Delhi District Court
State vs Bobby Fir No.479/12//Sc No.25/13// ... on 11 September, 2013
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IN THE COURT OF SHRI SANJEEV KUMAR : ASJ01, NORTH, ROHINI,
DELHI
Sessions Case No.25/13
FIR No.479/12
PS : Mangolpuri
U/S. 323 IPC
& 10 POCSO Act
STATE
VERSUS
Bobby S/o Inder Singh
R/o H.No.151, Mangolpuri,
Delhi. ... CONVICT
11.09.2013
Present: Shri A.K. Gupta, ld. Addl. PP for the State.
Convict Bobby in JC with Shri Neeraj Bansal, Amicus Curie.
ORDER ON SENTENCE
1. Vide Judgment dated 31.08.2013, convict was
convicted for offence u/s 10 POCSO and 323 IPC
2. It is submitted by ld. Amicus Curiae for the convict
that, convict is aged about 22 years. Considering his young age,
STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 1 OF 17
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lenient view may kindly be taken.
3. It is argued by the ld. Addl. PP for the State that
convict has sexually assaulted his niece who is a girl of aged about
06 years, thus he has broken the trust of relationship. Hence, the
convict deserves no leniency and he should be convicted for
maximum sentence under the statute.
4. I have considered the rival submissions. The convict
has sexually assaulted her niece in absence of her parents thus I am
agree with Ld. APP that convict has malign the relations and also
broken the trust of parents of the prosecutrix who had left her in the
house alone in the hope that convict will look after her. Further this
kind of incidents of sexual assault of girls/female are also increasing
in the society but the convict is a young man and is not previously
involved in any crime.
5. Therefore, taking into all the facts and circumstances,
I sentenced the convict five years Rigorous Imprisonment under
Section 10 of POCSO Act with fine of Rs.5,000/, in default of
payment of fine, he shall further undergo Simple Imprisonment for
Six months. Further I impose sentence of six months Rigorous
Imprisonment under Section 323 IPC with fine of Rs.1,000/, in
STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 2 OF 17
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default of payment of fine, he shall further undergo Simple
Imprisonment for two months.
8. Both the sentences shall run concurrently. The
convict shall be entitled for benefit of Section 428 Cr.P.C. A copy of
Judgment and that of order on sentence be provided to the Convict.
File be consigned to record room.
Announced in open court (Sanjeev Kumar)
on 11.09.2013. ASJ01, North, Rohini, Delhi.
STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 3 OF 17
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IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:25/13.
FIR NO:479/12.
PS : MANGOLPURI.
U/S. 376/307/511 IPC & 8/10 OF POCSO ACT.
STATE
VERSUS
BOBY S/O. LATE INDER SINGH
R/O. A151, MANGOLPURI, DELHI. .....ACCUSED.
Date of Institution:05.02.2013
Date of Argument :27.08.2013
Date of Decision :31.08.2013
JUDGMENT
1. The prosecution case is that, DD No.18A was recorded in the PS Mangolpuri on 17.12.2012 on information from phone number 921177317, at A151, near Market Mangolpuri, uncle of three years old girl has committed wrong act. Said DD was assigned to SI Bijender Dahiya. He informed to the IO WSI Suman Kumari and thereafter IO recorded statement of Smt. Kaushalya (mother of the prosecutrix), in which she had stated that, "her STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 4 OF 17 5 daughter D (name withheld) that, she has one daughter namely D and two sons. On 16.12.2012 at about 5pm, she had gone to market to take some goods and her daughter D and her son aged about 10 months were at home and when she came back from the market, she found that, her daughter was weeping. She saw that her brother in law (devar) lying on the bed with her daughter having quilt over them and when she removed the quilt, she saw that her daughter was not wearing clothes. She asked accused what happened, on which he replied that he was playing with her daughter , but her daughter told that uncle had removed her clothes and was putting his hand in her urinating part. In the evening when her husband came, she had narrated all the incident to him, due to which there was an altercation took place between them. Today brother in law Tilak Raj had made call to the police".
WSI Suman Kumar made endorsement on the said statement of the complainant. Thereafter, she produced D before the Magistrate where in her statement u/s. 164 Cr.P.C. recorded by the Magistrate, in which D had disclosed the same facts as told by her mother in the complaint. D was medically examined but D's mother refused for her internal medical examination. IO had collected the date of birth certificate of the prosecutrix D and finally filed STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 5 OF 17 6 chargesheet u/s. 376/307/511 IPC and u/s. 8/10 of POCSO Act.
2. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to this court.
3. Vide order dated 27.02.2013 charge under Section 10 of POCSO Act and 307 IPC was framed against accused, to which he pleaded not guilty and claimed trial.
4. Prosecution in support of its case, examined only ten witnesses.
PW1 Monika Tondon has examined the prosecutrix D and prepared MLC Ex.PW1/A. PW2 D is the prosecutrix and her testimony will be discussed later on.
PW3 ASI Rajbir Singh is the duty officer and recorded the FIR of the case.
PW4 Smt. Kaushalya Devi is the mother of the prosecutrix D and her testimony will be discussed later on.
PW5 Dr. Ankur Jain also examined the D vide MLC Ex.PW1/A. PW6 Dr. Bina, she had examined the accused Boby and proved MLC Ex.PW6/A. STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 6 OF 17 7 PW7 WCT. Shashi Kala is a formal witness, who took the prosecutrix for her medical examination. PW8 Ct. Ampit, who had participated in the investigation with the IO.
PW9 SI Bijender Dahiya is a formal witness as initially DD No.18A was handed over to him and he brought the prosecutrix and her mother to the PS where he informed WSI Suman and took and took prosecutrix for her medical examination.
PW10 WSI Suman is the main IO of the case.
5. The statement of accused was recorded u/s 313 Cr.P.C. wherein all the incriminating evidence were put to the accused to which accused had admitted that prosecutrix is her niece (Bhatiji) and he also admitted that he took prosecutrix into his lap, but he had taken her in his lap out of love and affection and has no bad intentions. Prosecutrix was her niece and also admitted that he touched her private parts, but he had staed that he touched the same without any reason and had no sexual intentions and also admitted that he had removed her jersey but stated that she was feeling uncomfortable, but denied that he removed her panty/kachhi STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 7 OF 17 8 and he stated that she was wearing panty at that time and only wearing frock, which he had not removed at that time.
6. The charges has been framed against the accused u/s. 10 of the POCSO Act. Before going through the evidence it would be appropriate to go through the relevant provisions of law which is reproduced as under:
10. Punishment for aggravated sexual assault. Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
Aggravated sexual assault has been defined in Section 9 of the Act as under:
9. Aggravated Sexual Assault - (m) whoever commits sexual assault on a child below twelve years: or
(n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child or who is living in the same or shared household with child, commits sexual assault on such child:
STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 8 OF 17 9 Sexual assault has been defined in Section 7 of Act as under:
7. Sexual Assault. Whoever, with sexual intent touches the vagina, penis anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
7. It is admitted fact that prosecutrix is less than 12 years of age. Even otherwise, from her date of birth certificate Ex.PW4/B, it is proved that, her date of birth was 30.11.2007. It is also undisputed fact that, accused is paternal uncle of the 'D', hence, if prosecution is able to prove that, accused had sexually assaulted the 'D", then it would amount to aggravated sexual assault.
8. Star witness of the prosecution case is PW2 i.e. 'D'.
She was a child witness of just six years old. Therefore, before recording her testimony, I had asked some preliminary questions and thereafter recorded her testimony after satisfying that she is comfortable to understand the questions and giving rational answers. She testified that her uncle (Chacha) whom she identified as accused Boby present in the court, one day when her mother had STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 9 OF 17 10 gone to take vegetables, came from the roof of the house and lifted her in his lap (godi) and touched on her urinating part and removed her cloth and took into quilt and also tried to press her neck and beat her.
In her cross examination also she stated that when she was cleaning her teeth, accused came and lifted her and touched her urinating part, but did not done anything in quilt (Main jab manjan kar rahi thi to mere chacha ne us samay mukhe utha liya aur mere susu pe haath lagaya aur usi samay mere gala ghonta aur rajai mein kutch nahin kiya) but again said kutch nahi kiya. Thus nothing much has come out in her cross examination. In her statement u/s. 164 Cr.P.C. also she stated the same facts besides saying that, accused put his finger into her urinating part. Hence, in these circumstances, I do not see any reason to disbelieve her testimony.
9. It is settled law that testimony of prosecutrix if found reliable and sufficient for conviction without any corroboration, as prosecutrix is not an accomplice. As held in In the case Madho Ram and another V The State of U.P., AIR 1973 SC 469 as under : STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 10 OF 17 11 [T] the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasized that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
Further in case Bharwada Bhoginbhai Hirjibhai V State of Gujrat, AIR 1983 SC 753(1) as under : Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 11 OF 17 12 Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration not withstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming. Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self- preservation, or when the 'probabilities factor' is found to be out of tune.
Recently our own High Court in State Vs Jai Hind Crl.LP.288/2011 dt 13.7.12 has discussed the importance of testimony of prosecutrix in a sexual harassment case. In this Honble Judge quoted the relevant para of Judgment of Supreme Court titled as State of Punjab Vs Gurmit Singh & others AIR 1996SC1393, which is as under: "The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix which are not of a fatal nature, to trow out an otherwise reliable prosecution case. If evidence of the prosecutrix STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 12 OF 17 13 inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with case involving sexual molestations."
Hence, in view of the aforesaid judicial pronouncement, I am of the view testimony of "D" is itself sufficient for conviction and no corroboration is required, as I found her testimony consistent, cogent and trustworthy.
10. However, if I look for corroboration, PW4 Kaushalya Devi (mother of PW2) has also corroborated the testimony of PW2. She had testified that on 16.12.1012 at about 5pm, she had gone to market to take vegetables and when she came back she heard the weeping of her daughter. She went into the room of the first floor, where she saw accused Boby had taken her daughter in his lap and covered with quilt and when she removed quilt she saw that, there was no cloth on body of her daughter and she was weeping. She asked accused what he was doing and and then he replied that, he STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 13 OF 17 14 was playing with her daughter. Then she asked her daughter and her daughter told that, accused had taken in his lap and lay down her on the bed and also slapped her and her and removed her cloths and further touched her private part. On next day she called her sister in law (Nanad) and her Nandoi made a call to police and police recorded her statement.
In her cross examination also nothing has come out. She denied that there was dispute between them (her and her husband) and accused and they wanted to throw the accused out of the house , therefore, they falsely implicated accused in this case. Hence, nothing has come out in her cross examination also.
11. Accused himself in his statement u/s. 313 Cr.P.C. in respondent to question no.10 had admitted that, he touched the private part of his niece without any reason, but he had no sexual intention. Though, he denied that he removed all clothes of 'D' and stated only that he put off jersey of 'D' as she was complaining. Since accused had admitted that he has touched the private part of 'D', and he has not given any reason for doing the same, therefore, in these circumstances it cannot be said that he has not touched her private part with the sexual intentions. Even otherwise, as per STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 14 OF 17 15 Section 29 of the Act the court shall presume that such person has committed the offence unless the contrary is proved. Section 29 of POCSO Act is reproduced as under:
29. Presumption as to certain offences. Where a person is prosecuted for committing or abetting or attempting to commit any offence under Section 2,5,7,and section9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
12. Accused had not led any evidence that he has not touched her private part for medical purpose or for cleaning purpose, thus he has failed to discharge the onus that he had no sexual intentions while touching the private part of the 'D'.
13. Hence, in these circumstances, I held that prosecution has been able to prove that accused had removed clothes of 'D' and touched her private part. Hence, in view of the aforesaid facts and circumstances, I held that prosecution has been able to prove that accused has removed the cloth of 'D' and touched her private part of 'D' i.e. vagina. Therefore, I held that, Accused had committed aggravated sexual assault on the person of 'D'. Hence, I convict him for offence punishable u/s. 10 of the POCSO Act. STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 15 OF 17 16
14. The accused has also been charged for offence u/s.
307 IPC. Which is reproduced as under :
307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.
15. Though 'D' has testified that accused strangulated her, but since from her MLC Ex.PW1/A prepared by PW1 Dr. Monika, I found that she had no external injuries on her neck. Had accused strangulated her with a great pressure with the intention to murder her, then definitely she would have some injury mark on her neck. Hence in these circumstances, it cannot be ruled out that accused might have just caught hold her neck, but had not applied STATE VS BOBBY FIR NO.479/12//SC NO.25/13// U/S. 307 IPC AND 10 OF POCSO ACT PAGE 16 OF 17 17 much pressure to kill her, therefore, I held that, accused has not pressed her neck with such force and thus he has no intention to commit her murder, since he has pressed her neck and also beaten her, therefore, I also convict him for offence u/s. 323 IPC. Now to come up for order on sentence.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR) ON 31.08.2013. ADDL. SESSIONS JUDGE 01 (NORTH) ROHINI:DELHI.
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