Delhi District Court
Sc No: 110/13 State vs . Dharmender on 15 September, 2015
SC No: 110/13 State Vs. Dharmender
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 110/13
FIR No. 444/12
Police Station Alipur
Under Section 377/506 IPC &
6 POCSO Act.
ID No. 02404R0-079302013
State
Versus
Dharmender
S/o Sh. Rajender
R/o Village Malkpur, PS Anoop Shahar,
Distt. Buland Shahar, U.P.
......Accused
Date of institution 10.09.2013
Judgment reserved on 20.08.2015
Judgment Pronounced on 10/09/15
Decision Convicted
Judgment 1 of 16
SC No: 110/13 State Vs. Dharmender
JUDGMENT
1. FIR in question was registered on the complaint of the victim N, a boy aged about 10 years alleging that on 18.12.2012 at about 4 PM, when he was playing on the roof of his house, the accused Dharmender came there and took him in his room. When the victim asked for water, the accused made him to drink soda. Accused closed the door of the room and switched off the light. Accused threatened the victim that if victim would raise alarm, he would be killed. Then, the accused removed pant of the victim forcibly and made the victim lie down on the bed. Accused inserted his penis in the anus of victim forcibly. Victim cried with pain. When accused got up to apply mustard oil, the victim escaped from the room. In the evening, when the mother of accused came, he narrated the whole incident to her. His mother told the incident to the neighbors and called at 100 number. Statement of victim was recorded and he was medically examined. He prayed for legal action against the accused.
Judgment 2 of 16
SC No: 110/13 State Vs. Dharmender
2. Accused was arrested and was charge-sheeted in the present case for the offence punishable u/s 377/506 IPC and u/s 6 POCSO (Protection of Children from Sexual Offences) Act, 2012. Charge for the said offences was framed against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 11 witnesses.
4. PW1 is the mother of victim. She deposed on the date of incident, when she came back from her workplace at about 6 PM, her son N narrated the incident happened with him. She informed her neighbor and called at 100. Police came at the spot and recorded the statement of victim and got him medically examined. Accused was arrested. She identified the accused in the court.
Judgment 3 of 16
SC No: 110/13 State Vs. Dharmender
5. PW2 is victim, he deposed on the lines on the complaint made by him and proved his statement given to the police as Ex. PW2/A. He deposed that he was examined at SRHC hospital and thereafter his statement was also recorded u/s 164 Cr.P.C. He duly identified the accused in the court. He also proved his statement given to Ld MM as Ex PW2/B.
6. PW3 Dr. Ashutosh Gupta proved the MLC Ex. PW3/A and the treatment record Ex. PW3/B pertaining to accused. He also proved the MLC Ex. PW3/C of the victim.
7. PW4 HC Rajender proved the FIR and his endorsement on the rukka as Ex. PW4/A & B.
8. PW5 Jagvir Singh, proved the date of birth of the victim as 05.03.2003 by producing his School Record Ex. PW5/A. He also verified the parentage of the accused and his address as per the documents Ex. PW5/B & E Judgment 4 of 16 SC No: 110/13 State Vs. Dharmender
9. PW6 Ct. Sunil Kumar got conducted the medical examination of victim and accused from SRHC Hospital.
10. PW7 Ct. Suraj proved the DD entry No. 77B as Ex. PW7/A.
11. PW8 Ct. Umed Singh deposited the sealed pulandas of this case with FSL Rohini against acknowledgment.
12. PW9 Sh. Manish Khurana, Ld ASCJ, proved the statement of victim recorded u/s 164 Cr.P.C. as Ex. PW2/B.
13. PW10 Babli neighbor of the victim deposed that on the date of incident, she saw the victim while he was coming out crying running from the room of accused carrying his pants in his hands.
Judgment 5 of 16
SC No: 110/13 State Vs. Dharmender
14. PW11 ASI Dharambir Singh is the Investigating Officer. He along with Ct. Sunil Kumar(PW6) reached at the house of victim and recorded statement of victim and got him medically examined. He seized the sealed exhibits of victim vide seizure memo Ex. PW11/A. He got registered the present FIR through Ct. Sunil Kumar. He proved the rukka Ex. PW11/B. He got medically examined the accused from SRHC Hospital and seized exhibits of accused vide memo Ex. PW11/C. He prepared site plan of the place of occurence at the instance of victim Ex. PW11/D. He proved the arrest and person search of accused vide memo Ex. PW 11/ E &F. He also collected a certificate with respect to date of birth of victim from his school as Ex. PW11/G. He filed the FSL result as Ex F-1.
15. On conclusion of the prosecution evidence, the statement of accused was recorded U/s 313 Cr.P.C. Accused stated that prior to this incident, he had a quarrel with the mother of the victim and she threatened him to take revenge from him. He categorically stated that no incident as alleged ever took place. He did not lead any DE.
Judgment 6 of 16
SC No: 110/13 State Vs. Dharmender
16. I have heard the Ld. Addl. PP for the State and Ld. Defence Counsel and have also gone through the entire record.
17. Age of the Victim: Accused has been charged for the offence punishable U/s 6 POCSO Act. Thus, the first ingredient to be proved on record is to find out that whether the victim was a child less than 12 years on the date of incident. Prosecution examined PW5 a witness from School of the victim who proved the date of birth of victim as 05.03.2003 by producing his School Record Ex. PW5/A. The defence has not challenged the age 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 less than 10 years on the date of commission of offence.
18. Testimony of Victim: Victim has narrated the entire incident as it happened with him in his initial complaint Ex. PW2/A, then in his statement Ex. PW2/B recorded U/s 164 Cr.P.C and also in his testimony recorded before the Court.
Judgment 7 of 16
SC No: 110/13 State Vs. Dharmender
19. Defence has argued that there are material contradictions in the statement given by the victim recorded U/s 164 Cr.P.C. and his testimony recorded in the Court. It has been further submitted that there are marked deviations in the testimony of the victim from his initial complaint Ex. PW2/A. Before adverting to the arguments advanced by Ld. Defence Counsel it would be appropriate to find out what the victim has stated in his statements Ex. PW2/A & B and in his testimony. Initial complaint of the victim Ex. PW2/A reads as under:
... I am studying in Class III in Government School. My father is a contractor and my mother is working in a canteen. On 17.12.2012, my father went to village Hasanpur, Bihar. On 18.12.2012 while my mother was on her duty, at about 4 PM, when I was playing on the roof of my house, the accused Dharmender came there and took me in his room. When I asked him to let me go to drink water, the accused made me to drink soda. Accused told me to lie on bed. He closed the door of the room and switched off the light. Accused threatened me that if I would raise alarm, he would kill me. I got frightened. Then, the accused removed my pant forcibly and made the victim lie down on the bed and inserted his penis in my anus. I cried with pain. Accused got up to apply mustard oil, meanwhile I managed to escape from the room. In the evening, I narrated the whole incident to my mother. My mother told the incident to the neighbors and called at 100 number....
Judgment 8 of 16
SC No: 110/13 State Vs. Dharmender
Statement of the victim Ex. PW2/B (recorded u/s 164 Cr.P.C) On 18.12.2012, I was playing on the roof of my house at Budhpur, Delhi. One of our neighbor Dharmender called me to his room. He bolted the door from inside and switched off the lights. He told me to lie on bed. When I refused, he pushed me on the bed. Then he removed my pant. He also took off his pant. Then he told me to apply oil on his penis. Thereafter, he committed wrong act with me. He inserted his penis into my anus. He threatened me to kill and also told me not to tell this incident to anybody. Then he left me. I told about this incident to my mother and we went to police station. Police apprehended him. Dharmender has committed wrong with me.
Testimony of the victim reads as under:-
"On 18.12.2012, I was present on the roof of my tenanted room/house. My mother was also had gone to her workplace on the day of incident. My father had gone to his native village Hasanpur on 17.12.2012 and he is not in the house. I was present on the roof at about 4 PM and playing with my brother Mukesh. Accused Dharmender who was also residing in a room in same Gher came on the roof and called me in his room. I refused to go to his room and accused forcibly took me to his room. After coming to his room he has bolted the room and also switched off the light. He laid me on the chowki and he put off my pants forcefully and brought the mustard oil bottle. I requested him that I have to take water and accused had given me soda water of white color to drink". Thereafter accused had put his urinating part in to my anus (tatti wali jagah). I cried due to pain. Some known to the accused has opened the gate and I ran away from there and went to my room. At about 6 PM my mother came to the room from her workplace and I narrated the whole incident to her. Many persons gathered there.
Judgment 9 of 16
SC No: 110/13 State Vs. Dharmender
Some one had made a call to police. Police came there. Accused was apprehended by the police. Police got me medically examined from the hospital. My statement was recorded which is Ex. PW2/A bearing my signature at point A. I have also shown to the police the place of incident. Police has also got recorded my statement before the Judge in Rohini Courts..........."
20. First contention of the defence is that the victim in his statement Ex. PW2/B (recorded u/s 164 Cr.P.C) has stated that the accused told him to apply mustard oil on his penis whereas this part is missing in his testimony as well as in initial complaint Ex. PW2/A. Therefore, it being a material difference in his testimony, as such, the same creates doubt over the trustworthiness of the witness.
21. After going through the record, it can be seen that the victim has deposed that the accused laid him on the chowki, put off his pant forcibly and accused also brought the mustard oil bottle. Fact of bringing mustard oil bottle also finds mention in Ex. PW2/A where the victim stated that the accused got up to apply mustard oil. Thus, it becomes evident that the victim in all of his statements has mentioned something about the mustard oil.
Judgment 10 of 16
SC No: 110/13 State Vs. Dharmender
22. Because of the reason that the victim has not stated the act of application of mustard oil on penis of accused in his testimony, the testimony of victim cannot be discarded as while appreciating the testimony of child witness it has to be borne in mind that it is very difficult for a child to depose and narrate all the facts with precise accuracy. In totality of facts, I find that it is not a material omission which dents the trustworthiness of the witness.
23. Defence has also attacked the testimony of victim by contending that the victim admitted during his cross examination that while he was playing his brothers and sisters were also playing on the roof with him. It is stated that neither the victim nor his siblings raised any alarm while the victim was taken by the accused and their conduct is unnatural and hard to believe as while noticing that the victim was taken by the accused, they ought to have raised an alarm.
Judgment 11 of 16
SC No: 110/13 State Vs. Dharmender
24. After going through the testimony of the victim, I find that it is not mentioned in the testimony of the victim that his siblings noticed the accused taking him away. Even otherwise also, it is not expected from small children to notice the happenings in their surroundings while playing, therefore, the question of raising alarm by the siblings of the victim does not arise. Moreover, the victim testified that the accused threatened him not to raise an alarm, in such a case, one can imagine the fear put in the mind of 10 year old boy which restrained him to raise an alarm. Thus, the conduct of victim and his siblings in not raising an alarm cannot be termed as unusual.
25. Testimony of the victim, with relation to the incident is reassuring as he has been consistent throughout in describing what the accused did to him. Victim firstly narrated the incident to the to police as per his statement Ex. PW2/A and also to Ld. MM as per his statement Ex. PW2/B recorded U/s 164 Cr.P.C. Description of the act as given by the victim is accurate and is narrated with the understanding of a 10 year old child.
Judgment 12 of 16
SC No: 110/13 State Vs. Dharmender
26. In his cross examination, victim was put several suggestive questions. He denied the suggestions that he has deposed in the Court on the tutoring of his mother as she had a quarrel with the accused.
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 victim has been consistent on the material particulars with regard to the incident of sexual assault on him.
28. More so, the testimony of victim also finds corroboration from the deposition of PW10 who is the neighbor of the victim and deposed that at relevant time she saw the victim running out crying from the room of the accused and the victim was carrying his pant in his hand. Despite the cross-examination of this witness no material contradiction came out.
Judgment 13 of 16
SC No: 110/13 State Vs. Dharmender
29. Thus, testimony of victim is found to be truthful and reliable and no circumstance has been brought on record to discredit his testimony. His testimony also finds support from other prosecution witnesses and also from a neighbor who actually saw the victim coming out from the room of the accused crying and carrying his pant in his hand.
30. Medical Evidence: Victim was medically examined vide MLC Ex PW3/A. It has been mentioned on the MLC that victim was brought to Hospital with history of Sodomy. Doctor who examined the victim mentioned that the child and his mother gave told the Doctor about sexual assault on the victim. Doctor also observed a tear present at 6 & 12'O Clock position at anal margin of the victim. Anal tear clearly indicates victim was sodomized. This medical evidence also corroborates the version of victim that he was sexually assaulted. As stated above, the victim has identified the accused to be the culprit.
Judgment 14 of 16
SC No: 110/13 State Vs. Dharmender
31. Defence taken by the accused: Accused has submitted that prior to the incident he had a quarrel with the mother of the victim and she threatened the accused to take revenge from him. No witness has been examined by the accused in this regard. Nonetheless the accused could not establish any of the facts as alleged by him.
32. From the discussions herein above, it emerges that:
i) Testimony of the victim is credible & trustworthy.
ii) Victim was taken by the accused inside the room. Victim was threatened and sexually assaulted.
iii) PW10 corroborates the version of the victim.
iv) Narration of the victim of the entire incident finds corroboration from the medical evidence.
v) Accused failed to establish his defence.
Judgment 15 of 16
SC No: 110/13 State Vs. Dharmender
33. 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 sexual assault on him by the accused. Allegations also found corroboration from medical evidence.
Accordingly, it is held that the guilt of the accused stands proved. Accused stands convicted for the offence punishable U/s 6 POCSO Act/ 377 IPC & U/s 506 IPC.
34. Matter be listed for hearing arguments on quantum of sentence for 15.09.2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 16 of 16
SC No: 110/13 State Vs. Dharmender
IN THE COURT OF SH. GAUTAM MANAN,
ASJ-01, NORTH, ROHINI
In the matter of:-
S. C. No. 110/13
FIR No. 444/12
Police Station Alipur
Under Section 377/506 IPC & 6 POCSO
ID No. 02404R0-079302013
State
Versus
Dharmender
S/o Sh. Rajender
R/o Village Malkpur, PS Anoop Shahar,
Distt. Buland Shahar, U.P. ......Convict
ORDER ON SENTENCE
1. Accused Dharmender has been convicted U/s 506/377
IPC & U/s 6 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 ld. Amicus Curiae for the convict.
Judgment 17 of 16
SC No: 110/13 State Vs. Dharmender
2. 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 sexual assault by the convict. 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.
3. Per contra, the learned defence counsel has submitted that convict is a young man aged about 35 years. He has already undergone about 32 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 submitted that the convict is the first time offender as such benefit of Probation of Offender's Act be granted to the convict.
Judgment 18 of 16
SC No: 110/13 State Vs. Dharmender
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.
5. In my considered opinion, the nature of offence committed by the convict does not demand that he be released on probation. 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. 5,000/-, in default SI for a period of 1 month for the offence punishable u/s 6 POCSO Act and Rigorous Imprisonment for a period of 1 year along with fine of Rs. 1,000/-, in default further SI for a period of 1 month for the offence punishable u/s 506 IPC. Since. Sentence is awarded to the convict for the offence punishable u/s 6 POCSO, Act no separate sentence is awarded to convict for the offence punishable u/s 377 IPC. Sentences shall run concurrently and the benefit of Section 428 Cr.P.C is accorded to the convict.
Judgment 19 of 16
SC No: 110/13 State Vs. Dharmender
6. Compensation: 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.
7. 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 him and for the rehabilitation of the victim.
Judgment 20 of 16
SC No: 110/13 State Vs. Dharmender
8. Therefore, in order to provide Restorative and
Compensatory Justice to the victim, Rs. 1,00,000/- (Rs. One lac only) is granted to the victim as compensation. 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 welfare and rehabilitation of the victim.
9. 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.
10. Convict is informed of 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 16
SC No: 110/13 State Vs. Dharmender
11. 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
15.09.2015
Judgment 22 of 16