexamination by learned defence counsel, the witness stated that besides the accused, family of Sh. Achhe Lal was also residing on the floor above the factory and that on the day of the incident, family of Sh. Achhe Lal was also present in their room. He volunteered to state that they (family of Achhela Lal) was still residing in the same room. He further stated that in fact, there were two rooms constructed on floor above the factory and that the accused was residing in one of the rooms and the other room was occupied by the family of Sh. Achhe Lal. He also deposed that his factory remained closed on Sunday. Witness qua the age of the victim :
8. The PW1, Ms. Neera, Incharge, produced record from Nigam S.C. No. 40/14 : State vs. Pankaj : Page 8 of 39 9 Pratibha Vidyalaya, Budh ViharI, Delhi, wherein victim S was admitted in Nursery class. The PW1 proved photocopy of admission form and two affidavits submitted by father of the child, as Ex. PW1/A to Ex. PW1/C respectively, and stated that as per the school record, the date of birth of the victim S was 10th May, 2006. The witness also proved the relevant entry in the admission register, qua the victim S, as Ex. PW1/C and original certificate issued by her as Incharge of the school as Ex.PW1/D. Witness qua statement of victim u/s 164 Cr.P.C :
9. The PW2, Ms. Rajani Ranga, learned Metropolitan Magistrate, had conducted the proceedings u/s.164 Cr.P.C and proved the same as Ex.PW2/A to Ex.PW2/D i.e. the application filed by IO for recording of statement of victim S u/s.164 Cr.P.C as Ex.PW2/A ; statement of the victim child as Ex. PW2/B ; the certificate given by PW2 as Ex.PW2/C and application for supply of copy of said statement, filed by IO, as Ex. PW2/D. Police witnesses :
10. The PW7, W/Ct. Ruby, deposed that on 05.05.2013, she was posted at Police Control Room, CPCR, PHQ and that on that day, at about 11.00/12.00 am, she received a call from 100 number that one person, who had done galakam with a 78 years boy, at C249, Budh Vihar, near Ration Card Office, had been apprehended by the public and that she S.C. No. 40/14 : State vs. Pankaj : Page 9 of 39 10 reduced this information into writing in PCR Form and dispatched the same to Console Operator for further necessary action. The witness proved the attested copy of the PCR Form as Ex. PW7/A.
11. The PW11, ASI Ishwar Singh, deposed that on 05.05.2013, he was working as Incharge of PCR Van Libra 18, from 8.00 am to 8.00 pm and that on that day, at about 11:50 AM, on receipt of an information from wireless operator about galatkam with a boy aged about 78 years by a person at C2/49, Budh ViharI, near Ration Office, he along with his staff reached the informed place and met victim child S, his family members and local police and that the accused, who had been beaten by the public persons, was also found present. He further deposed that thereafter, he took the victim S, his family members and accused to BSA Hospital and there the victim as well as the accused were medically examined and that when PW15/IO SI Virender reached the hospital, he handed over the accused as well as the victim to him.
12. The PW3, ASI Sheesh Ram, was posted as the duty officer at PS Vijay Vihar on 05.05.2013 and he deposed that on that day, at about 11.54 am, he received an information from wireless operator that "C2/49, Budh Vihar, Ration Office, 7/8 sal ke ladke ke sath ek admi ne galat kam kiya hai" and that this information was reduced into writing by him vide DD no. 19A. He proved copy of said DD as Ex. PW3/A and attested copy of S.C. No. 40/14 : State vs. Pankaj : Page 10 of 39 11 same as Ex. PW3/E and stated that copy of said DD was handed over to PW15 SI Virender, who proceeded to the spot.
The PW3 further deposed that on the same day, he had registered the case FIR in the present case. He proved the computerized copy of FIR as Ex.PW3/B, endorsement made by him on rukka as Ex. PW3/C and certificate u/s 65 B of the Indian Evidence Act as Ex. PW3/D.
13. The PW15, SI Virender is the investigating officer of the present case and he deposed that on 05.05.2013, DD No.19A i.e. Ex.PW3/A, regarding wrong act with a 7-8 year old boy by a person at Budh Vihar, near Ration Office, was entrusted to him for inquiry and that pursuant thereto, he along with Ct. M. Laxmaiah reached at the spot at C2/49, Budh Vihar PhaseI, Delhi, where on inquiry, he came to know that the victim and the alleged accused Pankaj had been removed to BSA Hospital by PCR Van. The PW15 further deposed that thereafter, he left beat constable Ct. Sher Pal to guard the spot, while he along with Ct. M.Laxmaiah went to BSA Hospital, where victim child S was found under treatment vide his MLC No.4780 and the accused Pankaj had already been examined vide his MLC No.4779. He further deposed that thereafter, he called Ct. Naveen in the hospital and handed over the custody of accused to him and made inquiries from Smt. Reena, mother, and Smt. Leeta Devi, maternal grandmother of victim child S, and S.C. No. 40/14 : State vs. Pankaj : Page 11 of 39 12 thereafter recorded the statement Ex. PW5/A of Smt. Reena and that on the basis of said statement, he made his endorsement on complaint, prepared rukka Ex.PW15/A and handed it over to Ct. M.Laxmaiah with directions for getting the FIR registered and that accordingly, Ct. Laxmaiah went to PS. The PW15 further deposed that thereafter, he returned back to the spot and met with Rahul, maternal uncle of the victim child S and that thereafter, he got the place of incident inspected through Crime Team vide crime team report Ex.PW4/A and that after inspection, he took into possession two bedsheets from the spot and sealed the same with the seal of VS and thereafter seized the same vide seizure memo Ex.PW13/A. He further deposed that Sh. Rahul also handed over one mobile phone to him and told him (PW15) that the call to the police at 100 number had been made from the mobile phone of the accused, after it had been taken by the public persons when accused was being beaten by them after the incident, and that he prepared seizure memo Ex. PW15/B of the said mobile phone. The PW15 further deposed that thereafter, he along with Ct. M. Laxmaiah again went to BSA Hospital and collected the MLC of victim as well as accused Pankaj and also took the exhibits of accused as well as victim into possession vide memo Ex.PW15/C (of accused) and Ex.PW15/D (of victim), respectively. He further deposed about arrest and personal search of the accused vide memos Ex.PW5/B and Ex.PW5/C respectively. He further deposed about recording of the disclosure statement Ex. PW15/E of the accused S.C. No. 40/14 : State vs. Pankaj : Page 12 of 39 13 and about the deposit of the exhibits in the Mal khana of police station.
He further deposed about getting the potency test of accused conducted vide his application Ex.PW15/F and about getting recorded the statement of victim u/s.164 Cr.P.C. on 06.06.2013 vide his application Ex.PW2/A and about collecting the age proof Ex. PW1/D of the victim child and about depositing the exhibits of the present case with FSL Rohini. He further deposed that on 17.05.2013, he prepared site plan Ex. PW15/G of the place of incident at the instance of the complainant Smt. Reena. He then deposed that during further investigations, on 30.01.2014, he collected photocopy of attendance register Ex.PW14/A1 to Ex.PW14/A15 from Sh. Gaurav Nagpal, owner of the factory, where accused was residing and seized the same vide seizure memo Ex. PW14/B. The witness further deposed about collecting the PCR form and about collecting the photographs from the office of crime branch. He further deposed that he recorded the statements of the witnesses and that after completion of investigations, he prepared the charge sheet and filed the same in the Court through SHO concerned. He also stated that later on, he collected the FSL result Ex. PX and PY and filled the same in court vide his application Ex. PW15/H. The witness correctly identified the accused as well as case property i.e. two bed sheets as Ex.P1 (colly) and mobile phone as Ex. P2.
During crossexamination, the PW15 stated that there was a crowd of public persons at the spot, when he reached there and that S.C. No. 40/14 : State vs. Pankaj : Page 13 of 39 14 except for PW Rahul, maternal uncle of victim, none of the public person present there, was made a witness. He further stated that he had recorded the statement of victim in the evening hours in the hospital. He also stated that when he reached the hospital from the spot, the victim child was under treatment/ medical examination. He further stated that he did not meet the father of the victim child either in the hospital or at the spot. The witness denied that another family was also residing in the factory, where the incident had taken place or that he had not interrogated the members of those families intentionally. He further stated that during investigations, he did not come across fact that husband of the complainant had taken a loan from the accused. The witness denied that there was a monetary dispute in respect of loan taken by husband of complainant from accused, or that due to this reason the complainant had falsely implicated the accused in the present case.
14. The PW12, Ct. Naveen, deposed that on 05.05.2013, he went to BSA hospital, at the instance of the IO, to keep the accused, who was in the hospital for medical examination in his custody and that later on, when IO and Ct. Laxman reached the hospital, he (PW12) was relieved from there.
15. The PW13, Ct. Sherpal, was posted as beat constable at Budh Vihar, PhaseI. He deposed that on 05.05.2013, at about 12.00 noon, on S.C. No. 40/14 : State vs. Pankaj : Page 14 of 39 15 receipt of information that at C2/49, Budh Vihar, PhaseI, "ek bache ke sath galat kam hua hai", he reached there and joined investigations of the present case with PW15 SI Virender and that in his presence, IO took two bed sheets Ex. P1 (colly) from the mattress lying on the bed, sealed those bed sheets with the seal of 'VS' and thereafter seized the same vide seizure memo Ex. PW13/A.
16. The PW4, Ins. Anil Kumar, was the Incharge of Mobile Crime Team, Outer District and he deposed that on 05.05.2013, on receipt of call from control room, he along with photographer/PW16 Ct. Harish and proficient Ct. Deepak went to the spot i.e. C2/49, Budh ViharI, Delhi, where wrong act was stated to have been committed with a boy and met IO PW15 SI Virender, who along with his other police staff were present there. He further deposed that he inspected the site, got the photographs of the spot taken by PW16 Ct. Harish, prepared a detailed report, Ex. PW4/A and handed it over to the IO SI Virender.
During crossexamination, the PW4 stated that at the time of inspection, the victim was not present at the spot. He showed his lack of knowledge, if in his presence IO had seized any article/sample from the spot or not.
17. The PW16, Ct. Harish Kumar, was posted as photographer of the mobile Crime Team, Outer District. He deposed that on 05.05.2013, S.C. No. 40/14 : State vs. Pankaj : Page 15 of 39 16 he along with PW4 I/C SI Anil Kumar, HC Karambir and Ct. Deepak Kumar, reached at C2/49, Budh Vihar, PhaseI, Vijay Vihar, Delhi and there, IO along with staff met them and that he took six photographs of a room on the roof of cardboard (gatta) factory, on the directions of IO and Incharge of crime team, from different angles. The witness proved the said photographs as Ex. PW16/A1 to Ex. PW16/A6 and negatives of said photographs as Ex. PW16/B1 to Ex. PW16/B6.
18. The PW8, HC Rakesh Kumar, was posted as MHCM at P.S. Vijay Vihar at the relevant time. He deposed about different entries made by him in Register No. 19 at the time of deposit of exhibits in Mal khana and in register no. 21 at the time of sending the exhibits to FSL Rohini and proved the said entries as Ex. PW8/A to Ex. PW8/C, respectively. He further deposed that on 11.04.2014, Ct. Satish Kumar deposited three sealed parcels and one FSL result in the Mal khana and as per his endorsement on Ex. PW8/A, the FSL result was handed over to the IO of the case.
Doctor witnesses :
19. The PW10, Dr. Tariq Shamshad, has proved the MLC of the victim child S as Ex. PW10/A, by identifying the handwriting and signatures of Dr. Shahnawaz, SR, Surgery, who had examined victim S. He further deposed that as per MLC, there was 'perianal soakage present, S.C. No. 40/14 : State vs. Pankaj : Page 16 of 39 17 blood mixed, acute tear at 6 O'clock" and that no active bleeding was observed at the time of examination. He further deposed that after examining the patient, Dr. Shahnawaz opined that "though nature of injury is simple clinically possibility of sexual assault cannot be ruled out" and that Dr. Shahnawaz also discussed the case with PW18 Dr. Rekha.
During crossexamination, PW10 termed it correct that patient was not examined in his presence and that Dr. Shahnawaz had not discussed the present case with him. He further stated that injury in question could have been caused by sexual assault as well as constipation. He further stated that child had complained of pain in his lower abdomen, which could be due to sexual assault or constipation or due to injury as observed in his anal region.
20. The PW18, Dr. Rekha Deewan, has proved the MLC of the victim child S as Ex. PW10/A, by identifying the handwriting and signatures of Dr. Shahnawaj Alam, SR Surgery, who had examined victim S. She further deposed that though, she had personally not examined the patient, but the matter was discussed by Dr. Shahnawaj with her on phone and that as per observation of Dr. Shahnawaj, though, nature of injury was simple, but possibility of sexual assault could not be ruled out.
During crossexamination by learned defence counsel, the witness stated that though, the injury mentioned in the MLC was also possible due to constipation, the clinical findings would still have to be corroborated with S.C. No. 40/14 : State vs. Pankaj : Page 17 of 39 18 FSL result for final opinion in view of the history. She further stated that from the MLC, it did not appear that the victim child was physically assaulted as the victim had no other injury mark over his body. She volunteered to state that physical and sexual assault are two separate things.
21. The PW17, Dr. Shiv Kumar, has proved the MLC of the victim child S as Ex. PW10/A, by identifying the handwriting and signatures of Dr. Manish, SR, Pediatrics, who had examined victim S. He further deposed that as per observations made by Dr. Manish, on examination, nail mark was found present over right cheek, near angle of the mouth of the victim and one laceration was also present over anal region posterior fresh and faecal matter admixed with some secretion were found and that the patient/victim S was advised some pain killer and was referred to Surgical department for sample collection and opinion.
During crossexamination by learned defence counsel, the PW17 stated that the patient was not examined in his presence and that Dr. Manish did not discuss the present case with him. He further stated that in case of constipation, there is a scar in the event that the patient is suffering from chronic constipation and that in the present case, as per the MLC, there was no observation of such a scar. He further stated that in general, there can be tear and bleeding because of constipation and that he could not comment if the nail injury was fresh or not, since, he had not S.C. No. 40/14 : State vs. Pankaj : Page 18 of 39 19 examined the patient himself.
22. After closing of the prosecution evidence, statement of accused Pankaj was recorded u/s 313 Cr.P.C., wherein, the accused stated that he was innocent and had been falsely implicated in this case by the mother of the victim child as the father of the victim child had taken a loan from him and when he demanded his money back, he was implicated in the present false case. He further deposed that his signatures were obtained by the police on some blank papers as well as some printed performa forcibly and those papers, were later on, used against him, to implicate him in the present false case. He wished to lead evidence in his defence and examined his real brother Gulab Singh Yadav, as DW1.
23. The DW1, Gulab Singh Yadav, real brother of accused Pankaj, deposed that Rajender Solanki (father of the victim), was the neighbour of his brother Pankaj and had requested his brother Pankaj for a loan of Rs. 10,000/, on the pretext that his son i.e. victim S was seriously ill and that after considering the request of Rajender Solanki, his brother Pankaj gave a loan of Rs. 10,000/ to Rajender Solanki, in his presence, in his room and that at that time, Sh. Rajender Solanki assured his brother that he (Rajender Solanki) would return the loan amount within one month. He further deposed that in the first week of May 2013, his brother Pankaj called Rajender Solanki to his room and asked him to return the loan S.C. No. 40/14 : State vs. Pankaj : Page 19 of 39 20 amount as Pankaj had to go for a marriage of his relative, which was going to be solemnized on 06.05.2013, and that on this, Rajender Solanki threatened his brother that in case, his brother demanded his money back, he would implicate Pankaj in a false case as he (Rajender Solanki) was having relations with the police officials of PS Vijay Vihar. He further deposed that on 05.05.2013, his brother again demanded his loan amount back from the family members of Rajender Solanki, on which, they implicated his brother in this false case and that his brother was innocent and no such alleged incident had ever taken place.
During crossexamination by learned Addl. PP, the witness stated that his brother Pankaj used to work in a factory, but he showed his lack of knowledge about the monthly salary of the accused. He further stated that at that time, he (DW1) was staying in Kishan Vihar, while accused was staying in Budh Vihar and that the distance between his residences and the residence of the accused was about half a kilometer. He further stated that he used to talk to accused every day on his mobile phone (of accused) from his mobile phone (of DW1) and that accused did not have any bank account. He further deposed that they were four brothers, out of whom, two were staying with his parents in the native village and that he was earning around Rs. 6,000/ to Rs 7,000/ per month from his job at Gas Agency and used to send money for expenses of his parents regularly. He further deposed that earlier accused had been sending money for expenses of their parents, but since quite some S.C. No. 40/14 : State vs. Pankaj : Page 20 of 39 21 time, he had stopped sending any money for expenses of his parents. The DW1 volunteered to state that he had even slapped accused for not sending money to their parents and had asked him as to what he used to do with his money, on which, he (accused) told DW1 that as soon as, he got his wages, the money was used for expenses. He further stated that accused was not married and was residing in a tenanted accommodation, at a monthly rent of Rs. 1,000/ per month. The witness showed his lack of knowledge about the address of factory and name of the owner of the factory, where accused was working. He could not tell the date, on which, accused had given the alleged loan to the father of the victim. He denied that he had no knowledge about alleged monetary transaction between the accused and the father of the victim child as he was not in regular touch with the accused. He also denied that he was deposing falsely about the said monetary transaction as he wanted to save my brother.
24. The accused closed D.E after examining DW1. Thereafter, perusal of record showed that inadvertently, FSL result had not been put to the accused in his statement u/s 313 Cr.P.C. Accordingly, additional statement of accused was recorded u/s 313 Cr.P.C. Accused again termed the said piece of incriminating evidence against him to be false. He, however, chose not to lead any further D.E. S.C. No. 40/14 : State vs. Pankaj : Page 21 of 39 22
25. Arguments have been addressed by learned defence counsel for the accused as well as learned Additional PP for the State.
26. Learned Additional PP has contended that in the present case, the accused committed aggravated penetrative sexual assault upon a minor boy aged about 6 years by inserting his penis into anus of the victim child and that in view of the statement of PW6 victim S, PW5 Smt. Reena, PW9 Smt. Leela Devi and also MLC of the victim child and FSL result, prosecution has proved its case beyond reasonable doubt against the accused and has accordingly prayed that accused be convicted for the charged offence.
27. Learned counsel for the accused on the other hand has contended that prosecution has miserably failed to prove its case against the accused and that accused is innocent and has been falsely implicated in the present case by the father of the victim child, who had borrowed a sum of Rs. 10,000/ from the accused and that this fact is quite clear from the testimony of DW1. It is further contended that no public person was joined in the investigations of the case and from the testimony of PW14 Sh. Gaurav, it is apparent that IO never visited the spot. He further contended that presence of Rahul, maternal uncle of victim S, is also doubtful and that there are material contradictions in the testimonies of the prosecution witnesses and it is accordingly prayed that accused be S.C. No. 40/14 : State vs. Pankaj : Page 22 of 39 23 acquitted in the present case.
28. I have heard the arguments put forward by ld. Addl. PP as well as learned defence counsel for 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.
29. In the present case, the accused is alleged to have committed aggravated penetrative sexual assault upon the victim boy S, a minor boy aged about 6 years, by inserting his penis into anus of victim child S.
30. The first question, which arises for consideration is whether the victim S is a 'child' as defined in Section 2 (d) of POCSO Act. In the present case, the age of the victim child P has not been disputed by the learned defence counsel. Even otherwise, in order to prove that the victim was less than 18 years of age as on the date of offence, the prosecution has examined Ms. Neera, from the first attended school of the child Shiv Shankar Singh as PW1. This witness deposed that the child S was admitted in Nursery class in Nigam Pratibha Vidyalaya, Budh ViharI, Delhi, on the basis of admission form and two affidavits, submitted by father of the child. She proved the copy of the said admission form and two affidavits submitted by father of the child ; relevant entry in the Admission Register and original certificate issued by the school as Ex. S.C. No. 40/14 : State vs. Pankaj : Page 23 of 39 24 PW1/A to Ex. PW1/D, respectively wherein the date of birth of victim S was mentioned as 10.05.2006. Further, PW5 Reena, mother of victim S also clarified that the name of victim S was mentioned as Shiv Shankar Singh in the school record. The date of commission of offence in the present case is 05.05.2013 and as such, on computation, the age of the victim child P comes to 6 years 11 months and 25 days, as on the date of incident. Hence from the testimony of PW1 also, the prosecution has succeeded in proving that child S was less than 18 years of age at the time of incident and hence a 'child' within the definition of Section 2 (d) of the POCSO Act.
31. Now coming to the allegations of aggravated penetrative sexual assault, it is noticed that statement of the victim child S u/s 161 Cr.P.C was recorded on 05.05.2013 in questionanswer form, wherein the victim S stated as under : "Q. Beta apka kaya naam hai ?
Ans. S.....
Q2. Mummy ka kaya naam hai ?
Ans. Reena Q.3. Konsi class me padhte ho ?
Ans. II nd class me.
Q.4. Apke saath kisne galat kaam kiya hai ?
Ans. Pankaj Bhaiya ne.
S.C. No. 40/14 : State vs. Pankaj : Page 24 of 39 25 Q.5. Kaya galat kam kiya ?
Ans. Apni susu mere pare (tatti karne wala rasta) me dal di.
Q.6. Phir yeh baat apne kisko batai ?
Ans. Apni Mummy ki.
32. The victim was produced for his statement u/s 164 Cr.P.C on 06.06.2013, wherein he deposed as under : "Q. Kaho S.... kaya shikayat hai apko ?
A. Mere ghar ke pass ek dukan hai. Dukan ke pass ek factory hai. Pankaj factory me kaam karta hai. Pankaj ne mujhe factory me bula liya. Us samay, main dukan ke pass khel raha tha.
Q. Phir kaya hua ?
A. Main Pankaj ke pass factory me chala gaya. Pankaj mujhe factory ke upar le gaya tha.
Q. Pankaj ne phir kaya kiya ?
A.. Pankaj ne dabbe me se tel liya. Pankaj ne apne pant aur kachcha utara. Usne tel apni muniya par lagaya. Pankaj ne mere kapre nikale. Usne apni muniya mere pichche jahan se main latrine karta hoon, wahan andar dal di. Usne mujhe niche litaya tha. Usne apne haath se mera munh band kar diya tha.
S.C. No. 40/14 : State vs. Pankaj : Page 25 of 39 26 Q. Phir kaya hua ?
A. Main chillaya. Mujhe bahut dard ho raha tha.
Q. "Muniya kise kahte hai ?
Ans. Jisse susu karte hai.
Q. Aur kaya hua apke saath ?
A. Phir Pankaj ne mujhe chhod diya. Main apne ghar aa gaya. Apne ghar ki chhat par let gaya. Thodi der me, meri mummy aai. Maine Mummy ko bataya, ki mujhe peer/dard ho raha hai. (Shiva ne apne haath ko apne hips par lagakar bataya). Mummy ne kapre nikalkar dekha. Mujhe piche khoon aaya tha.
Q. Aur kuch bataoge ?
Ans. Nahi.
33. The victim S appeared to depose before the court on 05.08.2014 and was examined as PW6. The relevant portion of testimony of PW6 is as under : Q. Batao kaya hua tha ?
Ans. Main khel raha tha, mujhe Pankaj ne bulaya, main wahan gaya.
Q. Kya aap Pankaj ko pahchante ho ?
Ans. Haan. (witness pointed out towards the accused, who was wearing red Tshirt, from the design in the S.C. No. 40/14 : State vs. Pankaj : Page 26 of 39 27 wooden partition and stated that "woh lal Tshirt me piche betha hai".) Q. Phir kaya hua ?
Ans. Accused mujhe factory ke upar le gaya.
Q. Phir kaya hua ?
Ans. Mujhe jameen pe litaya.
Q. Phir kaya hua ?
Ans. Apni susu par tel lagaya, aur mere bhi lagaya. Q. Phir kaya hua ?
Ans. Isne galat kaam kiya.
Q. Kaise galat kaam kiya ?
Ans. Gaand me isne apni susu dal di. (he put his penis into my anus) Q. Phir kaya hua ?
Ans. Main chilaya, isne munh band kar diya.
Q. Phir kaya hua ?
Ans. Phir isne chod diya. Main apni mummy ke pass gaya, aur mummy ko bataya ki mujhe dard ho raha hai. Phir Mummy ne dekha, to Khoon tha.
Q. Khoon kaha se aa raha tha ?
Ans. Mere piche se aa raha tha. (witness pointed out
towards his anal region)
Q. Phir kaya hua ?
S.C. No. 40/14 : State vs. Pankaj : Page 27 of 39
28
Ans. Mummy ne pucha, kisne kiya, maine kaha, wo bhiaya ne, phir main mummy ko lekar factory ke upar gaya, aur bataya, Pankaj bhaiya ne kiya, aur Pankaj bhaiya ko dikhaya.
Q. Phir kaya hua ?
Ans. Mummy aur subne Pankaj ko mara. Nani aur mama bhi wahan par aa gaye.
Q. Phir kaya hua ?
Ans. Phir police aayi.
Q. Phir kaya hua ?
Ans. Police aayi, Mujhe hospital le gai, wahan doctor ne mujhe dekha.
Q. Phir kaya hua ?
Ans. Maine police uncle ko sab bata diya.
Q. Phir kaya hua ?
Ans. Maini police uncle ko wo jagah dikhayi thi, jahan par Pankaj Bhaiya ne ye sab kiya tha .
Q. Pehle bhi court me aye the ?
Ans. Haan. Ek aunti ko sab bataya tha. (Statement of witness was recorded by Ms. Rajani Ranga, ld. M.M.)
34. During crossexamination by learned defence counsel, the victim S deposed as under : S.C. No. 40/14 : State vs. Pankaj : Page 28 of 39 29 Q. Kaya apke papa ne Pankaj se paise liya the ?
Ans. Nahi Q. Kaya apne aaj jo bataya, wo mummu ke kahne se bata rahe ho ?
Ans. Nahi, Mere saath esa hua tha.
Q. Kaya aaj aap jhooth bol rahe ho ?
Ans. Nahi. Main sach bol raha hoon.
Q. Pankaj ne apko kaya kah kar bulaya tha ?
Ans. Usne kaha tha "Aa Ja."
Q. Kaya Pankaj se pahle bhi apki batcheet thi ?
Ans. Nahi.
35. When the statement of the victim u/s 161 Cr.P.C dated 05.05.2013, his statement u/s 164 Cr.P.C Ex. PW2/B and his testimony before the court as PW6 are considered, it is seen that the victim S has been consistent in his said statements about the acts of accused whereby he (accused) committed aggravated penetrative sexual assault upon him. The testimony of the victim child S is duly supported by that of PW5 Reena, mother of the child and PW9 Smt. Leela Devi, grandmother of the child, both of whom, were present at home, when the victim returned to his home at about 10.30 am and was seen to be having excruciating pain by PW5 and PW9 and on inquiry, had told PW5 and PW9 that accused Pankaj, who was residing in room above factory, had done something to S.C. No. 40/14 : State vs. Pankaj : Page 29 of 39 30 him, from backside (anus) and at that time, PW5 checked the clothes (pant/underwear) of victim S and saw blood thereupon. The PW9 also saw redness and swelling in the anal region of the victim S.
36. Further, the medical evidence i.e. MLC Ex. PW10/A of the victim child, on the record, also supports the testimony of the victim child. The PW10 Dr. Tariq Shamshad, who proved the said MLC as Ex. PW10/A by identifying handwriting and signatures of Dr. Shahnawaj, who had examined victim S and had prepared his MLC, has specifically stated that as per the observations on the MLC, Dr. Shahnawaj found that there was blood mixed perianal soakage in anus of patient with acute tear at 6 O'clock position. Further, the PW17 Dr. Shiv Kumar, who proved the handwring and signatures of Dr. Manish on the MLC Ex. PW10/A, deposed that Dr. Manish had examined the patient i.e. victim S and observed that on examination, he found a nail mark present over right cheek near angle of mouth of the victim and one fresh laceration was also seen present over anal region, posteriorly and that faecal matter admixed with some secretion was also seen. The PW18 Dr. Rekha Deewan, is the specialist surgeon and though, she had not examined the patient personally, had discussed the matter with Dr. Shahnawaj on phone. She reiterated the testimony of PW10 Dr. Tariq Shamshad and stated that as per the observations of Dr. Shahnawaj, the nature of injury sustained by child S was simple and that possibility of sexual assault could not be ruled S.C. No. 40/14 : State vs. Pankaj : Page 30 of 39 31 out. A suggestion was put to PW18 that the injury mentioned on the MLC Ex. PW10/A could have been caused due to constipation, she replied by stating that it was possible that injury may have been caused due to constipation, but the clinic findings were required to be corroborated with FSL result for final opinion in view of the history given by the patient.
37. Ld. Counsel for the accused has contended that PW10 Dr. Tariq Shamshad, PW17 Dr. Shiv Kumar and PW18 Dr. Rekha, all have stated that the patient (victim S) could have sustained the injuries on his anal region due to constipation and that the victim S had sustained injury due to constipation and that accused has been falsely implicated in the present case.
38. The submissions made by learned defence counsel cannot be sustained, since none of the doctors ruled out the possibility of sexual assault. Moreover, PW17 has specifically stated, during his cross examination, that in case of chronic constipation, a scar is seen on examination of the anal region, but as per the MLC, Ex. PW10/A, no such scar was observed in the anal region of victim S. Even otherwise, the FSL result Ex. PX is on record, according to which, DNA Finger Printing was performed on the source of exhibit '1a' (underwear of victim), '1d' (Blood in gauze of victim), '2d' (Blood in gauze of accused), '4a' (curtain cloth) and '4b' (Bed Sheet) and it was concluded that the S.C. No. 40/14 : State vs. Pankaj : Page 31 of 39 32 stains i.e. seminal stains on the source of exhibits '1a' (underwear of victim), '4a' (curtain cloth) and '4b' (bed sheet) and blood stains on the source of exhibit '2d' (blood in gauze of accused) are from the same source. The allelic data report of comparison of DNA has also been place on record as Ex. PY. As per PW15, the curtain cloth 4a and bed sheet 4b i.e. Ex. P1 (colly) had been seized from the place of the incident. Thus, the FSL report further confirms that it was the accused Pankaj only and none other than him, who had committed penetrative sexual assault upon victim S, a child less than 12 years of age.
39. It is noteworthy that a specific question was put to the accused in his additional statement u/s 313 Cr.P.C recorded on 15.01.2015 regarding FSL results Ex. PX and PY, but no explanation was given by him as to how, his blood sample matched with the exhibits taken from the victim S and/or his clothes. (clothes of victim S) as also seminal stains on the Ex. P1 (colly) i.e. the the curtain cloth and bed sheet seized by the IO from the room of the accused. The question put to the accused and his response is as under : Q.1. It is in evidence against you that FSL result of DNA Finger Printing Unit was proved on record as Ex. PX and PY and as per Ex. PX, the DNA Fingerprinting was performed on the source of exhibit '1a' (underwear of victim), '1d' (Blood in gauze of victim), '2d' (Blood in gauze S.C. No. 40/14 : State vs. Pankaj : Page 32 of 39 33 of you accused), '4a' (curtain cloth) and '4b' (Bed Sheet) and it has been concluded that the stains i.e. seminal stains on the source of exhibits '1a' (underwear of victim), '4a' (curtain cloth) and '4b' (bed sheet) and blood stains on the source of exhibit '2d' (blood in gauze of you accused) are from the same source. What do you have to say ?
Ans. It is incorrect.
40. The accused has not disputed the findings in the FSL result, nor offered any explanation for the same. In a judgment titled as "Munish Mubar vs. State of Haryana" 2012 X AD (S.C.) 636, the Hon'ble Supreme Court held that it is the duty of the accused to furnish some explanation to the incriminating material put to him, in his statement u/s 313 Cr.P.C, failing which, an adverse inference is liable to be drawn against the accused regarding the correctness of the said incriminating material. In the present case also, the accused has failed to give any explanation for specified findings in FSL result Ex. PX and PY. It has even not been suggested that the samples/exhibits in the case had either been tampered with or manipulated in any manner. The only conclusion which can be drawn, in these facts and circumstances is that FSL result Ex. PX and PY is correct and that accused had committed penetrative sexual assault upon victim S in his room (room of accused) leaving traces of biological evidence on person and clothes of victim S as well as bedsheet/curtain, S.C. No. 40/14 : State vs. Pankaj : Page 33 of 39 34 seized from his room by the IO, which got detected, later on, during examination of exhibits at FSL.
41. Learned counsel for accused has contended that testimony of victim S cannot be believed since the children are prone to tutoring and that in the present case also, the victim S was tutored by his parents to depose against the accused as father of the victim S had taken a loan from the accused, which he did not want to repay.
42. 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 S.C. No. 40/14 : State vs. Pankaj : Page 34 of 39 35 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."
43. In the present case, not only does the testimony of victim child/PW4 inspires confidence, but even other his testimony is duly corroborated by that of PW5 Reena and PW9 Smt. Leela Devi as well as the medical and forensic evidence on record as already observed hereinabove. I find no reason as to why a child of such a tender age, would implicate an innocent person for an offence which was undisputedly committed upon him and caused considerable physical pain and mental trauma to him (victim S).
44. It is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, " A child witness if found competent to depose to the S.C. No. 40/14 : State vs. Pankaj : Page 35 of 39 36 facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
45. Further, in case of Pancchi Vs. State of U.P., AIR 1998 SC 2726, it was held : "It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring."
S.C. No. 40/14 : State vs. Pankaj : Page 36 of 39 37
46. The ratio of above cases is that the testimony of child witnesses is attributed the same kind of credibility that it attached to the statement of any other witness if the testimony is consistent. In the present case the victim S has been consistent on the material particulars with regard to the incident wherein he was brutally sexually assaulted and there is full corroboration of his testimony by PW5 Smt. Reena and PW9 Smt. Leela Devi, as well as by the medical evidence in the form of MLC Ex. PW10/A and the forensic evidence in the form of FSL result Ex. PX and PY.
47. The inconsistencies and discrepancies pointed out by learned defence counsel in statements of prosecution witnesses regarding presence of Rahul, maternal uncle of the victim S at the spot and the fact, whether the mother of the victim had checked his clothes at home or after taking him to the room of the accused, are of minor nature and do not have any consequences on the merits of the case.
48. Ld. counsel for the accused has contended that there is discrepancies in the testimony of PW14, who has stated that there was another family residing in the factory premises besides the accused and that on the day of the incident, Achche Lal and his family were also present in their tenanted premises and the testimony of PW15 SI Virender, who has stated that no other family was residing in the factory, where the incident had taken place, which shows that IO had never visited the place S.C. No. 40/14 : State vs. Pankaj : Page 37 of 39 38 of incident. The lapse on the part of the IO, if any, to visit the place of incident or to join other public persons in investigation, would not be sufficient to discard the cogent and reliable testimony of the victim S and other public witnesses, since, in similar situation, in case of Karnel Singh Vs. State of MP (1995) 5 SCC 518, it has been held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective.
49. Moreover, seizure of exhibits from the place of incident, by the IO has not been seriously challenged by the accused. It is possible that IO failed to inquire about presence of Achche Lal and his family, in another room, near the place of incident, but it cannot be concluded that IO did not visit the place of incident at all. Moreover, accused has not produced said Achche Lal in his defence to corroborate his version that Achche Lal and his family members were also present in their room on the date of incident despite the fact that they (Achche Lal and his family) are still residing in said premises, as is brought out from testimony of PW14 Sh. Gaurav.
50. Coming to the testimony of DW1, it appears that this witness, who is real brother of the accused, has been put forth as a witness as an after S.C. No. 40/14 : State vs. Pankaj : Page 38 of 39 39 thought by the accused. Though, DW1, Gulab Singh Yadav, claimed that he was present, when accused had given a loan of Rs. 10,000/ to the father of the victim child, he could not specify any date, month of year thereof. The DW1 could also not tell the name of the owner or the address of the factory, where the accused was working and hence, it is surprising that he knew the name of the father of the victim child, even though, he had not interacted with him (father of the victim). Moreover, from the testimony of DW1, it appears that accused himself was so hard pressed for finances that he was unable to send money for expenses of his parents and due to this reason, DW1 had even slapped the accused and thus, it is difficult to comprehend how accused could have given alleged loan of Rs. 10,000/ to the father of victim, when he himself was hand to mouth.
50. In the present case from the testimony of victim S and other witnesses examined by the prosecution and the MLC and FSL Result and other documents placed on record by it, I am of the considered opinion that the prosecution has successfully proved the guilt of the accused Pankaj on record, beyond the reasonable doubts. Accordingly, I hold accused Pankaj guilty for the offence u/s 5 (m) of POCSO Act punishable u/s. 6 of POCSO Act and he is convicted accordingly.
(Announced in the open Court ) (Illa Rawat)
(Today on 16.01.2015) Addl. Sessions Judge
(NorthWest)01/Rohini/Delhi
S.C. No. 40/14 : State vs. Pankaj : Page 39 of 39
40
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 40/14) Unique ID case No. 02404R0049172014 State Vs. Pankaj FIR No. : 239/13 U/s : 377 IPC & 6 POCSO Act 2012 P.S. : Vijay Vihar State Vs. Pankaj S/o Jai Parkash 20.01.2015 Present : Ld. Addl. PP for the State.
Convict produced from J.C., with ld. Defence counsel. ORDER ON THE POINT OF SENTENCE In the present case, the convict - Pankaj has been convicted u/s 5 (m) of POCSO Act punishable u/s 6 of POCSO Act.
I have heard the arguments on the point of sentence put S.C. No. 40/14 : State vs. Pankaj : Page 40 of 39 41 forward by Ld. Addl. PP for State and Ld. Defence counsel for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict committed aggravated penetrative sexual assault upon victim child S, a minor boy aged about 6 years (less than 12 years), by inserting his penis into anus of victim child and in view of the serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, learned defence counsel for the convict submits that the convict Pankaj is a young age boy having age of 24/25 years and is unmarried. He further submitted that he is the eldest son of his parents and is having four younger brothers and two sisters and that all his family members are residing in his native village and that the convict had come to Delhi to earn and to support his family and that at the time of alleged incident, the convict was working in a carton factory. It is also submitted that convict belongs to a lower strata of society and has been in custody since last about eleven months. It is lastly submitted that convict is not having previous criminal antecedents and he prays that a lenient view may be taken in this case and sentence for the period already undergone by him may be awarded and he be given a chance of rehabilitation by granting him benefit of probation. S.C. No. 40/14 : State vs. Pankaj : Page 41 of 39 42
4. I have carefully considered the submissions made by Ld. Addl. PP as well as learned defence counsel and have carefully gone through the record of the case.
5. In the present case, the convict Pankaj has been convicted for committing the offence of aggravated penetrative sexual assault upon a minor boy, which is punishable u/s- 6 of POCSO Act. It is relevant to mention here that the victim child was aged about 6 years at the time of the incident and had gone to play outside his house. The convict, who was working in a nearby factory and was residing in a room constructed above the factory, called the victim child to his room, where he committed penetrative sexual assault upon the victim child as a result of which, the victim child sustained injuries on his anal region and remained under treatment for 2/3 days thereafter. Due to acts of the convict, the victim child suffered considerable physical pain and mental trauma. The convict has taken a plea that he is eldest son of his parents and has four younger brothers and two sisters, besides his parents and is required to discharge responsibilities towards them. The testimony of DW1 Gulab Singh Yadav, contradicts the plea taken by the convict, since, it is apparent that convict has only three other brothers, two of whom are residing in native village with his parents, while one i.e. DW1 Gulab Singh Yadav is residing at Delhi and is contributing towards the expenses of his parents. Even S.C. No. 40/14 : State vs. Pankaj : Page 42 of 39 43 otherwise, considering that convict comes from a family comprising of other brothers and sisters, some of whom may be younger than him, his act becomes all the more deplorable since he is expected to exercise restraint and caution while interacting with children. Considering the aforesaid facts and circumstances, I do not find that it is a fit case for any leniency and I hereby sentence convict Pankaj to undergo rigorous imprisonment for life, for having committed offences punishable u/s 6 of POCSO Act. I further impose a fine of Rs. 5,000/ on convict, in default of payment of fine to further undergo simple imprisonment for three month, for the offence punishable, u/s 6 of POCSO Act.
Benefit u/s 428 Cr.PC be also given to the convict.
6. Coming now to the aspect of compensation to the victim, who is a minor boy, 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 S.C. No. 40/14 : State vs. Pankaj : Page 43 of 39 44 the Fundamental Rights of Personal Liberty and Life.
7. Even otherwise, the concept of welfare and well being of children is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children S.C. No. 40/14 : State vs. Pankaj : Page 44 of 39 45 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 S.C. No. 40/14 : State vs. Pankaj : Page 45 of 39 46 develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goaloriented perambulatory introduction."
8. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation to the tune of Rs. 2,00,000/ (Rs. Two lac only) to the victim child. The said amount shall be used for his welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
9. A copy of this order be sent to learned Secretary, D.L.S.A, North West Distt., Rohini Courts, Delhi and Director, Department of Woman and Child Development, GNCT of Delhi, for information and necessary action under intimation to this Court.
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10. 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.
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 20.01.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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