Delhi District Court
Sc No: 43/13 State vs . Jaipal on 24 March, 2015
SC No: 43/13 State Vs. Jaipal
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 43/13
FIR No. 453/12
Police Station Mangol Puri
Under Section 376 (2)(f) IPC &
6 POSCO Act.
ID No. 02404R0-050142013
State
Versus
Jaipal
S/o Sukkan Singh
R/o S-Block, Shiv Mandir,
Mangolpuri, Delhi. ......Accused
Date of institution 26.02.2013
Judgment reserved on 05.03.2015
Judgment Pronounced on 24.03.2015
Decision Convicted
Judgment 1 of 22
SC No: 43/13 State Vs. Jaipal
JUDGMENT
1. The case of the prosecution is that on 29.11.2012 in the evening, daughter of the complainant aged around 8 years informed her that she was feeling pain in her private part. Upon asking, victim informed her mother that a person who is living in Mandir had called her and took her in a room. Thereafter the said person removed undergarment of the victim and inserted his penis in her private part. When she started weeping then the said person sent her home and after putting the clothes, she came back to home. At that time, husband of the complainant was not at home. On the next morning, when the husband of the complainant came home, the complainant reported the matter to the police.
2. Upon the complaint lodged by the complainant, accused was arrested. The charge for the offence punishable U/s 376(2)(f) IPC & u/s 6 of POCSO (Protection of Children from Sexual Offences) Act, 2012 was framed against the accused on 21.03.2013 to which accused pleaded not guilty and claimed trial.
Judgment 2 of 22
SC No: 43/13 State Vs. Jaipal
3. The prosecution has examined 13 witnesses.
4. PW1 is the victim. She deposed that she was raped by the accused who was living in a Mandir. The accused called her and took her in a room. Thereafter, he removed underwear of the victim and inserted his penis in her private part. When she felt pain and started weeping then the said person sent her home. After after putting her clothes, she came home and narrated the incident to her mother. She duly identified the accused in the court as the person who committed wrong with her.
5. PW2 Anuradha Bhardwaj, President in a NGO, counseled the victim and her mother.
6. PW3 father of victim deposed that on 30.11.2012 at about 8 AM, his wife informed him that the accused committed rape on her daughter. Thereafter, he made a called on 100 number. Police came and got the victim medically examined.
Judgment 3 of 22
SC No: 43/13 State Vs. Jaipal
7. PW4 mother of victim who deposed that on the date of incident, her daughter aged about 8 years had gone outside to purchase some goods and when she did not come back, she became worried and started searching her. Her daughter came back after 1-1 ½ hour. Upon asking, the victim narrated the incident of sexual assault on her by the accused. She immediately went to temple and slapped the accused. On the next morning when the father of the victim came home, she informed him and matter was reported to the police. Police came and the victim was got medically examined. She proved the seizure of clothes of the victim vide seizure memo Ex. PW4/A. She also proved her statement Ex. PW4/B. She proved the arrest of accused Ex. PW4/C and his personal search memo Ex. PW4/D. She duly identified the accused in the Court.
8. PW5 Dr. Archana examined the victim vide MLC Ex. PW5/A. On examination she found no signs of external injuries Judgment 4 of 22 SC No: 43/13 State Vs. Jaipal over thighs and vulva. She found that slight discharge was present and hymen ruptured. She deposed that she collected the necessary articles of victim for forensic examination.
9. PW6 Amit Kumar Mishra, Assistant Teacher, proved the date of birth of victim as 03.03.2006. He exhibited the entry of admission of the victim as Ex. PW6/A and also a certificate in this regard Ex. PW6/B.
10. PW7 WHC Meenakshi accompanied the victim and her mother to SGM Hospital where victim was medically examined.
11. PW8 Ct. Navrang was the DD writer at police post Sanjay Gandhi. On 30.11.2012, he recorded DD no. 16B in respect of information received from Duty Officer PS Mangolpuri that wrong act was committed with a girl aged about 8 years. He proved the copy of the said DD as Ex. PW8/A. Judgment 5 of 22 SC No: 43/13 State Vs. Jaipal
12. PW9 Ct. Sohanvir got registered the case. He proved the arrest memo Ex. PW4/C, personal search memo Ex. PW4/D and disclosure statement of accused Ex. PW9/A. He also got medically examined the accused from SGM hospital. He also proved the memo Ex. PW9/B as per which three sealed pulandas and a sample seal from SGM Hospital was collected and the same were handed over to the IO.
13. PW10 Dr. Brijesh Singh proved the MLC of accused as Ex. PW10/A.
14. PW11 HC Bijender was the MHC(M) at PS Mangolpuri proved the said enteries of deposit of sealed pullandas as Ex. PW11/A. He also proved the original RC register as Ex.
PW11/B.
Judgment 6 of 22
SC No: 43/13 State Vs. Jaipal
15. Ex. PW12 WSI Rekha is the IO of this case. She got the victim medically examined. After medical examination of the prosecutrix, she seized 14 sealed samples and a sample seal sealed with the seal of SGMH GNCT of Delhi. She recorded the statement of mother of victim Ex. PW4/B upon which the present case was registered. She procured the MLC of the victim. She went to the spot and prepared site plan Ex. PW12/B at the instance of complainant. She arrested the accused and took his personal search vide memo Ex. PW4/C & D and recorded his disclosure statement as Ex. PW9/A. She got the accused medically examined and seized 3 sealed pulandas and a sample seal sealed with the seal of SGMH Mangolpuri vide memo Ex. PW9/B. She prepared a pointing out memo vide memo Ex. PW12/C. She collected the birth certificate of victim, collected the PCR Form Ex. PX1 from PCR office. She also proved the FSL report as Ex. PX. After completion of the investigation of this case, she filed charge-sheet in the court.
Judgment 7 of 22
SC No: 43/13 State Vs. Jaipal
16. PW13 ASI Surender Singh deposed that on the
relevant day, he was posted at police post SGM Hospital. Upon receipt of information, he went to the spot where he found that the victim and her mother had gone to the police post SGM Hospital.
17. On conclusion of the prosecution evidence, the statement of accused was recorded u/s 313 Cr.P.C. wherein the accused stated that he had a quarrel with the mother of the victim and as such he has been falsely implicated in this case.
18. Accused preferred not to lead any DE.
19. It has been contended on behalf of accused that the present case has been falsely lodged against the accused person as the mother of the victim had a quarrel with the accused on a day before the day of incident. The defence contends that there is no medical evidence on record to suggest that the victim was sexually assaulted nor the FSL report Ex. PX indicates so. Moreover, there Judgment 8 of 22 SC No: 43/13 State Vs. Jaipal are material contradictions in the testimony of the victim and her parents. There is delay in reporting the matter to the police. As such, the accused is liable to be acquitted in the present case.
20. On the other hand, the prosecution has contended that the victim and her mother have fully supported the case and even the medical evidence proves that the victim was sexually assaulted.
21. I have heard the rival contentions of the Ld. Addl. PP and Ld Defence Counsel. I have also gone through the material available on record.
22. Age of the Victim: The accused has been charged for the offence committed u/s 6 of the POCSO Act on allegations that he has committed aggravated penetrative sexual assault on victim who is a girl of 8 years. In order to prove the age of the victim, the prosecution has examined PW6 Amit Kumar Mishra an Asstt. Teacher. He produced an admission register in which the date of Judgment 9 of 22 SC No: 43/13 State Vs. Jaipal birth of victim is mentioned as 03.03.2006 and the relevant entry in this regard has been proved as Ex PW6/A. PW4 mother of victim has deposed that at the time of incident the victim's age was around 8 years. The defence has not challenged the date of birth of the victim in any manner nor anything has been produced on record to dispute the age of victim. Thus, in the light of the evidence led, the age of the victim is found to be between 6-8 years on the date of commission of offence.
23. Testimony of Victim & her parents: The victim has narrated the entire incident as it happened with her. She testified that:
"Ek budhe ne mere sath galat kaam kiya tha. Woh mujhe mandir mein le gaya aur phir usne meri kachi uttar di aur baad mein usne apni kachi uttar di thi. Uske baad bude ne apni "luli" meri peshab karne wali jagah daal di thi. mein us budhe ko pehchaan sakti hoon".
The victim testified that the accused also told her not to tell about the incident to any body. She stated that she told her mother (PW4) about this incident after coming back to home. On Judgment 10 of 22 SC No: 43/13 State Vs. Jaipal the next day when the husband of the complainant came back, she narrated the entire incident to him and matter was reported to the police. Then the victim was taken to the hospital where she was medically examined with the history of sexual assault. Victim deposed said that she was also taken to Court where she gave a statement before a Judge (Ex PX-2).
24. PW-4 Mother of the victim deposed that her daughter had gone outside to purchase toffee and when she did not return, PW4 became worried and started looking for her. The victim returned after about 1-1/2 hour and when she inquired from the victim, the victim told her that the accused had done wrong act with her after removing her panty. The victim informed PW4 that the accused made her lie on the cot and put his urinating part into her urinating part. Hearing this PW4, immediately went to temple where the accused was found washing the floor of the temple and she slapped the accused.
Judgment 11 of 22
SC No: 43/13 State Vs. Jaipal
25. The testimony of the prosecutrix, with relation to the incident of rape is reassuring as she has been consistent throughout in describing what the accused did to her. The victim firstly narrated the incident to her mother, then to police and also to Ld. MM who recorded the statement of the victim U/s 164 Cr.P.C. Ex. PX-2. During her deposition, the victim also described about the place of occurrence and the nature of work which the accused was carrying out in the Temple premises. She further deposed to the effect that her mother had beaten the accused after coming to know about the incident and this fact finds corroboration from the testimony of PW4 as well. The description of the act of rape given by the victim is accurate and is narrated with the understanding of a 6-8 year old child.
26. In her cross examination, victim was put several suggestive questions but she denied the suggestion that since there was a quarrel between her parents and the accused, the accused has been falsely implicated. More so, the victim categorically deposed Judgment 12 of 22 SC No: 43/13 State Vs. Jaipal that her mother does not got to the temple for offering prayers thereby ruling out of having any grudge against the accused. The mother of the victim has also testified to the effect that she doesn't go to temple for offering prayers. The victim duly identified the accused in the Court to be the same man who committed the wrong act with her.
27. It would be seen that the Court has over the years attributed to the testimony of child witnesses 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 prosecutrix has been consistent on the material particulars with regard to the incident of sexual assault on her. PW2 & 4, parents of the victim substantially corroborated the incident that occurred subsequent to her rape. All of this evidence was put to the accused. He had the opportunity to lead evidence but he did not.
Judgment 13 of 22
SC No: 43/13 State Vs. Jaipal
28. Although it has been contended that the mother of the victim has herself stated that the victim is not completely mentally fit and hence, it is not safe to rely upon the testimony of the victim. But after going through the testimony of victim, I find that nothing came on record to suggest that the victim suffered from any incapability. She is found to be a competent witness. The testimony of victim is found to be truthful and reliable and no circumstance has been brought on record to discredit the testimony of the victim and her parents.
29. Medical Evidence: It has been contended by the accused that there is no medical evidence on record. It is stated that as per the FSL report Ex. P-X, no semen of the accused was found on the seized articles nor the MLC of the victim indicates any sexual assault on her. After considering the submissions of the Ld Defence Counsel, I find that nowhere in her testimony, the victim has testified that the accused had ejaculated after commission of the rape as such the absence of semen on the seized clothes does not have any bearing on the present case. However, as Judgment 14 of 22 SC No: 43/13 State Vs. Jaipal per the MLC Ex. PW5/A, the hymen of the victim was found ruptured and a slight discharge was also present at the time of the examination of the victim. The Doctor in her testimony did not rule out the possibility of sexual intercourse with the victim on the previous day. Therefore, it is not the case where the medical evidence does not support the prosecution.
30. Delay in FIR: It is pointed out that there is a delay of one day in lodging the F.I.R. It has been deposed by PW4 (mother of the Victim) that her husband was not at home when the incident happened. She being a lady must be found it difficult to approach the police, the matter was immediately reported the police when the husband of the complainant came back home. Thus, the delay is quite understandable as the father of the victim was away from home on the day of occurrence and he returned home in the next morning. In these facts, the delay in lodging the F.I.R. cannot be a ground to disbelieve the prosecution version.
Judgment 15 of 22
SC No: 43/13 State Vs. Jaipal
31. Conclusion: In the light of the discussions made herein above, I am of the view that the testimony of the victim is trustworthy and reliable in respect of the incident of her rape by the accused. The allegations also found corroboration from the deposition of the parents of the victim and the medical evidence. Accordingly, it is held that the allegations against the accused stands proved. The accused stands convicted for the offence punishable U/s 6 of POCSO Act.
Matter be listed for hearing arguments on quantum of sentence for 31.03.2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
24.03.2015
Judgment 16 of 22
SC No: 43/13 State Vs. Jaipal
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 43/13
FIR No. 453/12
Police Station Mangol Puri
Under Section 6 POSCO Act.
ID No. 02404R0-050142013
State
Versus
Jaipal
S/o Sukkan Singh
R/o S-Block, Shiv Mandir,
Mangolpuri, Delhi. ......Convict
ORDER ON SENTENCE
32. Jaipal has been convicted u/s- 6 of POCSO Act. I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and Sh. Bhopal Singh, Advocate, ld. Counsel for the convict.
Judgment 17 of 22
SC No: 43/13 State Vs. Jaipal
33. The learned Addl. PP has very vehemently argued that the offence committed by the convict in this matter is of highly derogatory in nature. The child victim was subjected to penetrative sexual assault by the convict, despite he being working in a Temple thereby betraying the faith of the child victim.
34. It is further argued that the incestuous crimes in our society are presently on rise, which substantially hamper the mental and physical development of children. POCSO was enacted by the Parliament bearing in mind that the offenders under the said Act shall be dealt with with heavy hand, therefore, stringent punishment has been provided for in the said Act. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 6 of the Act in the matter, so that the same may act as deterrent for other impending offenders.
Judgment 18 of 22
SC No: 43/13 State Vs. Jaipal
35. Per contra, the learned defence counsel has submitted that convict is a old man aged about 68 years having 7 children including 2 unmarried daughters. He has already undergone 27 months imprisonment as under-trial in this case, during which period, his conduct was never questioned by the Jail authorities. In the end, it is argued that the convict is the first time offender and leniency in sentencing qua him has been prayed for.
36. 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. In my considered opinion, the interest of justice would be met, if the convict is sentenced to Rigorous Imprisonment for a period of 10 years along with fine of Rs. 10,000/-, in default of payment of fine, further SI for a period of 3 months ; Benefit of Section 428 Cr.P.C is accorded to the convict.
Judgment 19 of 22
SC No: 43/13 State Vs. Jaipal
37. Compensation: Coming now to the aspect of compensation to the victim, who is a minor girl. 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.
38. 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 legislation, 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. Section 33(8) POCSO Act, also mandates that in addition to the punishment to the accused, the victim be granted compensation for physical and mental trauma caused to her and for the rehabilitation of the victim.
Judgment 20 of 22
SC No: 43/13 State Vs. Jaipal
39. Therefore, in order to provide Restorative and Compensatory Justice to the victim girl, I hereby grant compensation of Rs. 1,00,000/- (Rs. One lac only) to the victim. The learned Secretary, D.S.L.S.A, North District, New Delhi shall ensure that the said amount is given to the parents of the victim within one month on receipt of this order and shall further ensure that the said amount is disbursed in such a manner that the same be used for her welfare and rehabilitation of the victim.
40. A copy of this order along with the particulars of the victim be sent to learned Secretary, D.L.S.A, North District., Rohini Courts, Delhi for necessary compliance.
41. Convict is informed his 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, Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 34-37, Lawyer Chamber Block, High Court of Delhi.
Judgment 21 of 22
SC No: 43/13 State Vs. Jaipal
42. A copy of judgment and copy of order on sentence be supplied free of cost to convict.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
31.03.2015
Judgment 22 of 22