Delhi District Court
Sc No. 121/14 : Fir No. 417/14 : Ps ... vs Ram Swaroop on 23 July, 2016
SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 121/14)
Unique Identification No.: 02404R0182122014
State V/s Ram Swaroop
FIR No. : 417/14
U/s : 376 IPC
& 6 of POCSO Act
P.S. : Shalimar Bagh
State V/s Ram Swaroop @ Ram Sewak
S/o Sh. Bhoodhar
R/o Ravi Tent House, Gali no. 1,
Haider Pur, Delhi.
Permanent Address
Distt. Shahjahan Pur, Mohalla Dilla Jaak
Near Ram Nagar Colony, H. No. 60, UP
Date of institution of case : 06.06.2014
Date of arguments : 08.07.2016
Date of pronouncement of judgment : 20.07.2016
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SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop
J U D G M E N T:
1.The facts of the case as borne out from the record are that on 08.05.2014, after receipt of DD no. 51A, SI Sumedha along with Ct. Krishan Gopal had gone to Dr. B.S.A Hospital, Rohini, where child victim A, aged about 7 years (hereinafter referred to as 'child victim') was found under treatment and after her medical examination, her MLC and sealed exhibits were collected. Thereafter, W/SI Sumedha made inquiries from the child victim in the presence of her mother and her statement was recorded in questionanswer form to the effect that accused, who was father of her friends Chandni and Kiran had taken her to khadar (secluded place) on the pretext of giving her toffee and there, accused removed her pant and underwear and inserted his finger into her private parts and when she started weeping, he left that place and she returned to her home and narrated the entire incident to her mother.
On the basis of aforesaid statement of the child victim, the present case was registered and further investigation in the matter was carried out by SI Sumedha, who seized the sexual assault kit of the child victim. Accused was apprehended and arrested and his disclosure statement was recorded. At the instance of accused, site plan of the place of incident was prepared. Medical examination of the accused was got conducted and his potency test was also got conducted. After discharge of the child victim from the hospital, her statement u/s 164 Cr.P.C was got recorded. SI Sumedha collected the birth certificate of child Page 2 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop victim. After conclusion of the investigation, the charge sheet was prepared and filed in the court.
2. After supplying the copies of the charge sheet, arguments on the point of charge were heard and on 07.06.2014, charges u/s 363/366 IPC and 5 (m) of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "Act"), punishable u/s 6 of Act, alternatively u/s 376 (2) (i) IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 12 witnesses, whereafter the PE in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the child victim on the tutoring of her mother as there was a dispute between him and mother of the child victim. He further stated that he had made a written complaint to the SHO about mother of the child victim as she being a women of easy virtue and her modus opendi was to net the innocent persons and then get married to them and thereafter, either falsely implicate them or to leave them after extorting money, The accused led the evidence in his defence and examined DW1 Ct. Jaideep, DW2 SI Krishan and also examined himself as DW3.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State Page 3 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop and Sh. R.K. Singh, learned Legal Aid counsel for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories :
(a) Child victim and her family members
(b) Evidence with regard to the age of the Child victim
(c) Medical Evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation
(a) Child victim and her family members
5. Child victim, in the present case was examined as PW9 and the relevant portion of her testimony is as under : "xxxxx Q: Beta Kya hua tha?
A. Wo uncle, mujhe toffee dene ke bahane Khadar
mein le gaye the.
(The meaning of Khadar has been explained by
IO, WSI Sumedha as a lonely place surrounded by
bushes).
Q. Beta phir kya hua?
A. Wahan par un uncle ne meri pant aur
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SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop
underwear utaar di thi aur apne susu mere susu
mein daalne lage. Mein jor se chilai, to mera muh daba diya.
Q. Beta, phir kya hua?
A. Witness has answered this question while
drawing a picture of a ball as follows:
Unhone, phir meri susu mein ungli daal di aur
mein rone lagi.
Q. Beta, phir kya hua?
A. Wo mujhe wahi chod kar bhag gaye.
Q. Beta, phir kya hua tha?
A. Phir hum akele hi ghar aa gaye. Jab hame toilet
lag raha to, wahan se hame khoon aa gaya. Phir humne
mami ko saari baat bata di.
xxxx"
The witness correctly identified the accused in the court by pointing her finger towards him and stating that "ye hi uncle the".
Page 5 of 27SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop During crossexamination by ld. Defence counsel, the child victim stated as under : "xxx Q. Beta, kya wo uncle aapke aur aapke mami ke saath aapke ghar par rehte the?
A. Haan. (Witness had nodded her head in
affirmative).
Q. Beta, aapke behen aur bahiayo ke naam kya hai?
A. Meri behene Kajal, Indu hai aur bhai Sagar aur
Raj hai.
Q. Beta, aapke ghar mein kaun kaun se bhai / behen
rehte hai?
A. Meri behen Indu gaon me rehti hai. Mein apne
ghar mein apni behen Kajal, bhai Sagar aur Raj aur
mami ke saath rehti hu.
Q. Beta, jo aaj aapne uncle ke bare mein bataya hai
wo aapne apne se bataya hai ya mami ne aisa bolne ke
liye aapko kaha tha?
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SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop
A. Nahi, mami ne nahi bataya. Uncle ne aisa kiya
tha.
Q. Beta, kya police aunty ne aapko aaj aisa kehne
ko kaha tha?
A. Nahi. (The witness has nodded her head in
negative)
Q. Beta, aapke ghar se khadar jahan uncle aapko le
kar gaye the, aapke ghar se paas hai ya door hai?
A. Wo mere ghar se door hai.
xxx"
6. PW8 Meena, mother of the child victim, deposed that accused, who was a widower having two daughters namely Kiran and Chandan was known to her and about 34 months prior to the date of incident, he had offered her (as she was also a widow) to stay at her house with his daughters, to which she had not objected, as he was friend of her soninlaw and her children used to call him Uncle. She further deposed that about one year back, in the summer season, her daughter Kajal had informed her that child victim was having some problem as blood was Page 7 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop coming from her private part while urinating and after coming to know this, she immediately rushed to home and on inquiry, child victim told her that accused had taken her to "Khadar" and thereafter put his finger in her vagina, due to which blood had come and then, accused had run away leaving her alone at Khadar. She further deposed that she took child victim to a doctor, who advised her to take care child victim to BSA Hospital, she accordingly took her there, where she was given treatment. She further deposed that after receiving information from the hospital authorities, police reached at the hospital, made inquiries from her as well as child victim, recorded the statement Ex. PW8/A of child victim. She further deposed about internal medical examination of child victim vide MLC Ex. PW 4/A and about getting statement of child victim u/s 164 Cr.P.C, recorded by the police.
During crossexamination by learned defence counsel, she stated that prior to the incident, there had been police complaints between her and the accused and said complaints were made by her against the accused as he was not paying the use and occupation charges of her house and once he had caused injuries upon her head. She further state that she never got married to accused. She denied having stated to the police that she had got married to accused about 34 months prior to the date of incident and the accused having been residing in her tenanted house for the last about one year from the date of incident. (However, she was confronted qua this fact with her statement recorded by the police). She further stated that the incident had taken place after about 34 days of accused causing Page 8 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop injuries on her head. She further stated that she had made complaint to the police against the accused about the injuries received by her and she was called in the PS with regard to said complaint, but she did not go to PS. She admitted that there used to be quarrel between her and accused, but she had never gone to PS in that regard. She further stated that in the evening itself, she had taken the child victim to a private doctor, who advised her to take her to hospital as it was a medico legal case. She further stated that child victim remained admitted in BSA hospital for 15 days thereafter. She further stated that distance between her house and Khadar was about 100 metres and at the Khadar, there were no residential houses and there was a railway line around. She denied that she had compromised the matter with the accused in the PS with regard to her quarrels or she had threatened the accused of false implication.
(b) Evidence with regard to age of the Child victim
7. The prosecution has examined PW1 Ms. Seema Rani, teacher, MC Primary School, Haider Pur1, Delhi, who has produced the school record of the child victim and proved the same as Ex. PW1/A to Ex. PW1/C and deposed that as per the school record, child victim was admitted in 1 st class in her school and her date of birth was 03.11.2006. The defence did not dispute the age of the child victim.
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(c) Medical and Forensic evidence
8. PW3 Dr. Gopal Krishan, Medical Officer, BJRM Hospital, proved the MLC of accused as Ex. PW3/A by identifying the handwriting and signatures of Dr. Munindra Kumar and deposed that as per the MLC, after initial examination, Dr. Munindra Kumar had referred the accused to Forensic Expert for further examination.
9. PW4 Dr. Richa, Medical Officer, Dr. B.S.A Hospital, proved the MLC of child victim as Ex. PW4/A by identifying the handwriting and signatures of Dr. Annu Khatri and deposed that as per the observations made by Dr. Annu Khatri, hymen of the child victim was not torn and there was slight bleeding present. She further deposed that all the samples were taken, duly sealed and handed over to the accompanying police official.
10. PW5 Dr. R.S. Mishra, CMO, BJRM Hospital, proved the MLC of accused as Ex. PW5/A by identifying the handwriting and signatures of Dr. Pappu Marandi and deposed regarding the same.
11. PW11 Dr. Bhim Singh, Incharge Mortuary of BJRM Hospital, had examined the accused and given report Ex. PW11/A about his potency and deposed regarding the same.
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(d) Evidence of Formal witnesses
12. PW2 HC Ravinder Singh was lying posted as Duty Officer in PS Shalimar Bagh at the relevant time and he proved the endorsement made by him on the rukka as Ex. PW2/A, computerized copy of FIR as Ex. PW2/B and certificate u/s 65B of Evidence Act as Ex. PW2/C.
13. PW10, Ms. Meenu Kaushik, ld. M.M, in her evidence has proved statement of child victim as Ex. PW10/B, recorded by her under Section 164 Cr.P.C on 13.05.2014.
(e) Evidence of police officials of investigation
14. PW12, WSI Sumedha, Investigating Officer of the case, deposed that in the intervening night of 07/08, May, 2014, after entrustment of DD No. 51A, she along with Ct. Krishan Pal had gone to at BSA Hospital and found child victim admitted there and after collecting the MLC Ex. PW4/A of the child victim, she seized the sexual assault evidence collection kit of the child victim vide memo Ex. PW12/A. She further deposed that thereafter, she recorded the statement Ex. PW 8/A of the child victim and on the basis of said statement, she made her endorsement on rukka Ex. PW2/A and got the case FIR registered through Ct. Krishan Gopal and recorded the statement of witnesses on that day. She further deposed about arrest and personal search of the accused vide memos Ex. PW6/A Page 11 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop and Ex. PW6/B, about recording of disclosure statement Ex. PW6/C, preparation of the site plan Ex. PW12/B of the place of incident, at the instance of accused, about getting the statement of child victim u/s 164 Cr.P.C recorded vide her application Ex. PW10/A and about collecting copy thereof vide application Ex. PW10/D. She further deposed about collecting the age proof Ex. PW1/1 of child victim from her first attended school, about collecting her MCD Birth certificate Ex. PW12/C from her mother and about its seizure vide memo Ex. PW12/D. She further deposed about producing the child victim before CWC and about restoring her custody to her mother vide order Ex. PW12/E. During crossexamination by learned defence counsel, she denied that the accused had been falsely implicated in this matter at the instance of the mother of the child victim or during the course of investigation, she having come to know that the mother of child victim had been indulging into selling and purchasing of minor girls. She further denied that she had not conducted proper investigation in the matter and whatever investigation was conducted was as per the whims and fancies of the mother of child victim. She further denied that during the course of investigation, she had come to know that the mother of child victim was a woman of easy virtue and her modus operendi was to net innocent persons and then get married to them and thereafter either falsely implicate them or to leave them after extorting money. She further denied that during the course of investigation, it had come to her knowledge that the mother of child victim wanted the daughters of accused to be dragged to the flesh trade, which was strongly opposed by the Page 12 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop accused and as a consequence whereof he was falsely implicated in the case. She further denied that she had also come to know that accused had already made several complaints to SHO PS Shalimar Bagh apprehending his false implication in a case as well threat to his life from the hands of the mother of child or she had not placed on record the copies of previous complaints made by the accused against the mother of child victim and her associates.
15. PW6 Ct. Suresh, had joined the investigation of the present case with PW 12 WSI Sumedha on 09.05.2014 at the time of apprehension, arrest and personal search of the accused and at the time of his medical examination and deposed regarding the same.
16. PW7 Ct. Kishan Gopal, had joined the investigation of the present case with PW12 WSI Sumedha on 08.05.2014 and deposed that on that day, he had accompanied the IO to BSA Hospital, where child victim was found admitted and thereafter, on the directions of IO, he had taken rukka to the PS and got the case FIR registered and then handed over the copy of FIR and rukka to the IO.
Arguments advanced at bar
17. Ld. Addl. PP for the State has very vehemently argued that the child victim has been consistent in her statements Ex. PW 8/A, Ex. PW 4/A, Ex. PW 10/B and the evidence recoded in court with regard to the spot of incident as well as the Page 13 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop process of commission of sexual assault upon her. The age of the child victim has not been disputed by the defence. It is further argued that the medical evidence duly corroborates the commission of sexual assault upon the child victim.
18. Per contra, Ld. Legal Aid Counsel (LAC) has very vehemently argued that the accused has been falsely implicated in this case by PW8 Smt. Meena , the mother of the child victim with whom the accused had married on 15.01.2014. After getting married with PW8 the accused found her to be a lady of easy virtues whose modus operandi was to trap the innocent persons and later on falsely implicate them for extortion of money. In this regard, ld. LAC has relied upon two complaints one dated 16.04.2014 and another dated 21.04.2014 Ex. DW 2/A and Ex. PW 1/1 respectively made by the accused to the police . It is next contended that the child victim is a child of tender age who was tutored by PW8 to level false allegations of sexual assault against the accused. In the end it is argued that there are improvements in the statements of child victim on several stages and in the court she made substantial improvement over and above the statements made by her during investigation.
19. I have duly considered the arguments advanced at bar. The first statement of the child victim which came on record is in the form of recitals in her MLC Ex. PW 4/A wherein she had stated that an unknown person had taken her to khadar ( a deserted place) on the pretext of giving her toffees and there he had removed her Page 14 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop clothes and inserted his penis into her vagina and had also inserted his finger therein as a consequence whereof she had bled pervaginum . Whereas in her next statement recorded by the IO she had described the person who had taken her to Khadar to be the father of Chandni and Kiran and there he had inserted his finger in her vagina. In her statement recorded U/S 164 CrPC i.e. Ex. PW 10/B she had again described that person to be the father of Chandni and he having inserted his penis and finer in her vagina. In her evidence recorded in the court she had reiterated her stand taken by her in her statement recorded U/S 164 CrPC. In her crossexamination the defence could not shake her credibility. The medical evidence Ex. PW 4/A also clearly supports the allegations of the child victim.
20. Ld. LAC has questioned the veracity and credibility of child victim on the ground that in Ex. PW 4/A she had termed the person as unknown whereas in her later statements she had referred him to be the father of Chandni and Kiran. It has been further pointed out that in Ex. PW 8/A she had stated that the said person had inserted only his finger into her vagina. On the basis of aforesaid contradictions it has been argued that the child victim is not a reliable witness.
21. I am conscious of the fact that the small children are gullible and pliable. They live in the world of make believe and they have the tendency to obey their parents. However, that does not mean that the child victim can never be a competent witness. It is a well settled law that the conviction on the sole evidence Page 15 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop of a child witness is permissible if such witness is found competent to testify by the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, "xxx A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The 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.
xxx"
22. In case of Pancchi Vs. State of U.P., AIR 1998 SC 2726, it was further held : "xxx It is not the law that if a witness is a child his evidence shall be Page 16 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop 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.
xxx"
23. It has also been held by Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, that : "xxx There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person.
Page 17 of 27SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop 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.
xxx"
24. In this case, if all the aforesaid statements of child victim are carefully analyzed then the contradictions pointed out by the Ld. LAC will halter shelter into oblivion. In Ex. PW 4/A and all the other statements of child victim she could not tell the name of the accused. It is an admitted fact that the accused is the father or children Chandni and Kiran. At the time of recording of alleged history the concerned Doctor might have asked the name of the assailant but the child victim could not tell his name and as such the Doctor might have recorded the same to be an 'unknown' person. Therefore, recording of word ' unknown person' in Ex. PW 4/A is of not much significance in this case. As far as Ex. PW 8/A is concerned that was the first statement made by the child victim to the police and such a tender aged child may get baffled with the presence of police and in that condition she might not have stated about the insertion of penis by accused in her vagina. Leaving aside this statement, in all her other statements the child victim is consistent that the accused had not only inserted penis but had also inserted his Page 18 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop finger into her vagina. Even at the time of conducting the medical examination of the child victim she had bleedings pervaginum which clearly indicates that she had been subjected to penetrative sexual assault. No suggestion was given to the child victim in her crossexamination that the bleedings pervaginum was on account of some other fact like infection, itching or by some other object.
25. As far as the character and conduct of PW8 is concerned, the Ld. LAC has argued that she is a lady of easy virtues but the accused has not placed on record any material to substantiate the said fact. The reliance has been placed only on two police complaints Ex. DW2/1 and Ex. DW1/1 which are identical. It is noteworthy that on these complaints the police inquiry was conducted and no substance in the said complaints was found which is evident from the report Ex. DW 1/ 2 itself. The said complaints could be an anticipatory attempt on part of the accused to thwart any kind of action against him by the mother of child victim.
26. There is another important fact which needs to be noticed and the same is a drawing (Annexure P2) made by the child victim while her evidence was being recoded wherein she had depicted small ball which is in the shape of a small doll and she had coloured it green and she had also made drawing of a sharp edged object bigger than the doll and coloured the same red. Some insight could be gathered from these two pictures relating to the mental state of child with regard to commission of sexual assault upon her. The red colour has a strong significance Page 19 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop which may be indicative of the fact that the child victim had bled pervaginum after insertion of penis or finger in her vagina by the accused and the green colour small doll prima facie indicates the helplessness of the child victim.
27. The argument of the LAC that by not examining girl Kajal, the another daughter of PW8 the prosecution case has suffered a great deal. I do not agree. The role assigned to Kajal in the matter is that she had informed PW8 about the commission of sexual assault upon child victim by the accused on 07.05.2014. PW 8 has duly stated the said fact, therefore, the nonexamination of Kajal is not fatal to the prosecution case at all.
28. In view of the above discussion, the prosecution has been able to prove the commission of charged offences i.e. U/S 363/366 IPC and Section 6 of Act against the accused. The accused Ram Swaroop is accordingly stands convicted of the above offences. Let he be heard on the point of sentence.
Announced in the open Court (Vinod Yadav)
on 20.07.2016 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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IN THE COURT OF VINOD YADAV:ADDL. SESSIONS JUDGE01 (NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI (Sessions Case No. 121/14) Unique Identification No.: 02404R0182122014 State V/s Ram Swaroop FIR No. : 417/14 U/s : 376 IPC & 6 of POCSO Act P.S. : Shalimar Bagh State V/s Ram Swaroop @ Ram Sewak S/o Sh. Bhoodhar R/o Ravi Tent House, Gali no. 1, Haider Pur, Delhi.
Permanent Address Distt. Shahjahan Pur, Mohalla Dilla Jaak Near Ram Nagar Colony, H. No. 60, UP ....Convict Page 21 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop 23.07.2016 ORDER ON SENTENCE Pr: Ld.Addl.PP for state.
Convict produced from J.C with Sh. R.K. Singh, from DLSA ORDER ON THE POINT OF SENTENCE In the present case, the convict - Ram Swaroop has been convicted for offences punishable u/s 363/366 IPC and Sec. 6 of POCSO Act, 2012.
I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and learned legal aid counsel , for the convict.
2. The learned Addl. PP has very vehemently argued that convict had committed aggravated penetrative sexual assault upon child victim, a minor girl aged about 7 years, after kidnapping her and that in view of the serious nature of offences, the convict does not deserve any leniency and she prays that maximum sentence prescribed under Section 6 of the Act may be awarded to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned Legal Aid counsel for the convict has argued that convict is aged about 47 years and has two unmarried daughters and an old aged mother to support. He further submits that at the time of alleged incident, convict was working as a electrician and was earning his livelihood. He further submitted that convict is first Page 22 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop time offender having clean antecedents and he has remained in Jail for a period of 26 months, during trial of the case. He prays that in view of the aforesaid circumstances of the convict, a lenient view may be taken in sentencing the convict.
4. I have given thoughtful consideration to the arguments advanced by Bar by both the sides and to the facts and circumstances of the case in totality. The offence, for which the convict has been convicted in the matter, is highly derogatory. It stands proved that the convict, who himself was having three daughters, had taken the child victim to khadar (secluded place) and committed aggravated penetrative sexual assault upon her by inserting his penis and finger into her vagina, however, I cannot loose sight of the family circumstances of the convict, therefore, I am inclined to take lenient view in the matter, I hereby award the following sentence to convict Ram Swaroop :
(i) For offence u/s 363 IPC, the convict is sentenced to rigorous imprisonment for three years along with a fine of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one month.
(iii) For offence u/s 366 IPC, the convict is sentenced to rigorous imprisonment for a period of three years along with a fine of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one month.
(iii) For offence punishable u/s 6 of POCSO Act, the convict is sentenced to rigorous imprisonment for a period of 10 (ten) years along with fine of Rs. 5,000/, in default of payment of fine, further SI for a period of six months, for the offence u/s 6 of POCSO Page 23 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop Act.
All these sentences shall run concurrently.
Benefit of Section 428 Cr.P.C is accorded to the convict.
5. Coming now to the aspect of compensation to the prosecutrix, the Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
6. Even otherwise, the concept of welfare and well being of children is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into Page 24 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire selfconfidence and self respect and a balance view of life with full appreciation and 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 Page 25 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goaloriented perambulatory introduction."
7. Therefore, in order to provide Restorative and Compensatory Justice to the victim girls, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation of Rs. 10,000/ (Rs. Ten thousand only) to the child victim. The said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
8. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that if he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
A copy of judgment and copy of order on sentence be supplied free of cost to convict against receipt.
File be consigned to record room.
Page 26 of 27 SC No. 121/14 : FIR No. 417/14 : PS Shalimar Bagh : State V/s Ram Swaroop (Announced in the open ) (Vinod Yadav) (Court on 23.07.2016) Addl. Session Judge (NorthWest)01 Rohini/Delhi Page 27 of 27