Delhi District Court
State vs . Parmod Kumar on 17 May, 2014
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 141/13)
Unique ID case No. 02404R0244462013
State Vs. Parmod Kumar
FIR No. : 344/13
U/s : 323/354/354A IPC and 7/8 POCSO Act
P.S. : Subhash Place
State Vs. Parmod Kumar
S/o Sh. Jai Narayan Yadav
R/o House No. G560,
Fourth Floor, Shakur Pur,
Delhi.
Permanent resident of
Village Ram Nagar,
Police Station Lokhi,
Distt. Madhubani, Bihar.
Date of institution of case - 30.08.2013
Date on which, judgment has been reserved 09.05.2014
Date of pronouncement of judgment : 09.05.2014
JUDGMENT:
1. Briefly stated the case of the prosecution is that on 10.08.2013, a call was received at PS Subhash Place regarding one person having run away after attempting to commit wrong act with a small girl. The said information was reduced S.C. No. 141/13 : State vs. Parmod Kumar : Page 1 of 33 to writing vide DD no. 4A dated 10.08.2013 i.e. Ex. PW5/A and was entrusted to SI Baljeet Singh for inquiry. The SI Baljeet Singh proceeded to the spot i.e house no. G560, third floor, JJ Colony, Shakur Pur, along with Ct. Sunil, where he met complainant Smt. Shaheen Bano, victim child M and some neighbourers. The accused was also present at the spot, having been apprehended by the neighbourers. Since, the matter pertained to a girl child, SI Baljeet informed the SHO about it and after some time, W/SI Sujata and lady Ct. Poonam also reached the spot. W/SI Sujata made inquiry from the mother of the victim child and thereafter, she took the victim child M for her medical examination to Bhagwan Mahavir Hospital. The mother of the victim, however, refused for gynecological examination of the victim child. Thereafter, IO recorded the statement of the complainant Shaheen Bano Ex. PW6/A, wherein, she stated that she was having three children and that the victim M was her only daughter and was aged about 6/7 years. She further stated that she was residing at her matrimonial home in Distt. Amethi, UP and that she used to come to Delhi to visit her husband, who was working in Delhi. On 31.07.2013, at about 12.15 in the afternoon, she was putting her four months old son to sleep, while her daughter M was playing nearby. At that time, accused Parmod, who was residing on the fourth floor in the same building, came to her room to ask for keys, which his roommate had left with the complainant. The complainant handed over said keys to accused from the window of her room and again, went on to make her son sleep. At about 12.45 pm, she heard cries of her daughter M and when she went running upstairs, she saw door of the room of the accused shut. She pushed open the door and found that accused had made victim M sit in his lap and had shut her mouth with his hand and had also put on television at loud volume, so that cries of M could not be heard by anyone. S.C. No. 141/13 : State vs. Parmod Kumar : Page 2 of 33 The complainant further stated that when accused saw her, he let go off victim M, who was not only weeping bitterly, but was also appearing to be scared. When complainant inquired from victim M, she told her (complainant) that accused had called her (victim M) inside his room and when she refused, he threatened her and took her in his room, forcibly and shut the door from inside and also slapped her. The victim further told the complainant that accused had done wrong act with her and was kissing her mouth and chest and was also trying to remove her nikkar (underwear). When the complainant checked, she found red spots on the face and chest of the victim. When complainant confronted the accused, he ran away from there. The complainant informed her husband about the acts of the accused, when he returned back to the house. Initially they did not make any complaint about the incident to any one out of fear of defamation, but on 10.08.2013, when accused returned back to his rented room, he was apprehended by husband of the complainant with the help of their landlord and other tenants in the building. Police was informed and when the police came there, the matter was reported to the police. On this complaint, the present case was registered against the accused. During the course of investigations, IO prepared the site plan of the place of incident, at the pointing out of the complainant, and further arrested the accused in the present case. On 12.08.2013, IO got recorded statement of victim M u/s 164 Cr.P.C. After completing the investigations, the charge sheet was prepared and was filed before the court.
2. After hearing the arguments and going through the record, charges for the offences punishable under Sections 363/366/323/341 IPC and under Section 7 of POSCO Act punishable u/s 8 of POCSO Act were framed against the accused S.C. No. 141/13 : State vs. Parmod Kumar : Page 3 of 33 Netra Pal. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, prosecution has examined nine witnesses. Prosecutrix and other public witnesses :
4. The PW1 M, is the victim child, who was aged about 6 years at the time, she appeared to depose before the court. Keeping the tender age of the victim child in the mind, her statement was recorded in camera proceedings in Chamber. Smt. Shaheen Bano, mother of the victim was permitted to remain present during the proceedings as support person, with directions not to interfere in the recording of the statement of the victim child, in any manner. The victim was provided colours and white papers to keep her occupied and when, she was comfortable, certain preliminary questions were put to her to ascertain her capability to understand the importance of speaking truth and also her capacity to understand the questions put to her and to answer them reasonably. After being so satisfied with her capacity and capability, her statement was recorded in questionanswer form, without oath. In the relevant portion of her statement, the victim deposed as under : Q. Apko kissi ne tang kiya tha?
Ans. Mein chhat par gayi thi.
Q. Phir kya hua tha ?
Ans. Usne kaha ki toffee dega aur patang de raha tha.
Q. Kaun de raha tha ?
Ans Nahi pata.
Q. Woh kaha rehta hai ?
S.C. No. 141/13 : State vs. Parmod Kumar : Page 4 of 33
Ans. Uppar chhat par rehta hai.
Q. Usne kya kiya tha ?
Ans. Usne badatamiji kari thi.
Q. Aapko kya bura laga tha ?
At this stage, it was observed that the witness was hesitating in answering this question. The witness was given some books, so that her attention was diverted for sometime and she became comfortable to depose further. When the witness settled down, she was questioned further as under : Q. Aapko kya bura laga tha ?
A. Kamre me band kar diya tha.
Q. Aur kya kiya tha ?
Ans. Aur kuch nahi kiya tha.
At this stage, the witness again hesitated to answer the question. She was asked if she wanted everybody present in the room to cover their faces / eyes so that she could answer the questions put to her. The witness nodded her head in affirmative and thereafter, the learned Additional PP as well as learned defence counsel present in the Chamber were asked to cover their eyes with their hands. The witness was repeated questions and also asked further questions, where upon, she answered as under : S.C. No. 141/13 : State vs. Parmod Kumar : Page 5 of 33 Q. Usne kya kiya tha ?
Ans. Usne kachhi niche uttari thi.
Q. Aur kya kiya tha ?
Ans. Chumma liya tha.
Q. Uske baad kya hua tha ?
Ans. Mummy aa gayi thi.
Q. Phir mummy ne kya kiya tha ?
Ans. Mummy mere ko legayi thi, mummy ro rahi thi.
Q. Aur kisse baat kari ?
Ans. Policewali aunty se baat kari thi.
Q. kya aap usko pehchan sakte ho ?
Ans. Ha.
5. During her crossexamination by learned defence counsel, the witness deposed as under : Q. Aap aaj kiske sath aaye ho ?
Ans. Mummy aur papa ke sath.
Q. Aaj apko mummy aur papa ne bataya hai ki aaj kya batana hai ?
Ans. Bola tha ki aunty ko batana.
Q. Kya batana ?
Ans. Yehi chij sab.
Q. Apke papa kya kaam karte hai ?
Ans. Shishe ka kaam karte hai.
Q. Kya apko tikkewale admi ko (accused) mummy ke kehne
S.C. No. 141/13 : State vs. Parmod Kumar : Page 6 of 33
se pehchan rahe ho ?
Ans. Nahi, apne aapse pehchan rahi hu.
Q. Aap chhat par apne aap gaye the ?
Ans. Mummy ne kaha tha ki uppar jakar khelna aur kahi jana nahi.
Q. Kya apke ghar par apki koi saheliya hai ?
Ans. Ha. Uska naam hai Ghumi (Bhumi).
Q. Uppar kamre me mummy ke alawa bhi koi aaya tha ?
Ans. Nahi.
6. The PW3, Sh. Kuldeep, had made a call at 100 number from his mobile phone at the instance of the mother of the victim child and deposed regarding the same.
During his crossexamination, the PW3 stated that he came to know about the incident on 10.08.2013 and that he had stated to the police, whatever was told to him by the mother of the victim child.
7. The PW6, Smt. Shaheen Bano, is the mother of the victim child. She deposed that she was permanent resident of Distt. Amethi, UP and had come to Delhi to visit her husband, who was working in Delhi. She further deposed that she had three children, out of which, two were sons and one was daughter i.e. the victim child M, who was aged about 6 years. She further deposed that as per her complaint Ex. PW6/A. She also added that after accused went upstairs, her daughter (victim M) asked her, if she could go upstairs to play and that she (PW6) told her that she could go upstairs and instructed her not to go down stairs to play and thereafter, victim M went upstairs. She also deposed about hearing cries of her S.C. No. 141/13 : State vs. Parmod Kumar : Page 7 of 33 daughter M at about 12.45 pm, hearing which, she rushed upstairs to find room of accused shut, but not bolted from inside. She further deposed that she opened the door and found that the accused had made her daughter sit on him and she was crying and weeping bitterly.
At this stage, a court question was asked from the witness to elicit details of the condition, in which accused and victim M were found by the witness by asking her questions, whether accused and M were wearing their clothes at that time. The witness responded by stating that accused was wearing only underwear and that victim M was also wearing her panty at that time.
The PW6 further deposed that at that time, TV in the room of the accused was playing on loud volume and that he had shut her daughter's mouth with his hand. She then deposed that on seeing her, accused told victim M, "Ja gudiya ja, teri mummy aa gai" and that at that time, victim M was weeping bitterly and was scared and that on seeing her daughter in such condition, she (PW6) also started crying. The PW6 further deposed that on inquiry from M, she was told by her that accused had asked her to keep quite and had given her a toffee and a kite and had then taken her inside her room, where he again threatened her to keep quite and told her that, he would slap her. The victim M further told PW6 that accused had kissed her on her body and was trying to remove her panty and that PW6 found that some of body parts of her daughter (victim M) were red at that time. The PW6 then deposed about informing her husband, about the incident and police being called. The PW6 identified her thumb impression on complaint Ex. PW6/A. She also stated about victim M being taken to hospital for medical examination and her refusal (refusal by PW6) for her (of victim M) gynecological examination because of her tender age. The PW6 further deposed about recording of statement of victim S.C. No. 141/13 : State vs. Parmod Kumar : Page 8 of 33 M, by the police, in her presence and about pointing out the place of occurrence, pursuant to which, site plan Ex. PW6/B was prepared by the police.
During her crossexamination by learned defence counsel, PW6 stated that she was illiterate and that her statement was probably recorded on 01.08.2013 in her room, in presence of her husband and chidren. She also stated that she had not told the police in the said statement Ex. PW6/A that accused had given her daughter a toffee and a kite. The PW6 was questioned at length regarding the other occupants in the building in which she was residing with her husband as tenant. The PW6 stated that three other boys were also residing in the room, which was with the accused and that there were six rooms, wherein 1520 tenants were residing with their families, including the room in which she and her husband were residing. She volunteered to state that at the time of incident, they all had gone for their respective work. The PW6 then stated that there were two rooms on every floor and that at that time of incident, one nepali tenant, who was residing in a room, in front of her room, was present, but he was in his room, which was bolted from inside and that he was watching T.V. She further stated that there was another lady present on the second floor, who was from Bihar, but she (PW6) did not have much interaction with her. The PW6 stated that no other person went upstairs after hearing the cries of her daughter except she herself i.e. PW6 and that she had spoken to the accused for about 10/15 minutes and that during that time, no other person came to intervene as none other was present on that floor. The PW6 volunteered to state that there was no hot conversation between her and the accused as she was very scared at that time. The PW6 was also questioned regarding the volume of the television and stated that none in the neighbourhood used to complain to each other regarding the loud volume of television as generally S.C. No. 141/13 : State vs. Parmod Kumar : Page 9 of 33 everybody was in habit of playing television at a loud volume.
During her further crossexamination, the PW6 stated that accused had put on his clothes before running away and that she had informed about the incident to her husband on the same day at about 01.00 pm as he had returned back home earlier than his usual time of 8.30 pm and that accused had already run away from his room by then. The PW6 further stated that since accused had run away, her husband also went back to his work and that she did not tell about the incident to any one else except her husband as she was apprehensive about the family prestige. The PW6 denied that she had taken Rs. 4,000/ from the accused or that she did not want to repay the same and hence, she had falsely implicated the accused in the present case.
The PW6 was questioned about allowing accused to run away after the incident. She stated that she did not try to stop the accused as he was touching her feet and was asking for her forgiveness at that time and that even otherwise, she was very scared and perplexed at that time. The PW6 also stated that she had put her thumb impression on complaint Ex. PW6/A, after the same had been read over by her husband and had not signed on blank papers. The PW6 denied having tutored the victim M to depose in the manner, she had deposed in the court.
8. The PW7 HC Chet Lal Yadav, was posted as Duty Officer at P.S. Subhash Place on 10.08.2013 and he deposed about registration of FIR of the present case. He proved the computer generated copy of FIR as Ex.PW7/A and endorsement made by him on rukka as Ex.PW7/B.
9. The PW5, SI Baljeet, deposed that on 10.08.2013, on receipt of DD No.4A, S.C. No. 141/13 : State vs. Parmod Kumar : Page 10 of 33 Ex. PW5/A, he along with PW8 Ct. Sunil went to House No.G560, J.J. Colony, Shakurpur and met PW1 victim child M, PW6 her mother Smt. Shaheen Bano, and some neighbourers, who had apprehended accused Parmod. He further deposed that on coming to know that matter pertained to a child victim, he informed to the Duty Officer at PS and that after some time, PW4 L/Ct. Poonam and PW9 W/SI Sujata also came there and that he briefed PW9 W/SI Sujata about the facts of the case and that PW9 made inquiries from PW1 in the presence of her parents. He further deposed about the medical examination of the victim child and about getting the FIR in the present case registered through PW9 W/SI Sujata. He further stated that Sh. Kalan Miya, father of the victim child, handed over the accused Parmod to him and on inquiry, accused disclosed about the offence committed by him and that he recorded the disclosure statement of accused. He further deposed about arrest and personal search of the accused and proved arrest memo as Ex.PW5/B and personal search memo as Ex. PW5/C. He further stated that on 12.08.2013, he got the statement of victim child recorded u/s.164 CrPC and proved his application for getting the statement of the victim child recorded u/s.164 Cr.P.C as Ex.PW5/D and the statement of victim child as Ex. PX.
During crossexamination, he stated that he had reached the spot at about 12:30 AM and that on inquiry at the spot, he came to know that the matter pertained to 'ched chad' with the victim child. The witness termed it correct that in DD No.4A i.e. Ex.PW5/A, it was mentioned that caller had informed that one person tried to commit wrong act with a small child and had been apprehendedm while he was trying to run away. He further stated that he remained at the spot till W/SI Sujata reached there at about 1.00 am and that he finally left the spot at about 8:30 / 9:00 AM. He showed his lack of knowledge, if there was any money transaction S.C. No. 141/13 : State vs. Parmod Kumar : Page 11 of 33 between accused and the mother of the victim child.
10. The PW8, Ct. Sunil Kumar, had joined the investigations of the present with PW5 SI Baljeet Singh and reached at the spot and deposed about the investiations carried out by PW5 SI Baljeet Singh and PW9 W/SI Sujata. He also took rukka to the PS and got the FIR of the present case registered at PS Subhash Place and deposed regarding the same.
11. The PW9, WSI Sujata is one of the investigating officer in the case. She deposed that on 10.08.2013, at about 12:15 am, she received information about a call of sexual assault of a minor girl from the Duty Officer and that she reached at the spot i.e H. No. 560, G Block, J.J. Colony, Shakur Pur, Delhi and met PW5 SI Baljeet, PW8 Ct. Sunil and PW4 L/Ct. Poonam and that at that time, PW1 victim child M, PW6 Smt. Shaheenher mother and Sh. Kallan Khan her father were also found present there. She further stated that after receiving brief from PW5 SI Baljeet Singh about the incident, she made inquires from PW6 Smt. Shahin Bano and thereafter from PW1 victim child M and was told that on 31.07.2013 between 12:15 to 12:45 pm, accused Pramod, a tenant on the upper floor of their house, had sexually assaulted victim M by removing her underwear and when PW6 heard the voice of her daughter, she went upstairs and found her daughter in the room of accused in that condition. She further deposed about the medical examination of the victim child M at Bhagwan Mahavir Hospital vide her MLC Ex. PW2/A. She then deposed that thereafter, she recorded the statement Ex. PW6/A of PW6 Smt. Shahin Bano, made her endorsement Ex. PW9/A thereupon, prepared rukka Ex. PW7/B and sent the same to PS for registration of the FIR through PW8 Ct. Sunil S.C. No. 141/13 : State vs. Parmod Kumar : Page 12 of 33 Kumar, who after getting the case registered, returned with copy of FIR Ex. PW7/A and original rukka and handed over the same to her. She further deposed that she recorded the statement Ex. PW9/B of victim child in questionanswer form During her crossexamination, PW9 deposed that she recorded statement of victim child M Ex. PW9/B after making inquires from her. She further deposed that no public person was called at the time of recording of the statement of victim child, but said that her mother was present there at that time. She further stated that the house no. G560, J.J. Colony was constructed up to 5th storey and that since it was odd night hours, no public person was present when she (PW9) reached at the spot. She further deposed that she made inquires from neighbourers in the building about the incident, but nobody was able to tell her anything about the incident. The witness termed it correct that she could not trace out any witness, except the mother of the victim, who had seen the incident. The witness further termed it correct that except for preparation of the tehrir, recording of Ex. PW9/B and getting the medical examination of the victim child conducted, she did not conduct other investigation in this case.
12. The PW4, W/Ct. Poonam, had joined the investigations of the present case with the IO on 10.08.2013 and got the victim child medically examined at Bhagwan Mahavir Hospital and deposed regarding the same.
13. The PW2, Dr. Anil Ranjan, medically examined the victim child M vide MLC Ex. PW2/A and deposed that on general examination, no external fresh visible injury was seen and that thereafter, the patient was referred to Gynecological S.C. No. 141/13 : State vs. Parmod Kumar : Page 13 of 33 Department for internal examination.
14. During the course of trial, vide his statement recorded on 22.11.2013, the accused admitted the statement of the victim child recorded u/s 164 Cr.P.C dated 12.08.2013 as well as his own MLC dated 10.08.2013 and same were then exhibited as Ex. PX and Ex. PY, respectively.
15. After closing of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the allegations of the prosecution and stated that he was innocent and had been falsely implicated in the present case by the mother of the victim child as she had taken a loan of Rs. 4,000/ from him and that on being asked to return the said amount, mother of victim child threatened to implicate him in a false case. He further stated that the victim child was tutored by her mother and police and that the FIR was delayed by 10 days and was lodged with coloured version and emblishment and that no such incident had ever taken place. The accused declined to lead evidence in his defence.
16. Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State.
17. Learned Additional PP has contended that in the present case, the accused kidnapped a minor girl child, aged about 6/7 years and sexually harassed her by kissing her and by attempting to remove her panty and in view of the statement of the victim child and her mother, who were examined as PW1 and PW6 respectively, prosecution has proved its case beyond reasonable doubt against the S.C. No. 141/13 : State vs. Parmod Kumar : Page 14 of 33 accused, and has accordingly prayed that accused be convicted for the charged offence.
18. 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. He further stated that there is inconsistency in the statements of victim child and mother of the child and as such, same cannot be believed. He further submitted that victim child M herself had gone to upstairs and as such, there was no enticement on the part of the accused and that the accused was only playing with the child and was not having any alleged intention qua the victim child M. He further submitted that there is a considerable delay in reporting the matter to the police. He further submitted that that the victim child M was tutored by her mother, who had taken a loan of Rs. 4,000/ from him and was not returning despite requests and that the FIR was lodged after 10 days with due deliberation and consultation, which itself shows the innocence of the accused. It is lastly submitted that no such alleged offence was ever committed by the accused and that the entire prosecution case is based on falsehood and it is thus prayed that the accused be acquitted of the charged offence.
19. I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for accused Netra Pal 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.
S.C. No. 141/13 : State vs. Parmod Kumar : Page 15 of 33
20. In the present case, accused is reported to have kidnapped a minor girl M, aged about 6/7 years, from the lawful guardianship of her mother, with intention that she be forced to have illicit intercourse and further having forcibly detained her, slapped her and sexually assaulted her.
21. As far as the age of the victim child M is concerned, the prosecution has not filed any document to prove that the victim child M was aged about 6/7 years at the time of incident. However, when the child appeared to depose before the court as PW1, from her physical appearance, her age apparently was 6/7 years. Even otherwise, the age of the victim child M has not been disputed by the learned defence counsel.
22. The incident in the present case is stated to have occurred on 31.07.2013 between 12.15 to 12.45 pm in the tenanted room of the accused at House no. G560, Fourth Floor, JJ Colony, Shakurpur, Delhi. Admittedly, the incident was reported to the police on 10.08.2013 and there is a delay of about 10 days between the incident and the reporting of the incident and filing of the complaint in the present case. The delay in reporting the matter to the police has been explained by PW6 Smt. Shaheen Bano, during her crossexamination by learned defence counsel, wherein, she stated that she had not told about the incident to anyone else, except her husband as she was apprehensive about the family prestige. She also stated that after the incident, she was even otherwise, very scared and perplexed. Both these replies given by the witness speak volumes of the shock and trauma, she had suffered on seeing her daughter, aged about 6/7 years, being subjected to sexual assault by the accused. She has also stated that matter was reported to the S.C. No. 141/13 : State vs. Parmod Kumar : Page 16 of 33 police when, accused returned back to his tenanted premises. It is possible that since, the accused ran away from his tenanted premises, after the incident, the parents of the prosecutrix could reconcile themselves that the matter would remain buried in secrecy, but his return back to the tenanted premises, created an apprehension in their mind, not only about the security of the victim child, but also their defamation. The fact that accused was also a tenant in the same building, where the victim was residing with her parents, would have obviously meant that they would have crossed each other's path dayin and dayout and this perhaps forced the parents of the victim to report the matter to the police. Hence, in my opinion, the delay in reporting the matter to the police stands sufficiently explained.
23. In this regard, it was held by Hon'ble Supreme Court in the case of Ramdas & Ors. vs. State of Maharashtra, (2007) 2 SCC 170, as under : "24. ........... In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation S.C. No. 141/13 : State vs. Parmod Kumar : Page 17 of 33 of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."
24. Coming to the alleged incident, the PW6 Smt. Shaheen Bano, has been put forth as an eye witness to the incident. She is also the first person to whom, the victim M, aged about 6/7 years, narrated her traumatic experience to. The PW6 has stated in her deposition that when she went upstairs to the room of accused, on hearing the cries of her daughter at about 12.45 pm, she saw the door of the room of the accused, shut, but not bolted from inside and that when she pushed the door open, she saw that accused had made her daughter sit on him and that at that time, victim M was crying bitterly. She also deposed, in response to court question that accused was only wearing his daughter and her daughter M was also wearing her panty at that time and that the TV in the room of the room had been put on, at a loud volume. She further stated that accused had shut her daughter's mouth with S.C. No. 141/13 : State vs. Parmod Kumar : Page 18 of 33 his hand. As per PW6, when accused saw her, he let go of victim M by stating "ja gudiya ja, teri mummy aa gai" and that at that time, victim M was not only weeping bitterly, but was also appearing to be scared. The PW6 then stated that victim M told her that accused had told her to keep quite and had given her a toffee and a kite and had then taken her to his room, where he told her to keep quite by threatening to slap her. The PW6 also stated that victim M told her that accused had kissed her on her body and that he was trying to remove her panty and that she (PW6) saw redness on some parts of body of M.
25. Though, learned counsel for the accused has contended that accused was only trying to console the victim M, who herself had gone upstairs to play, the fact that accused had undressed himself and had shut the mouth of the victim M with his hand, creates doubt, whether, his intentions were honorable. Any doubt regarding the malafide intentions of the accused are put at rest by the testimony of victim M, herself, which has been reproduced at length in the foregoing paragraphs. The testimony of the victim M clearly brings out the manner, in which, the accused had enticed her into his room by giving her toffee and a kite and thereafter, sexually assaulted her.
26. It is noteworthy that after the matter was reported to the police, IO W/SI Sujata had recorded the statement of the victim M under Section 161 Cr.P.C i.e. Ex. PW9/B in QuestionAnswer Form. In the relevant portion of the said statement, wherein the victim stated as under : "Q. Beta apke upar jo uncle rahte hai, unko jante ho ?
A. Haan. Uncle hamare ghar ke upar wale ghar me rahte hai.
S.C. No. 141/13 : State vs. Parmod Kumar : Page 19 of 33
Q. Kaya apko uncle ne apne pass bulaya tha ?
A. Haan. Uncle ne mujhe gaal par thapad mara tha, aur
mujhe puppy kar rahe the. Main ro rahi thi. Meri kachchi utar rahe the.
Q. Beta aap ro rahe the ?
A. Main uncle ko kah rahi thi, chor do, chor do, main chilla rahi
thi. Uncle kah rahe the chup.
Q. Kaya apki mummy aai thi ?
A. Mummy ne mujhe payar kiya aur mujse uncle ne kaya kar
rahe the, pucha. Uncle ne mara mummy, mummy ne uncle ko danta, uncle bhag gaye.
Q. Uncle ache ya gande hai ?
A. Aunty, uncle bahutbahut gande hai. "
27. Further, the victim was produced for her statement u/s 164 Cr.P.C before ld. M.M, pursuant whereto her statement Ex. PX (admitted by the accused vide his statement recorded on 22.11.2013) was recorded by ld. M.M, wherein she deposed as under : "Q. Batao M apko kaya shikayat hai ?
A. Ek uncle ne mujhe pareshan kiya tha.
Q. Kaise pareshan kiya tha apko ?
A. Main apne ghar chat par thi. Uncle aye. Usne mera munh
band kiya. Unhone mujhe kaha, ki chup raho.
Q. Phir kaya hua ?
S.C. No. 141/13 : State vs. Parmod Kumar : Page 20 of 33
A. Usne chumma liya.
Q. Kahan par chumma liya ?
A. M ne apna ulta haath apni gardan se choda niche lagate hue
kaha "yahan par chumma liya"
Q. Phir kaya hua beta ?
A. Kachchi uttar rahe the meri.
Q. Phir kaya kiya us uncle ne apke saath ?
A. Vo mujhe patang de rahe the, aur kah rahe the, chup raho.
Usne mujhe apni gode (lap) me bithaya tha. Vo batmiji kar rahe the.
Q. Batmiji kaise kar rahe the ?
A. Vo meri kachchi ko ched rahe the.
Q. Aur kaya kiya uncle ne ?
A. Mujhe dar laga tha. Usne mujhe kamre me band kiya hua tha.
Vo bhi kamre me the"
Q. Phir kaya hua ?
A. Phir mummy aa gai thi. Mummy ne darwaja khol diya tha.
Phir us uncle ne mujhe chod diya.
Q. Us uncle ka naam pata hai apko ?
A. Nahi.
Q. Pahle kabhi dekha hai un uncle ko ?
A. Haan. Vo usi kamre me rahte hai.
Q. Kaya aap unko dekhkar pehchan sakti ho ?
Ans. Haan. ...."
28. When the statement of the victim u/s 161 Cr.P.C Ex. PW9/B, her statement S.C. No. 141/13 : State vs. Parmod Kumar : Page 21 of 33 u/s 164 Cr.P.C Ex. PX and her testimony before the court as PW1 are considered, it is seen that the victim M has been consistent in her said statements about the acts of accused enticing her into his room and sexually assaulting her.
29. Learned counsel for the accused has contended that the MLC Ex. PW2/A of victim M does not reveal any fresh injuries, external or to her private parts, and hence, the prosecution has failed to prove that accused had sexually assaulted the victim child.
30. The contention raised by learned counsel for the accused cannot be sustained for simple reason that the victim M was examined after about 10 days of the incident and injury, if any, would have faded away by then. Even otherwise, in a case of sexual assault as defined in Section 7 of the POCSO Act, the victim having sustained physical injury is not a sine qua non for the prosecution to prove its case.
31. The next contention raised by learned defence counsel is that the conduct of the mother of the victim M was completely unnatural as she neither quarreled with the accused after the incident nor did she make any attempt to stop him from running away. This contention of learned defence counsel is also answered by the replies given by PW6 during her crossexamination, wherein, she has stated that after the incident, accused touched her feet and asked for her forgiveness and that even otherwise, she was very scared and perplexed and as such, she did not try to stop him from running away. In this regard, the testimony of PW1 victim M is also very relevant as she has clearly stated that when her mother came to the room of S.C. No. 141/13 : State vs. Parmod Kumar : Page 22 of 33 the accused, she started crying. The relevant portion of her testimony is as under : Q. Uske baad kaya hua tha ?
A. Mummy aa gayi thi.
Q. Phir Mummy ne kya kiya tha ?
A. Mummy mere ko legayi thi, mummy ro rahi thi.
32. Moreover, different people react differently to crime and there is no straight jacket formula, in which, their reaction would come or can be assessed. In this regard, I am fortified by the judgment cited as "Leela Ram vs. State of Haryana and anr. JT 1999 SC 274", wherein it was held that : "...... There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not obliterate an otherwise, acceptable evidence.
The court shall have to bear in mind that different people/witnesses react differently under different situations, whereas some become speechless, some start wailing, while some others run away from the scene and yet there are some, who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon S.C. No. 141/13 : State vs. Parmod Kumar : Page 23 of 33 individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise."
33. The next contention raised by learned defence counsel is that the fact that the Investigating Officer failed to join the father of the victim M and other public witnesses in the investigation of the case, itself shows that the case of the prosecution is false and manipulated. This contention raised by learned counsel for accused is also without force because, it was the responsibility of the IO to join the husband of PW6 Smt. Shaheen Bano and other public witnesses in the investigations of the case and on account of the failure on the part of the investigating officer to do so, the cogent and reliable testimony of victim child/PW1 M and PW6 Shaheen Bano cannot be discarded. Even otherwise, the said witnesses, if at all, could have deposed only about presence of accused and the victim together, in the room of the accused, at the time of the incident and this fact is even otherwise, not disputed on behalf of the accused, for it has been argued on behalf of the accused that the victim M had herself gone to the room of the accused to play and had started crying and that the accused was trying to console her.
34. Coming to defence taken by the accused that the mother of the victim M had taken a loan of Rs. 4,000/ from him and was not inclined to return the same, despite requests by the accused and hence, falsely implicated the accused in the present case. This defence taken by the accused is also vague and has been put forth as an after thought. The accused has not given any specific date(s), when, S.C. No. 141/13 : State vs. Parmod Kumar : Page 24 of 33 where and on what occasion,he had given a loan of Rs. 4,000/ to the mother of the victim. Nothing has been brought on record by the accused to show that he and family of the victim were familiar with each other or were on regular visiting terms or had such cordial relations for PW6 Smt. Shaheen Bano, to have asked him for a loan, when even otherwise, as per record, PW6 was not a permanent resident of Delhi, but resided in the native village in Distt. Amethi, UP with her inlaws and was only an occasional visitor to Delhi, where her husband was working.
35. The learned counsel for the accused has pointed out certain discrepancies in the testimonies of the witnesses regarding the time, when the matter was reported to the police. It is true that there are certain discrepancies in the testimony of PW6 and PW9 W/SI Sujata regarding the time, when the matter was reported to the police. There are also other minor discrepancies in the testimonies of prosecution witnesses. However, the said discrepancies are not of such a nature as would affect the unblemished, unrebutted and convincing testimony of 6/7 years old victim child M, who had no motive to falsely implicate the accused by making serious allegations of sexual assault against him. Rather, the tender age of the victim M and the manner, in which, she deposed before the court reflects the truthfulness of the allegations against the accused.
36. The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved that accused, enticed the victim child M and took her in his room, confined her, slapped her and also sexually abused her by kissing and by attempting to remove her underwear and as such the prosecution has succeeded in proving the guilt of the accused Parmod Kumar on the face of S.C. No. 141/13 : State vs. Parmod Kumar : Page 25 of 33 record, beyond the reasonable doubts. Accordingly, I hold guilty accused Parmod Kumar for the offences u/s. 363/341/323 IPC and 7 of POCSO Act punishable u/s 8 of POCSO Act and he is convicted accordingly.
Let the convict be heard on the point of sentence.
(Announced in the open Court ) (Illa Rawat)
(Today on 09.05.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 141/13 : State vs. Parmod Kumar : Page 26 of 33
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 141/13)
Unique ID case No. 02404R0244462013
State Vs. Parmod Kumar
FIR No. : 344/13
U/s : 323/354/354A IPC and 7/8 POCSO Act
P.S. : Subhash Place
State Vs. Parmod Kumar
S/o Sh. Jai Narayan Yadav
R/o House No. G560,
Fourth Floor, Shakur Pur,
Delhi.
17.05.2014
Present : Ld. Addl. PP for the State.
Convict produced from J.C with counsel.
ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Parmod Kumar has been convicted u/s 363/341/323 IPC and 7 of POCSO Act punishable u/s 8 of POCSO Act.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Counsel for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict, S.C. No. 141/13 : State vs. Parmod Kumar : Page 27 of 33 enticed the victim child M, a minor girl aged about 6/7 years and took her in his room, confined her, slapped her and also sexually abused her by kissing her and by attempting to remove her underwear 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 the law be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. Counsel for the convict that the convict Parmod Kumar is a middle aged man of about 40 years and is married with wife and three minor children i.e. one daughter aged about 16 years and two sons aged about 12 and 13 years respectively and that all his children are school going. He also submits that parents of convict have already expired and that he is only bread earner of his family and that there is no look after his wife and three minor children. He further submitted that convict is a first time offender and there is no other complaint against him and that he is an autodriver by profession and that there is every chance of his improvement and rehabilitation. It is further submitted that convict belongs to a low strata of society and that he is in custody since last about nine months and he prays that a lenient view may be taken in this case and he be given a chance of rehabilitation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Defence counsel and have carefully gone through the record of the case.
5. In the present case, the convict Parmod Kumar has been convicted for committing the offence punishable u/s - 363/341/323 IPC and u/s 7 of POCSO Act punishable u/s 8 of POCSO Act. It stands proved that the convict, took advantage S.C. No. 141/13 : State vs. Parmod Kumar : Page 28 of 33 of tender age of the victim child M, who was only 6/7 years old at the time of incident, and enticed her and took her in his room, where he confined the victim child M, slapped her and also sexually assaulted her by kissing her and by attempting to remove her underwear. It is brought out from the record that accused as well as the family of the victim child were residing as tenants in the same building. It is also brought out from the record that the victim child M, her other siblings and her mother had come to Delhi for visiting the father of the victim M, who was working in Delhi. On the day of the incident, a roommate of the accused had left key of the room with the mother of the victim child and accused came to her, took the key of his room from her and went upstairs to his room. The victim child M also went upstairs, with permission of her mother, to play. Taking advantage of the fact that victim child was alone, accused offered her a toffee and a kite and enticed her inside his room, where he slapped her and sexually assaulted her. Had it not been for timely intervention by the mother of the victim M, who rushed upstairs hearing cries of her daughter, the victim M could have suffered some irreparable harm and injury. Though, ld. Counsel for the convict has prayed for a lenient view on the ground that convict is a middle aged man having a wife and three minor school going children, but considering the cruel act of the convict, no leniency is called for in the matter. I hereby award the following sentence to convict Parmod Kumar :
(i) For offence u/s 363 IPC the convict is sentenced to three years rigorous imprisonment, along with a fine to the tune of Rs. 3,000/, in default of payment of fine, to further undergo simple imprisonment for three month.
(ii) For offence u/s 341 IPC the convict is sentenced to one month simple imprisonment, along with a fine to the tune of Rs. 500/, in default of payment of S.C. No. 141/13 : State vs. Parmod Kumar : Page 29 of 33 fine, to further undergo simple imprisonment for 15 days.
(iii) For offence u/s 323 IPC the convict is sentenced to one month simple imprisonment, along with a fine to the tune of Rs. 500/, in default of payment of fine, to further undergo simple imprisonment for 15 days.
(iv) For offence u/s 8 of POCSO Act, the convict is sentenced to five years rigorous imprisonment, along with a fine to the tune of Rs. 5,000/, in default of payment of fine, to further undergo simple imprisonment for six month.
The sentences shall run concurrently.
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 girl, 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.
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 S.C. No. 141/13 : State vs. Parmod Kumar : Page 30 of 33 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 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 S.C. No. 141/13 : State vs. Parmod Kumar : Page 31 of 33 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 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 the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 50,000/ (Rs. Fifty thousand only) to the victim child. 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. It is further directed that compensation amount, which is kept in secured S.C. No. 141/13 : State vs. Parmod Kumar : Page 32 of 33 form of FDR, shall not be released to any one, until the child attains the age of majority. In the event, the money is required for welfare of the child prior to child attaining the age of majority, the parents and/or guardian of the child may approach the court for released of the amount by moving appropriate application, in this regard. Consequently, the concerned bank, which issues the FDR, in the name of the child, shall not release the FDR amount to any one, till the child attains the age of majority, except by the order of this court.
9. A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi, Chief Secretary, GNCT of Delhi, Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi, for information and necessary action under intimation to this Court.
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 17.05.2014) Addl. Session Judge
(NorthWest)01/Rohini/Delhi
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