Delhi District Court
Sc No: 58061/16 State vs . Md. Asraf on 13 February, 2017
SC No: 58061/16 State Vs. Md. Asraf
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE01, NORTH
ROHINI, NEW DELHI
In the matter of:
S. C. No. 58061/16
FIR No. 537/13
Police Station Narela
Under Section 354D/506/509 IPC
& 12 POCSO Act.
State
Versus
Mohd. Asraf,
S/o. Mohd. Sagir,
R/o House No.875,
Pocket11, SectorA6,
Narela, Delhi.
Permanent Address:
C/o Village Siotna,
PS Mithan Bazar,
District Samastipur,
Bihar. ......Accused
Date of institution 16.11.2013
Judgment reserved on 24.01.2017
Judgment Pronounced on 13.02.2017
Decision Convicted
Judgment 1 of 14
SC No: 58061/16 State Vs. Md. Asraf
J U D G M E N T
1.Accused is facing trial in the present case on allegations of stalking, harassing and threatening prosecutrix "B", a girl aged around 15 years.
2. FIR in question was registered on complaint of prosecutrix who alleged that accused was stalking her and she noticed that he used to stand in front of her school for past one and a half months. Prosecutrix alleged that accused stated to her that he loves her and insisted that she should to talk to him despite refusal of prosecutrix to do so. On refusal of prosecutrix, accused threatened to kidnap her, and thereafter, prosecutrix complained about the acts of the accused to her parents who tried to make the accused understand. On 13.08.2013, accused was roaming near the house of prosecutrix and was calling her by gestures upon which Judgment 2 of 14 SC No: 58061/16 State Vs. Md. Asraf prosecutrix informed her sister about the presence of accused. Sister of prosecutrix caught hold of accused and called at 100 number but accused managed to escape from there before arrival of police. Prosecutrix stated that accused was stalking and harassing her as such, a lawful action be taken against him.
3. Accused was arrested and chargesheeted. Charge for offence punishable u/s 354D/509/506 IPC and u/s 12 POCSO (Protection of Children from Sexual Offences) Act was framed against accused. Accused pleaded not guilty and claimed trial.
4. Prosecution examined 12 witnesses.
P Name of Nature of witness Documents proved W witness 1 Prosecutrix B Prosecutrix Supported prosecution case, proved her complaint Ex PW1/A, her statement recorded u/s 164 Cr.P.C as Ex PW1/B 2 Smt M Mother of prosecutrix Narrated the incident & supported prosecution case.
3 HC Laltesh Duty Officer FIR & his endorsement on rukka
Judgment 3 of 14
SC No: 58061/16 State Vs. Md. Asraf
as Ex PW3/A & B.
4 Ms. R Sister of prosecutrix Supported prosecution case
5 Mr. M Father of prosecutrix Supported prosecution case and
arrest of accused vide memo as
Ex PW5/A & B
6 Ct. Mukesh Police Got registered FIR
7 Ct Kavita Police Accompanied IO to spot
8 Ct Babu Khan DD Writer DD. No.112 B as Ex PW8/A in
respect of information about
apprehension of a boy who
misbehaved with a girl.
9 Ct. Satyaveer Police Proved arrest, personal search,
disclosure statement (Ex PW9/A)
of accused.
10 SI Sajjan Investigating Officer Prepared rukka as Ex. PW10/A,
Singh site plan as Ex. PW10/B. Got
recorded statement of prosecutrix
U/s 164 Cr.P.C, arrest of accused
11 Sh.Sachin Ld. MM Recorded statement of prosecutrix
Gupta U/s 164 Cr.PC. as Ex. PW1/B
12 Pawan Kumar Sub-Registrar, Birth Proved date of birth as & Death, MCD 07.07.1998 as per record as Ex.
PW12/A
5. In his statement recorded under 313 Cr.P.C accused stated there was friendship between him and prosecutrix but her parents were against their friendship. On date of incident, he went to see off prosecutrix but elder sister of prosecutrix called at 100 Judgment 4 of 14 SC No: 58061/16 State Vs. Md. Asraf and lodged a false complaint. Due to animosity between his family and family of prosecutrix parents of prosecutrix pressurized her to depose against him.
6. It has been contended on behalf of the accused that there are material contradictions and improvements in the testimony of prosecutrix. It is also submitted that all prosecution witnesses have given different versions of incident and hence, their testimonies cannot be relied upon to hold accused guilty.
7. Per-contra Ld. Addl. PP has submitted that the statement of prosecution witnesses are reliable & trustworthy. It is submitted that prosecution is able to prove its case beyond reasonable doubt and hence, accused is liable to be convicted.
8. I have heard the rival contentions and have gone through the material on record.
Judgment 5 of 14
SC No: 58061/16 State Vs. Md. Asraf
9. Age of prosecutrix: Before dwelling upon incident of sexual assault, let us find out what was age of prosecutrix at the time of incident. PW12 Pawan Kumar, Sub-Registrar, Birth & Death, MCD produced the record in respect of birth of prosecutrix. As per the birth certificate Ex. PW12/A, the date of birth of the victim is 07.07.1998. This goes to show that on the date of incident (13.08.2013), prosecutrix was about 15 years old and a "Child" within the meaning given under POCSO Act.
10. Version of prosecutrix and material witnesses: After the initial complaint of the prosecutrix, her statement Ex.PW1/B was recorded u/s 164 Cr.P.C and the English translation of the said statement reads as under: "I am studying in .........Govt. School. My school gets over at 1.30 p.m. One boy, whose name is Asraf, for past one and a half months stands outside my school at the time the school gets over. Asraf threatened me that if I would not talk to him, then, he would kidnap me. Asraf follows me. He roams around my house. Asraf also resides in Pocket11. About fifteen days before, I narrated the incident to my mother and sister. My mother called Asraf and made him understand and Judgment 6 of 14 SC No: 58061/16 State Vs. Md. Asraf stated to him that if he would not mend his ways, he would be handed over to police. Asraf admitted his guilt and stated that he would not harass me. But, on 12.08.2013, Asraf again came to my school and when the school got over, Asraf followed me. I told this incident to my parents. On 13.08.2013 at about 8.30 p.m., Asraf made gestures while standing outside my house. I told this fact to my elder sister "R" and R went outside and apprehended Asraf. My parents also came outside. Many neighbors gathered there. My sister called the police. Asraf, out of fear, got released his hand and ran away from there. Police came. I, along with my parents went to the house of Asraf but he was not found there. His father met us. Police recorded my statement. Parents of Asraf and his acquaintance sat in our house till 12.00 midnight to compromise the matter but we refused to compromise. I do not want to say anything else."
11. Testimony of prosecutrix reads as under:
" ........... My school gets over at about 1.30pm. When I used to go home after school, I used to see Mohd. Ashraf standing in the way to my house and he used to say me that, he loved me. I stopped him a number of times, but, he was adamant and he used to threaten me that, he would lift me, in case, I did not agree to the same. I informed the same to my parents. My parents spoke to Mohd. Ashraf and asked him to mend his ways. But, he did not care about that. On 13.08.2013 I saw that, Mohd. Ashraf was roaming around my house around 8.30pm and he was making gestures for calling me out. I informed the same to my elder sister Rinku and she in turn apprehended Mohd. Ashraf and called Judgment 7 of 14 SC No: 58061/16 State Vs. Md. Asraf the police on 100 number. Till the police arrived at the spot, prior to that, Mohd. Ashraf had released him from the clutches of my elder sister and ran away from there. Mohd. Ashraf was harassing me for the last about 1 or 1 ½ month. Police came there and recorded my statement ......"
12. On appreciation of testimony of prosecutrix, it is evident that prosecutrix made allegations against accused in two parts. One set of allegations constitute stalking & harassing. In second limb of allegations prosecutrix alleges that on 13.08.2013, her sister caught hold of accused while accused was making gestures to her when she was standing in her house.
13. During course of her cross-examination, prosecutrix categorically denied that she was having friendship with accused and when she was talking to him on 13.08.2013, her family members saw them and because of this reason, accused was falsely implicated by them. Although the prosecutrix admitted that after filing of the complaint with the police, accused did not harass her but throughout her cross-examination, she denied that the Judgment 8 of 14 SC No: 58061/16 State Vs. Md. Asraf accused did not harass her or the allegations were made by her because of rivalry between her family and family of accused.
14. Despite cross examination, no material contradiction has come on record in the testimony of the prosecutrix. Prosecutrix has remained consistent throughout in respect of the acts of accused. Her testimony is in line with complaint lodged by her and her statement recorded U/s 164 Cr.P.C. No motive has been attributed to the prosecutrix as why she would make a false complaint against accused. Testimony of prosecutrix in respect of allegations against accused is truthful and reliable.
15. As far as allegations u/s 509 IPC is concerned Section 509 IPC, makes it clear that in order to bring an act committed by a person within the purview of the section, the act must have been committed with the intention to insult the modesty of any woman or to intrude upon the privacy of such woman.
Judgment 9 of 14
SC No: 58061/16 State Vs. Md. Asraf
16. Act of the accused to make gestures to seek attention of prosecutrix and to call her is clear cut intrusion in her privacy. As stated above, no material contradiction has come out in cross examination of prosecutrix nor any motive has been attributed to prosecutrix as to why she would lodge a false complaint against the accused. Testimony of the prosecutrix is reliable & trustworthy and she has remained consistent throughout her all statements.
17. Besides the testimony of prosecutrix, prosecution examined mother, sister and father of the prosecutrix as PW-2, 4 & 5 respectively and all the witnesses in unison deposed that the prosecutrix disclosed to them that accused used to stalk her while she used to go to school and used to harass her outside her school. All of them deposed, prosecutrix when complained to them in respect of behavior of accused, parents of prosecutrix went to the house of accused to make him understand but accused did not mend his ways and kept on roaming near their house.
Judgment 10 of 14
SC No: 58061/16 State Vs. Md. Asraf
18. Incident of 13.08.2013 is duly supported by version of sister of prosecutrix(PW-4) who deposed that at about 8:00 PM, prosecutrix informed her that accused was roaming around their house and making gestures towards her. Sshe went there and stopped accused and asked him as to why he was doing so. After accused was slapped by the sister of prosecutrix, he apologized for his acts also.
19. Despite their cross-examination, no material contradictions came out rather testimony of all prosecution witnesses, makes it clear that the prosecutrix was stalked and harassed by the accused and lastly on 13.08.2013 when the accused was found roaming near the house of prosecutrix, he was apprehended by the sister of prosecutrix and thereafter the complaint was made to the police.
Judgment 11 of 14
SC No: 58061/16 State Vs. Md. Asraf
20. Although it has been contended on behalf of the accused that despite the fact that the prosecutrix alleged that the accused used to be present outside her school, no independent witness or school student or class mate was made to join the investigation who could depose about presence of accused outside the School. I am afraid that this contention raised by Ld. Defence Counsel does not hold good as the person who is stalked or is regularly followed by another person can better tell about being stalked and in such kind of allegations, non-joining of any independent witness does not dent the case of prosecution in any manner.
21. Defence of accused: Accused has taken a defense that there was friendship between him and prosecutrix but her parents were against their friendship. Accused did not lead any evidence to prove his defense. More so, if at all prosecutrix was friend of accused then no reason is forthcoming that why would she depose against him. Burden to prove defence under POCSO Judgment 12 of 14 SC No: 58061/16 State Vs. Md. Asraf Act is very heavy and accused has not been able to discharge the said burden. Therefore, accused has miserably failed in proving his defence to dent the case of prosecution.
22. Thus, from the discussions made herein above, the following conclusions emerge:-
a) prosecutrix was about 15 years old at the time of incident.
b)Testimony of prosecutrix is found to be trustworthy and reliable in relation to her stalking, harassment, making gestures & threat given by accused
c)Testimony of prosecutrix is found to be trustworthy and duly finds corroboration from testimony of her parents & sister.
d) Incident dated 13.08.2013, finds corroboration from the testimony of parents & sister of prosecutrix.
e) Accused has failed to establish his defence.
23. Accordingly, accused stands convicted for the offence of stalking, threatening, making gestures and sexually harassing prosecutrix that is for the offence punishable U/s 354D/506/509 IPC and U/s 12 POCSO Act.
Judgment 13 of 14
SC No: 58061/16 State Vs. Md. Asraf
Matter now be listed for hearing arguments on quantum of sentence on 20.02.2017.
Announced in the open court on 13th day of February, 2017.
(GAUTAM MANAN)
ASJ01:NORTH:ROHINI:DELHI
Judgment 14 of 14